On 19 January 2023, the Court of Justice of the European Union finally clarified the prohibition for Member States to authorize the use of pesticides in derogation from EU prohibitions. (1)
1) National derogations from pesticide bans in the EU, the casus belli
PAN Europe e Nature et Progrès Belgique – the leading associations in the fight against pesticides, in the EU and in Belgium – supported a beekeeper in suing the Belgian state for authorizing 'the placing on the market of plant protection products based on active substances banned in the European Union'. (1)
Neonicotinoid insecticides severely toxic to bees and pollinators – Indoxacarb, Thiamethoxam and Imidacloprid – have been authorized for use in the treatment of sugar beet seeds in Belgium for the 2022/2023 planting season. As already happened in France for the same crops. (2)
2) National derogations, the conditions
'A high level of protection both human and animal health and the environment' is the primary objective of EC regulation no. 1107/2009, relating to the placing on the market of plant protection products (Whereas 8 and 24, art. 1.c. 3).
Only in exceptional circumstances – when there is a threat to crop production that cannot be tackled with different tools – the Member States can introduce temporary derogations from the EU bans on the use of pesticides and other banned substances (reg. EC 1107/2009, art. 53).
2.1) Phytosanitary emergency situations
'In derogation in Article 28, in special circumstances a Member State may authorise, for a period not exceeding XNUMX days, the placing on the market of plant protection products for limited and controlled use, where such a measure appears necessary due to a danger which cannot be contained in any other reasonable way.
The Member State interested party immediately informs the other Member States and the Commission of the measure adopted, providing detailed information on the situation and on the measures taken to ensure consumer safety' (EC regulation 1107/2009, art. 53 – Phytosanitary emergency situations). (3)
3) National derogations from EU bans, abuses by Member States
Pesticide Action Network (PAN) Europe reports that between 2019 and 2022 several Member States introduced as many as 236 national derogations from EU bans on the use of pesticides, with particular regard to 14 active substances that are very dangerous for ecosystems and biodiversity. Without the phytosanitary emergency conditions that must always justify such measures. (4)
Many exceptions are notified in Brussels with an unacceptable delay, even after their period of application (e.g. Spain, Emergency Authorization ES-ES-2019-17, notification performed 8 months after the expiry of the derogating authorisation). As of January 2023, PAN denounces, 'only' five exceptions have been registered. But how many other national measures will have been introduced without notification?
4) EUCJ. Prevalence of the interest for human health and the precautionary principle
The Court of Justice (EUCJ, Court of Justice of the European Union) - in its judgment on pesticides of 19 January 2023 - clarified how authorizing the use of dangerous substances in agriculture - means giving priority to plant production over human health and the environment. In violation of European law and of the same reg. EC 1107/2009 which, as we have seen, has the primary objective of guaranteeing a high level of protection of human, animal and environmental health.
The precautionary principle (Treaty on the Functioning of the European Union, TFEU, article 191) - a fundamental criterion for risk management on the environment and human and animal health in the EU - also applies to authorizations of pesticides and other agrochemical substances, continues the Court of Justice. (5) And it entails the prohibition of placing on the single market products whose risks, even if only potential, are the subject of scientific uncertainty. (6)
4.1) EU Court of Justice, the decision
The EU Court of Justice therefore clarified that Member States must 'take all the necessary measures to encourage phytosanitary defense with low pesticide input, favoring non-chemical methods whenever possible, so that professional users of pesticides adopt the practices or products that present the least risk to human health and the environment among all those available for the same purpose'.
The reg. CE 1107/2009, continues EUCJ, 'does not allow a Member State to authorize the placing on the market of plant protection products for the purpose of treating seeds, as well as the placing on the market and use of seeds treated with such products, where the placing on the market and use of seeds treated with the same products have been expressly prohibited by an implementing regulation'.
4.2) Extension of the bans to seeds treated with banned pesticides
'It should also be added that the interpretation of Article 53(1) of Regulation No 1107/2009 that has been adopted applies not only to the placing on the market and use of seeds treated with plant protection products which have been expressly prohibited by implementing regulations, in the present case for the sowing of such seeds, but also applies to the placing on the market of those plant protection products for the treatment of such seeds' (EUCJ, judgment 19 January 2023, point 53).
4.3) The next steps
The official interpretation provided by the EU Court of Justice (EUCJ) on EC regulation 1107/09 must now involve:
- the immediate revocation, by Belgium, of the authorizations for the use of the neonicotinoid pesticides subject to the present judgment,
- action by the European Commission to stop all existing and pending national derogations from EU bans,
- the suspension of EU authorizations for pesticides and other agrotoxic products that still lack updated risk assessments. (7)
5) Ecological transition e lobby of pesticides
Le lobby of pesticide and seed monopolists (Big 4) – with the support of large agricultural confederations in conflict of interest (since they are supposed to represent farmers and instead play into the hands of the agrochemical suppliers on whom they depend) – continue to boycott the ecological transition in agriculture. In Europe as elsewhere. (8)
The European Commission it thus finds itself hostage to the Council and the Parliament in carrying forward the commendable commitments undertaken in the strategies Farm to Fork e Biodiversity 2030. And the SUR proposal (Sustainable Use of Pesticides Regulation) risks being postponed to the next legislature. (9)
Dario Dongo and Alessandra Mei
Footnotes to the story
(1) Court of Justice of the European Union (EUCJ). Case C‑162/21, judgment 19.1.23 https://curia.europa.eu/juris/document/document.jsf?text=&docid=269405&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=5866
(2) Dario Dongo, Gioele Lucchese. Pesticides, green light from the EU Court of Justice to national bans. Let's save the bees. GIFT (Great Italian Food Trade). 7.11.20
(3) Regulation (EC) No 1107/2009, concerning the placing of plant protection products on the market. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32009R1107&qid=1675429697410 Current consolidated version 21.11.22
(4) Groundbreaking EU Court ruling should stop all highly toxic pesticide derogations – now. https://www.pan-europe.info/blog/groundbreaking-eu-court-ruling-should-stop-all-highly-toxic-pesticide-derogations-%E2%80%93-now. PAN (Pesticides Action Network) news. 31.1.23
(5) European Commission. Communication from the Commission on the precautionary principle. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52000DC0001 (COM/2000/0001 final)
(6) European legislation does not contain specific provisions concerning seeds treated with plant protection products. Therefore, they are included in the discipline of Reg. (EC) n. 1107/2009. Where, if there are valid reasons to fear that seed treated with pesticides and other plant protection products may present a risk, measures must be taken to limit or prohibit the use of such treated seeds (Recital 33, art. 49.2)
(7) Martha Strinati. Not just glyphosate. 33% of pesticides used in the EU are without risk assessment. GIFT (Great Italian Food Trade). 26.11.22
(8) Marina De Nobili, Dario Dongo. Neonicotinoids, investigation into pesticide lobbies. GIFT (Great Italian Food Trade). 7.2.20
(9) Alessandra Mei. Regulation on the sustainable use of pesticides, SUR. The travails of EU reform. GIFT (Great Italian Food Trade). 20.12.22