Judgment of the Court of 17 December 1981. - Criminal proceedings against Frans-Nederlandse Maatschappij voor Biologische Producten BV. - Reference for a preliminary ruling: Gerechtshof 's-Gravenhage - Netherlands. - Plant protection products - Approval - Measures having equivalent effect. - Case 272/80.



European Court reports 1981 Page 03277

Swedish special edition Page 00257

Finnish special edition Page 00267



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

FREE MOVEMENT OF GOODS - EXCEPTIONS - PROTECTION OF THE HEALTH OF HUMANS - RULES GOVERNING APPROVAL OF PLANT PROTECTION PRODUCTS - REQUIREMENT OF APPROVAL FOR IMPORTED PRODUCTS WHICH HAVE ALREADY BEEN APPROVED IN ANOTHER MEMBER STATE - WHETHER PERMISSIBLE - LIMITS

( EEC TREATY , ARTS 30 AND 36 )

Summary

IT FOLLOWS FROM ARTICLE 30 IN CONJUNCTION WITH ARTICLE 36 OF THE EEC TREATY THAT A MEMBER STATE IS NOT PROHIBITED FROM REQUIRING PLANT PROTECTION PRODUCTS TO BE SUBJECT TO PRIOR APPROVAL , EVEN IF THOSE PRODUCTS HAVE ALREADY BEEN APPROVED IN ANOTHER MEMBER STATE . THE AUTHORITIES OF THE IMPORTING STATE ARE HOWEVER NOT ENTITLED UNNECESSARILY TO REQUIRE TECHNICAL OR CHEMICAL ANALYSES OR LABORATORY TESTS WHEN THE SAME ANALYSES OR TESTS HAVE ALREADY BEEN CARRIED OUT IN ANOTHER MEMBER STATE AND THEIR RESULTS ARE AVAILABLE TO THOSE AUTHORITIES OR MAY AT THEIR REQUEST BE PLACED AT THEIR DISPOSAL .

A MEMBER STATE OPERATING AN APPROVALS PROCEDURE MUST ENSURE THAT NO UNNECESSARY CONTROL EXPENSES ARE INCURRED IF THE PRACTICAL EFFECTS OF THE CONTROL CARRIED OUT IN THE MEMBER STATE OF ORIGIN SATISFY THE REQUIREMENTS OF THE PROTECTION OF PUBLIC HEALTH IN THE IMPORTING MEMBER STATE . ON THE OTHER HAND , THE MERE FACT THAT THOSE EXPENSES WEIGH MORE HEAVILY ON A TRADER MARKETING SMALL QUANTITIES OF AN APPROVED PRODUCT THAN ON HIS COMPETITOR WHO MARKETS MUCH GREATER QUANTITIES DOES NOT JUSTIFY THE CONCLUSION THAT SUCH EXPENSES CONSTITUTE ARBITRARY DISCRIMINATION OR A DISGUISED RESTRICTION WITHIN THE MEANING OF ARTICLE 36 .

Parties

IN CASE 272/80

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE SIXTH CHAMBER OF THE GERECHTSHOF ( REGIONAL COURT OF APPEAL ), THE HAGUE , FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS PENDING BEFORE THAT COURT AGAINST

FRANS-NEDERLANDSE MAATSCHAPPIJ VOOR BIOLOGISCHE PRODUCTEN BV , WHOSE REGISTERED OFFICE IS AT 54 OUDORPWEG , ROTTERDAM ,

Subject of the case

ON THE INTERPRETATION OF ARTICLE 30 OF THE EEC TREATY IN THE LIGHT OF THE NETHERLANDS LAW OF 1962 RELATING TO PLANT PROTECTION PRODUCTS ,

Grounds

1 BY JUDGMENT OF 29 OCTOBER 1980 , WHICH WAS RECEIVED BY THE COURT ON 10 DECEMBER 1980 , THE GERECHTSHOF ( REGIONAL COURT OF APPEAL ), THE HAGUE , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION RELATING TO THE INTERPRETATION OF ARTICLES 30 AND 36 OF THE EEC TREATY SO AS TO ENABLE IT TO DETERMINE WHETHER THE NETHERLANDS LEGISLATION RELATING TO THE APPROVAL OF PLANT PROTECTION PRODUCTS IS COMPATIBLE WITH COMMUNITY LAW .

