C-400/96
ECLI:EU:C:1998:73
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OPINION OF ADVOCATE GENERAL ALBER delivered on 19 February 1998 *
A — Introduction requirement. It has referred the following question to the Court of Justice:
'Is Belgian legislation, in so far as it still 1. The issue in this reference for a prelimi- requires authorisation by the Belgian authori- nary ruling is whether a requirement that ties of plant protection products marketed in plant protection products be authorised is another Member State, in breach of the rules compatible with the Community provisions on the free movement of goods in the Com- on the free movement of goods. munity, as laid down in Article 30 of the E E C Treaty?' -
2. The main proceedings are criminal pro- 4. The United Kingdom and the Commis- ceedings against a farmer in Belgium, on sion have taken part in the procedure before whose farm plant protection products not the Court. Reference will be made to their authorised in that country were found. The observations in the main body of this Opinion. plant protection products originated from France, where they were authorised and had been lawfully placed on the market.
B — Opinion
3. The national court has doubts as to whether the legislature of a Member State may require 5. It should first be noted that the question a separate (that is to say additional) authori- referred for a preliminary ruling, as formu- sation for those products and impose lated, is designed to ascertain whether national criminal-law penalties for breach of that law is compatible with Community law. The Court has no power to carry out such an assessment under the preliminary reference * Original language: German. procedure. It is the Court's consistent prac-
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tice in such cases to provide the national court 8. The United Kingdom Government pro- with all material concerning the interpreta- ceeds on the basis that plant protection prod- tion of Community law which will enable ucts within the field of application of Direc- that court to judge whether the domestic rules tive 91/414 on pesticides are in issue. It are compatible with Community law. 1 concludes that an authorisation may continue to be demanded.
9. The Commission, on the other hand, 6. The next point to be observed is that dif- assumes that biocides are involved, that is to ferent rules apply to the marketing of plant say plant protection products for non- protection products according to whether they agricultural use, since the order for reference are plant protection products used for agri- refers to the Royal Decree of 5 June 1975 cultural purposes (pesticides) or plant protec- which was previously in issue in the main tion products used for non-agricultural pur- proceedings in Brandsma, 4 a case which was poses (biocides). unquestionably concerned with the condi- tions for the marketing of plant protection products used for non-agricultural purposes. Despite the different factual basis and the legal consequences resulting therefrom, the Com- mission also concludes that retention of the requirement for authorisation is compatible with Community law. While there are special Community rules for pesticides in the form of Directive 91/414/EEC, 2 no such rules have as yet been adopted for biocides, 3so that the general Treaty provisions apply. 10. It may be concluded from the factual background to the proceedings, as it is to be understood from the order for reference and the documents before the Court, that the plant protection products in issue are, in all probability, pesticides for agricultural use. Since that question of fact cannot be settled 7. In this respect, the parties concerned base with absolute certainty, the position in law their arguments on different premisses. should be examined for two alternative situ- ations. It is reasonable to assume that the plant protection products found on the farm are products for agricultural use, so that premiss 1 — See Case 272/80 Frans-Nederlandse Maatschappij voor Biolo- gische Producten [1981] ECR 3277, paragraph 9. should be considered first. 2 — Council Directive 91/414/EEC concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1)· 3 — The Conciliation Committee has recently approved a draft directive. 4 — Case C-293/94 Brandsma [1996] ECR I-3159.
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11. Council Directive 91/414 concerning the relevant to the use of the product are placing of plant protection products on the comparable in the regions concerned. market was adopted on the basis of Article 43 of the Treaty. Because of the 'risks and haz- ards for humans, animals and the environ- ment' 5 arising from plant protection prod- > ucts, the directive proceeds on the basis that such products 'should not be put on the market or used unless they have been offi- cially authorised'. 6 That requirement is con- 12. The Council sought to establish the 'uni- tained in Article 3(1) of the directive. The form principles' within the meaning of that conditions as to a product's contents are laid provision with the adoption of Directive down in Article 4. In the interests of the free 94/43/EC, 8 but that directive was annulled in movement of plant protection products, the Case C-303/94 Parliament v Council. 9 directive seeks to ensure that, subject to cer- tain conditions, an authorisation granted by one Member State and tests carried out for that purpose should be recognised. 7 The con- ditions for mutual recognition are laid down 13. It is therefore necessary to proceed o n in Article 10, which provides: the basis that, first, in purely formal terms a requirement for authorisation is laid down and that the conditions for the mutual recog- nition of an authorisation issued in another Member State have not yet been brought 'At the request of the applicant, ... a Member about. While transitional measures and dero- State to which an application is made for the gations apply under Article 8 of Directive authorisation of a plant protection product 91/414, they likewise do not allow any fun- already authorised in another Member State damental exemption from the requirement for must: authorisation. Requirements for authorisation laid down by the Member States are thus jus- tified both in formal terms and in substance.
