Constitutional Complaint in Plant Protection Law: Federal Constitutional Court Rejects the BVL's Constitutional Complaint

What was at issue? Background to the proceedings

Plant protection products are regulated in the EU under a two-tier system: first, the European Commission approves the respective active substance throughout the Union; subsequently, the Member States authorise the individual products at national level. Once a Member State (the reference Member State) has granted an authorisation, that authorisation may be adopted in other Member States by way of mutual recognition (Articles 40 et seq. of Regulation (EC) No 1107/2009).

In the original proceedings, the Federal Office of Consumer Protection and Food Safety (Bundesamt für Verbraucherschutz und Lebensmittelsicherheit, BVL) refused an application for mutual recognition. The BVL relied on the contention that the approval of an active-substance variant contained in the plant protection product — the ester form of an active substance — no longer existed. The reference Member State had examined this question following Germany's objections and had concluded that this active-substance variant continued to be covered by the existing approval for another variant of the active substance. The core dispute was therefore whether the German authority is entitled, in the recognition procedure, to re-examine this question and reach a divergent result.

The course of the proceedings: from the Braunschweig Administrative Court to the Federal Constitutional Court

The Braunschweig Administrative Court (Verwaltungsgericht Braunschweig) upheld the action and ordered the BVL to grant the authorisation. The decisive consideration was that the scope of review of the recognising Member State is very limited: there is no material competence of review beyond Article 41(1) and Article 36(3) of Regulation (EC) No 1107/2009. In particular, the authority is neither entitled nor obliged to review the lawfulness of the reference authorisation, so long as there is no systematic infringement of the procedural rules by the reference Member State.

The Lower Saxony Higher Administrative Court (Niedersächsisches Oberverwaltungsgericht, NdsOVG) refused the defendant authority's application for leave to appeal. The court found no serious doubts as to the correctness of the first-instance judgment. It transposed the case law of the Court of Justice of the European Union (CJEU) and of the Federal Administrative Court (Bundesverwaltungsgericht) developed on mutual recognition in pharmaceutical law to plant protection product law, and regarded the relevant questions as settled by the case law of the CJEU.

The BVL thereupon lodged a constitutional complaint, alleging an infringement of the right to one's lawful judge (Article 101(1), second sentence, of the Basic Law). It argued that the Higher Administrative Court had dealt with the obligation to refer to the CJEU (Article 267(3) TFEU) in an untenable manner, by wrongly assuming that the legal position was settled ("acte éclairé").

The key findings of the Federal Constitutional Court

Authorities, too, may invoke the right to one's lawful judge

The Federal Constitutional Court first confirmed that the complainant authority, as a legal person under public law, is in principle capable of lodging a constitutional complaint. A party that has the capacity to participate in proceedings before the specialised courts and that — as here, in the position of defendant — takes part in the proceedings may invoke the guarantee of the lawful judge and may rely on the constitutional complaint to challenge its infringement.

The standard: when does a failure to refer to the CJEU infringe Article 101 of the Basic Law?

On the merits, the Federal Constitutional Court applied its settled, restrained standard of review: not every infringement of the obligation to refer under EU law simultaneously constitutes a breach of Article 101(1), second sentence, of the Basic Law. The sole question examined is whether the handling of the obligation to refer under Article 267(3) TFEU is manifestly untenable. This is so, in particular, where a court of last instance fundamentally fails to recognise the obligation to refer, deliberately departs from the case law of the CJEU without any willingness to make a reference, or — where the case law is incomplete — arbitrarily affirms the existence of an "acte clair" or "acte éclairé". The Federal Constitutional Court expressly stated that it is not a "supreme court for reviewing references".

Why the constitutional complaint failed

The constitutional complaint was inadmissible because the authority had not sufficiently substantiated a possible infringement of that standard. The Federal Constitutional Court held that the Higher Administrative Court had engaged in a comprehensible manner with the wording and context of the CJEU's decision in Région de Bruxelles-Capitale. Neither the CJEU's departure from the Advocate General's Opinion nor the reference to a Dutch request for a preliminary ruling (the Pesticide Action Network Europe case, CJEU, judgments of 25 April 2024 – C-308/22 and C-309/22 and C-310/22) rendered the Higher Administrative Court's assessment untenable. What mattered was solely the Higher Administrative Court's assessment of the legal position at the time of its decision; any subsequent confirmation or refutation by the CJEU was constitutionally irrelevant.

Important for placing the decision in context: the Federal Constitutional Court did not itself decide the substantive question of EU law — namely, whether the national authority may, in the recognition procedure, examine the existence of an active-substance approval. It reviewed solely the handling of the obligation to refer and found no fault with it. The interpretation adopted by the administrative courts, favourable to the applicant, was thus not confirmed by the Constitutional Court, but it was classified as tenable — and, by virtue of the non-acceptance of the constitutional complaint, it becomes final and binding.

What does this mean for manufacturers and authorisation holders?

Several points of guidance emerge for the practice of mutual recognition:

• For the underlying constellation, the judgment of the Administrative Court is final and binding. The narrowly limited competence of review of the recognising Member State under Articles 40 et seq. of Regulation (EC) No 1107/2009 remains in place, including in so far as the approval of the active substance is concerned. The authority was in principle unable to refuse recognition on grounds other than those expressly named under EU law.
• As regards generalising from the Federal Constitutional Court's order, caution is warranted: it is a non-acceptance order relating to a specific factual constellation. A definitive clarification under EU law by the CJEU is still pending; the underlying question of interpretation continues to be assessed differently in case law and in academic literature.
• On the other hand, both the Braunschweig Administrative Court and the Lower Saxony Higher Administrative Court have since confirmed their case law. Accordingly, an independent review of the lawfulness of the foreign reference authorisation does not, in principle, take place in the recognition procedure. The procedure rests on the principle of mutual trust and serves the free movement of goods and the avoidance of duplicated work (recital 29 of Regulation (EC) No 1107/2009).

For authorisation holders wishing to place plant protection products on the market in Germany by way of mutual recognition, the decision underscores the value of an effectively granted and existing reference authorisation, as well as of careful procedural management of the recognition application.

Conclusion

The order shows that even an authorisation authority faces high substantiation hurdles before the Federal Constitutional Court when alleging a failure to refer to the CJEU. The interpretation of the administrative courts that is favourable to applicants — concerning the narrow competence of review in the mutual recognition procedure — remains in place in the specific case. How the substantive question of EU law will develop in future remains to be seen.

The lawyers of KOOF Rechtsanwälte, who specialise in plant protection and biocide law, support manufacturers and authorisation holders in authorisation, recognition and revocation proceedings. Should you have any questions regarding mutual recognition or procedural strategy, we would be glad to assist.