Decision no. 2020-809 DC of 10 December 2020

On 10 November 2020, the Constitutional Council, in the conditions provided for in the second section of Article 61 of the Constitution, received a referral to review the law relating to the conditions for placing certain plant protection products on the market in the event of a plant health danger for sugar beets, under no 2020-809 DC, by Valérie RABAULT, Jean-Luc MÉLENCHON, André CHASSAIGNE, Joël AVIRAGNET, Marie-Noëlle BATTISTEL, Gisèle BIÉMOURET, Jean-Louis BRICOUT, Alain DAVID, Laurence DUMONT, Olivier FAURE, Guillaume GAROT, David HABIB, Christian HUTIN, Chantal JOURDAN, Régis JUANICO, Marietta KARAMANLI, Jérôme LAMBERT, Serge LETCHIMY, Josette MANIN, Philippe NAILLET, George PAU-LANGEVIN, Christine PIRES BEAUNE, Dominique POTIER, Claudia ROUAUX, Hervé SAULIGNAC, Sylvie TOLMONT, Cécile UNTERMAIER, Hélène VAINQUEUR-CHRISTOPHE, Boris VALLAUD, Michèle VICTORY, Gérard LESEUL, Isabelle SANTIAGO, Clémentine AUTAIN, Ugo BERNALICIS, Éric COQUEREL, Alexis CORBIÈRE, Caroline FIAT, Bastien LACHAUD, Michel LARIVE, Danièle OBONO, Mathilde PANOT, Loïc PRUD'HOMME, Adrien QUATENNENS, Jean-Hugues RATENON, Muriel RESSIGUIER, Sabine RUBIN, François RUFFIN, Bénédicte TAURINE, Alain BRUNEEL, Marie-George BUFFET, Pierre DHARRÉVILLE, Jean-Paul DUFRÈGNE, Elsa FAUCILLON, Sébastien JUMEL, Jean-Paul LECOQ, Stéphane PEU, Fabien ROUSSEL, Hubert WULFRANC, Karine LEBON, Manuéla KÉCLARD-MONDÉSIR, Moetai BROTHERSON, Jean-Philippe NILOR, Gabriel SERVILLE, Delphine BAGARRY, Delphine BATHO, Émilie CARIOU, Annie CHAPELIER, Guillaume CHICHE, Yolaine de COURSON, Paula FORTEZA, Albane GAILLOT, Hubert JULIEN-LAFERRIÈRE, Matthieu ORPHELIN, Aurélien TACHÉ, Frédérique TUFFNELL, Cédric VILLANI, Olivier FALORNI, François-Michel LAMBERT, Paul MOLAC, Bertrand PANCHER, Jean-Michel CLÉMENT, Paul-André COLOMBANI, Benoît SIMIAN, Jennifer De TEMMERMAN and Sébastien NADOT, Members of Parliament.

It was also referred on 12 November 2020, by Patrick KANNER, Éliane ASSASSI, Guillaume GONTARD, David ASSOULINE, Florence BLATRIX-CONTAT, Hussein BOURGI, Isabelle BRIQUET, Rémi CARDON, Catherine CONCONNE, Hélène CONWAY-MOURET, Thierry COZIC, Marie-Pierre de LA GONTRIE, Gilbert-Luc DEVINAZ, Jérôme DURAIN, Rémi FÉRAUD, Corinne FÉRET, Jean-Luc FICHET, Martine FILLEUL, Hervé GILLÉ, Laurence HARRIBEY, Jean-Michel HOULLEGATTE, Victoire JASMIN, Éric JEANSANNETAS, Patrice JOLY, Bernard JOMIER, Éric KERROUCHE, Annie LE HOUEROU, Jean-Yves LECONTE, Claudine LEPAGE, Monique LUBIN, Didier MARIE, Serge MÉRILLOU, Michelle MEUNIER, Émilienne POUMIROL, Angèle PRÉVILLE, Claude RAYNAL, Christian REDON-SARRAZY, Sylvie ROBERT, Laurence ROSSIGNOL, Lucien STANZIONE, Rachid TEMAL, Jean-Claude TISSOT, Mickaël VALLET, André VALLINI, Sabine VAN HEGHE, Yannick VAUGRENARD, Fabien GAY, Jérémy BACCHI, Cécile CUKIERMAN, Pierre LAURENT, Gérard LAHELLEC, Pascal SAVOLDELLI, Cathy APOURCEAU-POLY, Éric BOCQUET, Pierre OUZOULIAS, Laurence COHEN, Marie-Noëlle LIENEMANN, Marie-Claude VARAILLAS, Michelle GRÉAUME, Céline BRULIN, Jean-Pierre CORBISEZ, Henri CABANEL, Guy BENARROCHE, Esther BENBASSA, Thomas DOSSUS, Joël LABBÉ, Paul Toussaint PARIGI, Daniel SALMON, Sophie TAILLÉ-POLIAN, Monique de MARCO, Raymonde PONCET MONGE, Ronan DANTEC and Jacques FERNIQUE, Senators.

