Agriculture litigation
The EU’s Common Agricultural Policy‘s failure to achieve its environmental objectives by continuing to drive the further industrialisation and intensification of the EU agricultural system – therefore harming human health, driving nature loss and exacerbating the climate crisis – is illustrated by a growing number of legal cases across the EU.
Court rulings across the EU are making it increasingly clear: current intensive agricultural practices are causing governments to break the law. From pesticides, to nitrates pollution, courts have found governments to be in breach of EU environmental law – the objectives of which the Common Agricultural Policy (the CAP) is meant to help achieve. As a result, governments have been compelled to change their approach to nitrates pollution, reduce the greenhouse gas (GHG) emissions from the land use sector and reduce pesticides pollution, outlining the key steps that are needed for the transition towards more sustainable agriculture.
Whilst such rulings are promising, the current wave of litigation is a yet another sign of a broken system. The CAP makes up approximately a third of the EU budget, and this public money is thrown at a system that fails farmers and leads governments to break the law. CAP money should be used to fund a just transition towards social and environmental sustainability in the farming sector, reducing the need for people to go to court to fight for clean drinking water or protection from dangerous pesticides.
It is high time to abolish the 2-pillar structure of the CAP and to establish a new major funding instrument for food system transition and sustainable land stewardship: a Common Agricultural, Food and Land Stewardship Policy. And until that happens litigation will continue to play a vital role in pushing for much-needed change.
Why is there a need for litigation?
Intensive agriculture is the main driver of biodiversity loss in Europe, accounts for about 11% of the EU’s total GHG emissions and drives pollution.
The EU’s CAP – a third of the EU’s budget – has been failing to address the sectors’ role in the triple crisis. Instead, it has exacerbated environmental issues, which is likely to worsen following the undemocratic and fast-tracked reform of the CAP in April 2024. On top of this, the CAP is also failing farmers, who are leaving the sector en masse, protesting for fair food prices and are amongst the first to be hit, and hit hard, by the impact of the climate and biodiversity crisis.
On paper, or rather in law, the CAP is required to contribute to climate change mitigation and adaptation, to halting and reversing biodiversity loss, as well as building the ‘resilience of the agricultural sector’. To achieve this, EU governments are required to ensure that their national CAP strategic plans contribute to the achievement of and are consistent with core EU environmental law on water, biodiversity, nitrates, air, climate mitigation and pesticides use.
But the growth of agricultural-related litigation demonstrates that governments are failing to comply with these laws as current agricultural practices, such as industrial volumes of manure-spreading from intensive animal farming, intensive pesticide use, and an over-production of meat and dairy products are driving non-compliance.
Driving change in the agricultural sector
EU environmental law is a common thread in cases being fought in national courts across the EU. This means that a ruling in a German court can inform cases in other EU countries and serves as a warning to other governments in breach of EU environmental law.
The EU laws which link the various cases across Europe illustrate the potential for cases to be replicated. On this page, we seek to highlight a few examples of such cases. Each case has the potential to help drive change in the agricultural sector and further highlight the urgency, necessity and legal obligations to transition the EU’s approach to agricultural policy.
Get in touch
If you are involved in agriculture litigation and/or are interested in exploring whether a similar case could be brought to a court in your country, please reach out!
Court cases across Europe
Justice pour le vivant, France
Significant loopholes in the French authorisation process for pesticides led five NGOs to take legal action to ensure the real, and devastating, effects of pesticide products are taken into account during state assessment. A partial success with proceedings still ongoing.
Tribunal Administratif de Paris, 29 June 2023
Court: Administrative Court of Paris and Administrative Court of Appeal of Paris
Case reference: N°2200534/4-1
Country: France
NGO involved: POLLINIS, Notre Affaire à Tous, Biodiversité sous nos pieds, ANPER-TOS, ASPAS
Filing date: 10 January 2022
Decision date: 29 June 2023 (appeal pending)
Target: French government
Main law: EU Regulation 1107/2009 concerning the placing of plant protection products on the market (Art.4(3))
Process: National litigation; Claim for environmental damages
Issue: Whether France’s pesticides authorisation procedure is adequate to assess the effects of pesticides on the environment and meets the Regulation 1107/2009 Art.4 criteria
Summary
Argument
In an action for damages, the five NGOs argued that the French authorisation process for pesticide products has significant loopholes and is therefore in breach of Art.4 of Regulation 1107/2009 and the precautionary principle. The aim of the case is to force the state to review the risk assessment procedure to take into account all the real effects of pesticide products, including chronic effects, cocktail effects, sublethal effects and indirect effects.
In addition, the group argued that the state’s own target to reduce pesticides use by 50% by 2018 was not met and that the state failed to comply with the Water Framework Directive (WFD) by inadequately protecting groundwater and freshwater and thereby failing to meet the objectives of the WFD.
Ruling
The Administrative Court of Paris recognised the existence of ecological damage stemming from the widespread contamination of water, soil and air through pesticides and the resulting biodiversity decline. It also recognised flaws in the procedure for evaluating and authorising the marketing of pesticides, in breach of the precautionary principle.
The Court found the state in breach of its pesticide reduction target and in breach of the WFD by inadequately protecting groundwater from pesticides. It therefore ordered the state to take all necessary measures to meet the pesticide reduction targets, to take measures to restore the ecological damage caused, and to protect and restore groundwater from the effects of pesticides and their residues. However, the court did not find the state to be in breach of the WFD for its failure to meet the Directive’s objectives as it found the use of derogations to be justified.
Despite recognising a direct causal link between the inadequacies in the risk assessment and biodiversity decline, the Court did not order the state to review the risk assessment methodologies, holding that it cannot be established with certainty that a better risk assessment would make it possible to significantly modify the number or nature of pesticides placed on the market. The five NGOs are therefore appealing on this point.
Phyteis, the agrochemical lobby in France, has intervened to support the French state on appeal – as they already did at first instance. They are seeking to protect the status quo of inaction of the state, at the expense of biodiversity and human health.
Tribunal Administratif de Paris, 29 June 2023
Court: Administrative Court of Paris and Administrative Court of Appeal of Paris
Case reference: N°2200534/4-1
Country: France
NGO involved: POLLINIS, Notre Affaire à Tous, Biodiversité sous nos pieds, ANPER-TOS, ASPAS
Filing date: 10 January 2022
Decision date: 29 June 2023 (appeal pending)
Target: French government
Main law: EU Regulation 1107/2009 concerning the placing of plant protection products on the market (Art.4(3))
Process: National litigation; Claim for environmental damages
Issue: Whether France’s pesticides authorisation procedure is adequate to assess the effects of pesticides on the environment and meets the Regulation 1107/2009 Art.4 criteria
Summary
Argument
In an action for damages, the five NGOs argued that the French authorisation process for pesticide products has significant loopholes and is therefore in breach of Art.4 of Regulation 1107/2009 and the precautionary principle. The aim of the case is to force the state to review the risk assessment procedure to take into account all the real effects of pesticide products, including chronic effects, cocktail effects, sublethal effects and indirect effects.
In addition, the group argued that the state’s own target to reduce pesticides use by 50% by 2018 was not met and that the state failed to comply with the Water Framework Directive (WFD) by inadequately protecting groundwater and freshwater and thereby failing to meet the objectives of the WFD.
Ruling
The Administrative Court of Paris recognised the existence of ecological damage stemming from the widespread contamination of water, soil and air through pesticides and the resulting biodiversity decline. It also recognised flaws in the procedure for evaluating and authorising the marketing of pesticides, in breach of the precautionary principle.
The Court found the state in breach of its pesticide reduction target and in breach of the WFD by inadequately protecting groundwater from pesticides. It therefore ordered the state to take all necessary measures to meet the pesticide reduction targets, to take measures to restore the ecological damage caused, and to protect and restore groundwater from the effects of pesticides and their residues. However, the Court did not find the state to be in breach of the WFD for its failure to meet the Directive’s objectives as it found the use of derogations to be justified.
