Scope of the authority’s power to issue orders for releases

The wording of Section 26, Paragraph 4 of the GenTG actually appears clear. It states that the authority can prohibit the release if the required permit is not available or if there is a reason for withdrawing or revoking such a permit. However, it was unclear whether the authority could take further measures on this basis to eliminate circumstances caused in violation of the prohibition. This goes beyond the wording of a mere prohibition.
The Federal Administrative Court co-decided this question in its landmark decision on the release ( AGCT-Gentechnik.report 5/2012 of May 31, 2012 ). In the proceedings, the parties disputed, among other things, whether the wording of the authorization only covered the prohibition of the release. In this specific case, the rapeseed had already been sown before the GMO contamination was discovered. The authority had prohibited the placing on the market of the rapeseed and the transfer of residual stocks to third parties, ordered the post-treatment of the field, and imposed a ban on rapeseed cultivation for the following year. In the plaintiffs' view, this went far beyond the wording of the authorization.
In its decision, however, the Federal Administrative Court broadly interpreted the authority's authorization. The aim was to stop an action – the release – that resulted in an illegal situation, because the GMO released into the environment could multiply or cross-pollinate uncontrollably. In such a situation, it is quite common in the legal system that a ban on an action also contains a requirement to remedy the illegally caused situation. The Federal Administrative Court compared this to a road traffic ban, which also contains an order to drive away. In this sense, the Genetic Engineering Act also takes such a permanent situation into account. The release is not limited to a single act, but extends over an entire period of time. The fact that active monitoring measures are therefore necessary is already made clear by the fact that the withdrawal or revocation of the release permit justifies intervention. This points to situations where the release has already begun and little can be gained with a narrowly defined prohibition order alone. A broad interpretation is also justified in view of the EU Deliberate Release Directive. This directive requires member states to ensure "that the necessary measures are taken to stop the release or placing on the market, and to initiate countermeasures if necessary." Ultimately, a broad interpretation is also supported by the fact that there is no apparent convincing reason to treat the upcoming sowing differently than the sowing that has already taken place. Given the legislative objective of subjecting environmental contact of GMOs to strict control, it is not logical to differentiate based on the rather random timing of intervention. If the authority can simply fall into the hands of the sower, there is no apparent reason why it should be prevented from issuing further orders as soon as the sowing is in the ground.
The decision is certainly difficult to understand, but its effect is that in the event of an unauthorized release, the authority may take all measures to limit and completely eliminate contact of the GMO with the environment.

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