Having regard to the following texts:

• the Constitution;
• Ordinance No 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
• Institutional Act No 2009-403 of 15 April 2009 relating to the application of Articles 34-1, 39, and 44 of the Constitution;
• Regulation (EC) No 1107/2009 of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC;
• the Rural and Maritime Fisheries Code;
  Having regard to the observations of the Government, registered on 27 November 2020;
  Having regard to the observations in response presented by Delphine BATHO, as well as certain other applicant Members of Parliament, registered on 3 December 2020;
  Having regard to the observations in response presented by the applicant Senators, registered on 4 December 2020;
  Having regard to the new observations of the Government, registered on 8 December 2020;
  And after having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED THAT:

1. The applicant Members of Parliament and Senators refer to the Constitutional Council the law relating to the conditions for placing certain plant protection products on the market in the event of plant health danger for sugar beets The Members of Parliament oppose the procedure for adoption. The applicant Members of Parliament and Senators also criticise certain provisions of its Article 1.

• Concerning the procedure for adoption of the law:

2. The applicant Members of Parliament state that the impact study attached to the bill that is the source of the law referred for review would violate the requirements of Article 8 of the aforementioned institutional act of 15 April 2009. According to them, on the one hand, this study contains substantial errors in estimating the consequences of the viral jaundice of sugar beets on the loss in sugar yields, on the industrial sector, and on French food sovereignty. On the other hand, it does not list alternatives to the use of products that contain neonicotinoids. Lastly, it does not precisely present the assessment of the economic, financial, social and environmental consequences of the use of these products.

3. According to the third and fourth sections of Article 39 of the Constitution: “The tabling of Government Bills before the National Assembly or the Senate, shall comply with the conditions determined by an Institutional Act. - Government Bills may not be included on the agenda if the Conference of Presidents of the first House to which the Bill has been referred, declares that the rules determined by the Institutional Act have not been complied with. In the case of disagreement between the Conference of Presidents and the Government, the President of the relevant House or the Prime Minister may refer the matter to the Constitutional Council, which shall rule within a period of eight days.” According to the first section of Article 8 of the institutional act of 15 April 2009: “Bills are subject to an impact study. The documents providing the results of this impact study are to be attached to bills when they are transmitted to the Conseil d'État. They are submitted to the bureau of the first assembly called at the same time as the bills to which they apply.” According to the first section of Article 9 of the same institutional act, the Conference of Presidents of the assembly that received the bill has ten days following the submission to acknowledge that the rules relating to the impact studies have been violated.

4. The bill that is the source of the law referred for review was submitted on 3 September 2020 to the bureau of the National Assembly. The Conference of Presidents of the National Assembly did indeed receive a request noting that the rules relating to impact studies were violated. In their meeting on 15 September 2020, the Council esteemed that this was not the case. There is therefore cause for the Constitutional Council to rule on the objection made concerning the impact study violating Article 8 of the institutional act of 15 April 2009.

5. The impact study attached to the bill referred for review covered all of the questions specified by Article 8 of the institutional act of 15 April 2009. Concerning the content of this study, the objection due to the violation of these provisions must be dismissed.

• Concerning certain provisions of Article 1:

6. Article 1 of the law referred for review, which modifies Article L. 253-8 of the Rural and Maritime Fisheries Code, introduces a derogation of the prohibition of the use of plant protection products that contain one or several of the active substances in the neonicotinoid family, specified by decree, and seeds treated with these products.

