CJEU Advocate General: The Court Should Not Overturn the 2013 EU Ban on Neonicotinoids
Updated: Oct 5, 2020
Europe has just taken a new step towards ensuring the protection of bees from harmful pesticides. The Advocate General of the Court of Justice of the European Union (CJEU) Juliane Kokott delivered her opinion on the ongoing case of Bayer against the European Commission (EC) for the partial ban of three neonicotinoid substances in 2013 (imidacloprid, clothianidin and thiamethoxam). The Court had already ruled Bayer’s (and Syngenta’s) claims inadmissible in 2018, after which Bayer appealed the Court’s decision [1] [2]. Advocate General Kokott states that the arguments presented for the appeal are unsubstantial and that the Court should not overturn the Commission’s ban. Although judges will still need to issue a ruling, the opinion of the Advocate General is a new sign of the adequacy and lawfulness of the procedure that led to the ban.
As one of the associations intervening to defend the decision by the European Commission in the court case, along with other NGOs such as Buglife, Greenpeace, Pesticide Action Network Europe, and others, BeeLife celebrates this first step towards ensuring legal processes, as well as their respect for the public good and the protection of bees. The final decision on this case will mark an important precedent on the future procedures related to risk assessment and their impact on environmental protection.
The European Commission’s decision to withdraw the marketing authorisation for the three neonicotinoid substances in 2013 followed new evidence and scientific reviews by the European Food Safety Authority. Considering legal dispositions within EU legislation, particularly Article 21(1) of the Plant Protection Regulation [3], Advocate General Kokott states that “the Commission may review the approval of an active substance at any time” [4], such re-evaluation is legally acceptable.
Furthermore, the protection of public and environmental health is an essential part of the European Commission’s responsibility. In the light of new evidence of risks, it is in the interest of EU authorities and citizens, that decisions are reviewed. The 2013 partial ban on neonicotinoids is a materialisation of one of the principles for the EU as stated in article 114 (3) of the Treaty on the Functioning of the European Union: “(The European Commission) will take as a base a high level of protection, taking account in particular of any new development based on scientific facts” [5].
On the other hand, the Advocate General also concludes that the previous ruling contained legal errors regarding the distinguished prohibition measures between professional and non-professional uses of these neonicotinoid substances. Nevertheless, it does not justify overturning the ban imposed by the European Commission.
The negative impacts that neonicotinoids have brought upon bees, thus affecting their essential role in ecosystems, are well documented today. It has even concluded with a more comprehensive ban in 2018 [6]. The European Union Court of Justice will now have to provide a ruling considering the non-binding opinion of Advocate General Kokott. New challenges continue to rise, significantly to strengthen risk assessment for bees [7], but the upcoming ruling will undoubtedly become a milestone for plant protection regulation and the protection of bees in Europe.
References:
[1] BeeLife. 2018. European Court of Justice Confirms Ban on Neonicotinoids. https://www.bee-life.eu/post/2018/05/17/european-court-of-justice-confirms-ban-on-neonicotinoids
[2] CVRIA. 2018. The General Court confirms the validity of the restrictions introduced at EU level in 2013 against the insecticides clothianidin, thiamethoxam and imidacloprid because of the risks those substances pose to bees. http://curia.europa.eu/juris/fiche.jsf?id=C%3B499%3B18%3BPV%3B1%3BP%3B1%3BC2018%2F0499%2FP&oqp=&for=&mat=or&lgrec=en&jge=&td=%3BALL&jur=C%2CT%2CF&dates=&pcs=Oor&lg=&parties=Bayer&pro=&nat=or&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&language=en&avg=&cid=2500811
[3] European Parliament, Council of the European Union. Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32009R1107
[4] CVRIA. 2020. OPINION OF ADVOCATE GENERAL KOKOTT delivered on 17 September 2020. Case C‑499/18 P Bayer CropScience AG and Bayer AG v European Commission. http://curia.europa.eu/juris/document/document.jsf?text=&docid=231204&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=2912887
[5] Office Journal of the European Union. 2012. Consolidated Version of the Treaty on the Functioning of the European Union: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT
[6] BeeLife. 2018. Neonicotinoids Banned to all Open-Air Uses in the EU. https://www.bee-life.eu/post/2018/04/27/nenoicotinoids-banned-to-all-open-air-uses-in-the-eu
[7] BeeLife. 2020. European Bees Under Peril as Protection Goals for Risk Assessment of Pesticides Might Paint a Bleak. https://www.bee-life.eu/post/european-bees-under-peril-as-protection-goals-for-risk-assessment-of-pesticides-might-paint-a-bleak