Law in Complex Fields: The Case of EU Regulation of Pesticides

Abstract

The protective capacity of EU legal regime governing the authorization of plant protection products (the Pesticides Regulation of 2009) turns on the meaning and assessment of “unacceptable effects” on the environment and “harmful effects” on human and animal health. These are, at the same time, legal conditions of the lawfulness of administrative decisions, the public goods that ground the powers allocated by an intricate legal regime, and the goals that the competent actors must pursue. While the centrality of public health and environmental protection is reflected in many of the Regulation’s norms, some of the decisions on pesticides have been deeply controversial on those grounds (such as the renewal of the authorization of glyphosates and of neonicotinoids). Drawing on a range of documents produced during the evaluation of the regulation and on the body of case law stemming from a rich litigation, the article analyses how the legislature, the administration and the courts have shaped the meaning of those key terms and how far the legal strictures have constrained administrative powers. It argues that the Commission, as part of an administrative system that includes the Member States and scientific bodies, defines the meaning of the legal conditions by which it is bound, while striking difficult trade-offs between protection needs and public goods. Delegation is not a suitable analytical frame to understand what is at stake, as it presupposes that the legislature delimits the lawful scope of action. Judicial review, while procedurally robust, also does not substantively constrain these powers, as courts refrain from interpreting pivotal terms of the legal regime beyond their procedural function. The article concludes that the role of law in this domain is less about constraining administrative power than about enabling the administrative capacity to fulfil a public function and validating the rationality of a complex political-economic system that precedes the existence of legal norms.

Keywords: Pesticides, EU Administration, Judicial Review, Public Interests, Legality