The considerability of the infringement

Organic farmers must tolerate the influx of transgenic pollen into their cultivations if it does not affect or only inconsiderably impairs the usage of their land. The influx of transgenic pollen which does not pollinate any plants within the organic cultivation could be inconsiderable since it does not affect the usage of the organically operated piece of land since the sale of the crop as an organic product is not endangered.

Many organic farmers are defending against the influx of genetically modified genetic information into their fields with the argument that simply knowing that a disturbance of the organic cultivation could occur in another way, say, through horizontal gene transfer, e.g. due to a disruption of the soil fertility as a result of a change to the performance of the edaphon (the aggregate of organisms in the soil) suffices for a considerable infringement. According to current insight, such

85 _{LG Stuttgart of 09 May 1997 - 2 O 15/97, NJW 1997, p. 1860; OLG Stuttgart of 24 August 1999 –}

14 U 57/97, NuR 2000, p. 357.

86

OLG Düsseldorf NJW-RR 1995, p. 1231 and OLGZ 1993, p. 45; LG Stuttgart RdL 1965, p. 22.

87 _{OLG Düsseldorf, NJW-RR 1995, p. 1482.} 88 _{BGHZ 117, p. 110, 112.} 89 BGHZ 16, p. 374. 90 _{160, p. 381; LG Munich in: NJW-RR 1988, p. 205, 206.} 91 _{LG Itzehoe in: NZV 1993, p. 73.}

92 _{OLG Zweibrücken AgrarR 1986, p. 81; BGH NJW 1980, p. 770.} 93

an approach has no practical relevance, and accordingly, the present report will focus on the interference by transgenic pollen with compatible organic cultivations.94 According to the current state of scientific insight, the German civil courts would consider the influx of transgenic pollen, i.e. the influx of genetically modified genetic information, as an inconsiderable infringement if the pollen did not result in pollination.

The property of organic farmers consisting of the resulting crops would be disturbed by the incorporation of transgenic genetic information. The incorporation of foreign genetic information is to be seen as a material violation which thwarts usage of the crops according to the intended use95, i.e. sale as goods without genetic modifications. Material modifications which produce a loss in commercial value are considerable. The incorporation of the transgenic genetic information into the fruit interferes with the material of the new organism and simultaneously reduces its market value.

The threshold for mandatory labelling under foodstuffs laws (see section 1.5.4) is not a limit value or guideline for interference within the meaning of § 906 Para. 1 BGB. Its purpose is to provide consumer information based on the threshold of relevancy under consumer protection law. Today, this threshold has no practical significance since foodstuffs commercialisers do everything in their power to ensure that no genetic modifications at all are found in their products. This controls the market price for guaranteed GE-free products. In practical terms today, a violation of the zero-tolerance principle results in a loss of marketability.

It would be possible to consider stipulating under public law a new limit value or guideline for transgenic pollen within the meaning of § 906 Para. 1 Sentence 2. Naturally, this could not be based on a certain quantity of pollen emitted per area or per time interval; instead, it would have to be oriented towards easily

94 _{Cf. LG Stuttgart, ruling of 09 May 1997, at location quoted} 95

measurable parameters. One possibility is stipulation of a system of minimum prescribed distances which, if complied with, would qualify interference by transgenic pollen over a greater distance as inconsiderable under Neighbour Law within the meaning § 906 Para. 1 BGB. Also worthy of consideration is a threshold for influx of transgenic genetic information into neighbouring target cultivations to be deemed inconsiderable, i.e. a result-oriented value. This would result in the compensation and obligation system being shifted in favour of growers of transgenic cultivations to the detriment of neighbouring organic farmers, and at the same time would shift the familiar compensation and avoidance problem from zero to threshold X.

The problem would be eliminated only through a value that was so high that organic farmers would have to tolerate practically any influx as inconsiderable. Such a radical solution to the detriment of the organic farmers would run into issues relating to constitutional law. A limit which subjected organic crops to practical any interference due to the transgenic pollen would be associated with a significant intrusion into their property sphere (and likewise into that of leaseholders) protected by Art. 14 Para. 1 GG96 since dedication of land to food production without genetic modifications would be rendered impossible and since they would be obligated to accept material modifications in the resulting crops due to transgenic pollination. Finally, there would be disproportionate intrusion to the detriment of the organic farmers into their exercise of profession, the right to which is protected under Art. 12 GG.

A legal threshold governing the compensation relationship under Neighbour Law should therefore not be so high as to take away all legal recourse from organic farmers with regard to their desired exclusion of genetic engineering from their crops. What is conceivable is only a value which shifts the limit somewhat in favour of owners of transgenic cultivations. The higher this limit is set, the more the principle of causal responsibility would be suppressed since

96 _{Basic Law of the Federal Republic of Germany of 23 May 1949, Federal Law Journal 1949, p. 1, last}

the damaging consequences of the influx of genetic modifications below the threshold would be shifted to the organic farmers and their customers.