Criminal proceedings against H. F. M. Nijman (125/88)

Contents

Judgment of the Court (Third Chamber)7 November 1989^noteIn Case 125/88REFERENCE to the Court under Article 177 of the EEC Treaty by the Gerechtshof (Regional Court of Appeal), The Hague, Netherlands, for a preliminary ruling in the proceedings pending before that court againstH. F. M. Nijman, of Leidschendam,THE COURT (Third Chamber)composed of: M. Zuleeg, President of Chamber, J. C. Moitinho de Almeida and F. Grévisse, Judges,Advocate General: M. DarmonRegistrar: H. A. Rühi, Principal Administratorafter considering the observations submitted on behalf ofH. F. M. Nijman, by J. C. M. Montijn-Swinkels and O. Z. van Sandick, of the Hague Bar,the Government of the Kingdom of the Netherlands, by H. J. Heinemann and M. A. Fierstra, acting as Agents,the Government of the Federal Republic of Germany, by G. Rambow, acting as Agent,the Government of the Kingdom of Belgium, by A. Reyn, acting as Agent,the United Kingdom, by J. A. Gensmantel, acting as Agent,the Commission of the European Communities, by R. Barents, a member of its Legal Department, acting as Agent,having regard to the Report for the Hearing and further to the hearing on 23 May 1989,after hearing the Opinion of the Advocate General delivered at the sitting on 13 June 1989,gives the following

Judgment

1By judgment of 29 January 1988, which was received at the Court Registry on 25 April 1988, the Gerechtshof, The Hague, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation 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 (Official Journal 1979, L 33, p. 36), Articles 30 and 36 of the Treaty and the Community provisions on commercial policy.

2The questions were raised in criminal proceedings brought against H. F. M. Nijman for infringement of the Bestrijdingsmiddelenwet (Law on plant-protection products) 1962. Article 2 of that law prohibits the sale, placing in stock or store, or use of any plant-protection product not shown to be authorized by it.

3Before the national court, Mr Nijman contends that the product ‘Improsol’, which is imported exclusively or mainly from Sweden, cannot be regarded as a plant-protection product within the meaning of the Bestrijdingsmiddelenwet 1962. The Gerechtshof considers that, in order to determine whether a substance or mixture of specific substances constitutes a plant-protection product within the meaning of the abovementioned law, it is necessary to take account of Directive 79/117/EEC. It has therefore stayed the proceedings and referred the following questions to the Court for a preliminary ruling:‘In the present state of Community law, and in particular in the light of Council Directive 79/117/EEC, prohibiting the placing on the market and use of plant-protection products containing certain active substances,(1) Is a national court bound to interpret and apply the relevant provisions laid down in a national law containing rules on the marketing and use of plant-protection products (such as the Bestrijdingsmiddelenwet 1962), which must be regarded as implementing inter alia the aforesaid Directive 79/117/EEC, in such a way that the content and purpose of those rules fully correspond to those defined in the directive, notwithstanding a potentially different definition?(2) What factors and circumstances would a national court take into account in deciding whether and to what extent a national law such as that referred to in Question 1 above, which prohibits the sale, placing in stock or storage or the use of a plant-protection product which is not shown to be permitted by that law and imposes a penalty in criminal law for failure to comply,(a) constitutes an obstacle to trade which directly affects the establishment and functioning of the common market, as referred to in the directive,(b) correctly and fully implements Directive 79/117/EEC, as required by Article 189 of the EEC Treaty, and(c) is compatible or incompatible with other relevant rules of Community law, in particular with Article 30 of the EEC Treaty and any directly applicable Community rules on commercial policy, laid down in the framework of Part 3, Title II, Chapter 3, of the EEC Treaty?’

4Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the relevant Community provisions, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The first question

5Having regard to the facts of the case, the first question must be understood as seeking to determine to what extent the national court must take account of Directive 79/117/EEC in interpreting a national law governing the marketing and use of plant-protection products.

6As the Court held in its judgment of 10 April 1984 in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. It follows that national courts, in applying their national law, are required to interpret it in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of Article 189 of the Treaty.

7However, the prohibition imposed by Directive 79/117/EEC of marketing and using plant-protection products containing certain active substances applies only, by virtue of Article 3 thereof, to the substances listed in the annex. Directive 79/117/EEC does not therefore pursue complete harmonization of national rules concerning the marketing and use of plant-protection products.

8It must therefore be stated, in reply to the first question, that the court of a Member State is not bound to interpret national rules on the marketing and use of plant-protection products in the light of the wording and purpose of Directive 79/117/EEC for the purpose of applying that directive to products not containing any of the active substances listed in the annex to the directive.

The second question

9By its second question, the national court seeks to determine whether national legislation which, supported by penalties in criminal law, prohibits the sale, placing in stock or store or use of any plant-protection product which is not authorized by the Bestrijdingsmiddelenwet 1962, is compatible with Directive 79/117/EEC, Articles 30 and 36 of the Treaty and the Community provisions on commercial policy.

