Opinion of Mr Advocate General Alber delivered on 19 February 1998. - Criminal proceedings against Jean Harpegnies. - Reference for a preliminary ruling: Tribunal correctionnel de Charleroi - Belgium. - Plant protection products - National legislation requiring approval by the competent authorities - Article 30 of the EC Treaty. - Case C-400/96.



European Court reports 1998 Page I-05121



Opinion of the Advocate-General

A - Introduction

1 The issue in this reference for a preliminary ruling is whether a requirement that plant protection products be authorised is compatible with the Community provisions on the free movement of goods.

2 The main proceedings are criminal proceedings against a farmer in Belgium, on whose farm plant protection products not authorised in that country were found. The plant protection products originated from France, where they were authorised and had been lawfully placed on the market.

3 The national court has doubts as to whether the legislature of a Member State may require a separate (that is to say additional) authorisation for those products and impose criminal-law penalties for breach of that requirement. It has referred the following question to the Court of Justice:

`Is Belgian legislation, in so far as it still requires authorisation by the Belgian authorities of plant protection products marketed in another Member State, in breach of the rules on the free movement of goods in the Community, as laid down in Article 30 of the EEC Treaty?'

4 The United Kingdom and the Commission have taken part in the procedure before the Court. Reference will be made to their observations in the main body of this Opinion.

B - Opinion

5 It should first be noted that the question referred for a preliminary ruling, as formulated, is designed to ascertain whether national law is compatible with Community law. The Court has no power to carry out such an assessment under the preliminary reference procedure. It is the Court's consistent practice in such cases to provide the national court with all material concerning the interpretation of Community law which will enable that court to judge whether the domestic rules are compatible with Community law. (1)

6 The next point to be observed is that different rules apply to the marketing of plant protection products according to whether they are plant protection products used for agricultural purposes (pesticides) or plant protection products used for non-agricultural purposes (biocides).

While there are special Community rules for pesticides in the form of Directive 91/414/EEC, (2) no such rules have as yet been adopted for biocides, (3) so that the general Treaty provisions apply.

7 In this respect, the parties concerned base their arguments on different premisses.

8 The United Kingdom Government proceeds on the basis that plant protection products within the field of application of Directive 91/414 on pesticides are in issue. It concludes that an authorisation may continue to be demanded.

9 The Commission, on the other hand, assumes that biocides are involved, that is to say plant protection products for non-agricultural use, since the order for reference refers to the Royal Decree of 5 June 1975 which was previously in issue in the main proceedings in Brandsma, (4) a case which was unquestionably concerned with the conditions for the marketing of plant protection products used for non-agricultural purposes. Despite the different factual basis and the legal consequences resulting therefrom, the Commission also concludes that retention of the requirement for authorisation is compatible with Community law.

10 It may be concluded from the factual background to the proceedings, as it is to be understood from the order for reference and the documents before the Court, that the plant protection products in issue are, in all probability, pesticides for agricultural use. Since that question of fact cannot be settled with absolute certainty, the position in law should be examined for two alternative situations. It is reasonable to assume that the plant protection products found on the farm are products for agricultural use, so that premiss should be considered first.

11 Council Directive 91/414 concerning the placing of plant protection products on the market was adopted on the basis of Article 43 of the Treaty. Because of the `risks and hazards for humans, animals and the environment' (5) arising from plant protection products, the directive proceeds on the basis that such products `should not be put on the market or used unless they have been officially authorised'. (6) That requirement is contained in Article 3(1) of the directive. The conditions as to a product's contents are laid down in Article 4. In the interests of the free movement of plant protection products, the directive seeks to ensure that, subject to certain conditions, an authorisation granted by one Member State and tests carried out for that purpose should be recognised. (7) The conditions for mutual recognition are laid down in Article 10, which provides:

`At the request of the applicant, ... a Member State to which an application is made for the authorisation of a plant protection product already authorised in another Member State must:

- ...

- to the extent that the uniform principles have been adopted in accordance with Article 23, where the product contains only active substances listed in Annex I, also authorise the placing of that product on the market in its territory, to the extent that agricultural, plant health and environmental (including climatic) conditions relevant to the use of the product are comparable in the regions concerned.

...'

12 The Council sought to establish the `uniform principles' within the meaning of that provision with the adoption of Directive 94/43/EC, (8) but that directive was annulled in Case C-303/94 Parliament v Council. (9)

13 It is therefore necessary to proceed on the basis that, first, in purely formal terms a requirement for authorisation is laid down and that the conditions for the mutual recognition of an authorisation issued in another Member State have not yet been brought about. While transitional measures and derogations apply under Article 8 of Directive 91/414, they likewise do not allow any fundamental exemption from the requirement for authorisation. Requirements for authorisation laid down by the Member States are thus justified both in formal terms and in substance.

