Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. Mr Xavier Mirepoix was charged with importing from the Netherlands for sale in France a consignment of onions treated with maleic hydrazide, a pesticide whose use is not authorized by French legislation. In the ensuing criminal proceedings the tribunal de police [Local Criminal Court], Dijon, referred the following question to the Court of Justice for a preliminary ruling:

2. In order to gain a better insight into the question, some information is necessary on the pesticide concerned on the provisions regulating its use in France and on the Comunity rules concerning pesticides.

3. In the proceedings before the Court, written observations have been submitted by the French Government, the Government of the Federal Republic of Germany and the Commission. Mr Mirepoix submitted observations only during the oral procedure.

4. The Commission takes the opposite view. It too refers to the Heijn judgment but points out that, although in that case the national rules specified the maximum permissible level of the pesticide in question, the system under consideration in this case prohibits the sale of fruit and vegetables subjected in the exporting State to treatment which is unauthorized in the importing State, with the result that onions may not contain any maleic hydrozide whatsoever. Moreover, in the commission's view, the French rules are in breach of the principle of proportionality. Unlike the rules considered by the Court in the Heijn case, the rules in this case do not provide for the possibility of reviewing the reasons for the prohibition in the light of new international scientific knowledge or, consequently, of laying down permissible levels of residues at least in respect of imported products.

5. Recast in terms which are more consistent with the wording of Article 177, the question submitted by the tribunal de police, Dijon, seeks to ascertain whether it is lawful under Community law to adopt national rules which prohibit, in the absence of administrative authorization, the sale of foodstuffs treated with a pesticide the use of which is forbidden. The national court therefore requires a ruling to enable it to decide whether that prohibition may also be applied to imported products or whether it is incompatible with the provisions of the Treaty and with the rules of secondary legislation concerning the free movement of goods.

6. In the first place, it should be pointed out that the present case and the Heijn case do not exhibit the differences alleged by the Commission. Admittedly, in this case, the national rules prohibit any treatment involving the use of maleic hydrazide and hence directly preclude the presence of residues of that substance in foodstuffs. It is equally certain, however, that the legislation reviewed by the Court in the Heijn case achieved the same result by providing that the maximum permissible level of vinchlozoline was zero. In other words, the reference by the French and German Governments to the rules which the court laid down in that case is entirely pertinent.

7. The problem in this case, therefore, lies in ascertaining whether the contested rules can be justified in the light of the first sentence of Article 36, and in particular, whether they are proportionate to the requirement of health protection.

8. In the light of all the foregoing considerations, I suggest that the question submitted by the tribunal de police, Dijon, by judgment of 4 February 1985 in criminal proceedings against Xavier Mirepoix should be answered as follows:

1 Translated from the Iulian.