Agricultural law in Germany: overview

A Q&A guide to agricultural law in Germany.

The Q&A gives a high level overview of agricultural law, including acquiring agricultural companies and co-operatives, competition law, land ownership and usage rights, pricing and tender processes, tax and financing, crop seed business, importing crop seeds, commercial crop production and distribution, plant variety right protection, GM crops, GM foods, importing animals, gene patents, and product liability.

To compare answers across multiple jurisdictions, visit the Agriculture Country Q&A tool.

This Q&A is part of the Agricultural Law Global Guide. For a full list of jurisdictional Q&As visit www.practicallaw.com/agriculture-guide.

Contents

Agricultural policy

1. State whether and when your jurisdiction has joined the following:
  • The World Trade Organization.

  • The Food and Agriculture Organization of the United Nations.

  • The International Plant Protection Convention.

  • The Office International des Epizooties, also known as the World Animal Health Organization.

World Trade Organization (WTO)

Germany is a member of the WTO, and has been a member without reservations since 1 January 1995.

Food and Agriculture Organization of the United Nations (FAO)

Germany became a member of the FAO on 27 November 1950.

International Plant Protection Convention (IPPC)

On 30 April 1952, shortly after joining the FAO, Germany also joined the IPPC without reservations.

Office International des Epizooties (IOE)/World Animal Health Organization

Germany joined the IOE on 16 February 1928.

 
2. Describe the most recent national agricultural policy of your jurisdiction, in particular with respect to biotech crops and new crop growing technologies.

The federal government in Berlin, including the ministers (particularly the Minister of Agriculture), emphasises the importance of transparency in the market, the evaluation and improvement of standards in the global market, and on food and feed safety. The government, and the governments of the 16 federal states (Bundesländer), apply the EU Common Agricultural Policy (CAP) (laid down in EU Regulations No 1303, 1305, 1306, 1307 and 1308/2013) to the agricultural reality of German farming.

Current policy is to encourage both household and industrial farming. However, politicians are aware that efforts to encourage industrial farming are often unpopular, and that few alternatives are presented. For this reason, politicians have tried to maintain good relations with household farmers, who represent a large number of voters in the parliamentary elections for the local State Parliaments (Landtage) and the German Federal Parliament in Berlin (Bundestag). Therefore, the federal legislation and administration's policy is to promote foreign investments in agriculture.

Regarding genetically engineered crops and new crop growing technologies, the federal government endorses the Opt Out Decision of the Council of the European Union which was finally adopted on 23 July 2014. Within this legal framework, Germany will use the option to restrict or prohibit the cultivation of genetically modified organisms (GMOs). However, this German policy to apply the precautionary principle (which allows policy makers to justify certain decisions even when scientific evidence is not available), operates alongside the need to combat global hunger, which Germany also has as one of its international developmental aims.

 

Acquisition of agricultural companies

3. Is the acquisition of domestic agricultural companies by foreign investors subject to special prior government approval(s)? Set out the approval procedures and the authorities involved.

There are no special governmental or legislative procedures for the approval of foreign investors who plan to invest in agricultural companies in Germany. Neither are there any legally required controls on investments that could be considered "foreign".

In all economic fields, constitutional limits apply only to the legislature. The German Constitution guarantees human liberties without distinguishing between nationals and foreigners. These fundamental freedoms can only be limited if strict constitutional requirements are respected. In Germany, human rights and fundamental freedoms apply to natural persons and corporate persons alike. This is settled case law of the Constitutional Court (Bundesverfassungsgericht). For this reason, German public authorities lack any competence to control investments in the agricultural sector, and therefore cannot influence the fact or manner of investment by non-German citizens or businesses.

 
4. Describe if specific legal forms (such as co-operatives) are regulated or used in the agricultural sector and whether they are open to foreign investment.

All forms of agricultural or forest companies are open to foreign investments and investors.

The legal forms of association are based on private law, especially the law of associations (Gesellschaftsrecht). Agreements can be contracted in the form of one of several stock companies (Kapitalgesellschaften) as well as in the form of a closed company or partnership (Personengesellschaften). The decision to choose one of the special forms of stock companies or partnerships depends in most cases on tax considerations and the liquidity of the investor (see Question 12).

Some ancient legal forms continue to exist after the coming into force of the Civil Code in 1900: legal forms of occupation such as Wald- and Markgenossenschaften and Realgemeinden. These, however, are likely to die out, as they are not open to new members. Beyond this, there are no specific legal forms specifically for the agricultural sector.

All existing types of co-operation and other business forms in EU and German law can freely be used in agriculture.

Farmers can join forces in civil law companies (Gesellschaften bürgerlichen Rechts) (GbRs). They can use GbRs to pool their entrepreneurial efforts and means of production and other resources in full or in part.

