Agrimotion S.A. v ADAMA Deutschland GmbH (C-912/19)

Contents

Judgment of the Court (Ninth Chamber)4 March 2021^note(Reference for a preliminary ruling — Approximation of laws — Placing of plant protection products on the market — Regulation (EC) No 1107/2009 — Article 52(1) — Parallel trade permit — Personal nature of that permit)In Case C‑912/19,REQUEST for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany), made by decision of 4 December 2019, received at the Court on 13 December 2019, in the proceedingsAgrimotion S.A.vADAMA Deutschland GmbH,THE COURT (Ninth Chamber),composed of N. Piçarra, President of the Chamber, S. Rodin (Rapporteur) and K. Jürimäe, Judges,Advocate General: E. Tanchev,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– Agrimotion S.A., by C. Schmalschläger, Rechtsanwalt,– ADAMA Deutschland GmbH, by K. Welkerling, Rechtsanwalt,– the European Commission, by F. Castilla Contreras, B. Eggers and I. Naglis, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 52 of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1).

2The request has been made in proceedings between Agrimotion S.A. and ADAMA Deutschland GmbH concerning the marketing, by the former, of plant protection products in Germany.

Legal context

3Under recitals 8 and 9 of Regulation No 1107/2009:(8) The purpose of this Regulation is to ensure a high level of protection of both human and animal health and the environment and at the same time to safeguard the competitiveness of Community agriculture. …(9) In order to remove as far as possible obstacles to trade in plant protection products existing due to the different levels of protection in the Member States, this Regulation should also lay down harmonised rules for the approval of active substances and the placing on the market of plant protection products, including the rules on the mutual recognition of authorisations and on parallel trade. The purpose of this Regulation is thus to increase the free movement of such products and availability of these products in the Member States.’

4Chapter III of Regulation No 1107/2009, relating to ‘plant protection products’, comprises two sections. Section 1, entitled ‘Authorisation’, is further subdivided into six subsections. Subsections 1, 2 and 5 are entitled, respectively, ‘Requirements and contents’, ‘Procedure’ and ‘Special cases’.

5Article 28 of that regulation, entitled ‘Authorisation for placing on the market and use’, which appears in subsection 1 of Section 1 of Chapter III, provides:1. A plant protection product shall not be placed on the market or used unless it has been authorised in the Member State concerned in accordance with this Regulation.2.By way of derogation from paragraph 1, no authorisation shall be required in the following cases:…(e) placing on the market and use of plant protection products for which a parallel trade permit has been granted in accordance with Article 52.’

6Article 33 of that regulation, entitled ‘Application for authorisation or amendment of an authorisation’, which features in subsection 2 of Section 1 of Chapter III, provides, in paragraph 1:‘An applicant who wishes to place a plant protection product on the market shall apply for an authorisation or amendment of an authorisation himself, or through a representative, to each Member State where the plant protection product is intended to be placed on the market.’

7Article 52 of Regulation No 1107/2009, entitled ‘Parallel trade’, which appears in subsection 5 of Section 1 of Chapter III, provides, in paragraph 1:‘A plant protection product that is authorised in one Member State (Member State of origin) may, subject to granting a parallel trade permit, be introduced, placed on the market or used in another Member State (Member State of introduction), if this Member State determines that the plant protection product is identical in composition to a plant protection product already authorised in its territory (reference product). The application shall be submitted to the competent authority of the Member State of introduction.’

The dispute in the main proceedings and the question referred for a preliminary ruling

8ADAMA Deutschland, an undertaking established in Germany, markets in that Member State plant protection products for which it has obtained a marketing authorisation. It also distributes those plant protection products in other Member States, in which Agrimotion, an undertaking established in Poland, buys them in order to reintroduce them into Germany and to market them there.

9Before introducing the plant protection products into Germany, Agrimotion re-labels them, indicating, inter alia, the name of Agrimotion, the new name of the plant protection product, the name of the reference product already authorised in Germany and the name of the holder of the parallel trade permit in Germany, in this instance Bernbeck LLP.

10As it took the view that Agrimotion was not authorised to market in Germany the plant protection products at issue in the main proceedings, as the holder of the parallel trade permit was Bernbeck and not Agrimotion, ADAMA Deutschland brought an action before the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany) by which it sought an order requiring Agrimotion to cease marketing those products.

