Opinion of the Advocate General — ECLI:EU:C:2012:28
Date: 2012-01-19
Language of the case: French
Subject matter: Agriculture and Fisheries;External relations;International agreements
Procedure: Reference for a preliminary ruling
Origin: France

summary, it must be stated that even following the adoption of Directive 2009/145 on derogations for vegetables, disadvantages remain for economic operators and consumers whose access to old varieties that are not accepted is impeded. Those disadvantages — irrespective of any disadvantages for biodiversity — are manifestly disproportionate to the advantages of the prohibition, without any attempt having been made by the legislature to attain a balance. d) Interim conclusion 104. For that reason, it must be concluded that the disadvantages of the prohibition against the sale of seed of varieties that are not demonstrably distinct, stable and sufficiently uniform and, where appropriate, of satisfactory value for cultivation and use, established in Article 3(1) of the Vegetable Seed Directive, are disproportionate to its aims. Consequently, that provision is invalid. 3. Freedom to pursue an economic activity 105. In addition, it must be clarified whether the prohibition at issue is compatible with the fundamental right to pursue an economic activity. 106. The freedom to pursue an economic activity is protected as the freedom to conduct a business as laid down in Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter of Fundamental Rights’ or ‘the Charter’), which, since the Treaty of Lisbon, has the same legal value as the Treaties, pursuant to the first subparagraph of Article 6(1) TEU. (43) The Court had already recognised that fundamental right as part of the freedom to pursue a trade or profession. (44) 107. It is clear that the rules on the marketing of seed restrict that freedom. Unless a variety has been accepted, its seed may not be marketed, nor can it be purchased for growing. 108. According to Article 52 of the Charter of Fundamental Rights, any limitation on the exercise of the rights and freedoms recognised by that charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. (45) 109. Consequently, justification for interference with the freedom to conduct a business must satisfy the requirements of the principle of proportionality. (46) As it has already been established that the sales prohibition is disproportionate, in principle, it also infringes the fundamental right to pursue an economic activity. 110. However, in applying the principle of proportionality to justify a limitation on the right to pursue an economic activity, consideration must be given to the fact that not all the disadvantages resulting from the sales prohibition are to be balanced against its aims but only the interference with the fundamental right at issue, that is, above all, the restrictions for seed producers, seed merchants and farmers identified in point 82. However, on this limited assessment also, I conclude that the sales prohibition is manifestly disproportionate. 111. For that reason, the restriction on the freedom to conduct a business, within the meaning of Article 16 of the Charter, which results from Article 3(1) of the Vegetable Seed Directive is not justified for the purposes of Article 52(1) of the Charter. Consequently, the provision at issue is invalid also by reason of its infringement of that fundamental right. 4. Free movement of goods 112. In addition, the prohibition against the marketing of seed of varieties that are not accepted might be contrary to the free movement of goods. 113. The prohibition of quantitative restrictions and of all measures having equivalent effect established in Article 34 TFEU applies not only to national measures but also to measures adopted by EU institutions. (47) 114. The prohibition at issue necessarily results in a restriction of trade. As that restriction, too, is justified only if it satisfies the principle of proportionality, (48) to that extent, my reasoning above (49) also applies here. 5. Equal treatment or non-discrimination 115. Finally, the prohibition at issue must be assessed for compatibility with the principle of equal treatment or non-discrimination. That principle, now also