CJEC, September 19, 1984, No 94-83

THE COURT

1 By a judgment of 25 april 1983, which was received at the court registry on 25 may 1983, the economische politierechter (magistrate dealing with commercial offences) at the arrondissementsrechtbank (district court), haarlem, referred to the court for a preliminary ruling under article 177 of the eec treaty four questions on the interpretation of articles 30 and 36 of the eec treaty concerning the free movement of goods within the community.

2 Those questions were raised in the context of criminal proceedings brought against Albert Heijn BV, of zaandam, for having in stock for sale, or at any rate for supply to others, a quantity of apples intended for human consumption which constituted a potential danger to health by virtue of the presence of 1.0 milligram of the pesticide known as vinchlozoline per kilogram of apples.

3 Article 16 of the Netherlands law on pesticides (bestrijdingsmiddelenwet) 1962 provides that ' ' foodstuffs or beverages containing a quantity of one or more pesticides... In excess of the level fixed by a public administrative regulation or by the provisions adopted for implementation thereof ' ' are to be regarded as not being of the required quality to enable them to be marketed.

4 In particular, the residubeschikking (residues order) 1965, adopted in implementation of the residubesluit (residues decree) 1964, by virtue of the enabling power contained in the law on pesticides 1962, lays down the maximum permissible pesticide residues for foodstuffs and beverages.

5 With regard to vinchlozoline, the level of residues generally allowed under the order in question is zero. Exceptionally, a precisely defined level of residues is tolerated in the case of certain fruits and vegetables designated by name, but apples are not among them.

6 Before the national court, Albert Heijn BV contended that the apples found in its stock with residues of vinchlozoline had come from Italy, where they had been legally placed on the market, and that consequently the prohibition on their being marketed in the Netherlands was contrary to the provisions of the eec treaty on the free movement of goods.

7 Considering that its decision depended on whether or not the aforementioned Netherlands rules were compatible with articles 30 and 36 of the eec treaty and that an interpretation of those provisions was therefore necessary before he could give judgment, the economische politierechter stayed the proceedings and referred the following questions to the court for a preliminary ruling:

' ' 1. Does a prohibition on the marketing in one member state of apples imported from another member state on the ground that those apples contain, contrary to the applicable national legislative provisions under which it is prohibited to market food and drink containing residues of pesticides unless the quantity of those residues is below a maximum limit fixed per product and per pesticide, residues of a pesticide not mentioned in annex ii to council directive no 76-895-eec of 23 november 1976 constitute a measure having an effect equivalent to a quantitative restriction on imports which is prohibited under article 30 of the eec treaty?

2. To what extent does the answer to the first question depend on the answer to the question whether the apples referred to therein were produced and marketed in the member state from which they originated in accordance with the legislation applying there?

3.(a) If the first question must be answered in the affirmative can the national legislative provisions referred to therein be regarded as a necessary means of protecting public health as contemplated by article 36 of the eec treaty?

(b) In order to answer question 3 (a) must it be established that the prohibition specifically applying to the use of a particular pesticide on apples is justified as a necessary means of protecting public health or may that prohibition also be regarded as justified if it is adopted pursuant to a general policy which is designed to reduce as far as possible the presence of residues of pesticides in food and drink and under which tolerance limits are fixed for residues only where a particular pesticide is required for a particular product and from the point of view of public health - taking into account national dietary habits - there are no serious objections to adopting such limits?

4.(a) Is it relevant to question 3 (a) and (b) that the national legislation of the importing country does not permit residues of a particular pesticide on or in particular kinds of food and drink but fixes a maximum permissible residual quantity of the same pesticide for other kinds of food and drink?

(b) Or, more specifically, is it relevant that in the Netherlands a residue of vinchlozoline is not permitted on apples but is permitted on other agricultural and market-garden produce and that the maximum residual quantity of vinchlozoline permitted in the case of some of those products is even higher than the quantity found on the lot of apples in question?

