Judgment — ECLI:EU:C:2009:473
Date: 2009-07-16
Language of the case: Polish
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Environment
Concepts: Environment;General;Genetically modified organisms
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - inadmissible
Origin: Poland

summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare a defence and the Court to rule on the application. It follows that the essential points of law and of fact on which an action is based must be indicated coherently and intelligibly in the application itself and that the heads of claim must be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on a complaint (Case C-475/07 Commission v Poland [2009] ECR I‑0000, paragraph 43, and the case-law cited). 43 The Court has also held that, in an action brought under Article 226 EC, the application must set out the complaints coherently and with precision, so that the Member State and the Court can know exactly the full extent of the alleged infringement of Community law, a condition which must be satisfied if the Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged (see, in particular, Commission v Poland, paragraph 44 and the case-law cited). 44 In the present case, and as regards, first of all, the part of the action relating to Directive 2002/53, it is sufficient to recall that, notwithstanding the relatively ambiguous terms used in the application to describe the form of order sought in that regard, the Commission has confirmed in its rejoinder that the action sought a declaration that the Republic of Poland had failed to fulfil its obligations only with respect to the provisions expressly identified in the description of the form of order sought, namely Articles 4(4) and 16 of Directive 2002/53. Furthermore, since the Commission has clearly set out, both during the pre-litigation procedure and in its application, the reasons for its view that the contested national provisions infringe those two provisions, and as the Republic of Poland has therefore had at its disposal all the time necessary to be able to prepare an effective defence in that connection, that part of the action cannot be held inadmissible. 45 Secondly, as regards the admissibility of that part of the action relating to Directive 2001/18, it must be held that the Commission has set out its complaints in a manner which is easily understood and sufficiently precise with respect to Articles 22 and 23 of that directive. On the other hand, it has failed to explain with the requisite clarity the reasons for its view that the Republic of Poland has failed to fulfil all its obligations under that directive. 46 First, the Commission’s application merely reproduces the provisions of Article 2(2) of Directive 2001/18 containing a definition of GMOs and those of Articles 19(1) and (2), 22 and 23(1), in Part C of that directive, relating to the placing of GMOs on the market. That application goes on to provide detailed arguments only with respect to Articles 22 and 23, before concluding that the contested national provisions are not compatible ‘with the system of free circulation established by that directive as a whole and, in particular, Articles 22 and 23 thereof’. 47 As the Republic of Poland rightly argues, such a laconic statement does not provide any explanation as to the reasons why Directive 2001/18 – which contains, inter alia, a Part B concerning the deliberate release of GMOs for any purpose other than for placing on the market, and a Part D laying down provisions relating to confidentiality, labelling and the exchange of information – was infringed ‘in its entirety’, as claimed in the submissions set out in the application. 48 It follows from the foregoing that, in so far as the action relates to Directive 2001/18, it is admissible only as regards the alleged infringement of Articles 22 and 23 of that directive, but not in so far as it seeks a declaration that Directive 2001/18 was infringed ‘in its entirety’. Substance 49 In its defence and its rejoinder, the Republic of Poland concentrated its arguments wholly on the ethical or religious considerations on which the contested national provisions are based. 50 Without disputing that the prohibitions laid down in the contested national provisions would infringe Directives 2001/18 and 2002/53 if it were to be confirmed that they are intended solely to regulate trade in genetically modified seed varieties and their inclusion in the common catalogue of varieties of agricultural plant species, the Republic of Poland contends that that is not the position in the present case. In so far as those national provisions pursue ethical objectives which are unrelated to the objectives which characterise those directives, namely the protection of the environment and of human health, and free circulation, they are actually outside the scope of those directives, which means that the obstacles to the free circulation of GMOs to which they give rise, potentially in breach of Article 28 EC, may in some circumstances be justified under Article 30 EC. 51 In that connection, however, the Court considers that, for the purposes of deciding the present case, it is not necessary to rule on the question whether – and, if so, to what extent and under which possible circumstances – the Member States retain an option to rely on ethical or religious arguments in order to justify the adoption of internal measures which, like the contested national provisions, derogate from the provisions of Directives 2001/18 or 2002/53. 52 In the present case, it is sufficient to hold that the Republic of Poland, upon which the burden of proof lies in such a case, has failed, in any event, to establish that the true purpose of the contested national provisions was in fact to pursue the religious and ethical objectives relied upon, which for the Commission is a matter of doubt. 53 It should be borne in mind that, according to settled case-law, it is for the Member States to show that the conditions permitting a derogation from Article 28 EC are satisfied (see, to that effect, Case C-110/05 Commission v Italy [2009] ECR I‑0000, paragraph 62). Thus, in particular, where a Member State against which infringement proceedings are brought relies, in its defence, on a justification based on Article 30 EC, the Court is required to examine a justification of that kind only in so far as it is common ground or properly established that the national legislation concerned does in fact pursue the purposes that the defendant Member State attributes to it (see, to that effect, Case 124/81 Commission v United Kingdom [1983] ECR 203, paragraph 35; Case C-320/03 Commission v Austria [2005] ECR I-9871, paragraph 71; and Case C-141/07 Commission v Germany [2008] ECR I-0000, paragraph 47). 54 As regards, more specifically, the justification based on the protection of public morality relied on by the Republic of Poland in the present case, it must be held, first, that the relevant evidentiary burden is not discharged by statements as general as those put forward by that Member State during the pre-litigation procedure and consisting in references to fears regarding the environment and public health and to the strong opposition to GMOs manifested by the Polish people, or even to the fact that the administrative regional assemblies adopted resolutions declaring that the administrative regions are to be kept free of genetically modified cultures and GMOs. 55 Clearly, in those circumstances, public morality is not really being invoked as a separate justification, but as an aspect of the justification relating to protection of human health and the environment, which is precisely the concern of Directive 2001/18 in the present context (see, to that effect, Case C-1/96 Compassion in World Farming [1998] ECR I-1251, paragraph 66). 