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Liability
for GMOs is not covered in the revised EU Deliberate Release Directive
(2001/18/EC repealing 90/220/EEC). Despite promising at the time
2001/18/EC was adopted that GMOs would be covered in separate
legislation, the European Commission’s “Proposal for a Directive on
Environmental Liability with regard to the prevention and restoration
of environmental damage” (COM(2002) 21) fails to address the problem.
Therefore, damage caused by GMOs to the environment and human health,
or economic loss to farmers whose crops may be contaminated by GMOs,
is not adequately addressed by any EU legal framework.
The
Commission’s Proposals falls down badly on several different points:
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The
definition of biodiversity
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The
exemptions provided for industry to escape liability
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The
time-frame under which liability may apply
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The way
in which prosecution and redress can be carried out
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The
lack of provision for insurance or compensation funds.
Biodiversity
The Commission’s Proposal defines
“environmental damage” as damage to biodiversity, water and land;
however, in the latter category only land damage "that creates serious
potential or actual harm to public health as a result of soil and
subsoil contamination". This wording is strange since soil
contamination could clearly cause long-term damage to biodiversity.
In the case of GMOs, for example, leakage of Bt toxin from GM crops
into the ground has raised questions about unknown effects on soil
micro-organisms and future impacts on biodiversity.
The
Proposal restricts the definition of biodiversity to only sites and
species covered by the EU's Habitats Directive and the Birds
Directive, and places and/or species protected under national
legislation in EU Member States. This means that the Directive
will only apply to about 13% of the EU's territory, and will be
irrelevant for the remaining 87%, despite the obvious fact that
events may take place in that unprotected countryside which could have
damaging or irreversible effects on biodiversity.
Exemptions
The Commission proposes a number of
exemptions under which companies can escape liability altogether. For
example, liability is precluded for operators in case of:
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“a
specific emission or event explicitly authorised in applicable laws
and regulations or in the permit or authorisation delivered to the
operator", and
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“emissions or activities which were not considered harmful according
to the state of scientific and technical knowledge at the time the
emission release or the activity took place".
The Commission justifies these concessions to industry
as a measure that "safeguards incentives for innovation". It says in
its News Release that: "when a release of the GMO has been
specifically authorised or when it was not possible for foresee the
damaging effect of the GMO on the basis of the best science, there
would be no strict liability”. Whose 'best science' is in
question is not specified. According to the Commission,
failure to exempt damage caused by events which were not considered
harmful according to the state of scientific and technical knowledge
at the time "would have unduly stifled technological development in
the EU".
Based on
the above, any environmental damage caused by a GMO that has been
authorised under EU legislation is clearly exempt from liability.
Worse still, a company could escape liability by claiming that even an
unauthorised GMO was not "considered harmful according to the
state of scientific and technical knowledge at the time ".
The only
way a company could be held liable
for damage caused by a GMO would be if the GMO in question was not
authorised, and the company could not prove that ‘best science’ did
not foresee damaging effects. A GMO user (such as a farmer) could
also be held liable if he did not follow the instructions for use of
the GMO producer.
Timeframe and
retroactivity
The Commission’s
Proposal says that competent authorities can "initiate cost recovery
proceedings against an operator who has caused damage or imminent
threat of damage" during a period of for five years. FoE
believes that there should be no time limitation under which GMO
producers or operators can be made legally and financially responsible
for any damage caused. The long-term impacts of GMOs on
biodiversity are only just
beginning to be understood. If a GMO producer or operator is
liable, redress and compensation measures should not be hampered by
time restrictions.
Furthermore, the Proposal excludes
activities that have been carried out before the Directive enters into
force. Since it is likely that the Directive will not be transposed in
Member States before 2004-2005, that implies that all GMOs already on the
market or which may come onto the market before 2004-2005 are
excluded. This on top of the fact that, under the exemptions
described above, they are likely to be exempt from liability anyway.
Prosecution and
redress
The Proposal places
the responsibility for taking action against those who cause
environmental damage with the national competent authorities in the
Member States. It excludes persons or NGOs from initiating legal
action against the polluter. According to the Commission, third
parties would only be entitled to submit observations to the competent
authority and to request that the CA take action. Competent
authorities are therefore placed in the position of being both
'prosecutor' and 'authoriser' in some cases since the CA may have been
responsible for granting the operator a licence in the first place.
The only recourse left to third parties is to initiate a judicial
review if they believe the competent authority has failed to act
appropriately.
Insurance/compensation fund
No compulsory
insurance schemes or compensation funds are foreseen in the Proposal.
In case of so-called 'orphan damage' when the polluter cannot be
identified, or is insolvent and cannot pay for reparation of damage,
the Commission suggests that Member States envisage the possibility of
'safety nets' in order to pay for restoration. Member States are left
to decide for themselves how such ‘safety nets’ are financed, which
could clearly lead to an additional burden on tax-payers.
BROKEN
PROMISES
When the deliberate release directive was under revision, the
Commission argued energetically against liability being included in
the new Directive, promising repeatedly that the issue would be
covered by the future EU Environmental Liability Directive. Now that
the Proposal is finally on the table, it is clear that those promises
have not been kept; the Commission has undeniably failed to
table legislation that goes anywhere near covering liability for
damage caused by GMOs.
FoE’s
Position Paper
on the Proposal for a Directive of the European Parliament and of the
Council on environmental liability.
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