Detection of genetically modified organisms in seeds even without testing the reference sample?

In the case underlying the decision of the Higher Administrative Court of Saxony-Anhalt, a farmer had been ordered by the competent authority to destroy the seeds of a rapeseed variety three weeks after sowing. The background to this decision was that, during the seed certification process for the variety, the State Veterinary Office, as the responsible testing laboratory for seed certification, had detected a small proportion of genetically modified rapeseed. The supplying seed company subsequently commissioned two further control tests, both of which yielded negative results. The proceedings hinged on the question of whether only the sample examined by the Veterinary Office was contaminated, or whether the seed sown in the field was also contaminated. The plaintiff had complained during the proceedings that the Veterinary Office had again sampled the previously washed seeds from the first sample in the second sampling. This was not provided for in the 2006 State Labor Court Concept. Rather, it was required that the so-called subsampling method (testing three test samples, each containing 1,000 seeds) be applied to the reserve sample. The Higher Administrative Court (OVG) ultimately considered the evidence to have been provided. The court could not identify any violation of the recommendations of the Federal-State Working Group on the testing of seeds for the presence of genetically modified plants, as of March 2006. The repeated sampling served to confirm the result obtained during the first test. Since contamination of the first sample caused in the laboratory could be ruled out in this specific case, there was no need to apply the LAG concept regardless of the specific circumstances. A witness was heard during the proceedings regarding the question of whether the contamination could also have occurred in the laboratory.

The decision is unlikely to be particularly helpful in practice, as it is now completely unclear when the retention sample must be taken according to the LAG concept – currently in the version from June 2012 – and when it is not. To be on the safe side, the authorities will adhere to the concept, because ultimately, it can only be determined retrospectively whether contamination in the laboratory can actually be ruled out.

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