Berlin’s promised glyphosate ban plans could face hurdles at EU level

The German government is sticking by its campaign promise to take the controversial herbicide glyphosate off the market by the end of the year. But if Brussels renews the substance’s approval, a German national ban may become difficult to uphold.

Read the original German story here.

“We will take glyphosate off the market by the end of 2023,” the coalition agreement of Germany’s three governing parties states.

The continued approval of the widely-used herbicide glyphosate is a source of controversy both in Germany and the EU. While critics warn of considerable environmental and human health risks, proponents see no scientific basis for this.

In line with its coalition deal, Germany’s agriculture ministry has already taken steps towards banning glyphosate since the coalition government took office, including enshrining the phase-out date in the relevant regulation.

“It is correct that the coalition has agreed that glyphosate should no longer be used in Germany after 1 January 2024,” a spokeswoman for the Agriculture Ministry told EURACTIV.

But that might not be so easy to achieve.

In the coming months, the EU is set to decide on whether it will renew its own authorisation of glyphosate as an active substance in plant protection products, which is currently in place until 15 December 2023.

Should the authorisation be renewed after that date, adopting a national ban could become very difficult for the German government.

Commission to temporarily re-approve glyphosate without member states’ go-ahead

Member states once again blocked the Commission’s proposal to extend the marketing authorisation of the herbicide glyphosate for another year, but the EU executive is set to still approve an interim renewal before mid-December.

EU hurdles

Generally, the EU is responsible for authorising active substances, while it is up to member states to subsequently approve the use of plant protection products based on the substance.

If a plant protection product is based on an active ingredient authorised in the EU, individual member states can only “refuse or restrict the placing on the market based on the specific agricultural and environmental circumstances in their territory”, Commission sources told EURACTIV.

In practice, this means that if glyphosate remains authorised in the EU after the end of the year, the German government can only impose restrictions on its use in specific cases or areas for well-founded reasons – rather than a general ban.

“As long as the active ingredient is approved in the EU, a complete ban on glyphosate on the basis of the current EU legal situation is illegal and would not stand,” confirmed Germany’s agriculture ministry.

Instead, a “justified limitation/restriction of use to take account of the specific conditions in a member state” would be possible, a spokesperson told EURACTIV.

If the EU’s glyphosate authorisation is indeed extended, the German government will be “examining further steps for a national ban on use”, they explained.

But making such measures legally watertight while the EU approval is still in place can be difficult, as shown by recent events in Luxembourg.

EU law in Germany: Ignored or forgotten?

Germany’s traffic light coalition came into office more than one year ago with big ambitions. But promises like legalising cannabis and banning glyphosate risk falling flat due to the parties’ ignorance of EU law, comments Julia Dahm.

The Luxembourg case

While Luxembourg prohibited the use of glyphosate from January 2021, an administrative court overturned the ban just a few weeks ago in a case brought by chemical and pharmaceutical company Bayer, stating that it did not comply with EU law.

Among other things, the court pointed out that the Luxembourg government had not sufficiently explained why the specific circumstances in the country justified a ban despite the EU-wide authorisation.

According to experts, the ruling cannot be transferred one-to-one to the situation in Germany due to the specificities of Luxembourg law. But the case shows the high legal requirements for a national ban.

When asked by EURACTIV, a Bayer spokesperson would not confirm whether the company would also take legal action if Germany bans glyphosate use despite continued EU approval.

“Only in narrowly defined exceptional cases and under strict conditions, which must be substantiated by the Member State concerned” may member states refuse to authorise plant protection products based on an active substance authorised throughout the EU, he stressed.

“This is precisely the context to which the courts in Luxembourg referred in the decision on plant protection products containing glyphosate,” the spokesperson added.

Luxembourg’s ban on glyphosate has no legal basis, court rules

Luxembourg’s 2021 ban on glyphosate has no legal basis, an administrative second instance court has ruled.

Luxembourg was the first member state to unilaterally ban the use of the pesticide on 1 January 2021 after it was sued by Bayer, who …

[Edited by Gerardo Fortuna/Nathalie Weatherald]

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