Release only if GMOs are known

In practice, it occasionally happens that farmers sow seeds on land that are contaminated with genetically modified organisms. In this case, the question always arises as to whether this constitutes a release within the meaning of Section 14 (1) of the Genetic Engineering Act (GenTG), which requires approval.
In this specific case, a farmer had sown rapeseed from a producer who had had it tested for GMOs before placing it on the market. Nevertheless, DNA sequences were later detected that indicated genetically engineered resistance to herbicides. The regional council subsequently prohibited the plaintiff from further cultivation and marketing of the rapeseed and ordered the destruction of the seeds already sown, citing unlawful marketing. In the opposing lawsuit, the plaintiff argued that the criteria for release were not met if the introduction of the GMO into the environment had not been deliberate and intentional.
In its decision, the Hessian Higher Administrative Court (VGH) stated that a release requires the deliberate introduction of GMOs into the environment. The plaintiff's sowing of the purchased seeds without knowledge of the existing GMO contamination did not constitute a deliberate introduction of GMOs into the environment. According to the Higher Administrative Court (VGH), a release generally requires that the user is aware that the seeds they are using contain GMO components and that they are therefore intentionally sowing the seeds for the purpose of distributing GMOs. An interpretation of the term "release" that completely disregards the user's will or their knowledge of the presence of GMOs in the seeds is neither compatible with the wording nor with the systematic position of the provision, nor with the provisions of European law. The term "deliberate" contains a final moment in which the agent directs their actions toward a specific result. Unconscious or accidental behavior is not covered by this. Accordingly, a release does not occur if there is a lack of awareness or will to undertake an action that would release GMOs into the environment.
With its decision, the Hessian Higher Administrative Court did not follow the Schleswig Administrative Court, according to which the final element only refers to the sowing, but not to the presence of GMO contamination.
Since there are different case law on a fundamental question, a supreme court decision on the concept of release is to be expected.

This publication can also be found on the website of the law firm Dr. Kauch .