enshrined in Article 20 of the Charter of Fundamental Rights, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. (50) A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment. (51) The provision concerned must therefore be proportionate to the differences and similarities of the particular situation. (52) 116. The difference in treatment in the present case arises from the circumstance that seed of accepted varieties may be sold, whereas seed of varieties that are not accepted may not. The sales prohibition is based on the fact that the criteria for acceptance have not been established. The absence of such proof constitutes a difference between the varieties which, in principle, would also justify a difference in treatment; for example, a special labelling requirement for the seed of varieties that are not accepted. 117. However, as I have already set out, the disadvantages of a sales prohibition are disproportionate to the aims of the scheme. Consequently, the difference in treatment is not justified and the prohibition at issue must be regarded as invalid also on the ground of breach of the principle of equal treatment. 6. Conclusion 118. As an interim conclusion, it must be stated that the prohibition against the sale of seed of varieties that are not demonstrably distinct, stable and sufficiently uniform and, where appropriate, of satisfactory value for cultivation and use, established in Article 3(1) of the Vegetable Seed Directive, is invalid as it breaches the principle of proportionality, the freedom to conduct a business within the meaning of Article 16 of the Charter of Fundamental Rights, the free movement of goods established in Article 34 TFEU and the principle of equal treatment within the meaning of Article 20 of the Charter. D – Varieties Catalogue Directive 119. Finally, it must be examined whether the outcome of the review of Article 3(1) of the Vegetable Seed Directive must be applied to the Varieties Catalogue Directive. 120. Unlike Article 3(1) of the Vegetable Seed Directive, the Varieties Catalogue Directive does not expressly provide that seed may be marketed only if its variety is officially accepted. 121. According to Article 1(1), the Varieties Catalogue Directive governs the acceptance of varieties the seed of which may be marketed. In connection with the criteria for acceptance, Article 3(1) also refers to ‘varieties officially accepted for ... marketing’. 122. Those provisions of the Varieties Catalogue Directive could be read as permitting only the seed of accepted varieties to be marketed. A prohibition of that kind would be invalid for the same reasons as apply in the case of Article 3(1) of the Vegetable Seed Directive. However, that interpretation is not mandatory. 123. Instead, one could interpret acceptance simply as a condition for the inclusion of a variety in the catalogue and as proof that the acceptance criteria are satisfied. This approach is preferable as, according to a general principle of interpretation, an act of the European Union must be interpreted, as far as possible, in such a way as not to affect its validity.(53) 124. As such an interpretation in conformity with fundamental rights is possible, the validity of the Varieties Catalogue Directive is not called into question. V – Conclusion 125. In the light of the foregoing, I propose that the Court should rule as follows: (1) The prohibition against the sale of seed of varieties that are not demonstrably distinct, stable and sufficiently uniform and, where appropriate, of satisfactory value for cultivation and use, established in Article 3(1) of Council Directive 2002/55/EC of 13 June 2002 on the marketing of vegetable seed, is invalid as it breaches the principle of proportionality, the freedom to conduct a business within the meaning of Article 16 of the Charter of Fundamental Rights of the European Union, the free movement of goods established in Article 34 TFEU and the principle of equal treatment within the meaning of Article 20 of the Charter of Fundamental Rights. (2) By contrast, consideration of the reference for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of the remaining provisions of Directive 2002/55 or the validity of Council Directive 98/95/EC of 