Further legal forms that are used, and which are more demanding in bigger units of production, include:

  • The limited partnership (Kommanditgesellschaft)(KG).

  • The limited liability company (Gesellschaft mit beschränkter Haftung)(GmbH) (comparable to a limited company).

  • The registered co-operative (eingetragene Genossenschaft) (e.G.).

The choice of legal form depends on a number of factors, such as the need to increase quality standards, know-how, experience and other commercial reasons. The rapid structural changes that take place in agriculture both at EU level and in Germany tend to give rise to concentrations, and rationalisation can also be easier to achieve in larger units.

 
5. To what extent does competition (anti-trust) law apply to agriculture?

German agricultural law does not contain any specific provisions on competition law.

As a result, general competition law has to be used in an agricultural context. The anti-trust law laid down in several European and German laws includes:

  • Treaty on the Functioning of the European Union.

  • Regulation (EC) 1/2003 on the implementation of the rules on competition laid down in Articles 101 and 102 of the TFEU (formerly Articles 81 and 82 of the EC Treaty) (Modernisation Regulation),OJ L 1, 4 January 2003, p. 1–25.

  • Act against restrictions on competition (Gesetz gegen Wettbewerbsbeschränkungen in der Fassung vom 07.07.2005, Bundesgesetzblatt vom 12.07.2005 Teil I Nr. 42).

  • Regulation (EC) 2790/99 on the application of Article 101(3) of the TFEU (formerly Article 81(3) of the EC Treaty) to categories of vertical agreements and concerted practices, OJ L 336, 29 December 1999, p. 21–25.

  • Regulation (EC) 2658/2000 on the application of Article 81(3) of the Treaty to categories of specialisation agreements, OJ L 304, 5 December 2000, p. 3–6.

  • Regulation (EC) 2659/2000 on the application of Article 81(3) of the Treaty to categories of research and development agreements, OJ L 304, 5 December 2000, p. 7–12.

  • Regulation (EC) 772/2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements, OJ L 123, 27 April 2004, p. 11–17.

  • Notice providing guidelines on vertical restraints (OJ 2000 C291/01).

  • Notice providing guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements (OJ C 11/01).

  • Notice providing guidelines on the application of Article 81(3) of the Treaty (OJ 2004 C101/97).

According to this legislation all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between member states, which have as their object or effect the prevention, restriction or distortion of competition within the common market, are prohibited. However, this is as long as these practices have a noticeable effect.

In most situations restrictions on competition in the agricultural sector are not noticeable, as the turnover or business size will not meet the applicable limits (that is EUR43 million annually and more than 250 employees). This may be different, however, for seed production companies because the units of production and trade are bigger.

The prohibition on cartels is strictly enforced by the European Commission and the German Cartel Office (Bundeskartellamt).

 

Acquisition of agricultural land

Sale and transfer of usage rights and ownership

6. Set out the domestic laws that apply to the acquisition of:
  • Usage rights to agricultural land.

  • Ownership of agricultural land.

The German Civil Code (Bürgerliches Gesetzbuch) (BGB) enables a farmer to choose between three general forms of acquiring and using agricultural land:

  • Plough-change (Pflugtausch), which gives the possibility of ploughing the land of another farmer. No other right such as the European or national subsidy is transferred with it, unlike with a lease.

  • A normal contract of leasing the land.

  • The ownership is transferred with all rights by a sales contract.

 
7. Are there any legal restrictions on the acquisition of agricultural land (or usage rights) by a foreign (or foreign invested) party?

There are no restrictions for foreigners.

 
8. Are there any compulsory tendering or prior approval procedures required for a sale and purchase of agricultural land? Briefly describe these procedures and the approval authorities (if any).

There is no compulsory tendering or prior approval procedure for a sale and purchase of agricultural land.

 
9. Does the law and/or regulations prescribe minimum land purchase prices if the (local) government sells agricultural land?

There is no minimum legislative price for the sale of agricultural land.

 
10. Is there a maximum term applicable to the lease (or use) of agricultural land?

At the moment, there is no maximum term applicable to the lease (or use) of agricultural land.

 
11. In which circumstances can the government authorities expropriate agricultural land?

Government authorities can expropriate the land when sustainable development is needed, but when there is also a need to generate money from the land. This means the government must stay in tune with market conditions to keep the land operating commercially and to also ensure its proper sustainable use. The factors the government must take into account when considering the commerciality and sustainability of land include:

  • Rural ground development.

  • Environmental protection.

  • The financial and economic development of farmers.

  • The maintenance and protection of natural, cultural and historical monuments.

 

Tax and financing

12. Which taxes apply with respect to the sale and transfer of land ownership (or usage rights)?

The ground transferring tax (Grunderwerbssteuer) collects between 3.5% and 6.5% of the market value of the land.