Despite recognising a direct causal link between the inadequacies in the risk assessment and biodiversity decline, the Court did not order the state to review the risk assessment methodologies, holding that it cannot be established with certainty that a better risk assessment would make it possible to significantly modify the number or nature of pesticides placed on the market. The five NGOs are therefore appealing on this point.
Phyteis, the agrochemical lobby in France, has intervened to support the French state on appeal – as they already did at first instance. They are seeking to protect the status quo of inaction of the state, at the expense of biodiversity and human health.
Polluted drinking water at Lake Vico, Italy
ClientEarth and Lipu (Birdlife Italy) took Italian authorities to court over pollution at Lake Vico, a Nature2000 site and drinking water source. The result? A legal first, as Italy’s top court demands that the Lazio region reverse the destruction of the protected lake.
LIPU-BirdLife and ClientEarth v Lazio region
Court: Council of State / Administrative Court for the Lazio Region
Case reference:
N. 01925/2023 REG.PROV.COLL
N. 01926/2023 REG.PROV.COLL
N. 01927/2023 REG.PROV.COLL
N. 08897/2023 REG.PROV.COLL
N. 03945/2024 REG.PROV.COLL
Country: Italy
NGO involved: ClientEarth & Lipu (BirdLife Italy)
Filing date: October 2022
Decision date: October 2023 & April 2024
Target: Italian local authorities (Lazio Region and others)
Main law:
Habitats Directive 92/43/EEC
Drinking Water Directive 98/83/EC
EU Nitrates Directive 91/676/EEC
Process: National litigation (administrative)
Issue: Failure of the Lazio region to designate area as nitrates-vulnerable and to adopt the related necessary measures to avoid Natura 2000 Lake Vico site from deteriorating and drinking water from becoming undrinkable.
Summary
The Lake Vico region is covered by intensive hazelnut plantations. The agricultural intensification of the region has led to an increase in fertiliser and pesticide use, causing run-off into Lake Vico. This has led to eutrophication, algae growth, red algal blooms releasing carcinogenic and toxic chemicals and the overall degradation of protected habitats. The water has become undrinkable for the inhabitants of the region as a result.
In 2022, ClientEarth and Lipu (BirdLife Italy) sent letters of warning to the public administrations of the Lazio region, the municipalities of Ronciglione and Caprarola, and the Water Service Authorities, requesting that they comply with EU and national laws. Following the lacking or unsatisfactory responses, the two groups then took the Lazio region to court, requesting the identification of the region as a nitrate vulnerable zone under the Nitrates Directive (triggering stricter rules for fertiliser use in the area), to adopt all measures to prevent algal blooms under the Drinking Water Directive, and to adopt measures to prevent the deterioration of protected habitats in line with the Habitats Directive.
The case was dealt with in three separate stages.
First, in February 2023, the Administrative Court of Rome ordered the Lazio Region to comply with the Nitrates Directive, which lead to the initiation of the designation of the area as a nitrates vulnerable zone. However, the Court dismissed the arguments relating to the non-compliance with the Drinking Water Directive and Habitats Directive. The two NGOs therefore filed two separate appeals.
Second, in October 2023, on appeal from the Administrative Court of Rome, the Council of State ruled that the authorities had failed to comply with the Drinking Water Directive. The Court ordered the Lazio region to take appropriate preventive and corrective measures and to develop a management plan to address the algal bloom within 60 days.
Third, in late April 2024, on a separate appeal from the Administrative Court of Rome, the Council of State ruled that the authorities had also failed to comply with the Habitats Directive. The Court ordered the Lazio region to adopt the appropriate measures under Art.6(2) Habitats Directive to avoid the deterioration of the Lake Vico habitats protected in the Lake Vico Natura 2000 site within 180 days.
LIPU-BirdLife and ClientEarth v Lazio region
Court: Council of State / Administrative Court for the Lazio Region
Case reference:
N. 01925/2023 REG.PROV.COLL
N. 01926/2023 REG.PROV.COLL
N. 01927/2023 REG.PROV.COLL
N. 08897/2023 REG.PROV.COLL
N. 03945/2024 REG.PROV.COLL
Country: Italy
NGO involved: ClientEarth & Lipu (BirdLife Italy)
Filing date: October 2022
Decision date: October 2023 & April 2024. Ongoing appeal.
Target: Italian local authorities (Lazio Region and others)
Main law:
Habitats Directive 92/43/EEC
Drinking Water Directive 98/83/EC
EU Nitrates Directive 91/676/EEC
Process: National litigation (administrative)
Issue: Failure of the Lazio region to designate area as nitrates-vulnerable and to adopt the related necessary measures to avoid Natura 2000 Lake Vico site from deteriorating and drinking water from becoming undrinkable.
Summary
The Lake Vico region is covered by intensive hazelnut plantations. The agricultural intensification of the region has led to an increase in fertiliser and pesticide use, causing run-off into Lake Vico. This has led to eutrophication, algae growth, red algal blooms releasing carcinogenic and toxic chemicals and the overall degradation of protected habitats. The water has become undrinkable for the inhabitants of the region as a result.
In 2022, ClientEarth and Lipu (BirdLife Italy) sent letters of warning to the public administrations of the Lazio region, the municipalities of Ronciglione and Caprarola, and the Water Service Authorities, requesting that they comply with EU and national laws. Following the lacking or unsatisfactory responses, the two groups then took the Lazio region to court, requesting the identification of the region as a nitrate vulnerable zone under the Nitrates Directive (triggering stricter rules for fertiliser use in the area), to adopt all measures to prevent algal blooms under the Drinking Water Directive, and to adopt measures to prevent the deterioration of protected habitats in line with the Habitats Directive.
The case was dealt with in three separate stages.
First, in February 2023, the Administrative Court of Rome ordered the Lazio Region to comply with the Nitrates Directive, which lead to the initiation of the designation of the area as a nitrates vulnerable zone. However, the Court dismissed the arguments relating to the non-compliance with the Drinking Water Directive and Habitats Directive. The two NGOs therefore filed two separate appeals.
Second, in October 2023, on appeal from the Administrative Court of Rome, the Council of State ruled that the authorities had failed to comply with the Drinking Water Directive. The Court ordered the Lazio region to take appropriate preventive and corrective measures and to develop a management plan to address the algal bloom within 60 days.
Third, in late April 2024, on a separate appeal from the Administrative Court of Rome, the Council of State ruled that the authorities had also failed to comply with the Habitats Directive. The Court ordered the Lazio region to adopt the appropriate measures under Art.6(2) Habitats Directive to avoid the deterioration of the Lake Vico habitats protected in the Lake Vico Natura 2000 site within 180 days.
- February 2023 first instance ruling (Nitrates Directive)
- February 2023 first instance ruling (Habitats Directive)
- February 2023 first instance ruling (Drinking Water Directive
- October 2023 Council of State appeal (Drinking Water Directive)
- April 2024 Council of State appeal (Habitats Directive)
- ClientEarth press release October 2022 (launch)
- Lipu press release May 2023 (appeal)
- ClientEarth press release October 2023
- ClientEarth press release May 2024
Nitrate pollution, Germany
60% of Lower Saxony’s land is used for agriculture, a large proportion of which for meat production. As a result, nitrates are polluting drinking water and local ecosystems. DUH and BUND took action by taking the regional governments to court for failing to meet the objectives of the Water Framework Directive. The result? The case was successful on all grounds and the regional governments have been compelled to take effective measures.