' '

8 In raising those questions, the national court seeks essentially to ascertain whether, in the light of articles 30 and 36 of the treaty, legislation in a member state which prohibits the marketing of apples coming from another member state on the ground that the quantity of vinchlozoline on or in those apples exceeds the maximum level permitted by the law of the first member state can be justified as being necessary for the protection of public health.

9 Before replying to the questions raised, it should be noted, as the order for reference correctly states, that the use of the pesticide in question is not regulated by council directive no 76-895 of 23 november 1976 relating to the fixing of maximum levels of pesticide residues in and on fruit and vegetables (official journal 1976, l 340, p. 26).

10 With regard to those questions, the german and Netherlands governments contend that the prohibition in question is justified in the interests of the protection of public health, because pesticides are very dangerous substances per se, and that it is not necessary, before taking protective measures, to establish whether vinchlozoline on apples is dangerous.

11 Albert heijn, bv contends that such a prohibition is disproportionate in relation to the objective of protecting public health, since the pesticide in question is known to the national authorities and is tolerated on certain fruits and vegetables.

12 In the commission ' s view, it is necessary to reconcile the requirements of fruit and vegetable growing with the need to protect human and animal health, whilst taking account of the progress of scientific knowledge regarding pesticides and of the dietary habits of the population. It is for the national court to consider, in the present case, the reasons for the prohibition of vinchlozoline on or in apples.

13 It is not disputed that pesticides constitute a major risk to human and animal health and to the environment; this has moreover been recognized at community level, in particular in the fifth recital in the preamble to the aforementioned council directive no 76-895, which states that ' ' pesticides do not have only a favourable effect on plant production, since they are generally toxic substances or preparations with dangerous side effects ' '.

14 Since vinchlozoline is not covered by that directive, member states are in principle authorized to make regulations regarding the maximum permissible level of residues of that pesticide, bearing in mind however that the scope of that authorization is limited by the treaty, and in particular, by the last sentence of article 36.

15 When making such regulations, member states must take account of the fact that pesticides are substances which are both necessary to agriculture and dangerous to human and animal health. The fact that the quantities absorbed by the consumer, in particular in the form of residues on foodstuffs, can neither be predicted nor controlled justifies strict measures intended to reduce the risks faced by the consumer.

16 In so far as the relevant community rules do not cover certain pesticides, member states may regulate the presence of residues of those pesticides on foodstuffs in a way which may vary from one country to another according to the climatic conditions, the normal diet of the population and their state of health. In that context, they may permit different levels of the same pesticide in respect of different foodstuffs.

17 National rules of that nature may thus form part of a general policy designed to prevent the presence of pesticide residues on foodstuffs.

18 The authorities of the importing member state are however obliged to review the prescribed maximum level if it appears to them that the reasons which led to its being fixed have changed, for example, as a result of the discovery of a new use for such and such a pesticide.

19 The reply to the questions raised by the national court must therefore be that articles 30 and 36 of the eec treaty do not prevent a member state from prohibiting the importation of apples from another member state on account of the presence in or on those apples of a quantity of vinchlozoline greater than that authorized by the legislation of the first member state, even though the maximum permitted vinchlozoline content laid down in that member state differs from that laid down for other kinds of food and drink.

Costs

20 The costs incurred by the italian, german and Netherlands governments and by the commission of the european communities, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision as to costs is a matter for that court.

On those grounds,

The court,

In answer to the questions referred to it by the economische politierechter at the arrondissementsrechtbank, haarlem, by a decision of 25 april 1983, hereby rules:

Articles 30 and 36 of the eec treaty do not prevent a member state from prohibiting the importation of apples from another member state on account of the presence in or on those apples of a quantity of vinchlozoline greater than that authorized by the legislation of the first member state, even though the maximum permitted vinchlozoline content laid down in that member state differs from that laid down for other kinds of food and drink.