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 
 
¶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