Glyphosate

Glyphosate is an active substance used for the production of an herbicide. Developed by Monsanto in the 1970s under the name “Roundup”, glyphosate is now the most widely used herbicide for both professional and personal use. In December 2017, the European Commission extended its marketing authorisation, which was about to expire for a period of 5 years. This renewal is highly controversial because of the potential carcinogenic effect of glyphosate, which is intensely debated in the scientific community.

The controversy around glyphosate

The International Agency for Research on Cancer (IARC, a body of the World Health Organisation) classified glyphosate as “probably carcinogenic”. However, the European Food Safety Authority (EFSA) and the European Chemicals Agency (ECHA) rejected IARC’s conclusions, minimizing the danger to humans posed by glyphosate. Moreover, the so-called Monsanto Papers, Monsanto’s internal documents declassified by the US courts in 2017, seem to show that, since 1999, Monsanto was aware of the carcinogenic effect of glyphosate and tried to impede the work of competent scientific bodies by disguising the data proving the danger of this product. According to these documents, Monsanto financed experts to carry out scientific research to defend the non-carcinogenic nature of glyphosate. Moreover, pursuant to the information provided by some newspapers, dozens of pages of the risk assessment report conducted by EFSA in relation to glyphosate are identical to passages in the application submitted by Monsanto to request the authorisation of this product.

The decision of Luxembourg to ban glyphosate

In this context of doubts and uncertainties, Luxembourg took a major decision. Starting from January 1^st 2021, Luxembourg will be the 1^st EU country to ban entirely any glyphosate’s containing products for both public and private (personal and professional) use. This measure, already anticipated in the 2018-2023 coalition agreement of the new formed Luxembourgish government, has been officially announced by the Minister of Agriculture, Viticulture and Rural Development, Romain Schneider, on January 16, 2020.

To allow the effective phase-out from glyphosate by the end of the year, the Luxembourgish government has set forth the following timeline:

• The marketing authorisation of plant protection products containing glyphosate will be withdrawn starting from February 1^st 2020;
• A period for using existing stocks of glyphosate will be granted until June 30, 2020;
• A grace period for the use of glyphosate’s products by professional or private users will be set until December 31, 2020;
• Starting from January 1^st 2020, financial sanctions will be applied in case of breach of the interdiction to use glyphosate’s products.

To facilitate the transition towards a glyphosate-free agriculture, Luxembourgish farmers will be granted with financial compensation per hectare of EUR 30 for arable land, EUR 50 for wine-growing land, and EUR 100 for fruit-growing. Moreover, winegrowers will be compensated between EUR 500 and 550 per hectare, depending on the slope of the land.

Even if the ban will be effective only at the end of the year, the Ministry, M. Romain Schneider, announced that, to date, 592 of the 1,005 Luxembourgish farms have already stopped the use of glyphosate’s products and, since the 2019-2020 crop year, all Luxembourg winegrowers have voluntarily renounced to the use of glyphosate.

The decision of the Luxembourgish government to ban glyphosate is not isolated, but it is part of a larger program (the National Action Plan for the Reduction of Plant Protection Products) which aims at reducing by 30% the use of the most dangerous and/or most used plant protection products (including glyphosate) by 2025 and by 50% all other plant protection products by 2030.

The hesitations at EU level

While Luxembourg is on course to become the first EU country to ban glyphosate, the controversy around the authorisation of this plant protection product still rages in Europe. In Austria, despite the vote adopted by the Parliament in July 2019 in favor of the ban of glyphosate, the implementation of this measure has been stopped for a “technicality” and is now suspended. In France, on 15 January 2019, the Tribunal administratif de Lyon (Administrative Court of Lyon, France) set aside the decision authorising the placing on the French market of Roundup Pro 360 containing the active substance glyphosate. Furthermore, in the last few months, the mayors of several municipalities have suspended and/or imposed significant limitations to the use of glyphosate, and their decisions are currently under judicial scrutiny. Yet, President Macron declared that France would not be able to phase out entirely from glyphosate in the next three years, as he had initially promised to do.