DUH and BUND v Lower Saxony and North Rhine-Westphalia
Court: Higher Administrative Court Lüneburg
Case reference: 7 KS 8/21
Country: Germany
NGO involved: DUH, BUND
Filing date: 20 November 2019
Decision date: 22 November 2023, appeal pending
Target: Regional government of Lower Saxony and North Rhine-Westphalia
Main law: Water Framework Directive 2000/60, Art.4 & 11
Process: National litigation (administrative)
Issue: Inadequacy of measures to meet WFD objectives of good chemical and groundwater status, conditions for deadline-extensions
Summary
DUH and BUND sought a court order for the regional governments of Lower Saxony and North Rhine-Westphalia to draw up a programme of measures for the Ems river basin that is capable of meeting the limit value of 50 mg/l in all ground water bodies in the Ems river basin, as soon as possible.
In 2017, 29% of the 167 measuring points in Lower Saxony exceeded the nitrates limit (50 mg/l) in ground water bodies, some with results of up to 186 mg/l. A 2019 drinking water report found that 36% of all measuring points for monitoring drinking water areas exceeded the nitrates limit in near-surface ground water. 60% of Lower Saxony’s land is used for agriculture with the Weser-Ems region being a centre of meat production.
Three key arguments are at the core of this case:
- The Art.11 Water Framework Directive (WFD) programme of measures must contain all measures necessary to achieve the objectives of Art.4 WFD (good status, non-deterioration, trend-reversion and phasing-out), in this case with regards to nitrates
- Where the 2015 deadline to reach good status was missed, governments must take measures to achieve good status as quickly as possible, also when relying on a time extension on the basis of ‘natural conditions’
- Deadline extensions in river basin management plans must be properly explained and based on a sound scientific basis, otherwise extensions are invalid.
Therefore, the two NGOs argued that there was a clear breach of Art.4(1)(b) of the WFD as good chemical status was not achieved due to the exceedance of the 50mg/l nitrates concentration in groundwater, that the 2015 deadline of the WFD had clearly been missed, that the conditions for extensions were not met and that therefore, there was no justification for the long-term failure to meet the WFD’s objective. In addition, they argued the non-deterioration obligation was breached, along with Art.11 WFD due to the failure to establish a coherent overall concept of effective measures to reach the objectives.
The case was successful on all grounds and broadly speaking followed the approach of earlier air pollution cases. The Higher Administrative Court of Lüneburg compelled Lower Saxony and North Rhine-Westphalia to take effective measures to reach the limit value of 50 mg/l in all Ems ground water bodies as quickly as possible, to prevent deterioration of the chemical status of the Ems ground water bodies through an increase in nitrates pollution, and to reverse the harm done.
The Court also clarified that governments cannot delay achieving the objectives of the WFD to the uncertain future. Instead, they must take effective measures to ensure the objectives are reached as soon as possible, and within the deadlines of the WFD. It further found that the conditions for extensions from the deadline under Art.4(4) WFD were not met as an extension can only be justified if a detailed explanation of the reasoning for the extension is provided for each individual water body. It is for the authority to demonstrate that the requirements for an extension are met, and authorities cannot mix the conditions for extensions. A failure to adequately justify an extension is unlawful and requires an amendment of the programme of measures.
The case is being appealed by the governments of Lower Saxony and North Rhine-Westphalia.
DUH and BUND v Lower Saxony and North Rhine-Westphalia
Court: Higher Administrative Court Lüneburg
Case reference: 7 KS 8/21
Country: Germany
NGO involved: Deutsche Umwelthilfe (DUH), BUND (Friends of the Earth Germany)
Filing date: 20 November 2019
Decision date: 22 November 2023, appeal pending
Target: Regional government of Lower Saxony and North Rhine-Westphalia
Main law: Water Framework Directive 2000/60, Art.4 & 11
Process: National litigation (administrative)
Issue: Inadequacy of measures to meet WFD objectives of good chemical and groundwater status, conditions for deadline-extensions
Summary
DUH and BUND sought a court order for the regional governments of Lower Saxony and North Rhine-Westphalia to draw up a programme of measures for the Ems river basin that is capable of meeting the limit value of 50 mg/l in all ground water bodies in the Ems river basin, as soon as possible.
In 2017, 29% of the 167 measuring points in Lower Saxony exceeded the nitrates limit (50 mg/l) in ground water bodies, some with results of up to 186 mg/l. A 2019 drinking water report found that 36% of all measuring points for monitoring drinking water areas exceeded the nitrates limit in near-surface ground water. 60% of Lower Saxony’s land is used for agriculture with the Weser-Ems region being a centre of meat production.
Three key arguments are at the core of this case:
- The Art.11 Water Framework Directive (WFD) programme of measures must contain all measures necessary to achieve the objectives of Art.4 WFD (good status, non-deterioration, trend-reversion and phasing-out), in this case with regards to nitrates
- Where the 2015 deadline to reach good status was missed, governments must take measures to achieve good status as quickly as possible, also when relying on a time extension on the basis of ‘natural conditions’
- Deadline extensions in river basin management plans must be properly explained and based on a sound scientific basis, otherwise extensions are invalid.
Therefore, the two NGOs argued that there was a clear breach of Art.4(1)(b) of the WFD as good chemical status was not achieved due to the exceedance of the 50mg/l nitrates concentration in groundwater, that the 2015 deadline of the WFD had clearly been missed, that the conditions for extensions were not met and that therefore, there was no justification for the long-term failure to meet the WFD’s objective. In addition, they argued the non-deterioration obligation was breached, along with Art.11 WFD due to the failure to establish a coherent overall concept of effective measures to reach the objectives.
The case was successful on all grounds and broadly speaking followed the approach of earlier air pollution cases. The Higher Administrative Court of Lüneburg compelled Lower Saxony and North Rhine-Westphalia to take effective measures to reach the limit value of 50 mg/l in all Ems ground water bodies as quickly as possible, to prevent deterioration of the chemical status of the Ems ground water bodies through an increase in nitrates pollution, and to reverse the harm done.
The Court also clarified that governments cannot delay achieving the objectives of the WFD to the uncertain future. Instead, they must take effective measures to ensure the objectives are reached as soon as possible, and within the deadlines of the WFD. It further found that the conditions for extensions from the deadline under Art.4(4) WFD were not met as an extension can only be justified if a detailed explanation of the reasoning for the extension is provided for each individual water body. It is for the authority to demonstrate that the requirements for an extension are met, and authorities cannot mix the conditions for extensions. A failure to adequately justify an extension is unlawful and requires an amendment of the programme of measures.
The case is being appealed by the governments of Lower Saxony and North Rhine-Westphalia.
Pesticides in protected areas, Belgium
Five NGOs are taking the Flemish government to court in an attempt to tackle the significant use of pesticides in the region, arguing that the current lack of an appropriate assessment for pesticide use in and around Natura 2000 areas constitutes an infringement of EU law.
Natuurpunt, WWF, Velt, BBL and Dryade v Flemish government
Court: Court of first instance in Brussels
Case reference: 2023/339/A
Country: Belgium
NGO involved: Bond Beter Leefmilieu, Natuurpunt, WWF Belgium, Velt, Dryade
Filing date: January 2023
Decision date: Pending
Target: Flemish government
Main law:
Habitats Directive 92/43
Sustainable Use of Pesticides Directive 2009/128
Belgian Civil Code
Process: National litigation, non-implementation of EU law & civil law
Issue: Appropriate assessments for pesticides use in or near Natura 2000 areas; measures to minimise or prohibit pesticide used; buffer zones around Natura 2000 areas, water bodies and areas used by the (vulnerable) public
Summary
The case seeks to tackle the significant pesticide use in Belgium (Belgium is the second largest consumer of pesticides in Europe, after the Netherlands) with the aim of making 35% of Flanders pesticides-free. The case is based on EU environmental law, the Flemish Nature Decree and Art.1382 and 1383 of the Belgian Civil Code setting out a duty of care to repair damage negligently caused. The group makes three main arguments.