10As far as the compatibility of the national legislation with Directive 79/117/EEC is concerned, it is apparent from the answer to the first question that Directive 79/117/EEC covers only plant-protection products containing active substances listed in the annex to the directive. In the present case, the national court has established that the product ‘Improsol’ does not contain substances listed in the annex to the directive. The question of the compatibility of the national legislation with the directive does not therefore arise. Accordingly, it is unnecessary to reply to the first part of the second question.

11As to whether the national legislation meets the requirements of Articles 30 to 36 of the Treaty, it must first be borne in mind that those provisions apply without distinction to products originating in the Community and to those admitted into free circulation in any of the Member States, whatever the real origin of such products. It is therefore subject to those reservations that Articles 30 to 36 of the Treaty apply to the product ‘Improsol’.

12In the present case, the prohibition, enforced by penalties in criminal law, of selling, storing or using any plant-protection product not authorized by a national law is capable of affecting imports from other Member States where the same product is admitted wholly or in part and thus of constituting a barrier to intra-Community trade. Such rules therefore constitute a measure having an effect equivalent to a quantitative restriction.

13However, it is undisputed that plant-protection products present significant risks to the health of humans and animals and to the environment, as the Court has held in relation to pesticides (see the judgments of 19 September 1984 in Case 94/83 Albert Heijn 5F[1984] ECR 3263, paragraph 13, and of 13 March 1986 in Case 54/85 Ministère public v Xavier Mirepoix [1986] ECR 1067, paragraph 13). Those risks are also recognized in the fourth recital in the preamble to Directive 79/117/EEC, according to which ‘the effects of these plant-protection products may not be wholly favourable for plant production ... since, in the main, they are toxic substances or preparations having dangerous effects’.

14It is therefore for the Member States, pursuant to Article 36 of the Treaty and in the absence of full harmonization in this matter, to decide at what level they wish to set the protection of the life and health of humans, whilst at the same time taking account of the requirements laid down in the Treaty, in particular in the last sentence of Article 36, regarding the free movement of goods.

15It must therefore be stated in reply to the second part of the second question that, in an area which has not been fully harmonized at the Community level, Articles 30 and 36 do not preclude national legislation prohibiting the sale, placing in stock or storage or the use of a plant-protection product not authorized by such legislation and imposing a penalty in criminal law for failure to comply.

16Finally, as regards the compatibility of a law such as the Bestrijdingsmiddelenwet 1962 with the Community provisions on commercial policy, it must be stated that, according to the national court's findings, the product ‘Improsol’ is imported exclusively or mainly from Sweden. As the Commission observed, the question must therefore be understood as relating to the relevant provisions of the free-trade agreement between the European Economic Community and the Kingdom of Sweden (Official Journal, English Special Edition 1972 (31.12.1972), p. 99).

17Article 13(1) of that agreement provides that no new quantitative restriction on imports or measures having equivalent effect may be introduced in trade between the Community and Sweden. Article 13(2) abolishes quantitative restrictions on imports as from 1 January 1973 and any measures having an effect equivalent to quantitative restrictions on imports as from 1 January 1975 at the latest.

18According to Article 20, the agreement is not to preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of, in particular, the protection of life and health of humans, animals or plants. However, such prohibitions or restrictions must not constitute a means of arbitrary discrimination or a disguised restriction on trade between the contracting parties.

19It must therefore be stated, in reply to the third part of the second question, that Articles 13(1) and 20 of the free-trade agreement between the European Economic Community and the Kingdom of Sweden do not preclude national legislation prohibiting the sale, placing in stock or store or the use of a plant-protection product not authorized by such legislation and imposing a penalty in criminal law for failure to comply.

Costs

20The costs incurred by the Governments of the Kingdom of the Netherlands, the Federal Republic of Germany, the Kingdom of Belgium and the United Kingdom and by the Commission of the European Communities, which submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the action before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Third Chamber),in reply to the questions submitted to it by the Gerechtshof, The Hague, by judgment of 29 January 1988, hereby rules:

(1).The court of a Member State is not bound to interpret national rules on the marketing and use of plant-protection products in the light of the wording and purpose of Directive 79/117/EEC for the purpose of applying that directive to products not containing any of the active substances listed in the annex to the directive.

(2).In an area which has not been fully harmonized at Community level, Articles 30 and 36 do not preclude national legislation prohibiting the sale, placing in stock or store or the use of a plant-protection product not authorized by such legislation and imposing a penalty in criminal law for failure to comply.

(3).Articles 13(1) and 20 of the free-trade agreement between the European Economic Community and the Kingdom of Sweden do not preclude national legislation prohibiting the sale, placing in stock or store or the use of a plant-protection product not authorized by such legislation and imposing a penalty in criminal law for failure to comply.

Delivered in open court in Luxembourg on 7 November 1989.