C-272/80

composed of: J. Mertens de Wilmars, President, G. Bosco, O. Due and A. Touffait (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges,

Advocate General: S. Rozès Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts of the case, the procedure and Court], Rotterdam, the private limited the written observations may be company Frans-Nederlandse Maat- summarized as follows: schappij voor Biologische Producten BV was fined the sum of HFL 1 000 for an offence contrary to the Bestrijdings- I — Facts and procedure middelenwet [Law relating to plant protection products], 1962. During the 1. By judgment of 4 December 1979 of proceedings before the Arron- the Arrondissementsrechtbank [District dissementsrechtbank it was found that

the défendant company had, on 16 time, it did not restrict trade to the least February 1978, through the intermediary extent possible. Moreover, the exam- of a representative, sold or delivered, or ination to which the product must be both, in the Netherlands, to the company subjected in the Netherlands for the Noord-Nederlandse Bottelmaatschappij purpose of obtaining approval involved BV, a certain quantity of a product costs which were completely dispro- called "Fumicot Fumispore", a plant portionate to the turnover which could protection product within the meaning of be achieved in the Netherlands. Article 1 of the above-mentioned Law, which is designed in particular for use in the food-processing industry but did not appear to have been approved in the Netherlands in accordance with the 3. The product in question Bestrijdingsmiddelenwet since its packaging did not indicate its name or its approval number. The product was used by the company Noord-Nederlandse Bottelmaatschappij BV to fumigate and It appears from the Plant Health Index disinfect a sugar silo so as to eliminate for Insecticides, Fungicides and any traces of mould. Herbicides . . . , laid down by the French Association for Technical and Agri- cultural Coordination, that it is a product under the name "Fumicot Auto- comburant Fumispore", marketed by LCB (Chemical and Biological 2. The defendant company lodged an Laboratory), La Salle, France. The appeal against that sentence, claiming product contains an active substance, in particular that the prohibition laid parahydroxyphenyl-salicylamide, and is down in Article 2 of the Bestrijdings- packed in a container comparable to a middelenwet restricting the importation soft-drinks carton. and marketing in the Netherlands of the product in question constituted a quantitative restriction or a measure having equivalent effect prohibited by Article 30 of the EEC Treaty. Counsel According to the Plant Health Index: for the company stated that the product in question was imported from France where it was lawfully marketed after it had been approved in accordance with "This substance, better known in phar- the relevant French legislation which macology under the name of 'Driol', sought to protect exactly the same exists in the form of a fine powder, not interests, namely those of public health, readily soluble in water, purplish grey as the Netherlands legislation, and to the and with a faintly acrid smell. It has been like extent. In those conditions, a found to have fungicidal properties in requirement that the product in question regard to numerous fungi or moulds in should, on importation into the storage premises (Pénicillium, Netherlands, be the subject of a fresh Cladosporium, Altenaria, Rhizopus . . . ) . approval was not necessary in order to When used it is mixed with a smoke- satisfy an overriding requirement nor did Droducer which disperses and suspends it it justify an exception to the fundamental at a rate of concentration of 5%. right of the free movement of goods. Application: disinfection of premises used Nor, furthermore, did it constitute the f or the manufacture and storage of food most suitable means since, at the same products (0.15g/m 3)."

5. In France, Law No 525 of In the Netherlands the importation and 2 November 1943 relating to the organ- marketing of plant protection products ization and control of anti-parasitic such as the product in question are products for agricultural use (in the governed by the Bestrijdingsmiddelenwet version now in force) prohibits the and by its implementing decrees. Article importation, sale, marketing or distri- 2 (1) of that Law provides: bution (even free), of such products, which doubtless include Fumicot Fumispore, without prior approval "It shall be an offence to sell, to store or (Articles 1 and 1 bis). Approval is to use a plant protection product where granted once it has been established that it is not shown that the said product has the products are effective and harmless been approved pursuant to this Law." to public health, users and plants and animals. Products in respect of which a request for approval is made must Approval is granted by a decision of the undergo physical, chemical or biological Minister for Agriculture and Fisheries or tests in the laboratories and departments by the Minister for Public Health and of the Ministry of Industrial and Environmental Hygiene, once it has been Scientific Development and decisions are established that the product is fit for the taken by the Minister for Agriculture use for which it is intended, does not and Rural Development, acting on a give rise to any harmful effect and that proposal from an approvals committee its content of active substances does not (Article 3). exceed that necessary for the purpose which it is designed to achieve (Article 3). Applications for approval are Provisional sales approvals of four years' addressed to the Plant Protection duration may, also be granted and the Products Approvals Committee and approvals (which are renewable) are involve the payment of a fixed amount granted for a maximum period of 10 for their examination (Article 4 of the years. There is a right of appeal for Decree relating to the approval of Plant aggrieved parties. The packaging or Protection Products of 28 November labelling of products which have been 1980). approved must clearly state the