First, they argue that the current lack of an appropriate assessment for pesticide use in and around Natura 2000 areas (as it does not require a permit) constitutes an infringement of Art.6(2) and (3) of the Habitats Directive. Belgium was already condemned by the Court of Justice for the incorrect transposition of Art.6(3) of the Habitats Directive in the Walloon region for the same reason (C-538/09). The group therefore demands an appropriate assessment for pesticide use, ensuring that pesticides may only be used in or near Natura 2000 areas where there are no significant effects on the site.
Second, they argue that contrary to Art.12 of the Sustainable Use of Pesticides Directive (SUD), Flemish legislation does not contain measures to minimise or prohibit the use of pesticides in Natura 2000 areas and those protected under the Water Framework Directive (WFD). Moreover, the current exception for agricultural and horticultural activities under Flemish law constitutes an infringement of the SUD. The group therefore seeks an order for the Flemish government to take measures to minimise or prohibit pesticides use in Natura 2000 or WFD areas.
Third, the current approach to buffer zones around Natura 2000 areas, areas protected under the WFD, as well as areas used by the general public or by vulnerable groups (schools, care homes, crèches, …) further constitutes an infringement of the Habitats Directive and SUD. Research shows that pesticides spread up to 2-3km from where there are used while current buffer zones are usually 1-10m wide. The group therefore demands the enlargement of the buffer zones, based on scientific research.
The pleadings will be in November 2024.
Natuurpunt, WWF, Velt, BBL and Dryade v Flemish government
Court: Court of first instance in Brussels
Case reference: 2023/339/A
Country: Belgium
NGO involved: Bond Beter Leefmilieu, Natuurpunt, WWF Belgium, Velt, Dryade
Filing date: January 2023
Decision date: Pending
Target: Flemish government
Main law:
Habitats Directive 92/43
Sustainable Use of Pesticides Directive 2009/128
Belgian Civil Code
Process: National litigation, non-implementation of EU law & civil law
Issue: Appropriate assessments for pesticides use in or near Natura 2000 areas; measures to minimise or prohibit pesticide used; buffer zones around Natura 2000 areas, water bodies and areas used by the (vulnerable) public
Summary
The case seeks to tackle the significant pesticide use in Belgium (Belgium is the second largest consumer of pesticides in Europe, after the Netherlands) with the aim of making 35% of Flanders pesticides-free. The case is based on EU environmental law, the Flemish Nature Decree and Art.1382 and 1383 of the Belgian Civil Code setting out a duty of care to repair damage negligently caused. The group makes three main arguments.
First, they argue that the current lack of an appropriate assessment for pesticide use in and around Natura 2000 areas (as it does not require a permit) constitutes an infringement of Art.6(2) and (3) of the Habitats Directive. Belgium was already condemned by the Court of Justice for the incorrect transposition of Art.6(3) of the Habitats Directive in the Walloon region for the same reason (C-538/09). The group therefore demands an appropriate assessment for pesticide use, ensuring that pesticides may only be used in or near Natura 2000 areas where there are no significant effects on the site.
Second, they argue that contrary to Art.12 of the Sustainable Use of Pesticides Directive (SUD), Flemish legislation does not contain measures to minimise or prohibit the use of pesticides in Natura 2000 areas and those protected under the Water Framework Directive (WFD). Moreover, the current exception for agricultural and horticultural activities under Flemish law constitutes an infringement of the SUD. The group therefore seeks an order for the Flemish government to take measures to minimise or prohibit pesticides use in Natura 2000 or WFD areas.
Third, the current approach to buffer zones around Natura 2000 areas, areas protected under the WFD, as well as areas used by the general public or by vulnerable groups (schools, care homes, crèches, …) further constitutes an infringement of the Habitats Directive and SUD. Research shows that pesticides spread up to 2-3km from where there are used while current buffer zones are usually 1-10m wide. The group therefore demands the enlargement of the buffer zones, based on scientific research.
The pleadings will be in November 2024.
Nitrate pollution in Flanders, Belgium
Five NGOs took legal action against the Flemish government after significant exceedance of nitrates in Flemish watercourses. The result? The Flemish government was found to have breached EU law regulating nitrates and ordered to take additional measures.
Greenpeace Belgium et al v Flemish region
Court: Court of First Instance in Brussels
Case reference: 2022/2570/A
Country: Belgium
NGO involved: Bond Beter Leefmilieu (BBL), Dryade, Greenpeace Belgium, Natuurpunt and WWF Belgium
Filing date: July 2022
Decision date: June 2023
Target: Flemish government
Main law:
Nitrates Directive 91/676, Art.3 & 5
Water Framework Directive 2000/60
Process: National litigation, using Milieustakingswet (‘Environmental Enforcement Act’)
Issue: Nitrates Directive 50mg n/l threshold, additional measures, impact on WFD objectives
Summary
The case arose due to the significant exceedance of the 50mg n/l of nitrate threshold at 31% of Flemish measuring points. This means that the objectives of the Water Framework Directive (WFD) are not achieved and are projected to only be achieved for less than 10% of Flemish watercourses by 2027, despite that being the absolute last deadline of the WFD.
Bond Beter Leefmilieu (BBL), Dryade, Greenpeace Belgium, Natuurpunt and WWF Belgium therefore sought a court order that the Flemish government must take additional measures to achieve the 50mg n/l threshold of the Nitrates Directive.
In a judgment of June 2023, the Court of First Instance in Brussels found that the Flemish government is breaching Art.3 and 5 Nitrates Directive by exceeding the 50mg n/l threshold in ground and surface water and failing to take additional measures. There is no need to demonstrate that any measures that have been adopted are ineffective; instead, it is sufficient to show that without additional measures, the nitrate level is or could be more than 50 mg n/l which was indisputably the case. The Court therefore ordered the government to take additional measures under Art.5(5) Nitrates Directive within 6 months from the judgment, and to take account of their effectiveness and costs in relation to those of other preventive measures when selecting the measures.
In the June 2023 judgment, the Court did not attach a penalty payment to the judgment. The group has therefore started two separate follow-up procedures regarding penalty payments due to the lack of action after 6 months and ecosystem services.
Greenpeace Belgium et al v Flemish region
Court: Court of First Instance in Brussels
Case reference: 2022/2570/A
Country: Belgium
NGO involved: Bond Beter Leefmilieu (BBL), Dryade, Greenpeace Belgium, Natuurpunt and WWF Belgium
Filing date: July 2022
Decision date: June 2023
Target: Flemish government
Main law:
Nitrates Directive 91/676, Art.3 & 5
Water Framework Directive 2000/60
Process: National litigation, using Milieustakingswet (‘Environmental Enforcement Act’)
Issue: Nitrates Directive 50mg n/l threshold, additional measures, impact on WFD objectives
Summary
The case arose due to the significant exceedance of the 50mg n/l of nitrate threshold at 31% of Flemish measuring points. This means that the objectives of the Water Framework Directive (WFD) are not achieved and are projected to only be achieved for less than 10% of Flemish watercourses by 2027, despite that being the absolute last deadline of the WFD.
Bond Beter Leefmilieu (BBL), Dryade, Greenpeace Belgium, Natuurpunt and WWF Belgium therefore sought a court order that the Flemish government must take additional measures to achieve the 50mg n/l threshold of the Nitrates Directive.
In a judgment of June 2023, the Court of First Instance in Brussels found that the Flemish government is breaching Art.3 and 5 Nitrates Directive by exceeding the 50mg n/l threshold in ground and surface water and failing to take additional measures. There is no need to demonstrate that any measures that have been adopted are ineffective; instead, it is sufficient to show that without additional measures, the nitrate level is or could be more than 50 mg n/l which was indisputably the case. The Court therefore ordered the government to take additional measures under Art.5(5) Nitrates Directive within 6 months from the judgment, and to take account of their effectiveness and costs in relation to those of other preventive measures when selecting the measures.
In the June 2023 judgment, the Court did not attach a penalty payment to the judgment. The group has therefore started two separate follow-up procedures regarding penalty payments due to the lack of action after 6 months and ecosystem services. In June 2024, the government was ordered to pay a penalty of EUR 1000 per day for its failure to implement the ruling after the 6month deadline.
