By Armand Suiçmez
Translation: Pierre Chabal
Passage au crible n°67
Pixabay
On April 4, 2012, Giovanni Conti, State court judge in Rio Grande do Sul condemned Monsanto to suspend the collection of royalties on GMO soybeans (genetically modified organisms). This decision also involves the reimbursement of licensing costs, paid since the cropping season of 2003-2004, on the grounds of a “violation of Brazilian law on agricultural species.” A daily fine of 400,000 Euros shall sanction the company in case of non compliance with this judgment.
This is far from being an isolated case. The multinational had already experienced a setback when it was dismissed by the ECJ (European Court of Justice) on July 6. Monsanto had then tried to prevent the export of GM soya, from Argentina to the Netherlands, for non-payment. This shows how the supremacy of the company has now crumbled.
> Historical background
> Theoretical framework
> Analysis
> References
Founded in the United States in 1901 by John Francis Queeny, the Monsanto firm was initially specialized in the marketing of chemicals. By the early 1980s, the firm obtained the first plants modified in the greenhouse after numerous efforts in genetic research. In 2002, the conglomerate became the leader of transgenic agriculture in the world after developing its international sales.
The marketing authorization of the NewLeaf potato, of the YieldGard corn, of colza, of Roundup Ready soybeans between 1995 and 1996 diversified ranges and offered new potential to the company. In 2001, taking advantage of the low levels of soybean harvests in South Africa and of the production of cotton in India, Monsanto established itself firmly in these countries. Since then, its progress in key producing states, remains steady and sustainable. This expansion is related to the sale of grain, but mainly to royalties levied on industrial property right, which prevents “on the one hand to replant the following years and, on the other, to give or exchange seeds. Clearly, these organizations of Brazilian farmers refuse to pay fee on seeds, whether harvested, sorted or replanted.”
In Brazil, a Federal Republic composed of 26 States, intellectual property is governed by Articles 10 and 18 of Law 9279. The first of them stipulates that are excluded from this definition “all or part of natural living beings and biological materials found in nature, or which are isolated from it, including the genome or germoplasm of any living thing and natural biological processes.” The second, bypassed by Monsanto when signing agreements directly with traders, notifies that “these microorganisms, with the exception of all or part of plants or animals, express, by direct human intervention in their genetic composition, a feature that normally is not achievable by the species under natural conditions.”
In 2009, the marketing of new generations of plants led to the increase from 48 euros/hectare to 145 euros, under the guise of profitability. In this context, agricultural workers from Rio Grande do Sul and associations of farmers and Giruá and Arvorezinha joined by those of Passo Fundo, Santiago and Sertão lodged a complaint for abuse. Monsanto responded immediately by challenging the admissibility of this judgment “since it has business relationships only with individuals.” The firm therefore appeals to the Federal Court of Brazil which, if it rules in favor of the plaintiffs, shall confer a national value to its decision.
Ultimately, the total reimbursement of payments from 2003-2004 would amount to about 6.2 billion euros redistributed to five million farmers.
Let us retain two lines of reasoning:
1. The patent at the heart of the profit system. Although primarily symbolizing the protection of research, the principle of industrial property – which allows forbidding any third party the right to exploit an invention – also serves to firms as leverage in negotiations. Companies benefit from the heterogeneity of standards which remains between countries – as in the case of GMOs – in order to increase their profits when they are not more or less directly in collusion with public authorities.
2. Symbolic contestation of monopolistic firms. The predatory strategies of companies which are in a position of monopoly, often show the inability of states to arbitrate disputes which these companies experience with their customers. Lawsuits are generally only the result of shaming campaigns, carried out by transnational actors such as NGOs.
In a country where 95% of agriculture is transgenic, the practical monopoly of Monsanto induces a dependence of Brazilian producers, perpetuated by the collection of royalties. Therefore, already widely criticized by the public and the media for the absence of any competition in the GMOs market, the multinational suffers from a largely deteriorated symbolic image.
The organic growth of the industrial group is characterized by a reliance on industrial property, which serves to impose on producers the payment of a royalty. Therefore, the patent becomes a legal weapon aiming to ensure profitability. Contrary to popular belief, lack of commercial law in matter of innovation does not appear to be a weakness; rather, this lack allows greater flexibility to Monsanto in implementing its business strategy. Taking advantage of this asymmetry, the firm can thus take in regular profits in the face of more and more isolated farmers. Bypassing laws in order to negotiate directly with farmers, Monsanto takes advantage of its majesty in the field of GMOs and imposes its conditions.
In this context, the complaint filed by farmers’ associations is a contest of strength that appeared, two years ago still, again, as naturalized. Indeed, the complicities which Monsanto had with governments unable to respond to the vagueness of normative frameworks, offered it so far a very wide field of action with impunity. However, the assistance of sovereignty-free actors, such as the new community of trader-farmers and the local government of Rio Grande do Sul, puts an end to this situation.
In foresight, the recent opposition to Monsanto’s practices has opened a breach in the strengthening of international standards dealing with industrial property. So far, lax and non-homogeneous initiatives have already been proposed by the WTO (World Trade Organization), but they are still embryonic. Moreover, the involvement of national courts indicates an attempt to bring back under State monitoring (réétatisation) some transnational exchanges.
Info’OGM ; Brésil – La justice refuse à Monsanto le droit de prélever des royalties sur le soja OGM; http://www.infogm.org/spip.php?article5124 ; dernière consultation : 31/05/2012.
Sägesser Caroline, «Le dossier des OGM dans les instances internationales», Courrier hebdomadaire du CRISP, (19), 2001, pp. 5-34.
Fok et al Michel, « Un état de coexistence du soja transgénique et conventionnel au Paraná (Brésil) », Économie rurale, (320), juin 2010, pp. 53-68.
Laroche Josepha, La Brutalisation du monde, du retrait des États à la décivilisation, Montréal, Liber, 2012.