2 THIS QUESTION WAS RAISED IN THE COURSE OF AN APPEAL AGAINST THE SENTENCE , IMPOSED AT FIRST INSTANCE , FINING FRANS-NEDERLANDSE MAATSCHAAPIJ VOOR BIOLOGISCHE PRODUKTEN BV FOR AN OFFENCE CONTRARY TO THE FIRST PARAGRAPH OF ARTICLE 2 OF THE BESTRIJDINGSMIDDELENWET ( LAW RELATING TO PLANT PROTECTION PRODUCTS ), 1962 , WHICH PROHIBITS THE SALE , STORAGE OR USE AS A PLANT PROTECTION PRODUCT OF A PRODUCT WHICH HAS NOT BEEN APPROVED PURSUANT TO THAT LAW .

3 THE COMPANY CONCERNED HAD IMPORTED , SOLD OR SUPPLIED IN THE NETHERLANDS A QUANTITY OF A PLANT PROTECTION PRODUCT CALLED ' ' FUMICOT FUMISPORE ' ' , CONTAINING AS AN ACTIVE SUBSTANCE A TOXIC PRODUCT , PARAHYDROXYPHENYL-SALICYLAMIDE . THAT PLANT PROTECTION PRODUCT HAD ALREADY BEEN LAWFULLY MARKETED IN FRANCE BUT HAD NOT RECEIVED THE APPROVAL WHICH IS REQUIRED IN THE NETHERLANDS IN ACCORDANCE WITH THE ABOVE-MENTIONED LAW .

4 THE SYSTEM OF APPROVAL IN FORCE IN THE NETHERLANDS WAS ESTABLISHED BY THE LAW OF 1962 IN ORDER TO PROTECT PUBLIC HEALTH . THAT SYSTEM PROHIBITS , IN PRINCIPLE , THE USE OF SUCH PRODUCTS WITHOUT PRIOR APPROVAL . THE CONDITIONS FOR APPROVAL RELATE TO THE COMPOSITION , EFFECTIVENESS AND HARMLESSNESS OF THOSE PRODUCTS AS WELL AS TO THE INFORMATION FOR USERS SET OUT ON THEIR PACKAGING . THE COSTS RELATING TO LABORATORY EXAMINATIONS WERE , UNDER THE LEGISLATION IN FORCE AT THE TIME OF THE ALLEGED OFFENCES , TO BE BORNE BY THE APPLICANT .

5 THE COMPANY CONCERNED HAS CONTENDED THAT THE SYSTEM OF APPROVAL IN QUESTION IS INCOMPATIBLE WITH THE PROVISIONS OF COMMUNITY LAW PROHIBITING QUANTITATIVE RESTRICTIONS ON IMPORTS AND MEASURES HAVING EQUIVALENT EFFECT , AND THAT THEREFORE A PROSECUTION BROUGHT UNDER THAT SYSTEM CANNOT BE WELL FOUNDED .

6 TO ENABLE IT TO DECIDE THIS ISSUE , THE GERECHTSHOF HAS REFERRED THE FOLLOWING QUESTION TO THE COURT :

' ' IS THE SCHEME OF THE NETHERLANDS LAW OF 1962 RELATING TO PLANT PROTECTION PRODUCTS COMPATIBLE WITH ARTICLE 30 OF THE EEC TREATY IN SO FAR AS THAT LAW PROHIBITS THE MARKETING IN THE NETHERLANDS OF A PRODUCT ORIGINATING IN ANOTHER MEMBER STATE IN WHICH THAT PRODUCT HAS BEEN LAWFULLY MARKETED AND IN WHICH IT MEETS THE LEGISLATIVE REQUIREMENTS WHICH PROTECT THE SAME OVERRIDING REQUIREMENTS OF PUBLIC HEALTH AS THE NETHERLANDS LAW?