In July 2024, the European Commission referred Belgium to the CJEU for failing to take sufficient action on nitrates pollution in Flanders as part of infringement proceedings that were launched in 2023.
Nitrates and duty of care, The Netherlands
Greenpeace Netherlands took the Dutch government to court over a failure to meet its duty of care to protect the conservation status of Natura 2000 sites from nitrogen depositions. The result? The Court acknowledged the issue, but did not order the government to take action to remedy it. A hearing on the substantive proceedings is planned for November 2024 with a ruling expected in early 2025.
Stichting Greenpeace Nederland v De Staat der Nederlanden (ministerie van Landbouw, Natuur en Voedselkwaliteit)
Court: District Court The Hague
Case reference: C/09/663026 / KG ZA 24-229
Country: The Netherlands
NGO involved: Greenpeace NL
Filing date: July 2023
Decision date: Pending
Target: Dutch government
Main law: Habitats Directive, Art.6(1) and (2)
Process: National litigation, civil law
Issue: State’s duty of care to prevent the deterioration of Natura 2000 sites through nitrogen deposition and to prevent favourable conservation status from becoming out of reach
Summary
Despite the famous CJUE Dutch Nitrogen case in 2018 (C‑293/17 and C‑294/17) and the 2019 Dutch Council of State ruling that followed the preliminary reference, Greenpeace claims that there has been little progress in reducing nitrogen in the Netherlands since then. Greenpeace therefore started civil law proceedings against the Dutch government in July 2023, combining duty of care arguments with the Habitats Directive.
Greenpeace argues that the State is acting unlawfully by breaching its obligations under Art.6(1) and (2) Habitats Directive through the deterioration of habitats. They particularly highlight habitats that have been identified on an urgent list. These habitats and habitat types are at risk of being irreparably damaged or may even disappear if nitrogen emissions are not radically reduced, at the latest by the end of 2025. This research enables the link between the site-specific approach of the Habitats Directive and a general obligation to address the nitrogen crisis. Greenpeace further argues that the government failed to comply with its duty of care to prevent the deterioration and is putting achieving favourable conservation status out of reach.
Therefore, Greenpeace seeks a court order for the government to bring the most urgent habitats and habitat types (red list) below the critical deposition value by 2025 and an order to do the same for the second most urgent habitats and habitat types (orange list) by 2030. They further seek an order for the government to draw up a nitrogen reduction plan that will ensure the 2025 and 2030 deadlines are met in time and based on effective measures. Greenpeace also asks the court to impose daily penalty if the government continues to be in breach of its obligations.
In March 2024, Greenpeace filed additional summary proceedings, arguing that the outcome of the substantive proceedings cannot be awaited due to the risk of irreversible environmental harm occurring in the meantime.
In June 2024, the District Court of the Hague ruled on the summary proceedings. While the Court agreed that nitrogen sensitive nature is in poor condition, that the current policy will not lead to the required reduction, and that if no appropriate measures are taken the state is violating EU law, it considered it insufficiently clear that this requires that nitrogen deposition in all habits on the red list must be brought below the critical deposition value before the end of 2025. The Court thereby acknowledged the issue but did not order the government to take specific steps to remedy it as part of the summary proceedings.
A hearing on the substantive proceedings is planned for November 2024 with a ruling expected for early 2025.
Stichting Greenpeace Nederland v De Staat der Nederlanden (Ministerie van Landbouw, Natuur en Voedselkwaliteit)
Court: District Court The Hague
Case reference: C/09/663026 / KG ZA 24-229
Country: The Netherlands
NGO involved: Greenpeace NL
Filing date: July 2023
Decision date: Pending
Target: Dutch government
Main law: Habitats Directive, Art.6(1) and (2)
Process: National litigation, civil law
Issue: State’s duty of care to prevent the deterioration of Natura 2000 sites through nitrogen deposition and to prevent favourable conservation status from becoming out of reach
Summary
Despite the famous CJUE Dutch Nitrogen case in 2018 (C‑293/17 and C‑294/17) and the 2019 Dutch Council of State ruling that followed the preliminary reference, Greenpeace claims that there has been little progress in reducing nitrogen in the Netherlands since then. Greenpeace therefore started civil law proceedings against the Dutch government in July 2023, combining duty of care arguments with the Habitats Directive.
Greenpeace argues that the State is acting unlawfully by breaching its obligations under Art.6(1) and (2) Habitats Directive through the deterioration of habitats. They particularly highlight habitats that have been identified on an urgent list. These habitats and habitat types are at risk of being irreparably damaged or may even disappear if nitrogen emissions are not radically reduced, at the latest by the end of 2025. This research enables the link between the site-specific approach of the Habitats Directive and a general obligation to address the nitrogen crisis. Greenpeace further argues that the government failed to comply with its duty of care to prevent the deterioration and is putting the achievement of favourable conservation status out of reach.
Therefore, Greenpeace seeks a court order for the government to bring the most urgent habitats and habitat types (red list) below the critical deposition value by 2025 and an order to do the same for the second most urgent habitats and habitat types (orange list) by 2030. They further seek an order for the government to draw up a nitrogen reduction plan that will ensure the 2025 and 2030 deadlines are met in time and based on effective measures. Greenpeace also asks the court to impose a daily penalty if the government continues to be in breach of its obligations.
In March 2024, Greenpeace filed additional summary proceedings, arguing that the outcome of the substantive proceedings cannot be awaited due to the risk of irreversible environmental harm occurring in the meantime.
In June 2024, the District Court of the Hague ruled on the summary proceedings. While the Court agreed that nitrogen sensitive nature is in poor condition, that the current policy will not lead to the required reduction, and that if no appropriate measures are taken the state is violating EU law, it considered it insufficiently clear that this requires that nitrogen deposition in all habits on the red list must be brought below the critical deposition value before the end of 2025. The Court thereby acknowledged the issue but did not order the government to take specific steps to remedy it as part of the summary proceedings.
A hearing on the substantive proceedings is planned for November 2024 with a ruling expected for early 2025. M
Pesticides authorisation process, EU
PAN Europe brought the Dutch Plant Protection Products and Biocides Approval Board to court for their failure to use the latest scientific knowledge available when they were assessing the risks posed by pesticides. The result? The CJEU ruled that EU countries must take the latest scientific knowledge into account when authorising pesticides.
Pesticide Action Network Europe (PAN Europe) v College voor de toelating van gewasbeschermingsmiddelen en biociden.
Court: Court of Justice of the European Union (CJEU)
Case reference: C308/22
Country: EU (preliminary reference from the Netherlands)
NGO involved: PAN Europe
Filing date: J2020
Decision date: April 2024
Target: Plant Protection Products and Biocides Approval Board, Netherlands
Main law: Regulation 1107/2009, Article 36(1) and (2)
Process: Preliminary reference
Issue: Discretion of Member States when authorising pesticides in light of risk assessment of zonal rapporteur Member State
Summary
PAN brought proceedings against the Dutch Plant Protection Products and Biocides Approval Board (CTGB) regarding the extension of the authorisation for the pesticide product ‘Closer’ which contains the active substance sulfoxaflor. PAN argued that the Dutch agency failed to use the most up-to-date scientific knowledge during the risk assessment process.
Under Regulation 1107/2009, pesticides active substances are approved at EU level while the authorisation of a specific pesticide product (composed of the active substance(s) and co-formulants) are authorised at national level. The risk assessment of pesticide products is shared between Member States through a zonal system which splits the EU in three zones, tasking a zonal Rapporteur Member State (zRMS) with the risk assessment.
