The Bichel Committee's main task has been to assess the possibility and consequences of a total phase-out of the use of pesticides in the agricultural industries.

Accordingly, the Sub-committee on Legislation has had the task of determining:

	the extent to which it is possible to require a total phase-out or a significant reduction of the use of plant protection products within the framework of the current rules, and
	the rules that must in such case be changed in order to achieve a total phase-out or even a significant reduction of the use of plant protection products.

The sub-committee has only to a limited extent described current Danish legislation and the changes that could be made in this legislation. That is because it is primarily the international rules that determine the extent to which the Danish legislation could be changed if Denmark wishes to phase out or reduce the use of plant protection products in the agricultural industries.

The sub-committee has therefore analysed the extent to which international rules (EU law and WTO law) and the Danish Constitution might constitute an obstacle to achievement of a goal concerning reduction of the use of pesticides in the agricultural industries through Danish legislation.

Where the said international rules or the Danish Constitution do constitute obstacles, the sub-committee, at the request of the Bichel Committee, has assessed the points on which Denmark could seek to have the rules in question changed with a view to achieving the objective.

Section 7.1 sets out the options within the framework of existing international rules and section 73 of the Danish Constitution, and section 7.2 indicates the international rules that Denmark could seek to have changed.

7.1 Options within current rules

7.1.1 Total prohibition of the placing of plant protection products on the market

Within the framework of EU law and WTO law, it is theoretically possible, through Danish law, to prohibit the sale of plant protection products as such here in Denmark.

However, owing to the rules on mutual recognition in Directive 91/414/EEC, a total prohibition would depend on Denmark obtaining the EU authorities' agreement to plant protection products that are authorised for sale in other Member States not being authorised for sale here in Denmark. The sub-committee is of the opinion that it would be difficult to obtain that agreement.

For a total prohibition of the sale of plant protection products in Denmark, Denmark would have to prove that we have special conditions here – for example, agricultural, environmental or climatic conditions – that warrant a total prohibition (see section 6.3 above).

The technical information presented in the reports from the other sub-committees is not deemed to warrant such a total prohibition of the sale of all plant protection products as such.

A total prohibition of the sale of plant protection products is thus not a realistic path to pursue – unless the EU rules are changed (see section 7.2 below).

7.1.2 Prohibition of the sale of specific plant protection products

As will be seen from section 6.1.1 above, Denmark has some discretion in the transitional period – that is, until Article 10 of Directive 91/414/EEC takes full effect.

Denmark could thus continue to prohibit specific plant protection products (where the active ingredient is not included in the Positive List) provided there were environmental or health grounds for the prohibition that could be accepted under Article 36 of the EU Treaty.

This could affect the situation when the EU decides whether the substance in question can be included in Annex I to Directive 91/414/EEC and (if it is included) could make it easier to obtain acceptance of a sales prohibition here in Denmark, despite authorisation by other countries, after the expiry of the transitional period.

As will be seen from the foregoing (e.g. sections 5.4 and 6.1.1), in connection with the Act on Chemical Substances and Products, Denmark already uses a prohibition list, which is permissible within the rules on the transitional period.

As will be seen from sections 6.2.5 and 6.2.6 above, Denmark has certain possibilities of refusing authorisation – i.e. prohibiting the sale of specific plant protection products – after the transitional period. The possibilities are more limited, however, if a manufacturer who has been refused authorisation here in Denmark gains authorisation in another Member State.

7.1.3 Prohibition of use (total or partial)

As will be seen from section 6.2.1 above, Directive 91/414/EEC basically covers only specific authorisation for the placing of a specific plant protection product on the market, i.e. for sale of the product. A general prohibition of use of plant protection products, on the other hand, falls outside the scope of the directive. This gives us some national freedom of action with respect to prohibiting the use of plant protection products.

In the transitional period (i.e. as long as the active ingredient is not included in the Positive List), Denmark could prohibit the use of plant protection products provided the prohibition was based on environmental and health grounds that were acceptable with respect to Article 36 of the EU Treaty.

A general prohibition of the use of all plant protection products is theoretically possible, but Denmark would have to be able to present very weighty and special environmental or health grounds for it, cf. section 6.3. Such a total prohibition of use thus hardly seems a realistic path to pursue.

On the other hand, a general prohibition of certain uses of plant protection products is a realistic possibility, cf. section 6.7. However, if the prohibition were in the nature of a technical barrier to trade, there would have to be good environmental or health grounds for the restriction of use. If a prohibition of use affected the use of plant protection products that were authorised for sale and use in other EU Member States, the requirements concerning grounds would in all probability be tightened, cf. section 6.7.1.

