Criminal proceedings against Jean Harpegnies.
Date: 1998-09-17
11 When addressing that question, it must be borne in mind that the Court has consistently held that it has no jurisdiction, in the context of the application of Article 177 of the Treaty, to decide whether a national provision is compatible with Community law.  It may, however, extract from the wording of the question formulated by the national court, having regard to the facts stated by it, those elements which concern the interpretation of Community law, for the purpose of enabling that court to resolve the legal problem before it (see, inter alia, Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others v Ente Nazionale Risi [1994] ECR I-711, paragraph 19, and Case C-15/96 Schöning-Kougebetopoulou v Freie und Hansestadt Hamburg [1998] ECR I-47, paragraph 9).
26 The answer to the first part of the question must therefore be that the Directive requires prior authorisation, granted pursuant to either Article 4 or Article 8, to be obtained from the competent authority of each Member State in which a pesticide covered by the Directive is placed on the market.
29 Under Article 30 quantitative restrictions on imports and all measures having equivalent effect are prohibited in trade between Member States.  The Court 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 (see, in particular, Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5).  However, Article 36 of the Treaty provides that Article 30 is not to preclude prohibitions or restrictions on imports justified, inter alia, on grounds of the protection of human health, provided that those prohibitions or restrictions do not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
30 A legal provision of a Member State prohibiting biocidal products which have not been previously authorised from being marketed, acquired, offered, put on display or sale, kept, prepared, transported, sold, disposed of for valuable consideration or free of charge, imported or used, constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty (see Brandsma, cited above, paragraph 6).
32 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 (Brandsma, paragraph 11).
33 It is settled case-law that, in the absence of harmonising rules, it is for the Member States 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 (Brandsma, paragraph 11).
34 Nevertheless, the principle of proportionality which underlies the last sentence of Article 36 of the Treaty requires that the power of the Member States to prohibit imports of products from other Member States should be restricted to what is necessary to achieve the objectives of protection being legitimately pursued (see, to that effect, Case 174/82 Sandoz [1983] ECR 2445, paragraph 18).
35 As the Court has previously held (see Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 3277, paragraph 14), whilst a Member State is free to require a biocidal product 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 and to take account of technical or chemical analyses or laboratory tests which have already been carried out in another Member State (see Brandsma, paragraph 12).