C-54/94

1 — Annex to the Official Gazette of the Italian Republic {GURI) No 202 of 30 August 1990. * Original language: German. 2 — OJ 1976 L 340, p. 26.

I-393

OPINION OF MR LENZ —JOINED CASES C-54/94 AND C-74/94

and on certain products of plant origin, a directive into national law, cannot form the 3 basis for an adverse finding by a court of including fruit and vegetables. In order to transpose this directive the Italian Health law. Minister on 23 December 1992 issued an 4 appropriate decree.

3 — OJ 1990 L 350, p . 71. 5 — The questions referred are more or less identical in both pro­ 4 _ Official Gazette of the Italian Republic No 305 of ceedings. The slightly different formulation of the first ques­ 30 December 1992, p . 46. tion in Case C-74/94 is identified by brackets.

I-394

CACCHIARELLI AND STANGHELLINI

mum levels for pesticide residues in and in potatoes also apply to chips. Whether that on certain products of plant origin, is actually the fact does not need to be dis­ including fruit and vegetables, to be cussed in greater detail here in view of the understood as applying also to the considerations set out below. herbicidefs] at issue in these proceedings?

Relationship between Directive 76/895 and (2) Has the Government of the Italian Directive 90/642 Republic, by means of the measure imple­ menting the aforesaid directive, namely the decree of the Minister for Health of 23 December 1992, and having regard to the Italian Government's official interpre­ tation, correctly and precisely transposed the directive into domestic law so far as 10. In order to reply to the questions sub­ concerns the procedure for sampling and mitted for a preliminary ruling it is first nec­ analysing potatoes in order to check essary to clarify the relationship between the whether the maximum levels for residues two abovementioned Community directives of active substances of plant-protection in this area. products have been observed?

12. Directive 76/895 prescribed maximum levels of residues of certain pesticides, but permitted (Article 3(2)) the Member States to authorize the placing into circulation in their territory of products even when the amount of residues were in excess of those maximum levels. Those provisions, as may easily be seen, were not conducive to the free move­ 14. Amongst the products to which Direc­ ment of goods in the internal market. tive 90/642 applies are potatoes which are listed in the annex to that directive. How­ ever, Directive 90/642 originally contained no list of pesticides to which the directive was to be applied. That list — and the corre­ sponding maximum levels — were to be determined by the Council in accordance with the second subparagraph of Article 1(1). Such a list was added to the directive only by Council Directive 93/58/EEC of 29 June 12 13. Therefore, in 1990, the Community 1993. Since Directive 90/642 is applicable legislature adopted Directive 90/642 which only to those pesticides which are listed in pursued the objective of ensuring that the annex thereto it could only become mandatory maximum levels should be fixed effective once that list had been drawn up 8 and inserted into the directive. In other for certain active substances. That directive is intended progressively to replace Directive words that means that the directive essen­ 9 tially remained a dead letter for at least three 76/895. Like it, Directive 90/642 is applicable only to the products and years. What may be thought of such a legis­ pesticides listed in the annex thereto. The lative approach does not need to be men­ transition from Directive 76/895 to tioned in detail here. What is significant in Directive 90/642 is to be effected — as the the present case is that the list drawn up in Commission correctly mentioned in its 1993 contains neither Chlorpropham nor observations — in progressive stages. Propham. As the Commission has correctly Pesticides cannot be included in the list in

pointed out, Directive 90/642 is therefore 16. Whether Directive 90/642 is applicable also not applicable in the present case. only to pesticides or also to herbicides can­ not be ascertained from the wording. The term 'pesticides' is not defined. However, the recitals in the preamble to the directive indi­ cate that the directive is to apply to plant- protection products, provided of course that the active substance in question is listed in the annex to the directive. It is pointed out in those recitals that the crop yield is continu­ ally affected by 'harmful organisms and The first question weeds' and that it is therefore necessary to protect plants and plant products against I4 those dangers. However, mention is made there only of protection against 'harmful organisms'. In this respect Directive 76/895 was significantly clearer, inasmuch as it mentioned the threat to the crop from 'harmful organisms of either animal or vege­ table origin' and the need for protection 15 against 'these organisms'. As I have 15. That finding already supplies the answer already mentioned, Chlorpropham was also to the first question. Since the substances listed in the annex to that directive. This which form the subject-matter of the pro­ shows that this directive could also apply to ceedings before the Pretura Circondariale — herbicides. Since Directive 90/642 is intended namely Chlorpropham and Propham — are to replace Directive 76/895 it could be not listed in the annex to Directive 90/642, argued that both directives are to apply to that directive is not applicable to them. herbicides. However, it is apparent from the order for reference that the national court would also like a reply to the question of principle whether herbicides may at all fall within the scope of Directive 90/642. These doubts stem from the wording of the directive which speaks, as does Directive 76/895, of pesticides. As a glance at other provisions of Community law in this area will show, the legislature as a general rule distinguishes between substances intended to combat 17. Furthermore, the Commission is right to harmful organisms (pesticides) and those point to the objective of Directive which destroy undesirable plant growth 90/642 which is to encourage the free move­ 13 (herbicides). The generic term in use is ment of goods and at the same time to elim­ therefore that of plant-protection products. inate risks to human or animal health and to

19. In its second question the national court would like to ascertain which method is to be applied in determining the levels of resi­ dues of plant-protection products in pota­ toes. Basically, the question is whether the Chlorpropham and Propham content is to be measured on peeled or unpeeled potatoes. Since the examination of the first question has already shown that Directive 90/642 as presently drawn is not applicable to Chlor­ propham and Propham it seems to me 18. The conclusion that Directive 90/642 can unnecessary to enter into a discussion of the also apply to pesticides also finds support in second question. the very provisions of Community law. In Council Directive 91/414/EEC of 15 July 1991 on the placing into circulation of plant- 17 protection products Article 4(l)(f) pro­ vides that the Member States are to ensure that a plant-protection product (pesticides and herbicides) is authorized only after they have fixed provisional maximum levels for residues and have communicated them to the Commission. These maximum values are to 20. For the sake of completeness it should remain in force until 'corresponding maxi­ however be pointed out that for the carrying mum values are fixed in accordance with out of controls the second subparagraph of the procedure laid down in the second sub­ Article 6(1) of Directive 90/642 refers to the procedures mentioned in Commission paragraph of Article 1(1) of Directive 19 18 Directive 79/700/EEC. The Commission 90/642/EEC'. This provision proves that did, however, rightly point out that under the Community legislature is of the opinion the second subparagraph of Article 6(1) of that under Directive 90/642 maximum levels Directive 90/642 the existence of Commu­ may be fixed for herbicide residues as well. nity methods of analysis does not preclude Member States from using 'other tested and scientifically valid methods' provided that 16 — Cf. the sixth and eighth recitals in the preamble to Directive this does not hinder the free movement of 90/642. goods. 17 _ OJ 1991 L 230, p. 1. 18 — See also the explanatory notes on the Community concept of maximum levels of residues in the footnote to point 2.4.2.2. in Part C, 2 of Annex VI to Directive 91/414, added by Council Directive 94/43/EEC of 27 July 1994 (OJ 1994 L 227, p. 31). 19 — OJ 1979 L 207, p. 26.