National ban on cultivation since 2007

In April 2007 new research according to which the Bt-toxin used in this corn can harm the environment more severely than previously anticipated led to a nationwide sales prohibition of MON810 in Germany by the Federal Office of Consumer Protection and Food Safety (BVL). After Monsanto complied in December 2007 with the request to present a plan for the monitoring of possible impacts on the environment the corn breed could temporarily be cultivated in Germany again.

On September 14, 2009, the Federal Minister of Agriculture Ilse Aigner imposed a ban on the cultivation of MON810 for Germany which remains valid until today. In doing so, she referred to Article 23 of the Deliberate Release Directive 2001/18/EG under which the cultivation of a GMO in an EU Member State may be temporarily restricted or prohibited only if the “Member State, as a result of new or additional information made available [...] has detailed grounds for considering that a GMO as or in a product [...] constitutes a risk to human health or the environment."

The new scientific data on which the cultivation ban is based was provided – among others – by the research groups of Thomas Bohn and Angelika Hilbeck. Thus, a study conducted by Bohn arrived at the conclusion that water fleas which have been fed with flour processed from MON810 die earlier and have less offspring. Hilbeck’s study revealed that the larvae of the ladybird Adalia bipunctata have an increased death rate, if they are fed with eggs which have been sprayed with the butterfly toxin that is also contained in MON810. It has been criticised that, from a scientific perspective, these studies do not justify a prohibition. According to the critics, the study of the ladybird Adalia bipunctata, in particular, has significant methodological flaws and the conclusion that the cultivation of MON810 could be harmful to ladybirds is illegitimate. The Norwegian study by Bohn and his colleagues is supposed to be meaningless because water fleas in their natural environment do not feed on corn flour but on algae.

An urgent motion filed by the US seed company Monsanto against the cultivation ban imposed on MON810 by the Federal Government was rejected by the Administrative Court of Braunschweig on May 5, 2009. In their verdict, the judges emphasise that, on the basis of a preliminary examination, the kind of dangerous situation was given which German Genetic Engineering Law requires to justify a ban. For such a prohibition to be justified it is not required that scientific evidence was available which proved beyond doubt the existence of certain environmental hazards. Rather, it is sufficient that new or additional evidence provides an indication of hazards for humans or animals. Although there is no scientific proof for the assumption that GM corn brings about increased risks for the environment, new studies may nevertheless suggest that the toxin produced in GM corn is not only toxic to the targeted pest, but also toxic to other insects. Moreover, recent studies suggest that pollen of GM corn spreads more widely than expected so far. 

The national cultivation ban of MON810 is being discussed controversially. While environmental associations demand further prohibitions, large scientific organisations issued a joint statement in 2009 in which they resolutely object to blanket prohibitions of genetically engineered products. They call on politics to promote a more objective debate and to establish a reliable framework for research into and the scientific monitoring of the future utilisation of green genetic engineering.
In addition to Germany, the cultivation of MON810 is prohibited in France, Austria, Greece, Luxembourg and Hungary. In 2009, the EU-Commission initiated an attempt to coercively lift the bans in Austria and Hungary; however, it could not push its proposal through against the EU environment ministers. Alternative ways are sought to implement national opt-out clauses into EU law. Such clauses are intended to enable Member States to ban the cultivation of GM crops for political reasons, without having to draw on scientific risk assessments.

The creation of an opt-out clause

On 12 June 2014 the EU Council of Ministers in Luxembourg approved the creation of an opt-out clause according to which the cultivation of genetically modified food may be prohibited on the national level. Previously, the EU states had to provide new scientific evidence for the risks of particular genetically modified foods in order to implement their ban on the national level.

This opt-out clause was adopted on 13 March 2015 by EU Directive 2015/412. It adds a two-step opt-out process to Directive 2001/18/EG which gives the EU member states the possibility to opt out of the cultivation of GMOs on their sovereign territory. The member states can thus apply for a general prohibition of the cultivation of GMOs on their sovereign territory or, in case of a previous authorisation, demand a rescindment or restriction of the cultivation of a specific type of GMO on their sovereign territory.

With regard to MON810, the member states had to apply for a repeal of the authorisation of cultivation of this type of corn on their territory from Monsanto. Among others, Germany, France, Austria, the Netherlands, Belgium and Italy applied. After Monsanto did not file an objection, the European Commission passed the Implementing Decision 2016/321 of 3 March 2016. The decision prohibits the cultivation of MON810 on the territories of the countries that had previously petitioned a cultivation prohibition. Furthermore, it is being discussed if the cultivation of MON810 should be approved EU-wide. The Member States could not reach a consensus on this matter yet. The national ban on cultivation accorded during the opt-out process would stay valid if the law should be extended to the EU.

How the amendments made in EU law are to be implemented at the national level is currently being discussed in Germany. An amendment of the GMO law is being considered. It would extend the jurisdiction of such a cultivation prohibition, previously owned by the Bundesländer, to the German Federation. In November 2016, the German Federal Council tabled a bill that amends the Genetic Engineering Act (Gentechnikgesetz) in order to make such a federal cultivation prohibition possible. The adoption of the bill failed in May 2017 as the German Federal Council and the German Government did not agree on proposals for amendments. In addition, expert groups and environmental associations criticise the bill's potentially low impact.