Compensatory Application Provisions of Plant Protection Products to Protect Biodiversity

Abstract

For the protection of biodiversity, the German Federal Environmental Agency (UBA) pursues the goal of establishing compensation areas to balance unavoidable indirect effects on nature and the environment caused by the application of plant protection products. Whether there is a legal basis for this within either European Union or national law is one of the most debated and pressing issues currently in the authorisation procedure for plant protection products in Germany. The purpose of this article is to provide a comprehensive legal assessment of whether it is legally permissible to make plant protection product authorisations contingent to compensatory application provisions to protect biodiversity.

I. Introduction

Plant protection products ¹ include inter alia products for weed control (herbicides), ² products against fungal diseases (fungicides) ³ and products against insects (insecticides). ⁴ Before a plant protection product can be placed on the market or used in a Member State, it first must have been authorised by the specific Member State. Regulation (EU) No 1107/2009 ⁵ lays down the requirements, procedures and timeframes for the authorisation of plant protection products in the European Union (EU). ⁶ In Germany, the Federal Office of Consumer Protection and Food Safety (BVL) is responsible for the authorisation of plant protection products. According to Section 34 German Plant Protection Act (PflSchG), the BVL decides on the applications in consultation with the Federal Institute for Risk Assessment (BfR) and the Federal Research Centre for Cultivated Plants (JKI) and in agreement with the Federal Environmental Agency (UBA). ⁷

Since November 2018, the UBA has made its agreement concerning the authorisation of plant protection products subject to the condition that compensatory application provisions are laid down in the authorisations to protect biodiversity (so-called biodiversity provisions). This requirement stipulates that plant protection product users should maintain ecological compensation areas.

The recent push by the UBA can be traced back to its “5-point programme for sustainable plant protection” ⁸ from January 2016, which formulates the goal of mitigating unavoidable indirect effects on biodiversity ⁹ caused by the use of chemical plant protection products in Germany’s agricultural landscape. Indirect effects according to this programme include, for instance, a sharp reduction in the food supply of the wild fauna and the population decline that this entails through the destruction of arable weeds and field insects brought about by the use of plant protection products. These indirect effects are to be compensated for in the future by creating ecological compensation areas. To achieve this, it should become a requirement for the use of plant protection products with a high risk of indirect effects on biodiversity that ecological compensation areas without the use of plant protection products, such as fallow land, flower strips and untreated thin seeds (so-called biodiversity compensation areas), are reserved at the farm level.

Due to legal concerns raised by the BVL and different Federal ministries, ¹⁰ the UBA has commissioned a legal opinion to strengthen its own legal position, which concludes that the introduction of compensation areas for biodiversity protection is indeed lawful. ¹¹ In November 2018, the UBA then issued its agreement under Section 34(1) no. 3 German Plant Protection Act (PflSchG) ¹² for the first time on the condition that the authorisation of the affected plant protection product must be accompanied by the application provisions Biodiv 1 ¹³ and Biodiv 2 ¹⁴ (collectively, the so-called biodiversity provisions). ¹⁵ The application provisions proposed by the UBA shall not become binding until 1 January 2020. The UBA cites Article 3(2) and (4), Article 36(3) Regulation (EC) No 1107/2009, as well as Section 36(1) of the German Administrative Procedures Act (VwVfG) as a legal basis.

In essence, the biodiversity provisions obligate farmers to set aside at least 10% of their overall agricultural land as biodiversity compensation areas. Other areas than those treated with the plant protection product in question are to be set aside as compensation areas. This means that farmers either have to leave land to “planned fallow” or minimise agricultural activities, such as by providing unused buffer strips, weed protection fields, increasing seed row spacing, uncultivated pocket circles in a field and/or flowering areas. ¹⁶ When considering the eligible compensation measures, the UBA uses ecological value as a key differentiator. ¹⁷ Biodiversity compensation areas cannot be treated with the plant protection product in question, or with any plant protection product for that matter. ¹⁸ What this ultimately means is that farmers will be obliged to refrain from using 10% of their total land area for conventional farming purposes.

