On September 4, 2019, a sample trial took place before the 9th Chamber of the Administrative Court of Braunschweig. Two lawsuits against the Federal Republic of Germany, represented by the Federal Office of Consumer Protection and Food Safety (BVL), were combined. In the oral hearing, the court commented for the first time on the question of whether the BVL was allowed to restrict the plant protection authorisations to 31 December 2019 on the basis of the biodiversity application provisions proposed by the Federal Environment Agency (UBA). The chamber commented on whether an additional provision may be included in the authorisation decision which, among other things, requires the pesticide user to maintain at least 10% of his total agricultural area as biodiversity compensation area.
In the judgments of 4 September 2019, the 9th Chamber of the Administrative Court of Braunschweig ordered the Federal Republic of Germany to grant authorisation beyond 1 January 2020. The Chamber confirmed that the applicant is entitled to a claim against the BVL for the granting of authorisation beyond 1 January 2020. The Chamber stated that there is no legal basis for an additional provision in a plant protection authorisation which provides for application provisions for the protection of biodiversity as a compensation measure. Neither Regulation (EC) No. 1107/2009 nor national plant protection legislation provides a sufficient legal basis for this.
The background to the legal dispute before the Administrative Court of Braunschweig was UBA's refusal to grant unconditional approval for the plant protection product in question. The UBA granted the consent on condition that the BVL includes the application provisions Biodiv1, Biodiv2 and NTneu in the notification of authorisation. According to the UBA, the application provisions for the protection of biodiversity should enter into force on 1 January 2020. By including the application provisions for the protection of biodiversity in the notification of authorisation, UBA pursued the goal of strengthening biodiversity and species diversity in the German agricultural landscape. In contrast to the UBA, however, the BVL was of the opinion that the inclusion of the application provisions for the protection of biodiversity in the authorisation certificate was illegal. Subsequently, the BVL issued the authorisation without the biodiversity application provisions, but limited the validity of authorisation to 31 December 2019. The BVL reduced the period of the authorisation deviating from its previous administrative practice. Until now, it has been the BVL's standard administrative practice to grant authorisation in principle for a period of one year from the end of the active substance authorisation.
The applicant brought an action against the reduction of the authorisation period before the Administrative Court in Braunschweig. The court granted the claim in its entirety.
In the grounds for the judgment, the Chamber stated that the conditions for granting authorisation for the plant protection product at issue were met. When granting an authorisation, the effects of the plant protection product on biological diversity and the ecological system can only be taken into account to the extent that scientific evaluation methods recognised by the European Food Safety Authority (EFSA) have been developed for this purpose. To date, however, EFSA has not developed any scientific methods for assessing the effects of plant protection products on biodiversity. The German authorities cannot introduce their own assessment methods in this respect, as Regulation (EC) No 1107/2009 has a blocking effect in this respect. This follows from the harmonisation of the plant protection authorisation procedure.
The Chamber further stated that there is neither a sufficient legal basis in Regulation (EC) No 1107/2009 nor in national plant protection law for the inclusion of the biodiversity application provisions in the authorisation notice. The biodiversity application provisions are compensation measures. There is no legal basis in Regulation (EC) No 1107/2009 for the ordering of a compensation measure.
The parties involved can apply to the Higher Administrative Court of Lüneburg for an appeal against the judgments.