Identifier
Created
Classification
Origin
09BERLIN697
2009-06-10 16:49:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Berlin
Cable title:  

GERMAN ADMINISTRATIVE COURT RULES AGAINST MONSANTO

Tags:  EAGR ECON ETRD KPAO TBIO GM 
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VZCZCXRO5557
RR RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV RUEHSR
DE RUEHRL #0697 1611649
ZNR UUUUU ZZH
R 101649Z JUN 09
FM AMEMBASSY BERLIN
TO RUEHRC/DEPT OF AGRICULTURE WASHINGTON DC
RUEHC/SECSTATE WASHDC 4323
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE
UNCLAS BERLIN 000697 

SENSITIVE
SIPDIS

STATE FOR EB/TPP/BTT JACK BOBO, JFINN, GCLEMENTS
USDA FOR FAS, EJONES, DYOUNG, SNENON, CRIKER, EPORTER
STATE PASS TO USTR FOR MCLARKSON, JMURPHY

E.O. 12958: N/A
TAGS: EAGR ECON ETRD KPAO TBIO GM

SUBJECT: GERMAN ADMINISTRATIVE COURT RULES AGAINST MONSANTO

REFS: A) Munich 90 B) BERLIN 520 C) BERLIN 658

SENSITIVE BUT UNCLASSIFIED

UNCLAS BERLIN 000697

SENSITIVE
SIPDIS

STATE FOR EB/TPP/BTT JACK BOBO, JFINN, GCLEMENTS
USDA FOR FAS, EJONES, DYOUNG, SNENON, CRIKER, EPORTER
STATE PASS TO USTR FOR MCLARKSON, JMURPHY

E.O. 12958: N/A
TAGS: EAGR ECON ETRD KPAO TBIO GM

SUBJECT: GERMAN ADMINISTRATIVE COURT RULES AGAINST MONSANTO

REFS: A) Munich 90 B) BERLIN 520 C) BERLIN 658

SENSITIVE BUT UNCLASSIFIED


1. (SBU) SUMMARY. On May 28, 2009, a higher Administrative Court
in Lueneburg, Germany rejected Monsanto's appeal to lift the MON 810
biotech corn cultivation and marketing ban imposed by the German
Agricultural Ministry. The decision upheld an earlier lower
Administrative Court's ruling on May 5, 2009. Germany is now the
sixth EU member state banning cultivation of MON 810 corn. END
SUMMARY.

COURT REJECTS MONSANTO'S APPEAL


2. (SBU) Immediately after a lower Administrative Court in
Braunschweig, Germany refused to stop the April 14 ban of MON 810 by
the German Agriculture Ministry, Monsanto appealed to a higher
court. On May 28th, the higher court in Lueneburg, Germany upheld
the lower Administrative Court's ruling and rejected Monsanto's
request for an injunction. The higher court specifically stated
that the safeguard clause laid down in the German Genetech Law,
Section 20.2, only requires a risk of an abstract danger to human
health or the environment. The premise can simply be based on new
information; clearly defined and scientifically supported evidence
is not required.


4. (SBU) Given that other EU member states (i.e. Austria, Hungary,
Luxemburg, etc.) have already set a precedent by banning MON 810
cultivation, the court stated that there is no reason to further
assess the studies used to justify Germany's ban. The existence of
other national bans proves that Germany's decision is not arbitrary.
It also indicated that the economic interests of farmers who want
to plant MON 810 varieties are not as important as the environmental
protection aspects asserted by BMELV.


5. (SBU) The court also maintained that the national courts are not
required to assess the validity of the national bans during summary
proceedings. It stated that national governments have the
discretion to include political aspects in developing government
policies. Thus, the fact that technical experts of BVL did not
support the ban is irrelevant.

MON 810 LEGAL OUTLOOK IN GERMANY


6. (SBU) Next steps: The principle lawsuit which focuses on the
legality of the cultivation ban will be again handled by the lower
Administrative Court in Braunschweig, which has already decided
against Monsanto's urgent appeal to suspend BMELV's ban. The
Braunschweig Court has not yet announced when they intend to deal
with the more substantive part of Monsanto's complaint. BMELV
expects that it could be the fall of 2009 at the earliest.


7. (SBU) COMMENT: The Lueneberg Court's decision focused only on
Monsanto's urgent appeal to suspend the ban until a ruling is made
on the legality of BMELV's order. The court did not find that BMELV
overstepped its authority. However, there are a number of possible
scenarios in which the ban could be lifted: 1) The Administrative
Court in Braunschweig could theoretically take up the case and force
BMELV to lift its ban; 2) The next German Government, which most
likely will be in place by November 2009, could reconsider the
decision to ban MON 810 cultivation. Under this scenario, it would
be up to the next Minister of Agriculture to take action; or 3) The
EU reapproves MON 810 for food/feed use and cultivation. This would
require a European Food Safety Agency (EFSA) assessment that finds
the studies used by EU member states to justify the MON 810 bans do
not meet EU regulations. An EU re-approval would automatically
nullify all existing national bans, including Germany's. Under this
scenario, member states wishing to ban biotech crop cultivation
would again have to justify their safeguard clause applications.
According to industry contacts, the chances of a court ruling on
this matter before November 2009 are rather bleak. END COMMENT.

KOENIG