C-94/83

JUDGMENT OF THE COURT 19 S E P T E M B E R 1984 1

Criminal proceedings against Albert Heijn BV (reference for a preliminary ruling from the Arrondissementsrechtbank, Haarlem)

(Prohibition of pesticides for apples — Measures having equivalent effect)

Case 94/83

Free movement of goods — Derogations — Protection of public health — Rules governing the presence of pesticides not covered by Community provisions — Powers of the Member States — Prohibition on the importation of apples — Vinchlozoline content in excess of the prescribed limits (EEC Treaty, Arts 30 and 36)

In so far as the relevant Community Articles 30 and 36 of the EEC Treaty do rules do not cover certain pesticides, not therefore prevent a Member State Member States may regulate the from prohibiting the importation of presence of residues of those pesticides apples from another Member State on on foodstuffs in a way which may vary account of the presence in or on those from one country to another according apples of a quantity of vinchlozoline to the climatic conditions, the normal greater than that authorized by the diet of the population and their state of legislation of the first Member State, health. In that context, they may permit even though the maximum permitted different levels of the same pesticide in vinchlozoline content laid down in that respect of different foodstuffs. Member State differs from that laid down for other kinds of food and drink.

THE COURT

rsiJ^i ¿SM -«uV» U. Everling and C. Kakouns, Judges, Advocate General: C. O. Lenz Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

"Granny Smith" apples, a variety not The facts of the case, the course of the produced in the Netherlands. procedure and the written observations may be summarized as follows. On 16 January 1981, the Keuringsdienst van Waren [product control department] carried out a check at the Heijn distri- bution centre, following which a sample I — Facts and w r i t t e n procedure of the apples in question was taken and the stock available was temporarily 1 Albert Heijn BV [hereinafter referred to as "Heijn"] is the owner of a seized because of the alleged presence chain of supermarkets in the Nether- of vinchlozoline on the apples. On lands, whose distribution centre is in 30 Tanuary 1981, the consignment of Zaandam. During the period from apples seized on 16 January 1981 was September 1980 to March 1981, Heijn released for sale. purchased in Italy from Mazzoni SpA, The analysis carried out by the which produces and markets both fruit Keuringsdienst van Waren showed that and vegetables, a consignment of

3. Having ascertained that the case (b) In order to answer Question raised a question of interpretation of 3 (a) must it be established that Community law, the Economische the prohibition specifically ap- Politierechter stayed the proceedings and plying to the use of a particular submitted the following questions to the pesticide on apples is justified as Court of Justice of the European a necessary means of protecting Communities for a preliminary ruling public health or may that under Article 177 of the EEC Treaty : prohibition also be regarded as justified if it is adopted pursuant to a general policy which is " 1 . Does a prohibition on the marketing designed to reduce as far as in one Member State of apples possible the presence of residues imported from another Member of pesticides in food and drink State on the ground that those and under which tolerance limits apples contain, contrary to the are fixed for residues only where applicable national legislative pro- a particular pesticide is required visions under which it is prohibited for a particular product and to market food and drink containing from the point of view of public residues of pesticides unless the health — taking into account quantity of those residues is below a national dietary habits — there maximum limit fixed per product are no serious objections to and per pesticide, residues of a adopting such limits? pesticide not mentioned in Annex II to Council Directive No 76/ 895/EEC of 23 November 1976 4. (a) Is it relevant to Question 3 (a) constitute a measure having an effect and (b) that the national

A pesticide is approved only if it satisfies 3. Under the Residubeschikking no the requirements regarding composition, residue is allowed (inter alia on fruit and packaging and so forth laid down by the vegetables) of a pesticide not included in Minister, if analyses have shown that it is Column I of Annex I thereto, whilst on suitable for the use for which it is the other hand a maximum quantity of intended and if it has no secondary residues is allowed in accordance with the harmful effects and, finally, if the pro- rules laid down in Column II for the portion of the active substance does not pesticides mentioned in Column I, subject exceed what is necessary to achieve the to the provisions applicable to products desired aim. specifically named in Column III.