There are concerns raised as well in German literature ¹⁹ over the lawfulness of the biodiversity provisions. ²⁰ Even the BVL, as the competent authority, also remains convinced that the biodiversity provisions are unlawful as they lack a legal basis. ²¹ Meanwhile, this was confirmed by the Administrative Court of Braunschweig in September 2019. ²² A referral to the European Court of Justice (ECJ) regarding the interpretation of Regulation (EC) No 1107/2009 has not been made by the Administrative Court of Braunschweig. ²³ Against this backdrop, the present article examines the question of whether national authorities, when authorising plant protection products, are in a position to mandate the provision of ecological compensation areas for biodiversity protection.

II. Legal basis for the consideration of biodiversity effects

First of all, the question arises as to whether national authorities are entitled, when authorising plant protection products, to assess the impact of plant protection products on biodiversity and the ecosystem. ²⁴ On the one hand, Article 29(1) lit. e), in conjunction with Article 4(3) lit. e) iii) Regulation (EC) No 1107/2009, stipulates that effects on biodiversity and the ecological system must be considered for plant protection product authorisations. According to Article 3 no. 29 of Regulation (EC) No 1107/2009, the regulation defines the term “biodiversity” to mean the variability among living organisms of any origin, including terrestrial, maritime and other aquatic ecosystems, as well as the ecological interrelations to which they belong; this variability can encompass intraspecies and interspecies variability, in addition to ecosystem diversity.

On the other hand, the consideration of biodiversity in the authorisation of plant protection products is also associated with restrictions. According to the explicit wording of Article 4(3) lit. e) iii) Regulation (EC) No 1107/2009, the impact on biodiversity and the ecosystem should only be considered where scientific methods are available that are accepted by the authority. ²⁵ The authority, as defined by the Regulation under recital no. 12 of Regulation (EC) No 1107/2009 and Article 6 lit. f) Regulation (EC) No 1107/2009, is the European Food Safety Authority (EFSA). This means that biodiversity shall only be taken into account in a national authorisation procedure if an EFSA-accepted scientific methodology is available to assess the effects on the environment. However, the EFSA has to this day not accepted such a scientific methodology for assessing the impact of plant protection products on biodiversity and the ecosystem. ²⁶ Therefore, as long as there is no accepted scientific assessment method, the opinion of national authorities on the effects on biodiversity and the ecosystem cannot be taken into account in a national authorisation procedure. ²⁷

National authorities are not in a position to create their own scientific assessment methods to account for unacceptable effects on biodiversity and the ecosystem. ²⁸ According to the unambiguous provisions of Article 4(3) lit. e) Regulation (EC) No 1107/2009, the acceptance of methods is solely the responsibility of the EFSA and not that of the national authorities, as the latter would defeat the purpose of the harmonisation of the plant protection product authorisation procedure envisioned by Regulation (EC) No 1107/2009 (cf. recital no. 9 Regulation (EC) No 1107/2009). Article 1(3) Regulation (EC) No 1107/2009 stipulates that the objectives of the plant protection product authorisation regulation are to be achieved by harmonising the provisions on the marketing of plant protection products. According to recital no. 25 of Regulation (EC) No 1107/2009, the aim of the regulation is to harmonise the criteria, procedures and conditions for plant protection product authorisation.

Plant protection product authorisations are conclusively covered by Regulation (EC) No 1107/2009, which provides for full harmonisation. ²⁹ Regulation (EC) No 1107/2009, in conjunction with Regulation (EC) No 546/2011, ³⁰ outlines a definitive system for the assessment of plant protection products, which was already endorsed by the previous Directive 91/414/EEC. ³¹ Regulation (EC) No 1107/2009 and Regulation (EC) No 546/2011 define uniform EU standards for the assessment of plant protection products and do not leave the Member States any discretion at national level. In terms of the recognition of a scientific methodology for the assessment of unacceptable effects on the environment, Regulation (EC) No 1107/2009 incorporates no flexibility clauses whatsoever for the Member States; instead, it expressly allocates that competency to the EFSA, bar none. In this context, Article 4(3) lit. e) of Regulation (EC) No 1107/2009 has a blocking effect.