The tax is a tax of the federal state in which the land is situated. The assessment of the market value is complex. Investors who have questions regarding tax collection and the financing of any kind of agricultural land should consult a tax consultant and a lawyer.

 
13. Does your jurisdiction have special regulated agri/green-parks and is (foreign) investment in such parks incentivised? If so, what incentives apply in general?

There are no special regulated agri/green-parks in Germany.

 
14. Briefly describe the procedures to mortgage/pledge agricultural land rights in order to acquire domestic financing.

Usually, in order to gain agricultural credits for financing, mortgage rights are applied. These mortgage rights include:

  • Hypothek (Article 1113, Civil Code) (Bürgerliches Gesetzbuch) (BGB) (mortgage).

  • Grundschuld (Article 1191, BGB) (land charge).

  • Rentenschuld (Article 1199, BGB) (annuity land charge).

The objective is to provide certainty to the party providing the credit that their investment will be recovered. The presence of such rights can be known by all interested parties as they are registered in the land register (Grundbuch). If necessary, the creditor can recover the investment by forcing an auction sale (Zwangsversteigerung) of the land to which the security right applies (Article 1147, BGB).

The owner of those mortgage rights takes priority over other creditors' rights. Many regulations of the mortgage are applicable to the land charge (Article 1192, BGB).

The application for registration must be certified by a notary who must then list it in the land register.

 

Crop seed business

15. Which domestic laws and regulations regulate the crop seed industry and which domestic authorities/agencies supervise this sector?

In the EU, particularly in Germany, there are no export controls in this sector.

Import restrictions do not exist based on public law. But they do naturally exist in private law based on rights and claims from the UPOV Convention 1961.

Nevertheless, the key laws and regulations on the crop seed industry are:

  • Directive 2008/62/EC providing for certain derogations for acceptance of agricultural land races and varieties which are naturally adapted to the local and regional conditions and threatened by genetic erosion and for marketing of seed and seed potatoes of those land races and varieties (OJ L 162/13).

  • Regulation (EC) 2100/94 on Community plant variety rights (OJ L 227/94).

  • Seed Act (Saatgutverkehrsgesetz (SaatG) in der Fassung der Bekanntmachung vom 16. Juli 2004 (BGBl. I S. 1673) zul. geändert durch Art. 4 Abs. 84 des Gesetzes vom 7. Aug. 2013 (BGBl. I S. 3154)).

  • German Plant Variety Protection Act (Sortenschutzgesetz (SortG) in der Fassung der Bekanntmachung vom 19. Dez. 1997 (BGBl. I S. 3164), zul. geändert durch Art. 4 Abs. 85 des Ges. vom 7. Aug. 2013 (BGBl. I S. 3154)).

  • Seed Regulation (Saatgutverordnung (SaatV) in der Fassung der Bekanntmachung vom 8. Feb. 2006 (BGBl. I S. 344), zul. geändert durch Art. 2 der Verordnung vom 6. Jan. 2014 (BGBl. I S. 26)).

  • Regulation on procedures at the federal seed variety office (Verordnung über Verfahren vor dem Bundessortenamt (BSAVfV) in der Neufassung der Bekanntmachung vom 28. Sept. 2004 (BGBl. I 2552), zul. geändert durch Art. 4 Abs. 86 des Gesetzes vom 7. Aug. 2013 (BGBl. I 3154)).

The regulations of the seed industry are controlled and managed by the authorities of the federal states. The federal office of sorts (Bundessortenamt) deals with questions about plant varieties.

 
16. State the approvals/licences that are required to engage in the following activities:
  • Import of new plant species or varieties and import of crop growing technologies.

  • Set up of R&D centres and use of test plots of new crops.

  • Crop seed production.

  • Commercial crop production.

  • Distribution of seeds or crops (wholesale/retail/e-commerce).

Import of new plant species or varieties and crop growing technologies

New varieties need to be approved (recognised) before they can be imported to Germany. The Federal Office for Agriculture and Food (Bundesanstalt für Landwirtschaft und Ernährung (BLE)) deals with the controls and recognitions.

Set up of R&D centres and use of test plots of new crops

There are no R&D centres run by the state. The industry has its own R&D centres. The federal state controls these units for safety and hygiene.

Crop seed production

In Germany, around 5,800 seed multipliers are involved in producing seed and crops of cereals, broad beans, peas, lupines and potato plants. The multiplier needs a reproduction contract to get a licence for producing seeds and crops.

Commercial crop production

Commercial crop production has a very long tradition in Germany, with legislation that enables everybody to produce crops on his or her own land (Article 14, Grundgesetz, Article 903, Sentence 1 BGB).

