After more than seven years of legally questioned market placing, EU Member States unexpectedly voted in favour of the glyphosate authorisation renewal. Far more than a mere herbicide renewal decision, the glyphosate saga has proven itself to be a surprisingly accurate barometer of democracy in the Union.
“The Minister did wrong, that must not happen again” said Angela Merkel after the German Minister of agriculture, Christian Schmidt, surprisingly breached the government’s orders by voting in favour of the renewal of the very controversial chemical molecule known as ‘glyphosate’. The Chancellor wanted her message to be as clear as possible: what happened on Monday 27 November 2017 is of high political concern and will have inevitable consequences. Indeed, given the circumstances, this vote has constituted a highly explosive mixture of conflicting elements.
Take the main active substance of the most widely adopted herbicide worldwide, add to this a potential harmful effect on human life; then, mix it with a strong dissension among both civil society and private sector but also between states themselves. Add different crises in the agriculture sector and on German internal political level; sprinkle with a bit of suspected conflict of interests and present the whole in a highly complex decision-making process. You will eventually get a perfect representation of democracy in the European Union: complex, technical, unclear … but always conducted by Member States.
A caricatural decision-making process
The European Union is often described as a too ‘technocratic’ and accused of ‘democratic deficit’: it is perceived as an incomprehensible regulatory object dealing with matters of too high technicality. It must thus be recognised that the 27 November decision was taken through one of the most complex procedure in the EU decision-making process. A procedure about which, moreover, even the academic doctrine itself struggles to grab the deep meaning. A procedure known under the term of ‘comitology’. One could therefore acknowledge that, by failing to provide the public with clear information about such a process, European authorities has not done anything to back the ‘technocratic EU’ tide. They must, for this reason, bear part of the responsibility in public discontent. It is nevertheless absolutely essential to get the main whys and wherefores of this process to even start trying to explain the glyphosate decision.
In simple terms, comitology is a way for EU Member States to control the use of the Commission’s regulatory powers that they – as EU legislators through the Council of Ministers – have partly delivered in the first place. Indeed, the Union is based upon the ‘indirect administration’ principle – meaning that Member States do individually possess the basic authority to implement EU legislations. Yet, the European Commission could be delivered the power to take implementing non-legislative acts “where uniform conditions (…) are needed”. This process is mainly justified by the objective necessity to deal with certain technical elements of EU legislations at a supranational level, in order to avoid different approaches between states that could hamper their effectivity.
Comitology takes the form of experts committees (scientists, engineers, technicians…) presenting their position on such acts. In this instance, it is Regulation n°1107/2009 concerning the placing of plant protection products on the market, which expressly states that “the Commission should be empowered to adopt harmonised methods to determine the nature and quantity of [such] active substances”. But what keeps adding to the complexity of the process is the multifaceted nature of comitology, whose decisions can either be binding or non-binding depending on the procedure followed and the voting result. Here, following the rejection of the Commission’s proposal on November 9, the glyphosate authorisation renewal was submitted to an ‘appeal committee’ involving ministerial representation.
In sum, it is pretty hard to determine whether comitology has been institutionalised as a tool for Member States to control the Commission – thus ensuring intergovernmentalism over supranationalism – or for the EU legislator to control the EU ‘executive’ – thus ensuring the principle of separation of powers. In any case, the glyphosate issue clearly underlines that decisions taken within the EU decision-making framework are always in Member States’ hands. Focusing on this idea is all the more important at a time when ‘Brussels’ is perceived as the centre of gravity of non-democracy; but which is, and has always been, no more than the projection of an ever-growing gap between citizens and political representatives at the national level itself.
Lack of transparency, excess of confusion
The issue at stake seems in theory pretty straightforward in theory: can glyphosate put human health at risk or harm the environment? One could imagine that the development of scientific technologies and processes could provide us with unquestionable results for this question of high public-health concern. Unfortunately, the profusion of divergent interests has taken that question away from the public sphere.
The first element to be taken into account is probably the undeniable success of this product since it was first put on the market in 1974. Indeed glyphosate is a powerful chemical herbicide first patented by the American chemical industry giant Monsanto in its bestselling Roundup. In 2000, this molecule fell in the public domain – meaning that the patent protecting it expired – and has since become the most used herbicide worldwide and the component of more than 750 products made by 90 agrochemical companies. The reasons for its success are actually pretty simple. It is not only simple to use and far more efficient than every other chemicals, but also belongs to the total herbicides category, meaning it can eradicate all types of weeds unlike specific herbicides – and is also far cheaper. This brings huge benefits for farmers; and huge arguments for lobbies.
The second element to be taken into account is the way scientific studies have been conducted since major ones contradict one another. While the International Agency for Research on Cancer (the ‘IARC’, part of the World Health Organisation of the United Nations) classifies glyphosate as “probably carcinogenic to humans”, the European Food Safety Agency (the ‘EFSA’) rather considers these potential effects “unlikely”. The question therefore arises of what method the EFSA uses to reach such conclusions. One should above all notice that no study is actually being conducted at the EU level, but, conversely, at the level of states and industries themselves. To be more specific, the whole procedure starts by the designation of a “rapporteur Member State” – by industries – which has the task of preparing a pre-report on which the Commission will eventually base its estimation.
