However, it would be wrong to consider risks solely from a technical and financial point

However, it would be wrong to consider risks solely from a technical and financial point of view, because the intangible loss, which is immeasurable, must also be taken into account38. As Lagadec notes, “the change in scale of industrial tragedies makes financial distribution difficult, if not impossible, or simply meaningless” 39. But beyond the potential financial consequences which can be high, even incalculable, we must also take into account irreversible material and immaterial losses. For example, one cannot compensate with a monetary value the genetic pollution by the transfer of pollen, the environmental pollution of soils or the slow and irremediable erosion of biodiversity. In fact, Séralini remarks, “no one can suppress all the artificial genes that we have released among cultivated plants” 40.

 

 

It is interesting to note that the notion of irreversibility rarely appears in national legislation. The Barnier law (law 95-1001 on the strengthening of environmental protection of 1995) seems to constitute an exception when it stipulates that “the absence of certainty must not delay effective and proportionate measures to prevent serious damage and irreversible ”

 

 

    41 Cf. “The reversibility-irreversibility dialectic: putting it into perspective”, introduction to ou (...)

 

    42 A more in-depth study of the relationship between the notions of irreversibility and precaution goes beyond (...)

 

 

 

In general, the term irreversibility designates the inability of actors to change a situation or the course of a process ”; while the precautionary principle encourages people to decide and / or act (either actively or by abstaining) under conditions of uncertainty, based on the assumptions prior to the acquisition of more extensive scientific knowledge41 . Of course, irreversibility is often present in human activities, in particular in scientific and technical choices, the outcome of which is covered by a “veil of ignorance”. As we can see, “irreversibility” and “precaution” are close but not analogous and are not on the same scale42.

 

 

 

    43 Swiss Re, Genetic engineering…, op. cit., p. 8. (Emphasis added by the authors)

 

 

 

31In any event, with the awareness of irreversibility in the application of biotechnologies, an important step has been taken in the socio-economic contract that binds insurance to society and in this perspective, risks take on a new dimension. . Taking socio-cultural aspects into account becomes just as crucial as the technical aspects: everything plays a determining role in the public's perception of technological risks. As one reinsurer's publication notes, "What matters when faced with the risk associated with genetic engineering is not that it is dangerous, but how dangerous it is considered" 43. In other words, the perception and tolerance of society with regard to the risks induced by new technologies (in particular biotechnologies) are undergoing a change. Because of this degree of irreversibility, the risk goes beyond the parties bound by the contract between insurers and policyholders, it now concerns all players and all institutions, occupying an important place in the public space.

 

 

 

    44 Le Monde, October 6, 2002.

 

    45 Thomas Epprecht (Swiss Re), “Cartagena Protocol on Biosafety, Insurance Industry and Art 27 (Liabi (...)

 

 

 

32Faced with these emerging problems, insurers find themselves dispossessed of their primary function, which is to insure biotechnological risks. They observe the emergence of risks to which they can no longer provide adequate cover. As the White Paper of the French Federation of Insurance Companies notes: “How to insure the risks associated with GMOs? It is the insurability of risks that is called into question ”44. However, no longer able to guarantee the assumption of responsibility for all the consequences of the risks, insurance companies are at an impasse in the face of the potential threat of transgenic plants. The translation of an indeterminate danger into "risk" indeed follows a process by which insurance companies manage to determine the occurrence of a risk by applying probabilistic and statistical methods; they confront this risk with a monetary value of the damage that could occur. It is obvious that this approach cannot be followed in the insurance of the risks that GMOs may present. "To insure or not to insure", such is the question now posed with a certain candor by the company Swiss Re. Faced with this uncomfortable situation, insurers are led to reconsider the insurability of biotechnological risks and compensation for damage (RC) 45.

 

 

 

    46 General Planning Commission, GMOs and agriculture: option for public action, Paris, La documen (...)

 

    47 Christian Babusiaux, Jean-Yves Le Déaut et al., Transgenic plants: is experimentation (...)

 

 

 

33This situation is not lost on political and administrative institutions, which put pressure on insurers (private and public) to assume their role and to provide cover for biotechnological risks. Thus, a report from the French General Planning Commission recommends that the authorities establish an insurance policy that takes into account any “mass risks” linked to GMOs46. Another report, drawn up under the aegis of the French Ministry of Ecology and Sustainable Development, noting that none of the GMO tests in the open field is covered by insurance, recommends that “l 'insurance obligation to move from the stage of confined trials to that of field trials ”. In addition, the authors of the report provide for “the constitution of a solidarity fund by operators in the biotechnology sector” to support the insurance sector47.

 

 

 

34Currently, insurers insist on the fact that in order to guarantee a minimum of insurance against the risks of plant biotechnology, various preconditions must be met: first, the quantification of the risk and the evaluation of the foreseeable costs are essential to consider the GMO risk insurance. In other words, insurance companies insist on the concepts of “measurability” and “predictability” of risks so that they can understand and insure them. On the other hand, the fortuitous and accidental consequences of the use of GMOs are insurable, subject to the existence of a legal framework in force. And precisely, the shoe pinches on this last point, given that in most cases there is a lack of a legislative framework adapted to the problems that may arise in the field of GMOs. However, in the absence of a legal basis which provides for the allocation of responsibilities (RC) in the event of accidents resulting from the application of transgenic products, or without specifying the limitation period, insurers cannot act . Currently, faced with the inextricable problem posed by GMOs, States are unable to find a satisfactory solution to harmonize the points of view of all the players on the national and international levels. However, Switzerland, by adopting the Federal Law on the application of genetic engineering to the non-human domain (LGG) of March 21, 2003, has given the example that we can legislate in this area. The law mentions the precautionary principle (Art. 2), the conditions for authorizing experimental release (Art. 6), the need for the separation of product flows (Art. 16), the appeal procedures (Art. 27), civil liability (Art. 30), damage to the environment (Art. 31) and the limitation period (Art. 32).

