Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The present reference for a preliminary ruling on the interpretation of Articles 30 and 36 of the EEC Treaty arises out of criminal proceedings brought in the Netherlands against Albert Heijn BV.

The defendant undertaking, which operates a chain of supermarkets in the Netherlands, is charged with having in stock for sale, in January 1981, at its premises in Zaanstad, a quantity of apples of the Granny Smith variety on which was found a higher level of residues of a pesticide called vin-chlozoline than was permitted by law. The apples, on which a residue of 1 milligram of vinchlozoline per kilogram of apples was found, were first of all seized and then, 14 days later, released for sale.

The defendant in the main proceedings does not deny the offence with which it is charged. However, it contends that the Netherlands provisions under which it is prohibited to have in stock the apples in question, which originated in Italy, constitute measures equivalent in effect to a quantitative restriction on imports contrary to the provisions of Article 30 et seq. of the EEC Treaty.

The Netherlands rules, the details of which are to be found in the Report for the Hearing, can be broadly described as follows: the Bestrijdingsmiddelenwet [Law on Pesticides] 1962 prohibits the sale, keeping in stock, storage or use of any pesticide unless authorized by the competent minister. With regard to pesticide residues, Article 16 of that Law, read together with the Residubesluit [Residues Decree] 1964, provides that these may not exceed a level fixed by the competent minister. The Residubeschikking [Residues Order] 1965, implementing the aforementioned legislation, prohibits any residues of the pesticide vinchlozoline in or on apples. However, with regard to other agricultural products, a certain level of vinchlozoline residue is permitted. Moreover, the permissible levels of pesticide residues laid down in the Residues Order can be varied by the competent minister on the application, inter alia, of importers of foodstuffs or beverages.

The Economische Politierechter [magistrate dealing with commençai offences] at the Arrondissementsrechtbank [District Court], Haarlem, who has to decide whether those rules are in conformity with Community law, stayed proceedings, and by an order dated 25 April 1983 referred the following questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

1. First and second questions (Interpretation of Article 30 of the EEC Treaty)

My opinion on those questions is as follows:

1. First and second questions (Interpretation of Article 30 of the EEC Treaty)

2. Third and fourth questions (Interpretation of Article 36 of the EEC Treaty)

Questions 1 and 2

On the basis of the foregoing considerations, I propose that the questions raised should be answered as follows:

Questions 1 and 2

Articles 30 and 36 of the EEC Treaty permit national rules prohibiting the presence in or on foodstuffs of residues of a pesticide not covered by Council Directive No 76/895/EEC in a quantity which exceeds that laid down by a general administrative measure. That is so irrespective of whether the goods in question were produced and marketed in their country of origin in accordance with the legislation applying there.

Questions 3 and 4

1 Translated from the German.

2 Judgment of 11. 7. 1974 in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837.

3 Judgment of 20. 2. 1979 in Case 120/78 Rewe-Zentral-AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.

4 Judgment of 20. 2. 1979 in Case 120/78 Rewe-Zentral-AG v Bundesmonopolverwaltung Jur Branntwein [1979] ECR649.

5 Judgment of 5. 2. 1981 in Case 53/80 Officier van Justitie v Koninklijke Kaasfabnek Eyssen BV [1981] ECR 409. Judgment of 17. 12. 1981 in Case 272/80 Frans- Nederlands Maatschappij voor Biologische Producten BV [1981] ECR 3277.

6 Judgment of 20. 2. 1979 in Case 120/78 Rewe-Zentral-AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.

7 Judgment of 20. 5. 1976 in Case 104/75 de Peiiper [1976] ECR 613. Judgment of 17. 12. 1981 in Case 272/80 Frans-Nederlands Maatschappij voor Biologische Producten BV [1981] ECR 3277. Judgment of 14. 7. 1983 in Case 174/82 Sandoz BV [1983] ECR 2445.

8 Judgment of 17. 12. 1981 in Case 272/80 Frans-Nederlands Maatschappij voor Biologische Producten BV [1981] ECR 3277.

9 Judgment of 14. 7. 1983 in Case 174/82 Sandoz BV [1983] ECR 2445.

10 Judgment of 5. 2. 1981 in Case 53/80 Officier van Justitie v Koninklijke Kaasfabriek Eyssen BV [1981] ECR 409.

11 Judgment of 14. 7. 1983 in Case 174/82 Sandoz BV [1983] ECR 2445.

12 Judgment of 14. 7. 1983 in Case 174/82 Sandoz BV [1983] ECR 2445.