HEIJN

As regards vinchlozoline, the level of (c) By means of measures adopted to residues usually allowed under Column ensure that the Netherlands complies II of the Annex is zero: however the with its international obligations following exceptions are laid down in (Community directives and Codex Column III: Alimentarius proposals).

Strawberries ĮQ Chinese gooseberries 10 HI — The applicable Community Other fruit Q legislation Endives c Lettuce c Chicory 2 The Community rules relating to the fixing of maximum levels for pesticide Other vegetables 1 residues in and on fruit and vegetables Milk and milk products 0.05 are contained in Council Directive N o Meat and meat products 0.05 76/895/EEC of 23 November 1976 (Official Journal, L 340 of 9. 12. 1976, p. 26), which was last amended, as For the category "other fruit", which regards Annex II thereof, by Council includes apples, the tolerance of Directive N o 81/36/EEC of 9 February vinchlozoline residues is zero. 1981 (Official Journal, L 46 of 19 2 1981, p. 33).

JUDGMENT OF 19. 9. 1984 — CASE 94/83

Advocate General, the Court decided to thereof does not exceed the maximum open the oral procedure without any levels laid down in the directive. The preparatory inquiry. Member States may on the other hand, it appropriate, authorize higher levels.

HEIJN

In that connection, the Italian Govern- produced in accordance with the ment states that the use of vinchlozoline provisions of the exporting country or in for apples is not authorized in Italy. accordance with procedures traditional Consequently, it considers that the in that country must in principle be questions submitted by the Netherlands allowed into the territory of every other court are devoid of purpose since they Member State. are merely theoretical. The Italian Government has submitted no further observations. However, it adds that it cannot be admitted a contrario that a Member State The Commission states that this question may as a matter of course stop at its is manifestly inspired by the Cassis de frontier a product not produced in Dijon judgment (judgment of 20. 2. 1979 accordance with the provisions of the in Case 120/78 Rewe [1979] ECR 649) State of origin. In those circumstances, it in which the Court held that certain rules is appropriate also to consider the applied by a Member State were to be interest in ensuring the free movement of regarded as constituting a measure goods and to assess whether the interest haying an effect equivalent to quanti- upon which the State of destination relies tative restrictions on imports in the case to justify the existence of the barrier to of the importation of a product lawfully trade is more important than ensuring produced and marketed in another the free movement of goods. Member State.

JUDGMENT OF 19. 9. 1984 — CASE 94/83

approved in another Member State. It Member States may be justified by the appears that the Netherlands Govern- concern to protect public health. ment proposes that that decision should be applied to the present case. Then, with a view to replying specifically to the question whether the contested measures are in fact justified, the Commission considers that it must be The third question ascertained on the one hand whether vinchlozoline as such is to be regarded as a substance which may have harmful The third question, which is divided into effects upon public health and, on the two subquestions, is intended essentially other, whether it is justified for the to determine (Question 3 (a)) whether Netherlands to have fixed at zero the the national rules in question may be maximum permissible level of vin- justified in relation to Article 36 of the chlozoline on or in apples in view of the Treaty and (Question 3 (b)) whether it is fact that higher levels of residues of the necessary in those circumstances for the same substance have been authorized for fixing of the permissible residue level to various other fruit and vegetables. be justified in each case on the grounds set out in Article 36 of the Treaty or whether justification therefor may also The latter aspect falls within the fourth be found in the fact that the level is fixed question submitted by the national court, within the framework of a general policy but the Commission deals with the third intended to prevent as far as possible the and fourth questions together. presence of residues in foodstuffs and beverages and where there are no major The Commission considers that the objections from the point of view of concern to protect public health justifies public health. the taking of great care with regard to authorizing the use of pesticides, and in particular vinchlozoline, and likewise By way of preliminary, the Commission with regard to the presence of residues makes two observations: of those pesticides on fruit and veg- etables.

