Good news from the right-wing corner: No expiration of an advertisement for an S1 system?

Dr. Petra Kauch

Whether an indication for an S1 system can expire is a very relevant question in practice.

This is because there are S1 genetic engineering facilities in which – due to the lack of an alternative working group – after notification, only biological substances are permanently handled without actually carrying out genetic engineering work. The question initially seems obvious, since Section 27 Paragraph 1 No. 2 GenTG contains a provision according to which a facility permit (from S3 facilities onwards) can expire. We have a similar provision for the invalidation of a registration, namely Section 27 Paragraph 4 No. 2 GenTG. According to both provisions, a facility permit expires or a registration becomes invalid if, for a period of more than three years, only genetic engineering work of a lower level than the safety level covered by the facility permit or registration is carried out. These provisions only cover those cases in which the genetic engineering facility was "not operated" at all during the aforementioned period, i.e., not even GMOs were stored in the facility. However, there is no provision for the invalidity of a notification. There is no such provision either explicitly or in the form of a reference provision. This, in turn, means that an S1 facility cannot lose its status as an S1 facility, even if the facility only works with biological substances and does not even store GMOs. This provides for permanent protection for S1 facilities by law. The procedure of "notifying", "deregistering", "notifying", "deregistering" ... is thus completely eliminated. The provision of Section 27 Paragraph 4 No. 2 GenTG, which expressly only refers to the "registration of a facility", sounds like a legislative "oversight", since it goes on to state: "the registration of a facility in which genetic engineering work at safety level 1 or 2 is to be carried out shall be invalid...". This is a legislative "oversight" because there is no such thing as a registration of a facility in which genetic engineering work at safety level 1 is carried out. According to Section 8 (2) Sentence 1 of the Genetic Engineering Act (GenTG), the construction and operation of genetic engineering facilities in which genetic engineering work at safety level 1 is to be conducted must be notified prior to the intended start of the work. However, Section 27 (4) No. 2 of the Genetic Engineering Act (GenTG) does not refer to notification in its wording, referring to "notification." An interpretation beyond the wording is not permissible according to legal interpretation methods.

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