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Comparative Report

  • Chapter
Economic Loss Caused by Genetically Modified Organisms

Part of the book series: Tort and Insurance Law ((TIL,volume 24))

Abstract

For the purpose of this study, the only harmful events that will be considered are the economic consequences of the involuntary admixture of GM crops with non-GM crops. This may occur in a variety of ways, from the very first stages of seed production to the delivery of the ultimate produce to the consumer. The seeds sold may already be impure, they may have commingled during production, processing, transportation or storage. So-called volunteer seeds may have survived on a field previously used for GM cultivation and sprout in the next season. GM and non-GM crops may have been mixed during planting, harvesting, drying, or on the way to storage or vendors, or while at one of those places along the chain of distribution. Pollen may have dispersed from a GM to a non-GM field, be it by wind, by insects or other animals. Contamination may have occurred at one point only or at several stages of the production.1 Its likelihood “depends on several variables: the specific crop, its location, the presence of outcrossing wild relatives/sexually compatible crops, the competitive nature (advantages and disadvantages) of the introduced trait, and the environmental consequences of neutral traits.”2

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References

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  21. Cf. Ch. von Bar (fn. 18) no. 448 ff.

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  42. DEFRA Consultation Paper (infra 720 ff.) no. 144.

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  43. Ch. von Bar (fn. 18) no. 512.

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  44. Note the differences in terminology: B.A. Koch/ H. Koziol (H. Koziol (eds.), Unification of Tort Law: Strict Liability (2002) 395 fn. 58) no. 109. See also Ch. von Bar (fn. 18) no. 318 ff. Cf. Finland no. 16 and Sweden no. 27 (these defences are probably not applicable in the context of strict liability under the Environmental Code). See further M. Faure/A. Wibisana, Economic Analysis (supra 542) no. 26 ff., on an economic assessment of this defence.

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  55. Cf. I. Glas, Die Haftungs der Landwirtschaft im Kontext des Pachtrechts und Gesellschaftsrechts im Rahmen des Gentechnikrechts, in: Ch. Gallies/ I. Härtel/ B. Veit (eds.), Neue Haftungsrisiken in der Landwirtschaft: Gentechnik, Lebensmittelund Futtermittelrecht, Umweltschadensrecht (2007) 141 ff.

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  57. A court decision in this case before settlement was In re StarLink Corn Prods. Liab. Litig., 212 F. Supp. 2d 828 (N.D. Ill. 2002). The details of the settlement are described at http://www. starlinkcorn.com/Claims/Documents/34800Starlink1232qxd.doc.

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  59. Obviously, if each tortfeasor only has to account for one particular part of the overall loss which can be clearly distinguished from the rest, the issues in the following do not arise. See W.V.H. Rogers (fn. 131) no. 12–14.

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  60. On the terminology, see W.V.H. Rogers (fn. 131) no. 3.

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  88. See the Community Guidelines for State Aid in the Agriculture and Forestry Sector 2007 to 2013, [2006] OJC 319/1, p. 17 ff.

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  90. As the economic analysis shows, a merely temporary fund is preferable as long as the private insurance market does not offer adequate cover: M. Faure/ A. Wibisana, Economic Analysis (supra 571 ff.) no. 110 ff.

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  91. Cf. J. Smits, European Private Law: A Plea for a Spontaneous Legal Order, in: D. Curtin et al. (eds.), European Integration and Law (2006) 55, 62: “Another reason for the ineffectiveness of the acquis is that almost all private law legislation aims at minimum harmonization. This implies that the Member States can establish more stringent provisions to protect consumers, going beyond the directive itself. The effect of this is that companies are still confronted with divergent legislation among the Member States and may still be deterred from doing business elsewhere.”

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  92. But see fn. 255.

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  93. I. Ebert/ Ch. Lahnstein, GMO Liability: Options for Insurers (supra 580) no. 13.

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  94. Cf. the fate of the Product Liability Directive, where the second report on its application more than fifteen years after its adoption had to admit “that only little information about the application exist and statistics, if available, are not complete”. COM(2000) 893 final, p. 8. The third report is much more optimistic, though not quite understandably why: See COM(2006) 496 final, p. 6.

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  95. Cf. J. Smits (fn. 255) 67: “Harmonization means that European and national elements within one legal system form a consistent whole and, if there is no smooth cooperation between the two, it is hard to categorise harmonization as successful.”

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  97. The problems of the Product Liability Directive, for example, are evidenced by the three reports thereupon issued so far (cf. fn. 264) and the ECJ rulings in recent years, e.g. C-52/00, Commission v. France [2002] ECR I-2553, and C-154/00, Commission v. Greece [2002] ECR I-3879.

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  98. See M. Faure/ A. Wibisana, Economic Analysis (supra 535) no. 10, on economic arguments in favour of contractual solutions.

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  99. Cf. M. Brülhart (supra fn. 25) 128; J. Smits (fn. 255) 66 (“[T]he importance of law should not be overestimated either.”). See also M. Faure/A. Wibisana, Economic Analysis (supra 550) no. 50: “[A] much more important role will in practice be played by safety regulation than probably by liability rules, at least as far as prevention is concerned.”

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  100. See also W. van den Daele, Special features of the public debate on the risks of transgenic crops — The dynamics and arenas of a modernization conflict, in: Munich Re (ed.), 5th International Liability Forum Munich (2001) 25 at 56: “Risk regulations — even under the precautionary principle — select among fears; they take only fears into account that can be based upon some ‘reasonable’ assumption of possible damage. Risk is a formula for justified fears. However, fears are emotional facts, and they do not need to be justified in order to be real. To be told that your fears are not justified will not necessarily reduce these fears; in fact, it may instead propel mistrust in the authorities who tell you this.”

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  101. Cf. the citation by J. Smits supra fn. 255.

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  102. But see the outcome of an economic study submitted in preparation for the Environmental Liability Directive, which — in line with the above reasoning — concluded that “[i]t seems unlikely ... that existing liability systems in EU Member States are currently creating any significant distortion of trade”: ERM Economics, Economic Aspects of Liability and Joint Compensation Systems for Remedying Environmental Damage (Summary Report), Annex 2 to the Commission’s White Paper on Environmental Liability (fn. 258) 37, 39.

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  103. See also I. Ebert/ Ch. Lahnstein, GMO Liability: Options for Insurers (supra 581) no. 14.

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  104. I. Ebert/ Ch. Lahnstein, GMO Liability: Options for Insurers (supra 578) no. 4.

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  105. Cf. J. Smits (fn. 255) 62: “[I]t is quite arbitrary why some topics are part of the acquis and others are not. ... If the purpose of the EU is to address issues that may hamper the functioning of the internal market, there is much more to regulate than is currently being done.”

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Koch, B.A. (2008). Comparative Report. In: Koch, B.A. (eds) Economic Loss Caused by Genetically Modified Organisms. Tort and Insurance Law, vol 24. Springer, Vienna. https://doi.org/10.1007/978-3-211-77988-0_35

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