Opinion of the Advocate General — ECLI:EU:C:2020:735
Date: 2020-09-17
Language of the case: English
Subject matter: Agriculture and Fisheries;Plant health legislation
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Action for damages
Origin: Germany

summary of a study of economic effects submitted inter alia by Bayer, even though the Commission did not have a complete overview of alternative plant protection products (paragraph 461). The obligation to carry out an impact assessment is thus rendered meaningless. 170. Bayer is correct in its view that under the third indent of Article 191(3) TFEU, in preparing its policy on the environment, the Union must take account the potential benefits and costs of action or lack of action. 171. It is also true that the precautionary principle must be applied having regard to the principle of proportionality. That principle requires that measures adopted by EU institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question. Where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. (83) 172. In this connection, contrary to the view taken by the Commission, it is not sufficient to take into account only the adverse effects of the active substances on the environment, in particular on bees, and the data gaps and risks identified. On the contrary, socioeconomic concerns must also be considered, at least in so far as Article 21(3) of the Plant Protection Regulation allows a margin of discretion within which the Commission can apply the principle of proportionality. 173. Although such a margin is ruled out under Article 4 of the Plant Protection Regulation in respect of harmful effects on human health or groundwater, the relevant effects on the environment prevent the approval of an active substance only if they are ‘unacceptable’. With regard to honeybees specifically, ‘unacceptable’ effects on bee colonies are to be avoided under point 3.8.3 of Annex II. (84) 174. Accordingly, the Commission must assess the advantages and disadvantages of the measure in question, that is, the restriction of the approvals, and any possible alternatives to the measure. 175. A distinction must, however, be drawn between the requirements of the principle of proportionality and its judicial review. This is of limited scope in relation to legislation in particular, but it at least requires that the EU institutions which have adopted the act in question must be able to show before the Court that in adopting the act they actually exercised their discretion. This presupposes the taking into consideration of all the relevant factors and circumstances of the situation the act was intended to regulate. The EU institutions must at the very least be able to produce and set out clearly and unequivocally the basic facts which had to be taken into account as the basis of the contested measures of the act and on which the exercise of their discretion depended. (85) Those duties to provide evidence must apply a fortiori to the exercise of implementing powers by the Commission. (86) 176. It should also be borne in mind, however, that the Commission’s broad discretion, which implies limited judicial review of its exercise, (87) applies not only to the nature and scope of the measures to be taken but also, to some extent, to the finding of the basic facts. (88) In particular, the form in which the source data considered are set out is immaterial. Although a comprehensive formal impact assessment can be very useful, (89) the Commission can also take into consideration any other information source. (90) 177. The General Court correctly gauged the assessment by the Commission of the adverse impacts of the contested rules against these criteria. 178. As regards the economic impacts, in paragraph 461 of the judgment under appeal it rightly inferred from the abovementioned four-point summary that the Commission took into account the study summarised in those points. Furthermore, in paragraphs 464 and 465 of the judgment under appeal, the General Court acknowledged that the Member States which already had experience of the prohibition of neonicotinoids reported no particular negative effects on productivity or on the environment to the Commission. 179. In connection with this ground of appeal, Bayer and above all NFU complain in particular that the importance of alternative plant protection products was not assessed adequately. 180. It is true in this regard that the disadvantages associated with the restrictions depend on the plant protection products that can still be used by farmers. Their cost-effectiveness influences the crop yields of farmers and, moreover, the adverse effects of their increased use on health and the environment must be taken into consideration. 