State of the Grand Duchy of Luxembourg v. Bayer

August 29, 2022
Final judgment
Luxembourg, Luxembourg

Luxembourg Government
Patrick Kinsch, Corinne Lepage

Glyphosate, Clinic Up, Roundup
Reversing the trial court's ruling that the government's decisions to withdraw approvals for full formulations of glyphosate-based pesticides are illegal
Administrative Court of the Grand Duchy of Luxembourg of Luxembourg, Luxembourg

March 30, 2023
Application rejected. Cancellation of the withdrawal of the marketing authorization for glyphosate-based products.

In a decision of March 30, 2023, the Administrative Court of the Grand Duchy of Luxembourg declared illegal the decisions taken by Luxembourg to withdraw the authorizations of complete formulations of glyphosate-based pesticides. The Court states that the Government could ban glyphosate-based herbicides (GBHs), if it complied with the rules set out in Article 44 of Regulation (EC) No 1107/2009 concerning the placing of plant protection products on the market, which it did not do in this case.

Luxembourg was the first state in the European Union to ban glyphosate. A letter was sent to the Bayer subsidiary on October 14, 2019, which holds the 8 authorizations for glyphosate-based products on the market, to notify it of the Luxembourg government's intention to withdraw glyphosate-based products from the market. On January 22, 2020, the Minister of Agriculture then took, 8 decisions to withdraw the marketing authorization for each complete glyphosate-containing formulation and to grant a period of time to clear stocks until June 30, 2020, while allowing existing stocks to be used until December 31, 2020.

Bayer filed an appeal against the withdrawal of its marketing authorizations, arguing that the ban was contrary to European Union law. Its claims were accepted in the first instance and confirmed by the appeal judgment of the Administrative Court of the Grand Duchy of Luxembourg.

Article 44 of Regulation (EC) No 1107/2009 specifies the conditions under which a Member State may withdraw or modify the national authorization of a complete pesticide formulation. Furthermore, the Luxembourg government did not notify the Commission of its intention to withdraw, nor did it give the company holding the authorization the opportunity to submit comments or additional information as required by Article 44(2). Furthermore, it did not motivate the ban with new scientific information demonstrating that GBH does not meet the safety criteria of the pesticide regulation. The only motivation provided to the registrant was that it was a political decision of the government coalition. A justification that was not sufficient for the Court under the regulation.

The Court also refers to Article 36(33), which allows a Member State to consider that the product in question still presents an unacceptable risk, despite the marketing authorization and assessment of the reporting Member State, to human or animal health or even to the environment "due to its particular environmental or agricultural characteristics". However, neither in the ministerial letter of October 14, 2019, intended to officially inform the company of the factual and legal elements that lead it to act under Article 44 of Regulation 1107/2009, nor in Article 9 of the Grand Ducal Regulation of June 8, 1979, "the State did not state the slightest indication in accordance with Article 36(3) of the same European regulation, nor subsequently, at the level of the eight disputed ministerial decisions, nor yet in the course of the litigation procedure. [...] The Court finds that such justification is lacking in the Ministry's decision." (p.11 of the Administrative Court's decision).