OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 23 September 2004 ( )

Case C-398/03

E. Gavrielides Oy

(Reference for a preliminary ruling from the Helsingin Hallinto-oikeus (Finland))

(Directive 90/642/EEC – Fixing of maximum levels for pesticide residues – Vine leaves)

I – Introduction

1. This reference for a preliminary ruling concerns the interpretation of Directive 90/642/EEC on the fixing of maximum residue levels for pesticides in plant products ( ) (hereinafter ‘Directive 90/642’ or ‘the Directive’). The main proceedings pending before the Helsingin Hallinto-oikeus (Helsinki Administrative Court) involve the appeal lodged by an importer of vine leaves against two decisions of the Finnish customs authorities. The importer had been prohibited by those decisions from importing vine leaves on the ground that they contained pesticide residues exceeding the permitted maximum level. The referring court asks whether Directive 90/642 applies to vine leaves.

II – Relevant legislation

A – Community law

2. Article 1(1) of Directive 90/642, as amended by Directive 97/41/EC ( ) (hereinafter ‘Directive 97/41’), provides:

‘This Directive shall apply to products within the groups specified in column 1 of Annex I, examples of which are given in column 2, in so far as products in these groups, or the parts of product described in column 3, may contain certain pesticide residues.

The Directive shall also apply to the same products after drying or processing or after inclusion in a composite food in so far as they may contain certain pesticide residues.’

3. Article 3(1) of the Directive, as amended by Directive 97/41, reads as follows:

‘The products in the groups or, where applicable, the parts of products referred to in Article 1 shall not contain, from the time they are put into circulation, pesticide residue levels higher than those specified in the list referred to in Annex II.

…’.

4. Article 5 of the Directive provides:

‘Member States may not prohibit or impede the putting into circulation within their territories of the products referred to in Article 1 on the grounds that they contain pesticide residues, if the quantity of such residues in and on the products or parts of products concerned does not exceed the maximum levels specified in the list referred to in Article 1.’

5. Annex I to the Directive contains a list of the groups of products and individual products to which the maximum pesticide residue levels apply. The list takes the form of a table in three columns. Column 1 of the table is headed ‘Groups of products’, column 2 ‘Products included in the groups’ and column 3 ‘Part of product to which maximum residue levels apply’.

6. Maximum residue levels for individual pesticides which apply to the products listed in Annex I are given in mg/kg in Annex II to the Directive.

7. Neither Annex I nor Annex II to the Directive makes express reference to vine leaves.

8. The ‘Berries and small fruit’ group of products is listed among the groups in column 1 of Annex I to the Directive. ‘Table and wine grapes’ are listed in column 2 as belonging to that group. There is also an entry in column 1 of Annex I for a ‘Leaf vegetables and fresh herbs’ group of products which includes the products Lettuce and similar, Spinach and Herbs given in column 2.

9. According to Annex II to the Directive, as amended by Directives 98/82/EC ( ) and 2000/42/EC, ( ) the permissible level of chlorpyrifos and fenarimol for the ‘Leaf vegetables and fresh herbs’ group of products is 0.05 mg/kg and 0.02 mg/kg respectively. The maximum permissible level of chlorpyrifos and fenarimol for table and wine grapes is 0.5 mg/kg and 0.3 mg/kg respectively.

B – National law

10. The provisions of the Directive have been transposed into national law by Decision 896/99 of the Finnish Ministry of Trade and Industry. That decision, too, lays down no express rules governing vine leaves. It incorporates the provisions of the directive concerning the groups of products and the maximum residue levels applying to those groups.

III – Facts and questions referred for a preliminary ruling

11. In March 2002 and July 2002 respectively, the company E. Gavrielides Oy (hereinafter ‘Gavrielides’) sought to import into Finland a consignment of stuffed vine leaves and a consignment of vine leaves preserved in brine.

12. Samples taken from those products were tested in the laboratory of the Finnish customs authorities for pesticide residues. Analysis showed that the stuffed vine leaves contained 0.28 mg/kg of chlorpyrifos and the vine leaves in brine contained 0.11 mg/kg of chlorpyrifos and 0.14 mg/kg of fenarimol.