Since no assessment methods have been stipulated by the EFSA so far, the national authorities are entitled under Article 29(1) lit. e), in conjunction with Article 4(3) lit. e) Regulation (EC) No 1107/2009, at best to examine whether a plant protection product has unacceptable environmental effects. However, the national authorities cannot take into account the effects on biodiversity and the ecosystem in a plant protection product authorisation procedure, as this would undermine the explicit will of the European legislator, regardless of the rather broad definition of “environment” given in Article 3 no. 13 Regulation (EC) No 1107/2009. By using the express reservation in Article 4(3) lit. e) Regulation (EC) No 1107/2009 (“where”), the legislator has made it very clear that the effects on biodiversity and the ecosystem shall only be taken into account if and when an EFSA-accepted scientific methodology is available to assess these effects. Otherwise, the objectives of Regulation (EC) No 1107/2009 would be defeated (cf. recitals no. 8 and 9 Regulation (EC) No 1107/2009). The legislator has laid down conclusive provisions on biodiversity conservation. Due to past experience, particularly with Directive 91/41/EEC, the competence was deliberately transferred exclusively to the EFSA.

III. Legal basis for compensation areas for the protection of biodiversity

According to the reservation of law provided for in Article 20(3) Basic Law for the Federal Republic of Germany (GG) and Article 52(1) p 1 CFR, ³² the adoption of biodiversity provisions can only be lawful with a sound legal basis at hand. ³³ An incidental provision to an authorisation decision that obliges users to forego the use of 10% of their agricultural land will prevent these users from utilising their property. Since it touches on rights guaranteed under Basic Law (see Section VII), it requires a specific legal basis to be admissible. ³⁴ Application provisions interfere with the fundamental right to professional freedom guaranteed by Article 12 GG and Articles 15(1), 16 CFR, ³⁵ the freedom of ownership guaranteed by Article 14(1) GG and Article 17(1) CFR and, lastly, the universal freedom of action guaranteed by Article 2(1) GG. As they provide for interventions in fundamental rights, application provisions establish adverse incidental provisions to a plant protection product authorisation that require, according to Article 52(1) CFR, Article 20(3) GG and Section 36(1) VwVfG, a legal basis.

1. No legal basis provided in Regulation (EC) No 1107/2009 and national plant protection legislation

Neither Article 31 and Article 36(3) Regulation (EC) No 1107/2009 nor Section 36(1) PflSchG establish a legal foundation on which to base the biodiversity provisions. ³⁶ Article 31 of Regulation (EC) No 1107/2009 sets out the rules for the content of an authorisation. Pursuant to Article 31(2) of Regulation (EC) No 1107/2009, an authorisation shall specify, inter alia, the requirements on the “use” of the plant protection product. Article 3 Regulation (EC) No 1107/2009 gives no legal definition of the term “use”. Article 55 subparagraph 2 Regulation (EC) No 1107/2009 outlines the proper conduct following the principles of good plant protection practice and observing the requirements stated on the label and established by Article 31 Regulation (EC) No 1107/2009. All provisions of Regulation (EC) No 1107/2009 that contain the word “use” have in common that the term refers to the application of the plant protection product as such in a specific application area; that is, in the literal meaning of the word. ³⁷ The text of Article 31(2) Regulation (EC) No 1107/2009 explicitly refers to the use of the concrete, applied-for plant protection product. This is further illustrated by Article 31(3) and (4) Regulation (EC) No 1107/2009, in which it is stated that all requirements directly refer to the use of the plant protection product itself, including the dosage, period of application, maximum number of treatments per year, the intervals between applications, labelling and/or packaging. All of the applications are directly linked to the use of the plant protection product as such.

On the other hand, Article 31 of Regulation (EC) No 1107/2009 does not provide a single requirement relating to possible compensatory measures and/or a prohibition of agricultural operations. Article 31 Regulation (EC) No 1107/2009 also does not provide any measures that are not directly related to the use of a plant protection product itself, such as providing for compensation areas or foregoing the treatment of compensation areas with plant protection products. Taken together, Article 31 Regulation (EC) No 1107/2009 does not define or justify an obligation to take compensatory action.

Article 6 Regulation (EC) No 1107/2009, too, merely contains stipulations concerning the use of plant protection products in the strict sense. ³⁸ All requirements and restrictions pursuant to Article 6 Regulation (EC) No 1107/2009 apply to the plant protection product, its use or the use of the active substance itself. What are not being stipulated are duties that are not directly linked to the use of the product. ³⁹

With this being the case, Regulation (EC) No 1107/2009 only contains provisions that are directly related to the use of the plant protection product. Statutory obligations that are not directly related to the use of the plant protection product in a specific application area are non-existent to Regulation (EC) No 1107/2009. The Regulation does not uphold an obligation of the user to take compensation measures, to provide for compensation areas or to forego pesticide use in areas that are not directly linked to the specific use.

