C-137/96
ECLI:EU:C:1997:476
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COMMISSION v GERMANY
OPINION OF ADVOCATE GENERAL LA P E R G O L A delivered o n 9 O c t o b e r 1997 *
1. By the present action, the Commission for the purposes of transposing Article 10(1), asks the Court to declare that the Federal second indent. The Commission took cogni- Republic of Germany has fallen short of its zance of those points and adjusted the appli- obligations under the E C Treaty by not cation so as to exclude reference to that pro- adopting within the period prescribed the vision in the form of order sought, while measures necessary to ensure compliance otherwise maintaining its petitum with the provisions — save Article 10(1), unchanged. second indent — of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market ' (hereinafter 'the directive').
2. The directive was designed to further the approximation of the laws of the Member States concerning the authorization of trade Initially, non-compliance with Article 10(1), in plant protection products, since existing second indent, was also covered by the differences 'constitute barriers not only to Commission's application. However, the trade in plant protection products but also to German Government contended that the trade in plant products, and thereby direcdy deadline for the Member States to transpose affect the establishment and operation of the that provision into domestic law had not yet internal market'. 4 The directive, according expired at the time •when the Commission to Article 1 thereof, 'concerns the authoriza- initiated the pre-litigation procedure. Under tion, placing on the market, use and control Article 23(2) of the directive, that deadline within the Community of plant protection expired one year from the adoption of the products in commercial form and the placing 'uniform principles' required by Directive on the market and control within the Com- 94/43/EC, 2 that is to say, on 27 July 1995. munity of active substances intended for a Moreover, Directive 94/43 was annulled by use specified in Article 2(1)'. Article 4 lays judgment of the Court of 18 June 1996; 3 down the rules with which Member States accordingly, time had not yet started to run must comply in authorizing plant protection products. Article 10(1) lays down the rules derived from the principle of the mutual rec- * Original language: Italian. ognition of authorizations issued in Member 1 — OJ 1991 L 230, p. 1. 2 — Council Directive 94/43/EC of 27 July 1994 establishing Annex VI to Directive 91/414 on the placing of plant protec- tion products on the market (OJ 1994 L 227, p. 31). 3 — Case C-303/94 Parliament v Council [19%] ECR 1-2943. 4 — See the fifth recital in the preamble
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OPINION OF MR LA PERGOLA — CASE C-137/96
States: 'tests and analyses already carried For the reasons set out below, however, I out in connection with the authorization of cannot endorse the arguments put forward the product' must not be repeated 'to the by the German Government in its defence. extent that agricultural, plant health and First of all, I am not swayed by the argument environmental (including climatic) condi- that there is no need for a special implement- tions relevant to the use of the product are ing measure in this case since the directive's comparable in the regions concerned'. 5 Fur- provisions are essentially the same as those thermore, the Member States must, 'to the of the German legislation already in force. In extent that the uniform principles have been that regard, I would merely point out that adopted in accordance with Article 23, where Article 23(1), second subparagraph, of the the product contains only active substances directive provides that when Member States listed in Annex I, also authorize the placing adopt implementing measures, 'they shall of that product on the market in its territory, contain a reference to this directive or shall to the extent that agricultural, plant health be accompanied by such reference on the and environmental (including climatic) con- occasion of their official publication'. That ditions relevant to the use of the product are provision thus lays down a formal require- comparable in the regions concerned'. 6 ment that implementation is to be effected Lastly, Article 23 of the directive provides by means of a special implementing measure. that 'Member States shall bring into force the In any case, the German Government has laws, regulations and administrative provi- failed to provide any details of the content of sions necessary to comply with this directive the national legislation currently in force within two years following notification showing that the directive's transposition is thereof'. 7 superfluous.
N o r should greater weight be attributed to 3. The German Government points out that the contention in the defence that the direc- a draft amendment to the Pflanzens- tive raises a number of difficulties concerning chutzgesetz (Law on Plant Health Protec- interpretation, which make its immediate tion), designed to bring national legislation transposition into national law more prob- into line with the directive, is in the process lematic; so much so that the Commission is of being adopted. In substantive terms, it preparing a guide to interpretation (no fur- denies failing to fulfil its obligations. ther details are given) designed to overcome those difficulties. Suffice it to note that the Commission has firmly denied this. More- over, I do not understand how such difficul- 5 — See Article 10(1), first indent 6 — See Article 10(1X second indent. ties could amount to extenuating circum- 7 — However, as mentioned above, Article 23(2) makes special stances excusing failure to fulfil the arrangements for the adoption of all the measures necessary for applying Article 10(1), second indent. obligation in question: the Member States
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were required to transpose the directive into not in practice be able to proceed with national law, regardless of any difficulties of mutual recognition of authorizations. interpretation raised by the relevant provi- sions. However, that contention is also unfounded: the Member States' duty to transpose direc- tives into national law does not depend on whether the provisions to be implemented can be applied. The Member States are required to transpose the directive regardless, Lasdy, the German Government has argued creating the right conditions under national that, even if the directive in question had law to enable the provisions of Community been implemented forthwith, the central pro- law to be applied. A further question, which vision regarding the harmonization of trade does not arise here, is whether or not the in plant protection products — Article 10 — conditions for such application already exist. cannot in practice be applied because no That aspect, however, obviously has no bear- active substance has been listed in Annex I. ing on the obligation to transpose the direc- Thus, even if the relevant provisions of the tive in question into domestic law — an obli- directive had been transposed into national gation which in the present case has law without delay, the Member States would obviously not been fulfilled.
4. I therefore suggest that the C o u r t u p h o l d the action and o r d e r the Federal R e p u b l i c of G e r m a n y , p u r s u a n t t o Article 69(2) of the Rules of P r o c e d u r e , t o pay the costs.
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