Freedom of speech under attack: The autonomous province of Bozen/Bolzano is suing the Munich Environmental Institute, the author Alexander Schiebel and the oekom publishing house for public criticism of pesticide use in fruit cultivation Summary: In September 2017, the Vice President of the Autonomous Province of Bozen/Bolzano at the time, and provincial minister for agriculture Arnold Schuler1, filed charges against the Munich Environmental Institute, Alexander Schie- bel, the author of the book „Das Wunder von Mals“ („The Miracle of Mals“) and his publisher Jacob Radloff, the managing director of oekom verlag. The charges are also being brought in the name of more than 1,300 growers. The case arose following criticism from the Munich Environmental Institute and Schiebel about the massive use of pesticides that is ubiquitous in South Tyrolean fruit plantations. The province encompasses more than 18,000 hectares of land that is used for apple cultivation. Around 10 percent of the apples harvested in Europe are grown in this region. In some instances, the apple plantations are sprayed more than 20 times every year. These toxins have an adverse impact on biodiversity and human health. Now, three years after the charges were first filed by Arnold Schuler, the public prosecutor’s office at the Bolzano Regional Court is filing charges of defamation against Karl Bär, an employee of the Munich Environmental Institute, as well as against the author Alexander Schiebel. In the event of a defeat in the criminal courts, the defendants face not only a financial penalty2, but also possible claims for damages amounting to millions of euros from potentially thousands of South Tyrolean growers, which would undoubtedly mean financial ruin. In the view of the Munich Environmental Institute and its lawyers, the charges and accusations are an attack on freedom of speech. If opponents and critics of industrial agriculture must fear immediate judicial consequences, who will still dare to speak up? The charges represent a broader strategy that is being increasingly applied across Europe by companies, politicians and influential individuals to obstruct or intimidate activists and critical journalists through baseless criminal charges and civil lawsuits. 1 Arnold Schuler had to give up his position as Vice President as the result of a Corona aid scandal in August 2020, but remains provincial minister for agriculture: https://www.suedtirolnews.it/politik/bonus-affaere-das-sind-die-folgen-fuer-die-svp-mandatare (GER, accessed August 28 2020) 2 In addition to the financial penalty, a prison sentence is also possible under the Penal Code. Umweltinstitut München e.V., 4th of September 2020 1 CONTENTS: 1. Background: a) The Pesticide Rebels of Mals b) The Miracle of Mals by Alexander Schiebel 2. Involvement of the Munich Environmental Institute in Südtirol /Alto Adige 3. In court for criticising the use of pesticides in Südtirol /Alto Adige a) The Munich Environmental Institute, its board of directors and Karl Bär, adviser on agricultural and trade policy b) Alexander Schiebel, author, and Jacob Radloff, managing director of the publishing house oekom verlag 4. Assessment of the lawyers of the Munich Environmental Institute and oekom verlag 5. Consequences for the defendants 6. The Europe-wide significance of the lawsuits for civil society (“SLAPP” concept) 7. Use of pesticides in Südtirol /Alto Adige a) Importance of fruit cultivation for Europe and Germany b) Quantities and effects of the pesticides used in Südtirol /Alto Adige 8. Appendix: Chronology of the involvement of the Environmental Institute in Südtirol /Alto Adige 9. Appendix: Overview of legal proceedings against opponents of pesticides in Südtirol /Alto Adige Umweltinstitut München e.V., 4th of September 2020 2 1. Background: a) The Pesticide Rebels of Mals In 2014, the South Tyrolean municipality of Mals held a legally binding referendum on the banning of chemical-syn- thetic pesticides, which passed by a large majority. The council of Mals implemented the referendum in a municipal re- gulation3 that does not prohibit the use of pesticides entirely, but which places severe restrictions that makes it virtually impossible. With this vote, the citizens of Mals also found themselves in opposition to the interests of their provincial government, the farmers’ association and the agro-industry. The government of the autonomous province of Bozen/Bol- zano has spared no effort in placing obstacles in the path of the municipality. By means of a new law in 2016, they even managed to restrict local authorities’ ability to regulate the use of pesticides.4 In 2016, a number of landowners and growers took legal action against the Mals regulation at the Bolzano Administra- tive Court. In autumn