The same can be concluded from Article 36(3) Regulation (EC) No 1107/2009. Member States are entitled, within the scope of the mutual recognition procedure under Article 40 et sqq. Regulation (EC) No 1107/2009 ⁴⁰ and in the zonal authorisation procedure under Article 36(2) Regulation (EC) No 1107/2009, ⁴¹ to define other risk mitigation measures derived from the specific application provisions. Then again, Article 31 paras 3 and 4 Regulation (EC) No 1107/2009 only provides for application provisions in the strict sense (ie measures that relate directly to the use of the plant protection product). In addition, what is being referred to here is merely the use of the plant protection product as such; that is, the use in a specific area of land.

Moreover, the biodiversity provisions do not represent risk mitigation measures as provided for in Article 36(3) Regulation (EC) No 1107/2009. By the text of Article 36(3) Regulation (EC) No 1107/2009 alone, the European legislator expressly states that the purpose of risk mitigation measures is to “mitigate a risk”. The aim of a risk mitigation measure is to reduce the risk arising from the application of a plant protection product in the treated area of land. ⁴² The idea is to prevent unacceptable risks to human and animal health or the environment. Restricting the use of a plant protection product is supposed to minimise the risk, or even eliminate it outright. Yet, this is exactly what the biodiversity provisions are not supposed to do. The point here is not to control the risk relating to the corresponding treated area, but rather to achieve a compensation in another area. A general obligation to leave certain areas untreated in order to obtain compensation for a treated area would not mitigate the risk associated with that specific plant protection product. Therefore, possible risks arising from the use of the plant protection product in question would not be eliminated as the biodiversity provisions do not provide complementary rules on the use of the plant protection product itself. Hence, the idea of the biodiversity provisions is not to mitigate or exclude a risk, but rather to counterbalance it (ie compensate the unavoidable indirect biodiversity effects elsewhere). ⁴³ The application provisions are intended to serve as compensatory measures to compensate the unavoidable indirect effects on biodiversity. Rather than offering risk mitigation, they constitute a compensatory measure: that is, the provision of ecological compensation areas. Although compensation measures represent a well-known concept in environmental law, ⁴⁴ they require an explicit legal basis by the parliamentary legislator. Neither Regulation (EC) No 1107/2009 nor the PflSchG provides a legal basis for the establishment of compensatory measures.

When a Member State wishes to create specific national provisions of use, in doing so it will have to remain within Community law (Article 36(3) Regulation (EC) No 1107/2009). This is expressly stated in the text (“subject to Community law”). In other words, the Member States have in fact no general legislative power. A right of the Member States to establish its own provisions of use with no direct relation to the use of the plant protection product in question or to establish application provisions beyond EU law cannot be derived from Regulation (EC) No 1107/2009. Since the biodiversity provisions made the authorisation of a plant protection product conditional on compliance with obligations that are not directly linked to that plant protection product, these application provisions are in violation of EU law.

In addition, the German authorities cannot invoke Section 36 PflSchG regardless of the application restriction under Union law as per Article 4(3) TEU, Article 291(1) TFEU. ⁴⁵ While Section 36(1) PflSchG stipulates that the BVL may in fact establish application provisions, the application provisions contained therein are restricted as per Section 36(1) sentence 2 PflSchG to the application, packaging and group of end users. Generally, application provisions as defined by the PflSchG are rules that directly refer to the way in which a plant protection product is used, such as the determination of areas and safety zones, the group of qualified end users or packaging regulations (cf. Sections 12, 13, 36 PflSchG). Section 36(1) no. 3 PflSchG, as well, cannot be construed to establish a right to create compensation areas. An obligation to provide compensation areas, a general duty to forego the use of authorised plant protection products or a prohibition of conventional agriculture in certain areas of land is not outlined in either Section 36 PflSchG nor in the Plant Protection Act in general. Consequently, a legal basis for mandating the creation of biodiversity compensation areas is not provided under national law either.

2. Alleged legal basis not definitive

Neither EU law nor German law offers an adequate legal basis for mandating biodiversity provisions. ⁴⁶ Seeing as the application provisions touch on fundamental rights (see Section VII), they are subject to particularly strict requirements on the reservation of law. The legal basis must have sufficient quality. It must be sufficiently accessible, accurate, and foreseeable in its application so as to rule out any risk of arbitrariness, as per consistent case law of the ECJ. ⁴⁷ The contents and limits of property under Article 14(1) sentence 2 GG must be defined “by the laws”. It is the duty of the legislator to establish the prerequisites for placing restrictions on the use of one’s property through a power that is adequately defined in terms of content, purpose and extent. ⁴⁸ Due to the fundamental nature of such an intrusion, an obligation to establish compensation areas requires an explicit legal basis.