The Commission emphasizes that national authorities must take the Those reasons are, according to the initiative to obtain the necessary infor- Commission, the dangers for public mation on the advance of scientific health to which pesticides give rise and knowledge and the use of pesticides the need to combat parasites and plant without leaving it to the individuals diseases. The permissible residue level concerned to do so. In other words, if also depends on the eating habits of the Heijn had submitted an application to population. The Commission also sub- the Netherlands authorities, they would mits that there is no reason to fix a level not have been entitled to refuse to in excess of the lowest limit of sensitivity, consider the application or to review the thereby accepting a certain risk for situation, or to ask the company for the public health, if the protection of plants necessary information. In such a case the does not so require, for example because Netherlands authorities would have had a particular pesticide is not intended to to adopt an active approach, for example be used on a particular variety of fruit or by contacting their Italian counterparts. vegetables.

However no such application seems to have been submitted in this case and The Commission concludes that there therefore in the Commisssion's view the may be good reasons for fixing different Netherlands authorities cannot be ex- maximum permissible levels for different pected to adjust the maximum permiss- varieties of fruit and vegetables, as the ible level of vinchlozoline on or in Netherlands has done for vinchlozoline. apples. There may even be good reasons for fixing the maximum permissible level as zero if for example it is not known whether vinchlozoline is appropriate for To summarize, the Commission proposes the varieties in question. the following answers to the questions submitted:

The authorities in the importing Member Heijn claims that whilst the actual State are nevertheless obliged to review average consumption of fruit and the maximum prescribed level if it seems vegetables amounts in total to some 400 to them that the reasons on the basis of grams per day in the Netherlands it is which it was fixed have changed, for clear that, in view of the tolerance example as a result of the discovery of a adopted for other fruit and vegetables, new use for a particular pesticide." the consumption of Italian apples containing 1.0 ppm of vinchlozoline could never constitute a danger to Heijn claims in the first place that the health. If the tolerance for strawberries is toxicity of the vinchlozoline residues taken as an example (10 ppm of found on the apples cannot constitute a vinchlozoline), it follows that even 400 ground for preventing their importation. grams of strawberries per day containing that quantity of vinchlozoline residue The toxicity of vinchlozoline is lower could not be damaging to health. than that of Captan, for example, a Moreover it should not be forgotten that pesticide which is also used for apples. in most cases a consumer peels the apples According to Directive N o 76/895, the he eats. tolerance for Captan is 15 ppm on apples, and that level is adopted in the Residubeschikking. According to Heijn, in view of the foregoing the national rules requiring an Moreover, the apples imported by Heijn importer to apply in those circumstances contained a maximum residue of 1.0 to the national authorities for an ppm, which is thus clearly lower than the amendment to the rules (in this case the level allowed in the case of Captan. Residubeschikking) are not justifiable, are exorbitant and involve dispro- portionate burdens. In the second place, Heijn maintains that the "expected consumption", which in the Netherlands constitutes a second As regards the application of Article 36 criterion for assessing the tolerance of a of the Treaty, Heijn maintains that that pesticide on food products normally provision does not provide a priori jus- consumed, is likewise not capable, in the tification for rules adopted by Member case of apples, of constituting a danger States which impede trade, in respect of to public health and therefore cannot which one of the grounds mentioned in constitute a ground such as to justify a the first sentence of Article 36 might be prohibition of importation. invoked. The decisions of the Court have laid down other criteria which must be The criterion for assessing the danger to satisfied for the purpose of justification public health which may be presented by under Article 36.

The possibility that national legislative provisions may be justified under Article Moreover, the Netherlands Government 36 of the EEC Treaty must be assessed maintains that effective protection of specifically in each instance. In the public health against the harmful present case, it should be specifically residues of pesticides is possible only by established that the prohibition appli- means of an approval system which cable to apples is rendered necessary by enables the competent authorities to imperative requirements of protection of assess to what extent residues of a the health of humans. pesticide are permissible on a given foodstuff. Consequently, such a system of approvals must necessarily be based on a prohibition to which exceptions The Netherlands rules, which require may be authorized subsequently. prior approval even though it is established that vinchlozoline is already known to the national authorities and The Netherlands Government also draws that the residues thereof found on the a comparison between the system of apples in question were particularly approvals permitted by the Community sparse, are disproportionate and there- directives concerning colorants and fore constitute a measure disproportionate preservatives which may be used in to the objective pursued and a concealed foodstuffs intended for human obstacle to trade between Member consumption. Those directives were States. The latter conclusion is confirmed interpreted by the Court in its judgment by the judgment of the Court of 17 of 14 July 1983 (Case 174/82 Sandoz