of the following year, the court ruled that the regulation was unlawful because the municipality was deemed to have exceeded its authority, among other reasons. The municipality of Mals has appealed, leaving the de- cision on the legality of the regulation to the Council of State in Rome.5 Here, the municipality considers its prospects to be good, referring to the mayor’s responsibility for local health as set out in the Italian Constitution and a precedent case from the neighbouring province as well as to the fact that provincial law on the division of powers emerged only af- ter the adoption of their pesticide regulation. In the course of this dispute, both the initiator of the referendum petition as well as the mayor of Mals have also had to stand trial as private citizens in the Bolzano courts. • Johannes Fragner-Unterpertinger, spokesperson for the citizens’ initiative “The Way of Mals” (Der Malser Weg/ La via da Malles) was summoned to the Bolzano Regional Court because he made the original application for the re- ferendum and collected signatures for the vote. The proceedings against him as a private individual were brought by miscellaneous growers. In the entire initial court proceedings, the lawyers of the plaintiffs could not specify any law that Fragner-Unterpertinger is supposed to have violated. While the judgment of the lower court stated that, as a pri- vate individual, he should not have been summoned to court, he was nevertheless required to pay the costs of procee- dings out of his own pocket. He appealed the first court ruling at the Higher Regional Court of Bolzano as a private individual. There, a judgment on December 2019 confirmed this point and he was also reimbursed by the plaintiffs for the procedural costs of both hearings. In early 2020, nine growers contested the judgment of the appeals court at the Court of Cassation5 in Rome, where proceedings can take several years until a verdict is reached. 3 You can find the regulation here (Ger/It): https://www.umweltinstitut.org/fileadmin/Mediapool/Downloads/01_Themen/05_Landwirtschaft/Pestizide/Suedti- rol/Verordnung_ueber_den_Einsatz_von_Pflanzenschutzmitteln_im_Gemeindegebiet_zweisprachig.pdf 4 The Landesgesetz vom 15. April 2016, Nr. 8 ("Provincial Law of 15 April 2016, No. 8") titled " Bestimmungen auf dem Gebiet des Pflanzenschutzes" ("Provisi- ons in the Area of Plant Protection") very clearly regulates that the Province of Südtirol /Alto Adige is responsible for all matters concerning plant protection and the use of pesticides, and the municipalities only have those powers that the province actively transfers to them: “In the area of sustainable use of pesticides, the municipalities have the administrative powers that are assigned or transferred to them by the Province of Südtirol /Alto Adige in accordance with the Coun- cil of Municipalities.” (http://lexbrowser.provinz.bz.it/doc/de/204538/landesgesetz_vom_15_april_2016_nr_8.aspx?view=1 Art. 7, Para. 5). The new law is clea- rer than the previously existing situation and more restrictive for the municipalities, but does not affect the Mals regulation as the law was only adopted after the referendum. By comparison, the Provinzgesetz vom 30. Dezember 2015, Nr. 21 ("Provincial Law of 30 December 2015, No. 21") of the neighbouring province of Trento expressly grants the municipalities permission to obtain a higher level of protection through further measures (https://www.consiglio.provincia.tn.it/ leggi-e-archivi/codice-provinciale/Pages/legge.aspx?uid=28097 Art. 24, Absatz 2). 5 The Council of State (Consiglio di Stato) is the second and highest tribunal of administrative jurisdiction in Italy. 6 The Court of Cassation is the highest court of appeal in Italy, and resolves disputes in civil and criminal proceedings from lower courts. Umweltinstitut München e.V., 4th of September 2020 3 • The public prosecutor’s office in Südtirol /Alto Adige accused the Mayor of Mals, Ulrich Veith, of misappropria- tion of funds for failing to prevent the vote, and demanded a payment to the state treasury of almost 25,000 euros. The rationale for this decision was that the referendum was not lawful; as the argument goes, Ulrich Veith should have known this in his capacity as mayor and should thus have prevented the vote. However, the referendum did take place and costs of around 25,000 euros were incurred by the municipality. These costs were to be paid by the mayor as a pri- vate individual. In May 2019, Ulrich Veith won a legal victory at the Court of Auditors of the Autonomous Province of Bolzano, which ruled that the referendum had been carried out correctly, thereby acquitting the mayor of the accu- sation of misappropriation. b) The Miracle of Mals by Alexander Schiebel In his book „Das Wunder von