6. By judgment of 29 October 1980, 8. Upon hearing the report of the registered at the Court on 10 December Judge-Rapporteur and the views of the 1980, the Gerechtshof [Regional Court Advocate General, the Court decided to of Appeal], The Hague, referred the open the oral procedure and to invite the following question to the Court: Commission to reply in writing to certain questions before the hearing. "Is the scheme of the Netherlands Law of 1962 relating to plant protection products compatible with Article 30 of the EEC Treaty in so far as that Law prohibits the marketing in the II — Written observations sub- Netherlands of a product originating in mitted to the Court pur- another Member State in which that suant to Article 20 of the product has been lawfully marketed and Protocol on the Statute of in which it meets the legislative the Court of Justice of the requirements which protect the same EEC overriding requirements of public health as the Netherlands Law?" 1. Observations of the appellant in the 7. In accordance with Article 20 of the main proceedings Protocol in the Statute of the Court of Justice of the EEC, written observations were submitted on 19 February 1981 by The appellant in the main proceedings the Commission of the European states that the system of the Netherlands Communities, represented by its Legal Law relating to plant protection products Adviser, Rolf Wägenbaur, acting as constitutes, in respect of all those Agent, assisted by Thomas Van Rijn, a products intended to be used on the member of its Legal Department; on 6 Netherlands market, an identical March 1981 by the appellant in the main obstacle to their approval. The Law proceedings, the company Frans-Neder- makes no reference to Community law landse Maatschappij voor Biologische and, for the purposes of its application, it Producten BV, represented by W. L. is of no consequence that a product orig- Nouwen; on 13 March 1981 by the inating in another Member State has Netherlands Government, represented by been lawfully marketed there and that it M. F. Italianer, Secretary-General of the also satisfies in that country legislation Ministry of Foreign Affairs; on 19 designed to guarantee the same March 1981 by the Danish Government, requirements of protection of public represented by Laurids Mikaelsen, Legal health as the Netherlands Law.

The appellant in the main proceedings "To the extent to which the Law of 1962 contends that the absence of harmon- relating to plant protection products ization within the Community, under duplicates, as regards its application and Article 100 of the Treaty, of the its objective, the French legislation to conditions governing the approval of which the product in question is subject, plant protection products does not justify the system established by the said Law is the existence of systems which are not binding under the law of the incompatible with Article 30 et seq.

broad. In its opinion those judgments protection products is subject to the only permit a derogation, by virtue of grant of prior approval, subject to sub- Article 36 of the EEC Treaty, from the stantive conditions which the prohibition laid down in Article 30 Commission considers to be comparable. where the subsisting obstacle to trade is It is generally required that the products strictly necessary to protect the interests should present no danger to the health enumerated in Article 36. of humans and animals or an unreasonable danger to the environment This restriction upon recourse to Article and that they should be effective (with 36 of the EEC Treaty also applies where the exception of Luxembourg and the the matter is not governed by a directive United Kingdom as regards the latter based on Article 100 of the Treaty. point). The administrative provisions for the implementation of national laws Since the product satisfies French vary, according to the Commission, to a legislation which protects the same large extent in their scope.

