Opinion of Mr Advocate General Lenz delivered on 15 December 1994. - Criminal proceedings against Ulderico Cacchiarelli and Gino Stanghellini. - References for a preliminary ruling: Pretura circondariale di Macerata - Italy. - Council Directives 76/895/EEC and 90/642/EEC - Maximum permissible levels of pesticide residues on or in potatoes. - Joined cases C-54/94 and C-74/94.



European Court reports 1995 Page I-00391



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A ° Introduction

1. In March and April 1993 officials of an Italian health authority carried out inspections in certain retail food shops. In one case a batch of potatoes was found to contain residues of Chlorpropham (a herbicide). The analysis showed that in the case of unpeeled potatoes these residues were in excess of the maximum permissible levels under Italian legislation whilst in the case of peeled potatoes they were lower than the maximum permissible levels. In a second case a batch of deep-frozen chips was found to contain residues of Chlorpropham and Propham (another herbicide) which were in excess of the maximum permissible levels under Italian legislation.

2. On the basis of these facts criminal proceedings were brought before the Pretura Circondariale (District Magistrates Court), Macerata, against the persons responsible (Mr Cacchiarelli in one case and Mr Stanghellini in the other).

3. The proceedings are based essentially on a ministerial decree of 18 July 1990 (1) laying down the "maximum permissible levels of residues of active substances of plant-protection products which are tolerated on and in products destined for foodstuffs". That ministerial decree was issued with the declared objective of transposing a series of directives into national law. One of those was Council Directive 76/895/EEC of 23 November 1976 on the fixing of maximum levels for pesticide residues in and on fruit and vegetables. (2)

4. On 27 November 1990 the Council adopted Directive 90/642/EEC on the fixing of maximum levels for pesticide residues in and on certain products of plant origin, including fruit and vegetables. (3) In order to transpose this directive the Italian Health Minister on 23 December 1992 issued an appropriate decree. (4)

5. In examining these provisions of Italian law and the provisions of Community law underlying them two questions arose for the national court.

6. First, the Pretura Circondariale established that both Directive 76/895 and Directive 90/642 referred to "pesticides", whilst in the Italian regulations the term used is "plant-protection products". These therefore include not only pesticides properly so called but also herbicides such as Chlorpropham and Propham. The national court wonders therefore whether the Italian legislature in transposing the Community directives did not go too far when it also laid down maximum permissible levels for herbicide residues. The Pretura Circondariale takes the view in that connection that an Italian legal instrument which goes beyond its institutional objective, namely the transposition of a directive into national law, cannot form the basis for an adverse finding by a court of law.

7. Furthermore, the national court finds that under the ministerial decree of 18 July 1990 Chlorpropham and Propham content is to be ascertained on peeled potatoes. On the other hand, under Directive 90/642 the maximum permissible levels of residues in the case of potatoes refer to the whole product after removal of the soil (if any) (removal of the earth through rinsing under running water or by gentle brushing of the dry product). The decree of 23 December 1992 which is intended to transpose that directive contains an analogous provision in Annex 3. However, at point 4 of Annex 1 thereto it is also provided that those analyses are intended to verify compliance with the decree of the Health Minister of 18 July 1990. The national court therefore wonders whether the examination for residues is to be carried out on whole potatoes or on peeled potatoes.

8. The Pretura Circondariale, Macerata, therefore submitted the following questions to the Court for a preliminary ruling: (5)

(1) Is 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, to be understood as applying also to the herbicide[s] at issue in these proceedings?

(2) Has the Government of the Italian Republic, by means of the measure implementing the aforesaid directive, namely the decree of the Minister for Health of 23 December 1992, and having regard to the Italian Government' s official interpretation, correctly and precisely transposed the directive into domestic law so far as concerns the procedure for sampling and analysing potatoes in order to check whether the maximum levels for residues of active substances of plant-protection products have been observed?

B ° Opinion

Preliminary observation

9. Allow me before proceeding to discuss the questions to point out that the national court appears to be going on the assumption that the provisions under discussion here concerning the maximum levels of residues in potatoes also apply to chips. Whether that is actually the fact does not need to be discussed in greater detail here in view of the considerations set out below.