14 December 1998 amending, in respect of the consolidation of the internal market, genetically modified plant varieties and plant genetic resources, Directives 66/400/EEC, 66/401/EEC, 66/402/EEC, 66/403/EEC, 69/208/EEC, 70/457/EEC and 70/458/EEC on the marketing of beet seed, fodder plant seed, cereal seed, seed potatoes, seed of oil and fibre plants and vegetable seed and on the common catalogue of varieties of agricultural plant species, Council Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of agricultural plant species and Commission Directive 2009/145/EC of 26 November 2009 providing for certain derogations, for acceptance of vegetable landraces and varieties which have been traditionally grown in particular localities and regions and are threatened by genetic erosion and of vegetable varieties with no intrinsic value for commercial crop production but developed for growing under particular conditions and for marketing of seed of those landraces and varieties. 1 – Original language: German. 2 – Decision 2004/860/EC (OJ 2004 L 378, p. 1). 3 – OJ 2004 L 378, p. 3. 4 – Articles 3 and 4 of Council Directive 70/458/EEC of 29 September 1970 on the marketing of vegetable seed (OJ, English Special Edition 1970 (III), p. 674). 5 – See Council Directive 66/400/EEC of 14 June 1966 on the marketing of beet seed (OJ, English Special Edition 1965-1966, p. 124), Council Directive 66/401/EEC of 14 June 1966 on the marketing of fodder plant seed (OJ, English Special Edition 1965-1966, p. 132) and Council Directive 66/402/EEC of 14 June 1966 on the marketing of cereal seed (OJ, English Special Edition 1965-1966, p. 143). 6 – Relevant documents and submissions of various authorities and interest groups can be found on the Commission’s website at http://ec.europa.eu/food/plant/propagation/evaluation/index_en.htm (last visited on 16 January 2012). 7 – OJ 2002 L 193, p. 33. 8 – OJ 2009 L 312, p. 44. 9 – OJ 2003 L 254, p. 11. 10 – OJ 2002 L 193, p. 1. 11 – OJ 2002 L 193, p. 12. 12 – OJ 1999 L 25, p. 1. 13 – See, for example, Joined Cases C‑483/09 and C‑1/10 Gueyeand Salmerón Sánchez [2011] ECR I‑8263, paragraph 40. 14 – Case 101/78 Granaria [1979] ECR 623, paragraph 4; Case C‑475/01 Commission v Greece [2004] ECR I‑8923, paragraph 18; and Case C‑199/06 CELF and Ministre de la Culture et de la Communication [2008] ECR I‑469, paragraph 59. 15 – See, on the review of implementing legislation in the light of national constitutional law, Joined Cases C‑188/10 and C‑189/10 Melkiand Abdeli [2010] ECR I‑5667, paragraph 56. 16 – See the facts of Case C‑434/02 Arnold André [2004] ECR I‑11825, paragraph 20; Joined Cases C‑154/04 and C‑155/04 Alliance for Natural Health and Others [2005] ECR I‑6451, paragraph 21; Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraphs 17, 22 et seq. and 34; and Case C‑236/09 Association belge des Consommateurs Test-Achats and Others [2011] ECR I‑773, paragraph 12. 17 – Paragraph 146 of its written observations. 18 – Ibid, paragraph 147 et seq. 19 – Paragraph 95 of the written observations of the Commission. 20 – See Food Chain Evaluation Consortium, ‘Evaluation of the Community acquis on the marketing of seed and plant propagating material (S&PM)’, available online at http://ec.europa.eu/food/plant/propagation/evaluation/s_pm_evaluation_finalreport_en.pdf, 2008, pp. 78 and 168 et seq. 21 – The first-instance application of Graines Baumaux mentions five varieties of ‘betteraves’ and four varieties of ‘navets’ (see pp. 25 and 26 of the annexes thereto). 22 – Case C‑461/03 Gaston Schul Douane-expediteur [2005] ECR I‑10513, paragraph 19 et seq. 23 – Case C‑308/06 Intertanko and Others [2008] ECR I‑4057, paragraph 43 et seq., and Case C‑366/10 Air Transport Association of America and Others [2011] ECR I‑13755, paragraph 51 et seq. 24 – On that issue, see my Opinion in Air Transport Association of America and Others, cited in footnote 23, point 68 et seq. 25 – Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 81; Case C‑558/07 S.P.C.M. and Others [2009] ECR I‑5783, paragraph 41; and Case C‑343/09 Afton Chemical [2010] ECR I‑7027, paragraph 45 and the case‑law cited. 26 – See S.P.C.M. and Others, paragraph 42, and Afton Chemical, paragraph 46, both cited in footnote 25. 