Many thanks indeed Kevin La Croix for flagging the suit brought in New York by a group of Bayer AG shareholders, against Bayer (with seat at Leverkusen, Germany), concerning the not altogether successful purchase of Monsanto by Bayer. Kevin has excellent analysis and I am happy to refer.
Claimants of course pre-empt arguments of lack of subject-matter jurisdiction and, subsidiarily, forum non conveniens – please refer to Kevin’s overview for the arguments to and fro. Most interesting. It brought back to me echoes of the Australian case of Tiger v Morris, not because the subject-matter is similar (it is not) but because in this increasingly globalised world (despite Covid19), courts everywhere are increasingly asked to consider the reach of their courts in cases with competing local and foreign interests. Comity considerations underlying the historic roots of conflict of laws are being brought back to the fore, no doubt also partially as a result of the impact of third party financing, contingency fees etc.
One to keep an eye on. One wonders whether Bayer might be launching a related case in Germany, then triggering A33/34 considerations.
Starting with the infamous and fundamentally flawed Laws of Fear by Cass Sunstein, Europe’s precautionary principle has been under constant attack by industry both within and outside of the EU. My postings on the principle here and the section on it in my Handbook of EU environmental law with Leonie Reins attempt to show that despite industry propaganda against it, the principle has never been a blind ‘when in doubt, don’t do it’ approach to risk management.
In C-616/17 Blaise and others, the Court once again shows its measured approach. Defendants in national criminal proceedings, argued that they should be let off in a criminal damage prosecution. They are environmental activists and are charged with causing criminal damage to containers of herbicidal products (specifically ‘Roundup’) containing the chemical glyphosate. In their defence, they argue that the products present an unacceptable potential risk to human health and the environment and that the EU approval process is defective and therefore unlawful.
The Court found that the approval process on the basis of EU law is entirely in line with EU law, including the precautionary principle. Steptoe have excellent overview here and I am happy to refer entirely.
EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff.
In March 2017, France’s ANSES, the relevant food, environment, and occupational health and safety agency, approved Monsanto’s Roundup Pro 360. That authorisation has now been annulled by the Courts at Lyon – around the same time the story broke of extensive unquestioned copy /pasting by regulators of industry dossiers.
At the beginning of its reasoning the court cites France’s environment charter, to which its Constitution refers. The Charter guarantees everyone in its first Article the right to live in a balanced environment and one with respect for human health. Article 5 entails the precautionary principle, with reference (of course) to scientific assessment and proportionality.
Yet this intro is made for dramatic effect only. The judgment is in fact nothing but a straightforward application of risk assessment requirements on the basis of prevention, not precaution, and a simple observation of infringement of EU law.
At 3 (p.7) the court points out the consequences of the relevant EU authorisation regime. Active ingredients such as glyphosate are authorised (or not; and potentially with conditions) by the EU. Applications in wich these substances are used, by the Member States.
France’s Centre International de Recherche sur le Cancer (CIRC) had classified glyphosate as ‘probably carcinogenic’. Its report on same is referred to by the court as a ‘handbook’, based on peer reviewed studies, the data of which are objectively verifiable as well as replicable. In the other corner, one study referred to by Monsanto (at 7). Relevant EFSA studies only look at the active ingredient and it is these studies upon which ANSES’ decision was based. These studies do not assess the active ingredients’ actual use in preparations such as Roundup Pro 360 which is 41.5% glyphosate. Consequently ANSES quite straightforwardly violates Regulation 1107/2009, particularly its Article 36(6), which prescribes that interaction between the active substance, safeners, synergists and co-formulants shall be taken into account in the evaluation of plant protection products.
The judgment is convincing and straightforward. The road to it was all but easy.
EU environmental law (with Leonie Reins), Edward Elgar, soft cover edition 2018, p.28 ff.
It is being reported (this link in Dutch only however I suspect the international media will pick up on this soon) this morning that the city of Rotterdam has ‘banned’ the use of Roundup (Monsanto’s flagship herbicide). I was not able at this stage to get confirmation of what has actually been decided. My intuition however tells me what was had happened is not so much a ‘ban’ on the use of Round-up on Rotterdam territory. Rather, I imagine, a decision of the local council no longer to use Roundup in keeping pavements weed-free. A procurement or garden management decision, in other words.
The news caught my eye for I have an interest in the legality of local (or other) bans on the use of products which have otherwise been approved by EU (such as in this case: EU approval of glyphosate) or national authorities. See e.g. here (but with a need to update with the Mickelsson judgment). A true ban on Roundup would certainly raise the prospect of WTO and EU litigation…