Cypermethrin: reason to challenge Belgium's authorisation system of toxic pesticides in national court

Fruits and vegetables grown in Belgium are frequently contaminated with residues of dangerous pesticides. These include the beekiller cypermethrin, one of the toxic twelve pesticides that should be banned immediately. Together with Nature & Progrès Belgique and Bond Beter Leefmilieu, PAN Europe on 15 January 2023 asked the Belgian Council of State to withdraw two recent authorisations for pesticide formulations. 

The case concerns two recent authorisations of insecticides issued by the Belgian authorities, which contain cypermethrin. In late 2021, the substance was identified as among the more hazardous approved in the EU. After unsuccessfully calling for a rapid suspension of the two authorisations to immediately stop their unacceptable effects, NGOs are now demanding the Court to revoke the authorisations due to their illegality. 

What is cypermethrin? 

Cypermethrin is an insecticide substance belonging to the pyrethroid family. It is widely used in agriculture to control aphids, caterpillars, weevils and flies. In Belgium, cypermethrin is used on a wide range of cereals including wheat, barley, oats, spelt and rye - and vegetables like cabbage and potatoes, vines and ornamentals. The substance was first approved at the European level in 2005 for 10 years. Following recurrent delays in its re-evaluation procedure, its expiry period has been extended five times, until its recent renewal as a candidate for substitution in 2021. 

Cypermethrin has been listed by PAN Europe as one of the 12 most toxic substances, for which NGOs are calling for an immediate ban. Cypermethrin is highly toxic to bees and aquatic organisms according to the European Food Safety Authority (EFSA). Independent literature points to its potential for endocrine disruption and neurotoxicity in humans. See more on cypermethrin here.

Case content: Belgium ignores the rules on substitution

The authorisation of active substances like cypermethrin is done on the EU level. The EU can classify the most toxic substances as ‘candidate for substitution’. According to the European Regulation on Pesticides, Member States can authorise pesticides containing substances identified as particularly toxic only when there are no safer and suitable alternatives. When reviewing applications for authorisation of a product, Belgium is legally bound to perform a comparative assessment of the alternatives (chemical or non-chemical). If the conclusion of the comparative assessment is that one or more alternatives can be substituted for the product, Belgium must reject the application for authorisation. These "substitution" rules aim to limit the exposure of citizens and the environment to substances identified as more toxic by the European Union, while at the same time supporting more sustainable crop protection practices.

These substitution rules apply to 53 active substances, including cypermethrin from 1 February 2022. The two contested authorisations were issued in August and September 2022, but Belgian authorities didn’t bother to perform a comparative assessment to assess the substitution possibilities. They justify this irregularity by relying on national guidelines, written by themselves. These Belgian derogations are contrary to the European Regulation and explain why no less than 334 more toxic pesticides are authorised in Belgium. This legal action aims to challenge Belgium's practices and force it to better protect human health and the environment.

A worrisome exposure of citizens through food

In May 2022, the Forbidden Fruit report by PAN Europe highlighted that this systematic bypassing of the substitution rule by Belgium has significant consequences for Belgium citizens. PAN Europe's analysis of the residue controls carried out by the Belgian Competent Agency (AFSCA) from 2011 to 2019 reveals that Belgian-grown fruits and vegetables are the most frequently contaminated with the residues of more dangerous pesticides in entire Europe. More worryingly, this trend has been steadily increasing over these eight years and is particularly severe for fruits. In 2019, 87% of pear samples were contaminated vs. 58% in 2011. Likewise, 53% of apple samples were contaminated in 2019 vs. 29% in 2011. The fact that cypermethrin products are not allowed to be used on fruit makes it even worse. These products are contaminated with a range of other dangerous chemicals that should have been substituted long ago. This shows that the cypermethrin case is only the tip of the iceberg.

Where we are in this legal action

On 7 December 2022, Nature et Progrès Belgique and PAN Europe requested an emergency suspension of the authorisation of two cypermethrin-containing products.The extreme urgency procedure is a very specific procedure with very restrictive conditions. In this case, the judge considered that the request for suspension had not been filed quickly enough after the NGOs became aware of the facts (15 days). The judge, therefore, did not reject the NGOs' application on the merits but ruled that it was not the right procedure. 

Now joined by the Bond Beter Leefmilieu (BBL), the NGOs decided to continue the procedure through the normal legal channels. On 15 January, the NGOs filed an application for annulment before the Belgian Council of State. It is now up to Belgium to send its defence to the court.

In case the Belgian court cannot pronounce on the case, the NGOs suggest that it should ask the European Court of Justice for its opinion. The answer given to this second Court will apply to all decisions on more hazardous pesticide authorisations in all Member States. 

Authorisation of cypermethrin challenged in the EU Court of Justice

PAN Europe is also challenging the authorisation of Cypermethrin on the EU level. The European Commission did not follow the conclusions of its scientific agency (EFSA) to ban this insecticide. Endocrine disruption, genotoxicity and extreme toxicity to aquatic life and bees were among the numerous issues highlighted by the EFSA. We filed a case at the EU Court of Justice last summer. You can read more here.

Who are the NGOs behind this legal action? 

Nature & Progrès Belgique is a Walloon association which aims to promote organic farming and gardening and to contribute to biodiversity conservation.

Bond Beter Leefmilieu  Bond Beter Leefmilieu unites nature and environmental organisations and strengthens the voice of sustainable frontrunners in Flanders. It initiates and promotes the transition to a society with a fully renewable, circular economy.

Pesticide Action Network Europe is an EU Brussels-based organisation striving to eliminate hazardous pesticides in Europe, reduce dependency on pesticides, and promote ecologically sound alternatives to chemical pest control. We advocate for better regulations and take legal action when the existing laws are not respected, both on EU and at national level together with our member organisations.

© Pesticide Action Network Europe (PAN Europe), Rue de la Pacification 67, 1000, Brussels, Belgium, Tel. +32 2 318 62 55

Pesticide Action Network Europe (PAN Europe) gratefully acknowledges the financial support from the European Union, European Commission, DG Environment, LIFE programme. Sole responsibility for this publication lies with the authors and the funders are not responsible for any use that may be made of the information contained herein.