 

 

 

In conclusion, a few remarks are in order:

 

 

 

        48 The Commission of the European Communities considers that “whether or not the invocation of the principle of precau (...)

 

        49 Demarcq, op. cit., p. 45.

 

        50 OECD, Emerging Systemic Risks: A New Frontier? Presentation by Pierre-Alain Schieb, March 28th, 2 (...)

 

        51 Gilles-Eric Séralini, op. cit., speaks of "insertion mutagenesis", p. 257 (emphasis added).

 

 

 

    The precautionary principle emerges at this stage of the reflection, given the situation of limited coverage of damage linked to the risks of GMOs48. In fact, the notion of precautionary principle arises in a paradoxical situation. The growing insecurity felt by the population about possible risks (the probability of which may however be minimal) contrasts with the weakening of the insurance institution49. Under these conditions, the precautionary principle has several roles to play in the insurance field. First, the current debates draw the public's attention to the fact that in technico-scientific society the multiplication of technological disasters is always possible and that this risk contributes to the fragility of complex socio-economic organizations50. This complexity is reinforced by the fact that with biotechnologies we have to do with living organisms which constitute an open system, which are in constant interaction with their environment, which survive thanks to the exchange of matter and energy with their environment. environment. However, this process is indeterminate and its effect is random. Indeed, scientists are also wondering about the future evolution of GM plants, given the fact that the evolution of genomes is unstable. Séralini underlines that "the hidden complexity of living things (...) can cause unexpected metabolic interactions" 51. It is not surprising therefore that the apprehension of the risks associated with genetically modified organisms remains largely hypothetical.

 

 

 

    Another reason for the uncertainty surrounding the development and application of GMOs stems from the fact that the properties of a gene cannot be viewed in isolation, but must be viewed contextually. They depend on their genetic environment and are expressed in interrelationship with other DNA genes. We can therefore see that living technologies are complex processes, poorly understood, hence a certain lack of awareness of the risks.

 

        52 Olivier Godard, “The precautionary principle: moving away from scientific positivism to civilize (...)

 

 

 

    The implementation of the precautionary principle calls on all actors, scientists, political and economic decision-makers, members of civil society, to question them on the nature and degree of risks that the community is prepared to accept and assume. The precautionary principle not only establishes a state of continual vigilance to watch for the arrival of new collective risks which could threaten, if necessary, the safety of people, their health and the environment; it also imposes a permanent dialogue with all the parties concerned to adapt the limits of the protection provided according to the rapid and changing evolution of scientific and technical knowledge. The precautionary principle thus offers “new benchmarks that social actors use to reorganize the game of collective decision-making” 52.

 

        53 It is true that this is not the first time that the insurance industry has found itself facing the (...)

 

 

 

    The approach based on the precautionary principle associated with the experience acquired by insurance companies and the upstream risk assessment would allow better preparation of decision-making in the face of uncertainty53. The application of the precautionary principle will probably lead insurers to shift the emphasis they still place on the consequences of the materialization of risks, towards the anticipation of major risks (by setting up a sort of "early warning system" ). Insurance companies would then become proactive partners in the development of hypotheses during the implementation of the precautionary principle.

 

        54 In the field of insurance, liability is defined as the obligation to repair the damage (...)

 

        55 Christian Babusiaux, Jean-Yves Le Déaut, op. cit. pp. 37 -38

 

 

 

    In the situation of uncertainty, the conception of liability for damages also changes. It seems that we are going to move more and more towards a system of collective liability without fault, instead of seeking to individually attribute a cause or a fault which would be at the origin of a catastrophe54. In other words, we move from an individual attribution of liability to a socialization of liability for damage, given that in the event of the contamination of a non-GMO plot by GMO seeds, it is certainly difficult to determine. '' identify who is at fault, the seed company, the trader or the neighboring farmer. The report addressed to the French Ministry of Ecology and Sustainable Development proposes to establish a principle of strict liability without fault as regards the dissemination of GMOs ”, while being aware that the determination of the fault will fall to the expertise. The report in question finally notes that the administrative responsibility incumbent on the State which issues the authorization for the dissemination of a transgenic plant should be examined from the angle of the precautionary principle in the current state of the law55. We can provisionally conclude that the question is far from being settled and that the debate remains open in terms of civil liability in the face of the risks of GMOs. There is still a long way to go before satisfactory legal, economic and social solutions are found.

 

 

 

 

    The fact remains that one way or another, sooner or later, the community will be called upon to lay down new rules relating to the nature and degree of acceptable risk in the case in case. Because “responsibility is an art of decision, as a prerequisite for action” 56. It is in this sense that the clarification of civil liability can contribute to precautionary reasoning. “In reality, it is a new decision-making process that must be invented,” writes Laurence Engel57, which cannot be limited to the sole principle of precaution. Rather, it is the principles of “good government” applicable in terms of evaluation and technological choice that urgently need to be developed58. These principles invite us to move towards the establishment of codified rules which will prescribe an alert procedure suitable for anticipating in time the effects of major technological risks. Good governance and the application of the precautionary principle thus recommend anticipating (prospective anticipation), negotiating (with the idea of ​​responsibility as the basis of any decision) and, finally, thinking about other insurance bases. The irreversibility of new technological risks calls on us urgently.