VZCZCXRO9902
RR RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV RUEHSR
DE RUEHRL #0538/01 1281542
ZNR UUUUU ZZH
R 081542Z MAY 09
FM AMEMBASSY BERLIN
TO RUEHRC/DEPT OF AGRICULTURE WASHINGTON DC
RUEHC/SECSTATE WASHDC 4042
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE

UNCLAS SECTION 01 OF 02 BERLIN 000538 
 
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 COURT DECISION ON MON810 CREATES AGRICULUTRAL AND 
POLITICAL PROBLEMS 
 
REFS:  A) Munich 90  B) BERLIN 520 
 
SENSITIVE BUT UNCLASSIFIED.  PLEASE PROTECT ACCORDINGLY. 
 
¶1.  (SBU)  SUMMARY.  On May 5, the administrative court in 
Braunschweig rejected Monsanto's request for an injunction against 
the cultivation ban for MON810.  Monsanto contacts report that it is 
considering an appeal of the decision.  The announcement was widely 
covered by radio, TV, and internet news outlets.  Reports indicate 
that corn seed for up to 20,000 hectares might have an adventitious 
presence of MON810 at a level of less than 0.1 percent.  It is 
unclear if this seed has been planted. The competent authorities 
have not yet decided how to handle this issue.  Despite the MON810 
ban, Federal Agricultural Minister Aigner approved two new biotech 
events for field trial and additional approvals are expected in 
coming days.  END SUMMARY. 
 
COURT SUPPORT BAN ON MON810 
 
¶2. (SBU)  On May 5, the administrative court in Braunschweig 
rejected Monsanto's request for an injunction against the 
cultivation ban for MON810.  The court said in its ruling that the 
level of scientific evidence for environmental damage shown by 
Minister Aigner (Christian Social Union, CSU) in her action was 
sufficient to prohibit the cultivation of MON810. In summarizing the 
positions of various German federal agencies on the issue, the court 
concluded that the public interest for risk prevention has to be 
given priority.  Specifically, the Federal Office for Nature 
Protection (BfN), closely associated with the Environment Ministry, 
supported the ban.  The Federal Office for Consumer Protection and 
Food Safety (BVL), the Federal Research Institute for Agriculture 
(JKI), the Federal Institute for Risk Assessment (BfR), and the 
Robert-Koch-Institute (RKI), all more closely associated with the 
Agriculture Ministry, concluded that there were not sufficient 
scientific concerns for the cultivation ban. 
 
¶3.  (SBU)  In its opinion, the court elaborated at length about the 
purpose of the safeguard clause in the German Genetech Law and about 
examples where the precautionary principle had been applied.  It 
stated that the ban is only temporary until the European Commission 
and the European Council of Ministers have come to a final decision 
about the safety of MON810.  It appears that the court was only 
interested in the new or additional information which indicated a 
potential risk.  The court also said its role was not to evaluate 
the presented scientific reports.  However, the court pointed out 
that the cited study of Schmidt et al. (2008 and 2009) demanded 
further research to explain the observations on the mode of action 
in non-target species. 
 
NEXT LEGAL STEPS 
 
¶4.  (SBU) Monsanto put out a press release expressing its 
disappointment with the court decision and indicating that it was 
considering an appeal.  The appeal must be filed within two weeks, 
which would expire on May 19.  The goal of the appeal would be to 
get an injunction to lift the ban so that farmers still can plant 
MON810 corn this year.  Regardless of the outcome on the injunction, 
the administrative court in Braunschweig will next have to evaluate 
the facts presented in order to decide ultimately if the ban is 
justified.  For this part of the trial, Monsanto has indicated it 
would be very helpful if the new studies were peer reviewed.  In the 
current situation, the judges in Braunschweig are confronted with 
contradicting statements about the value of the new studies   It is 
unknown how long this court proceeding might take. 
 