The Government of the Federal Republic of Germany maintains that for so long as In the opinion of the Netherlands the legal provisions relating to maximum Government, the central issue is not levels of pesticide residues in and on whether vinchlozoline must be included foodstuffs are not harmonized, it is for in the limitative list after examination by the Member States to take the measures the competent authorities but rather it is necessary for protection of the health of a question of ensuring that those auth- their nationals. orities are able to carry out an exam- ination of that kind at the request of a producer or importer. An examination of that kind is also required for the marketing and utilization of pesticides Since the maximum levels authorized in and the Court recognized in Case the various Member States depend on 272/80 (cited above) that a Member the habits of the consumer and the actual State is not precluded from requiring amounts to which the consumer is prior approval for disinfectants, even if exposed in his own country, divergences such products have already been in national rules are often inevitable. In approved in another Member State. fact, in the opinion of that government, the difficulties associated with the fixing of maximum levels for residues in foodstuffs within the framework of harmonization of legislation do not Finally, the Netherlands Government is derive from a divergent toxological of the opinion that the system of assessment. Rather, irrespective of any approvals which it applies with regard to toxological assessment of the pesticide in pesticide residues present in foodstuffs is question, they arise for the following not unfair in its effects and does not give reasons :

the foodstuffs concerned therefore have Moreover, the Government of the a different content of pesticide residues; Federal Republic of Germany is of the opinion that the prohibition of residues the quantity of such foodstuffs which is of a given pesticide in apples does not consumed may vary from one Member require to be justified for reasons of State to another; public health in each individual case. What is important for an assessment the total quantity of the pesticide which from the health point of view is the total the consumer absorbs with the food may, quantity of the pesticide residues for those reasons, display very significant concerned which is absorbed by the differences as between the various consumer at the same time as his food, Member States. that is to say with all the foodstuffs consumed by him. Those differences, which exist even where there is complete agreement regarding the assessment of the pesticide The fourth question in question from the health point of view, may entail the consequence that a In the fourth question, the court making Member State is obliged to fix the the reference asks essentially whether the permissible level of residues for one or fact that vinchlozoline, although pro- more foodstuffs at a level lower than that hibited for apples, is authorized for other fixed in other Member States. That foodstuffs and beverages is significant lower level must make it possible to with regard to the reply to be given to ensure that the consumer in a particular the third question. country does not absorb more than the total quantity of pesticide residues which Since the Commission answered the two is permissible from the health point of questions at the same time, reference view when he consumes foodstuffs which should be made to its observations which are available in his country in the are summarized above in connection quantities customary there. That is why with the third question. the various rules regarding maximum levels adopted by the Member States do not, in the opinion of the Federal Heijn refers in its reply to the third German Government, constitute arbi- question and considers that the position trary measures. of the Netherlands authorities, whereby they cannot as a matter of course adopt the foreign levels regarding residues, This problem exists also with respect to takes no account of the circumstances of pesticides covered by Directive No this case. 76/895/EEC. For that reason the directive takes account of the different According to Heijn it is not sought that situations obtaining in the various a particular level for residues should be Member States. allowed as a matter of course, even though there is no obstacle thereto since For those reasons, the rules regarding the Italian legislation adopts a tolerance maximum levels adopted by the country of 1.5 ppm for fruit and vegetables and of origin for a given foodstuff cannot the Netherlands legislation allows a

Decision

1 By a j u d g m e n t of 25 April 1983, which was received at the C o u r t Registry o n 25 M a y 1983, the Economische Politierechter [magistrate dealing with commercial offences] at the Arrondissementsrechtbank [District C o u r t ] , H a a r l e m , referred t o the Court for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y four questions on the interpretation of Articles 30 and 36 of the E E C T r e a t y concerning the free m o v e m e n t of goods within the Community.