In 2007, there were 374,500 agricultural enterprises. Some 2.25 million people found full-time or part-time employment in this area.

In all, around 16.9 million hectares of land was used for agricultural purposes (this amounts to 47.4% of the entire land surface of Germany). Of this, around 11.8 million hectares were used for crop production and around 5 million hectares was used for pasture. In 2009, the main crops in Germany were:

  • Grain (6.5 million hectares).

  • Maize (2.1 million hectares).

  • Rapeseed (1.5 million hectares).

  • Sugar beet (0.4 million hectares).

By comparison, vegetables, tree nurseries and Christmas tree plantations were of minor significance.

Agriculture increasingly plays a role in energy production, mainly through the cultivation of crops for the production of biogas and by making land available for wind turbines. According to figures from the German farmers' union, between 2009 and 2012, agricultural businesses invested approximately EUR18.2 billion in renewable energy.

Distribution of seeds or crops

Two separate areas of law deal with the commercialisation and use of seed materials:

  • Plant variety protection is dealt with under private law. Under this regime, the seed user pays a licence fee to the plant breeder rights owner.

  • Seed circulation is regulated by public law. According to this, it is prohibited to sell seeds on the consumer market. The law regulates both quality assurance and variety protection. The burden of this regime is on the agricultural sector. As a result, the law stops unregulated trade in seed materials. Trade in unapproved seed materials is considered to be a serious offence, where seed control authorities in the states can prosecute and place sanctions on this type of trade.

An agent or representative must notify the competent authorities in one of the 16 federal states about these distribution activities. The agent or representative must have its seat in the EU.

Under harmonised EU law, the import of seed must be notified to the Federal Office for Agriculture and Food (Bundesanstalt für Landwirtschaft und Ernährung) (www.ble.de/EN/00_Home/homepage_node.html).

The Federal Office for Agriculture and Food gives out licences, if necessary.

 
17. Set out the domestic labelling requirements in the crop business sector.

Labelling requirements are defined in the Seed Act (Saatgutverkehrsgesetz) (http://bundesrecht.juris.de/saatverkg_1985/index.html) and in the Seed Regulation (Saatgutverordnung) (www.gesetze-im-internet.de/bundesrecht/saatv/gesamt.pdf).

As a matter of principle, only certified seed and planting materials, that is to say "recognised" seed materials can be placed on the market. The competent authority, Seed Traffic Control (die Saatgutverkehrskontrolle) (SVK), supervises trade in seed materials. It checks quality, packaging, labelling, seals and related documentation to ensure compliance with the legal requirements.

The label must show, among other things:

  • The variety.

  • The category.

  • Whether samples have been taken.

  • Weight.

  • Country of origin.

  • An approval number on the label of the seed and planting materials, which can be traced back to the multiplier.

 
18. Are there any restrictions on foreign direct investment (FDI) in this sector?

In Germany, there are no restrictions on foreign direct investment in this sector.

 
19. Summarise landmark or recent cases that have defined the law and practice in this sector.

Not applicable.

 

Plant variety rights (PVR)

20. Has your jurisdiction ratified the International Convention for the Protection of New Varieties of Plants 1961 (UPOV Convention) and its revisions in 1972, 1978 and 1991?

Germany ratified the UPOV Convention 1961 and its revisions in 1972, 1978 and 1991 on 25 July 1998.

 
21. Briefly describe the registration process for PVR in your jurisdiction.

The registration process is undertaken by the Federal Plant Variety Office (Bundessortenamt). Applicants have to submit an application accompanied by a seed sample. The guidelines can be found at www.bundessortenamt.de/internet30/fileadmin/Files/PDF/Richtlinie_LW2000.pdf.

 
22. Briefly describe the laws and procedures of your jurisdiction covering the protection of PVR in terms of:
  • Requirements for protection.

  • Extent of the protection.

  • Restrictions on the rights of the PVR holder.

  • Farmer's privilege.

Requirements for protection

The relevant plant variety has to fulfil the requirements of the UPOV principles, which are:

  • Distinctness.

  • Uniformity.

  • Stability.

  • Novelty.

Extent of the protection

Section 28 of the German Plant Varieties Protection Act (Sortenschutzgesetz (SortG)) does not allow the protection of the plant variety to extend beyond 25 years, and beyond 30 years for hops, potatoes, vines and certain tree species.

Restrictions on the rights of the holder

Not applicable.

Farmer's privilege

A farmers' exemption applies, known as the farmer's privilege. Farmers are allowed to save seed of a protected variety, from their own production, to be used for re-planting in the next season (Article 15 paragraph 2, UPOV Convention). Farmers must inform breeders of the extent to which they have used saved seed.