13. On account of those results, the customs authorities prohibited the import, marketing, offering for sale or any other form of transfer of those products by decisions of 29 July 2002 and 12 August 2002 (hereinafter ‘the contested decisions’). The customs authorities stated that the maximum permitted levels of chlorpyrifos and fenarimol in vine leaves were 0.05 mg/kg and 0.02 mg/kg respectively. The maximum permitted levels for pesticides, they added, were laid down in Decision 896/99 of the Finnish Ministry of Trade and Industry which transposed Directive 90/642. Those underlying maximum values ensued from classification of vine leaves in the ‘Leaf vegetables and fresh herbs’ group of products. The maximum level fixed for herbs, namely 0.05 mg/kg of chlorpyrifos and 0.02 mg/kg of fenarimol, applied to vine leaves.

14. Gavrielides claimed that the referring court should set aside the contested decisions.

15. By order of 22 September 2003 the referring court referred the following questions to the Court of Justice for a preliminary ruling pursuant to Article 234 EC:

‘(1) Is Article 1(1) of Council Directive 90/642/EEC of 27 November 1990 on the fixing of maximum levels for pesticide residues in and on certain products of plant origin, including fruit and vegetables, as subsequently amended, to be interpreted as meaning that the Directive applies to vine leaves?

(2) If that is the case:

(a) Is Annex I to the Directive to be interpreted as meaning that vine leaves are classified in the “Leaf vegetables and fresh herbs” group of products and Annex II as meaning that vine leaves are classified under the entry “Others [Herbs]”?

(b) In which product group and under which entry are vine leaves to be classified if they are not to be classified under the entry “Others [Herbs]”?’

IV – Legal assessment

A – Submissions of the parties

16. The Finnish Government does not consider the list of products in the annexes to Directive 90/642 to be exhaustive. It takes the view that vine leaves are to be classified in the ‘Leaf vegetables and fresh herbs’ group of products and refers, in support of that view, to the Commission proposal entitled ‘Classification of (minor) crops not listed in the Appendix of Council Directive 90/642’, ( ) in which vine leaves are classified, on page 107 thereof, as herbs.

17. Gavrielides and the Greek Government consider the list of products in Directive 90/642 to be exhaustive. Vine leaves are not, they argue, expressly mentioned there and the directive therefore does not apply to vine leaves. The Greek Government considers that it is apparent even from the preamble to the Directive, the 20th recital of which states that there will be modifications to the lists of products, that the list of products is not intended just to give examples. It follows that the list is exhaustive. Gavrielides maintains that only Article 14 of Regulation (EC) No 178/2002 of 28 January 2002 ( ) applies to vine leaves. Under that regulation products injurious to health may not be placed on the market. Only a daily consumption of several kilogrammes of the products at issue, however, would present a risk to health. If Directive 90/642 were considered applicable, vine leaves – according to Gavrielides and the Greek Government – in any event should not be classified in the ‘Leaf vegetables and fresh herbs’ group of products. Rather since the same maximum levels for pesticides would have to apply to all parts of a plant, in this case the maximum level applying to grapes would also have to be applied to vine leaves.

18. In the Commission’s view, the Directive contains no binding provisions as regards vine leaves. To date no scientific studies have been undertaken as to whether vine leaves should be included in the Directive. However, the Directive does not preclude Member States from classifying vine leaves as other herbs provided that Articles 28 and 30 EC are complied with. The Commission proposal of 1999 entitled ‘Classification of (minor) crops not listed in the Appendix of Council Directive 90/642’ ( ) is no more than an opinion of Commission officials. The document has not been submitted to the Commission for a vote and consequently is not legally binding. None the less, the Commission also objects to classification of vine leaves under the entry for table and wine grapes. The differences between the grapes and the leaves of a vine are too great. Furthermore, Annex I to the Directive is not aimed at achieving complete harmonisation.

