The Council of State has definitively ruled: a mayor does not have the power to make decrees prohibiting the use of pesticides in his municipality, in particular the herbicide glyphosate.
Two decisions, dated December 31, have just been made public. The first concerns a prohibition order of June 13, 2019 taken by the mayor of Gennevilliers (Seine-Saint-Denis), for the maintenance of certain green spaces, and the second an order of September 2, 2019 of his counterpart in Arcueil (Val-de-Marne), this time over the whole of its municipality.
Exclusive state competence
The highest administrative court recalls that ” the legislator has organized a special police force for the marketing, possession and use of plant protection products, entrusted to the State “. Consequently, ” the special policing power of plant protection products entrusted to the State authorities is an obstacle to the enactment, by the mayor of a municipality, of regulatory measures prohibiting general use of these products “.
→ INVESTIGATION. Anti-pesticide decrees, a political weapon
Mayors and environmental protection associations nevertheless relied on articles of the general code of local authorities. The first gives, among other things, to the mayor the responsibility of ” prevent »Pollution of all kinds. The second, above all, allows him, ” in case of serious or imminent danger “, To prescribe” execution of security measures required by the circumstances “.
In vain: the Council of State stated that if these articles “ empower the mayor to take, for the municipality, the general police measures necessary for good order, public safety, security and sanitation, the mayor cannot legally use this competence to enact regulations on general conditions of use of plant protection products which it is up to the State authorities alone to adopt “. And this even in case of ” absence of measures to protect residents of treated areas “.
Law and ideology
Lawyer, former Minister of the Environment and President of the environmentalist party CAP11, Corinne Lepage expressed concern to France 3 Bretagne about this case law prohibiting mayors from acting: ” We had had quite a bit of success, for example in Ile-de-France, with the administrative courts of Cergy-Pontoise and Montreuil. It had been established that there was a deficiency of the State which could justify an action of the mayors. Now, if we think there is a state failure, how do we do it? “
In fact, the decisions of the Council of State implicitly contain differences of opinion that are as ideological as they are legal. On the one hand, by asserting that “ the long-term effects of these products on health remain, in the state of scientific knowledge, uncertain “. On the other hand, by stating that the legislator has balanced the protection of public health and the environment with an economic interest: “ Ensure a high level of protection of human and animal health and the environment while improving agricultural production. “
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However, these decisions do not end the debate opened by the decree taken in May 2019 by the then mayor in Langouët (Ille-et-Vilaine), Daniel Cueff. The Collective of Mayors anti-pesticides, created in the wake, in fact still relies on a referral to the Constitutional Council via the procedure of the priority question of constitutionality (QPC), in the name of the right to health or the principle of precaution, even on an action for failure to act before the Court of Justice of the European Union.