But what is different the main proceedings argues that that is the application of those provisions question must be decided by the court of which varies according to agricultural or the Member State in which the product ecological conditions and the scientific is marketed again and where national evaluation of the information supplied. legislation imposes restrictions on the marketing of the product. So far as Community law is concerned, Therefore, the defendant company the Commission goes on to refer to its proposes that the following reply should proposal for a Council directive be given to the preliminary question: concerning the placing of EEC-accepted

The Commission proposes in its obser- The Commission maintains that its vations with regard to the meaning of viewpoint remains valid even in the light the preliminary question that the of the judgment of 16 December 1980 in question should be reformulated so as to Case 27/80 Fietje [1980] ECR 3839, place the problem of the interpretation of particularly since in the field of Article 30 of the EEC Treaty in the consumer information, which was at context of the facts of the case. issue in that case, it is possible to be more flexible than in questions of public The Commission considers moreover health. Not only the public, but also the that the problem falls to be examined in State which is responsible for ensuring the context of the implications of the the health of its citizens, must be certain decision of the Court in Case 120/78 that a plant protection product does not referred to above and of subsequent pose any threat to health. The decisions. The Commission states that, Commission's view is that there is according to well-etablished case-law, in undoubtedly a presumption to that effect the absence of common rules governing if the product is a product approved in the production and marketing of another Member State following a pesticides, it is for the Member States to procedure and as a result of examin- regulate within their respective territories ations which are probably, but may not all matters concerning the production always be, equivalent. But the and marketing of those products, even if Commission points out that a that amounts to a measure having an presumption does not amount to a effect equivalent to a quantitative certainty. Therefore the Commission restriction on imports within the meaning goes on to state that as long as the of Article 30 of the Treaty. The interpret- question of the recognition of approvals ation of the Court, in Cases 120/78 and (granted according to mutually agreed 788/79 mentioned above, according to criteria) has not been resolved at which products lawfully produced and Community level, there can be no marketed in another Member State must question of inferring that recognition be capable of being imported and from the application of Article 30. marketed freely in the other States is limited to Article 30 and thus leaves open, in the Commission's view, the possibility that national restrictions may If however there should be an inclination in exceptional cases be justified by one to make the answer depend upon or more of the considerations mentioned whether or not there are equivalent in Article 36 of the Treaty. conditions for the approval of plant protection products, the Commission points out that it must be borne in mind Moreover, the Commission acknow- that "it is for the national court to make ledges that the prohibition of the impor- the findings of fact" in that respect "in tation and marketing of plant protection order to establish whether or not there is products without prior approval by the such equivalence" ( j u d g m e n t in Case importing Member State is justified by 27/80 mentioned above, paragraph 2 of the absence of Community rules obliging the decision). The Commission states

that if it is not thought sufficient to concerned with the placing on the verify the provisions laid down by laws market and the use of plant protection and regulations but that it is also products. The resulting obstacles to necessary to take into account examin- intra-Community trade are, in the view ations and analyses actually carried out of the Netherlands Government, in respect of each product, the national necessary by reason of the overriding court might easily find that task beyond requirements relating inter alia to the it, in view of the complexity of the protection of health and life of humans matter. and animals, the preservation of plant life, or the protection of the

This cannot be guaranteed by the absence of the approval required in the original approval alone. the interests of public health, the marketing of a product originating in The Netherlands Government adds that another Member State do not come the fact that a proposal for a Council within the prohibition of measures directive concerning the placing of EEC- having an effect equivalent to accepted plant protection products on quantitative restrictions even if that the market (Official Journal 1976, C product is lawfully marketed in the 212, p. 3), which was submitted by the Member State of origin and has there Commission to the Council on 4 August obtained the required approval." 1976, has not yet been adopted, is an indication that the Member States consider that the conditions governing

The Netherlands matter have been adopted Member States Government also considers it worthwhile are free, as regards their own territory, to emphasize that any restrictions on use to adopt rules governing all matters which may have been imposed in the