In this case, Ireland carried out the risk assessment of the product ‘Closer’ and the Dutch authority extended the authorisation on this basis. In the Irish risk assessment, Ireland did not use the Guidance Document on the risk assessment of plant protection products on bees (the 2013 guidance document). PAN therefore challenged the decision of the Dutch authority, arguing that it should not have approved the product, as the Irish risk assessment was not based on current scientific and technical knowledge. The Dutch Court therefore posed the question as to the responsibility of a Member State when relying on the zRMS risk assessment to the Court of Justice.
The Court of Justice ruled that Member States are responsible for the quality of the risk assessment they use and is not obliged to follow the conclusions of the zRMS. Member States may depart from the zRMS assessment, particularly if they have the most reliable scientific data which the zRMS did not take into account in its assessment. If a Member State considers the zRMS assessment to be insufficient they do not have to involve the zRMS in their ‘correction’ of the assessment.
Pesticide Action Network Europe (PAN Europe) v College voor de toelating van gewasbeschermingsmiddelen en biociden.
Court: Court of Justice of the European Union (CJEU)
Case reference: C308/22
Country: EU (preliminary reference from the Netherlands)
NGO involved: PAN Europe
Filing date: 2020
Decision date: April 2024
Target: Plant Protection Products and Biocides Approval Board, Netherlands
Main law: Regulation 1107/2009, Article 36(1) and (2)
Process: Preliminary reference
Issue: Discretion of Member States when authorising pesticides in light of risk assessment of zonal rapporteur Member State
Summary
PAN brought proceedings against the Dutch Plant Protection Products and Biocides Approval Board (CTGB) regarding the extension of the authorisation for the pesticide product ‘Closer’ which contains the active substance sulfoxaflor. PAN argued that the Dutch agency failed to use the most up-to-date scientific knowledge during the risk assessment process.
Under Regulation 1107/2009, pesticides active substances are approved at EU level while the authorisation of a specific pesticide product (composed of the active substance(s) and co-formulants) are authorised at national level. The risk assessment of pesticide products is shared between Member States through a zonal system which splits the EU in three zones, tasking a zonal Rapporteur Member State (zRMS) with the risk assessment.
In this case, Ireland carried out the risk assessment of the product ‘Closer’ and the Dutch authority extended the authorisation on this basis. In the Irish risk assessment, Ireland did not use the Guidance Document on the risk assessment of plant protection products on bees (the 2013 guidance document). PAN therefore challenged the decision of the Dutch authority, arguing that it should not have approved the product, as the Irish risk assessment was not based on current scientific and technical knowledge. The Dutch Court therefore posed the question as to the responsibility of a Member State when relying on the zRMS risk assessment to the Court of Justice.
The Court of Justice ruled that Member States are responsible for the quality of the risk assessment they use and is not obliged to follow the conclusions of the zRMS. Member States may depart from the zRMS assessment, particularly if they have the most reliable scientific data which the zRMS did not take into account in its assessment. If a Member State considers the zRMS assessment to be insufficient they do not have to involve the zRMS in their ‘correction’ of the assessment.
Cases on climate
Belgian farmer vs TotalEnergies
Like David vs Goliath, Hugues, a Belgian farmer – supported by FIAN, Greenpeace BE and Ligue des droit humains – is demanding that one of the world’s biggest greenhouse gas emitters, TotalEnergies, repair the damages he has suffered on his farm due to the climate crisis. The group also hopes to get a court order to ensure that TotalEnergies phase out fossil fuels to prevent future damage. The outcome? Pending.
Hugues Falys, FIAN, Greenpeace, Ligue des droits humains v. TotalEnergies (The Farmer Case)
Court: Tribunal de l’entreprise du Hainaut, division Tournai (Commercial Court of Tournai)
Case reference: A/24/00168
Country: Belgium
NGO involved: Hugues Falys (individual farmer), FIAN, Greenpeace, Ligue des droits humains
Filing date: March 2024
Decision date: Pending
Target: TotalEnergies
Main law: Belgian extra-contractual civil liability (articles 1382 and 1383 of the former Civil Code)
Process: National litigation, civil liability
Issue: Damages from TotalEnergies for climate change impacts on farmer
Summary
Hugues, a Belgian farmer, together with FIAN, Greenpeace BE and Ligue des droit humains, is demanding TotalEnergies, one of the companies emitting most GHG emission in the world to repair the damage he has suffered due to the climate crisis. His farm has been hit by extreme weather events such as heat waves, droughts and extreme rain, with impacts on his crops, ability to feed his animals, income and workload. The group is further seeking a court order for TotalEnergies to phase out fossil fuels to prevent further damage.
The case relies on Articles 1382 and 1383 of the Belgian Civil Code which oblige natural or legal persons, including companies, who have committed a fault to repair the damage. It therefore is a classic civil liability case, applying Belgian civil law to the climate crisis.
The claimants establish Total’s fault by highlighting that TotalEnergies has known about the harmful impacts of its activities and climate change since the 1970s but continues to slow the phasing out of fossil fuels. Huges, as an organic farmer, has suffered damage as a result of extreme weather events. The causal link between TotalEnergies’ fault and Huge’s damage is that TotalEnergies is one of the biggest emitters of GHG emissions, thereby significantly contributing to the climate crisis, which is in turn impacting the frequency and intensity of extreme weather events. This argumentation builds on the successful arguments in the cases of Urgenda, Shell and Klimatzaak.
The hearing with oral arguments will take place on 19 and 26 November 2025.
Hugues Falys, FIAN, Greenpeace, Ligue des droits humains v. TotalEnergies (The Farmer Case)
Court: Tribunal de l’entreprise du Hainaut, division Tournai (Commercial Court of Tournai)
Case reference: A/24/00168
Country: Belgium
NGO involved: Hugues Falys (individual farmer), FIAN, Greenpeace, Ligue des droits humains
Filing date: March 2024
Decision date: Pending
Target: TotalEnergies
Main law: Belgian extra-contractual civil liability (articles 1382 and 1383 Civil Code)
Process: National litigation, civil liability
Issue: Damages from TotalEnergies for climate change impacts on farmer
Summary
Hugues, a Belgian farmer, together with FIAN, Greenpeace BE and Ligue des droit humains, is demanding TotalEnergies, one of the companies emitting most GHG emission in the world to repair the damage he has suffered due to the climate crisis. His farm has been hit by extreme weather events such as heat waves, droughts and extreme rain, with impacts on his crops, ability to feed his animals, income and workload. The group is further seeking a court order for TotalEnergies to phase out fossil fuels to prevent further damage.
The case relies on Articles 1382 and 1383 of the Belgian Civil Code which oblige natural or legal persons, including companies, who have committed a fault to repair the damage. It therefore is a classic civil liability case, applying Belgian civil law to the climate crisis.
The claimants establish Total’s fault by highlighting that TotalEnergies has known about the harmful impacts of its activities and climate change since the 1970s but continues to slow the phasing out of fossil fuels. Hugues, as an organic farmer, has suffered damage as a result of extreme weather events. The causal link between TotalEnergies’ fault and Hugue’s damage is that TotalEnergies is one of the biggest emitters of GHG emissions, thereby significantly contributing to the climate crisis, which is in turn impacting the frequency and intensity of extreme weather events. This argumentation builds on the successful arguments in the cases of Urgenda, Shell and Klimatzaak.
The hearing with oral arguments will take place on 19 and 26 November 2025.
An adequate climate programme for the LULUCF sector, Germany
Deutsche Umwelthilfe (DUH) brought a case against the German government for failing to provide an adequate climate programme for the Land Use, Land Use Change and Forestry (LULUCF) sector (together with the building and transport sector) in line with national climate protection law. The court ruled in their favour and ordered the government to supplement the 2023 Climate Protection Programme with the necessary measures need to meet legal targets.