11The Landgericht Düsseldorf (Regional Court, Düsseldorf) upheld that action and declared that the defendant was obliged to pay compensation for the harm suffered by ADAMA Deutschland. That court based its decision on the fact that Agrimotion could not rely on the parallel trade permit granted to Bernbeck, since such a permit, under the second subparagraph of Article 52(4) of Regulation No 1107/2009, is personal in nature.

12Agrimotion lodged an appeal against that decision before the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany), claiming that, in accordance with the legal position expressed by the competent German authority, namely the Bundesamt für Verbraucherschutz und Lebensmittelsicherheit (Federal Office for Consumer Protection and Food Safety, Germany), and with the practice followed in other Member States, it can rely on the parallel trade permit granted to Bernbeck, since the name of the latter undertaking appears on the new label attached to the plant protection products.

13The referring court is unsure whether Article 52 of Regulation No 1107/2009 must be interpreted in support of the proposition put forward by Agrimotion.

14It notes that the Court has held, in the judgment of 8 November 2007, Escalier and Bonnarel (C‑260/06 and C‑261/06, EU:C:2007:659, paragraph 37 et seq.) that, in view of the dangers posed by plant protection products and the risks associated with their use, the need effectively and reliably to verify compliance with the requirements of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1) could justify the personal nature of a marketing authorisation. Some German case-law and legal writers consider that that case-law also applies pursuant to Regulation No 1107/2009, which repealed and replaced Directive 91/414, in particular because the second subparagraph of Article 52(4) of that regulation provides for the possibility of granting several parallel trade permits for the same product.

15The referring court nevertheless expresses doubts with regard to that position, noting that the objective of Regulation No 1107/2009, as is apparent from recital 9 thereof, is to ‘remove as far as possible obstacles to trade in plant protection products existing due to the different levels of protection in the Member States’.

16Furthermore, in a situation where, as in the present case, the undertaking which places on the market the plant protection product at issue is not the one which was granted the parallel trade permit, the indication of the holder of the parallel trade permit on the label of that product would make it possible effectively and reliably to verify compliance with the legal requirements linked to the dangers of plant protection products and the risks associated with their use.

17Finally, the referring court points out that, in certain Member States, the documents relating to parallel trade permits make a distinction between the holder of the authorisation and the importer of the plant protection product.

18In those circumstances, the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Can an undertaking which places a plant protection product authorised in the Member State of origin on the market in the Member State of introduction rely on the parallel trade permit granted by the competent authority of the Member State of introduction to a third undertaking, if the canisters containing the plant protection product and in which that product is placed on the market in the Member State of introduction indicate both the holder of the permit and the importing undertaking? If there are any additional requirements, what are they?’

Consideration of the question referred

19By its question, the referring court asks, in essence, whether Article 52(1) of Regulation No 1107/2009 must be interpreted as meaning that only the holder of a parallel trade permit may place a plant protection product on the market in the Member State which granted that permit.

20Under that provision, a plant protection product that is authorised in one Member State may, subject to the granting of a parallel trade permit, be introduced, placed on the market or used in another Member State, if that Member State determines that the plant protection product is identical in composition to a plant protection product already authorised in its territory (reference product).

21In that regard, it must be recalled that the interpretation of a provision of EU law requires account to be taken not only of its wording, but also of its context, and the general scheme, objectives and purpose pursued by the act of which it forms part. The legislative history of a provision of EU law may also reveal elements that are relevant to its interpretation (see, to that effect, judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele), C‑24/19, EU:C:2020:503, paragraph 37).

22As regards the terms of Article 52(1) of Regulation No 1107/2009, they are not, by themselves, sufficient to provide an answer to the question whether that provision must be interpreted as meaning that only the holder of a parallel trade permit may place a plant protection product on the market in the Member State which granted that permit.

23By contrast, both the general scheme and objective of that regulation, and the legislative history of Article 52(1) thereof, justify the adoption of such an interpretation.