7. The applicant Members of Parliament firstly contend that by referring the determination of these substances to a decree, the legislator has restricted the scope of the prohibition that the legislator would have already decided, and violates the right to live in a balanced environment which shows due respect for health, protected by Article 1 of the Charter for the Environment.

8. The applicant Members of Parliament further contend that by allowing for the use of seeds treated with substances from the neonicotinoid family by derogation, the legislator has authorised certain, irreversible and massive environmental damage. In doing so, on the one hand, the legislator's effort to reconcile the right of free enterprise and objectives of constitutional value of protection of the environment and of health is clearly unbalanced. On the other hand, the legislator would have also violated Articles 1, 2, 3, 5 and 6 of the Charter for the Environment, from which the right to live in a balanced environment which shows due respect for health, the obligation to take part in the preservation and improvement of the environment, the obligation to prevent damage to the environment, the principle of precaution, and the principle by which public policy must promote sustainable development. Lastly, the legislator would have violated the right to property of bee-keepers and persons living near the places where the authorised products are used. They further contend that the disputed provisions are also judged as not acting fully within the competence of jurisdiction, in that they do not sufficiently define the conditions under which a derogation can be authorised.

9. The applicant Senators join the Members of Parliament in the criticism of the derogation provided for by the legislator to the prohibition of the use of products containing active substances from the neonicotinoid family. With them, they esteem that this derogation violates a principle of non-regression in environmental affairs, which comes from Article 2 of the Charter for the Environment and that they ask the Constitutional Council to recognise. This principle would prohibit the legislator from diminishing the level of legal protection provided to the environment without sufficient justification.

10. Moreover, the applicant Senators state that this derogation would take away legal guarantees to constitutional requirements related to the protection of the environment, based on the first six articles of the Charter for the Environment. Given the dangerous nature of these substances to human health, the legislator would have also violated the constitutional requirement of the protection of health.

11. Lastly, the applicant Senators contend that this same article would create an incomplete adaptation of national law to the aforementioned regulation of 21 October 2009, violating the obligation that comes from Article 88-1 of the Constitution.

. Regarding the reference texts:

12. According to Article 1 of the Charter for the Environment, “Each person has the right to live in a balanced environment which shows due respect for health.” Its Article 2 states: “Each person has a duty to participate in preserving and enhancing the environment.” Its Article 6 states: “Public policies shall promote sustainable development. To this end they shall reconcile the protection and enhancement of the environment with economic development and social progress.”

13. If the legislator, acting within their powers, is able to modify the previous texts or to repeal them by substituting, if the case may be, with other provisions, they must take into account the obligation to participate in the protection and enhancement of the environment mentioned in Article 2 of the Charter for the Environment, and without taking away legal guarantees for the right to live in a balanced environment that shows due respect for health as established in Article 1 of the Charter for the Environment.

14. The limits that the legislator practised of this right could only be linked to constitutional requirements or justified by the general interest and proportionate to the pursued objective.

. Concerning the objection due to the violation of Article 1 of the Charter for the Environment:

• With regard to determining the substances prohibited from use:

15. The first section of paragraph II of Article L. 253-8 of the Rural and Maritime Fisheries Code states that the use of plant protection products that contain one or several active substances from the neonicotinoid family or that present methods of action that are similar to those substances, as well as the use of seeds that are treated with these products, is prohibited. The list of these substances must be specified by decree.

16. Without distorting the principle set by the legislator of a general prohibition of the use of plant protection products that contain one or several active substances from the neonicotinoid family or that present methods of action that are similar to those substances, this referral to a decree cannot be interpreted as giving the regulatory power the ability to decide to not require the prohibition of certain ones of the substances concerned. They only seek to require the regulatory power to establish the list, if necessary using the possibility that they are given by the regulation of 21 October 2009 to prohibit substances that they esteem, even if approved by the European Commission, present a serious risk to human or animal health or the environment.

17. It follows from the foregoing that the objection due to the violation of Article 1 of the Charter for the Environment by the words “listed by decree” that are in the first section of paragraph II of Article L. 253-8 of the Rural and Maritime Fisheries Code must be dismissed.

• With regard to derogations to the prohibition of the use of products containing neonicotinoids or other similar substances:

18. The second section of paragraph II of Article L. 253-8 of the Rural and Maritime Fisheries Code allows, by derogation in the first section of this paragraph, for authorisation of the use of certain plant protection products containing active substances from the neonicotinoid family or presenting methods of action that are identical to these substances.