14 The Commission has pointed out that in the case of plant protection products used for agricultural purposes it is not the Royal Decree of 5 June 1975 which is applicable but the Royal Decree of 28 February 1994. It is, however, for the national court to determine the domestic law which ultimately applies.

15 It should be pointed out for the sake of completeness that, in the case of an application for the authorisation of a plant protection product already authorised in another Member State, the requirements are eased by the first indent of Article 10(1) of the directive, which provides for the recognition of tests and analyses which have already been carried out.

16 In case, contrary to expectations, the main proceedings are not concerned with plant protection products used for agricultural purposes, I shall now set out the legal position which pertains in that eventuality.

17 Reference may be made to the judgments in Frans-Nederlandse Maatschappij voor Biologische Producten (10) and Brandsma. (11) The first of those cases involved consideration of a prohibition on the sale, storage or use of pest control agents which had not been authorised under the Netherlands Law of 1962 relating to such products. The pest control agent whose import resulted in the proceedings in the Netherlands had been lawfully placed on the market in France.

18 Brandsma was concerned with the marketing in a Belgian shop of a pest control agent in respect of which no application for authorisation had been made to the Belgian Ministry of Public Health but which bore a Netherlands authorisation number.

19 Both cases are therefore comparable to this one. The findings of the Court in those cases may thus also apply in the present context:

`As the Court has consistently held, legislation such as that applicable in this case constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty, since it is capable of hindering, directly or indirectly, actually or potentially, trade between the Member States ...' (12)

20 The general rule in Article 30 of the EC Treaty is qualified by Article 36, according to which the provisions of Articles 30 to 34 are not to preclude prohibitions or restrictions on imports justified, inter alia, on grounds of the `protection of health and life of humans, animals or plants'. (13) The Court has found that `since biocidal products are used to combat organisms harmful to human or animal health and organisms liable to damage natural or manufactured products, they inevitably contain dangerous substances'. (14) It is true in this case too that `the national rules are intended to protect public health and ... therefore come within the exception provided for by Article 36'. (15)

21 The Member States are free, `in the absence of harmonising rules, ... to decide on their intended level of protection of human health and life and on whether to require prior authorisation for the marketing of such products'. (16) It follows, however, from both judgments referred to that the Member States are required `to assist in bringing about a relaxation of the controls existing in intra-Community trade and to take account of technical or chemical analyses or laboratory tests which have already been carried out in another Member State'. (17)

22 Looked at in perspective, it appears desirable that a product granted authorisation once should be treated as authorised in the whole Community. As the law now stands, however, it must be concluded that it is compatible with Community law for a Member State to require an authorisation for the marketing of plant protection products. In that regard, account must be taken of tests already carried out under authorisation procedures of other Member States. The question asked by the national court as to whether a further national authorisation infringes Community law must accordingly be answered in the negative.

C - Conclusion

23 I propose that the following reply be given to the reference for a preliminary ruling:

Legislation of a Member State which requires separate authorisation for plant protection products authorised and placed on the market in another Member State is in principle compatible with Community law.

(1) - See Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 3277, paragraph 9.

(2) - Council Directive 91/414/EEC concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1).

(3) - The Conciliation Committee has recently approved a draft directive.

(4) - Case C-293/94 Brandsma [1996] ECR I-3159.

(5) - See the fourth recital in the preamble to the directive.

(6) - See the eighth recital in the preamble to the directive.

(7) - See the 16th recital in the preamble to the directive.

(8) - Council Directive 94/43/EC of 27 July 1994 establishing Annex VI to Directive 91/414/EEC concerning the placing of plant protection products on the market (OJ 1994 L 227, p. 31).

(9) - Case C-303/94 Parliament v Council [1996] ECR I-2943.

(10) - Cited in footnote 1.

(11) - Cited in footnote 4.

(12) - Brandsma, paragraph 5. See also, to that effect, Case 125/88 Nijman [1989] ECR 3533, paragraph 12.

(13) - See, to that effect, Frans-Nederlandse Maatschappij voor Biologische Producten, paragraph 11.

(14) - See Brandsma, paragraph 11; see also Nijman, paragraph 13.

(15) - Frans-Nederlandse Maatschappij voor Biologische Producten, paragraph 13.

(16) - Brandsma, paragraph 11; see also Nijman, paragraph 14.

(17) - Brandsma, paragraph 12; see also Frans-Nederlandse Maatschappij voor Biologische Producten, paragraph 14.