On January 19, 2023, the Court of Justice of the European Union finally clarified the ban on member states allowing the use of pesticides in derogation of EU bans. (1)
1) National derogations to pesticide bans in EU, the casus belli
PAN Europe and 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 that are severely toxic to bees and pollinators–Indoxacarb, Thiamethoxam, and Imidacloprid–have been approved for use in sugar beet seed treatment, in Belgium, in the 2022/2023 planting season. As was also the case in France for the same crops. (2)
2) National exemptions, the conditions
‘A high level of protection of both human and animal health and the environment‘ is the primary objective of EC Regulation No. 1107/2009, on the placing of plant protection products on the market (Whereas 8 and 24, Art. 1.c. 3).
Only in exceptional circumstances-when there is a threat to crop production that cannot be addressed by other means-member states may introduce temporary derogations from EU bans on the use of pesticides and other banned substances (EC Reg. 1107/2009, Art. 53).
2.1) Phytosanitary emergency situations.
‘By wayof derogation from Article 28, in special circumstances a member state may authorize, for not more than one hundred and twenty days, the placing on the market of plant protection products for limited and controlled use where such action appears necessary because of a hazard that cannot be contained in any other reasonable manner.
The Member State concerned shall immediately inform the other Member States and the Commission of the measure taken, providing detailed information on the situation and the measures taken to ensure consumer safety‘ (EC Reg. 1107/2009, Art. 53 – Phytosanitary Emergency Situations). (3)
3) National derogations from EU bans, member states’ abuses
Pesticide Action Network
(PAN) Europe reports that between 2019 and 2022, several member states have introduced as many as 236 national derogations from EU pesticide use bans, with a focus on 14 active substances that are very dangerous to ecosystems and biodiversity. Without recurring the conditions of phytosanitary emergency that must always justify such measures. (4)
Many derogations are notified in Brussels with unacceptable delays, even after their application period (e.g., Spain, Emergency Authorization ES-ES-2019-17, notification made 8 months after the end of the derogation authorization). As of January 2023, PAN reports, ‘only’ five waivers have been registered. But how many other national measures will have been introduced without notification?
4) EUCJ. Prevalence of human health interest and the precautionary principle
The Court of Justice of the European Union(EUCJ)-in its January 19, 2023 ruling on pesticides-made it clear how allowing the use of hazardous substances in agriculture-means prioritizing plant production over human health and the environment. In violation of European law and the same reg. EC 1107/2009, which, as noted above, has the primary objective of ensuring a high level of protection of human and animal health and the environment.
The precautionary principle(Treaty on the Functioning of the European Union, TFEU, Article 191)-a fundamental criterion for risk management on the environment and health, human and animal, in the EU-applies also to authorizations on pesticides and other agrochemicals, the ECJ continues. (5) And it involves the prohibition of placing on the single market products whose risks, even if only potential, are subject to scientific uncertainty. (6)
4.1) EU Court of Justice, the decision
The EU Court of Justice has therefore clarified that member states must ‘Take all necessary measures in order to encourage low pesticide-input pest management, giving priority whenever possible to nonchemical methods, this so that professional pesticide users adopt the practices or products that present the least risk to human health and the environment among all those available for the same purpose‘.
Reg. EC 1107/2009, EUCJ continues, ‘does not permit a member state to permit the placing on the market of plant protection products for the purpose of seed treatment, and the placing on the market and use of seed treated with such products, if the placing on the market and use of seed treated with the same products has been expressly prohibited by an implementing regulation‘.
4.2) Extension of prohibitions 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 January 19, 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 entail:
- Belgium’s immediate revocation of the permits for the use of the neonicotinoid pesticides at issue in this case,
- The intervention of the European Commission to stop all national exemptions to EU bans, both existing and in the making,
- The suspension of EU approvals of pesticides and other agrotoxics that still lack updated risk assessments. (7)
5) Ecological transition and pesticide lobby.
Lobbies Of pesticide and seed monopolists (Big 4) – with the support of large agricultural confederations in a conflict of interest (since they are supposed to represent farmers and instead play into the hands of the agrochemical suppliers they depend on) – continue to boycott the ecological transition in agriculture. In Europe as elsewhere. (8)
The European Commission thus finds itself hostage to the Council and Parliament in carrying out or laudable commitments made in the strategies
Farm to Fork
and Biodiversity 2030. And theSustainable Use of Pesticides Regulation (SUR) proposal is in danger of slipping to the next legislature. (9)
Dario Dongo and Alessandra Mei
Notes
(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, EU Court of Justice green light for national bans. 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 regarding seeds tanned with plant protection products. Therefore, they are included in the regulations of Reg. 1107/2009. Where, if there are good grounds for concern that seeds treated with pesticides and other plant-protection products may present a risk, measures must be taken to restrict or prohibit the use of such treated seeds (Recital 33, Article 49.2)
(7) Marta Strinati. Not just glyphosate. 33% of pesticides used in EU lack risk assessment. GIFT (Great Italian Food Trade). 26.11.22
(8) Marina De Nobili, Dario Dongo. Neonicotinoids, pesticide lobby investigation. 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
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
Graduated in Law from the University of Bologna, she attended the Master in Food Law at the same University. You participate in the WIISE srl benefit team by dedicating yourself to European and international research and innovation projects.
