Bayer v. French State

439133
February 27, 2020
Final judgment
France, Paris

Economic stakeholders
Bayer
State
No description

Administrative
Sulfoxaflor, Flupyradifuron, Insecticide, Neonicotinoid
Annul the decree of December 30, 2019, listing the active substances contained in plant protection products with identical modes of action to those of the neonicotinoid family, insofar as it aims to ban the active substances flupyradifurone and sulfoxaflor.
Council of State of Paris, France
Court

November 15, 2022
Negative
Decree No. 2019-1519 of December 30, 2019 listing the active substances contained in plant protection products with modes of action identical to those of the neonicotinoid family is annulled. The State will pay a sum of 3,000 euros respectively to the Union des industries de la protection des plantes and to Bayer SAS under Article L. 761-1 of the Administrative Justice Code.
EU law

The Council of State annuls the decree of December 30, 2019, which extends the scope of the ban on neonicontinioids to a list of pesticides with identical modes of action, such as flupyradifurone and sulfoxaflor for excess of power. The case is joined to 439210, initiated by the UIPP (Union des Industries de la Protection des Plantes). The French authorities did not have the power to adopt a general ban on the use of the active substances, flupyradifurone and sulfoxaflor, because of a defect in the demonstration of the risks of these substances, transmitted to the European Commission. The European regulation (No. 1107/2009) provides that a Member State may ban a substance approved in the EU in case of serious risk to human or animal health or the environment that can not be controlled otherwise than by prohibition. It shall inform the other Member States and the Commission by means of a clear presentation of the elements showing, on the one hand, that these active substances are likely to constitute a serious risk to human or animal health or to the environment and, on the other hand, that this risk cannot be contained satisfactorily without the adoption, as a matter of urgency, of the measures taken by the Member State concerned (judgment C-514/19). The French authorities, who notified the European Commission on August 3, 2018, of a draft decree listing the active substances targeted by the disputed ban, did not validly justify the health risk in light of the evidence provided. The studies were based on neonicotinoids, not on the active substances flupyradifurone and sulfoxaflor, which only have the same mode of action. The studies did not report on the active substance flupyradifuron with regard to the risk to pollinators. The French authorities did not have the power to adopt a general ban on the use of the active substances, flupyradifurone and sulfoxaflor, because of a defect in the demonstration of the risks of these substances, transmitted to the European Commission.