Neither Section 36 PflSchG nor Article 36(3) Regulation (EC) No 1107/2009 nor Article 31 Regulation (EC) No 1107/2009 specifically stipulates such content. At no point do the provisions establish a prohibition of agricultural operations by creating ecological compensation areas. ⁴⁹ Article 36(3) Regulation (EC) No 1107/2009 also does not define the extent of a compensatory measure in a definitive, sufficiently foreseeable manner. This would not sufficiently ensure that the legislator, and not the executive, takes the essential decision on the violation of fundamental rights. A line must be drawn between the content of the application provisions and the relevant empowering provision in Section 36 PflSchG and Article 31 Regulation (EC) No 1107/2009. A legal basis for a compensatory measure would have to set forth both the modalities and the extent (ie the content of the compensation) in a concrete and adequately defined and foreseeable manner.

According to this, there is a lack of a legal basis for establishing compensatory application provisions for the protection of biodiversity.

IV. No legal basis for the mandated documentation duty

There is also no legal basis for the documentation requirement according to the application condition Biodiv 2. Documentation duties are conclusively covered by Article 67(1) Regulation (EC) No 1107/2009 in conjunction with Section 11 PflSchG. Pursuant to Article 67(1) sentence 2 Regulation (EC) No 1107/2009, professional end users of plant protection products must maintain records of the products they use for at least three years; the records must state the name of the plant protection product, time of application, dosage, area of land treated and the crop treated with the product. The requirement to maintain records is explicitly restricted to areas of land subject to pesticide use. On the other hand, Article 67(1) sentence 2 Regulation (EC) No 1107/2009 does not provide for record requirements for areas not subject to pesticide use. The record requirement pursuant to the application condition Biodiv 2 significantly exceeds the record requirements under Article 67(1) Regulation (EC) No 1107/2009 in that it mandates users to document that the counterbalancing portion of biodiversity areas existed at the time of application.

V. No reasonable assessment methods

There is presently a lack of a suitable methodology to assess the impacts of indirect effects. The method proposed by the UBA lacks sufficient detail. ⁵⁰ The UBA has announced that a large part of all herbicides and insecticides will be affected by the biodiversity provisions as compensatory measures, ⁵¹ while leaving the question as to which product characteristics could warrant a biodiversity assessment entirely unanswered. Just how toxic or selective does a plant protection product have to be so that it will fall under the biodiversity provisions?

Judging from the UBA’s appraisal, ⁵² the intention is to impose the application provisions for all plant protection products with a use rate that has an effect of at least 50% on the relevant ecotoxicological test organisms. ⁵³ It appears to be the UBA’s intention to regard all conceivable biodiversity effects as justifying the requirement of having at least 10% compensation areas, if these effects amount to 50% at minimum. Having said that, the UBA fails to specify at what point a “high risk for indirect effects” should be assumed. It seems as though each and every biodiversity disruption that the UBA classifies as such could serve as a possible justification. ⁵⁴ This is vague.

Moreover, the application provisions proposed by the UBA are also impractical. For end users, it is not clear which areas of land qualify for recognition as “biodiversity areas”, regardless of the UBA’s accompanying publication. ⁵⁵ Biodiversity compensation areas cannot be declared at random; instead, they must be created to blend into the landscape to allow for the development of habitat networks and coverage of multiple habitats. ⁵⁶ The Hötker et al (2018) ⁵⁷ study is also not sufficient to evaluate the effectiveness of eligible biodiversity areas. The study has not been validated yet, nor has it been examined and evaluated in detail for significance by experts in the field. In addition, the weight factors ⁵⁸ elaborated by the UBA for the different compensation measures are arbitrary.

Eligible areas of land cannot be determined by users or by the regulatory authorities to any degree of legal certainty. Users of plant protection products cannot be expected to face this legal uncertainty as it will, in the case of misjudgment, put them at the risk of committing an administrative offence according to Section 68(1) no. 7 PflSchG or of suffering a drastic loss of entitlement to their Common Agricultural Policy (CAP) payments under Article 99 Regulation (EU) No 1306/2013 ⁵⁹ in the face of the inevitable cross-compliance violation.