REACTIONS 
 
¶6.  (SBU)  German electronic and paper media reported widely on the 
Braunschweig court decision.  Most of these reports were factual 
without any further comment.   Agricultural Minister Aigner 
reportedly welcomed the decision along with Greenpeace and other 
NGOs. Greenpeace said in a press release that ''environmental and 
consumer concerns are ranked higher than the interests of large 
industrial companies.  The decision is a success for the majority of 
the consumers who reject the cultivation of gene-plants.'' 
Bavarian Minister President Horst Seehofer (CSU) said that Aigner's 
decision was courageous and right. He said he interpreted the court 
decision as an obvious signal towards the agro-company Monsanto, 
which ''acts without regard for the interest of the public.''  ''The 
stop sign of the court is as obvious as the position of the people 
opposing commercial cultivation of genetically modified plants.'' 
 
NEXT PROBLEM:  ADVENTITIOUS PRESENCE (AP) OF MON810 SEEDS IN 
CONVENTIONAL CORN VARIETIES COULD LEAD TO PLOWING UP OF FIELDS 
 
 
BERLIN 00000538  002 OF 002 
 
 
¶7.  (SBU) Various sources indicate that there are in Germany 
conventional corn seed lots equivalent to 15,000 to 20,000 hectares 
containing traces of MON810 seeds at a level of less than 0.1 
percent.  The AP was detected in routine seed tests performed by 
state authorities during the past two months.   The owners of these 
seed lots, reportedly seed breeders and traders, were informed about 
the findings and at the time told that this was not a problem 
because the ban was not yet announced.  At this time, it is not 
clear how much of the corn seed with AP MON810 was planted. 
 
¶8.  (SBU)  Sources indicate that this problem has been discussed 
between the various State-level authorities in Germany who 
reportedly do not want to take any action until the legal situation 
is absolutely clear.  Sources in Bavaria report that the Bavarian 
Minister for Environment, Markus Soeder (CSU), has approached 
Federal Agricultural Minister Aigner to ask her advice.  Sources say 
that Soeder is demanding that fields planted with the AP seeds be 
plowed up.  Most of the other States have not yet expressed a view 
to have the fields plowed.  However, one state-level biotech expert 
has indicated that the states currently intend to act uniformly in 
all parts of Germany once there is a clear path forward. 
 
¶9.  (SBU)  Unofficially, the Federal Ministry of Agriculture, Food 
and Consumer Protection (BMELV) has indicated that its legal 
interpretation is that the ban does not permit AP of any amount of 
MON810 in conventional seeds.  Aigner has yet to indicate how she 
wants to move forward on this issue.  Agricultural contacts in the 
Chancellery are extremely concerned that a decision to plow up 
fields would move the biotech issue onto a completely new level. 
 
¶10.  (SBU)  Monsanto did not address this topic in its initial court 
filing in Braunschweig but may do so in an appeal. 
 
AIGNER APPROVES OTHER BIOTECH CROPS FOR FIELD TRIALS 
 
¶11.  (SBU)  After her decision to ban MON810, Minister Aigner 
repeatedly stressed that this was not a change in policy and that 
she would continue to decide biotech event approvals on a 
case-by-case basis.  On April 30, Aigner approved field tests for 20 
hectares of starch potato (Amflora) in the state of 
Mecklenburg-Vorpommern.  This was less than the 40 hectares 
requested by BASF.  On May 4, Aigner approved field trial for 9.6 
sqm of fungus resistant biotech barley also in the state of 
Mecklenburg-Vorpommern.  The applicant is the University of Giessen, 
which has a strong program in biotech research.  In previous years, 
several field trials of the barley were destroyed.  These were 
located near the University, north of Frankfurt.  In her upcoming 
trip to Washington (REF B), Aigner will likely point to these 
actions to show her support of the technology.  Sources informally 
indicate that within the next several days, Aigner is expected to 
announce the approval of two more field trials for potatoes, but 
reject another potato field trial application.  This event expresses 
an antibody against cholera.  Medical applications of biotechnology 
are much more widely accepted in Germany, but the field testing of 
this product will likely be too much for Minister Aigner to support 
in the current political environment. 
 
¶12.  This cable was coordinated with Consulate General Munich. 
 
KOENIG