Member State which granted the original Denkavit [1979] ECR 3369 and its approval have no legal status in any judgment of 20 May 1976 in Case other Member State. 104/76 Centrafarm [1976] ECR The Netherlands Government finds that 613.); there is an analogy between the national (ii) obstacles may be tolerated to the systems of approval and registration for extent to which the national plant protection products and those provisions are indispensable from the governing medicinal preparations. In the point of view of the protection of case of medicinal preparations a system public health, the fairness of of approval and registration is generally commercial transactions and considered to be acceptable and just. The consumer protection, as is indicated Netherlands Government poses the by the judgments of the Court of 20 question whether such a system is not February 1979 in Case 120/78 Rewe even more necessary in the case of plant (mentioned above), of 26 June 1980 protection products and observes that in in Case 788/79 Gilli (mentioned fact all Member States have a national above), and of 19 February 1981 in

It is thus applied in a way which does not give rise possible, according to the Danish to discrimination and does not Government, for national laws to pursue, unnecessarily impede trade between in the general interest, certain ends Member States. which may justify exceptions to the The Netherlands Government therefore general rules of the Treaty concerning proposes that the Netherlands legislation the free movement of goods. should be declared to be compatible with Article 30 et seq. of the EEC Treaty. The Danish Government considers that Member States must be free to lay down legislative provisions which are essential

JUDGMENT OF 17. 12. 1981 — CASE 272/80

5. Observations of the Government of the the market of foreign products or that Italian Republic they may be equated with a restriction on imports within the meaning of Article The Italian Government considers that 30 of the Treaty, particularly since they the problems raised by this case concern do not discriminate between national and the application of Article 36 of the foreign products. Treaty. It maintains that Article 36 confers upon the Member States a power If, on the other hand, the imported in regard to the protection of the product were exempted from the interests mentioned in that article, even if obligations imposed by the national that involves having recourse to means public health legislation which continues which constitute a hindrance to intra- to apply to national products, the Italian Community trade, provided that such Government's view is that the opposite means are necessary for the purposes of effect would be achieved, namely that of

Community. If that were in fact the case public health, even if that the other States would be deprived of the prohibition affects an imported power which is conferred upon them by product approved under the public Article 36 and would be required to align health legislation of the country of their public health legislation with the origin; legislation of the State which had adopted the most liberal provisions on (b) The existence of a national rule of this point. law laying down, for a series of

The United Kingdom considers, 6. Observations of the United Kingdom therefore, that, in view of those problems and the absence of harmonization in this field, the full exercise of the Member The arguments of the United Kingdom States' powers remains unaffected, as is are in similar vein to those of the stated in the Opinion of Mr Advocate Netherlands, Danish and Italian General Mayras in Case 244/78 Union Governments. It agrees that the problem Laitière Normande [1979] ECR 2663. raised by this case is the proper interpret- ation of Article 36 of the Treaty and the The United Kingdom concludes by scope of the powers reserved by the stating that it would be particularly Treaty to the Member States to protect concerned at the possibility of seeing the health of their citizens. Member States exposed to serious disease hazards if the interpretation, The United Kingdom observes that sought by the appellant in the main Article 36 enables a Member State to proceedings, of what constitutes restrict imports to protect public health permissible prohibitions or restrictions on within its frontiers and to restrict exports imports in this sphere were accepted. to protect public health elsewhere in the Community. III — O r a l p r o c e d u r e According to the United Kingdom the criteria justifying the restrictive measures should be: At the sitting on 1 July 1981 oral argument was presented by the following: A. Bos, acting as Agent, with 1. whether they are imposed for the Mr Van der Kolk, appearing as expert, protection of public health; and for the Netherlands Government; L. Mikaelsen, acting as Agent for the 2. whether they are compatible with Danish Government; and R. Wägenbaur, Article 36 and fall within the limits set a member of the Legal Department of by the decisions of the Court. the Commission of the European Communities, acting as Agent, assisted by T. Van Rijn, with M. Hudson, The United Kingdom states, moreover, appearing as expert, for the Commission that parallel or similar requirements in of the European Communities. any two Member States may not of themselves provide the same degree of The Advocate General delivered her protection for public health in both opinion at the sitting on 14 October States. 1981.

FRANS-NEDERLANDSE MAATSCHAPPIJ VOOR BIOLOGISCHE PRODUCTEN

5 The company concerned has contended that the system of approval in question is incompatible with the provisions of Community law prohibiting quantitative restrictions on imports and measures having equivalent effect, and that therefore a prosecution brought under that system cannot be well founded.

