Par Marie-Sophie De Clippele et Norman Vander Putten
Les bonnes feuilles du CEDRE
On 16th May 2024, the CEDRE and the IEE hosted a conference titled “What’s in the Common Agricultural Policy for the Environment? Legal levers and obstacles for sustainable agriculture”.
In recent decades, the intricate relationship between agriculture and the environment has gained significant attention due to pressing challenges such as climate change, biodiversity loss, and health-related issues. While specific environmental laws within the sector exist, the Common Agricultural Policy (CAP) stands out as a pivotal spending instrument, wielding an approximate budget of 55 billion EUR per year. Although the CAP integrates environmental conditions and funds eco-friendly practices, criticism abounds regarding its encouragement of unsustainable agriculture and its failure to achieve intended greening goals. At the same time, the recent farmers’ protests have shown to what extent the administrative and financial burden of environmental regulations may cause some of them to put them in questions.
Surprisingly, the CAP regulations and their practical application remain vastly understudied by legal scholars. The conference therefore investigated how the CAP offers levers and/or constitutes an obstacle to environmental laws and objectives.
The morning sessions aimed at unpacking the environmental aspects of the CAP. Pr. Nicolas de Sadeleer, shared his work on the shift in the CAP’s approach to environmental issues, pointing out both advancements and p gaps. Emmanuel Petel, Policy officer at the European Commission’s (DG agriculture and rural development) presented the latest reforms and the political vision behind it.
In short, from a legal point of view, the CAP is a shared management fund, meaning that the Union sets the basic policy parameters, such as the objectives of the CAP and its essential requirements, while Member States bear greater responsibility as to how they meet those objectives and achieve targets. Under Article 39 TFEU, the CAP has primarily non-environmental objectives: it should aim to increase productivity, ensure a fair standard of living in the sector, to stabilise markets and assure food supply at reasonable prices. However, in light of the necessity to integrate environmental protection requirements “into the definition and implementation of the Union’s policies and activities” (Article 11 TFEU), it has for long been admitted by the ECJ that the CAP may also pursue additional environmental objectives (see for instance case 336/00, § 33).
The 2023-2027 CAP pursues ten objectives. Three of them directly concern the environment : contribution to climate change mitigation and adaptation, efficient natural resources management and halting and reversing biodiversity loss (see Article 6 (1) and (2) of Regulation 2021/2115).
In a nutshell, the greening of the CAP happens in three main ways. First, Member States should set up systems of eco-conditionalities, i.e. sets of conditions related to health, biodiversity, animal welfare or climate matters that farmers must comply with in order to receive their direct income support (see Article 12 of Regulation 2021/2115). The Regulation sets minimum requirements related to 11 good agricultural and environmental conditions (GAECs), and 9 statutory management requirements (SMRs) referring to the compliance with existing pieces of Union (environmental) law (see Annex 3 of Regulation 2021/2115). Second, under the CAP, Member States financially support voluntary eco-schemes for “active farmers or groups of active farmers who make commitments to observe agricultural practices beneficial for the climate, the environment and animal welfare and combatting antimicrobial resistance” (Article 31 of Regulation 2021/2115). Third, Member States must dedicate at least 35% of the money they receive to implement rural development interventions to the environmental objectives of the CAP set out above (see Article 69 and Article 93 of Regulation 2021/2115).
In the light of the recent farmers’ protests, the 2023-2027 CAP has been adapted to alleviate i.a. the eco-conditionality system. Most notably, the revised CAP authorises Member States to establish new exemptions for given GAECs or SMRs, removes the obligation on the minimum share of non-productive features and areas removed (GAEC n° 8) and provides that no controls or penalties may be imposed on small farms (farms with less than 10 ha, which represent 65% of CAP beneficiaries and account for approximately 10 % of the total agricultural area) (See Recital 17, Article 2 and annex of Regulation 2024/1468).