VI. National compensatory application provisions defeat the purpose of Regulation (EC) No 1107/2009

The implementation of biodiversity compensation areas at a purely national level runs counter to the goals of Regulation (EC) No 1107/2009. ⁶⁰ The purpose of the Regulation (EC) No 1107/200 is to harmonise the diverging national authorisation procedures and requirements, including the varying authorisation requirements. According to recital no. 9 of Regulation (EC) No 1107/2009, the Regulation deliberately includes harmonised rules for the approval of active substances and the placing on the market of plant protection products in an effort to remove as far as possible obstacles to trade in plant protection products existing due to the different levels of protection in the Member States. The purpose of the Regulation is to increase the free movement of such products and the availability of these products in the Member States. To make the application of the new provisions more straightforward and to ensure a uniform application across the Member States, the format of a regulation was chosen deliberately by the European legislator. According to recital no. 25 of Regulation (EC) No 1107/2009, the criteria, procedures and conditions for the authorisation of plant protection products are to be harmonised for the sake of predictability, efficiency and consistency, as well as taking into account the general principles of the protection of human and animal health and the environment. Regulation (EC) No 1107/2009 is supposed to facilitate harmonisation, acceleration and efficiency. ⁶¹

These objectives would all be undermined if individual Member States were allowed to implement restrictions that are not directly linked to the use of the plant protection product as such. ⁶² A statutory obligation to establish biodiversity compensation areas only in Germany would be entirely contrary to the EU harmonisation effort. Moreover, a right of the national authorities to establish additional requirements undermines the principle of the zonal authorisation procedure under Articles 33 et sqq. of Regulation (EC) No 1107/2009, the mutual recognition procedure under Articles 40 et sqq. Regulation (EC) No 1107/2009 and the permission of parallel trade under Article 52 Regulation (EC) No 1107/2009.

The UBA once again deviates from the administrative practice of other EU Member States. ⁶³ There are currently no other Member States imposing application provisions that force plant protection product users into providing for biodiversity compensation areas.

Furthermore, a purely national statutory obligation to establish compensation areas would substantially impair the efficiency of the European Internal Market. The efficiency of the European Internal Market is a factor that should not be underestimated (also cf. recital no. 9 Regulation (EC) No 1107/2009). It is the European Internal Market that forms the cornerstone for all of the economic interrelations within the EU, and it guarantees the flow of goods across the Member States. The purpose of the European Internal Market is to meld the economies of the EU Member States. According to statements from the European Parliament, the European Internal Market has already helped to create 2.77 million jobs, and it secures the industry an additional 233 billion euros annually. ⁶⁴ Article 1(3) of Regulation (EC) No 1107/2009 explicitly defines the better efficiency of the European Internal Market and improved agricultural production as being objectives of Regulation (EC) No 1107/2009. A purely national statutory obligation to establish compensation areas would violate the guarantee of the free movement of goods under Article 34 TFEU.

A purely national statutory obligation to establish biodiversity compensation areas will also put plant protection product users in Germany in a very disadvantageous position compared with users in other Member States. Plant protection product users in other EU Member States are not bound by any application condition mandating the provision for biodiversity compensation areas, meaning more favourable production conditions in other European countries versus Germany. More favourable production conditions, in turn, result in lower production costs for foreign farmers, allowing them to sell their products more cheaply than their German counterparts. This creates an unfair playing field for German farmers. The agricultural sector is faced with European and international competition. According to recital no. 8 to Regulation (EC) No 1107/2009, however, the Regulation is supposed to guarantee the Community’s competitiveness. A purely national statutory obligation to establish biodiversity compensation areas goes directly against this. This is why Article 40(2) subparagraph 2 TFEU explicitly stipulates a non-discrimination principle, ⁶⁵ which forbids discriminatory regulations between producers. ⁶⁶

VII. Biodiversity provisions interfere with fundamental rights

In addition, the biodiversity provisions interfere with both EU ⁶⁷ and national fundamental rights of users and manufacturers.