181. As is clear from paragraph 468 of the judgment under appeal, however, the Commission had a comprehensive overview of the active substances approved by it and was therefore also aware of their benefit for agriculture and their effects on health and the environment. This knowledge was also taken into consideration by the Commission, as it was aware that two other neonicotinoids were still available at the time. (91) 182. The Commission was not required, on the other hand, to investigate the extent to which Member States had already approved plant protection products based on other active substances which could replace the products that would cease to be used pursuant to the contested implementing regulation. Although it would have been possible to obtain that information from the Member States, this would have been merely a snapshot. It had to be assumed that further to the new rules the producers would notify plant protection products for the harmful organisms concerned based on still approved active substances. 183. The General Court also rightly states in paragraph 463 of the judgment under appeal that under Article 53 of the Plant Protection Regulation it is possible to avoid disproportionate impacts of the contested restrictions. According to that provision, Member States may temporarily authorise the placing on the market of plant protection products based on non-approved active substances, for limited and controlled use, where such a measure appears necessary because of a danger which cannot be contained by any other reasonable means. The Commission was thus permitted to consider that the restrictions imposed by it would not apply absolutely and immutably, but that the Member States would allow derogations in urgent cases. 184. Though NFU argues that the practice of applying that derogation in the United Kingdom is highly restrictive, in this way the principle of proportionality is expressed. If the competent national authorities conclude that the adverse effects preclude an approval by way of derogation in a specific individual case, in other words that the adverse effects of a derogation outweigh the positive effects, the principle of proportionality requires no broader general authorisation. 185. Moreover, because the Member States are responsible within this framework for balancing the conflicting interests, the Commission cannot be expected to anticipate their practice when reviewing an approval. 186. The sixth ground of appeal is therefore unfounded. VI. The action before the General Court 187. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the latter may, where the decision of the General Court has been set aside, either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court. 188. In the light of the above considerations, the judgment of the General Court should be set aside only to the extent that it dismissed the action in respect of the prohibition of the non-professional use of clothianidin and imidacloprid as insecticide in so far as the prohibition on non-professional use is more extensive than the prohibition on professional use. On this point, the state of the proceedings permits the Court of Justice to give final judgment as it is clear that the Commission did not rely on the available scientific knowledge in this regard. Consequently, the contested implementing regulation should be annulled on this point. VII. Costs 189. Under Article 184(2) of its Rules of Procedure, where the appeal is unfounded or where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to the costs. 190. Under Article 138(1) of the Rules of Procedure, which applies mutatis mutandis to appeal proceedings pursuant to Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under the first sentence of Article 138(3), however, the parties are to bear their own costs where each party succeeds on some and fails on other heads. The first sentence of Article 134(3) of the Rules of Procedure of the General Court contains the same rule. 191. The Commission and Bayer should therefore bear their own costs in the proceedings before the General Court and before the Court of Justice. 