The Glyphosate Saga in Luxembourg: The Annulment by the Judiciary of the Legislative Ban of Glyphosate-Based Products – A Breach of European Union Law?

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.

I. Context

Glyphosate is an active substance used in the production of some plant protection products. Developed by Monsanto in the 1970s under the name “Roundup”, glyphosate is now the most widely used herbicide in terms of both professional and personal use. ¹ In December 2017, the European Commission extended its marketing authorisation for glyphosate, which was about to expire, for five years. Then, in December 2022, the Commission renewed the approval of glyphosate for an additional period of one year, until December 2023. ² The renewal of the marketing authorisation of glyphosate was highly controversial because of the potential carcinogenic effect of glyphosate, which was intensely debated in the scientific community. The International Agency for Research on Cancer (IARC, a body of the World Health Organization) classified glyphosate as “probably carcinogenic”. ³ Yet, the European Food Safety Authority (EFSA) ⁴ and the European Chemicals Agency (ECHA) ⁵ rejected IARC’s conclusions and considered that glyphosate did not pose risks to human health. Moreover, the so-called Monsanto Papers – Monsanto’s internal documents declassified by the US courts in 2017 – seemed to show that, since 1999, Monsanto had been aware of the carcinogenic effect of glyphosate and tried to impede the work of competent scientific bodies by disguising the data proving the danger of this product. According to these documents, Monsanto financed experts to carry out scientific research to defend the non-carcinogenic nature of glyphosate. Moreover, pursuant to the information provided by two newspapers (The Guardian and La Stampa), dozens of pages of the risk assessment report conducted by EFSA in relation to glyphosate were identical to passages in the application submitted by Monsanto to request the authorisation of this product.

In this context, the reauthorisation of glyphosate triggered one of the most acute crises in European Union (EU) food governance for at least the last decade, and a variety of avenues of contestation were mobilised. ⁶ One of the few successful European Citizens Initiatives (ECIs) was presented, asking to ban glyphosate from the European market. In the meantime, the European Parliament (EP) approved two resolutions and established a special committee (the Special Committee on EU authorisation procedure for pesticides (PEST)) to review the whole pesticide authorisation procedure in light of the glyphosate dispute. Finally, several complaints were brought to the European Ombudsman, petitions were brought to the EP and cases were brought to the Court of Justice of the European Union (CJEU). ⁷

In Luxembourg, glyphosate-based products were authorised on 5 December 2018 by relying, according to Article 36 of Regulation no 1107/2009, ⁸ on the evaluation realised by Belgium that acted as Member State Rapporteur for the zone ⁹ of which Luxembourg is a part.

However, on 14 October 2019, by taking into account the uncertainties as to the carcinogenic effects of glyphosate that emerged at the EU and international level, the Luxembourg Minister for Agriculture, Viticulture and Consumer Protection (hereinafter the “Minister”) informed Bayer – which had acquired Monsanto and held the marketing authorisation of glyphosate – of his intention to withdraw the marketing authorisation of plant protection products containing glyphosate. Following this communication, the Minister decided, by eight separate decisions of 22 January 2020 (hereinafter the “glyphosate decisions”), to withdraw the marketing authorisation of glyphosate-based products. The glyphosate decisions were based on Article 44(3) of Regulation no 1107/2009.

The glyphosate decisions marked a historic step in the European landscape. Although other Member States had previously partially banned the use of glyphosate-based products, ¹⁰ Luxembourg became the first European country to ban all personal and professional use of such products. Nevertheless, on 15 July 2022, the Luxembourg Administrative Tribunal annulled the glyphosate decisions for a breach of the adversarial principle enshrined in Article 9 of the Grand-Ducal Regulation of 8 June 1979. On 30 March 2023, the Court of Appeal upheld the judgment of the Administrative Tribunal. For the sake of completeness, the Administrative Tribunal and the Court of Appeal also verified the compliance of the glyphosate decisions with Articles 36, 41 and 44 of Regulation no 1107/2009.

Although the breach of EU law was not the ground for the annulment of the glyphosate decisions, I consider that the examination of the rulings rendered by the Administrative Tribunal and of the Court of Appeal, from the perspective of EU law, is important as it enables us to shed light on the conditions allowing Member States to withdraw the authorisation of plant protection products as well to identify the main hurdles that Member States might encounter when applying Regulation no 1107/2009. The identification of these conditions and hurdles might prove to be particularly useful considering that, further to the positive advice given by ECHA ¹¹ and EFSA, ¹² it seems likely that, at the end of the year, the Commission will grant a new authorisation for the active substance glyphosate. ¹³ In these circumstances, the Member States wishing to ban, in their territory, the use of glyphosate-based products will need to revert to EU law and namely to Articles 36, 41 and 44 of Regulation no 1107/2009.

