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Liability for Gmos: Reports 10 Table of Contents European Centre of Tort and Insurance Law Research Unit for European Tort Law Austrian Academy of Sciences Bernhard A. Koch (ed.) Liability and Compensation Schemes for Damage Resulting from the Presence of Genetically Modified Organisms in Non-GM Crops Reports April 2007 / Contract 30-CE-0063869/00-28 This study has been financed by the European Commission. The conclusions, recommendations and positions presented in this report reflect the opinion of the consultant and do not necessarily reflect the opinion of the Commission. Contributors Bjarte Askeland Rok Lampe Ewa Bagińska David Langlet Agris Bitāns Maria Manuel Veloso Gomes Eugene Buttigieg Miquel Martín-Casals Eugenia Dacoronia Attila Menyhárd Bernard Dubuisson Melissa Moncada Castillo Anton Dulak Alberto Monti Ina Ebert Markus Müller-Chen Michael G. Faure Christian Lahnstein Jörg Fedtke Ken Oliphant Raymond Friel Gediminas Pranevicius Federico Fusco Albert Ruda Gregoire Gathem Björn Sandvik Patrick Goergen Mårten Schultz Monika Hinteregger Simon Taylor Jiří Hrádek Willem H. van Boom Elke Joeinig Andri Wibisana Bernhard A. Koch Vanessa Wilcox Villu Kõve Louise Zambartas Irene Kull Table of Contents Objectives of this Study .................................................................... 15 Executive Summary .......................................................................... 21 GENERAL REPORT (Bernhard A. Koch)....................................... 35 A. Introduction.................................................................................. 35 B. Possible ways to allocate the risk ................................................ 36 I. What risks are at stake?............................................................ 36 1. Potentially harmful causes.................................................. 36 2. What losses are imaginable?............................................... 38 II. Who shall bear the loss? .......................................................... 40 1. Starting point ...................................................................... 40 2. The immediate victim as the ultimate loss-bearer .............. 40 3. Minimum standards for any loss allocation scheme........... 41 III. The classic route: Tort Law ..................................................... 42 1. General considerations........................................................ 42 2. Requirements for tort law claims in general....................... 43 3. Damage............................................................................... 44 4. Causation ............................................................................ 47 (a) The need for a factual link between the loss and the defendant........................................................... 47 (b) Conditio sine qua non and exceptions thereto ............... 47 (c) Proof of causation.......................................................... 49 (d) Adequate causation........................................................ 51 5. Bases of liability ................................................................. 52 (a) Fault............................................................................... 52 (b) Strict liability ................................................................. 53 (i) Strict liability in general ........................................... 53 (ii) Strict product liability in particular .......................... 55 (c) Nuisance, trespass and its civil law counterparts........... 57 6. Defences ............................................................................. 59 (a) Human intervention ....................................................... 59 (i) Third-party conduct.................................................. 59 (ii) Contributory causes within the claimant’s sphere.... 60 (b) Force majeure ................................................................ 61 (c) Lawful authority ............................................................ 62 8 Table of Contents (d) Development risk........................................................... 62 (e) Time limitation .............................................................. 64 7. Remedies ............................................................................ 64 (a) Damages ........................................................................ 64 (b) Ad hoc mitigation of damages....................................... 65 (c) Other remedies............................................................... 65 8. Interdependencies between the various liability regimes ... 65 9. Possible other defendants than the GM farmers ................. 66 (a) Overview ....................................................................... 66 (b) The seed producers in particular.................................... 68 10. Problems of aggregation..................................................... 70 (a) Multiple tortfeasors........................................................ 70 (b) Multiple victims............................................................. 71 IV. Insurance options ..................................................................... 72 1. General aspects................................................................... 72 2. Third-party insurance.......................................................... 74 3. First-party insurance ........................................................... 75 V. Compensation funds................................................................. 77 VI. Ad hoc compensation............................................................... 79 VII. Links to other loss scenarios................................................... 80 C. Current solutions.......................................................................... 83 I. Introduction.............................................................................. 83 II. Special liability regimes........................................................... 83 1. Austria ................................................................................ 83 2. Finland................................................................................ 84 3. Germany ............................................................................. 85 4. Hungary .............................................................................. 86 5. Italy..................................................................................... 86 6. Norway ............................................................................... 86 7. Poland ................................................................................. 86 8. Slovakia .............................................................................. 87 9. Switzerland ......................................................................... 87 III. Compensation funds................................................................. 88 1. Compensation funds in legislation or already in force ....... 88 (a) Belgium (Walloon region)............................................. 88 (b) Denmark ........................................................................ 89 (c) France ............................................................................ 90 (d) Portugal.......................................................................... 90 Contract 30-CE-0063869/00-28 Table of Contents 9 2. Planned variations of compensation funds ......................... 90 (a) Finland........................................................................... 90 (b) Germany ........................................................................ 91 (c) United Kingdom (England) ........................................... 91 IV. Other special solutions............................................................. 92 1. Pure state compensation ..................................................... 92 2. Voluntary compensation schemes ...................................... 93 (a) The Netherlands............................................................. 93 (b) Germany ........................................................................ 94 V. Costs of testing......................................................................... 94 VI. Cross-border issues .................................................................. 95 1. Jurisdiction.......................................................................... 95 2. Choice of law...................................................................... 97 (a) Admixture cases under current conflict of laws regimes................................................. 97 (b) Admixture cases under the draft Rome II Regulation ... 98 VII. State aid issues........................................................................ 99 D. Options for the future ................................................................ 101 I. Range of desirable solutions .................................................. 101 II. To harmonize or not to harmonize? ....................................... 103 1. Degree of harmonization .................................................. 104 2. Feasibility of harmonization ............................................. 106 3. Desirability of harmonization ........................................... 109 (a) Is the internal market really affected by such diversity in any negative way? .................................... 109 (b) Should the Community interfere with present-day solutions?..................................................................... 112 E. Conclusions and Recommendations ........................................
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