192. This also applies with regard to the inadmissible appeal brought on behalf of Bayer AG as it did not give rise to any additional costs for the other parties compared with the admissible appeal brought by Bayer CropScience AG. 193. Furthermore, under Article 184(4) of the Rules of Procedure, where the appeal has not been brought by an intervener at first instance, he may not be ordered to pay costs in the appeal proceedings unless he participated in the written or oral part of the proceedings before the Court of Justice. Where an intervener at first instance takes part in the proceedings, the Court may decide that he shall bear his own costs. Therefore, in the light of the outcome of the proceedings, I suggest that the interveners at first instance which took part in the present proceedings be ordered to bear their own costs. (92) 194. In addition, the decision as to costs should also be rectified for the interveners at first instance. They too should each bear their own costs in accordance with Article 138(3) of the Rules of Procedure of the General Court. 195. Lastly, with regard to De Bijenstichting, I suggest that the Court apply Article 140(3) of the Rules of Procedure, under which the Court may order it to bear its own costs. VIII. Conclusion 196. I therefore propose that in the present dispute the Court should: (1) Declare that the appeal is inadmissible in so far as it was brought on behalf of Bayer AG; (2) Set aside the judgment of the General Court of 17 May 2018, Bayer and Others v Commission (T‑429/13 and T‑451/13, EU:T:2018:280), to the extent that the General Court dismissed the action in respect of the prohibition of the non-professional use of clothianidin and imidacloprid as insecticide in so far as the prohibition on non-professional use is more extensive than the prohibition on professional use; (3) Declare that the judgment of the General Court of 17 May 2018, Bayer and Others v Commission (T‑429/13 and T‑451/13, EU:T:2018:280) is vitiated by an error in law in so far as it is found that it had not been necessary, in connection with the adoption of Commission Implementing Regulation (EU) No 485/2013 of 24 May 2013 amending Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substances clothianidin, thiamethoxam and imidacloprid, and prohibiting the use and sale of seeds treated with plant protection products containing those active substances, to take account of the Environmental risk assessment scheme for plant protection products published by the European and Mediterranean Plant Protection Organisation, as updated in 2010; (4) Annul Implementing Regulation No 485/2013, in so far as it makes the non-professional use of clothianidin and imidacloprid as insecticide subject to a more extensive prohibition than for professional use; (5) Order that all the parties in the proceedings before the General Court and before the Court of Justice and the interveners in those proceedings are to bear their own costs. 1 Original language: German. 2 Commission Implementing Regulation (EU) No 485/2013 of 24 May 2013 amending Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substances clothianidin, thiamethoxam and imidacloprid, and prohibiting the use and sale of seeds treated with plant protection products containing those active substances (OJ 2013 L 139, p. 12). 3 Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1). 4 Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1). 5 Commission Directive of 7 July 2006 amending Council Directive 91/414 to include clothianidin and pethoxamid as active substances (OJ 2016 L 187, p. 24). 6 Commission Directive of 15 December 2008 amending Council Directive 91/414 to include aclonifen, imidacloprid and metazachlor as active substances (OJ 2008 L 337, p. 86). 7 EFSA Panel on Plant Protection Products and their Residues (PPR), Scientific Opinion on the science behind the development of a risk assessment of Plant Protection Products on bees (Apis mellifera, Bombus spp. and solitary bees), EFSA Journal 2012, 10(5) 2668 (doi:10.2903/j.efsa.2012.2668). 8 Paragraphs 241 to 243. 9 EPPO, Annual Report and Council Recommendations 2018, EPPO Bulletin, (2019) 49, p. 509 (602). 10 Commission Directive of 12 March 2010 amending Annex I to Council Directive 91/414 as regards the specific provisions relating to clothianidin, thiamethoxam, fipronil and imidacloprid (OJ 2010 L 65, p. 27). 11 Commission Implementing Regulation (EU) 2018/784 of 29 May 2018 amending Implementing Regulation (EU) No 540/2011 as regards the conditions of approval of the active substance clothianidin (OJ 2018 L 132, p. 35). 12 Commission Implementing Regulation (EU) 2018/783 of 29 May 2018 amending Implementing Regulation (EU) No 540/2011 as regards the conditions of approval of the active substance imidacloprid (OJ 2018 L 132, p. 31). 