C-125/88

5. He then states that it appears that the directive must be interpreted as meaning that plant-protection products containing 2. He was found guilty at first instance by active substances not listed in the annex to it judgment of 25 February 1987 of infringing may be freely marketed and used, without the Bestrijdingsmiddelenwet 1962 (Law on recourse to any national authorization plant-protection products, hereinafter procedure. referred to as 'the 1962 Law'), on the ground that he had sold and stored the product in question without first complying with the legislative requirements concerning the approval of plant-protection products. 6. In the present case, since the substances He brought an appeal before the of which 'Improsol' is composed — Gerechtshof (Regional Court of Appeal), ammonium bifluoride and potassium The Hague, which has requested this Court bifluoride — are not mentioned in the annex to give a preliminary ruling. to the directive, national provisions enacted by a Member State with a view to implementing the directive, containing a prohibition of the marketing and use of a product such as 'Improsol', cannot, in his 3. Mr Nijman states in his observations to view, be applied. this Court that his main defence before the national court is that 'Improsol' is not a plant-protection product within the meaning of the 1962 Law.

7. However, the Gerechtshof considers that if it were concluded that the prohibition of sale, possession or use of a product not 4. The Gerechtshof considers that, in approved by the national law in question deciding the merits of that argument, were incompatible with Community law the account must be taken of Council Directive consequences would be 'extreme'. It has

9. Having regard to the terms of the dispute before the national court and in order to give an interpretation which will help to resolve it, it will first be necessary to 13. Consequently, having regard to the describe the state of Community law objectives of the directive, no 'divergence of regarding plant-protection products determinant concepts' as between the containing substances not listed in the annex directive and a national law has any effect, to the directive. Has the directive entirely under Community law, regarding products harmonized the area of law in question? containing substances not listed in the annex to the directive. It seems to me that, in view of the national court's finding that 10. Like the Commission and all the 'Improsol' contains substances not listed in governments which have submitted obser­ the annex, the foregoing analysis will vations, I am of the opinion that the provide a helpful answer to the national purpose of the directive is to achieve limited court's first question. harmonization, by prohibiting products containing certain substances. The Member States are simply called on to ensure that 'plant-protection products containing one or more of the active substances listed in the 14. My observations in that regard should annex may be neither placed on the market facilitate an answer to the second question nor used'. The directive in so far as it relates to the compatibility of a law such as the national law in question in this case with the directive. Since it is clear that the directive has not brought about 'merely prohibits the disposal of particularly any harmonization regarding products dangerous pesticides'. 2 containing substances not listed in the 2 — Opinion of Mr Advocate General Mancini in Case 54/85 Mirepoix [1986] (judgment of 13 March 1986) ECR 1067, 3 — See the proposal for a Council directive in OJ C 212, at p. 1069. 9.9.1976, p. 3.

17. It is also worth remembering — since 19. That reference no doubt relates to the these aspects are not discussed in the fact that 'Improsol' is imported from present case — the indications given in Sweden. As the Commission points out, Mirepoix to the effect that Article 20 of the free-trade agreement with 8 Sweden is the same as Article 36 of the Treaty. Therefore, if it is assumed that a private individual can rely on a particular 'the authorities of the importing Member provision of the agreement as against the State are obliged to review the prohibition national measure at issue, it would seem on the use of a pesticide or a prescribed that in any event Article 20 cannot be inter­ maximum level if it appears to them that the preted in a manner which restricts the reasons which led to the adoption of such prerogatives of States regarding public measures have changed, for example, as a health to a greater extent than the EEC result of the discovery of a new use for a Treaty itself does.

4 — Judgment of 11 July 1974 in Case 8/74 [1974] ECR 837 6 — Ibid., paragraph 16 5 — Case 54/85, cited above, paragraph 13, see also judgment 7 — Ibid , paragraph 17 of 19 September 1984 in Case 94/83 Heijn [1984] ECR 8 — Agreement between the European Economic Community 3263 and of 17 December 1981 in Case 272/80 Frani and Sweden, OJ, English Special Edition 1972 (31 Nederlandse [1981]ECR 3227, paragraph 12 December), p 99

OPINION OF MR DARMON —CASE 125/88

20. Consequently, I propose that the Court rule as follows:

(i) having regard to the scope of Directive 79/117/EEC, Community law does not require the concept of plant-protection products defined in Article 2 thereof to be used with respect to products not containing substances listed in the annex to the directive;