1. Interference with fundamental user rights

a. Right to property pursuant to Article 17(1) CFR and Article 14(1) GG

The biodiversity provisions interfere with users’ right to property under Article 17(1) CFR and Article 14(1) GG. Article 17(1) CFR places all material and immaterial rights and legal positions, if legitimately acquired, within the scope of the protection of property. ⁶⁸ Article 4(1) GG guarantees not only the protection of property as such, but also the discretionary power over private property. The biodiversity provisions include regulations on how a user’s property can be used. Farmers are deprived of the discretionary power over their own property, such as farmland. They lose the power to make independent decisions as to the intensity with which they cultivate their own farmland. Under the biodiversity provisions, users are in fact compelled to forego the use of 10% of their farmland, or not to engage in conventional agriculture. Farmers cannot make economically viable use of a biodiversity compensation area and are thus being restricted in how they use their property. An application condition obliging users to forego the agricultural use of not less than 10% of their farmland is tantamount to a grievous privation of existing legal positions.

This constitutes a massive interference with general fundamental rights. Farms will suffer a serious economic setback over the biodiversity provisions. Moreover, the biodiversity provisions also lead to a factual loss of compensatory payments. The funds of the European Agricultural Fund for Rural Development (EAFRD) provided through the Common Agricultural Policy (CAP) are supposed to support farmers who engage in sustainable and environmentally friendly farming. According to Article 28(2) of Regulation (EU) No 1305/2013, ⁶⁹ farmers can expect agri-environment and climate payments if they agree to voluntarily engage in projects involving one or several agri-environmental or climate obligations in specific agricultural areas. Under Article 28(3) Regulation (EU) No 1305/2013, however, the payments are granted inter alia only if the relevant minimum requirements for the use of plant protection products and other relevant mandatory requirements under national law go beyond those requirements. When farmers provide for compensation areas on account of the biodiversity provisions, the provision of such areas can then no longer be claimed to be an agri-environmental measure in the meaning of Article 28(3) of Regulation (EU) No 1305/2013, as it is not voluntary and farmers are merely complying with a national obligation.

The interference with Article 17(1) CFR and Article 14(1) GG to the detriment of the users is not justified. In view of the establishment of biodiversity provisions, the requirements provided for in Article 17(1) sentence 2 CFR and in Article 14(1) sentence 2 GG are not fulfilled. Neither European nor German plant protection product legislation offers a legal justification in the meaning of Article 17(1) sentence 2 CFR and Article 14(1) sentence 2 GG (see Section III).

b. Professional freedom pursuant to Articles 15(1), 16 CFR and Article 12(1) GG

The biodiversity provisions interfere with the users’ professional and entrepreneurial freedoms provided in Articles 15(1), 16 CFR and Article 12(1) sentence 1 GG. Articles 15(1), 16 CFR set forth a comprehensive guarantee of the freedom to conduct a business, protecting the professional freedom in terms of both the pursuit and the choice of a profession, as well as the entrepreneurial freedom to pursue an economic or business activity, which includes the freedom of contract and of competition, as well as the freedom to carry out a business, amongst other things. ⁷⁰

The establishment of biodiversity provisions touches on professional freedom. Under these rules, users are no longer free to exercise their profession, including the use of the concerned plant protection product, as they see fit. The rules restrict the farmers’ discretion in the use of plant protection products in the available areas of farmland and deny them the option to engage in 100% conventional or integrated farming. Farmers will therefore be restricted in the freedom to exercise their profession at their sole discretion.

In the light of the general tenor of Article 52(1) CFR, the interference with professional freedom and the freedom to conduct business is only justified as long as the restriction is established by law and the essence of the rights and freedoms remains intact. ⁷¹ The establishment of biodiversity provisions does not meet the requirements of Article 52(1) CFR and Article 12(1) sentence 2 GG. The establishment of the biodiversity provisions is devoid of any legal basis.

2. Interference with the manufacturers’ fundamental rights

The adoption of application restrictions also affects plant protection product manufacturers in their fundamental professional freedom guaranteed by Articles 15(1), 16 CFR and Articles 12(1), 19(3) GG. Plant protection product manufacturers are restricted in their professional and entrepreneurial freedoms because the use of their products is subject to the biodiversity provisions. The establishment of the biodiversity provisions aims to restrict the conditions of how the affected plant protection products can be used. Farmers could be influenced by these rules in their product choices because they are going to be more inclined to buy a plant protection product that is not subject to additional provisions. This will create a bias in farmers’ decision-making processes, and as a result will influence the market and competitiveness and put affected companies at a disadvantage. This is supported by the fact that product sales will be curtailed. Cultivated land is also supposed to be reduced by 10%, minimising total conventional farming operations significantly. Seeing that biodiversity compensation areas are no-pesticide zones, this will also lead to a decline in demand for the concerned plant protection products. The interference with the professional freedom guaranteed both under EU law and German Basic Law has no statutory legal basis.

