The recent Court of Justice of the European Union (CJEU) ruling  that EU Member States can no longer grant derogations for the use of neonicotinoid seed treatments to control pests in arable crops like sugar beet and oilseed rape highlights the regulatory inconsistency and muddle that the European Union (EU) has created for itself.  As its implications unravel, will the ruling extend to ‘emergency’ derogations permitting the routine and widespread use of ‘banned’ products in the EU organic sector, asks agricultural economist Graham Brookes.  

 

The principle of allowing derogations for the use of a specific plant protection product at a Member State level stems from Article 53 of Regulation 1107/2009 which permits them for limited and controlled use, where such a measure appears necessary because of a danger which cannot be contained by other reasonable means.  In allowing such derogations, authorities consider five tests that must be met, namely:

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• There must be a danger;

• There must be special circumstances which make it appropriate to derogate from the standard approach to authorisations;

• The danger must not be capable of being contained by any other reasonable means;

• An emergency authorisation must appear necessary because of that danger, and;

• An emergency authorisation may allow only limited and controlled use of the plant protection product. 

 

Sugar beet grower groups in member states like France and Belgium applied for such emergency authorisation for the control of Yellow Virus, carried by aphids and authorisations have been granted at the member state level.  These emergency authorisations have, however, now potentially been stopped by the CJEU ruling following consideration of a case initiated by anti-pesticide groups Pesticide Action Network Europe (PAN) and Nature et Progrès Belgique.  EU member states are now waiting for the EU Commission to issue a formal interpretation of this CJEU ruling.

 

The first to applaud the CJEU ruling were the anti-pesticide advocacy groups referred to above, as well as other groups and bodies actively promoting lower intensity agricultural production systems, notably in the organic sector.  It is of note that PAN also interpret the CJEU ruling to ‘mean that all pesticide derogations must end, as none of them can be deemed a real emergency’ Commission’s verdict still out on EU court ruling on bee-toxic pesticides – EURACTIV.com.

 

However, if the broad PAN interpretation is applied by regulatory authorities then a closer examination must be made of the numerous and regular emergency derogations applied for, and obtained by, the organic sector for the use of various pesticides and other inputs that would otherwise not be permitted in organic agriculture.

 

The relevant EU organic regulations 2021/1165  and 2018/848   (Part one of Annex II) requires pest and disease management to rely for protection from natural enemies, resistant varieties, crop rotation and thermal processes.  Where plants cannot adequately be protected from pests by these measures or in the case of an established threat to a crop, an additional list of otherwise banned products can be used but ‘only to the extent necessary’.  Therefore the organic regulations specifically provide for the use of emergency derogations to allow the use of some pesticides in circumstances very similar to those referred to above for non organic production systems.  These derogations allow for the use of various pesticides including copper-based products (eg, oxychloride, sulphate and Bordeaux Mixture), sulphur, paraffin oil, Spinosad and pyrethrins.  The insecticides deltamethrin and lambda cyhalothrin can also be used in pheromone traps.

 

Emergency derogations to use some of these pesticides in organic production systems are regularly applied for and granted in the EU, including the use of copper-based products to control blight in organic potato crops. 

 

Many of these products are not authorised for general use on the basis of scientific concerns surrounding their safety and environmental impact. An impact assessment of the EU’s Green Deal Farm to Fork and Biodiversity Strategies by Wageningen University,  warned that a switch to organic farming would have adverse consequences for meeting the EU’s targets for reduced use of pesticides, mainly due to the widespread use of copper-based active ingredients in organic crop production.  Similarly, the insecticide spinosad, used by organic farmers has been found to cause brain damage in non-target insects, and to be more damaging to non-target insects than synthetic insecticides, according to recent research led by the University of Melbourne.

 

If anti pesticide advocacy groups were being consistent with their stance against the emergency use of derogations for limited and controlled use of pesticides like neonicotinoid seed treatments in non-organic agriculture and perceive that the CJEU ruling means all pesticide derogations must end, they should accept that the regular use of similar derogations in the organic sector must also end.

 

Given that the main EU organic regulation (Reg 2018/848) also provides for a number of other derogations and exceptions for the use of non-organic inputs, reproductive materials (seeds or the animal-equivalent), feed materials, additives (food and feed) and processing aids in the production and manufacture of products certified as organic, then a consistent application of PAN’s interpretation of the CJEU ruling should mean these regularly used organic derogations should end. 

