Although the EU has not officially reacted to the French decision, fruit importers and traders are concerned that France could soon implement similar domestic bans against other EU-approved pesticides or chemicals, which would effectively shut down the free movement of EU and third-country fruits and vegetables into France.
France imports roughly one fifth of its consumption, the bulk coming from EU countries including some (such as Spain, Italy and Spain) that have already banned dimethoate. The French prohibition will de facto suspend imports of cherries from the United States, valued at around $1 million annually. On the other hand, as France’s production is likely to be impacted by the ban on the pesticide, French cherries are likely to be scarcer and more expensive, creating opportunities for competitors on traditional French export markets such as the UK.
Organic cherries are specifically excluded from this ban and can be imported into France. Frozen and canned/preserved cherries are not affected by the ban which applies only to fresh cherries for food use.
EU Reaction to France’s decision.
In line with the provisions of this Article 54, the Commission organized an additional meeting of the PAFF Committee - Pesticides Residues section on April 27-28, to discuss whether this measure should be amended, extended or abrogated. At this meeting, the Commission stated that the current measure is disproportionate as it is based on the authorization status of dimethoate in the country of origin and it
would not enable those producers willing to comply with the French measures to retain access to the French market.
France on the other side considers its measure proportionate as it is limited to cherries and limited in time. Five Member States asked the Commission to prepare a measure for abrogation of the French measure. Eleven Member States supported the Commission in the prioritization of the MRL review but took no clear position yet as regards the abrogation or extension of the measure. Meanwhile, the MRL review has been initiated by the Commission. One Member State supported the emergency measure as long as this remains limited to cherries only.
The Commission concluded that there is no support for an extension of the measures at EU level and will now reflect internally on the appropriate way forward.
A difficult implementation and potential legal issues
Most experts highlight the difficulties to implement the French ban and the poor legal redaction of it. France has not yet published an official list of countries authorizing or banning dimethoate. They believe that to be legally sound, the decree should instead have set a MRL level allowing imports accompanied by proper certification.
Because of the single market rules, fruits are traded freely within the EU, and imported products can be custom cleared in another member state (where dimethoate could be legal) and shipped to France without further inspection. In case of a random inspection by the French fraud office, who will be legally responsible for the non-compliance? Will it be the French wholesaler, the trader or importer or the EU shipper/importer? Analysts believe this uncertainty could lead to potential complex litigations that could end up at the French Supreme Court (Conseil Constitutionnel).
Another potential problem lies with the cherries used for processing. While the decree prohibits the imports of fresh cherries for food, it does not specifically prohibit nor authorize the imports of cherries for processing for food uses.
What’s Next?
French fruit traders and importers hope that the EU Commission will strike down the French decree as not legally founded and against EU Single market rules. However, taking France to the European Court
of Justice will take years. Domestic litigation, such as the one at the Conseil D’Etat, will also take time.
