By Decree No. 2018-675 of July 30, 2018, France banned the use of five active substances from the neonicotinoid family: acetamiprid, clothianidin, imidacloprid, thiacloprid, thiamethoxam, based on the fourth paragraph of Article 5 of Directive (EU) 2015/1535 of September 9, 2015, and not on Regulation (EC) No. 1107/2009 of October 21, 2009. It informed the European Commission on February 2, 2017 of this project. The Commission responded on August 3, 2017 to the notification of this project. It also prohibits by three implementing regulations of 29 May 2018 (2018/783, 2018/784 and 2018/785) the use of three of these active substances (imidacloprid, clothianidin and thiamethoxam).

The Union des Industries de la Protection des Plantes (Crop Protection Association) is requesting the annulment of decree n°2018-675. The french Council of State considers that the lawfulness of that decree depends on whether, under Article 71 of Regulation No 1107/2009, the French Republic was entitled to adopt that decree as an emergency measure after issuing a communication based on Directive 2015/1535, even though the Commission had adopted a series of measures relating to the use of some of the neonicotinoids covered by that decree. Accordingly, it stayed its ruling on June 28, 2019, until the Court of Justice of the European Union (CJEU) answers the questions for a preliminary ruling that it referred to it.

By its judgment of October 8, 2020, the CJEU rules that the communication, made under Article 5 of Directive (EU) 2015/1535, of a national measure prohibiting the use of certain active substances falling within the scope of that regulation must be regarded as the official provision of information on the need to take emergency measures within the meaning of Article 71(1) of Regulation (EC) No 1107/2009 where :
- (1) that communication contains a clear presentation of the evidence showing, first, that those active substances are likely to constitute a serious risk to human or animal health or to the environment and, second, that that risk cannot be satisfactorily controlled without the adoption, as a matter of urgency, of the measures taken by the Member State concerned,
- (2) and where the European Commission failed to ask that Member State whether that communication must be treated as the official provision of information under Article 71(1) of that regulation.

It also ruled that the Commission's implementing regulations (EU) 2018/783, 2018/784 and 2018/785, relating to the conditions of approval of the active substances imidacloprid, clothianidin and thiamethoxam, cannot be regarded as measures taken by the European Commission in response to the French Republic’s communication of 2 February 2017, as they were not adopted on the basis of Articles 69 or 70 of Regulation 1107/2009, but on the basis of other provisions of this regulation.

Finally, it considers that if, following official information from a Member State of the need to take emergency measures to prohibit the use of a product or an active substance, the European Commission does not take such measures, a Member State may take provisional protective measures until the adoption of Community measures.

Following the CJEU's response, the French Council of State rejected on July 12, 2021 the annulment request filed against Decree No. 2018-675 (for more information see on the case on our website: 424627).