no derogation possible from EU ban

No derogation is possible from the European ban on seeds treated with neonicotinoids, including in the exceptional circumstances invoked to protect beets, the EU justice ruled on Thursday, compromising the “emergency authorizations” granted by several countries including France. The European Union has banned since 2018 the use in open fields, for all crops, of three neonicotinoids (clothianidin, thiamethoxam and imidacloprid), accused of accelerating the massive decline of bee colonies.

“Emergency authorisations” adopted by 11 EU states

However, 11 EU Member States have adopted “emergency authorisations” to deal with the drop in their yields in the face of diseases, including Belgium and France – which was preparing to renew its derogation for the third year. Seized of the case of six derogations adopted in the fall of 2018 by Belgium, concerning in particular seeds, the Court of Justice of the EU (CJEU) deemed them illegal.

Admittedly, a provision allows Member States to authorize on a derogatory and temporary basis the use of pesticides containing substances banned in the EU, “in exceptional circumstances, when a threat compromising plant production or ecosystems cannot be controlled by other reasonable means”. But this provision “does not allow derogation from the regulations expressly aimed at prohibiting the placing on the market and the use of seeds treated with the aid of such products”, judges the Court, whose judgments are binding on the jurisdictions of the Twenty -Seven.

Favor insecticide methods “low in pesticide intake”

The NGOs that have taken legal action argued that these neonicotinoids “are being increasingly used through the technique of seed coating” and, “instead of being sprayed on crops, they are therefore preventively applied to seeds before sowing, regardless of the proven presence or not of the insects they are intended to eliminate”.

However, the Member States are required to give preference to insecticidal methods “low in pesticide content”, or even “non-chemical” when possible, and to use “practices and products presenting the lowest risk for human health and the environment among those available”, insists the Court.

The Minister of Agriculture was in favor of a new derogation

In France, Parliament had authorized the temporary return of neonicotinoids at the end of 2020, to come to the aid of the beet sector, whose yields had been drastically reduced by jaundice, a disease transmitted by green aphids. The law specified that derogations could only be granted, until July 2023, for sugar beet seeds. The French Minister of Agriculture Marc Fesneau said in December that he was in favor of a new derogation, after those of 2021 and 2022, “to fight effectively” against the proliferation of green aphids “waiting for alternative solutions”.

In Germany, exemptions for the use of neonicotinoids were granted on around a third of beet areas in 2021, according to the sector federation. Out of 14 pesticides banned by Brussels, 236 derogations have been adopted across the EU over the past four years, half concerning neonicotinoids, without the States justifying the need for them, estimates the association PAN Europe, co-applicant before the CJEU. “The CJEU clearly establishes that substances banned in the EU for health or environmental reasons cannot be reintroduced in a roundabout way at state level, a practice that has become common,” observes NGO lawyer Antoine Bailleux.

“A great day for pollinators in Europe”

These derogations “do not present an analysis of the exceptional nature of the situation encountered and the chemical and non-chemical alternatives do indeed exist”, reacted Thursday the Belgian ecologist deputy Séverine de Laveleye. PAN Europe Director Martin Dermine hailed “a great day for pollinators in Europe”, which “reminds that the law must take precedence over the interests of the pesticide industry and agribusiness lobbies”.

The same satisfaction, in France, of the League for the Protection of Birds (LPO), which announced in the wake of not participating in the meeting on Friday of the French Neonicotinoid Monitoring Council, “so as not to become complicit in a decision contrary to law”. The NGO Agir pour l’environnement and the Confédération paysanne union had recently slammed the door of this advice, considering that “the risk of resumption of the spread of the jaundice virus is almost non-existent” for the 2023 season and therefore could not not justify a new derogation.