Denmark could present relatively weighty grounds for a partial prohibition of use by referring to the fact that greater use is made of groundwater for production of drinking water in Denmark than in many other countries. Particularly if Denmark could indicate specific areas that are of importance for the supply of drinking water, we would have relatively good grounds for legislating against the use of plant protection products in those areas.

It might also be possible to introduce a prohibition here in Denmark of the use of specific plant protection products at specific times of the year on the grounds that there is a greater risk of leaching to the groundwater and lakes and rivers at those times than at other times of the year.

Depending on the circumstances, for a general prohibition of use to be introduced without compensation having to be paid, the prohibition would have to include transitional schemes and possibilities of dispensation in order not to collide with section 73 of the Danish Constitution, cf. section 6.7.3.

Within the framework of Directive 91/414/EEC, Denmark could impose conditions of use and conditions concerning areas in connection with the authorisation for the placing of plant protection products on the market, cf. section 6.4.3.

7.1.4 Integrated control

As mentioned above (section 6.9), the provisions of Directive 91/414/EEC and Directive 97/57/EC on integrated control mean that Denmark in reality has some freedom of action. The sub-committee is thus of the opinion that Denmark could totally or partially refuse to authorise the placing of plant protection products on the market by referring to the said rules on integrated prevention and control provided appropriate cultivation methods and methods of prevention and control that did not cause unacceptable damage or loss were available.

However, it would be difficult to use this possibility to refuse authorisation. To supplement and use the provisions on integrated prevention and control there would have to be concrete assessments of the economic consequences of minimum use of plant protection products in individual crops in Denmark.

It must thus be stressed that it is difficult to judge precisely what possibilities lie in the provisions on integrated prevention and control. The possibilities are probably rather limited.

In the longer term, Denmark could, through its administrative practice, try to influence the legal understanding of the concept "integrated prevention and control", since this standard has not yet been filled out in the EU.

7.1.5 Agreements with the agricultural industries

As an alternative to rules of law and executive orders on reduction of the consumption of plant protection products, the Minister of Environment and Energy could seek agreement with the agricultural organisations on this (see section 6.13 above).

However, any agreement would have to be notified to the Commission in accordance with the information procedure directive.

Such an agreement might give rise to certain problems with respect to control because of the large number of small undertakings in the agricultural industries.

7.1.6 Marketing requirements (sales outlets etc.)

As will be seen from section 6.6 above, it would be possible to make relatively strict requirements concerning the marketing of plant protection products. Denmark could thus require plant protection products to be sold at special sales outlets and possibly only by authorised vendors. The right to purchase plant protection products could be restricted to specific groups of people who are specially trained in their use, and requirements could also be made concerning the advertising of plant protection products.

7.1.7 Requirements concerning education and training

The Danish rules concerning training for users of spray products are explained in section 6.15 above.

The rules in question are a means of avoiding unnecessary and inappropriate use of plant protection products.

The requirements concerning education and training could be tightened without violating international rules.

7.1.8 Taxes and differentiated VAT

As mentioned in section 6.11, it would be possible to impose additional taxes on plant protection products.

From a legal point of view, these taxes could be increased substantially without violating EU rules as long as the taxes did not discriminate against plant protection products imported from other EU or WTO Member States.

The taxes could be combined with a scheme that ensured reimbursement of the taxes to the agricultural industries. Such a scheme would be covered by the EU rules on state aid. The EU authorities have accepted the existing Danish reimbursement scheme, which was notified in accordance with the rules on state aid.

A lower rate of VAT could be imposed on organic food products than on other food products.

7.2 Changing EU rules

As will be seen from the foregoing, Denmark has some possibilities of reducing the use of plant protection products within the framework of the current EU rules. However, with the current rules, a total phase-out of plant protection products would not be a realistic option. For that, the EU rules would have to be changed.

On the basis of the legal analysis in section 6, we give below the sub-committee's conclusions concerning the changes to EU rules that might be relevant with a view to a total or partial phase-out of the use of pesticides.

7.2.1 Community regulation of plant protection products

The ideal solution would be an integrated EU policy aimed at phasing out or significantly reducing the use of plant protection products.

The model for such a policy could be the recently established EU policy on phasing out the use of growth promoters in the agricultural industries.⁹²

One possibility would be to work for Community implementation of the provisions on integrated control as a means of reducing the use of plant protection products by referring to the existence of alternative methods of prevention and control, cf. section 7.1.4. Any changes to the EU rules would also have to be evaluated and negotiated in relation to the WTO rules.

7.2.2 Environmental guarantee

If it proved impossible to obtain agreement on a Community policy aimed at phasing out or significantly reducing the use of plant protection products, Denmark could work for EU agreement to the individual Member States introducing national schemes for that purpose.

At the present time, the regulation of plant protection products is based on Article 43 of the EU Treaty on the Common Agricultural Policy. This provision does not allow any extensive national regulation.