In addition to the farmer's exemption, under the UPOV Convention, breeders obtain an exemption from plant variety protection to carry out research and cross-breeding to create new varieties (Article 15 paragraph 1 subparagraph iii, UPOV Convention), known as the breeders' exemption. Plant variety protection does not extend to non-commercial activities of a private nature.

 
23. Which legal actions are available to owners of PVR in the event of PVR infringements?

There are legal actions available under PVR law and civil law.

In the case of an infringement of the plant variety rights, the owner can request an injunction (Article 37(1), German Plant Varieties Protection Act (Sortenschutzgesetz) (SortG)).

If the infringement has been committed on purpose, the owner can claim damages from the perpetrator (Article 37(2), SortG). Furthermore the owner has an action for destruction and recall (Article 37a, SortG), for disclosure of information (Article 37b, SortG) and some further actions.

Apart from these civil law actions, the perpetrator faces criminal sanctions (Article 39, SortG) and fines (Article 40, SortG).

In Germany plant varieties and animal breeds are not patentable. But new molecular biological processes, genes alone and genetic traits are patentable.

 
24. Summarise landmark or recent cases that have defined the law and practice in this sector.

Not applicable.

 

Genetically modified (GM) crops

25. Has your jurisdiction ratified the Cartagena Protocol on Biosafety 2002? What is the domestic policy with respect to GM crops?

The Cartagena Protocol on Biosafety to the Convention on Biological Diversity is an international agreement which aims to ensure the safe transfer, handling and use of living modified organisms that otherwise may have adverse effects on conservation and sustainable biological diversity, as well as risks to human health.

It was adopted on 29 January 2000 in Montreal, Canada and entered into force on 11 September 2003. Germany ratified the protocol on 20 November 2003. The objective of the legislation is, in accordance with the precautionary principle, to protect human health and the environment when:

  • Carrying out the deliberate release into the environment of genetically modified organisms (GMO) for any other purposes than placing them on the market.

  • Placing GMOs, on their own or in products, on the market.

 
26. Describe the domestic laws regulating genetic engineering. Which authority(ies) is(are) responsible for approving GM crops. Set out the permit requirements and prohibitions as well as sanctions in the event of infringement.

On a national level, there is the German Genetic Engineering Act (Gentechnikgesetz), together with different ordinances implementing the existing European legislation in relation to genetically modified organisms (GMOs). The ordinances include:

  • The ordinance for genetic engineering safety (Gentechnik Sicherheitsverordnung).

  • The ordinance for registration in the field of genetic engineering (Gentechnik Aufzeichnungsverordnung).

  • The ordinance concerning the labelling of products "without genetics" (Ohne Gentechnik-Verordnung).

Based on this legislation, the Federal Office of Consumer Protection and Food Safety (Bundesamt für Verbraucherschutz und Lebensmittelsicherheit) (BVL) approves scientific trials. This authority is responsible for all GMO-related activities, such as the import and export of GMO seeds/crops. It must use arguments with science-based reasons, which a court must also understand.

For the EU Community approval procedure for commercial cultivation, the BVL will provide a statement on the approval process to the EU. Furthermore, the BVL manages the international information exchange on GMO for the biosafety clearing house for Germany, and hosts the secretary of the Central Committee on Biological Safety (Zentrale Kommission für die Biologische Sicherheit - ZKBS).

 
27. Which safety evaluations are legally required before GM crop commercial market entry? How are GM crops regulated?

The safety requirements are determined at a European level and implemented into national legislation (see Questions 25 and 26). The requirements include that every single application for an experimental field test undergoes a detailed risk assessment, on the basis of actual scientific standards. Specific measurements based on the outcome of the risk assessment (such as isolation distances, containment measures, monitoring) are required for field trials, to limit the impact on human health and the environment.

 
28. Describe the GM crop test plot regulations and requirements.

See Questions 27 and 29.

 
29. Describe pre-market approval requirements (and approval timelines) to grow, produce and sell GM food or feed. Provide details on the competent approval authorities.

Local supervision and control is carried out by the State Departments of Agriculture (Landesämter für Landwirtschaft) of each of the 16 federal states for pre-market approvals requirements (and approval timelines) for the growth, production and sale of GM food or feed. The local authorities are also responsible for any import and export of GMO, together with the Federal Office of Consumer Protection and Food Safety (Bundesamt für Verbraucherschutz und Lebensmittelsicherheit) (BVL).

A GMO can only be placed on the market after different steps in the approval procedure have been undertaken. This "step by step" procedure in the development of a GMO includes tests in the laboratory and the greenhouse. After these experiments and evaluations in a contained environment, the GMO can be grown in limited experimental field releases.

If these different steps in the approval procedure do not show negative impacts on human health and the environment, an applicant can apply for a placing on the market of a GMO.