II. Judgments

Following an application filed by Bayer, the Administrative Tribunal annulled, on 15 July 2022, the glyphosate decisions for a breach of the adversarial principle provided for by Article 9 of the Grand-Ducal Regulation of 8 June 1979. According to this provision, whether an authority intends to revoke or modify ex officio a decision that has created or granted rights to a party, it shall inform the concerned party of its intention by communicating the factual and legal elements justifying its decision. In the case at stake, the Tribunal considered that, under Article 9 of the Grand-Ducal Regulation of 8 June 1979, the Ministry was compelled to explain the factual and legal elements justifying its decision to withdraw the marketing authorisation of glyphosate-based products. However, in breach of the adversarial principle, both in his letter of 14 October 2019 – aimed at formally notifying Bayer of his intention to withdraw glyphosate-based products – and in the glyphosate decisions, the Minister did not indicate the factual and legal reasons justifying the withdrawal of the marketing authorisation of such products. Yet, he only referred broadly to the political will to ban glyphosate expressed in the 2018–2023 coalition agreement that the parties forming the Luxembourg government signed at the time of the elections. ¹⁴ Under these circumstances, the Administrative Tribunal considered that, in breach of the adversarial principle, Bayer was not properly informed of the factual and legal reasons explaining the withdrawal of the authorisation of glyphosate products and therefore could not exercise its rights of defence.

For the sake of completeness, the Administrative Tribunal analysed whether the Luxembourg State was justified to withdraw glyphosate-based products from the market solely on the ground of Article 44(3) of Regulation no 1107/2009 or whether other provisions of this regulation should have been taken into account. In this regard, the Administrative Tribunal recalled that under Article 44(3) of Regulation no 1107/2009, a Member State is entitled to withdraw the authorisation of plant protection products if, inter alia, the requirements referred to in Article 29 ¹⁵ of the same regulation are not or are no longer satisfied.

Moreover, the Administrative Tribunal pointed out that:

• Under Article 36(3) of Regulation no 1107/2009, Member States belonging to the same zone shall grant or refuse the authorisation of plant protection products based on the conclusions of the assessment of the Member State Rapporteur, unless due to specific environmental or agricultural circumstances a Member State has substantiated reasons to consider that the product in question poses an unacceptable risk to human or animal health or the environment;

• Under Article 41(1) of Regulation no 1107/2009, the Member State receiving an application for mutual recognition shall authorise the plant protection product under the same conditions as the Member State Rapporteur by taking into account, as appropriate, the particular circumstances prevailing in its territory, except where Article 36(3) of Regulation no 1107/2009 applies.

In light of the above, the Administrative Tribunal considered that by choosing as the unique legal basis of the glyphosate decisions Article 44(3) of Regulation no 1107/2009, the Luxembourg State breached EU law. Indeed, according to the Administrative Tribunal, the Luxembourg State should have also referred to Article 36(3) as well as to Article 41(1) of Regulation no 1107/2009. Thus, for the Administrative Tribunal, the Luxembourg State should have proved that, due to specific environmental or agricultural circumstances, it had substantiated reasons to consider that glyphosate-based products posed an unacceptable risk to human or animal health or the environment.

Finally, the Administrative Tribunal underlined that, in the case at stake, Luxembourg was not entitled to invoke the precautionary principle insofar as it did not examine directly the application for the authorisation of glyphosate-based products but authorised them following the authorisation granted by Belgium, acting as a Member State Rapporteur.

Following an appeal made by the Luxembourg State, the Court of Appeal upheld, on 31 March 2023, the judgment of the Administrative Tribunal by considering that the Luxembourg State had breached the adversarial principle enshrined in Article 9 of the Grand-Ducal Regulation of 8 June 1979. Moreover, by echoing the reasoning of the Administrative Tribunal, the Court of Appeal considered that, in order to justify the withdrawal of glyphosate-based products, the Luxembourg State should have not only have relied on Article 44(3) of Regulation no 1107/2009, but should have also have made reference to Article 36(3) of that same regulation.

III. Comment

Analysis of the rulings rendered by the Administrative Tribunal and by the Court of Appeal raises, in my opinion, three critical points from the perspective of EU law.

First, the reference made by the Administrative Tribunal to the procedure for the mutual recognition of the authorisation of plant protection products, outlined in Articles 40, 41 and 42 of Regulation no 1107/2009, does not seem appropriate since any procedure for the mutual recognition of glyphosate-based products was initiated in Luxembourg. Indeed, as indicated above, further to the authorisation given by Belgium, acting as a Member State Rapporteur for the zone to which Luxembourg belongs, this latter granted the authorisation of glyphosate-based products based on the conclusions of the assessment of Belgium in line with Article 36(2) of Regulation no 1107/2009.

Second, both the Administrative Tribunal and the Court of Appeal seem to confuse, in my opinion, the scope of application of Article 36(2) and (3) of Regulation no 1107/2009, and Article 44(3) of the same regulation.