6 To enable it to decide this issue, the Gerechtshof has referred the following question to the Court:

"Is the scheme of the Netherlands Law of 1962 relating to plant protection products compatible with Article 30 of the EEC Treaty in so far as that Law prohibits the marketing in the Netherlands of a product originating in another Member State in which that product has been lawfully marketed and in which it meets the legislative requirements which protect the same overriding requirements of public health as the Netherlands Law?"

7 The Commission maintains that so long as no recognition of approvals in the field of plant protection products has been established at Community level, Member States are free to prohibit, in the interests of public health, the importation and marketing of such products originating in another Member State in which they have been lawfully marketed.

8 The Danish, Italian and Netherlands Governments and the United Kingdom emphasize the dangers which those products are capable of causing to health and the environment in general and draw attention to the differences in controls which result in particular from the diversity of climatic conditions. Without denying that such national rules may constitute an obstacle to trade between Member States, they consider that rules of that kind are lawful under the exception provided for by Article 36 of the EEC Treaty in the case of the overriding considerations of the protection of public health.

12 It should be noted that, at the time of the alleged offences, there were no common or harmonized rules relating to the production or marketing of plant protection products. In the absence of harmonization, it was therefore for the Member States to decide what degree of protection of the health and life of humans they intended to assure and in particular how strict the checks to be carried out were to be (judgment of the Court of 20 May 1976 in Case 104/75 De Peijper [1976] ECR 613 at p. 635), having regard however to the fact that their freedom of action is itself restricted by the Treaty.

FRANS-NEDERLANDSE MAATSCHAPPIJ VOOR BIOLOGISCHE PRODUCTEN

1 3 In that respect, it is not disputed that the national rules in question are intended to protect public health and that they therefore come within the exception provided for by Article 36. The measures of control applied by the Netherlands authorities, in particular as regards the approval of the product, may not therefore be challenged in principle. However, that leaves open the question whether the detailed procedures governing approvals, as indicated by the national court, may possibly constitute a disguised restriction, within the meaning of the last sentence of Article 36, on trade between Member States, in view, on the one hand, of the dangerous nature of the product and, on the other hand, of the fact that it has been the subject of a procedure for approval in the Member State where it has been lawfully marketed.

1 4 Whilst a Member State is free to require a product of the type in question, which has already received approval in another Member State, to undergo a fresh procedure of examination and approval, the authorities of the Member States are nevertheless required to assist in bringing about a relaxation of the controls existing in intra-Community trade. It follows that they are not entitled unnecessarily to require technical or chemical analyses or laboratory tests where those analyses and tests have already been carried out in another Member State and their results are available to those authorities, or may at their request be placed at their disposal.

Costs

18 The costs incurred by the Governments of Denmark, Italy and the Netherlands, by the United Kingdom and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As the proceedings are, so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the question referred to it by the Gerechtshof, The Hague, by judgment of 29 October 1980, registered at the Court on 10 December 1980, hereby rules :

It follows from Article 30 in conjunction with Article 36 of the Treaty that a Member State is not prohibited from requiring plant protection products to be subject to prior approval, even if those products have already been approved in another Member State. The authorities of the importing State are however not entitled unnecessarily to require

Mr President, a fungicide called "Fumicot Fumispore" Members of the Court, to a company in Groningen which used it to disinfect its sugar silo. This product is intended to eliminate any trace of This reference for a preliminary ruling mouldiness remaining in the air in which concerns once again the interpret- premises used for the production and ation of Articles 30 and 36 of the Treaty storage of foodstuffs and is used mainly arises out of criminal proceedings in dairies, in premises used for making brought in the Netherlands against cheese and in bakeries. Frans-Nederlandse Maatschappij voor Biologische Producten BV, an importer The disinfectant has been approved in of French plant protection products. France, where it is manufactured, in accordance with the rules in force (Law I — (a) That company is being pros- No 525 of 2 November 1943, as ecuted for having sold in February 1978 amended, relating to the organization 1 — Translated from the French.