Relationship between Directive 76/895 and Directive 90/642

10. In order to reply to the questions submitted for a preliminary ruling it is first necessary to clarify the relationship between the two abovementioned Community directives in this area.

11. Directive 76/895, since amended on several occasions, (6) fixes maximum levels for pesticide residues in and on fruit and vegetables. However, under Article 1 thereof, the directive is applicable only to the products mentioned in Annex I thereto. Pesticide residues within the meaning of the directive are therefore only the residues of the pesticides mentioned in Annex II to the directive. Annex II to the directive as originally drafted contained neither Chlorpropham nor Propham. Chlorpropham was added to this list by Council Directive 82/528/EEC of 19 July 1982. (7) None the less, Directive 76/895 is not applicable to the present case since potatoes are not mentioned in Annex I to that directive.

12. Directive 76/895 prescribed maximum levels of residues of certain pesticides, but permitted (Article 3(2)) the Member States to authorize the placing into circulation in their territory of products even when the amount of residues were in excess of those maximum levels. Those provisions, as may easily be seen, were not conducive to the free movement of goods in the internal market.

13. Therefore, in 1990, the Community legislature adopted Directive 90/642 which pursued the objective of ensuring that mandatory maximum levels should be fixed for certain active substances. (8) That directive is intended progressively to replace Directive 76/895. (9) Like it, Directive 90/642 is applicable only to the products and pesticides listed in the annex thereto. The transition from Directive 76/895 to Directive 90/642 is to be effected ° as the Commission correctly mentioned in its observations ° in progressive stages. Pesticides cannot be included in the list in the annex to Directive 90/642 so long as they fall within the terms of Directive 76/895; (10) Directive 90/642 therefore leaves Directive 76/895 intact. (11)

14. Amongst the products to which Directive 90/642 applies are potatoes which are listed in the annex to that directive. However, Directive 90/642 originally contained no list of pesticides to which the directive was to be applied. That list ° and the corresponding maximum levels ° were to be determined by the Council in accordance with the second subparagraph of Article 1(1). Such a list was added to the directive only by Council Directive 93/58/EEC of 29 June 1993. (12) Since Directive 90/642 is applicable only to those pesticides which are listed in the annex thereto it could only become effective once that list had been drawn up and inserted into the directive. In other words that means that the directive essentially remained a dead letter for at least three years. What may be thought of such a legislative approach does not need to be mentioned in detail here. What is significant in the present case is that the list drawn up in 1993 contains neither Chlorpropham nor Propham. As the Commission has correctly pointed out, Directive 90/642 is therefore also not applicable in the present case.

The first question

15. That finding already supplies the answer to the first question. Since the substances which form the subject-matter of the proceedings before the Pretura Circondariale ° namely Chlorpropham and Propham ° are not listed in the annex to Directive 90/642, that directive is not applicable to them. However, it is apparent from the order for reference that the national court would also like a reply to the question of principle whether herbicides may at all fall within the scope of Directive 90/642. These doubts stem from the wording of the directive which speaks, as does Directive 76/895, of pesticides. As a glance at other provisions of Community law in this area will show, the legislature as a general rule distinguishes between substances intended to combat harmful organisms (pesticides) and those which destroy undesirable plant growth (herbicides). (13) The generic term in use is therefore that of plant-protection products.

16. Whether Directive 90/642 is applicable only to pesticides or also to herbicides cannot be ascertained from the wording. The term "pesticides" is not defined. However, the recitals in the preamble to the directive indicate that the directive is to apply to plant-protection products, provided of course that the active substance in question is listed in the annex to the directive. It is pointed out in those recitals that the crop yield is continually affected by "harmful organisms and weeds" and that it is therefore necessary to protect plants and plant products against those dangers. (14) However, mention is made there only of protection against "harmful organisms". In this respect Directive 76/895 was significantly clearer, inasmuch as it mentioned the threat to the crop from "harmful organisms of either animal or vegetable origin" and the need for protection against "these organisms". (15) As I have already mentioned, Chlorpropham was also listed in the annex to that directive. This shows that this directive could also apply to herbicides. Since Directive 90/642 is intended to replace Directive 76/895 it could be argued that both directives are to apply to herbicides.