3. Interference with Article 20 CFR and Article 3(1) GG

Furthermore, the establishment of biodiversity provisions interferes with the universal equality right under Article 20 CFR and Article 3(1) GG, for which there is no justification whatsoever. The obligation to set aside ecological compensation areas when using plant protection products interferes with Article 20 CFR and Article 3(1) GG in more ways than one. For example, smaller agricultural businesses are treated in the same way as larger ones because the obligation to set aside 10% of the overall area is going to affect all farms equally. At least 10% of the numerical value of a farm’s overall area of land must be set aside as biodiversity compensation areas, without regard to the size of the area to be treated with the plant protection product, which is disproportionate. Equal treatment means that smaller agricultural businesses are faced with a heavier economic burden. Users wanting to treat only a small portion of their farmland with the concerned product are more than disproportionally impacted than users who could apply the product to a larger part of their farmland.

In addition, German farmers are treated differently from their peers in other Member States because the latter are under no obligation to provide for biodiversity compensation areas when using plant protection products. This means more favourable production conditions and lower production costs in other European countries. It also means a violation of the agricultural non-discrimination principle as per Article 40(2) subparagraph 2 TFEU, which lays down the general principle of equality under Article 20 CFR. ⁷²

Moreover, mandating the provision of ecological compensation areas will result in the unequal treatment of different agricultural practices. For example, using a broadband herbicide would be liable to the biodiversity provisions, whereas other pest control methods such as flaming, ploughing or hot water would not. However, these alternative methods often have comparable effects like the ones the UBA seeks to avoid (ie the destruction of field weeds). Furthermore, alternative methods may be more damaging to non-target species. Ploughing not only eliminates weeds, but may also kill off animals living in the topsoil. It also decreases biological activity in the soil, which in turn will deteriorate the soil structure and contribute to erosion. ⁷³ In conclusion, the application of alternative pest control methods has the same or even more severe ecological effects. Hence, there are no objective grounds to warrant such unequal treatment.

Interference with Article 20 CFR and Article 3(1) GG is unjustified, as there is no legal basis.

VIII. Summary and outlook

At present, the effects on biodiversity in plant protection product authorisation procedures cannot be taken into consideration given the lack of an EFSA-recognised scientific methodology designed to assess unacceptable effects on the environment. On top of this, the biodiversity provisions are unlawful because they lack a legal basis. Neither the statutory provisions of Regulation (EC) No 1107/2009 nor those of the PflSchG provide that a plant protection product authorisation can be made subject to the condition that users must provide for ecological compensation areas. When the statutory requirements are met, applicants have an entitlement under Article 29(1) of Regulation (EC) No 1107/2009 that the applied-for authorisation is granted. ⁷⁴ This is a conditional decision. ⁷⁵

Due to the judgments by the Administrative Court of Braunschweig, ⁷⁶ the UBA has demanded since 23 December 2019 the application provision NTnew (arable flora) ⁷⁷ for the protection of non-target terrestrial plants (NTTPs) in field and the application provision NTnew (arable arthropods) ⁷⁸ for the protection of non-target arthropods (NTAs) in field instead of the biodiversity provisions. Legal proceedings are pending in Germany.

The Federal Government is currently discussing a so-called “insect protection strategy”. ⁷⁹ With a compensatory “refugial surface approach”, biodiversity should be protected. However, it is up to the European legislator to create a legal basis for the consideration of biodiversity effects in plant protection product authorisation procedures. Individual Member States have no discretionary power because the legislative competence was vested in the EU pursuant to Article 43(2), Article 114 in conjunction with Article 168(4) lit. b) TFEU and pursuant to the definitive, full harmonisation in the field of plant protection product authorisation. Regulation (EC) No 1107/2009 lays down final and binding provisions as to the details of legally possible application provisions. EU plant protection product law does not support the creation of compensation areas. A national law mandating the provision of compensation areas for the purpose of biodiversity protection would be in opposition to Union legislation. ⁸⁰ A solution can only be found at the European level.