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The Glyphosate Saga in Luxembourg: The Annulment by the Judiciary of the Legislative Ban of Glyphosate-Based Products – A Breach of European Union Law?
Published online by Cambridge University Press: 22 September 2023
Abstract
Administrative Tribunal of Luxembourg, 15 July 2022, case no 44377 and Court of Appeal of Luxembourg, 31 March 2023, case no 47873C
On 15 July 2022, the Administrative Tribunal of Luxembourg annulled the decisions by which the Luxembourg Minister for Agriculture, Viticulture, and Consumer Protection had banned all glyphosate-based products. On 31 March 2023, the Court of Appeal upheld the ruling of the Administrative Tribunal. The ground of annulment was the breach by the Luxembourg State of the adversarial principle enshrined in Article 9 of the Grand-Ducal Regulation of 8 June 1979. Yet, for the sake of completeness, the Administrative Tribunal and the Court of Appeal verified the compliance of the decisions banning glyphosate-based products with Articles 36, 41 and 44 of Regulation no 1107/2009. Against this backdrop, this case note provides a critical assessment of the rulings of the Administrative Tribunal and the Court of Appeal from the perspective of European Union law. This analysis might prove to be useful as it enables us to shed light on the conditions allowing Member States to withdraw the authorisation of plant protection products under Regulation no 1107/2009 as well as to identify the hurdles that Member States might need to overcome when banning glyphosate-based products from their territory.
- Type
- Case Notes
- Information
- European Journal of Risk Regulation , Volume 14 , Special Issue 4: Special Issue on Long-Term Risks and Future Generations , December 2023 , pp. 816 - 822
- Copyright
- © The Author(s), 2023. Published by Cambridge University Press
References
1 European Parliament resolution of 24 October 2017 on the draft Commission implementing regulation renewing the approval of the active substance glyphosate in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Implementing Regulation (EU) No 540/2011 [2017] 2017/2904 RSP.
2 Commission Implementing Regulation (EU) No 2017/2324 of 12 December 2017 renewing the approval of the active substance glyphosate in accordance with Regulation No 1107/2009, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 [2017] OJ L 309/10.
3 International Agency for Research on Cancer, Monograph 112 (2015) <monographs.iarc.fr/ENG/Monographs/vol112/mono112-10.pdf> (last accessed 20 July 2023).
4 European Food Safety Authority, “Conclusion on the peer review of the pesticide risk assessment of the active substance glyphosate” (2015) 13(11) EFSA Journal 4302 <efsa.onlinelibrary.wiley.com/doi/epdf/10.2903/j.efsa.2015.4302> (last accessed 20 July 2023).
5 European Chemicals Agency, Committee for Risk Assessment, Opinion proposing harmonized classification and labelling at EU level of glyphosate (2017) <echa.europa.eu/documents/10162/2f8b5c7f-030f-5d3a-e87e-0262fb392f38> (last accessed 20 July 2023).
6 M Morvillo, “Glyphosate Effect: Has the Glyphosate Controversy Affected the EU’s Regulatory Epistemology?” (2020) 11 European Journal of Risk Regulation 422–23.
7 ibid. For an analysis of glyphosate’s authorisation procedure, see also A Arcuri and YH Hendlin, “The chemical Anthropocene: glyphosate as a case study of pesticide exposures” (2019) 30 King’s Law Journal 234–53.
8 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 [2009] OJ L 309/50.
9 Under Annex I of regulation no 1107/2009, Member States are divided into three zones for the authorisation of plant protection products. Luxembourg is included in the zone B, which includes the following Member States: Belgium, Czechia, Germany, Ireland, Luxembourg, Hungary, the Netherlands, Austria, Poland, Romania, Slovenia and Slovakia.
10 As an example, a partial ban on glyphosate is in force in France, Austria, Czechia, Italy and the Netherlands.
11 European Chemicals Agency, Committee for Risk Assessment, Opinion proposing harmonized classification and labelling at EU level of glyphosate (2023) <https://echa.europa.eu/documents/10162/9a6bdbf8-0d3c-c029-8256-2112189a6f85> (last accessed 20 July 2023).
12 European Food Safety Authority, Factsheet, Glyphosate (2023) <https://www.efsa.europa.eu/sites/default/files/2023-07/glyphosate_factsheet.pdf> (last accessed 20 July 2023).
13 Politico, “Brussels says glyphosate safe enough for ‘full’ re-approval” (2023) <https://www.politico.eu/article/brussels-says-glyphosate-safe-enough-for-full-re-approval/> (last accessed 20 July 2023).
14 Coalition Agreement 2018 <https://gouvernement.lu/fr/publications/accord-coalition/2018-2023.html> (last accessed 20 July 2023).
15 Under Art 29 of Regulation no 1107/2009, a plant protection product can be authorised if it complies, inter alia, with the following requirements: its active substances, safeners and synergists have been approved in the light of current scientific and technical knowledge, it complies with the requirements provided for in Art 4(3) regarding the nature and quantity of its active substances, safeners and synergists and, where appropriate, any toxicologically, eco-toxicologically or environmentally relevant impurities and co-formulants can be determined using appropriate methods.
16 It is worth specifying that in its ruling the Court of Appeal did not refer to the precautionary principle.
17 Judgments of 11 September 2002, Pfizer Animal Health v Conseil, T-13/99, EU:T:2002:209, point 139; 17 March 2016, Zoofachhandel Züpke and Others v Commission, T-817/14, EU:T:2016:157, point 51; 17 March 2021, FMC v Commission, T-719/17, EU:T:2021:143, point 63; and 6 May 2021, Bayer CropScience and Bayer v Commission, C-499/18 P, EU:C:2021:367, point 80.
18 A Donati, Le principe de précaution en droit de l’Union européenne (Brussels, Bruylant 2021).
19 Judgment of 1 October 2019, Blaise and Others, C-616/17, -EU-:C:2019:800, point 44.
20 ibid, point 46.
21 For a comment on this case, see A Donati, “The Glyphosate Saga, a Further but Not a Final Step: The CJEU Confirms the Validity of the Regulation on Plant Protection Products in Light of the Precautionary Principle” (2020) 11 European Journal of Risk Regulation 148–54; A Bailleux, “Don’t judge a case by its cover: the Pesticides Regulation survives judicial scrutiny but is given new teeth: Blaise” (2020) 57 Common Market Law Review 861–76.