B – Opinion

19. By its questions the referring court is seeking to ascertain whether Directive 90/642 applies to vine leaves (which are not expressly listed in the Directive) and, if so, to establish the group of products or the product entry in which vine leaves are to be included.

20. In order to answer the questions referred, it is essential first of all to examine whether column 2 of Annex I to Directive 90/642, which contains a list of products covered by the Directive, is exhaustive or merely illustrative.

21. If the list of products in column 2 were exhaustive, as maintained by Gavrielides and the Greek Government, Directive 90/642 would not apply to vine leaves because vine leaves are not expressly mentioned in the Directive. If the list of products is merely illustrative, it would then be necessary to examine further whether vine leaves could be classified in a group of products or under an individual product in Annex I.

22. The wording of the Directive militates against the argument that the list of products in column 2 is exhaustive. After all, Article 1(1) of the Directive expressly provides that the Directive is to apply to products within the groups specified in column 1 of Annex I, examples ( )of which are given in column 2. According to the wording of the Directive, the list of products in column 2 is therefore merely illustrative, not exhaustive.

23. For the purpose of determining whether the list of products should be regarded as definitive or illustrative, the Commission cites the judgment of the Court of Justice in Cacchiarelli and Stanghellini in which the Court held that Directive 76/895/EEC relating to the fixing of maximum levels for pesticide residues in and on fruit and vegetables ( ) does not apply to potatoes because potatoes are not included in Annex I to that directive. ( ) However, that line of reasoning cannot be applied to this case since the two directives concerned differ in their very wording. Under Article 1 of Directive 76/895, that directive concerns ‘products intended for human … consumption listed under the Common Customs Tariff headings set out in Annex I …’. Annex I to that directive lists only individual products, not groups of products. Therefore, by its very wording, Annex I to Directive 76/895 is exhaustive.

24. Directive 90/642 was relevant in the Cacchiarelli and Stanghellini cases only in terms of its application to certain pesticides. No findings were made in that judgment with regard to the nature of the list of products covered by Directive 90/642.

25. A systematic interpretation also suggests that the list of products in column 2 of Annex I to Directive 90/642 is illustrative. If the list of products in column 2 were to be exhaustive, there would have been no need systematically to arrange the entries in two columns, the first headed ‘Groups of products’ and the second headed ‘Products included in the groups’. It would have been sufficient to list only the individual products, as was the case, for instance, in Directive 76/895. ( )

26. Moreover, Annex II to the Directive applies for several groups of products a ‘catch-all’ maximum level for products other than those included in a given group of products, for instance a maximum level under the ‘Berries and small fruit’ group of products for ‘Others’ (berries). That is also an indication that the products listed in column 2 of Annex I are examples because if the list were exhaustive, there would have been no need for a ‘catch-all’ maximum level for other products falling within a group of products.

27. As regards the ‘Leaf vegetables and fresh herbs’ group of products, the wording of column 2 itself suggests that the products listed therein are examples. The Directive refers in that column to ‘Lettuce and similar’ and in Annex II to ‘Herbs, Others’.

28. Thus, the products listed in column 2 of Annex I to Directive 90/642 are merely examples and do not constitute an exhaustive list.

29. Although vine leaves are not mentioned in column 2, the Directive could, on that basis, apply to them if vine leaves can be included in one of the groups of products or classified as a product included in such a group. That possibility will be examined below.

30. Classification in the ‘Leaf vegetables and fresh herbs’ group of products is prima facie a possibility since vine leaves – like lettuce, spinach and herbs, which are given as examples of that group of products – are consumable leaves.

31. Furthermore, as regards utilisation by the consumer, the manner of consumption and likely quantity consumed, vine leaves and lettuce or herbs are entirely comparable.