The risk assessment of such an application is performed by the European Food Safety Authority (EFSA). In the assessment procedure member states are asked to comment on the application. Based on the final risk assessment of the EFSA, the European Commission proposes the approval of a GMO. The final decision is taken by the member states.

 
30. Set out the domestic product genetically modified organism (GMO) content labelling obligations (or the absence of them) and sanctions in the event of non-compliance or inaccurate content labelling.

According to European legislation, products containing, or produced from, GMOs have to be labelled.

The labelling of food and feed is not required for approved products with potential GMO content below a threshold of 0.9%, in case of an accidental or technically unavoidable presence. In addition, on a national level it is possible to label food products "without modified genes" (The ordinance concerning products without genetics (Ohne Gentechnik)) in case specific requirements are fulfilled.

The requirements for the label to adhere to the European legislation include that it must state that food or food ingredients are not GMOs and are not produced from GMOs. In addition, food additives such as vitamins or enzymes that were produced from GMOs are not allowed and must be taken off the market.

 
31. Summarise landmark or recent cases that have defined the law and practice in this sector.

Not applicable.

 

Importing animals and gene patents

32. Summarise the import/export control measures for animals and genetic resources.

A national regulation deals with the import of animals and genetic resources. This is the regulation for the conditions of import of livestock breeding, of breeding animals, semen, ova and embryos coming from third countries (Verordnung über tierzüchterische Bedingungen für die Einfuhr von Zuchttieren, Samen, Eizellen und Embryonen aus Drittländern – TierZEV (Tierzucht-Einfuhrverordnung)). This regulation follows the European Decisions No 96/510/EC, 93/623/EEC for breeding animals, No 86/130/EEC, 94/515/EG, 89/507/EEC, 90/256/EEC for sperm, and No 96/510/EC for ova and embryos.

The State Departments of Agriculture (Landesämter für Landwirtschaft) of the federal states are responsible for import control measures.

Animals must be declared at customs and quarantined. There are lists of prohibited or restricted species, as well as ova and embryos.

 
33. Does the law of your jurisdiction allow for patentability of livestock genes on the grounds of isolating and purifying them?

Article 1a of the German Patent Law (Patentgesetz (PatG)) says that human genes cannot be a patentable invention. In principle animal genes should not be patentable either, as they would be a discovery and not an invention.

Genetic resources are not patentable in Germany. Patents are also not granted for (Article 2a, PatG):

  • Plant varieties.

  • Animal varieties.

  • Essentially biological procedures for breeding plants and animals.

 
34. Which legal instruments are available to protect animal breeding know-how and a resulting animal nucleus?

There are no legal instruments in Germany available to protect animal breeding know-how, unlike for the protection of plant varieties (see Questions 20 to 24).

 
35. Are there legal or practical restrictions on the introduction of new breeds/species, the breeding of certain animal species or certain breeding practices?

There are no legal restrictions in Germany on the introduction of new breeds, the breeding of certain animal species or for certain breeding practices.

 
36. Summarise landmark or recent cases that have defined the law and practice in this sector.

In April 2009 more than 50 organisations, 5,000 people and the government of the federal state of Hesse objected to the European Patent Office regarding a patent applied for by Monsanto, a US agricultural company, for breeding pigs which could produce more meat than normal pigs (Schweine-Patent). This objection united environmentalists, farmers and a number of other people. Monsanto applied for the patent in 2004. After a number of protests, Monsanto sold the patent to the US pig breeding syndicate Newsham Choice Genetics, in 2007. In 2008, the patent was registered in Europe and in April 2009 the alliance appealed against it. The patent EP 1651777 referred to a gene test which could make it possible to breed pigs with more fat and meat than other pigs. The patent was for both the gene test and for the pigs it would have bred.

On 23 April 2010, this disputed patent was revoked by the European Patent Office after further objections from Greenpeace and other environmental organisations. As a result, Newsham Choice Genetics lost its entitlement to breed the specific types of pigs which would produce extra meat.

 

Agricultural safety and product liability

Standards

37. Summarise the system of food safety standard setting, the main regulator(s) and regulations. If industry input on the standards is possible, indicate how this is conducted.

All national food safety law is based on EU law. All national legal proposals and the EU proposals are notified to the WTO and are normally in line with Codex Alimentarius standards. The European Commission (DG SANCO) has the mandate to negotiate for all EU member states in Codex Alimentarius meetings.

The following laws regulate food safety in Germany, which has a "total quality management system" (TQM system):

  • Regulation (EC) 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, last amended by Regulation (EU) 652/2014 laying down provisions for the management of expenditure relating to the food chain, animal health and animal welfare, and relating to plant health and plant reproductive material.

