Opinion of Mrs Advocate General Rozès
Mr President,
Members of the Court,
This is an action brought by the Commission of the European Communities for a declaration that the Kingdom of Belgium has failed to fulfil its obligations under the Treaty by imposing a requirement that a person applying for authorization to market phyto-pharmaceutical products and pesticides for nonagricultural use be established in Belgium.
1. The action was brought as a result of a complaint submitted by the Government of the Federal Republic of Germany to the Commission in 1979. The Court was informed at the hearing that the product in question is a lotion which is intended to protect horses and ponies against insect bites and the general discomfort caused by insects, in particular flies. According to its manufacturer, established in Germany, the use of the product, which is widely distributed in the Community, has not once resulted in an accident during the 13 years in which it has been marketed.
2. The provision which is said to conflict with Community law is contained in the Royal Decree of 5 June 1975 on the storage, marketing and use of pesticides and phyto-pharmaceutical products. That measure essentially provides that:
3. The only existing Community legislation which relates specifically to pesticides and phyto-pharmaceutical products is a Council harmonizing directive relating to the classification, packaging and labelling of dangerous substances.
1. The two parties agree that the practical effect of the action is relatively limited.
2. In the first place it is correct that Article 30 of the Treaty applies to this case. There are no common or harmonized Community rules relating to the marketing of phyto-pharmaceutical products and pesticides for nonagricultural use. It is therefore for the Member States to decide what degree of protection of the health and life of humans they intend to assure. However, they must have regard to the fact that their freedom of action is itself restricted by the Treaty, in particular by Article 30 et seq.
Therefore, the effect of Article 36 is the essential problem in this case. In the view of the Belgian Government, the requirement that the person applying for authorization be established in Belgium is indispensable in order to ensure the protection of public health. That is one of the grounds, mentioned in the first sentence of Article 36, on which restrictions on imports may be justified and indeed it ranks first among the property or interests protected by Article 36.
1. Before examining the submissions of the parties on that aspect of the case, I would point out that, in accordance with the settled case-law of the Court, Article 36 must be strictly interpreted. Moreover, according to that article, in order to be lawful restrictions on imports must be justified on grounds of ... the protection of health and life of humans .... The word justified means that the measures must be necessary for the protection of health and further that there is no other means of affording such protection which places less of a restriction on trade. In other words, as the Belgian Government has acknowledged, the measures adopted by States under Article 36 must be compatible with the principle of proportionality.
2. The Belgian Government emphasizes the dangerous nature of insecticides and phyto-pharmaceutical products. It points out that the improper handling thereof may have serious, if not disastrous, consequences for public health. The danger is particularly acute in view of the enormous increase in the use of such products over the last few years. The risk is increased by the fact that the products are used not only by professionals but also by domestic users, less skilled in handling them with the proper care. The Belgian Government maintains finally that the harmful effects of such products may sometimes manifest themselves in the long term.
3. The Belgian Government maintains, in the first place, that the requirement that the holder of the authorization be established in Belgium is the best safeguard for preventing accidents and also for alleviating the consequences thereof.
4. The main contention of the Belgian Government is that the protection of health requires the holder of the approval to be established in Belgium because he is the person who incurs liability, including criminal liability, in connection with the marketing of the product. If criminal penalties are to be effective the person to whom they apply must be established in the country in which they are imposed. The Belgian Government must therefore establish three propositions:
5. I shall nevertheless briefly consider whether the disputed measure fails to meet the conditions imposed by the second sentence of Article 36, which provides that measures justified on one of the grounds listed in the first sentence of the article are unlawful if they constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
In those circumstances, I propose that the Court declare that, by providing that applications for the approval and authorization of phyto-pharmaceutical products and pesticides may be submitted only by a person established in Belgium, the Kingdom of Belgium has failed to fulfil its obligations under Articles 30 and 36 of the EEC Treaty and that the Court order the Kingdom of Belgium to pay the costs.
1 Translated from the French.
2 Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (Official Journal, English Special Edition 1967, p. 234).
3 Official Journal 1976, C 212, p. 3.
5 Judgment of 20 May 1976, Case 104/75 de Peiįper [1976] ECR 613, paragraph 15 of the decision, at p. 635; judgment of 17 December 1981, Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 3277, paragraph 12 of the decision at p. 3290.
6 Paragraph 12 of the decision in Biologische Producten at p. 3290.
7 Most recently: judgment of 9 June 1982 in Case 95/81 Commission v Italian Republic, paragraph 24 of the decision.
8 Judgment of 20 May 1976, de Peijper, cited above, paragraph 15 of the decision at p. 635.
9 Judgment of 9 June 1982, Case 95/81 Commission v Italian Republic, cited above, paragraph 27 of lhe decision.
10 Judgment of 8 November 1979, Case 251/78 Denkavit [1979] ECR 3369, paragraph 21 of the decision at p. 3391.
11 Most recently, judgment of 10 November 1982, Case 261/81 Rau: If a Member State has a choice between various measures to attain the same objective it should choose the means which least restricts free movement of goods (paragraph 12 of the decision).
12 Judgment of 8 November 1979, Denkavit, cited above, paragraph 24 of the decision at p. 3392.