On the one hand, Article 36 of Regulation no 1107/2009 sets forth the conditions under which Member States belonging to the same zone shall grant or refuse the authorisation of plant protection products. In this regard, Article 36(2) of Regulation no 1107/2009 provides that Member States belonging to the same zone shall grant or refuse the authorisation of plant protection products based on the conclusions of the assessment of the Member State Rapporteur. However, according to Article 36(3) of Regulation no 1107/2009, a Member State may refuse the authorisation of a plant protection product if, due to specific environmental or agricultural circumstances, it has substantiated reasons to consider that the product in question poses an unacceptable risk to human or animal health or the environment.

On the other hand, Article 44(3) of Regulation no 1107/2009 defines the conditions under which a Member State may withdraw the authorisation of a plant protection product that it has previously granted. This is the case especially when, like in the case at stake, the requirements referred to in Article 29 of Regulation no 1107/2009 are not or are no longer satisfied.

It follows that Article 36(2) and (3) of Regulation no 1107/2009 and Article 44(3) of Regulation no 1107/2009 have different scopes of application. Article 36(2) and (3) of Regulation no 1107/2009 is applied when the Member State needs to decide whether to grant the authorisation of a plant protection product. By contrast, Article 44(3) of Regulation no 1107/2009 is applied when the Member State wishes to withdraw the marketing authorisation of a plant protection product that was previously authorised in its territory based on Article 36(2) and (3) of Regulation no 1107/2009.

In light of these considerations, the Administrative Tribunal and the Court of Appeal breached, in my opinion, EU law when they stated that the Luxembourg State should have motivated the withdrawal of the glyphosate decisions not only on the grounds of Article 44(3) of Regulation no 1107/2009 but also of Article 36(2) and (3) of that regulation.

Third, in my opinion, the Administrative Tribunal ¹⁶ misinterpreted the precautionary principle when it considered that the Luxembourg State was not entitled to invoke this principle insofar as it did not examine the application for the authorisation of glyphosate-based products but authorised them following the authorisation granted by Belgium acting as Member State Rapporteur.

Provided for by Article 191(2) TFEU, precaution is a key principle for managing uncertain risks to the environment and public health. According to the established case law of the CJEU, where there is scientific uncertainty as to the existence or extent of risks to human health, the European institutions may, because of the precautionary principle, take protective measures without having to wait until the reality and seriousness of those risks become fully apparent. ¹⁷ In this sense, precaution can be defined as a principle of anticipated action, which – in a context of risk and uncertainty for the environment and public health – requires the competent authorities to anticipate the traditional time for the adoption of a measure to protect the environment and public health. ¹⁸ This means that decision-makers shall not wait until the risk is certain, from a scientific point of view, but shall act in advance, when the risk is still uncertain.

As recalled by the CJEU in the Blaise case, ¹⁹ the precautionary principle is the cornerstone of Regulation no 1107/2009. Namely, Article 1(4) states that Regulation no 1107/2009 shall be based on the precautionary principle to ensure that active substances or plant protection products placed on the market do not adversely affect human and animal health or the environment. This also means that, according to Article 1(4) of Regulation no 1107/2009, Member States must apply the precautionary principle where there is scientific uncertainty regarding risks to human and animal health or the environment.

Therefore, contrary to what the Administrative Tribunal stated in its judgment, Article 191 TFEU and Regulation no 1107/2009 make no distinction between the implementation of the precautionary principle by the Member State Rapporteur and by the Member State belonging to the same zone, granting such application based on the assessment made by the Member State Rapporteur. In both cases, as stated by the CJEU in the Blaise case, ²⁰ the Member States shall, first, identify the potentially negative consequences for health of the use of the concerned plant protection products and, second, make a comprehensive assessment of the risk to health based on the most reliable scientific data available and the most recent results of international research. ²¹

It follows that the difference between the tasks performed by the Member State Rapporteur and the other Member States belonging to the same zone does not lie in the application of the precautionary principle but in the different degrees of assessment that these Member States carry out with regard to the application for the authorisation of a plant protection product. On the one hand, under Article 36(1) of Regulation no 1107/2009, the Member State Rapporteur shall make an independent, objective and transparent assessment of the application in the light of current scientific and technical knowledge. On the other hand, pursuant to Article 36(3) of Regulation no 1107/2009, the other Member States belonging to the same zone shall not make a separate evaluation of the plant protection product concerned but shall grant or refuse its authorisation based on the conclusions of the assessment of the Member State Rapporteur, except if, by relying on the precautionary principle, they consider that the authorised product poses an unacceptable risk to human or animal health or the environment.

Against this backdrop, if, as already announced by the Luxembourg State, new decisions concerning the authorisation of glyphosate-based products will be taken in the coming months, the analysis provided in this case note might provide some insights, allowing us to better structure and motivate, in light of EU law, a potential new ban of such products. These insights might also prove to be useful for other Member States that might decide, by following the example of Luxembourg, to ban in their territory glyphosate-based products.