32. However, in assessing whether a product can be included in one of the groups of products, the objectives pursued by the Directive must be taken into account in the sense of a teleological interpretation. The purpose of the Directive is to protect humans and the environment, ( ) but at the same time the Directive proceeds from the principle that the protection of plants against harmful organisms through the use of chemical pesticides is essential for increasing agricultural productivity. ( )

33. Efforts were made when setting the maximum residue levels for pesticides to steer a middle course between those two opposing objectives of the Directive by setting the maximum levels as low as is consistent with good agricultural practice. ( ) Those levels ‘represent the use of minimum quantities of pesticide to achieve adequate control, applied in such a manner that the amount of residue is the smallest practicable and is toxicologically acceptable.’ ( )

34. When fixing the maximum values, account was therefore taken of the minimum quantity of pesticides needed for an individual group of products or an individual product to produce a good yield. The minimum quantity necessary to achieve adequate pest control differs depending on the type of plant. That also explains why different maximum levels were fixed for similar plants, such as currants and blackberries, which are very similar in both the manner of their consumption and the quantity likely to be consumed (and thus in the quantity of harmful substance absorbed).

35. Accordingly, when classifying products by group of products, account must also be taken of the special needs of plants as regards their protection against pests. Plants can be classified in the same group of products only if they are so similar that it can be concluded that they are exposed to a similar degree to harmful organisms and weeds and consequently have a similar need for pesticides in order to secure the best possible yield. However, the fact that two products are similar only as regards the manner and quantity in which they are consumed, such as vine leaves and lettuce or herbs, is not sufficient to warrant their classification in the same group of products.

36. Those considerations militate against classification of vine leaves in the ‘Leaf vegetables and fresh herbs’ group of products. Indeed, the difference between grapevines and lettuce or herbs, as regards plant type and cultivation, is so great that the maximum values fixed specifically for lettuce and herbs in view of their pesticide requirements cannot be applied to vine leaves without scientific justification. In fact, the preamble to Directive 90/642 accordingly states that the determination of mandatory maximum levels requires lengthy technical consideration. ( )

37. It cannot be concluded otherwise from the Commission proposal ‘Classification of (minor) crops’, ( ) on which the Finnish Government relied. That document sets out proposals for the classification of products not expressly listed in Annex I to Directive 90/642. A proposal is made on page 107 thereof for vine leaves to be included in the ‘Leaf vegetables and fresh herbs’ group of products as herbs. That Commission proposal is part of a set of documents collectively entitled ‘Guidelines for the generation of data concerning residues as provided in Annex II, part A, section 6 and Annex II, part A, section 8 of Directive 91/414/EEC concerning the placing of plant protection products on the market’. ( ) However, according to its foreword, the document represents no more than an opinion of the Commission departments and is not intended to produce legally binding effects. The Commission in fact referred to that point in its written observations in these proceedings. Thus, that Commission proposal could be regarded at most as an expert opinion on the comparison of herbs and vine leaves. However, the document cannot be considered to be a form of experts’ report because it is unclear from the document how and, where appropriate, in the light of what research the Commission came to favour the proposed classification.

38. Vine leaves therefore must not be classified in the ‘Vine leaves and fresh herbs’ group of products.

39. However, there is also the possibility of classifying vine leaves in the ‘Berries and small fruit’ group of products under the product entry for ‘Table and wine grapes’, an approach advocated by Gavrielides and the Greek Government in the event that the Directive applies.

40. In support of that approach, it is argued that vine leaves and grapes are parts of the same plant. Therefore, in terms of the quantity of pesticide required for high-yield cultivation, they could be considered to be identical.

41. However, wording alone gives the lie to such classification. Leaves simply are not berries or grapes.

42. On the other hand, the Commission’s argument that leaves of grapevines are not to be treated as table and wine grapes because column 3 of Annex I to Directive 90/642, which sets out the parts of the product to which the maximum residue levels apply, excludes the stems of grapes and should, therefore, also exclude the leaves is not persuasive. Column 3 mentions the parts of the product to which the levels do not apply, from which it can be assumed that they are not for consumption (e.g. stems) because their contamination with harmful substances does not lead to adverse effects on the human organism and therefore does not have to be taken into consideration in tests.

