12

The competences of the Brussels Capital Region concerning plant protection products were described in paragraphs 9 to 17 of the order under appeal. Those paragraphs, which are not contested in the context of the present appeal, are worded as follows: ‘9 The appellant, the Brussels Capital Region, is one of the three regions to which certain competences are assigned by law under Article 39 of the Constitution of Belgium. 10 According to the first subparagraph of Article 6(1)(II) of the Loi spéciale de réformes institutionnelles (Special Law on Institutional Reforms) of 8 August 1980 (Moniteur Belge of 15 August 1980, p. 9434) (“the Special Law”), “the protection of the environment, in particular that of the soil, subsoil, water and air against pollution and aggression …” appears among those competences. Under that provision, the appellant is competent to regulate the use of plant protection products in its territory. 11 Under the first subparagraph of Article 6(1)(II) of the Special Law, the federal authority is, however, competent to “establish product standards”. It is therefore the federal authority which examines applications for authorisations to place plant protection products on the market and issues such authorisations in Belgium, in accordance with Article 28(1) of Regulation No 1107/2009. According to the first subparagraph of Article 6(4) of the Special Law, the regions are, however, involved in the exercise of this competence. 12 Article 7 of the Arrêté royal relatif à la conservation, à la mise sur le marché et à l’utilisation des pesticides à usage agricole (Belgian Royal Decree on the conservation, placing on the market and use of pesticides for agricultural use) of 28 February 1994 (Moniteur Belge of 11 May 1994, p. 12504) stipulates that it is prohibited to place on the market, prepare, transport, import, offer, display, offer for sale, hold, acquire or use a pesticide for agricultural use which has not been previously approved by the Minister. According to Article 8 of that decree, “the Minister or an official designated for this purpose by the Minister shall grant the approval on the advice of the Approval Committee referred to in Article 9”. Under Article 9 thereof, the Approval Committee is composed of 12 members appointed by the Minister (“the Approval Committee”), including “an expert from the Brussels Region, presented by the Minister-President of the Brussels Capital Region”. 13 On 20 June 2013, the appellant adopted the ordonnance relative à une utilisation des pesticides compatible avec le développement durable en Région de Bruxelles-Capitale (Order on the sustainable use of pesticides in the Brussels Capital Region) (Moniteur Belge of 21 June 2013, p. 40062) (“the Order of 20 June 2013”). According to the first paragraph of Article 1 thereof, that order transposes Directive [2009/128]. 14 According to the third paragraph of Article 1 of the Order of 20 June 2013, the appellant “may identify pesticides whose use is prohibited because of the risks they pose to human health or the environment”. 15 On 10 November 2016, the appellant adopted, on the basis of the Order of 20 June 2013, the Arrêté interdisant l’utilisation de pesticides contenant du glyphosate en Région de Bruxelles-Capitale (Decree prohibiting the use of pesticides containing glyphosate in the Brussels Capital Region) (Moniteur Belge of 2 December 2016, p. 79492) (“the Decree of 10 November 2016”). 16 It is apparent from the application that the Decree of 10 November 2016 is the subject of an action for annulment brought before the section du contentieux administratif du Conseil d’État (Administrative Litigation Division of the Council of State, Belgium). The action essentially concerns the alleged infringement of certain provisions of Regulation No 1107/2009 and Articles 34, 35 and 36 TFEU. In that case, the appellant takes the view that the European Union-wide approval of glyphosate and the authorisation by the Belgian federal authority of certain plant protection products containing that substance cannot be compromised by a total ban on the use of those products in the territory of the Brussels Capital Region. 17 Lastly, it should be noted that the appellant is involved in the works of the comitology committees at the European Union level and in turn represents the Kingdom of Belgium in those committees. As part of that assignment, it took part in a consultation with the other Belgian regions prior to the works on the active substance glyphosate carried out by the Standing Committee on Plants, Animals, Food and Feed through the Coordination Committee for International Environmental Policy, set up by the Cooperation Agreement of 5 April 1995 between the Federal State, the Flemish Region, the Walloon Region and the [appellant] on international environmental policy (Moniteur belge of 13 December 1995, p. 33436).’