Opinion of the Advocate General — ECLI:EU:C:2020:422
Date: 2020-06-04
Language of the case: French
Subject matter: Agriculture and Fisheries;Approximation of laws;Public health
Procedure: Reference for a preliminary ruling
Origin: France

summary or the 
references of all relevant data relating to the substance, preparation or product 
concerned and to known and available substitutes, where such information may be 
available, and communicate the anticipated effects of the measure on public 
health and the protection of the consumer and the environment, together with an 
analysis of the risk carried out as appropriate in accordance with the principles 
provided for in the relevant part of Section II.3 of Annex XV to Regulation (EC) 
No 1907/2006 of the European Parliament and of the Council. ... 2. The 
Commission and the Member States may make comments to the Member State 
which has forwarded a draft technical regulation; that Member States shall take 
such comments into account as far as possible in the subsequent preparation of 
the technical regulationʼ. Under Article 6 of the same directive: ʻ1. Member States 
shall postpone the adoption of a draft technical regulation for three months from 
the date of receipt by the Commission of the communication referred to in 
Article 5(1). ... 3. [Or. 7] With the exclusion of draft rules relating to services, 
Member States shall postpone the adoption of a draft technical regulation for 12 
months from the date of receipt by the Commission of the communication referred 
to in Article 5(1) of this Directive, if, within three months of that date, the 
Commission announces its intention to propose or adopt a directive, regulation or 
decision on the matter in accordance with Article 288 TFEU. ... 7. Paragraphs 1 
to 5 shall not apply in cases where: (a) for urgent reasons, occasioned by serious 
and unforeseeable circumstances relating to the protection of public health or 
safety, the protection of animals or the preservation of plants, and for rules on 
services, also for public policy, in particular the protection of minors, a Member 
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State is obliged to prepare technical regulations in a very short space of time in 
order to enact and introduce them immediately without any consultations being 
possible ... ʼ. 
9 It is clear, first, from the provisions of Articles 5 and 6 of Directive 2015/1535, 
cited above, that, like the emergency procedure provided for in Articles 69 and 71 
of Regulation No 1107/2009, the Member State must inform the European 
Commission and the other Member States of matters relating to the grounds of 
public health, protection of consumers or the environment which justify limiting 
the marketing or use of a substance, preparation or chemical product. In the 
absence of a request from the European Commission for the postponement of the 
adoption of the notified draft technical regulation, in particular where it gives 
notice of its intention to propose or adopt directive, regulation or decision in 
accordance with Article 6(3) [of Directive 2015/1535], the Member State may 
definitively adopt the draft three months after it has been notified.  
10 It is also clear, from the provisions of Articles 69 and 71 of Regulation 
No 1107/2009, that if, following official notification from a Member State of the 
need to adopt emergency measures to prohibit the use of a product or an active 
substance, the European Commission does not take such measures, the Member 
State may adopt interim protective measures pending the adoption of Community 
measures.  
11 It is apparent from the documents in the file that the French Government notified 
the European Commission on 2 February 2017 of the draft contested decree on the 
basis of the fourth [subparagraph] of Article 5[1] of Directive 2015/1535 of 
9 September 2015 laying down a procedure for the provision of information in the 
field of technical regulations and not on the basis of Regulation No 1107/2009 of 
21 October 2009 concerning the placing of plant protection products on the 
market. In that notification, however, the French Government justified the 
prohibition of the use of plant protection products containing one or more of the 
substances of the neonicotinoid family and of seeds treated with those products, 
by referring to several scientific studies ʻpointing to a significant impact of 
neonicotinoids on many environmental spheres, on non-target organisms such as 
bees, macro-invertebrates or birdsʼ and to a study by the European Food Safety 
Agency which ʻidentifies a risk to human health (impact on the development of 
the nervous system)ʼ. In its reply of 3 August 2017 to the notification of the draft, 
the Commission, which refers to Regulation No 1107/2009, states that it ʻshares 
France’s concerns relating to certain substances of the neonicotinoid family and 
to the risks which those substances present for beesʼ and points out that ʻthe EFSA 
has published findings concerning those three substances, drawing attention to 
other possible risks, thereby prompting the Commission to consider the need to 
implement further restrictionsʼ. [Or. 8] 
12 The lawfulness of the contested decree therefore depends on whether … [wording 
of the first question] 
UNION DES INDUSTRIES DE LA PROTECTION DES PLANTES 
 
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13 … [wording of the second question] 
14 … [wording of the third question] 
15 These questions raise a difficult and serious problem of interpretation of EU law. 
It is necessary to refer them to the Court of Justice of the European Union and to 
stay the proceedings on the application of the Union des industries de la protection 
des plantes. 
THE CONSEIL D’ÉTAT DECIDES: 
Article 1: … [decision on the interventions] 
Article 2: The following questions are referred to the Court of Justice of the 
European Union: 
1. Where a national measure designed to restrict the use of active substances 
has been formally notified to the Commission on the basis of Article 5 of 
Directive [Or. 9] 2015/1535/EU of 9 September 2015, together, however, 
with a presentation of the information which leads the Member State to take 
the view that the substance is likely to constitute a serious risk to human or 
animal health or to the environment and that that risk can be adequately 
controlled, as the legislation currently stands, only by measures taken by the 
Member State, a presentation sufficiently clear for the Commission not to 
make the mistake of thinking that that notification has been made on the 
basis of Regulation No 1107/2009 of 21 October 2009, can the European 
Commission regard that notification as having been submitted under the 
procedure laid down in Articles 69 and 71 of that regulation and adopt, as 
appropriate, additional measures of enquiry satisfying both the requirements 
of that legislation and the concerns expressed by that Member State?  
2. If the answer to that question is in the affirmative, must Implementing 
Regulations 2018/783, 2018/784 and 2018/785 of 29 May 2018 prohibiting 
the use of the substances thiamethoxam, clothianidin and imidacloprid, from 
19 December 2018, with the exception of treatments for crops staying within 
permanent greenhouses during their entire life-cycle, be regarded as 
measures taken in response to the application made by France on 2 February 
2017 for the general prohibition of the use of plant protection products 
containing one or more substances belonging to the neonicotinoid family 
and of seeds treated with those products?  
3. If the answer to the previous question is in the affirmative, what can a 
Member State do if it has asked the Commission, pursuant to Article 69 of 
Regulation No 1107/2009, to take measures to restrict or prohibit the use of 
plant protection products containing one or more substances of the 
neonicotinoid family and of seeds treated with those products, and the 
Commission complies only in part with its request by not restricting the use 
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of all the substances belonging to the neonicotinoid family but by restricting 
the use of three of them?  
Article 3: The proceedings are stayed … 
Article 4: … [notification to the parties] 
...