The Science, Law and Policy of Neonicotinoids and Bees : A New Test Case for the Precautionary Principle

Once more, while facing an analogous risk phenomenon affecting their predominantly homogeneous societal and economic interests, the US and EU authorities seem to adopt diverging stances. Amid the publication of several new studies and a set of EFSA scientific opinions linking the use of the world’s most widely used pesticides to bee decline, the European Union is poised to adopt a temporary ban on their use. While the Commission does not expressly rely on it, its restrictive decision is clearly based on the controversial precautionary principle. Yet, as it is discussed in this article, the conformity of this decision with the requirements that determine the legal invocation of this principle remains doubtful. This article proceeds as follow. Part II first introduces the reader to the main features and usages of these controversial insecticides, called neonicotinoids. It then discusses how concerns have arisen around their use and analyses the available science exploring their impact on the sudden decline of bee colonies. Part III identifies and comments the restrictive actions currently undertaken across the European Union both at the national and EU level. Part IV in turn provides an overview of the scientific and regulatory approaches adopted by US authorities vis-à-vis neonicotinoids. By building upon the previous two sections, Part V contrasts the EU scientific and regulatory approach towards the use of these pesticides with that adopted by the US authorities. It then attempts at illustrating the factors explaining the current regulatory divergence across the Atlantic upon the issue of neonicotinoids. In order to provide a legal analysis of the EU restrictive stance over these pesticides, Part VI measures how the EU controversial restrictive measures score under both EU and WTO law. Lastly, some final conclusions provide some recommendations on how to render less controversial the invocation of the precautionary principle in the EU and beyond