  • The national German Food and Feed Law (Lebensmittel und Futtermittelgesetzbuch) (LFGB) of 3 June 2013, BGBl. I p 1426.

The duties of the quality management system remain the responsibility of the food manufacturers and traders. This TQM system includes:

  • Administrative systems and structures.

  • Technical standards of hygiene.

  • Accountability.

  • Research standards.

  • Standards in decisive product labelling.

  • Structures for responsibility in a factory or trade firm. The directors' and officers' liability is based on the precisely managed delegation of responsibility.

  • International Featured Standards (IFS) or the German DIN ISO 9001 and 9004 which deal with international contents of food quality requirements.

A risk management system called Hazard Analysis Critical Control Points (HACCP) was introduced worldwide by the Food and Agriculture Organisation of the United Nations (FAO) for the production, distribution and consumption of food. This risk management system is a minimum standard for all German firms who handle food in any manner (Regulation (EC) 852/2004 on the hygiene of foodstuffs (OJ L 139, 30.4.2004, p. 1), last amended by Regulation (EC) 219/2009 (OJ L 87 109 31.3.2009)).

 

Liability

38. Set out the legal requirements to establish the liability of producers and suppliers for defective or contaminated food ingredients that cause damage, in relation to:
  • Tort.

  • Product liability.

The liability of producers and suppliers for defective or contaminated food ingredients causing damage resulting from a tort or from product liability follows law and contract law.

The situation depends on whether the producer had a special duty of care not to allow a defect to occur. German civil law and public law provides a simple system to bring a claim and to defend a claim. In cases of damages in connection with GMOs there is strict liability.

The following refer to producers as well as to suppliers:

  • Contract law. Under contract law, liability follows a warranty and the right to performance as agreed between the parties. If the product is not up to the agreed standard, the purchaser can ask for a different product or for the defect to be remedied, a reduction of the price, or damages or compensation (Articles 437 and 474, German Civil Code (BGB)).

    Liability requires fault, except in the case of an express or implied warranty, where fault is not required. When there is contractual liability, the "benefits received" principle is important (that is, the principle of equivalence for the performance of the contract).

  • Tort law. Tort liability comes under Article 823 of the BGB. The focus is on integrity. The producer has to confirm that the product will not cause damage to persons and to property.

    Tortious liability for products requires fault. However, in case law a reversal of the burden of proof has emerged against the producer bordering on strict liability.

    In tort liability, after taking into account the responsibility of the business who has placed the product on the market, the responsibility of the consumer for his or her own safety must also be considered if the consumer behaved recklessly (Article 254, BGB). In case law some basic categories have been developed of the responsibilities that producers and businesses have in placing the product on the market. Regarding development risks, science and technology standards provide an upper limit to the safety requirements. This applies particularly to defects in the construction, design and production of goods, but also to supervision responsibilities including information and recall.

  • Product liability according to the Act of Product Responsibility (Produkthaftungsgesetz) (ProdHG). The Act of Product Responsibility is the German implementation of the European Product Liability Directive (Directive 85/374/EEC). Product liability is subject to strict liability, which means fault is not required. The producer bears the risk, but a discharge of liability is possible. Product liability claims can only be brought by consumers.

    The liability is limited to a maximum of EUR85 million. The type of harm covered under product liability law includes death, bodily harm, injury to health and/or damage to consumer goods

 
39. Which defences are available to the producer and/or supplier to avoid liability? For instance, is market-entry prior government approval a legal defence against product liability and under which conditions?

The available defences depend on whether the claim is brought under tort, contract or the Act of Product Responsibility and the facts of the case (see Question 38).

 
40. Which types of damage are generally compensated by civil courts in food safety liability cases? For instance loss of value, reparation costs, loss of revenue, and personal injury. Are punitive damages available?

This depends on the case; under the Act of Product Responsibility, for example, liability is limited to EUR85 million (see Question 38).

 
41. Summarise landmark or recent cases that have defined the law and practice in this sector.

Case law in tort has developed categories of responsibilities for producers and businesses in placing products on the market (see Question 38).

 

Online resources

Federal Ministry of Justice and for Consumer Protection (Bundesministerium der Justiz und Verbraucherschutz)

W www.gesetze-im-internet.de/index.html

Description. The website is maintained by the Kompetenzzentrum Rechtsinformationssystem (CC-RIS) located at the Federal Agency of Justice (Bundesamt für Justiz) and a joined project of the ministry and the juris GmbH. The website is held up-to-date and nearly all legislations and other texts are translated into English (www.gesetze-im-internet.de/Teilliste_translations.html).


Summary: agricultural law in Germany

Agricultural policy

Household farming

Industrial farming

Foreign investment

Encouraged/neutral/restricted?

Encouraged

Encouraged

Neutral

Acquisition of a domestic agricultural company

Transaction review

National security review

Competition review

Government approvals?