' '

7 THE COMMISSION MAINTAINS THAT SO LONG AS NO RECOGNITION OF APPROVALS IN THE FIELD OF PLANT PROTECTION PRODUCTS HAS BEEN ESTABLISHED AT COMMUNITY LEVEL , MEMBER STATES ARE FREE TO PROHIBIT , IN THE INTERESTS OF PUBLIC HEALTH , THE IMPORTATION AND MARKETING OF SUCH PRODUCTS ORIGINATING IN ANOTHER MEMBER STATE IN WHICH THEY HAVE BEEN LAWFULLY MARKETED .

8 THE DANISH , ITALIAN AND NETHERLANDS GOVERNMENTS AND THE UNITED KINGDOM EMPHASIZE THE DANGERS WHICH THOSE PRODUCTS ARE CAPABLE OF CAUSING TO HEALTH AND THE ENVIRONMENT IN GENERAL AND DRAW ATTENTION TO THE DIFFERENCES IN CONTROLS WHICH RESULT IN PARTICULAR FROM THE DIVERSITY OF CLIMATIC CONDITIONS . WITHOUT DENYING THAT SUCH NATIONAL RULES MAY CONSTITUTE AN OBSTACLE TO TRADE BETWEEN MEMBER STATES , THEY CONSIDER THAT RULES OF THAT KIND ARE LAWFUL UNDER THE EXCEPTION PROVIDED FOR BY ARTICLE 36 OF THE EEC TREATY IN THE CASE OF THE OVERRIDING CONSIDERATIONS OF THE PROTECTION OF PUBLIC HEALTH .

9 WHILST IT IS NOT FOR THE COURT , IN PROCEEDINGS BROUGHT UNDER ARTICLE 177 OF THE EEC TREATY , TO PRONOUNCE UPON THE COMPATIBILITY OF RULES OF NATIONAL LAW WITH PROVISIONS OF COMMUNITY LAW , IT DOES HAVE JURISDICTION TO PROVIDE THE NATIONAL COURT WITH ALL MATERIAL CONCERNING THE INTERPRETATION OF COMMUNITY LAW WHICH WILL ENABLE THAT COURT TO JUDGE WHETHER THOSE RULES ARE COMPATIBLE WITH THE RULE OF COMMUNITY LAW IN QUESTION . THE QUESTION SHOULD THEREFORE BE CONSTRUED AS ASKING , ESSENTIALLY , WHETHER , AND IF SO TO WHAT EXTENT , THE SYSTEM AND THE DETAILED PROCEDURES GOVERNING THE APPROVAL OF PLANT PROTECTION PRODUCTS ARE JUSTIFIED IN THE LIGHT OF THE REQUIREMENTS OF ARTICLES 30 AND 36 OF THE EEC TREATY .

10 ALTHOUGH THE QUESTION , AS PUT TO THE COURT , MERELY CONCERNS THE INTERPRETATION OF ARTICLE 30 OF THE TREATY , IT IS NECESSARY , FOR THE PURPOSE OF ANSWERING IT , TO CONSIDER THE SYSTEM WHICH EMERGES FROM THE GENERAL RULE LAID DOWN BY THAT ARTICLE IN CONJUNCTION WITH THE DEROGATION FROM IT CONTAINED IN ARTICLE 36 OF THE TREATY .

11 UNDER ARTICLE 30 OF THE EEC TREATY QUANTITATIVE RESTRICTIONS ON IMPORTS AS WELL AS ALL MEASURES HAVING EQUIVALENT EFFECT BETWEEN MEMBER STATES ARE PROHIBITED . THAT GENERAL RULE , HOWEVER , INCLUDES A REFERENCE , IN PARTICULAR , TO ARTICLE 36 , ACCORDING TO WHICH THE PROVISIONS OF ARTICLES 30 TO 34 ARE NOT TO PRECLUDE PROHIBITIONS OR RESTRICTIONS ON IMPORTS WHICH ARE JUSTIFIED INTER ALIA ON GROUNDS OF ' ' THE PROTECTION OF HEALTH AND LIFE OF HUMANS , ANIMALS OR PLANTS ' ' . THE LAST SENTENCE OF ARTICLE 36 STATES , HOWEVER , THAT ' ' SUCH PROHIBITIONS OR RESTRICTIONS SHALL , HOWEVER , NOT CONSTITUTE A MEANS OF ARBITRARY DISCRIMINATION OR A DISGUISED RESTRICTION ON TRADE BETWEEN MEMBER STATES . ' '