43. In examining whether leaves of grapevines must be subject to the same maximum pesticide values as table and wine grapes, it is essential primarily to bear in mind that the intention of Directive 90/642 is to protect humans and the environment as far as possible. ( ) Whether or not that intention allows vine leaves to be classified as table and wine grapes and, by extension, allows a relatively high residue level cannot be established without scientific assessment. Leaves and grapes might be harvested at different times; smaller quantities of pesticides might be needed for grapevine crops grown for their leaves than for those grown for their grapes. Those uncertainties should be eliminated through scientific research at Community level and vine leaves included in the annex to the Directive by an amendment to the Directive. Classification solely on the basis of interpretation, without scientific justification, is not possible. Thus, vine leaves cannot be included in the group of products containing table and wine grapes.

44. It must be concluded that the list of products in Annex I to Directive 90/642 is not exhaustive. However, in the light of the foregoing considerations, vine leaves cannot be classified in the ‘Leaf vegetables and fresh herbs’ or in the ‘Berries and small fruit’ under the heading (‘Table and wine grapes’) groups of products. Classification in any other group of products is not possible. Vine leaves therefore do not fall within the scope of the Directive.

45. The interpretation of Directive 90/642 presented here in fact implies that there is no comprehensive harmonisation of all plant products in the area regulated by the Directive. It might then be argued that the interpretation conflicts with a further aim of the Directive, which is to ensure the free movement of goods within the Community. ( ) However, the observations above show that this interpretation also takes account of the other aims pursued by the Directive and therefore secures a balance between all its aims.

46. However, it does not follow from the fact that Directive 90/462 does not apply that all the relevant rules of national law are applicable. The only provisions of national law that apply are those which are compatible with Community law and, specifically, those which are compatible with Articles 28 EC and 30 EC. On the other hand, none of the relevant provisions of Regulation No 178/2002 ( ) (in particular, Article 14 thereof) are applicable in the case pending before the national court because, under Article 65 of that Regulation, those provisions do not apply until 1 January 2005.

47. Under Article 28 EC quantitative restrictions on imports and all measures having equivalent effect are prohibited between Member States. The Court of Justice has consistently held that all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions. ( ) Administrative practices can also constitute trading rules. ( ) It is not clear from the order for reference whether there is a general administrative practice in Finland with regard to the criteria for obtaining a licence to import vine leaves. However, individual acts of the authorities may not infringe Article 28 EC either, as that provision creates individual rights whose assertability cannot depend on whether they are infringed by an individual act of the authorities or by an administrative practice. ( ) The administrative decisions at issue, which make the import of vine leaves conditional on observance of a specific maximum residue level, hinder intra-Community trade and therefore constitute a measure having equivalent effect.

48. Restrictions prohibited under Article 28 EC may none the less be justified under Article 30 EC, in particular for the purpose of protecting human health. According to the case-law of the Court of Justice, it is for the Member States to decide on the intended level of protection of human health and life. They enjoy broad discretion in that regard but must meet the requirements of the free movement of goods. ( ) In the Heijn judgment, which also concerned national provisions relating to pesticide residues on foodstuffs, the Court again concluded that there was broad discretion and held that national provisions may in fact take into account the climatic conditions, the normal diet of the population and their state of health. ( )

49. The Court has consistently held that, in exercising their discretion relating to the protection of public health, the Member States must, none the less, also comply with the principle of proportionality underlying the second sentence of Article 30 EC. Accordingly, national measures must be confined to what is actually necessary to ensure the safeguarding of public health; they must be proportional to the objective thus pursued, which could not have been attained by measures which are less restrictive of intra-Community trade. ( )

50. The referring court will consequently be required to determine which of the maximum levels for pesticide residues on vine leaves are necessary to protect public health. It will also have to consider whether and on what scale it is necessary to use pesticides in the cultivation of vine leaves. ( )

V – Conclusion

51. In the light of the foregoing, I propose that the Court should answer the questions referred by the Helsingin Hallinto-oikeus as follows:

Council Directive 90/642/EEC of 27 November 1990 on the fixing of maximum levels for pesticide residues in and on certain products of plant origin, including fruit and vegetables, as amended, does not apply to vine leaves.