Opinion of the Advocate General — ECLI:EU:C:2023:319
Date: 2023-04-20
Language of the case: German
Subject matter: Agriculture and Fisheries;Approximation of laws;Public health;Plant health legislation
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-830/21 – 1 
Case C-830/21 
Request for a preliminary ruling 
Date lodged: 
23 December 2021 
Referring court: 
Hanseatisches Oberlandesgericht Hamburg (Germany) 
Date of the decision to refer: 
9 December 2021 
Applicant, respondent and appellant: 
Syngenta Agro GmbH 
Defendant, appellant and respondent: 
Agro Trade Handelsgesellschaft mbH 
  
Hanseatisches Oberlandesgericht (Hanseatic Higher Regional Court) 
[…] 
Order 
In the matter of 
Syngenta Agro GmbH, […] Maintal 
- applicant, respondent and appellant - 
[…] v 
Agro Trade Handelsgesellschaft mbH, […] 
[…] Lauschied 
- defendant, appellant and respondent - 
[…] the Hanseatic Higher Regional Court (3rd Civil Chamber) […] [composition 
of the court] ordered as follows on 9 December 2021: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 9. 12. 2021 – CASE C-830/21 
 
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I. The proceedings are stayed. 
II. The following questions on the interpretation of Article 1 of Commission 
Regulation (EU) No [54]7/2011 of 8 June 2011 implementing as regards labelling 
requirements for plant protection products Regulation (EC) No 1107/2009 of the 
European Parliament and of the Council of 21 October 2009 concerning the 
placing of plant protection products on the market and repealing Council 
Directives 79/117/EEC and 91/414/EEC, read in combination with paragraph 1(b) 
and (f) of Annex I thereto, are referred to the Court of Justice of the European 
Union for a preliminary ruling: 
1. Is Article 1 of Regulation (EU) No [54]7/2011, read in combination 
with paragraph 1(b) of Annex I thereto, to be interpreted as meaning that, in 
the case of a parallel import of a plant protection product, the name and 
address of the holder of the authorisation in the Member State of origin from 
which the plant protection product was imported must be stated on the 
packaging when it is distributed in another Member State? 
2. Is Article 1 of Regulation (EU) No [54]7/2011, read in combination 
with paragraph 1(f) of Annex I thereto, to be interpreted as meaning that, in 
the case of a parallel import of a plant protection product, the batch number 
initially allocated by the manufacturer must be indicated on the packaging, 
or is it compatible with that provision for the parallel importer to remove the 
original batch number and to affix its own identification number to the 
packaging, provided it keeps records showing the correlation between the 
batch numbers used by it and the batch numbers used by the holder of the 
authorisation of the plant protection product imported in parallel? 
Reasons: 
A. 
The applicant is the German distribution company of the Syngenta Group, which 
manufactures and distributes plant protection and other products in the Federal 
Republic of Germany and other EU Member States. The defendant, a trading 
company in the agricultural sector, distributes plant protection and other products, 
including plant protection products imported in parallel. The imported products 
include the applicant’s plant protection products, which it distributes in the 
Federal Republic of Germany in the applicant’s original, unopened, canisters, on 
which it replaces the original label with its own self-adhesive label. That label 
includes information on the defendant, as the importer and distributor, but not on 
the holder of the authorisation of the plant protection product in the Member State 
of origin. It also replaces the manufacturer’s original batch number with its own 
identification number and keeps a register showing the correlation between the 
identification number allocated by it and the original batch number. 
The applicant argues that this infringes Article 1 of Regulation (EU) No 
[54]7/2011, read in combination with paragraphs 1(b) and (f) of Annex I thereto. 
SYNGENTA AGRO 
 
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It claims, in so far as this is still relevant to the appeal proceedings and 
preliminary ruling proceedings, that the court should order the defendant, on pain 
of punitive administrative measures to compel specific conduct 
(‘Ordnungsmittel’), to desist from: 
1. (…) 
c) placing a plant protection product on the market in the Federal 
Republic of Germany in its original packaging, under the name ‘ABAREX 
PRO’, ‘AGRO TRIO’ and/or ‘REXTOP’, as a parallel import of a plant 
protection product authorised in Germany by Syngenta Agro GmbH, either 
in the course of its own business or through third parties, i.e. from holding it 
ready for sale, offering it for sale, keeping it for sale or otherwise supplying 
it, where the information on the name and address of the authorisation 
holder printed on the original packaging has been removed, as in the case of 
the packaging shown in Annex K6; 
and/or 
d) placing a plant protection product on the market in the Federal 
Republic of Germany in its original packaging, under the name ‘ABAREX 
PRO’, ‘AGRO TRIO’ and/or ‘REXTOP’, as a parallel import of a plant 
protection product authorised in Germany by Syngenta Agro GmbH, either 
in the course of its own business or through third parties, i.e. from holding it 
ready for sale, offering it for sale, keeping it for sale or otherwise supplying 
it, where the batch number printed on the original packaging has been 
removed and replaced by some other identification number, as in the case of 
the packaging shown in Annex K6; 
(…) 
In addition, it is also seeking, by heads of claim 2, 3 and 4, that the court also 
order the defendant to provide it with information, pay damages and reimburse the 
costs of pre-litigation proceedings. 
The Landgericht (Regional Court) found against the defendant in respect of head 
of claim 1(c) and the related follow-on heads of claim and dismissed the action in 
respect of head of claim 1(d) and the related follow-on claims. 
On head of claim 1(c), the Regional Court held that the requirements of Annex I 
to Regulation (EU) No 547/2011 have to be defined by reference to Article 3(10) 
of Regulation (EC) No 1107/2009 of the European Parliament and of the Council 
as regards labelling requirements for plant protection products; that Article 3(24) 
of Regulation (EC) No 1107/2009 defines ‘authorisation holder’ as ‘any natural or 
legal person holding an authorisation of a plant protection product’; that 
Article 3(10) of Regulation (EU) No 1107/2009 defines ‘authorisation of a plant 
protection product’ as ‘an administrative act by which the competent authority of 
a Member State authorises the placing on the market of a plant protection product 
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in its territory’; that, consequently, the authorisation holder is the person who 
obtained the first authorisation of a plant protection product in a Member State; 
that the same term (‘authorisation’) is used in Article [2]8 of Regulation (EC) 
No 1107/2009, whereas, as regards the parallel trade, Article 52(1) of Regulation 
(EC) No 1107/2009 refers to the need for a ‘parallel trade permit’ for ‘a plant 
protection product that is authorised in one Member State (Member State of 
origin)’; that it follows from the use of these terms in Regulation (EC) 
No 1107/2009 that ‘the name and address of the holder of the authorisation and 
the authorisation number of the plant protection product’ in paragraph 1(b) of 
Annex I to Article 1 of Regulation (EU) No 547/2011 mean the name and address 
of the authorisation holder in the Member State of origin, as the term ‘permit’ is 
used in connection with the parallel trade; and that distribution of the plant 
protection product imported in parallel without providing information on the 
authorisation holder in the Member State of origin infringes paragraph 1(b) of 
Annex I to Article 1 of Regulation (EU) No 547/2011. 
On head of claim 1(d), the Regional Court held that the term ‘batch number’ in 
paragraph 1(f) of Annex I to Article 1 of Regulation (EU) No 547/2011 is defined 
neither in that regulation nor in Regulation (EC) No 1107/2009; that, in contrast to 
the name and address of the holder of the authorisation of the plant protection 
product, the wording of Annex I to Article 1 of Regulation (EU) No 547/2011 
does not preclude the defendant’s interpretation that it may also mean the parallel 
importer’s own batch number; that an interpretation of paragraph 1(f) of Annex I 
to Regulation No 547/2011 in the light of the free movement of goods suggests 
that changing the batch number is permissible, as it may be necessary in order to 
prevent or stop foreclosure measures; and the fact that the applicant does not 
appear to have taken foreclosure measures in the present case has no bearing on 
the interpretation of Regulation (EU) No 547/2011 and Regulation (EC) 
No 1107/2009. 
Both parties lodged an appeal against that judgement. 
B. 
The success of those appeals depends upon the interpretation of Article 1 of 
Regulation (EU) No 547/2011, read in combination with paragraphs 1(b) and (f) 
of Annex I thereto. Before judgment can be given, it is therefore necessary to stay 
the proceedings and to request a preliminary ruling by the Court of Justice of the 
European Union pursuant to point (b) of the first paragraph and the third 
paragraph of Article 267 TFEU. 
The applicant might have the claims at issue pursuant to Paragraph 8(1), 
Paragraph 9, first sentence, Paragraph 3(1) and Paragraph 3a of the Gesetz gegen 
den unlauteren Wettbewerb (Law on Unfair Competition, ‘the UWG’), read in 
combination with the requirements of Article 1 of Regulation (EU) No 547/2011, 
read in combination with paragraphs 1(b) and (f) of Annex I thereto. 
SYNGENTA AGRO 
 
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I. 
The general requirements for claims under competition law are fulfilled. The 
parties are competitors within the meaning of Paragraph 2(1), point 3, of the 
UWG. Article 1 of Regulation (EU) No 547/2011 regulates market conduct within 
the meaning of Paragraph 3a of the UWG, breach of which is likely to appreciably 
harm competition to the detriment of competitors and consumers within the 
meaning of Paragraph 3a of the UWG. The product at issue is, moreover, a plant 
protection product within the meaning of Article 1 of Regulation (EU) 
No 547/2011, read in combination with Article 2(1) of Regulation (EC) 
No 1107/2009. 
II. 
If, as a parallel importer, the defendant was required under Article 1 of Regulation 
(EU) No 547/2011, read in combination with paragraph 1(b) of Annex I thereto, to 
also name the holder of the authorisation of the plant protection product imported 
from the Member State of origin for the purpose of distribution in the Federal 
Republic of Germany, then it is in breach of that requirement (Question 1). 
1. Paragraph 1 of Annex I to Regulation (EU) No 547/2011 requires certain 
information to be ‘included clearly and indelibly on the packaging of plant 
protection products’. According to point (b), that includes ‘the name and address 
of the holder of the authorisation and the authorisation number of the plant 
protection product’. Article 33(1) of Regulation (EC) No 1107/2009 requires an 
application for authorisation of a plant protection product to be made ‘to each 
Member State where the plant protection product is intended to be placed on the 
market’, although the authorisation initially extends only to the Member State in 
which that product is to be placed on the market. Article 52(1) of Regulation (EC) 
No 1107/2009 allows for parallel trade in a plant protection product in another 
Member State, where the Member State in which the parallel import is to take 
place determines that the plant protection product is identical in composition to a 
plant protection product already authorised in its territory (reference product). 
Article 52(5) of Regulation (EC) No 1107/2009 stipulates that that product may be 
placed on the market and used only in accordance with the provisions of the 
authorisation of the reference product. 
2. The applicant claims that the labelling requirements laid down in Regulation 
No 547/2011 also apply without restriction to parallel importers which, based on 
the clear and unambiguous wording of paragraph 1(b) of Annex I to Regulation 
(EU) No 547/2011, must provide information on the packaging on the holder of 
the authorisation in the Member State of origin. In that regard, the applicant 
concurs with the view taken by the Regional Court in the judgment at first 
instance. 
3. The defendant contends that Regulation No 547/2011 does not lay down a 
clear rule in that regard; that it must be borne in mind that the imported product 
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has not been separately authorised in the Member State of importation and 
therefore there is no holder of an authorisation of the product within the meaning 
of the regulation; that the product simply depends upon a reference product which, 
for its part, is authorised in the Member State of importation, but whose 
authorisation holder does not necessarily have to be identical to the authorisation 
holder in the Member State of origin; that naming the authorisation holder in the 
Member State of origin would give the agricultural trade and users the false 
impression that the indications and rules of use for the imported product on which 
the authorisation in the Member State of origin is based apply in the Member State 
of importation, which is contrary to the rule laid down in Article 52(5) of 
Regulation (EC) No 1107/2009; that, as the authorised conditions differ between 
the Member State of origin and the Member State of importation, there is a risk 
that the agricultural trade and users will unlawfully distribute the product and use 
it for applications not authorised in Germany or not authorised with the same 
application rate; and that the erroneous impression would be created that the 
authorisation holder in the Member State of origin is also the undertaking 
responsible for placing the product on the market in the Member State of 
importation. 
It further contends that, based on the spirit and purpose of that provision, the only 
relevant factor is who placed the plant protection product on the market in the 
Member State concerned; that this is also consistent with the labelling rules on 
‘suppliers’ adopted in the law on chemicals (see Article 17(1) of Regulation (EC) 
No 1272/2008, read in combination with Article 2(26) thereof); that, in the case of 
the parallel trade, this is the parallel trader alone, not the holder of the 
authorisation of the product in the Member State of origin; and that it is therefore 
not contrary to EU law to provide the name and address of the parallel trader on 
the label in lieu of an authorisation holder. 
The defendant in the main proceedings further argues that the country from which 
the product is being traded in parallel to Germany can be deduced from the 
information on the original authorisation holder and its address; that, in its 
opinion, this would encourage a large number of agricultural undertakings to 
import the product privately without any German labelling, by purchasing it 
directly in the other Member State, which might potentially have negative effects 
on human and animal health and on the environment, for example as a result of 
probable infringements of Article 52(5) of Regulation (EC) No 1107/2009. 
III. 
If, as a parallel importer, the defendant was required under Article 1 of Regulation 
(EU) No 547/2011, read in combination with paragraph 1(f) of Annex I thereto, to 
leave the original batch number unchanged on the canisters, then it is in breach of 
that requirement That depends upon whether the defendant was entitled to remove 
the original batch number, replace it with its own identification number and keep a 
register showing the correlation between the identification numbers allocated by it 
and the original batch numbers (Question 2). 