12 IT SHOULD BE NOTED THAT , AT THE TIME OF THE ALLEGED OFFENCES , THERE WERE NO COMMON OR HARMONIZED RULES RELATING TO THE PRODUCTION OR MARKETING OF PLANT PROTECTION PRODUCTS . IN THE ABSENCE OF HARMONIZATION , IT WAS THEREFORE FOR THE MEMBER STATES TO DECIDE WHAT DEGREE OF PROTECTION OF THE HEALTH AND LIFE OF HUMANS THEY INTENDED TO ASSURE AND IN PARTICULAR HOW STRICT THE CHECKS TO BE CARRIED OUT WERE TO BE ( JUDGMENT OF THE COURT OF 20 MAY 1976 IN CASE 104/75 DE PEIJPER ( 1976 ) ECR 613 AT P . 635 ), HAVING REGARD HOWEVER TO THE FACT THAT THEIR FREEDOM OF ACTION IS ITSELF RESTRICTED BY THE TREATY .

13 IN THAT RESPECT , IT IS NOT DISPUTED THAT THE NATIONAL RULES IN QUESTION ARE INTENDED TO PROTECT PUBLIC HEALTH AND THAT THEY THEREFORE COME WITHIN THE EXCEPTION PROVIDED FOR BY ARTICLE 36 . THE MEASURES OF CONTROL APPLIED BY THE NETHERLANDS AUTHORITIES , IN PARTICULAR AS REGARDS THE APPROVAL OF THE PRODUCT , MAY NOT THEREFORE BE CHALLENGED IN PRINCIPLE . HOWEVER , THAT LEAVES OPEN THE QUESTION WHETHER THE DETAILED PROCEDURES GOVERNING APPROVALS , AS INDICATED BY THE NATIONAL COURT , MAY POSSIBLY CONSTITUTE A DISGUISED RESTRICTION , WITHIN THE MEANING OF THE LAST SENTENCE OF ARTICLE 36 , ON TRADE BETWEEN MEMBER STATES , IN VIEW , ON THE ONE HAND , OF THE DANGEROUS NATURE OF THE PRODUCT AND , ON THE OTHER HAND , OF THE FACT THAT IT HAS BEEN THE SUBJECT OF A PROCEDURE FOR APPROVAL IN THE MEMBER STATE WHERE IT HAS BEEN LAWFULLY MARKETED .

14 WHILST A MEMBER STATE IS FREE TO REQUIRE A PRODUCT OF THE TYPE IN QUESTION , WHICH HAS ALREADY RECEIVED APPROVAL IN ANOTHER MEMBER STATE , TO UNDERGO A FRESH PROCEDURE OF EXAMINATION AND APPROVAL , THE AUTHORITIES OF THE MEMBER STATES ARE NEVERTHELESS REQUIRED TO ASSIST IN BRINGING ABOUT A RELAXATION OF THE CONTROLS EXISTING IN INTRA-COMMUNITY TRADE . IT FOLLOWS THAT THEY ARE NOT ENTITLED UNNECESSARILY TO REQUIRE TECHNICAL OR CHEMICAL ANALYSES OR LABORATORY TESTS WHERE THOSE ANALYSES AND TESTS HAVE ALREADY BEEN CARRIED OUT IN ANOTHER MEMBER STATE AND THEIR RESULTS ARE AVAILABLE TO THOSE AUTHORITIES , OR MAY AT THEIR REQUEST BE PLACED AT THEIR DISPOSAL .