In this case, according to the newspaper Le Monde, Monsanto and the Glyphosate Task Force required Germany, the leading country in the chemical industry, to be selected. Since then, the process is completely blurred. Indeed, according to the subsidiarity principle, the Union shall let Member States act when one matter could be treated at their level. The problem is, however, that Germany designated the BfR agency (‘Bundesinstitut für Risikobewertung’, Federal Institute for risk assessment) to conduct the analysis without disclosing names of individuals in charge. This is worrying when this agency’s expert group for pesticides is composed of employees from the agrochemical industry. But it does not end there. Last September, the Austrian NGO Global2000 revealed that, in the publication of its final report, the EFSA just copied-pasted whole sections of Monsanto’s report, to eventually reach exactly the same conclusions. On 4 December, five NGOs therefore decided to file a lawsuit to the European Court of Justice against both agencies for lack of independent, objective and transparent evaluation.
What is exactly going on at the Commission’s level then? Shall we actually believe that the European supranational institution is entirely subject to private pressures and therefore completely blind to the defence of the EU “general interest”? Such an explanation is very unlikely. EU institutions are indeed far more restrained by legislations regulating lobbying activities than any other institution at the national level. It is therefore my opinion that the problem rather comes from the legal incapacity of the European Commission to conduct its own analyses. It seems absurd for the Commission to be dependent on the Member States’ analyses since such a process easily lead to the situation where the latter’s authorities can exempt themselves from all responsibility at the expense of ‘Brussels’. The German political crisis surrounding the glyphosate vote can be a clear example of such a risk.
From Bavaria to Brussels, a democratic ‘butterfly effect’
Whether or not they had supported it or not, the decision to renew glyphosate has been received as a shock by the Member States. The authorisation had first been rejected on 9th November, failing to reach the necessary qualified majority required to adopt the proposition of the Commission. Only 14 Member States representing less than the required 65% of the European population had voted in favour, thus showing a real point of conflict among states on this question. And there was no reason to expect any change in Member States’ positions, when the Commission called the appeal committee, especially since Governments did not announce their will to change their mind. Quite on the contrary, big Member States expressed their will to stick to their positions; drawing what seemed to be an inevitable status quo.
One single man changed the whole situation though. Christian Schmidt, Minister for agriculture and member of the Bavarian CSU, voted in favour of the Commission’s text providing a five years extension of the glyphosate authorisation, in direct opposition to its Government’s voting recommendation. One could, indeed, be surprised that one state representative is able to unilaterally influence the European decision-making for such an important text. It, nevertheless, simply underlines that the European decision-making should never be analysed in an absolute manner, but always corresponds to a specific context. This shows how decisive the internal politics can be in the EU sphere; and, conversely, how the EU decision-making process is being shaped by internal contexts.
In these last two months, German politics has been characterised by an unprecedented crisis. The 24 September legislative elections have led to a quite unexpected result. The present CDU-CSU alliance led by Chancellor Merkel collected only 32,5% of the votes instead of 36% expected by polls, and the Martin Schulz’s SPD got its worst result since the Second World War with only 20% of the votes. This relative collapse of big traditional parties has, moreover, been accompanied by the rooting of smaller parties in the political landscape. The liberal FDP came back to the Bundestag with more than 10%, and the AfD successfully obtained 13,5% – a pretty unimaginable score for a far right party in Germany – before the Green party (9,5%) and the far left Die Linke (9%). This political fragmentation makes, inter alia, the building a governing majority very complex. And this is precisely what Christian Schmidt took advantage of in the glyphosate vote.
Glyphosate is an important source of political tensions within the present governing coalition in Germany, with CSU conservatives being in favour of the re-authorisation and SPD social democrats being against. To make things worse, the glyphosate vote is halfway between the competence of the Ministry of Agriculture – Christian Schmidt, CSU – and the competence of the Ministry of Environment – Barbara Hendricks, SPD. But only one representative should vote and it was the former who was called for this text. And this, in reality, reveals a subtle calculation. Indeed, the vote came exactly one week after Merkel failed to constitute a ‘Jamaican’ coalition (CDU/CSU-FDP-Green) on the 20th November and was forced to consider a CDU/CSU-SPD coalition. Thus, for Schmidt, voting in favour of this text was a means for the CSU to show it will not merely play second fiddle in the coming discussions.
CDU and CSU are natural political allies since they both represent the ‘traditional’ right wing in Germany; the CDU being present everywhere but in Bavaria, and the CSU being on the contrary present nowhere but in Bavaria. However, the CSU has recently been accused of being too willing to compromise with Merkel’s CDU and the SPD in the big governing coalition. The glyphosate authorisation was therefore a way for this Bavarian party to show its CDU ‘big brother’ it will have to be taken into account to succeed in the formation of a new coalition, thus avoiding Germany getting stuck in the crisis by holding a new legislative election. This move was all the more clever that, for the sake of stability, it was impossible for the SPD to answer back with a clear condemnation of the CSU or even Christian Schmidt himself, because it would have de facto ruined any chance to be part of the coalition. As a result, Barbara Hendricks did judge the Ministry of Agriculture’s decision inadmissible, but could not risk requiring his resignation.
Out of this glyphosate saga, we can therefore draw the conclusion that the EU is still very dependent on its Member States, especially the biggest ones, since its decision making can be the ground for internal political dispute settlement. National representatives have the possibility to take advantage of the high complexity of the EU processes to use it as leverage for domestic arrangements. The glyphosate vote has been a very accurate example of this diversion since the importance of the matter rendered it more visible for the public. Nevertheless, this issue is far from an isolated incident. The EU has always been, and will continue to be hostage to national or even infra-national politics. The victims of this process are the European citizen, deprived of actual democratic debate around European-wide issues.
 Treaty on the functioning of the European Union, Article 291.
 IARC monographs on the evaluation of carcinogenic risks to human, “Some organophosphate insecticides and herbicides”, Vol.112, 2017, p.30.
 EFSA, “Peer review of the pesticide risk assessment of the active substance glyphosate”, EFSA Journal, 12 November 2015, p.1.