13 https://ec.europa.eu/food/plant/pesticides/eu-pesticides-database/public/?event=activesubstance.detail&language=DE&selectedID= 1154. 14 Judgments of 22 March 1961, S.N.U.P.A.T. v High Authority (42/59 and 49/59, EU:C:1961:5, p. 87); of 4 October 2012, Byankov (C‑249/11, EU:C:2012:608, paragraph 77); and of 20 December 2017, Incyte (C‑492/16, EU:C:2017:995, paragraph 48). 15 Opinion of Advocate General Campos Sánchez-Bordona in Repower v EUIPO (C‑281/18 P, EU:C:2019:426, points 34 and 35). 16 Judgment of 9 March 1978, Herpels v Commission (54/77, EU:C:1978:45, paragraph 38). 17 See below, points 137 to 138. 18 See to that effect, with regard to the Plant Protection Directive, judgments of 18 July 2007, Industrias Químicas del Vallés v Commission (C‑326/05 P, EU:C:2007:443, paragraphs 75 and 76), and of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraphs 55 and 56). 19 Orders of 15 April 2010, Makhteshim-Agan Holding and Others v Commission (C‑517/08 P, not published, EU:C:2010:190, paragraph 62), and of 7 May 2013, Dow AgroSciences and Others v Commission (C‑584/11 P, not published, EU:C:2013:281, paragraph 73). 20 See to that effect, with regard to the Plant Protection Directive, judgments of 18 July 2007, Industrias Químicas del Vallés v Commission (C‑326/05 P, EU:C:2007:443, paragraph 76), and of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraph 56). 21 See to that effect, with regard to the Plant Protection Directive, judgments of 18 July 2007, Industrias Químicas del Vallés v Commission (C‑326/05 P, EU:C:2007:443, paragraph 77), and of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraph 57). 22 COM(2000) 1 final. 23 Judgment of 11 September 2002, Pfizer Animal Health v Council (T‑13/99, EU:T:2002:209, paragraph 119). 24 See, by way of illustration, judgments of 1 April 2008, Parliament and Denmark v Commission (C‑14/06 and C‑295/06, EU:C:2008:176, paragraph 75); of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraphs 71 to 73); of 21 July 2011, Etimine (C‑15/10, EU:C:2011:504, paragraph 129); and of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraphs 41 to 43). 25 Judgment of 29 November 2007, Stadtwerke Schwäbisch Hall and Others v Commission (C‑176/06 P, not published, EU:C:2007:730, paragraph 18), and of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission (C‑654/17 P, EU:C:2019:634, paragraph 44). 26 Judgments of 7 June 2007, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322, paragraph 42), and of 23 December 2015, Parliament v Council (C‑595/14, EU:C:2015:847, paragraph 17); and order of 17 December 2019, Rogesa v Commission (C‑568/18 P, not published, EU:C:2019:1092, paragraph 25). 27 See above, point 32. 28 Judgments of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraph 62), and of 23 December 2015, Parliament v Council (C‑595/14, EU:C:2015:847, paragraph 16). 29 Judgments of 6 March 1979, Simmenthal v Commission (92/78, EU:C:1979:53, paragraph 32); of 24 June 1986, AKZO Chemie and AKZO Chemie UK v Commission (53/85, EU:C:1986:256, paragraph 21); of 7 June 2007, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322, paragraph 50); of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraph 63); and of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraph 48). 30 Judgments of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraph 65); of 23 December 2015, Parliament v Council (C‑595/14, EU:C:2015:847, paragraph 18); and of 30 April 2020, Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v Commission (C‑560/18 P, EU:C:2020:330, paragraph 41). 31 Unlike in the judgment of 27 June 2013, Xeda International and Pace International v Commission (C‑149/12 P, not published, EU:C:2013:433, paragraph 34). 32 With regard to the need for a serious breach, see judgment of 10 September 2019, HTTS v Council (C‑123/18 P, EU:C:2019:694, paragraphs 32 and 33 and 42 and 43). 33 See below, points 94 and 168. 34 See, to that effect, judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others (C‑310/97 P, EU:C:1999:407, paragraphs 52 to 55). 35 Judgments of 20 October 1983, Gutmann v Commission (92/82, EU:C:1983:286, paragraph 2), and of 23 April 1986, Les Verts v Parliament (294/83, EU:C:1986:166, paragraphs 15 to 18). 36 Judgments of 8 July 2004, JFE Engineering v Commission (T‑67/00, T‑68/00, T‑71/00 and T‑78/00, EU:T:2004:221, paragraphs 47 to 50), and of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission (T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraphs 72 to 74). 37 Judgment of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 99). 