24As to the general scheme of Regulation No 1107/2009, it should be noted that subsection 2, entitled ‘Procedure’, of Section 1, itself entitled ‘Authorisation’, of Chapter III of that regulation governs the ordinary procedure for the examination of applications to place plant protection products on the market in a Member State.

25Article 33 of that regulation, which is part of the aforementioned subsection 2, provides in paragraph 1 that ‘an applicant who wishes to place a plant protection product on the market shall apply for an authorisation or amendment of an authorisation himself, or through a representative, to each Member State where the plant protection product is intended to be placed on the market’.

26It is apparent from that provision that the authorisation of a plant protection product is personal in nature, with the result that it cannot be transferred by its holder to another person.

27The same applies to the parallel trade permits referred to in Article 52(1) of Regulation No 1107/2009.

28Subsection 5, entitled ‘Special Cases’, in which Article 52(1) features, is part of the same section as Article 33 of Regulation No 1107/2009, namely Section 1 of Chapter III. Furthermore, it is apparent from Article 28(2)(e) of that regulation that Article 52 constitutes a derogation from the general rule according to which a plant protection product can be placed on the market or used only if it has been authorised in the Member State in question. Consequently, that provision must be interpreted strictly.

29Article 52(1) of Regulation No 1107/2009 does not provide that any person other than the holder of the parallel trade permit may place a plant protection product on the market in the Member State of introduction. The view must therefore be taken that that permit is personal in nature, in the same way as the authorisation of a plant protection product.

30Furthermore, the application of the parallel trade scheme referred to in Article 52 of Regulation No 1107/2009 is dependent on the application of the authorisation scheme laid down in, inter alia, Article 33 of that regulation, given that, under the former provision, the parallel trade permit can be granted only for a plant protection product which is identical in composition to a plant protection product which is already authorised in the Member State of introduction, that product being referred to as the ‘reference product’ by that provision.

31If the parallel trade permit had to be regarded as not being personal in nature, this would result in the consistency of that regulation being undermined, in so far as a person who is not the holder of such a permit could introduce a plant protection product onto the market in a Member State, whereas only the holder of the authorisation for the reference product for that same market has the right to place that product on that market.

32Furthermore, the interpretation of Article 52(1) of Regulation No 1107/2009 as meaning that the parallel trade permit is personal in nature is borne out by recitals 8 and 9 of that regulation.

33According to those recitals, Regulation No 1107/2009 is intended to ensure a high level of protection of both human and animal health and the environment and at the same time to safeguard the competitiveness of agriculture in the European Union, and to increase the free movement of plant protection products and their availability in the Member States by removing the differences in the levels of protection in the Member States and harmonising in particular the rules relating to the mutual recognition of authorisations and the parallel trade in those products.

34In those circumstances, recognising parallel trade permits as being personal in nature not only contributes to the objective of ensuring a high level of protection of human and animal health and of the environment but is also fully consistent with the logic of the harmonisation of rules on parallel trade governed by Regulation No 1107/2009 with a view to increasing the free movement of plant protection products.

35In that regard, it must be recalled that, in the judgment of 8 November 2007, Escalier and Bonnarel (C‑260/06 and C‑261/06, EU:C:2007:659, paragraphs 40 to 42), the Court found, in essence, that the personal nature of a parallel trade permit was justified by, inter alia, the need to prevent the risk of misuse or abuse of the product in question.

36While it is true that that judgment was delivered pursuant to Directive 91/414 and not Regulation No 1107/2009, it is apparent from the legislative history of that regulation, in particular from paragraph 3.2 of the Communication from the Commission to the European Parliament of 22 September 2008 concerning the common position of the Council on the adoption of a Regulation of the European Parliament and of the Council concerning the placing of plant protection products on the market (COM(2008) 578 final), that the EU legislature took account of that judgment when it adopted Regulation No 1107/2009.

37In the light of all of the foregoing considerations, the answer to the question of the referring court is that Article 52(1) of Regulation No 1107/2009 must be interpreted as meaning that only the holder of a parallel trade permit may place a plant protection product on the market in the Member State which granted that permit.

Costs

38Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Ninth Chamber) hereby rules: Article 52(1) of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC must be interpreted as meaning that only the holder of a parallel trade permit may place a plant protection product on the market in the Member State which granted that permit.