The afternoon sessions explored specific tensions between agriculture and the environment. Marilda Dhaskali (BirdLife Europe) presented reports published by BirdLife and other organisations on how Member States implemented the CAP in practice, highlighting environmental shortcomings in the regulatory environment. This echoes evaluations made by both (legal) scholarship (see, for instance, De Sadeleer, 2023 or Verschuuren, 2022) and, for previous CAPs, by the Court of Auditors (see for instance reports 2017/21, 2020/13 or 2021/16, the latter being titled “Common Agricultural Policy and climate: Half of EU climate spending but farm emissions are not decreasing”).
Nieves Noval (ClienEarth) and Nikos Braoudakis (Baldon avocats) discussed the pending case indirectly contesting the Commission’s approval of the French national CAP plan on environmental grounds. Pr. Charles-Hubert Born shared his views on the internal consistency of the CAP, by providing an overview of the national performance-based system in the new CAP (see Article 104 (3) of Regulation 2021/2115) with insights from the Walloon Region’s implementation of the CAP. He also commented the changes of April 2024 that were adopted under the pressure of farmers’ protests, observing that they water down the conditionality in CAP.
The event also included two panel moments with interactive duelists – a first session brought Pr. Antoine Bailleux and Dries Verhaeghe (from Dryade) together on the leverage created by strategic litigation on pesticides use. Both shared cases, some of which their own, to insist on the importance of judicial avenues to enforce environmental rules.
The second panel offered the possibility to hear Virginie Debue (from FWA, the Fédération wallonne de l’agriculture) and Gaetan Seny (from Natagora, an NGO dedicated to environmental protection, including biodiversity and land-related issues), who shared their views on how to make a farmer become greener in the field. Mrs Debue insisted on the administrative and regulatory burden resting on the farmers’ shoulders, pointing at the rigidity of rules related to land erosion for instance. To become greener, farmers should be, according to Mrs Debue, incentivized and not punished. Mr Seny agreed on the increasing burden and bureaucracy but warned that the recent protests that led to considerable changes in CAP caused an important setback in terms of biodiversity and land use, punitive measures pursue at least clear objectives. There was common ground, however, on the lack of coherence in the Walloon regulation and the importance of funding stability. Debue denounced for instance the mandatory dates for harvest or sow without taking specific climate conditions into consideration.
The day ended with a forward-looking discussion led by Pr. Hendrik Schoukens, who wondered if the complexity of the CAP is inevitable as it sounds as a déjà vu. The founding father of CAP, Sicco Mansholt, already incarnated that complexity when drafting his famous letter in 1972 to the President of the European Commission calling for an ecological policy based on the report The limits to Growth. Taking the increasing scarcity of peatlands and swamps due to agricultural evolution as an example, Schoukens concluded that as long as strategic plans are lacking effectiveness, frustrations will continue. CAP will remain dragged in a swamp if no clear vision is set out on the relation between agriculture and the environment. Otherwise, CAP risks falling into the same trap it has before, turning agriculture against the environment.
Seminar cycle – Agriculture and Environmental law: old foes or new friends?
The CAP Regulation 2021/2115 provides that farmers receiving direct income support under the CAP, have to respect i.a. statutory management requirements (SMR) laid down in the annex II of the Regulation.
Those SMR are subdivided in 3 domains:
- public, animal and plant health,
- animal welfare,
- and the environment.
To define the requirements and standards associated with those (environmental) statutory management requirements, the PAC’s conditionality system refers to existing (environmental) EU law related to nitrates, water management or birds, for instance. Therefore, if designed correctly, an effective environmental conditionality in the PAC may act as an incentive-based regulatory tool that would be complementary to the traditional standard-setting directives and regulations in the field.
The present seminar cycle will explore this issue in three steps. It will first explore some of the water- and biodiversity- related SMRs, and their relationship with the legislation referred to by the CAP. Second, it will explore more fundamentally how the CAP’s system reflects a deeper evolution of EU environmental governance, which increasingly relies on governance through (green) spending. Third, prospectively, it will investigate how increasing expert knowledge and technology concerning agricultural carbon capture may lead to it being monetised, commodified and included in the future CAP’s conditionalities.
- Water policy and nitrates
- Wild birds and habitats
- Public spending and environmental conditionalities in the EU
- Carbon capture: monetisation, commodification