38 See judgment of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 42 and the case-law cited). 39 See below, point 140. 40 See judgment of 23 January 2019, Deza v ECHA (C‑419/17 P, EU:C:2019:52, paragraph 87). 41 See above, point 18. 42 Paragraphs 109 and 116 of the application before the General Court. 43 Judgments of 8 February 2007, Groupe Danone v Commission (C‑3/06 P, EU:C:2007:88, paragraph 46), and of 10 July 2019, VG v Commission (C‑19/18 P, EU:C:2019:578, paragraph 31). 44 See to that effect, with regard to the Plant Protection Directive, judgments of 18 July 2007, Industrias Químicas del Vallés v Commission (C‑326/05 P, EU:C:2007:443, paragraphs 75 and 77), and of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraphs 55 and 57). 45 See also the comments below regarding the third, fourth and fifth grounds of appeal. 46 See above, point 20. 47 See above, point 19. 48 Judgment of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 41 and the case-law cited). 49 Judgment of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 44 and the case-law cited). 50 Judgments of 23 September 2003, Commission v Denmark (C‑192/01, EU:C:2003:492, paragraph 51); of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraph 75); and of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 46 and the case-law cited and paragraph 94). 51 Judgment of 28 March 2019, Verlezza and Others (C‑487/17 to C‑489/17, EU:C:2019:270, paragraph 57). See also judgments of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2019:622, paragraph 134); of 10 October 2019, Luonnonsuojeluyhdistys Tapiola (C‑674/17, EU:C:2019:851, paragraph 66); and of 24 October 2019, Prato Nevoso Termo Energy (C‑212/18, EU:C:2019:898, paragraph 58). 52 Judgments of 5 May 1998, National Farmers’ Union and Others (C‑157/96, EU:C:1998:191, paragraphs 63 and 64); of 9 September 2003, Monsanto Agricoltura Italia and Others (C‑236/01, EU:C:2003:431, paragraph 111); and of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 43). 53 Judgments of 23 September 2003, Commission v Denmark (C‑192/01, EU:C:2003:492, paragraph 52); of 28 January 2010, Commission v France (C‑333/08, EU:C:2010:44, paragraph 93); of 29 April 2010, Solgar and Others (C‑446/08, EU:C:2010:233, paragraph 70); and of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 43). 54 Judgment of 9 September 2003, Monsanto Agricoltura Italia and Others (C‑236/01, EU:C:2003:431, paragraph 112). 55 Krämer, L., in: von der Groeben/Schwarze (ed.), Kommentar zum Vertrag über die Europäische Union und zur Gründung der Europäischen Gemeinschaft, 7th edition, Nomos, Baden-Baden, 2015, Article 191 TFEU, paragraph 40, Scherer, J. and Heselhaus, S., Umweltrecht, paragraph 36, in: Dauses (ed.), Handbuch des EU-Wirtschaftsrechts, C.H. Beck, Munich, EL 49, November 2019. 56 See judgments of 5 October 1999, Lirussi and Bizzaro (C‑175/98 and C‑177/98, EU:C:1999:486, paragraph 51); of 22 June 2000, Fornasar and Others (C‑318/98, EU:C:2000:337, paragraph 37); and of 26 April 2005, Commission v Ireland (C‑494/01, EU:C:2005:250, paragraph 165). 57 See Calliess, C. in: Calliess/Ruffert (ed.), EUV/AEUV, 5th edition 2016, Article 191 TFEU, paragraphs 32 and 33; Kahl, W. in: Streinz (ed.), EUV/AEUV, 3rd edition 2018, Article 114 TFEU, paragraphs 81 and 82; and Nettesheim, M. in Grabitz/Hilf/Nettesheim (ed.), Das Recht der Europäischen Union, 44th supplement, May 2011, Article 191, paragraph 89. 58 See also judgment of 21 July 2011, Etimine (C‑15/10, EU:C:2011:504, paragraphs 128 and 129). 59 There was a similar situation with the rules at issue in the judgment of 8 July 2010, Afton Chemical (C‑343/09, EU:C:2010:419, paragraphs 60 and 64). 60 Judgments of 1 June 1994, Commission v Brazzelli Lualdi and Others (C‑136/92 P, EU:C:1994:211, paragraph 59); of 28 June 2005, Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 165); and of 16 November 2017, Ludwig-Bölkow-Systemtechnik v Commission (C‑250/16 P, EU:C:2017:871, paragraph 29). 61 See my Opinion in Union des industries de la protection des plantes (C‑514/19, EU:C:2020:422, points 91 and 92). 62 See above, point 30. 63 Judgment of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 92). 64 See also judgment of 21 July 2011, Etimine (C‑15/10, EU:C:2011:504, paragraphs 128 and 129). 65 See above, point 75 et seq. 66 Bayer mentions the judgment of 13 September 2017, Fidenato and Others (C‑111/16, EU:C:2017:676, paragraph 52), the Opinion of Advocate General Bobek in Fidenato and Others (EU:C:2017:248, points 74 to 77) and the judgment of the General Court of 26 November 2002, Artegodan v Commission (T‑74/00, T‑76/00, T‑83/00 to T‑85/00, T‑132/00, T‑137/00 and T‑141/00, EU:T:2002:283, paragraphs 192 and 195). 