17. Furthermore, the Commission is right to point to the objective of Directive 90/642 which is to encourage the free movement of goods and at the same time to eliminate risks to human or animal health and to the environment. (16) These objectives would be difficult to attain if maximum levels could be fixed only for residues of pesticides, but not of herbicides.

18. The conclusion that Directive 90/642 can also apply to pesticides also finds support in the very provisions of Community law. In Council Directive 91/414/EEC of 15 July 1991 on the placing into circulation of plant-protection products (17) Article 4(1)(f) provides that the Member States are to ensure that a plant-protection product (pesticides and herbicides) is authorized only after they have fixed provisional maximum levels for residues and have communicated them to the Commission. These maximum values are to remain in force until "corresponding maximum values are fixed in accordance with the procedure laid down in the second subparagraph of Article 1(1) of Directive 90/642/EEC". (18) This provision proves that the Community legislature is of the opinion that under Directive 90/642 maximum levels may be fixed for herbicide residues as well.

The second question

19. In its second question the national court would like to ascertain which method is to be applied in determining the levels of residues of plant-protection products in potatoes. Basically, the question is whether the Chlorpropham and Propham content is to be measured on peeled or unpeeled potatoes. Since the examination of the first question has already shown that Directive 90/642 as presently drawn is not applicable to Chlorpropham and Propham it seems to me unnecessary to enter into a discussion of the second question.

20. For the sake of completeness it should however be pointed out that for the carrying out of controls the second subparagraph of Article 6(1) of Directive 90/642 refers to the procedures mentioned in Commission Directive 79/700/EEC. (19) The Commission did, however, rightly point out that under the second subparagraph of Article 6(1) of Directive 90/642 the existence of Community methods of analysis does not preclude Member States from using "other tested and scientifically valid methods" provided that this does not hinder the free movement of goods.

C ° Conclusion

21. I therefore propose that the Court should give the following answer to the questions submitted by the Pretura Circondariale, Macerata:

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, also includes herbicides, provided that they are entered on the list in the annex to that directive. As long as Chlorpropham and Propham are not mentioned in that list Directive 90/642/EEC is not applicable to them.

(*) Original language: German.

(1) ° Annex to the Official Gazette of the Italian Republic (GURI) No 202 of 30 August 1990.

(2) ° OJ 1976 L 340, p. 26.

(3) ° OJ 1990 L 350, p. 71.

(4) ° Official Gazette of the Italian Republic No 305 of 30 December 1992, p. 46.

(5) ° The questions referred are more or less identical in both proceedings. The slightly different formulation of the first question in Case C-74/94 is identified by brackets.

(6) ° Most recently by Council Directive 93/58/EEC of 29 June 1993 (OJ 1993 L 211, p. 6).

(7) ° OJ 1982 L 234, p. 1.

(8) ° Tenth recital in the preamble to the directive.

(9) ° Cf. the fourteenth recital in the preamble to Directive 90/642.

(10) ° Article 1(1) and sixteenth recital in the preamble to Directive 90/642.

(11) ° Article 1(2)(c) of Directive 90/642.

(12) ° OJ 1993 L 211, p. 6.

(13) ° Cf. Article 2(1) of Council Directive 79/117/EEC of 21 December 1978 prohibiting the placing on the market and use of plant-protection products containing certain active substances (OJ 1979 L 33, p. 36).

(14) ° Second and third recitals in the preamble to Directive 90/642.

(15) ° Second and third recitals in the preamble to Directive 76/895.

(16) ° Cf. the sixth and eighth recitals in the preamble to Directive 90/642.

(17) ° OJ 1991 L 230, p. 1.

(18) ° See also the explanatory notes on the Community concept of maximum levels of residues in the footnote to point 2.4.2.2. in Part C, 2 of Annex VI to Directive 91/414, added by Council Directive 94/43/EEC of 27 July 1994 (OJ 1994 L 227, p. 31).

(19) ° OJ 1979 L 207, p. 26.