27 – S.P.C.M. and Others, cited in footnote 25, paragraph 71. 28 – See the review carried out in S.P.C.M. and Others, cited in footnote 25, on the objectives and appropriateness of the measure (paragraph 44 et seq.), its necessity (paragraph 59 et seq.), and weighing the disadvantages against the aims (paragraph 64 et seq.). 29 – Case C‑127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I-9895, paragraph 58; Case C‑58/08 Vodafone and Others [2010] ECR I‑4999, paragraph 53; and Case C‑176/09 Luxembourg v Parliament and Council [2011] ECR I‑3727, paragraph 63. 30 – See the definition of that value in Article 5(4) of the Varieties Catalogue Directive. 31 – See also the fourth of five scenarios put forward by the Commission for discussion in its consultation document ‘Options and Analysis of Possible Scenarios for the Review of the EU Legislation on the Marketing of Seed and Plant Propagating Material’ at http://ec.europa.eu/food/plant/propagation/evaluation/docs/15042011_options_analysis_paper_en.pdf, pp. 12 and 13. 32 – See point 70 above. 33 – This is questionable in the light of my conclusions below on appropriateness (point 88 et seq.) and on the free movement of goods (point 112 et seq.). 34 – Regulation of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1). 35 – Afton Chemical, cited in footnote 25, paragraph 56. See also S.P.C.M. and Others, cited in footnote 25, paragraph 64 et seq., and Joined Cases C‑92/09 and C‑93/09 Volker und Markus Scheckeand Eifert [2010] ECR I‑11063, paragraphs 77 and 81, and the case‑law cited in footnote 29. 36 – See point 45 above. 37 – OJ 1993 L 309, p. 3. 38 – Case C‑67/97 Bluhme [1998] ECR I‑8033, paragraph 33. 39 – See point 75 above. 40 – In the European Union this matter is governed by Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1). 41 – Case C‑2/92 Bostock [1994] ECR I‑955, paragraph 16; Case C‑540/03 Parliament v Council [2006] ECR I‑5769, paragraph 105; and Case C‑35/09 Speranza [2010] ECR I‑6581, paragraph 28. 42 – See Case 137/85 Maizena and Others [1987] ECR 4587, paragraph 15, and Speranza, cited in footnote 41, paragraph 29. 43 – Case C‑555/07 Kücükdeveci [2010] ECR I‑365, paragraph 22, and Case C‑279/09 DEB [2010] ECR I‑13849, paragraph 30. 44 – Case 4/73 Nold v Commission [1974] ECR 491, paragraph 14; Case C‑280/93 Germany v Council [1994] ECR I‑4973, paragraph 78; and Case C‑548/09 P Bank Melli Iran v Council [2011] ECR I‑11381, paragraph 114. 45 – See, in a similar vein, the case‑law cited in footnote 44. On the assessment of such justification, see Volker und Markus Schecke and Eifert, cited in footnote 35, paragraph 65 et seq. 46 – Alliance for Natural Health and Others, cited in footnote 16, paragraph 129; ABNA and Others, cited in footnote 16, paragraph 87 et seq.; and, in relation to data protection, Volker und Markus Schecke and Eifert, cited in footnote 35, paragraph 74. 47 – Case 15/83 Denkavit Nederland [1984] ECR 2171, paragraph 15, and Alliance for Natural Health and Others, cited in footnote 16, paragraph 47. 48 – On reviewing the validity of secondary law, see Case 240/83 ADBHU [1985] ECR 531, paragraph 15; Case C‑114/96 Kieffer and Thill [1997] ECR I‑3629, paragraph 31; and, more generally, Case 302/86 Commission v Denmark [1988] ECR 4607, paragraph 11, and, in relation to appropriateness, paragraph 21; and also Case C‑320/03 Commission v Austria [2005] ECR I‑9871, paragraphs 85 and 90. 49 – See point 110 above. 50 – Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 95; S.P.C.M.and Others, cited in footnote 25, paragraph 74; and Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others [2010] ECR I‑8301, paragraph 55. 51 – Arcelor Atlantique et Lorraine and Others, cited in footnote 29, paragraph 47. 52 – See the Opinion of Advocate General Poiares Maduro in Case C‑524/06 Huber [2008] ECR I‑9705, point 7, and my Opinion in Case C‑540/03 Parliament v Council [2006] ECR I‑5769, point 107 and the case‑law cited, and in S.P.C.M. and Others, cited in footnote 25, point 134. 53 – Case C‑403/99 Italy v Commission [2001] ECR I‑6883, paragraph 37; Joined Cases C‑402/07 and C‑432/07 Sturgeon and Others [2009] ECR I‑10923, paragraph 47; and Case C‑149/10 Chatzi [2010] ECR I‑8489, paragraph 43.