67 Judgment of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 99). See also above, points 76 and 115 et seq. 68 See above, point 76. 69 See above, points 44 to 49. 70 Regulation of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (OJ 2003 L 268, p. 1). 71 Judgments of 8 September 2011, Monsanto and Others (C‑58/10 to C‑68/10, EU:C:2011:553, paragraph 76), and of 13 September 2017, Fidenato and Others (C‑111/16, EU:C:2017:676, paragraph 51). 72 Judgment of 13 September 2017, Fidenato and Others (C‑111/16, EU:C:2017:676, paragraphs 50, 52 and 53). 73 See, by way of illustration with regard to binding tariff information, judgments of 29 January 1998, Lopex Export (C‑315/96, EU:C:1998:31, paragraph 28); of 2 December 2010, Schenker (C‑199/09, EU:C:2010:728, paragraph 16); and of 7 April 2011, Sony Supply Chain Solutions (Europe) (C‑153/10, EU:C:2011:224, paragraph 24). 74 See judgment of 29 January 1998, Lopex Export (C‑315/96, EU:C:1998:31, paragraphs 28 and 29). 75 EFSA, Conclusion on the peer review of the pesticide risk assessment for bees for the active substance clothianidin, EFSA Journal 2013, 11(1):3066 (doi:10.2903/j.efsa.2013.3066), p. 6, and European Food Safety Authority, Conclusion on the peer review of the pesticide risk assessment for bees for the active substance imidacloprid, EFSA Journal 2013, 11(1):3068 (doi:10.2903/j.efsa.2013.3068), p. 6. 76 See also judgments of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraph 58), and of 1 October 2019, Blaise and Others (C‑616/17, EU:C:2019:800, paragraph 79). 77 See also judgments of 13 September 2007, Land Oberösterreich and Austria v Commission (C‑439/05 P and C‑454/05 P, EU:C:2007:510, paragraph 32), and of 6 November 2008, Netherlands v Commission (C‑405/07 P, EU:C:2008:613, paragraph 67). 78 Judgments of 9 September 2003, Monsanto Agricoltura Italia and Others (C‑236/01, EU:C:2003:431, paragraph 106); of 28 January 2010, Commission v France (C‑333/08, EU:C:2010:44, paragraph 91); and of 19 January 2017, Queisser Pharma (C‑282/15, EU:C:2017:26, paragraph 60). 79 Judgments of 9 September 2003, Monsanto Agricoltura Italia and Others (C‑236/01, EU:C:2003:431, paragraph 106); of 8 September 2011, Monsanto and Others (C‑58/10 to C‑68/10, EU:C:2011:553, paragraph 77); and of 13 September 2017, Fidenato and Others (C‑111/16, EU:C:2017:676, paragraph 51). 80 Judgment of 22 December 2010, Gowan Comércio Internacional e Serviços (C‑77/09, EU:C:2010:803, paragraphs 78 and 79). 81 Directive 2009/128/EC of the European Parliament and of the Council of 21 October 2009 (OJ 2009 L 309, p. 71). 82 See above, point 105. 83 Judgments of 8 July 2010, Afton Chemical (C‑343/09, EU:C:2010:419, paragraphs 45 and 60 to 62), and of 9 June 2016, Pesce and Others (C‑78/16 and C‑79/16, EU:C:2016:428, paragraph 48). 84 See above, points 44 to 49. 85 See judgments of 7 September 2006, Spain v Council (C‑310/04, EU:C:2006:521, paragraphs 122 and 123); of 8 July 2010, Afton Chemical (C‑343/09, EU:C:2010:419, paragraph 34); and of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 73). 86 Orders of 22 May 2014, Bilbaína de Alquitranes and Others v ECHA (C‑287/13 P, not published, EU:C:2014:599, paragraph 20), and of 4 September 2014, Rütgers Germany and Others v ECHA (C‑290/13 P, not published, EU:C:2014:2174, paragraph 26). 87 See above, point 50. 88 See judgments of 12 July 1979, Italy v Council (166/78, EU:C:1979:195, paragraph 14); of 25 June 1997, Italy v Commission (C‑285/94, EU:C:1997:313, paragraph 23); of 9 November 2006, Agraz and Others v Commission (C‑243/05 P, EU:C:2006:708, paragraph 73); of 8 July 2010, Afton Chemical (C‑343/09, EU:C:2010:419, paragraph 33); and of 30 April 2019, Italy v Council (Fishing quotas for Mediterranean swordfish) (C‑611/17, EU:C:2019:332, paragraph 57). 89 See judgments of 8 June 2010, Vodafone and Others (C‑58/08, EU:C:2010:321, paragraphs 55, 58 and 65), and of 12 May 2011, Luxembourg v Parliament and Council (C‑176/09, EU:C:2011:290, paragraph 65). 90 See judgment of 13 March 2019, Poland v Parliament and Council (C‑128/17, EU:C:2019:194, paragraph 31), illustrated by judgments of 8 July 2010, Afton Chemical (C‑343/09, EU:C:2010:419, paragraphs 36, 37 and 40), and of 4 May 2016, Pillbox 38 (C‑477/14, EU:C:2016:324, paragraphs 64 to 66). 91 Annex 23 to the appeal, p. 3 (p. 633 of the annexes). 92 See judgment of 11 September 2014, MasterCard and Others v Commission (C-382/12 P, EU:C:2014:2201, paragraph 265).