EU to tighten grip on emergency pesticide use with new guidance on derogations

6 months ago 21

The European Commission wants to tighten the leash on emergency use of EU-banned pesticides, according to a draft version of a new guidance document seen by Euractiv, which states that countries cannot allow the use of substances that are explicitly prohibited within the bloc.

The updated guidelines by the Commission, last updated in 2021, will be up for discussion during a closed-door meeting of the Standing Committee on Plants, Animals, Food and Feed (SCoPAFF) on May 22 and 23.

The document proposes an interpretation of a 2023 ruling from the EU’s Court of Justice (CJEU) on the limits for temporary derogations allowing the sowing of seeds treated with bee-toxic neonicotinoids. 

“Member States cannot grant emergency authorisations for products containing the active substance for uses prohibited in the approval to ensure the protection of health and, or,  the environment,” reads the latest version of the draft guidance.

“This also applies to active substances for which the approval expired but contained one or several restrictions prior to expiry,” it continues. 

In 2018, the European Commission banned imidacloprid, thiamethoxam, and clothianidin – all neonicotinoids harmful to bees and other pollinators – with the exception of greenhouse crops.

Members states circumvented the ban by invoking Article 53 of Regulation 1107/2009, allowing “emergency” market authorizations for restricted products or not EU-approved for up to 120 days.

This must be justified based on a danger that cannot be contained by any other existing means – such as a rare pest.

However, the CJEU ruled  that countries cannot continue to authorise neonicotinoid-coated seeds, as they are “expressly prohibited” by EU law.

Resistance from countries

The Commission’s interpretation of this ruling is reflected in the new guidance document, which requires the endorsement of member states.

Sources close to the negotiations told Euractiv that some of them including Spain, Greece, Poland and Estonia argued for a narrower interpretation of the court’s decision, advocating for ending derogations only for neonicotinoids and not for other banned substances.

Despite the ruling in January 2023, member states persisted in using Article 53 to authorize neonicotinoids and other restricted pesticides.

For example, Romania has authorised bee-toxic imidacloprid multiple times, with the most recent authorisation in January of this year.

Additionally, Romania, Latvia, and Czechia authorised thiamethoxam post-ruling.

Spain and Greece allowed the use of sulfoxaflor an insecticide with properties similar to neonicotinoids, banned for outdoor use in the EU since 2022 due to its toxicity for pollinators. 

Robust assessment

Another key aspect of the new guidance is its emphasis on applicants providing a thorough assessment, demonstrating the need for a derogation in line with the requirements outlined in the EU regulation.

“Member States should only grant an emergency authorisation if their robust assessment of all pertinent factors of the application received demonstrates clearly that the requirements in Article 53 […] are fulfilled,” states the document, meaning that the pest cannot be contained by any other existing means.

The text also highlights that “the burden of proof” falls on the applicant for emergency authorisations, which range from farmer cooperatives, regional governments, or pesticide manufacturers.

But loopholes persist

Despite the Commission’s interpretation, loopholes allowing other non-authorised substances are likely to persist, as CJEU only ruled against expressly banned substances.

For substances not approved in the EU, whether due to a lack of application, withdrawal during evaluation, or ongoing assessment, emergency authorisations may be granted to address serious dangers.

In such cases, member states are advised to consider the latest conclusions from the European Food Safety Authority (EFSA) on the pesticide.

The document also stresses the importance of avoiding repeated emergency authorisations for non-approved substances “to the greatest extent possible,” noting that member states try to solve recurring farmers’ needs. 

However, it acknowledges that the time required to approve a new pest control product is lengthy and might lead to a need for emergency authorisation of a non-approved substance.

For instance, the French government recently authorised the use of a biocontrol product – pest control solutions derived from natural sources – based on a not-approved scented molecule to repel aphids from sugar beet crops.