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Report from the Sub-committee on Legislation 2. The sub-committee’s conclusionsThis report is intended to shed light on the extent to which it is legally possible to implement a total or partial phase-out of pesticide use in agriculture. The main task is to clarify whether EU law, WTO law (the World Trade Organisation) or the Danish Constitution contains rules that prevent the implementation of Danish legislation on such a phase-out. Relevant rules Chapter 5 contains a general review of the relevant EU rules, WTO rules and section 73 of the Danish Constitution, which concerns expropriation. The EU Treaty’s rules on technical trade barriers, state aid, and taxes, and the rule in article 100A, clause 4 (the environmental guarantee) are discussed. With respect to the EU legislative acts, particular mention is made of directive 91/414/EEC on marketing of plant protection products. One implication of this directive is that Denmark may only in certain special circumstances refuse to authorise a plant protection product for sale here in Denmark when it is authorised in another EU Member State. A number of other directives, e.g. on drinking water quality are discussed, together with a number of directives on pesticide residues in food products. In the latter case there has been almost total harmonisation. Concerning WTO law, it is generally the case that if action against the sale or use of plant protection products is acceptable in relation to other EU countries under EU rules, then similar action in this area against third countries is acceptable under WTO law. Assessment Chapter 6 gives the sub-committee’s assessment of Denmark’s freedom of action with respect to implementing national legislation on a total or partial phase-out of pesticides. The transitional period Section 6.1 contains an assessment of the possibilities in a transitional period set in directive 91/414/EEC. In principle, this transitional period expires in the year 2003. In the opinion of the sub-committee, Denmark may lay down both general and specific prohibitions of the sale or use of plant protection products during the transitional period provided the individual active ingredients are not on the EU’s so-called Positive List. However, any rules of the said nature must be in conformity with the EU Treaty, particularly articles 30 and 36 on technical trade barriers (section 6.1.7). Prohibition of sale of specific plant protection products Section 6.2 deals with the question of whether, after the expiry of the transitional period set by the EU (the year 2003), Denmark will be able to prohibit the sale of specific plant protection products. The main conclusion is that, after the transitional period, Denmark will only exceptionally, and only with certain limits, be able to refuse to authorise a specific plant protection product for sale here in Denmark if it is authorised in accordance with the EU’s uniform principles in another EU Member State (section 6.2.5). In the case of a first authorisation (i.e. if the product has not yet been authorised in other EU Member States or if mutual recognition is not invoked by the applicant), Denmark will have greater freedom of action but must also in the case of such authorisation, respect the uniform principles for assessment and authorisation of plant protection products laid down in directive 97/57/EC (section 6.2.6) General prohibition of sale The sub-committee has come to the conclusion, see section 6.3, that directive 91/414/EEC regulates only matters relating to specific authorisation for the sale of specific plant protection products. The directive does thus not regulate the question of a completely general prohibition of the sale of plant protection products as such in the individual Member State. However, a general prohibition of the sale of plant protection products in Denmark is deemed to be a purely theoretical possibility and would be difficult to implement in practice. Restrictions on use The sub-committee concludes in section 6.4 that, in connection with authorisation of a specific plant protection product for sale here in Denmark, certain restrictions can be imposed on use of the product on certain areas and in certain crops etc. However, if the plant protection product in question has been authorised for sale in another EU Member State, the right to impose such restrictions is relatively limited (section 6.4.3). Regulation of marketing The sub-committee concludes in section 6.6 that Denmark has some freedom of action with respect to regulating by means of general rules how plant protection products are to be sold – e.g. through requirements concerning points of sale and advertising. General prohibition of use The aforementioned conclusions concern primarily regulation of the actual sale of plant protection products. In section 6.7, the sub-committee considers the possibility of totally or partially prohibiting the use of plant protection products. Its conclusion, given in section 6.7.4, is that in relation to the EU rules, the WTO rules and section 73 of the Danish Constitution, it would in principle be possible to implement a (normally compensation-free) prohibition of the use of plant protection products. A prohibition of that kind could cover all plant protection products as such or groups of plant protection products. It could also, in principle, cover the whole of Denmark or smaller parts thereof. However, there would have to be sound environmental and/or health grounds for a prohibition of use, and the burden of proof would lie with Denmark. In that connection, the larger the areas covered by the prohibition and the greater the degree to which the prohibition affected plant protection products already authorised in other EU countries, the more difficult it would be for Denmark to prove its case. Changing safety factors In section 6.8, the sub-committee considers whether the authorisation scheme could be tightened by using particularly high safety factors here in Denmark (so that fewer plant protection products could be authorised). The sub-committee concludes that directive 