Recommendations

·         The first and only concrete recommendation that can be made is that the trans-border issues relating to GMO make the desirability of an EU-wide single legal regime very strong. This would eliminate costly conflict of laws problems between member states. This would, however,  require a degree of agreement over the desirability of GMOs in the Union, which on current form is unlikely.

·         Whereas a regime could be entirely no-fault based, there could be arguments for the application of the polluter pays principle where this would be seen to act as a deterrence against deliberate harmful actions, recklessness, negligence and carelessness. It could also raise the industry standards. However, the polluter may not be able to pay, requiring a mandatory insurance (with enforcement). This in turn depends upon the viability of a market for insurance (i.e. a financial return for the insurance industry). The question of deterrence may be better served through criminal sanctions and a blanket, no-fault compensation scheme.

·         The question of responsibility clearly needs resolution before the choice of regulatory regime can be set. It would seem logical that those who encourage the development of the technology, be it state or consumer, actively or passively, bear levels of responsibility for the consequences of those choices. This requires consideration in relation to the farmer and producer as agent of the state and consumer (with the analogous issues of liability where the individuals outside the terms of the agency – e.g. in this case, where the farmer acts deliberately or recklessly).

·         There is the over-riding question of who actually pays. There is the question of how far that liability (fines, etc.) are passed down the chain to the last individual (consumer) who cannot pass on costs. There is no guarantee that the added costs of a system requiring the investigation of proof and blame will be more efficient than a compensation scheme.

·         Equally, there is the question in a taxation system of why someone who does not want to participate in the new technology must pay for the liability and redress issues caused by such a technology.

·         So the overall choices of regulatory regime concern the causation, foreseeability, responsibility, and participation. These must be considered in relation to the cost and practicality of the scheme. The great number of harmful, risky activities in modern society produce a vast range of analogous situations which provide evidence that any legal model could be applied.

·         There is also a broader question of why GMO is taken in isolation and treated as a special case. Indeed, there are also harms and issues concerning liability and redress in non-GMO agriculture, organic and non-organic.  There is a strong argument for taking into consideration non-specific issues within the broader agricultural questions.