No

No

Yes

Foreign acquisition of agricultural land

Allowed/not allowed

Transferable

Auction/tender required

Agricultural land ownership?

Allowed

Transferable

No

Agricultural land usage rights (maximum term)?

Allowed (without maximum term limit)

Transferable

Preferred

Mortgage/pledge of agricultural land?

Allowed

Transferable

No

Agri/green parks

Agri investment

Tax

Land fees

Foreign investment incentives?

N/A

N/A

N/A

Foreign investment in crop business

Generally permitted

Restricted

Prohibited

Import of foreign plant varieties?

Recognition required

R&D/test plots?

Generally permitted

GMO

Production of crop seed?

Generally permitted

Commercial crop production?

Generally permitted

Distribution of crop seeds?

Generally permitted

GMO

IP protection

Available

Certain varieties/species

Not protected

Plant variety right?

Limited varieties

Patent on plant genetic sequence?

Only special varieties

Patent on livestock genes?

Not available

Exemption from breeder rights to a protected plant variety

R&D for scientific purpose

Prior consent of breeder

Royalty payment obligation

Third parties breeding rights?

Allowed

Not required

Not required

Farmer's privilege

Re-use

Share/exchange

Sell

Farmer rights to harvest protected plant varieties?

Allowed

Not allowed

Not allowed

Genetics

Generally permitted

Restricted

Prohibited

Import of GM seeds?

Federal Office of Consumer Protection and Food Safety (BVL) approval

Import of GM crops?

BVL approval

Testing of GM crops?

Federal state approval

Local production of GM seeds?

Federal state approval

Local production of GM crops?

Federal state approval

Import of animal genetic material?

BVL approval

Import of new animal breeds?

BVL approval

Food product liability

Strict liability

Negligence

Market-entry approval is a legal defence?

Producer?

Strict liability

Negligence

No

Importer?

Strict liability (if producer/ upstream distributor is not identified)

Negligence

No

Distributor?

Strict liability (if producer/ upstream distributor is not identified)

Negligence

No

 

Contributor profiles

Dr Philipp M Gregor

Dr Gregor Rechtsanwalt

T +49 251 48254 0
F +49 251 48254 10
E gregor@dr-gregor.eu
W www.dr-gregor.eu

Professional qualifications. Attorney-at-law and specialised lawyer (agricultural law and food law), Germany; certified mediator (CfM)

Areas of practice. Agricultural law; food and feed law; medical law

Non-professional qualifications. Dipl. Theology and Philosophy, Westfalian Wilhelm University, Münster; Kammerdirektor a.D.

Languages. English, Italian.

Professional associations/memberships

  • Bund für Lebensmittelrecht und Lebensmittelkunde e.V., BLL, Bonn/Berlin.
  • Arbeitsgemeinschaft " Agrarrecht" im DAV, German Bar Association, Berlin.
  • DGAR Deutsche Gesellschaft für Agrarrecht – Vereinigung für Agrar- und Umweltrecht e.V., Bonn.
  • Gesellschaft Deutscher Chemiker e.V., Frankfurt a. M.
  • Scientific member and chairman of specified group III of Wissenschaftlichen Gesellschaft für Lebensmittelrecht WGfL e.V., Munich.
  • Scientific member at BIORecht, zeitschrift für bio und allgemeines Lebensmittelrecht.
  • Geschäftsführender Direktor von IFAL® Institut für Angewandtes Lebensmittel- und Futtermittelrecht, Münster.

Publications

  • Futtermittelverordnung, Dannecker/Gorny /Mettke/Preuß/Beck, LFGB- Kommentar zum Lebensmittel- und Futtermittelgesetzbuch, Behr's-Verlag, Hamburg, 2015.
  • Lebensmittelrecht und Produkthaftung, Dombert/Witt/Gregor, Münchener Anwalts-Handbuch Agrarrecht, Beck-Verlag, München, 2011.
  • Einführung AgrarR, Agrarrecht, 1. Auflage 2011, Beck-Texte im dtv.
  • Dioxin-Krise, Politische Verantwortung des Bundes r e c h t – Die Zeitschrift für europäisches Lebensmittelrecht, 1/2011.
  • Auf dem Prüfstand, Verbraucherinformationsgesetz, BIORecht 3/2010, S. 172 – 173.
  • Das neue Hygienerecht, BIORecht 2009, S. 44 – 46.
  • van der Meulen/Gregor, Verantwortung, Macht, Gesetzesqualität, Die Anforderung der Art. 14, 15 und 19 der BasisVO und die Verantwortung der Lebensmittelunternehmen, ZLR (Zeitschrift für das gesamte Lebensmittelrecht) 2007, S. 265 – 293.

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