The European law questions raised by the rulings of the Administrative Court of Braunschweig go well beyond the scope of the cases concerned. UBA has therefore requested the Federal Office of Consumer Protection and Food Safety (BVL) to appeal against the judgements by 28 October 2019 and allow the Higher Administrative Court of Lüneburg (and the European Court of Justice if necessary) to settle these points of law. “Otherwise, the BVL as approval authority would have to accept without complaint that environmentally harmful plant protection products continue to be approved. What would the use of the approval procedure then be? remarked Ms Krautzberger.
Sunfire herbicide: UBA had agreed to the approval of the Sunfire herbicide on the condition that the product be used only once every three years on farmland in order to protect groundwater. This is because trifluoroacetate (TFA) is a degradation product of the herbicide that is difficult to extract from groundwater in drinking water treatment. High concentrations of TFA have been traced in the groundwater in Germany, posing problems for water utility companies. In its interlocutory injunction the Administrative Court of Braunschweig declared the assessment by the German Environment Agency to be unlawful. The German Environment Agency had based its consent to approval in Germany on the most up-to-date information on the risks of TFA to groundwater available. The court, however, ruled that this newer information can first be taken into account in a future review procedure and initially by the reporting member state only (Netherlands).
Corida herbicide and insecticide Fasthrin 10 EC: UBA's review determined that the application of the products can have harmful effects on biodiversity. The killing of other vegetation and insects also deprives birds of staple food. UBA had therefore made its agreement to approval contingent upon farming operations making use of the products only when a certain share of "biodiversity space" exists on farmland. This space could include fallow land and blossoming areas which are suitable as a substitute habitat for the animal and plant species which would be endangered by use of the pesticides. Funding from the federal states is available for planting these spaces. The Administrative Court of Braunschweig did not contest the stated effects of the products on biodiversity but ruled that only those habitats and species identified in the European approval regulation are to be considered in the plant protection product approval procedure for which the European Food Safety Authority (EFSA) has developed assessment methods. However, on many important accounts the EFSA is late to develop such guidance, even ten years after the European regulation on approval entered into force. Such is the case with regard to biological diversity. According to the Administrative Court of Braunschweig, the approval authorities should not concern themselves with these and other considerations of environmental protection at the outset. Also, there is no EFSA guidance yet on the effects of seed treated with plant protection products on insects. The sowing of such treated seed can cause toxic product particles to drift to neighbouring fields. In 2008 exactly such an occurrence in the Upper Rhine region unleashed an incident of bee mortality. The lack of EFSA guidance would also force turning a blind eye on such looming threats in the future. One could take no action within the bounds of the approval procedure.
The judgements in their current form also influence how the herbicide glyphosate is handled. The approval granted for glyphosate in late 2017 included an obligation for Member States to take special consideration of the biodiversity aspect in the approval procedure and to take protective measures if necessary. Maria Krautzberger said: "Allowing this provision to protect biodiversity to become irrelevant would also have heavy political implications – its inclusion was the account on which former Agriculture Minister Christian Schmidt justified his controversial decision to permit the further use of glyphosate."
In the approval procedure for plant protection products the German Environment Agency assesses whether its use in Germany harbours risks for the environment. In such an event, UBA makes its consent to approval contingent upon the adoption of obligatory protective measures. Should such measures be insufficient, UBA then withdraws its consent and the product may not be authorised in Germany.