91/414/EEC would prevent Denmark from using higher safety factors than those set in directive 97/57/EC in assessing the environmental impacts of plant protection products. Denmark could, on the other hand, in assessing the health impacts of plant protection products, use its own safety factors for the time being since there are not at Community level at the present time either generally or specifically binding rules on health safety factors. National rules on these must be in conformity with articles 30-36 of the EU Treaty. Integrated prevention and control Section 6.9 deals with integrated prevention and control, in which a combination of biological, plant-cultivation and chemical methods is used, whereby the use of chemical plant protection products can be reduced without unacceptable economic consequences. Directive 91/414/EEC and directive 97/57/EC contain rules on integrated prevention and control. In the view of the sub-committee, the principle concerning integrated prevention and control could give Denmark some limited freedom of action with respect to stricter authorisation practice. Denmark might possibly be able to influence how the EU directives’ vague provisions on integrated prevention and control are interpreted and thus influence the actual content of the EU rules on marketing in the direction of lower consumption of plant protection products. Pesticide residues in food products Section 6.10 addresses the question of limit values for pesticide residues in food products. The sub-committee’s conclusion is that, in reality, Denmark has no independent freedom of action with respect to setting different limit values in food products from those set by the EU. Taxes The question of taxes on plant protection products is dealt with in section 6.11. Such taxes can be an instrument in reducing the use of plant protection products. Taxes are already used and are thus a known instrument that has not hitherto caused any problems in relation to the EU. It is difficult to determine whether there is an upper legal limit for the size of such taxes. On the other hand, returning the taxes collected to farmers etc. would be covered by the EU rules on state aid and would therefore require EU authorisation. Agreements with the various agricultural industries Section 6.13 deals with the possibility of voluntary agreements between the Minister of Environment and Energy and the various agricultural industries on phasing out or reducing the use of plant protection products. Since a minister would be a party to such agreements, the agreements would, depending on the circumstances, have to be notified to the EU. It is not clear whether agreements involving both private and public parties are covered by articles 30-36 of the EU Treaty, but the Commission would have to decide on this in connection with the notification. Self-regulation In section 6.14, the sub-committee looks at the question of self-regulation, which should be understood to mean that the agricultural industries impose on themselves a duty to phase out or reduce the use of plant protection products. There are already examples of this in the case of grain used for bread. Options On the basis of the analysis in chapters 5 and 6, chapter 7 contains a discussion of Denmark’s options with respect to a total or partial phase-out of pesticide use in agriculture. Within current EU rules In section 7.1, the sub-committee sets out what it considers to be Denmark’s options to be within the framework of current EU rules. It stresses that, during the transitional period, Denmark could expand the Danish list of prohibited substances provided there were well-founded environmental and health grounds for this. It also mentions that a prohibition of the use of plant protection products on areas that might be of interest from a drinking water supply point of view could be an option. The possibility of influencing how the EU rules on integrated prevention and control is also discussed. The section also deals with the possibility of requirements concerning marketing (for example, requirements concerning points of sale or advertising) and of tightening the requirements concerning education. Additional taxes on plant protection products could also lie within the framework of the EU and WTO rules. An alternative to statutory rules on phasing out or reducing the use of plant protection products could be an agreement between the minister and the agricultural sector on phasing out or reducing the use of these products. Such an agreement could give rise to control problems because of the large number of production units within agriculture. Changing EU rules In section 7.2, the sub-committee considers the changes, particularly in the EU rules, that it might be relevant for Denmark to work for in order to have a better possibility of reducing pesticide consumption. It is mentioned here that the ideal solution would be to get a Community-wide pesticide policy implemented with a view to reducing pesticide consumption, as has been done in the case of growth regulators. The sub-committee has also considered what effect it would have to get the EU rules on plant protection products covered by Article 100a of the EU Treaty and thus by the environmental guarantee. It is pointed out that such a change would give Denmark only relatively limited possibilities for action. It is also pointed out that Denmark would gain most with respect to freedom of action from abolition of the general requirement under directive 91/414/EEC to authorise plant protection products for sale in Denmark when they have been authorised in another EU Member State. Another possibility would be to work to get the provisions on exemption from the general rule concerning mutual recognition expanded. Lastly, Denmark could try to get the totally harmonised regulations concerning pesticide residues in food products tightened, so that the international limit values are lower than they are today or – alternatively – so that the individual Member State in the EU has greater freedom of action to set its own – stricter – limits with respect to pesticide residues in food products. |