 

The fact that, for example, it may be difficult to obtain sufficient quantities of organic seed or organically reared youngstock should be immaterial.  In the eyes of consumers, they are paying a price premium for organic food because it comes from a totally organic production system and this means from start to finish, from seed or birth to harvesting, finishing and sale.  Moving away from this completely organic system through regular (annual) derogations for the use of non-organic seed or to use conventionally reared youngstock is misleading consumers.  Therefore, on the basis of PAN’s interpretation of the CJEU ruling, the use of conventional seed and conventionally reared youngstock for organic use should also stop.

 

Returning to the broader issue of EU regulatory inconsistency, the foundation of this inconsistency largely stems from the move away from science and evidence based regulation and policy making over the last 25-30 years, in favour of regulation and policy development based on a poorly defined ‘precautionary principle’.  This has resulted in non-science and non-evidence based factors increasingly being taken into consideration when developing or changing EU regulations and policies, as evidenced by the increasing divergence between the regulatory approval mechanisms of the EU for pesticides, genetically modified crops and more recently gene edited crop and livestock innovations, and the equivalent regulatory authorities in major agricultural producing and trading countries in North and South America and Asia. 

 

The fingerprint of the precautionary principle is evident in the EU neonicotinoid ban decision as illustrated by the European Food Safety Authority (EFSA)’s Question and Answer briefing on its neonicotinoid review findings of 2018 in which ‘information on the most likely way in which bees might be exposed to neonics is somewhat limited’ 180228-QA-Neonics.pdf (europa.eu) and the fact that regulators in other countries such as the US and Canada have determined, on the basis of science and evidence, that neonicotinoids are safe for outdoor use.  In addition, in the UK, where pesticide approvals and derogations are also currently implemented under the same EU regulations operating in post Brexit UK law, the relevant authorities have continued to allow emergency authorisation on the basis of evidence and one for neonicotinoid use in sugar beet will operate for the forthcoming 2023 growing season Neonicotinoid product as seed treatment for sugar beet: emergency authorisation application - GOV.UK (www.gov.uk).

 

The inconsistency in the EU’s regulatory approach has also been recently exposed in relation to the development of GM derived covid-19 vaccines.  Politicians across Europe queued up to praise these medical breakthroughs and to re-assure citizens of the robust, science-based regulatory approval systems in place to ensure their safety as the vaccines were fast-tracked through the approval process and into deployment.  Yet these vaccines use the very same techniques of genetic modification (GM) or gene editing (GE) that many of the same politicians have spent the last 25 years preventing their citizens and farmers from having access to for the production and consumption of food, feed and fibre crops through the application of a non-science and non-evidence based approval approach to these products.

 

Persisting with policy and regulation systems based on the poorly defined precautionary principle which is open to variable interpretation and the application of non-science and non-evidence based influences is a recipe for inconsistency and failure.  If the EU wants its agricultural production sector to actively contribute and transition to a more sustainable future, its regulations and policies need to be consistently based on science and evidence.

 

Graham Brookes is an Agricultural Economist with PG Economics, UK.  He has more than 30 years’ experience of analysing the impact of technology use and policy change in agriculture and has authored many papers in peer reviewed journals on the impact of regulation, policy change and GM crop technology.  www.pgeconomics.co.uk

 

 

References

1. Judgement of the Court (First Chamber). 19 January 2023. Reference for a preliminary ruling – Environment – Regulation (EC) No 1107/2009 – Placing of plant protection products on the market – Article 53(1) – Emergency situations in plant protection – Derogation – Scope – Seeds treated with plant protection products – Neonicotinoids – Active substances posing high risks to bees – Prohibition of the placing on the market and outside use of seeds treated with plant protection products containing those active substances – Implementing Regulation (EU) 2018/784 and Implementing Regulation (EU) 2018/785 – Non-applicability of the derogation – Protection of human and animal health and the environment – Precautionary principle. CURIA - Documents (europa.eu)

2. Politico article 14 February 2023. To Bee or not to Bee: Capitals await Brussels verdict on banned pesticide use  https://pro.politico.eu/news/159823

3. Regulation 2021/1165 authorising certain products and substances for use in organic agriculture EUR-Lex - 32021R1165 - EN - EUR-Lex

4. Regulation 2018/848 on organic production and labelling of organic products.  Regulation (EU) 2018/ of the European Parliament and of the Council of 30 May 2018 on organic production and labelling of organic products and repealing Council Regulation (EC) No 834/2007 (europa.eu)

5. Bremmer J et al (2021) Impact Assessment of EC 2030 Green Deal Targets for Sustainable Crop Production, Wageningen University, Report 2021-150 ISBN 978-94-6447-041-3, 558517 (wur.nl)

6. Martelli F et al (2022) Low doses of the organic insecticide spinosad trigger lysosomal defects, elevated ROS, lipid dysregulation, and neurodegeneration in flies. eLife, https://doi.org/10.7554/elife.73812