Deutsche Umwelthilfe v Germany
Court: Oberverwaltungsgericht Berlin-Brandenburg
Case reference: OVG 11 A 31/22
Country: Germany
NGO involved: Deutsche Umwelthilfe
Filing date: November 2022
Decision date: May 2024
Target: German Government
Main law:
German Climate Protection Law (Klimaschutzgesetz, KSG) (§9, §3, §3a)
EU Land Use, Land Use Change and Forestry (LULUCF) Regulation
Process: National litigation, administrative law
Issue: Adequacy of climate protection programme to achieve climate targets in LULUCF sector by 2030 and beyond
Summary
With this case, Deutsche Umwelthilfe (DUH) sought a court order for the government to draw up an adequate sector climate programme for the land use, land use change and forestry (LULUCF) sector (together with the building and transport sector) which is suitable to improve the annual emissions balance in line with §3a(1) of the national Climate Protection Law (KSG). Projects of the government itself predict the LULUCF sector to turn from a GHG emission sink to a source. In their claim, DUH illustrated the inadequacy of the measures in the 2023 Programme and highlighted unrealistic assumptions regarding their GHG reduction potential.
In May 2024, the Higher Administrative Court of Berlin-Brandenburg found that the 2023 Climate Protection programme did not meet the legal requirements of §9 of the Climate Protection Law as it fails to comply with the binding 2030 and 2045 climate targets and the specified reduction path for LULUCF sector. It further found that the Programme has methodological deficiencies and is partly based on unrealistic assumptions. The Court therefore ordered the government to supplement the 2023 Climate Protection Programme with the necessary measures to achieve the 2030 climate target, to comply with sector-specific annual emissions and to achieve the target for the LULUCF sector.
Deutsche Umwelthilfe v Germany
Court: Oberverwaltungsgericht Berlin-Brandenburg
Case reference: OVG 11 A 31/22
Country: Germany
NGO involved: Deutsche Umwelthilfe
Filing date: November 2022
Decision date: May 2024
Target: German Government
Main law:
German Climate Protection Law (Klimaschutzgesetz, KSG) (§9, §3, §3a)
EU Land Use, Land Use Change and Forestry (LULUCF) Regulation
Process: National litigation, administrative law
Issue: Adequacy of climate protection programme to achieve climate targets in LULUCF sector by 2030 and beyond
Summary
With this case, Deutsche Umwelthilfe (DUH) sought a court order for the government to draw up an adequate sector climate programme for the land use, land use change and forestry (LULUCF) sector (together with the building and transport sector) which is suitable to improve the annual emissions balance in line with §3a(1) of the national Climate Protection Law (KSG). Projects of the government itself predict the LULUCF sector to turn from a GHG emission sink to a source. In their claim, DUH illustrated the inadequacy of the measures in the 2023 Programme and highlighted unrealistic assumptions regarding their GHG reduction potential.
In May 2024, the Higher Administrative Court of Berlin-Brandenburg found that the 2023 Climate Protection programme did not meet the legal requirements of §9 of the Climate Protection Law as it fails to comply with the binding 2030 and 2045 climate targets and the specified reduction path for LULUCF sector. It further found that the Programme has methodological deficiencies and is partly based on unrealistic assumptions. The Court therefore ordered the government to supplement the 2023 Climate Protection Programme with the necessary measures to achieve the 2030 climate target, to comply with sector-specific annual emissions and to achieve the target for the LULUCF sector.
‘Climate-friendly’ pork, Denmark
The Danish Vegetarian Society took Danish Crown to court over their claims that their pig products were ‘more climate-friendly than you think’, a clear attempt to market a climate-damaging product as ‘climate-controlled’. The court ruled that the term “climate-controlled” was misleading and Danish Crown acknowledged in front of the Supreme Court that it engaged in greenwashing.
Vegetarian Society et al v Danish Crown
Court: Western High Court Viborg
Case reference: BS-472/2022-VLR; 1009/23
Country: Denmark
NGO involved: Danish Vegetarian Society, joined by Danish Climate Movement and Green Student Movement and the Danish Consumer Council
Filing date: May 2021
Decision date: March 2024
Target: Danish Crown (pork producer), supported by Dansk Industri (DI) and Landbrug and Fødevarer (L&F)
Main law: Denmark’s Marketing Practices Act
Process: National litigation, consumer protection
Issue: Whether ‘more climate-friendly than you think’ and ‘climate-controlled’ claims on Danish Crown pork mislead consumers in breach of Denmark’s Marketing Practices Act
Summary
In May 2021, the Danish Vegetarian Society, together with the Climate Movement brought a case against pork producer Danish Crown, arguing that their advertising statements ‘our pigs are more climate-friendly than you think’ and ‘climate controlled’ were misleading and consumer deception, thereby breaching s.5 of the Danish Marketing Practices Act. Danish Crown made these claims in relation to a non-binding reduction target that producers can sign up to, regardless of whether there has been a reduction of the climate impact of pork production. There was therefore no monitoring of the claim and its actual climate consequences.
In March 2024, the Western High Court held that the term ‘climate-controlled’ was misleading as Danish Crown could not demonstrate the accuracy of this label. Yet, the Court did not find the claim ‘our pigs are more climate-friendly than you think’ to be a violation of s.5 of the Marketing Act.
The Danish Vegetarian Society and the Climate Movement appealed to the Supreme Court on the ‘more climate-friendly than you think’ aspect of the judgment, later in March 2024.
Mid-April 2024, Danish Crown acknowledged in front of the Supreme Court that it engaged in greenwashing with the ‘more climate-friendly than you think’ statement, admitting that the statement did not comply with the rules of marketing law.
Vegetarian Society et al v Danish Crown
Court: Western High Court Viborg
Case reference: BS-472/2022-VLR; 1009/23
Country: Denmark
NGO involved: Danish Vegetarian Society, joined by Danish Climate Movement and Green Student Movement and the Danish Consumer Council
Filing date: May 2021
Decision date: March 2024
Target: Danish Crown (pork producer), supported by Dansk Industri (DI) and Landbrug and Fødevarer (L&F)
Main law: Denmark’s Marketing Practices Act
Process: National litigation, consumer protection
Issue: Whether ‘more climate-friendly than you think’ and ‘climate-controlled’ claims on Danish Crown pork mislead consumers in breach of Denmark’s Marketing Practices Act
Summary
In May 2021, the Danish Vegetarian Society, together with the Climate Movement, brought a case against pork producer Danish Crown, arguing that their advertising statements ‘our pigs are more climate-friendly than you think’ and ‘climate controlled’ were misleading and consumer deception, thereby breaching s.5 of the Danish Marketing Practices Act. Danish Crown made these claims in relation to a non-binding reduction target that producers can sign up to, regardless of whether there has been a reduction of the climate impact of pork production. There was therefore no monitoring of the claim and its actual climate consequences.
In March 2024, the Western High Court held that the term ‘climate-controlled’ was misleading as Danish Crown could not demonstrate the accuracy of this label. Yet, the Court did not find the claim ‘our pigs are more climate-friendly than you think’ to be a violation of s.5 of the Marketing Act.
The Danish Vegetarian Society and the Climate Movement appealed to the Supreme Court on the ‘more climate-friendly than you think’ aspect of the judgment, later in March 2024.
Mid-April 2024, Danish Crown acknowledged in front of the Supreme Court that it engaged in greenwashing with the ‘more climate-friendly than you think’ statement, admitting that the statement did not comply with the rules of marketing law.
Impact of intensive animal farming, Italy
A lawyers network filed an OECD complaint about the impact that intensive animal rearing by Italian meat and feed company Gruppo Veronesi and Cremonini have on the climate and environment. The result? Still pending.
Legalità per il clima et al v Gruppo Veronesi and Cremonini S.p.A.
