Upgrading of genetic engineering work… what now?

The Federal and State Working Group on Genetic Engineering has already addressed this issue twice. Once in 1996 and again in 2009. The LAG resolutions state: "If genetic engineering work that has already begun is to be classified higher than previously as a result of new findings – editorial note: this is not only the case with the upgrading by the ZKBS – the operator is obliged under Section 6 Paragraph 2 Sentence 1 GenTG to adapt the genetic engineering facility operated by him to the new safety level, provided that such measures are required under the Genetic Engineering Safety Ordinance. If the measures to be taken represent a significant change to the genetic engineering facility or its operation, a permit or registration procedure is required under Section 8 Paragraph 2 or Paragraph 4 GenTG. The competent authority can proceed under Sections 19, 20 or 26 GenTG if necessary adjustments are not made or changes requiring approval are not applied for. In this case, the time of the upgrading, the hazard potential of the work with regard to the existing equipment of the facility and the The operator's conduct constitutes a discretionary factor in the authority's decision as to whether and in which administrative measures the operator should be required to adapt."
How the upgrade affects the legalization effect of the law is not stated in the resolutions. Therefore, two considerations are likely correct: The legal fictions provided for in the GenTG always refer only to the corresponding safety level. If the upgrade results in the work having to be carried out at a different safety level, this safety level is not covered by the fiction. The problem cannot be resolved by simply considering protection of existing rights, since – assuming there is such a thing as protection of existing rights with legal fictions – this always refers only to the previously legalized safety level. In any case, there is no such thing as extended protection of existing rights to a higher safety level. For these reasons, the operator – usually after being informed by the project manager, the BBS, or possibly the occupational safety department – ​​is obliged, if possible, to relocate the work to a facility with the appropriate safety classification, or, in the worst case, to cease the work, or immediately submit the applications required for the higher safety level. In these cases, he can prevent intervention by the competent authority under Sections 19, 20 or 26 GenTG.

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