In the same period, the Court of justice of the European Union rendered two significant judgments related to the glyphosate saga. In the first one (GC 7 March 2019, Antony C. Tweedale vs European Food Safety Authority, T-716/14, EU:T:2019:141), the General Court annulled the decision of the European Food Safety Authority (EFSA) which had denied the applicant the right of access to certain parts of two studies relating to the toxicity of glyphosate, which had been used by the agency for its own evaluation of such substance. In this way, the General Court acknowledged the importance of guaranteeing the transparency of scientific expertise as a condition to preserve its objectivity and independence. In the second one, (CJEU 1^st October 2019, Blaise and others, C-616/17, EU:C:2019:800), the Court was asked to assess the compatibility of Regulation (EC) no 1107/2009 on the placing of plant protection products (including glyphosate) on the market in light of the precautionary principle. Despite the high expectations rose by this judgment, the formulation of the questions for preliminary rulings – focusing on the overall regulatory architecture established by Regulation no 1107/2009 – prevented the CJEU from extending its analysis to the core of the questions at stake in the glyphosate saga. Thus, the Court conducted an abstract check of the provisions of Regulation no 1107/2009 in light of the precautionary principle but was not able to assess the validity of the 2017 decision of the Commission to authorise glyphosate in Europe and the adequacy of Regulation no 1107/2009 to ensure the transparency and independence of the risk assessment conducted by EFSA. These questions remain open.

What’s next?

Awaiting the decision of the European Commission that in 2022 shall take a new position on the authorisation of the active substance glyphosate in Europe, it remains to be seen if the Luxembourgish ban of glyphosate will produce, as wished by the government of the Grand Duchy, a leverage effect pushing other EU countries to prohibit glyphosate’s products in their territory. It’s hard to make a forecast and this for, at least, two reasons. From one side, the scientific consensus over the carcinogenic effect of glyphosate and, in general, of plant protection products is increasing. For instance, a recent report published in October 2019 by Pesticide Action Network (PAN) Germany and the Health and Environment Alliance (HEAL) provides a detailed account and critical assessment of 10 carcinogenic pesticides widely used in Europe. From the other side, the influence played by agrochemical lobbies, as well as the difficulties to substitute the use of glyphosate and to finance the transition towards a glyphosate-free agriculture are counterbalancing the scientific evidence showing the carcinogenicity of such substance. It will be up to the EU Commission in 2022, and it’s already up to each Member State to solve this trade-off. To do so, they shall not forget their obligations to pursue a high level of protection of the environment and public health (articles 168 §1 and 191 § 2 TFUE) and to grant prevalence to the protection of the environment and public health over economic interests (CJCE 12 July 1996, United Kingdom of Great Britain and Northern Ireland v Commission of the European Communities, C-180/96, EU:C:1996:308, point 93).

“I think having land and not ruining it is the most beautiful art that anybody could ever want” (Andy Warhol)

Alessandra Donati is a Senior Research Fellow at the Max Planck Institute for Procedural law in Luxembourg. She obtained her PHD at the University Paris 1 Panthéon Sorbonne with a thesis on the precautionary principle under EU law. Alessandra holds a degree in law from the Università Commerciale Luigi Bocconi (Milan) and in economics from the Università Politecnica delle Marche (Ancona). She also holds an LL.M. in French and European Law from the University Paris 1- Panthéon Sorbonne. Alessandra is a member of both the Italian (Milan) and French (Paris) Bar Association. Before joining the Max Planck Institute as a research fellow, Alessandra practiced law for several years as an attorney in Milan at Chiomenti Studio Legale and in Paris at Castaldi Partners law office. Alessandra is currently teaching at SciencesPo (campus of Nancy) and at the University of Luxembourg. She specializes in European Union law, and namely in EU environmental and food law.