19. These products have an impact on biodiversity, particularly for pollinating insects and birds, as well as consequences on water and soil quality, and pose risks to human health.

20. However, firstly, the legislator focused the application of these provisions on the treatment of sugar beets, as provided for in Article L. 253-8-3 of the Rural and Maritime Fisheries Code introduced by Article 2 of the law referred for review. It follows from preparatory work that the legislator therefore sought to counter serious danger that threatened the production of these plants due to massive infestations of aphids that are vectors of viral infections, and consequently sought to preserve the agricultural and industrial businesses in this sector and their production capacities. In doing so, the legislator pursued an objective in the general interest.

21. Secondly, the disputed provisions only allow a derogation of the prohibition of the use of the products concerned here for a temporary period, to allow for time to adequately develop alternative solutions. This possibility is exclusively available until 1 July 2023.

22. Thirdly, this derogation can only be implemented by joint order by the ministers of agriculture and the environment, decision taken after the issue of the opinion of a specially created supervisory committee, in paragraph II bis of Article L. 253-8, and according to the conditions of Article 53 of the European regulation of 21 October 2009, applicable to emergency situations of plant health protection. This Article 53 only allows for a “limited and controlled use” of the products concerned here, as part of an authorisation delivered for a period that does not exceed one hundred and twenty (120) days, subject to this usage being justified by “special circumstances” and that it is required “a danger which cannot be contained by any other reasonable means”.

23. Lastly, on the one hand, by focusing on “the use of seeds treated with products” containing the substances concerned here, the disputed provisions only authorise treatment that is directly applied to the seeds, excluding any spraying, in an effort to limit the risk of this substance being dispersed. On the other hand, in application of the last section of paragraph II of Article L. 253-8, when such a treatment is applied, the seeds, planting, and replanting of plants that attract pollinating insects are temporarily prohibited, in order to limit these insects' exposure to the products being used.

24. It follows from the foregoing that, given that in particular they are exclusively applicable until 1 July 2023, the provisions of the second section of paragraph II of Article 253-8 of the Rural and Maritime Fisheries Code do not eliminate legal guarantees of the right to live in a balanced environment which shows due respect for health guaranteed by Article 1 of the Charter for the Environment, and that the limitation put in place for the exercise of this right is justified by a motive of general interest, and that is proportionate to the pursued objective.

25. Furthermore, far from violating the provisions of the European regulation of 21 October 2009, the referral to the conditions of Article 53 of said regulation to provide for the aforementioned derogations to the prohibition of the use of certain plant protection products seeks to ensure compliance with the provisions. The objection to the violation of Article 88-1 of the Constitution must therefore be dismissed.

26. The disputed provisions also do not violate Articles 2, 3, 4, 5, and 6 of the Charter for the Environment, the right to property, as well as the obligation of protection of health, and are not judged as not acting fully within the competence of jurisdiction.

27. It follows from the foregoing that the words “listed by decree” that are in the first section of paragraph II of Article L. 253-8 of the Rural and Maritime Fisheries Code and the second section of the same paragraph, which do not violate any other constitutional requirement, conform to the Constitution.

• Concerning the other provisions:

28. The Constitutional Council has not systematically raised any question of constitutionality and has therefore not ruled on the constitutionality of provisions other than those examined in this decision.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - The words “listed by decree” in the first section of paragraph II of Article L. 253-8 of the Rural and Maritime Fisheries Code, in its formulation resulting from Article 1 of the law relating to the conditions for placing certain plant protection products on the market in the event of plant health danger for sugar beets, conform to the Constitution.

Article 2. - The second section of the same paragraph II, which is exclusively applicable until 1 July 2023, conforms to the Constitution.

Article 3. - This decision shall be published in the Journal Officiel of the French Republic.

Ruled by the Constitutional Council in its 10 December 2020 session, with the following members present: Laurent FABIUS, President, Claire BAZY MALAURIE, Alain JUPPÉ, Dominique LOTTIN, Corinne LUQUIENS, Nicole MAESTRACCI, Jacques MÉZARD, François PILLET and Michel PINAULT.

Published on 10 December 2020.