In the opinion of the sub-committee, changing the regulation of plant protection products in the EU, so that such regulation is based on Article 100a instead of on Article 43 would hardly make any difference in practice, cf. section 5.1.4.

7.2.3 Abolition of the obligation of mutual recognition

A serious obstacle to the implementation by Denmark of an independent, national policy aimed at phasing out the use of pesticides in this country is the obligation of mutual recognition, cf. section 5.1.5, which obliges a Member State to authorise the placing of a plant protection product on the market in its territory if the product has been authorised in another Member State.

It would therefore not be possible to achieve a total phase-out of plant protection products or even a significant reduction of the use of plant protection products unless the obligation of mutual recognition was abolished.

A theoretical possibility would be to reverse the main principle of the directive, so that it was not national authorisations that were the object of mutual recognition, but national prohibitions. Such a principle is not found in other EU acts, and the sub-committee does not believe that it would be possible to introduce such a principle.

7.2.4 Changing the rules on mutual recognition

As an alternative to abolition of the obligation of mutual recognition, Denmark could work in the EU for a more limited amendment of Directive 91/414/EEC in the form of an expansion of the possibility of exception in Article 10(1), which gives Member States the right to refuse authorisation on grounds of, inter alia, agricultural or environmental conditions, including climatic conditions.

It would be obvious to seek to get the exception provision expanded to cover not only conditions of more technical nature, but also the fact that an individual Member State – documented – has adopted a policy/regulation on organic farming that might be undermined by the sale and use of plant protection products.

7.2.5 Subsidy schemes

As an element of action to achieve a reduction of the use of plant protection products, Denmark could work to make subsidies under the EU's agricultural schemes dependent on a low consumption of such products. However, the sub-committee has no means of judging whether the other Member States in the EU would be interested in such a scheme.

Another possibility would be to establish or expand subsidy schemes that could be used to support or compensate farmers who refrained from using plant protection products in their production. Such schemes could be either purely national schemes or Community schemes. The question of such subsidies is dealt with in the sub-committee's supplementary report "Legal questions concerning total restructuring of Danish agriculture for organic production".

It can be added that, as an element of action to achieve a reduction of the use of plant protection products, Denmark could work to make subsidies under the EU’s agricultural schemes dependent on a low consumption of such products.

7.2.6 Changing directives on pesticide residues in food products

The EU directives on pesticide residues in food products constitute totally harmonised regulation, cf. sections 5.1.14 and 6.10. Denmark could work for greater independence for the individual Member State with respect to regulation of this area. This would mean changing the directives in question to a form of minimum harmonisation, which would enable the individual Member State to establish more extensive protection.

Another solution might be to get the regulation of pesticide residues in food products in under the environmental guarantee. This would mean changing the authority on which the directives are based from Article 43 of the EU Treaty to Article 100a.

However, for the reasons mentioned in section 7.1.4 above, it is doubtful what possibility there is of getting the regulation of pesticide residues in food products in under the environmental guarantee, and it is also doubtful whether this would make any difference in practice.

7.2.7 Changing the EU Treaty

The changes discussed in sections 7.2.1 to 7.2.6 concern EU acts that have been adopted within the framework of the EU Treaty. Below follow some comments on possible major changes in the form of changes to the EU Treaty – particularly Articles 30-36, which, as will have been seen from the foregoing, affect Denmark's possibility of pursuing an independent policy on plant protection products.

In principle, the possibility cannot be excluded of changing the Treaty's rules on technical trade barriers, charges or the environmental guarantee, which have been discussed elsewhere in this report, with a view to creating broader authority for national regulations that go beyond harmonised Community law with the aim of reducing the use of plant protection products.

However, it should be noted that, historically, it has been extremely difficult to achieve such changes. A large part of the interpretation of Articles 30 to 36 rests solely on ECJ interpretation practice, including the so-called Cassis de Dijon doctrine, which has never been codified even though there would have been good grounds for codifying it from the point of view of law and order.

Furthermore, changes that give the Member States wider powers have only been adopted as restrictions on changes that increase the power of the Community. The environmental guarantee was thus only introduced as a modification of the transition from Article 100 to Article 100a that implied rules on the internal market that could in future be adopted by a qualified majority instead of unanimity being required.

For these reasons, it seems unlikely that agreement could be reached on an amendment of the Treaty that gave Denmark a greater right to pursue an independent policy on plant protection products.

To conclude, it should be noted that the sub-committee is aware that initiatives are on the way for various reforms in the agricultural sector in the EU. However, the sub-committee does not believe that the initiatives in question have reached a stage that indicates a likelihood of implementation and has therefore not found it relevant to include them in this report.

^92. See the amendment to Council Directive 70/524/EEC on additives for feedstuffs with respect to withdrawal of authorisation of certain antibiotics. [Back]

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