2 T h o s e questions w e r e raised in the context of criminal proceedings b r o u g h t against Albert Heijn BV, of Z a a n d a m , for having in stock for sale, o r at any rate for supply to others, a quantity of apples intended for h u m a n consumption which constituted a potential danger to health by virtue of the presence of 1.0 milligram of the pesticide k n o w n as vinchlozoline per kilogram of apples.

HEIJN

3 Article 16 of the Netherlands Law on Pesticides [Bestrijdingsmiddelenwet] 1962 provides that "foodstuffs or beverages containing a quantity of one or more pesticides . . . in excess of the level fixed by a public administrative regulation or by the provisions adopted for implementation thereof" are to be regarded as not being of the required quality to enable them to be marketed.

4 In particular, the Residubeschikking [Residues Order] 1965, adopted in implementation of the Residubesluit [Residues Decree] 1964, by virtue of the enabling power contained in the Law on Pesticides 1962, lays down the maximum permissible pesticide residues for foodstuffs and beverages.

JUDGMENT OF 19. 9. 1984 — CASE 94/83

quantitative restriction on imports which is prohibited under Article 30 of the EEC Treaty?

2. To what extent does the answer to the first question depend on the answer to the question whether the apples referred to therein were produced and marketed in the Member State from which they originated in accordance with the legislation applying there?

3. (a) If the first question must be answered in the affirmative can the national legislative provisions referred to therein be regarded as a necessary means of protecting public health as contemplated by Article 36 of the EEC Treaty?

(b) In order to answer Question 3 (a) must it be established that the prohibition specifically applying to the use of a particular pesticide on apples is justified as a necessary means of protecting public health or may that prohibition also be regarded as justified if it is adopted pursuant to a general policy which is designed to reduce asfar, as .- possible the presence of residues of pesticides in food and drink and under which tolerance limits are fixed for residues only where a particular pesticide is required for a particular product and from the point of view of public health — taking into account national dietary habits — there are no serious objections to adopting such limits?

4. (a) Is.it relevant to Question 3 (a) and (b) that the national legislation of the importing country does not permit residues of a particular pesticide on or in particular kinds of food and drink but fixes a maximum permissible residual quantity of the same pesticide for other kinds of food and drink?

i2 In the Commission's view, it is necessary to reconcile the requirements of fruit and vegetable growing with the need to protect human and animal health, whilst taking account of the progress of scientific knowledge regarding pesticides and of the dietary habits of the population. It is for the national court to consider, in the present case, the reasons for the prohibition of vinchlozoline on or in apples.

i3 It is not disputed that pesticides constitute a major risk to human and animal health and to the environment; this has moreover been recognized at Community level, in particular in the fifth recital in the preamble to the aforementioned Council Directive No 76/895, which states that "pesticides do not have only a favourable effect on plant production, since they are generally toxic substances or preparations with dangerous side effects".

JUDGMENT OF 19. 9. 1984 — CASE 94/83

i4 Since vinchlozoline is not covered by that directive, Member States are in principle authorized to make regulations regarding the maximum permissible level of residues of that pesticide, bearing in mind however that the scope of that authorization is limited by the Treaty, and in particular, by the last sentence of Article 36.

is When making such regulations, Member States must take account of the fact that pesticides are substances which are both necessary to agriculture and dangerous to human and animal health. The fact that the quantities absorbed by the consumer, in particular in the form of residues on foodstuffs, can neither be predicted nor controlled justifies strict measures intended to reduce the risks faced by the consumer.

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

On those grounds,

T H E COURT,

in answer to the questions referred to it by the Economische Politierechter at the Arrondissementsrechtbank, Haarlem, by a decision of 25 April 1983, hereby rules:

Articles 30 and 36 of the EEC Treaty do not prevent a Member State from prohibiting the importation of apples from another Member State on account of the presence in or on those apples of a quantity of vinchlozoline greater than that authorized by the legislation of the first Member State, even though the maximum permitted vinchlozoline content laid down in that Member State differs from that laid down for other kinds of food and drink.

Mackenzie Stuart Koopmans Bahlmann