56 However, a Member State cannot rely in that manner on the views of a section of public opinion in order unilaterally to challenge a harmonising measure adopted by the Community institutions (see Compassion in World Farming, paragraph 67). As the Court observed in a case specifically concerning Directive 2001/18, a Member State may not plead difficulties of implementation which emerge at the stage when a Community measure is put into effect, such as difficulties relating to opposition on the part of certain individuals, to justify a failure to comply with obligations and time-limits laid down by Community law (see Case C-121/07 Commission v France [2008] ECR I-0000, paragraph 72). 57 Secondly, and as regards the more specifically religious or ethical arguments put forward by the Republic of Poland for the first time in the defence and rejoinder submitted to the Court, it must be held that that Member State has failed to establish that the contested national provisions were in fact adopted on the basis of such considerations. 58 The Republic of Poland essentially referred to a sort of general presumption according to which it can come as no surprise that such provisions were adopted in the present case. First, the Republic of Poland relies on the fact that it is well known that Polish society attaches great importance to Christian and Roman Catholic values. Secondly, it states that the political parties with a majority in the Polish Parliament at the time when the contested national provisions were adopted specifically called for adherence to such values. In those circumstances, according to that Member State, it is reasonable to take the view that the Members of Parliament, who do not, as a general rule, have scientific training, are more likely to be influenced by the religious or ethical ideas which inspire their political actions, rather than by other considerations, in particular, those linked to the complex scientific assessments relating to the protection of the environment or of human health. 59 However, such considerations are not sufficient to establish that the adoption of the contested national provisions was in fact inspired by the ethical and religious considerations described in the defence and the rejoinder, especially since the Republic of Poland had, in the pre-litigation procedure, based its defence mainly on the shortcomings allegedly affecting Directive 2001/18, regard being had to the precautionary principle and to the risks posed by that directive to both the environment and human health. 60 In those circumstances, for the purposes of deciding the action brought by the Commission, it must be declared – as the Commission submits – that general prohibitions such as those laid down in the contested national provisions infringe the obligations of the Republic of Poland under Articles 22 and 23 of Directive 2001/18 and Articles 4(4) and 16 of Directive 2002/53. 61 First, it should be recalled that Articles 22 and 23 of Directive 2001/18 place the Member States under an obligation not to prohibit, restrict or impede the placing on the market of GMOs, as or in products, which comply with the requirements of that directive, save where, in accordance with the specific provisions laid down in that respect by Article 23 of that directive, they rely on the possibility of adopting the safeguard measures provided for thereunder. Furthermore, a national measure which unilaterally imposes a general prohibition on the marketing of GMO seed, such as the prohibition laid down in Article 57(3) of the Law on Seeds, clearly infringes the provisions of Articles 22 and 23 of Directive 2001/18. 62 Such a general prohibition also clearly infringes Article 16(1) of Directive 2002/53, which places the Member States under an obligation not to make seed varieties accepted in accordance with that directive subject to any marketing restrictions relating to variety, unless they rely on the exceptions – not applicable in the present case – set out in Article 16(2). It is common ground in that regard, as the Commission states, that a certain number of varieties which have been accepted in accordance with Directive 2002/53 and which accordingly appear in the common catalogue of varieties of agricultural plant species, referred to in Article 17 thereof, are genetically modified varieties. 63 Secondly, it is clear, in particular from Article 4(4) of Directive 2002/53, that the inclusion of genetically modified varieties in the national catalogue of varieties cannot be the subject of a general prohibition such as that laid down in Article 5(4) of the Law on Seeds. It emerges, in particular, from Article 4(4) of Directive 2002/53 that any refusal to include a variety in the national catalogue solely because it is genetically modified is justified only if there has been a failure to take all appropriate measures to prevent adverse effects on human health and the environment, which – as the Commission rightly submitted – cannot, in particular, be the case where a variety has been authorised under Directive 2001/18. 64 In the light of all the foregoing, it must be held that, by prohibiting the free circulation of genetically modified seed varieties and the inclusion of genetically modified varieties in the national catalogue of varieties, the Republic of Poland has failed to fulfil its obligations under Articles 22 and 23 of Directive 2001/18 and Articles 4(4) and 16 of Directive 2002/53. 65 However, as is clear from paragraph 48 of this judgment, the action must be dismissed as inadmissible in so far as it seeks a declaration that the Republic of Poland has failed to fulfil its obligations under Directive 2001/18 considered in its entirety. Costs 66 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 69(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads of claim, the Court may order that the costs be shared or that the parties bear their own costs. In the present case, although the Republic of Poland has been unsuccessful with respect to most of its pleas, account should be taken of the fact that the Commission’s action has been declared partly inadmissible. Having regard to the circumstances of the present case, the Republic of Poland should be ordered to pay, in addition to its own costs, two-thirds of the costs incurred by the Commission. The Commission should bear one-third of its own costs. On those grounds, the Court (Second Chamber) hereby: 1. Declares that, by prohibiting the free circulation of genetically modified seed varieties and the inclusion of genetically modified varieties in the national catalogue of varieties, the Republic of Poland has failed to fulfil its obligations under Articles 22 and 23 of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, and under Articles 4(4) and 16 of Council Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of agricultural plant species. 2. Dismisses the action as to the remainder. 3. Orders the Republic of Poland to bear its own costs and to pay two‑thirds of the costs incurred by the Commission. 4. Orders the Commission to bear one-third of its own costs. [Signatures] * Language of the case: Polish.