In a decision dated 4 December 2023 (Ref. 7 L 980/23), the Administrative Court of Aachen confirmed the illegality of the general ban on the use of plant protection products containing glyphosate from 1 January 2024 in accordance with Sections 1 and 9 of the Plant Protection Application Ordinance (German: Pflanzenschutz-Anwendungsverordnung) in urgent administrative proceedings. Although the urgent appeal was formally rejected by the Administrative Court, it confirmed the legal opinion of the applicants on the merits. The urgent appeal was filed by two German farmers.
In its reasoning, the Chamber first refers to the renewal of the approval of the active substance glyphosate in accordance with Implementing Regulation (EU) No. 2023/2660 of 28 November 2023. The regulation applies from 16 December 2023 (see Art. 3). It is binding in its entirety and directly applicable in all European Member States. During the urgent procedure, the Chamber contacted the responsible Federal Ministry of Food and Agriculture (BMEL) after publication of Implementing Regulation (EU) No. 2023/2660. Upon request, the BMEL explained to the Administrative Court in a letter dated 30 November 2023 that the Ministry was currently examining the adoption of an emergency ordinance to adapt the current provisions of the Plant Protection Application Ordinance to the new EU legal requirements; the ordinance could enter into force before the end of the year.
Against the background of the renewal of the approval of the active substance glyphosate in accordance with Implementing Regulation (EU) No. 2023/2660 and the announcement by the BMEL, the Chamber explicitly considers it "unlikely that the ban on the use of plant protection products containing glyphosate from 1 January 2024, as previously provided for in the Plant Protection Application Ordinance, could still be enforced against applicants". (Note: The court is referring to the users/farmers here.)
The Administrative Court also points out the primacy of Union law. The court confirms that a provision that prohibits the use of plant protection products containing glyphosate under penalty cannot be brought into line with Implementing Regulation (EU) No. 2023/2660, which allows this, and is therefore contrary to Union law from the time the ban comes into force at the latest. According to the Chamber, this is obvious. In this constellation, a penalty is no longer conceivable in the opinion of the Chamber: Implementing Regulation (EU) No. 2023/2660 takes precedence over the national Plant Protection Application Ordinance. It follows from this that Union law fully prevails over conflicting national law and that the national administrative authorities – insofar as an interpretation in conformity with Union law is not possible – may not apply conflicting national provisions. The finding of a breach of a provision contrary to Union law cannot constitute a suitable starting point for criminal prosecution.
This also applies with regard to the potential reduction in agricultural premiums. The Chamber confirms that the use of plant protection products containing glyphosate from 1 January 2024 cannot be considered a cross-compliance violation. This is contrary to the primacy of Union law. The assumption of a cross-compliance violation is ruled out from the outset in the case of an ineffective regulation or one that is contrary to Union law.
An appeal may be lodged against the decision within two weeks of notification.