Bayer at the CJEU on neonicotinoids. (Belatedly) of bees, ponies, sophistry and precaution.

The CJEU held (first Chamber, which includes the  CJEU President Koen Lenaerts) in C‑499/18 P Bayer Crop Science v European Commission a few months back. Here at GAVCLaw the judgment was firmly on our minds – but my analysis not yet put to paper.

The case centres around the legality of the conditions imposed by the EU for the approval of the active substances clothianidin, thiamethoxam and imidacloprid (these are neonicotinoids), and prohibiting the use and sale of seeds treated with plant protection products containing those active substances. The act challenged by Bayer is Commission Implementing Regulation 485/2013 and the justification for the measures are the documented losses of honeybee colonies as a result of the use of the substances.

The application follows a tried and tested path of applicants in the chemical and related sectors. Firstly and preferably, find some holes in the (often extensive) documentary trail of preparatory and advisory paperwork relied upon by the Institutions in their measure, and claim these devastate the legality of the eventual measure. A typical example would be ‘the studies relied upon reported testing of the substances on small ponies while the eventual regulation cites concerns for both small and medium-sized ponies’. Secondly, try and tempt the CJEU into finding fault with the application of core principles of EU law (such as subsidiarity, proportionality, ultra vires, attributed powers etc) and /or EU sectoral policy (such as in particular the precautionary principle), or confuse the Court with at best esoteric but usually sophistic discussions on eg ‘new and scientific knowledge’.

The General Court had found against Bayer. Much of the appeal before the CJEU discusses the first type of arguments and, like the General Court, dismisses them.

On the suggested infringement of the precautionary principle, the Court first of all rejects that precaution cannot be relied upon until an ‘exhaustive’ scientific assessment is made: [81]: ‘an exhaustive risk assessment cannot be required in a situation where the precautionary principle is applied, which equates to a situation in which there is scientific uncertainty.’ The point is NOT that precaution does not engage with science. It does. That is also where its weakness may lie: it desperately speaks the language of data, science and numbers yet as the saying goes, “Data is like a spy – if you torture it long enough, it will tell you anything you want to know.” The point is rather (see eg [78]) that for one to have to wait for every single new potential sub-study into a sub-issue, would hand industry the golden ticket for delay tactics; [82] that studies are underway which may call into question the available scientific and technical data, is not an obstacle to application of the precautionary principle.

Bayer put essentially the same argument to the CJEU with slightly differing angles (eg suggesting that for already approved active substances, precaution must be applied to a higher threshold than for new to be approved substances) and the Court rejected them at each turn.

Update 18 February 2022 Compare nb also recently the General Court in T‑518/19 Sipcam on economic cost-benefit and the precautionary principle.

A good judgment.


EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff.

Visionary or the ultimate hindsight? The European Environment Agency’s second ‘late lessons from early warnings’

The European Environment Agency published its first volume of ‘late lessons’ in 2001. Just over ten years later, the second volume covers a staggering amount of new analysis, including PCE, lead in petrol, tobacco, DBCP, nanotechnology, alien species etc. That we already need a second volume fairly soon after the first, is explained by the fact that warnings from the first volume arguably have not been heeded, and that new technologies are rolled out at staggering speed.

It is impossible to argue for or against specific chapters in the volume on scientific grounds – no doubt others will do it (included vested interests). I flag the report on the blog, for it is a treasure trove for risk management teaching and research. Indeed arguably one could teach an entire course using just the report: for the Agency does not only summarise and report on the science, it also infers risk management choices from the ‘late lessons’ learned. Particularly insightful is the review of 88 cases of ‘false positives’: in contrast with the first volume (which had been criticised for this), the second volume does look into 88 case-studies where precautionary action was alleged to have led to greater actual occurrence of harm, rather than prevent it. The EEA concludes that in only 4 cases, this was indeed the case.

Critics argue that the 88 cases are inevitably selective. They also argue that going back in time, there are many more such examples (which I must say undermines their cause somewhat, for some of the examples quoted effectively go back to the times of witchcraft – or suspicion thereof). One could also argue of course that many developments which never raised suspicion and which have changed human life for the better, are not reported on either. However there is of course no reason why humanity should not be able to adopt an and /and approach: one which encourages harmless technologies as well as protect us from harmful ones. This is not a zero sum game (compensate the misses with the hits): it surely ought to be overwhelmingly positive.

The EEA today, incidentally, in a press release feels vindicated in its stance on neonicotinoids. The European Commission, as a result of a comitology (dont’ ask; this is EU administrative procedure; very very relevant but I shall not explain it here) quirkiness banned three neonicotinoid insecticides from use in the EU, after Member States failed to agree to either adopt or reject the proposal.


%d bloggers like this: