Judgment;Summary — ECLI:EU:C:2022:925
Date: 2022-11-24
Language of the case: Dutch
Court formation: Eighth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-658/21 – 1 
Case C-658/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged: 
29 October 2021 
Referring court: 
Raad van State (Belgium) 
Date of the decision to refer: 
21 October 2021 
Applicant: 
VZW BELGISCHE VERENIGING VAN DE INDUSTRIE VAN 
PLANTENBESCHERMINGSMIDDELEN (PHYTOFAR) 
Defendant: 
Vlaams Gewest 
  
Subject matter of the main proceedings 
The main proceedings concern an application by the vzw (non-profit association) 
Belgische Vereniging van de industrie van plantenbeschermingsmiddelen 
(Belgian Association of the Crop Protection Industry; ‘Phytofar’) (‘the applicant’) 
for the annulment of the besluit van de Vlaamse Regering van 14 juli 2017 tot 
wijziging van het besluit van de Vlaamse Regering van 15 maart 2013 houdende 
nadere regels inzake duurzaam gebruik van pesticiden in het Vlaamse Gewest 
voor niet-land- en tuinbouwactiviteiten en de opmaak van het Vlaams Actieplan 
Duurzaam Pesticidengebruik (Decision of the Flemish Government of 14 July 
2017 amending the decision of the Flemish Government of 15 March 2013 laying 
down detailed rules on the sustainable use of pesticides in the Flemish Region for 
non-agricultural and non-horticultural activities and drawing up the Flemish 
Action Plan for the Sustainable Use of Pesticides; ‘the contested decision’). The 
applicant challenges, in particular, the provisions of the contested decision under 
which non-professional users are prohibited from using pesticides containing 
glyphosate on land in private use.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-658/21 
 
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Subject matter and legal basis of the request  
Application pursuant to Article 267 TFEU.  
The application concerns the interpretation of Article 5(1) of Directive (EU) 
2015/1535 of the European Parliament and of the Council of 9 September 2015 
laying down a procedure for the provision of information in the field of technical 
regulations and of rules on Information Society services.  
Question referred for a preliminary ruling 
“Must Article 5(1) of Directive 2015/1535/EU of the European Parliament and of 
the Council of 9 September 2015 ‘laying down a procedure for the provision of 
information in the field of technical regulations and of rules on Information 
Society services’ be interpreted as meaning that a prohibition on the use of 
pesticides containing glyphosate on land in private use by users who do not have a 
phytosanitary licence is deemed to concern a technical regulation which must be 
communicated to the European Commission in accordance with the provisions of 
that article?”  
Provisions of European Union law relied on 
Article 4(3) TEU  
Precautionary principle and principles of legality, legal certainty and 
proportionality 
Commission Implementing Regulation (EU) 2017/2324 of 12 December 2017 
renewing the approval of the active substance glyphosate in accordance with 
Regulation (EC) No 1107/2009 of the European Parliament and of the Council 
concerning the placing of plant protection products on the market, and amending 
the Annex to Commission Implementing Regulation (EU) No 540/2011  
Article 1 and Article 5(1) of Directive (EU) 2015/1535 of the European 
Parliament and of the Council of 9 September 2015 laying down a procedure for 
the provision of information in the field of technical regulations and of rules on 
Information Society services (‘Directive 2015/1535’)  
Articles 2, 28, 31, 33, 35, 36, 69, 70 and 71 of 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 (‘Regulation No 1107/2009’) 
Recitals 1 and 5 and Articles 2 and 12 of Directive 2009/128/EC of the European 
Parliament and of the Council of 21 October 2009 establishing a framework for 
Community action to achieve the sustainable use of pesticides (‘Directive 
2009/128’) 
PHYTOFAR 
 
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Provisions of national law relied on 
Articles 4, 5 and 6 of the decreet van 8 februari 2013 houdende duurzaam gebruik 
van pesticiden in het Vlaamse Gewest (Decree of 8 February 2013 on the 
sustainable use of pesticides in the Flemish Region; ‘Decreet duurzaam gebruik 
pesticiden’) 
Articles 3 and 4 of the besluit van 15 maart 2013 houdende nadere regels inzake 
duurzaam gebruik van pesticiden in het Vlaamse Gewest voor niet-land- en 
tuinbouwactiviteiten en de opmaak van het Vlaams Actieplan Duurzaam 
Pesticidengebruik (Decision of 15 March 2013 laying down detailed rules on the 
sustainable use of pesticides in the Flemish Region for non-agricultural and non-
horticultural activities and the establishment of the Flemish Action Plan for the 
Sustainable Use of Pesticides) 
Article 96 of the decreet van 30 juni 2017 houdende diverse bepalingen inzake 
omgeving, natuur, en landbouw (Decree of 30 June 2017 containing various 
provisions relating to the environment, nature and agriculture) 
Koninklijk besluit van 16 september 2018 tot wijziging van het koninklijk besluit 
van 28 februari 1994 betreffende het bewaren, op de markt brengen en het 
gebruiken van bestrijdingsmiddelen voor landbouwkundig gebruik (Royal Decree 
of 16 September 2018 amending the Royal Decree of 28 February 1994 on the 
storage, placing on the market and use of pesticides for agricultural use) 
Introduction and Articles 1, 2, 3/1, 5, 8/1 of the contested decision 
Succinct presentation of the facts and procedure in the main proceedings  
1 The applicant challenges before the referring court the contested decision of the 
Flemish Government which amends the existing Flemish rules on the use of 
pesticides, based on EU legislation, as regards the use of pesticides containing 
glyphosate.  
2 The applicant puts forward five pleas in law in that regard, three of which are 
specifically based on national law and are rejected by the referring court (the 
second, fourth and fifth pleas).  
3 In addition, there is a plea relating to EU law, in particular, the EU rules on the 
placing of plant protection products on the market (Regulation No 1107/2009) and 
the sustainable use of pesticides (Directive 2009/128), read in conjunction with 
the Treaty provisions on loyalty (Article 4(3) TEU), the free movement of goods, 
the precautionary principle and the principles of legality, legal certainty and 
proportionality (third plea). By this plea, the applicant submits, in summary, that 
Member States cannot adopt measures restricting the use of pesticides other than 
those authorised by the provisions and principles of EU law referred to in this 
paragraph. This plea is also rejected by the referring court.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-658/21 
 
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4 The remaining plea in law put forward by the applicant (first plea) concerns the 
question of whether a ban on the use of pesticides containing glyphosate by non-
professional users on land in private use must be regarded as a ‘technical 
regulation’ within the meaning of Article 5(1) of Directive 2015/1535/EU, which 
must be communicated to the European Commission in accordance with the 
provisions of that article. This plea gave rise to the question referred to the Court 
of Justice for a preliminary ruling by the referring court in the present case.  
Succinct presentation of the arguments of the parties and the reasoning in the 
request for a preliminary ruling 
Arguments of the parties 
5 The applicant alleges infringement of Article 5(1) of Directive 2015/1535/EU, 
read in conjunction with the principle of loyalty laid down in Article 4(3) TEU. It 
quotes in that regard the definition of the term ‘technical regulation’ in 
Article 1(1)(f) of Directive 2015/1535: ‘technical specifications and other 
requirements or rules on services, including the relevant administrative 
provisions, the observance of which is compulsory, de jure or de facto, in the case 
of marketing, provision of a service, establishment of a service operator or use in 
a Member State or a major part thereof, as well as laws, regulations or 
administrative provisions of Member States, except those provided for in Article 7, 
prohibiting the manufacture, importation, marketing or use of a product or 
prohibiting the provision or use of a service, or establishment as a service 
provider’. The terms ‘technical specification’ and ‘other requirement’ which 
appear in this article are defined in Article 1(1)(c) and Article 1(1)(d) of this 
Directive.  
6 The first subparagraph of Article 5(1) of Directive 2015/1535 imposes an 
obligation to communicate to the Commission any draft technical regulation.  
7 According to the applicant, the contested decision constitutes a ‘technical 
regulation’, and more specifically, an ‘other requirement’, because the contested 
decision includes requirements without being a ‘technical specification’, namely, 
the glyphosate-free status of pesticides for non-professional, private use in the 
Flemish Region, and because it was allegedly adopted for the protection of 
consumers or the environment. Furthermore, the contested decision relates to the 
life cycle of a product after it has been placed on the market, more specifically, to 
the use of the product. The product at issue here is a plant protection product 
which has a marketing authorisation and which has been created with an active 
substance approved at EU level (glyphosate).  
8 In addition, according to the applicant, the contested decision significantly affects 
the placing on the market of the product by imposing a prohibition in principle on 
the private use of any pesticide containing glyphosate, except where that use is 
carried out by a professional user who holds a specific licence. The market for the 
PHYTOFAR 
 
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non-professional use of the products in question in the Flemish Region – a 
substantial part of the Member State of Belgium – is thus completely eliminated.  
9 The failure by a Member State to comply with the obligation to communicate 
‘technical regulations’ within the meaning of Directive 2015/1535 constitutes a 
procedural defect which, according to the applicant, under the case-law of the 
Court of Justice, must lead to the non-applicability of the technical regulations in 
question, and constitutes an infringement by the Vlaams Gewest (‘the defendant’) 
of a substantive procedural requirement and therefore a ground for annulment of 
the contested decision by the referring court.  
10 The defendant replies that there is no question of an ‘other requirement’ because 
the contested decision in no way affects the marketing of pesticides containing 
glyphosate. It merely provides that only licensed professionals may apply 
pesticides containing glyphosate.  
11 Furthermore, the defendant submits that, according to the case-law of the Court of 
Justice, the prohibition on the use of products under the EU legislation cited by 
the applicant must be general, which means that the prohibition reduces actual use 
to a purely marginal level. The contested decision prohibits only private 
individuals from using glyphosate. It therefore does not fall within the scope of 
Directive 2015/1535 and the communication requirement contained therein. There 
is no question of a technical regulation, and therefore also no infringement of a 
substantive procedural requirement which could be a ground for annulment.  
12 In its reply, the applicant adds that the case-law of the Court of Justice makes it 
clear that even a partial ban on the deployment of certain products (for example, 
permitting slot machines to operate only in casinos) qualifies as a ‘technical 
regulation’, that there is indeed a total prohibition throughout the Flemish Region 
on any use of a specific type of product, namely, crop protection products 
containing glyphosate intended for private use, and that this has the effect, at the 
very least, of there no longer being a market in the Flemish Region for products 
containing glyphosate which are specifically authorised by the State for private 
use.  
13 In addition, the applicant submits that a reading of the contested decision as 
referring only to a single product, namely, ‘pesticides containing glyphosate’, 
ignores the actual market economy data. Finally, it refers to the observations made 
by the European Commission in the context of the procedure which it initiated 
under Article 5(1) of Directive 2015/1535 in respect of a draft decision of the 
Brussels Government relating to the prohibition on the use of pesticides 
containing glyphosate.  
Assessment of and reasoning in the question referred for a preliminary ruling  
14 The referring court points out that, according to the EU legal framework for 
standards and technical regulations of which Directive 2015/1535 forms part, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-658/21 
 
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there are three categories of ‘technical regulations’ and it refers, in that regard, to 
the judgment of the Court of Justice of 21 April 2005 in Case C-267/03, Lindberg, 
paragraph [54]:  
“It follows from Article 1(9) of Directive 83/189 [the predecessor of Directive 
2015/1535] that the definition of ‘technical regulation’ is divided into three 
categories, namely, first, the ‘technical specification’ within the meaning of 
Article 1(2) of that directive, second, the ‘other requirement’ as defined in 
Article 1(3) of that directive, and, third, the ‘provisions … prohibiting the 
manufacture, importation, marketing or use of a product’ referred to in the first 
subparagraph of Article 1(9) of that directive.”  
15 The referring court notes that the applicant does not regard the phrase beginning 
‘as well as laws, regulations or administrative provisions’ in the definition of 
‘technical regulation’ set out in point 5 above as a separate category, but rather, as 
a clarification of what precedes it.  
16 The contested decision inserts into the existing decision of the Flemish 
Government of 15 March 2013 a regulation concerning the use of pesticides 
containing glyphosate. The inserted Chapter 4/1 applies to land used by private 
individuals. There, pesticides containing glyphosate may be applied only by 
professionals with a specific licence.  
17 Pesticides containing glyphosate may be placed on the market in various ways 
but, according to the referring court, that does not mean that there are several 
products to be considered separately. A pesticide containing glyphosate is not a 
different product depending on whether it is applied by a user in the general sense 
or by a licensed professional user. The actual object of the contested legislation is 
to prohibit the use of pesticides containing glyphosate by unlicensed users on land 
in private use. The question which arises in relation to such a prohibition is 
whether it constitutes a ‘technical regulation’ within the meaning of Directive 
2015/1535.