15 FOR THE SAME REASONS , A MEMBER STATE OPERATING AN APPROVALS PROCEDURE MUST ENSURE THAT NO UNNECESSARY CONTROL EXPENSES ARE INCURRED IF THE PRACTICAL EFFECTS OF THE CONTROL CARRIED OUT IN THE MEMBER STATE OF ORIGIN SATISFY THE REQUIREMENTS OF THE PROTECTION OF PUBLIC HEALTH IN THE IMPORTING MEMBER STATE . ON THE OTHER HAND , THE MERE FACT THAT THOSE EXPENSES WEIGH MORE HEAVILY ON A TRADER MARKETING SMALL QUANTITIES OF AN APPROVED PRODUCT THAN ON HIS COMPETITOR WHO MARKETS MUCH GREATER QUANTITIES , DOES NOT JUSTIFY THE CONCLUSION THAT SUCH EXPENSES CONSTITUTE ARBITRARY DISCRIMINATION OR A DISGUISED RESTRICTION WITHIN THE MEANING OF ARTICLE 36 .

16 THE REPLY TO BE GIVEN TO THE QUESTION SUBMITTED TO THE COURT MUST THEREFORE BE THAT IT FOLLOWS FROM ARTICLE 30 IN CONJUNCTION WITH ARTICLE 36 OF THE TREATY THAT A MEMBER STATE IS NOT PROHIBITED FROM REQUIRING PLANT PROTECTION PRODUCTS TO BE SUBJECT TO PRIOR APPROVAL , EVEN IF THOSE PRODUCTS HAVE ALREADY BEEN APPROVED IN ANOTHER MEMBER STATE . THE AUTHORITIES OF THE IMPORTING STATE ARE HOWEVER NOT ENTITLED UNNECESSARILY TO REQUIRE TECHNICAL OR CHEMICAL ANALYSES OR LABORATORY TESTS WHEN THE SAME ANALYSES AND TESTS HAVE ALREADY BEEN CARRIED OUT IN ANOTHER MEMBER STATE AND THEIR RESULTS ARE AVAILABLE TO THOSE AUTHORITIES OR MAY AT THEIR REQUEST BE PLACED AT THEIR DISPOSAL .

17 IT IS FOR THE NATIONAL COURT TO EXAMINE , IN THE LIGHT OF THE FOREGOING CONSIDERATIONS , WHETHER , AND IF SO TO WHAT EXTENT , THE PROCEDURES GOVERNING APPROVALS LAID DOWN BY THE NATIONAL LEGISLATION ARE JUSTIFIED UNDER ARTICLE 36 .

Decision on costs

18 THE COSTS INCURRED BY THE GOVERNMENTS OF DENMARK , ITALY AND THE NETHERLANDS , BY THE UNITED KINGDOM AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE , SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE GERECHTSHOF , THE HAGUE , BY JUDGMENT OF 29 OCTOBER 1980 , REGISTERED AT THE COURT ON 10 DECEMBER 1980 , HEREBY RULES :

IT FOLLOWS FROM ARTICLE 30 IN CONJUNCTION WITH ARTICLE 36 OF THE TREATY THAT A MEMBER STATE IS NOT PROHIBITED FROM REQUIRING PLANT PROTECTION PRODUCTS TO BE SUBJECT TO PRIOR APPROVAL , EVEN IF THOSE PRODUCTS HAVE ALREADY BEEN APPROVED IN ANOTHER MEMBER STATE . THE AUTHORITIES OF THE IMPORTING STATE ARE HOWEVER NOT ENTITLED UNNECESSARILY TO REQUIRE TECHNICAL OR CHEMICAL ANALYSES OR LABORATORY TESTS WHEN THE SAME ANALYSES OR TESTS HAVE ALREADY BEEN CARRIED OUT IN ANOTHER MEMBER STATE AND THEIR RESULTS ARE AVAILABLE TO THOSE AUTHORITIES OR MAY AT THEIR REQUEST BE PLACED AT THEIR DISPOSAL .