Court: OECD National Contact Point Italy
Case reference: ADD
Country: Italy
NGO involved: Human Being
Filing date: December 2021 / March 2022
Decision date: Pending
Target: Cremonini S.p.A. and Gruppo Veronesi (Italian livestock industry)
Main law: OECD Guidelines
Process: OECD complaint
Issue: Climate and environmental impact of intensive livestock farming; transparency and reduction responsibilities under OECD guidelines
Summary
In December 2021, Legalità per il clima, a network of Italian lawyers, on behalf of a number of NGOs, individuals and others filed a complaint against Gruppo Veronesi, an Italian meat and feed company, relating to their intensive animal farming. Through the complaint, the group asks the company to publish information on the climate and environmental impacts of its activities, to adjust their risk assessment plans, and to work towards a stark reduction of GHG emissions, especially methane.
In March 2022, the group filed a similar complaint against Cremonini S.p.A., an Italian meat multinational. They also ask the company to publish information on the climate and environmental impacts of its activities, to adjust their risk assessment plans, and to work towards a stark reduction of GHG emissions, especially methane.
Legalità per il clima et al v Gruppo Veronesi and Cremonini S.p.A.
Court: OECD National Contact Point Italy
Country: Italy
NGO involved: Human Being
Filing date: December 2021 / March 2022
Decision date: Pending
Target: Cremonini S.p.A. and Gruppo Veronesi (Italian livestock industry)
Main law: OECD Guidelines
Process: OECD complaint
Issue: Climate and environmental impact of intensive livestock farming; transparency and reduction responsibilities under OECD guidelines
Summary
In December 2021, Legalità per il clima, a network of Italian lawyers, on behalf of a number of NGOs, individuals and others filed a complaint against Gruppo Veronesi, an Italian meat and feed company, relating to their intensive animal farming. Through the complaint, the group asks the company to publish information on the climate and environmental impacts of its activities, to adjust their risk assessment plans, and to work towards a stark reduction of GHG emissions, especially methane.
In March 2022, the group filed a similar complaint against Cremonini S.p.A., an Italian meat multinational. They also ask the company to publish information on the climate and environmental impacts of its activities, to adjust their risk assessment plans, and to work towards a stark reduction of GHG emissions, especially methane.
Cases on the Common Agricultural Policy (CAP)
Request to review the EU Commission’s approval of the French CAP Strategic Plan, EU
ClientEarth and Collectif Nourrir filed a request for an internal review into the European Commission’s decision to approve the French CAP Strategic Plan, which they argue fails to comply with climate and environmental objectives. They subsequently brought an action for annulment to the Court of Justice of the European Union which is still pending.
ClientEarth and Collectif Nourrir v European Commission
Court: CJEU
Case reference: Case T-399/23
Country: France
NGO involved: ClientEarth, Collectif Nourrir
Filing date: November 2022
Decision date: Pending
Target: European Commission
Main law: CAP Strategic Plan Regulation (CAP SPR) 2021/2215, Art.6(1), Art.109(2) and Art.118
Process: Request for internal review, subsequent action for annulment
Issue: Commission review powers under CAP SPR when reviewing national Strategic Plans (SPs); whether French CAP SP complies with environmental and climate objectives
Summary
In November 2022, ClientEarth and the French group Collectif Nourrir filed a request for internal review of the Commission’s decision to approve the French CAP Strategic Plan (SP). They argued that the Commission unlawfully adopted the French plan, as it fails to comply with the climate and environmental objectives of the CAP Strategic Plan Regulation (CAP SPR) and EU environmental law. The Commission itself had highlighted some of these shortcomings in its observations on a draft of the French plan but adopted the final plan anyway, even though many of the shortcomings remained unaddressed.
The two groups argued that the Commission lacked the competence to approve the French plan due to an infringement of essential elements of the CAP SPR. Further, they argued that the Commission committed a manifest error by approving the French plan in light of the Art.6(1)(d)-(f) CAP SPR climate, natural resource protection, and biodiversity objectives, combined with the Art.109(2) CAP SPR obligation for SPs to contribute towards the achievement of long-term targets derived from EU law.
They highlighted three key shortcomings. First, that the French measures on cattle farming do not support a reduction of greenhouse gas (particularly methane) emissions and do not effectively contribute to achieving climate mitigation targets. Second, that the planned interventions do not lead to a reduction of chemical dependency and are inadequate to protect French water bodies. Third, that the measures do not incentivise farmers to adopt more sustainable practices to maintain and preserve biodiversity.
In its May 2023 reply to the request for internal review, the Commission argued, in essence, that it has limited powers to review and influence the French CAP SP and that not every observation by the Commission on the draft SP must result in a modification thereof. It further argued that the CAP SPR does not require the Commission to scrutinise the accuracy of factual information contained in proposed CAP SPs submitted by Member States.
ClientEarth and Collectif Nourrir are now challenging the Commission’s reply before the Court of Justice of the EU. The July 2023 application for annulment of the rejection of the request for internal review is broadly based on two grounds.
First, that the Commission committed several errors relating to its competence to adopt the approval decision, including the Commission’s claim that Art.119 CAP SPR does not require in-depth checks of the compatibility of the national SPs with the CAP SPR.
Second, that the Commission made manifest errors of assessment in dismissing the arguments that the French plan fails to make an effective contribution to the climate, natural water resource protection and biodiversity objectives of the CAP, as well as to the achievement of the Water Framework Directive, the Nitrates Directive, and national emission reductions objectives.
ClientEarth and Collectif Nourrir v European Commission
Court: CJEU
Case reference: Case T-399/23
Country: France
NGO involved: ClientEarth, Collectif Nourrir
Filing date: November 2022
Decision date: Pending
Target: European Commission
Main law: CAP Strategic Plan Regulation (CAP SPR) 2021/2215, Art.6(1), Art.109(2) and Art.118
Process: Request for internal review, subsequent action for annulment
Issue: Commission review powers under CAP SPR when reviewing national Strategic Plans (SPs); whether French CAP SP complies with environmental and climate objectives
Summary
In November 2022, ClientEarth and the French group Collectif Nourrir filed a request for internal review of the Commission’s decision to approve the French CAP Strategic Plan (SP). They argued that the Commission unlawfully adopted the French plan, as it fails to comply with the climate and environmental objectives of the CAP Strategic Plan Regulation (CAP SPR) and EU environmental law. The Commission itself had highlighted some of these shortcomings in its observations on a draft of the French plan but adopted the final plan anyway, even though many of the shortcomings remained unaddressed.
The two groups argued that the Commission lacked the competence to approve the French plan due to an infringement of essential elements of the CAP SPR. Further, they argued that the Commission committed a manifest error by approving the French plan in light of the Art.6(1)(d)-(f) CAP SPR climate, natural resource protection, and biodiversity objectives, combined with the Art.109(2) CAP SPR obligation for SPs to contribute towards the achievement of long-term targets derived from EU law.
They highlighted three key shortcomings. First, that the French measures on cattle farming do not support a reduction of greenhouse gas (particularly methane) emissions and do not effectively contribute to achieving climate mitigation targets. Second, that the planned interventions do not lead to a reduction of chemical dependency and are inadequate to protect French water bodies. Third, that the measures do not incentivise farmers to adopt more sustainable practices to maintain and preserve biodiversity.
In its May 2023 reply to the request for internal review, the Commission argued, in essence, that it has limited powers to review and influence the French CAP SP and that not every observation by the Commission on the draft SP must result in a modification thereof. It further argued that the CAP SPR does not require the Commission to scrutinise the accuracy of factual information contained in proposed CAP SPs submitted by Member States.
ClientEarth and Collectif Nourrir are now challenging the Commission’s reply before the Court of Justice of the EU. The July 2023 application for annulment of the rejection of the request for internal review is broadly based on two grounds.
First, that the Commission committed several errors relating to its competence to adopt the approval decision, including the Commission’s claim that Art.119 CAP SPR does not require in-depth checks of the compatibility of the national SPs with the CAP SPR.
Second, that the Commission made manifest errors of assessment in dismissing the arguments that the French plan fails to make an effective contribution to the climate, natural water resource protection and biodiversity objectives of the CAP, as well as to the achievement of the Water Framework Directive, the Nitrates Directive, and national emission reductions objectives.
