163

The paragraphs of the judgment under appeal on which Bayer CropScience’s criticisms focus are as follows: ‘459 First, in that regard, it should be noted that point 6.3.4 of the Communication [on the precautionary principle of 2 February 2000 (COM(2000) 1 final) (“the communication of the precautionary principle”)] provides for an examination to be carried out of the benefits and costs of action and lack of action. However, the format and scope of that examination are not specified. In particular, it is not at all apparent that the authority concerned is obliged to initiate a specific assessment procedure culminating, for example, in a formal, written assessment report. In addition, it is apparent from the text that the authority applying the precautionary principle enjoys considerable discretion regarding methods of analysis. Although the communication indicates that the examination “should” include an economic analysis, the authority concerned must in any event also include non-economic considerations. Furthermore, it is expressly stated that it may be the case that, in certain circumstances, economic considerations must be considered less important than other interests which are given priority; interests such as the environment or health are expressly mentioned by way of example. 460 Moreover, it is not necessary for the economic analysis of the costs and benefits to be made on the basis of a precise calculation of the respective costs of the action proposed or of inaction. Such precise calculations will in most cases be impossible to make, given that, in the context of the application of the precautionary principle, their results depend on different variables which are, by definition, unknown. If all the consequences of inaction and of action were known, it would not be necessary to resort to the precautionary principle; it would be possible to decide on the basis of certainties. In conclusion, the requirements of the Communication on the precautionary principle are satisfied where the authority concerned – in the present case, the Commission – has in fact acquainted itself with the effects, positive and negative, economic and otherwise, to which the proposed action, as well as the failure to act, may lead, and has taken that into account in its decision. By contrast, it is not necessary for those effects to be estimated precisely, if that is not possible or would require disproportionate effort. 461 Second, it should be noted that the Commission has clearly drawn a comparison between the most likely positive or negative consequences of the action proposed and those of inaction in terms of the overall cost to the European Union, thereby satisfying the requirements of point 6.3.4 of the Communication on the precautionary principle. That is evident from the note dated 21 January 2013 for the attention of the Commissioner responsible at that time. The note sought to inform the Commissioner of the discussion under way on EFSA’s [Conclusion] and to request his approval for the measures proposed by the Commission’s services. In Annex V to the note, headed “Background information on EP, Industry, NGOs”, various circumstances were set out which had been considered in connection with the proposal. In particular, with regard to the fact that neonicotinoids are largely used in agriculture, Annex V mentioned the main results of the Humboldt study, produced to the Commission by the applicants, including the conclusions of that study as to the effects of a ban on neonicotinoids on the economy, the employment market and the environmental record of the European Union. Reference was also made to the fact that the Commission did not have a complete overview of the alternative plant protection products, since these were authorised at national level. Last, the note indicated that the [European] Parliament was going to discuss the matter three days later, on 24 January 2013, on the basis of a study it had commissioned on the risks posed by the substances covered and which recommended a total ban of neonicotinoids (rather than just a restriction on use) and the fact that environmental NGOs were also calling for a total ban. It follows from all these points that the Commission was aware of the challenges, both economic and environmental, linked to the use of the substances covered.’