Facts
Parties and procedural history:
The Greenpeace Switzerland Foundation (appellant) contested the decision of the Federal Office for Agriculture dated 4 June 2020, by which the approval for the placing on the market of the plant protection product B. by the A. AG (respondent) was partially expanded. The product contains the active substance Tefluthrin (pyrethroid) and was approved for use on fodder and sugar beets against wireworms, moss beetles and millipedes. The Greenpeace Switzerland Foundation sought the revocation of the expanded approval and alleged, in particular, a violation of the precautionary principle and insufficient environmental impact assessments.
The Federal Administrative Court dismissed the appeal with a judgment dated 1 May 2023. The Greenpeace Switzerland Foundation then filed an appeal in public law matters with the Federal Supreme Court on 12 June 2023.
Facts of the case:
In 2015, A. AG applied for an expansion of the approval for the plant protection product B. to include additional application areas. In 2020, the Federal Office for Agriculture granted a partially expanded approval, which Greenpeace Switzerland challenged on the grounds that the environmental impacts of the active substance Tefluthrin had not been adequately examined. In particular, the appellant criticised that the approval authority had not considered the exposure pathway “runoff through drainage pipes” and that the assessment of the impacts on beneficial arthropods (other than honeybees) was insufficient. It also objected that the approval of the active substance Tefluthrin had not been re-examined.
The lower court (Federal Administrative Court) held that the expansion of approval for a plant protection product does not automatically require a re-examination of the active substance approval and that the environmental impact assessment complied with the legal requirements. The Greenpeace Switzerland Foundation appealed this decision to the Federal Supreme Court.
Considerations
1. Separation of procedures: approval expansion vs. active substance approval
The Federal Supreme Court confirmed that the expansion of approval for a plant protection product and the approval of an active substance are two separate procedures. Pursuant to Art. 17 para. 1 lit. a PlantPPO, approval is only required if the active substances are already approved. A re-examination of the active substance approval in the context of the approval expansion is not envisaged unless there are concrete indications of non-compliance with the approval criteria (Art. 8 EPA). The appellant was unable to demonstrate such indications. Therefore, the lower court was correct in finding that the approval of the active substance Tefluthrin did not need to be re-examined.
2. Insufficient consideration of the exposure pathway “runoff through drainage pipes”
The Federal Supreme Court, however, found that the approval authority had not sufficiently considered the exposure pathway “runoff through drainage pipes” when assessing the impacts on aquatic organisms. Pursuant to para. 9BI-2.5.1.3 para. 1 and para. 3 lit. d Annex 9 PlantPPO, this exposure pathway must be included in the risk assessment as soon as there is a possibility that the plant protection product may enter surface waters. The lower court had rejected this on the grounds that no validated calculation models were available in Switzerland. The Federal Supreme Court, however, clarified that the ordinance does not leave any discretion as to whether an assessment must be carried out, but only as to the choice of calculation model. Since there were concrete indications of entry via drainage systems (e.g. binding of the active substance to soil particles and widespread use of drainage systems in Switzerland), the failure to carry out the assessment was unlawful. This violated the precautionary principle (Art. 1 para. 2 EPA) and the provisions of the PlantPPO.
3. Assessment of impacts on beneficial arthropods
The appellant further argued that the lower court had insufficiently examined the impacts of the plant protection product on beneficial arthropods (other than honeybees). Pursuant to para. 9CI-2.5.2.4 Annex 9 PlantPPO, approval may only be granted if more than 30% of the test organisms are not harmed or a suitable risk assessment demonstrates that no unacceptable impacts occur. The lower court relied on the SETAC guideline and the EU guideline on terrestrial ecotoxicology, which provide for a “recovery thesis”: according to this, negative impacts are acceptable if the populations recover within one year through recolonisation. The Federal Supreme Court acknowledged that these guidelines may be used as technical documents within the meaning…