SYNGENTA AGRO 
 
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1. According to Article 1 of Regulation (EU) No 547/2011, read in 
combination with paragraph 1(f) of Annex I thereto, the ‘formulation batch 
number’ is one of the items of information that must be included ‘clearly and 
indelibly’ on the packaging of plant protection products. Paragraph 49(4) of the 
Pflanzenschutzgesetz (Law on the Protection of Cultivated Plants, ‘the PflSchG’) 
lays down the following rule for the parallel trade in plant protection products: 
‘Permit holders which do not use the batch number of the holder of the 
authorisation for the plant protection product imported in parallel for the label 
referred to in Paragraph 47(1) must keep records, to be retained for at least 
5 years, showing the correlation between the batch number which they use and the 
batch numbers of the holder of the authorisation of the plant protection product 
imported in parallel.’ 
Thus, this provision of national law presupposes that there are cases in which 
parallel importers are allowed to replace the original batch number with their own 
identification number. In light of the primacy of EU law, that provision could not 
allow the original batch number to be replaced if parallel importers are required 
under Article 1 of Regulation (EU) No 547/2011, read in combination with 
paragraph 1(f) of Annex I thereto, to leave the initial batch number on the 
packaging unchanged. 
2. The applicant argues that the very wording of paragraph 1(f) of Annex I to 
Regulation (EU) No 547/2011 suggests that the original batch number must be left 
on the packaging unchanged; that this can be inferred both from the definition of 
‘batch’, which is determined by the production of the plant protection product, and 
from the definition of ‘formulation’, which must necessarily be attributed to the 
authorisation holder; and that this is corroborated, moreover, by the need to 
include the batch number ‘indelibly’. 
It argues that the general labelling requirements laid down in this provision also 
apply directly to parallel importers, and that the provision of Paragraph 49(4) of 
the PflSchG is disapplied in the event of conflict with Regulation (EU) 
No 547/2011, which takes priority under EU law. 
It claims that the information on the authorisation holder and the batch number 
serve to protect users and the environment so that, in the event of an emergency, 
the authorisation holder can identify application mistakes or defective batches as 
quickly as possible, and that the authorisation holder alone has the product 
expertise needed to provide information to avert danger under such circumstances. 
It considers that this understanding is also in keeping with the Commission 
Guidance document concerning the parallel trade of plant protection products 
adduced as Annex K12, which lays down different rules for repackaging only (and 
not for relabelling as in this case). 
3. In that regard, the defendant concurs with the Regional Court and contends 
that the wording of paragraph 1(f) of Annex I to Regulation (EU) No 547/2011 
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does not contain clear and precise requirements in terms of the batch number. It 
argues that, on the contrary, it is not clear from the wording whether ‘batch 
number’ refers solely to the batch number originally assigned by the manufacturer 
or, moreover, what is meant by the term ‘formulation’, which simply means a 
mixture consisting of an active substance and excipients; that the batches of any 
such formulation are also clearly identifiable from the way in which they are 
handled by the defendant; that, Paragraph 49 of the PflSchG does not infringe EU 
law in that respect; and 
that it is not necessary to leave the batch number in case of emergency, as the first 
aid measures needed in an emergency are listed on the label affixed by the 
defendant and, moreover, the parallel trader can be contacted for information. It 
also notes that the safety data sheet for each plant protection product is kept by 
and can be retrieved from the person placing the chemical on the market at any 
time; that, in addition, an obligation to stipulate the original batch number would 
give rise to the risk of market foreclosure, as it would be possible to identify the 
Member State in which the imported product had been sold to the defendant; and 
that, if it is not removed, there is a risk of exposing the applicant’s customer and 
defendant’s supplier in that country to reprisals on the part of the Syngenta group, 
which might even refuse to do business with it. 
IV. 
It would appear that the national courts of the Federal Republic of Germany have 
yet to establish any case-law on the questions of interpretation raised in the 
present case. 
There is doubt as to the interpretation to be given to paragraph 1(b) and (f) of 
Annex I to Regulation (EU) No 547/2011, as it does not include any separate rules 
for the specific case of labelling of plant protection products imported in parallel. 
Whereas the wording of the above provisions, as interpreted by the applicant, 
might suggest that the label on imported products should include information on 
both the authorisation holder in the Member State of origin and the original batch 
number, the spirit and purpose of the legislation might also support a broader 
interpretation for the parallel trade, as argued by the defendant. In light of that, it 
would appear necessary to obtain a preliminary ruling from the Court of Justice of 
the European Union pursuant to point (b) of the first paragraph and the third 
paragraph of Article 267 TFEU. 
[…] [Names of the judges involved in the deliberations]