France: French government liable for ecological damage. Victory for the living!

  July 6, 2023

On June 29, 2023, the Paris Administrative Court applied articles 1246 et seq. of the French Civil Code concerning compensation for ecological damage in the context of the appeal lodged in January 2022 by five associations, Notre affaire à tous, POLLINIS, Biodiversité sous nos pieds, Association nationale pour la protection des eaux et rivières Truite-Ombre-Saumon (ANPER-TOS), Association pour la protection des animaux sauvages et du patrimoine naturel (ASPAS), against the State’s shortcomings and inadequacies in terms of risk assessment and marketing authorization for phytopharmaceutical products, and the protection of biodiversity against the effects of these products.

The action for compensation for ecological damage is admissible, as the claimant associations have the protection of nature and the defence of the environment as their statutory object, in accordance with articles 1248 of the French Civil Code and L.142-1 of the French Environmental Code. The intervention of Phyteis, the union of pesticide companies, in support of the State was also admitted. At the hearing, the State’s arguments were presented only by the pesticide lobby, as no government representative was present.

Firstly, the Administrative Court recognized the existence of ecological damage, resulting from the widespread, diffuse, chronic and long-lasting contamination of water and soil by the active substances of plant protection products, the reduction in biodiversity and biomass due to the use of plant protection products, and the damage to the benefits derived by human beings from the environment.

Next, the Court recalls the legal framework applicable to the marketing of plant protection products within the European Union, and underlines the room for manoeuvre available to Member States in this process… :

Assuming that an active substance has been approved by the Community authorities, a Member State may still apply the precautionary principle, where there is scientific uncertainty as to the risks to human or animal health or the environment posed by plant protection products to be authorized on their territory. In France, for example, the Agence nationale de sécurité sanitaire de l’alimentation, de l’environnement et du travail (ANSES), which is competent in this area, has announced its intention to withdraw the authorizations for the main uses of plant protection products containing the active substance S-metolachlor, in February 2023.

The Court then ruled that the French State was liable for this ecological damage, due to its failure to comply with targets for reducing the use of plant protection products* and its disregard of its obligation to protect groundwater from the effects of plant protection products.

* The Court thus affirmed the normative scope of the targets for reducing the use of plant protection products that the French government had set itself through the Ecophyto Plans, but which it had never actually achieved. As in the case of climate justice, this control over the trajectory of public policies is also present. 

However, the State is not liable for the other grievances raised by the plaintiffs, namely:

  • The absence of a procedure for monitoring the effects of plant protection products
  • Lack of independence in ANSES’s assessment and authorization missions
  • Violation of the ban on marketing products presenting a risk of serious and irreversible damage to the environment
  • Failure to comply with the obligation to protect surface waters and with European objectives for improving the chemical quality of water;
  • Shortcomings in the implementation of the procedure for assessing and authorizing the marketing of plant protection products.
    • While the French government was indeed at fault in this respect, the Court did not incur liability on this point, as it considered the resulting ecological damage to be uncertain, given that the results of any additional studies required by ANSES were not known at the date of this judgment, and that it could not therefore be inferred with certainty that this would have the effect of significantly modifying the nature or number of plant protection products placed on the market.

Finally, the Court enjoined the French government to take all necessary measures before June 30, 2024:

  • to repair the ecological damage and prevent further damage by restoring consistency between the rate of reduction in the use of plant protection products and the trajectory set out in the Ecophyto plans
  • to restore and protect groundwater against the impact of plant protection products, and in particular against the risk of pollution.

Beyond that, in the event of non-compliance, penalty payments could be imposed, as in the French climate litigation, where a financial penalty of 1.1 billion euros has been requested by the plaintiff associations.

The French government has also been ordered to pay the associations the symbolic sum of one euro each in compensation for non-material damage, and to reimburse their legal costs.