European Union and German law on co-existence: Individualisation of a systemic problem

Abstract

Co-existence of the cultivation of genetically modified and non-genetically modified crops is commonly regarded as a suitable way out of the clash of perceptions of environmental or health risks of genetically modified organisms. It allows setting aside a clear risk-based decision for or against genetically modified organisms, because all types of agriculture shall be given the possibility to exist side by side. Still, co-existence entails conflicts which the law strives to solve. European Union law is reticent as to binding co-existence measures and has left this task to the member states. Taking Germany as a case, the established rules have not been effective because they shift conflict resolution to the local and individual level. A systemic approach suggests the use of landscape planning as a means of clustering different kinds of agriculture. The pertinent European Union and German law is summarised and interpreted. Its effects are analysed and explained. From this reform, suggestions are derived. According to the European Union, conception measures aiming at reducing health and environmental risks of genetically modified organisms must be separated from measures aiming at ensuring the economic co-existence of different kinds of agriculture. In contrast, German law on gene technology does not precisely separate risk mitigation measures from co-existence measures. The measures all aim at solving the conflicts between the individual landowners and thus fail to recognise the systemic character of the conflict between agricultures. The systemic conflict can better be solved by non-binding landscape planning or a legally binding agrarian utilisation plan, yet to be developed. Legislation addressing the conflict of agriculture must respect its constitutional dimension, i.e. the clash of basic rights to property and entrepreneurial freedom of conventional, organic and genetically modified organism farmers, industry, commerce and consumers. Binding and non-binding planning measures are compatible with constitutional guarantees as well as with European Union law Co-existence and freedom of choice between the different agricultures is not effectively achieved by the existing individual solutions. Binding agricultural planning should therefore be introduced establishing e.g. genetically modified organism-free zones. Such measures are compatible with constitutional guarantees and with EU law.