European Ban: No Derogation for Neonicotinoids

Following a judgment by the Court of Justice of the European Union on January 19, the Council of State rules that the exemptions for the use of neonicotinoids for the cultivation of sugar beets which had been temporarily granted in 2021 and 2022 are illegal. No derogation is indeed possible if the European Commission has formally banned a pesticide.

While neonicotinoids have been banned in France and Europe since 2018, the Government had granted temporary exemptions, on the basis of a law of December 14, 2020, for the use of two of them – imidacloprid and thiamethoxam – in 2021 then in 2022 for sugar beet crops1. These derogations, authorizing seeds treated with these pesticides, aimed to protect crops from massive infestations of disease-carrying aphids. Several associations of farmers, beekeepers and environmental protection have asked the Council of State to cancel these derogatory authorizations.

European law allows a Member State to grant a temporary derogation allowing the use of a pesticide not approved in Europe, if there is a serious risk for agriculture and in the absence of any other solution2. However, on January 19, ruling on a preliminary question posed by the Belgian Council of State, the Court of Justice of the European Union specified, for the first time, that when the European Commission has expressly prohibited, by a regulation the use of seeds treated with a given plant protection product, a Member State may not grant a temporary derogation authorizing the placing on the market of this product for the purpose of seed treatment or the use of seeds treated with using this product3.

Such a ban had precisely been decided for imidacloprid and thiamethoxam in May 20184. It follows directly from the judgment of the Court of Justice of the European Union that the derogations allowing their use for sugar beet crops granted in 2021 and 2022 were, given this ban, illegal. The Council of State therefore declares its cancellation.

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