Before introducing pesticides, four federal authorities deal with them. Contrary to warnings, a court in Braunschweig often decides in the end and approvals from other countries apply.
It’s about weeds, pests, poison and the question of who can decide which pesticides come onto the market and the fields in Germany. In order to ensure the highest possible level of protection and to prevent damage to the environment and health, each pesticide must be approved individually.
But anyone who wants to sell such a product in Germany can apply for approval through other EU countries. According to experts, the effects on people and the environment are sometimes examined much less strictly.
The Braunschweig Administrative Court has repeatedly decided that this has to be recognized in Germany. German authorities no longer want to accept this: They have filed a constitutional complaint with the Federal Constitutional Court in Karlsruhe – an unusual approach for the Federal Republic of Germany.
How is the approval of plant protection products generally regulated?
In two stages: The European Commission decides whether an active ingredient for a plant protection product is approved. An example of this is glyphosate. The preparation itself then needs national approval in order to be sold and used in a country.
How does the approval work?
The EU is divided into three zones within which the ecological and agricultural conditions are considered to be approximately comparable. Germany is in a zone with, among others, Poland, the Netherlands and Austria. According to the EU Plant Protection Regulation, manufacturers can choose a member state in which they apply for authorization (reference member state). All member states in the same zone must then fundamentally recognize the approval. This is called mutual recognition. However, how far this principle goes is controversial.
Does the recognizing state then no longer have a say in its territory?
“No, says the Braunschweig Administrative Court – at least not to the extent that the reference member state has already or should have assessed the health and environmental risks of the product – and thus repeatedly overturns our different approval decisions,” explains Kim Teppe, lawyer at the Federal Environment Agency (Uba). The member state could only claim that the product “poses an unacceptable risk to human and animal health or the environment” because of specific ecological or agricultural conditions in the country, as the regulation states.
Viticulture is mentioned as an example in the constitutional complaint submitted to the German Press Agency. It plays a larger role in Germany than in other countries in the same zone. The state can then set requirements for use or – theoretically – refuse approval.
Which authorities are responsible in Germany?
The Federal Office for Consumer Protection and Food Safety (BVL), based in Braunschweig, is responsible for the approval of plant protection products, which is why disputes are initially resolved before the administrative court there. The Federal Institute for Risk Assessment (BfR), the Julius Kühn Institute (JKI) and Uba are involved as scientific assessment authorities. They examine around 200 applications for approval every year, says Jörn Wogram, who heads the plant protection products department at Uba.
More than half of the applications in Germany are now for recognition of a license from another country. The Uba usually agrees, but sometimes it issues more far-reaching application regulations. But only rarely does it exercise a real veto.
What are the consequences if this doesn’t play a role in court?
In Germany, pesticides have to be allowed again and again, even though the responsible authorities are against it. The complaint states that the authorities are currently unable to decide independently on 87.5 percent of all approvals in Germany. Their work and expertise become a farce. “We are making ourselves untrustworthy,” says lawyer Felix Ortgies from the BfR, for example. “This contradicts our scientific ethos and contradicts our legal mandate.”
Why do manufacturers choose this route?
According to Volker Kaus, a lawyer at the Agricultural Industry Association, the German authorities often go out of their way in the assessment and set higher standards than guidelines from the European Food Safety Authority (EFSA) prescribe. “This contradicts the principles of harmonization and mutual trust within the EU.” The state of science and technology that serves as the basis on which plant protection products are tested and approved must be discussed again and again. But then uniform standards would have to apply; no one country should rush ahead.
“Germany has high protection standards,” says Wogram from Uba. That is why companies increasingly rarely choose Germany as a reference member state. The constitutional complaint clearly states that private companies in other member states deliberately took advantage of lower protection standards when registering.
According to Mathias Uteß from the BVL, there are also cases in which other states do not want to approve a pesticide approved in Germany. In the majority of cases, however, it is the other way around.
What’s new now?
The BVL has taken the proceedings one step further, to the Lower Saxony Higher Administrative Court (OVG). With reference to the principle of mutual trust within the Union, this neither gave the Federal Office the right nor did it allow questions about the scope of audit powers within the framework of mutual recognition to be fundamentally clarified by the European Court of Justice (ECJ).
Since this is an EU-wide regulation, these questions belong exactly there from the authorities’ point of view. “Ultimately, these approval issues cannot be decided in Germany alone,” says Ortgies. “We don’t want any legal ambiguity at this point, but rather make clear, understandable and scientifically sound decisions – anything else is unacceptable.”
And that is exactly what the constitutional complaint is about: The BVL wants Karlsruhe to overturn the previous decision of the OVG and establish that the ECJ must be referred to the ECJ in a new round. It would then have to be clarified how far the national scope extends, says Uteß from the BVL. It is unclear when the highest German court will decide on the constitutional complaint.
What exactly is it about?
About the product “Gold 450 EC”. It contains an active ingredient that is no longer approved. Experts believe that fish, algae and aquatic invertebrates are particularly at risk. Poland still approved the pesticide because the experts there had assessed the risk differently. For Uteß, this “crossed a boundary”. The provider itself did not want to comment on the ongoing proceedings.
Should something change in the procedure?
From Uteß’s point of view, the standards in the countries need to be harmonized, also in order to create equal conditions for farmers. “We need more harmonization.” This does not necessarily require a change to the regulation. This is also possible via the EFSA guidelines. The process is profitable but lengthy.
What could forestall the Constitutional Court?
The ECJ already has a similar case from the Netherlands. In her Opinion from September 2023, the Advocate General suggested that a state should take into account all relevant and reliable current – i.e. the latest – scientific and technical knowledge when examining an application for authorization. If this does not happen, other states may refuse approval. It is unclear when the ECJ will decide. As a rule, however, he follows suggestions from the Attorney General.