— to the extent that the uniform principles 14. The Commission has pointed out that in have been adopted in accordance with the case of plant protection products used for Article 23, where the product contains agricultural purposes it is not the Royal Decree only active substances Usted in Annex I, of 5 June 1975 which is applicable but the also authorise the placing of that product Royal Decree of 28 February 1994. It is, on the market in its territory, to the extent however, for the national court to determine that agricultural, plant health and envi- the domestic law which ultimately applies. ronmental (including climatic) conditions
8 — Council Directive 94/43/EC of 27 July 1994 establishing Annex VI to Directive 91/414/EEC concerning the placing of 5 — Sec the fourth recital in the preamble to the directive. plant protection products on the market (OJ 1994 L 227, 6 — See the eighth recital in the preamble to the directive. p. 31). 7 — See the 16th recital in the preamble to the directive. 9 — Case C-303/94 Parliament v Council[1996] ECR I-2943.
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15. It should be pointed out for the sake of authorisation had been made to the Belgian completeness that, in the case of an applica- Ministry of Public Health but which bore a tion for the authorisation of a plant protec- Netherlands authorisation number. tion product already authorised in another Member State, the requirements are eased by the first indent of Article 10(1) of the direc- tive, which provides for the recognition of tests and analyses which have already been carried out. 19. Both cases are therefore comparable to this one. The findings of the Court in those cases may thus also apply in the present con- text:
16. In case, contrary to expectations, the main proceedings are not concerned with plant protection products used for agricultural pur- poses, I shall now set out the legal position which pertains in that eventuality. 'As the Court has consistently held, legisla- tion such as that applicable in this case con- stitutes a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty, since it is capable 17. Reference may be made to the judgments of hindering, directly or indirectly, actually or in Frans-Nederlandse Maatschappij voor potentially, trade between the Member States Biologische Producten 10 and Brandsma. 11The ...' 12 first of those cases involved consideration of a prohibition on the sale, storage or use of pest control agents which had not been autho- rised under the Netherlands Law of 1962 relating to such products. The pest control agent whose import resulted in the proceed- ings in the Netherlands had been lawfully 20. The general rule in Article 30 of the EC placed on the market in France. Treaty is qualified by Article 36, according to which the provisions of Articles 30 to 34 are not to preclude prohibitions or restrictions on imports justified, inter alia, on grounds of the 'protection of health and life of humans, animals or plants'. 13 The Court has found 18. Brandsma was concerned with the mar- that 'since biocidal products are used to keting in a Belgian shop of a pest control combat organisms harmful to human or animal agent in respect of which no application for
12 — Brandsma, paragraph 5. See also, to that effect, Case 125/88 Nijman [1989] ECR 3533, paragraph 12. 10 — Cited in footnote 1. 13 — See, to that effect, Frans-Nederlandse Maatschappij voor 11 — Cited in footnote 4. Biologische Producten, paragraph 11.
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health and organisms liable to damage natural technical or chemical analyses or laboratory or manufactured products, they inevitably tests which have already been carried out in contain dangerous substances'. 14 It is true in another Member State'. 17 this case too that 'the national rules are intended to protect public health and ... there- fore come within the exception provided for by Article 36'. 15
22. Looked at in perspective, it appears desir- able that a product granted authorisation once should be treated as authorised in the whole Community. As the law now stands, how- 21. The Member States are free, 'in the absence ever, it must be concluded that it is compat- of harmonising rules, ... to decide on their ible with Community law for a Member State intended level of protection of human health to require an authorisation for the marketing and life and on whether to require prior of plant protection products. In that regard, authorisation for the marketing of such prod- account must be taken of tests already carried ucts'. 16 It follows, however, from both judg- out under authorisation procedures of other ments referred to that the Member States are Member States. The question asked by the required 'to assist in bringing about a relax- national court as to whether a further national ation of the controls existing in intra- authorisation infringes Community law must Community trade and to take account of accordingly be answered in the negative.
C — Conclusion
23. I p r o p o s e that the following reply be given to the reference for a preliminary ruling:
Legislation of a M e m b e r State w h i c h requires separate a u t h o r i s a t i o n for p l a n t p r o - tection p r o d u c t s a u t h o r i s e d and placed o n the m a r k e t in a n o t h e r M e m b e r State is in principle c o m p a t i b l e w i t h C o m m u n i t y law.
14 — See Brandsma, paragraph 11; see also Nijman, paragraph 13. 16 — Brandsma, paragraph 11; see also Nijman, paragraph 14. 15 — Frans-Nederlandse Maatschappij voor Biologische Producten, 17 — Brandsma, paragraph 12; see also Frans-Nederlandse paragraph 13. Maatschappij voor Bialogische Producten, paragraph 14.
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