CJEC, 3rd chamber, March 13, 1986, No 54-85

THE COURT (third chamber)

1 By judgment of 4 february 1985, which was received at the court on 25 february 1985, the tribunal de police (local criminal court), Dijon, referred to the court for a preliminary ruling under article 177 of the eec treaty a question on the interpretation of articles 30 and 36 of the eec treaty, concerning the free movement of goods within the community.

2 That question was raised in criminal proceedings instituted against mr Mirepoix, who was charged with importing from the Netherlands for sale on the french domestic market onions treated with a substance known as maleic hydrazide, the use of which is not authorized in France .

3 It is clear from the documents before the court that the substance in question is a synthetic chemical product belonging to a group of pesticides which regulate growth. When it is applied to the leaves of a plant, maleic hydrazide permeates the tissue and leaves a residue behind for a sufficient length of time to inhibit fresh growth for fairly long periods. It is common ground that the residue of that substance in onions which have been treated with it and marketed as fresh produce does not disappear entirely within the normal marketing period.

4 The provisions of article 6 of the order of 20 july 1956 on the marketing of fruit and vegetables (journal officiel de la republique francaise of 9 august 1956, p. 7627), in conjunction with articles r 5149 and r 5158 of the public health code and the ministerial order of 31 july 1968, prohibit the use of maleic hydrazide for all crops in respect of which it has not been expressly authorized by order of the minister of agriculture.

5 In the proceedings before the national court the defendant, who is being prosecuted on the basis of the aforesaid rules, challenged their validity in the light of community law. Taking the view that its decision depended on whether those rules were compatible with articles 30 and 36 of the eec treaty, the tribunal de police, Dijon, stayed the proceedings and referred the following question to the court of justice for a preliminary ruling:

' Article 6 of the order of 20 july 1956 prohibits the sale of fruit and vegetables which, before or after harvesting, have been subjected to unauthorized pesticidal or chemical treatment and has the effect of prohibiting the importation into France of onions from, among other countries, the Netherlands which have been treated with tried and tested substances facilitating their preservation, including maleic hydrazide, the use of which as a germination inhibitor is apparently authorized in the other member states of the community. Is the said article 6 a measure having an effect equivalent to a restriction on imports within the meaning of article 30 of the eec treaty?

'

6 It must be remembered, in the first place, that when it gives a ruling pursuant to article 177 of the eec treaty the court has no power to assess the compatibility of national rules with community law. It may only assist the national court by providing it with an interpretation of community law. Consequently, in its question the national court must be understood to be asking essentially whether, having regard to articles 30 and 36 of the treaty, national rules which prohibit the marketing of fruit and vegetables that have been subjected to unauthorized pesticidal or chemical treatment involving the use of maleic hydrazide and which have the effect of prohibiting the importation from another member state of products treated with that substance may be justified as a measure which is necessary for the protection of public health.

7 According to mr Mirepoix, the defendant in the main proceedings, the national rules in question are contrary to article 30 of the treaty and do not come within the exceptions laid down by article 36. In his view, there is no longer any real uncertainty as to whether the product in question is harmful, the french rules are not strictly limited to what is necessary to achieve the objective of the protection of health, and the prohibition laid down by those rules fails to reconcile the protection of health with the overriding requirement that appropriate methods be used for the production and marketing of agricultural produce.

8 The french government has argued that, since the relevant community legislation does not contain any provision concerning the use of maleic hydrazide, the member states retain the power to adopt rules regulating the presence of residues of that pesticide in foodstuffs. In its view, the prohibition laid down by the national rules in question is justified on the ground that toxic residues are necessarily present in onions which have been treated with maleic hydrazide. It therefore maintains that the question submitted by the national court for a preliminary ruling should be answered in the same terms as those adopted by the court in its judgment of 19 september 1984 in case 94-83 (officier van justitie v Heijn (1984) ecr 3263).

9 According to the government of the federal republic of Germany, the measure in question constitutes a measure having an effect equivalent to a quantitative restriction on imports, within the meaning of article 30 of the eec treaty, but is clearly justified on grounds of the protection of human health and life within the meaning of article 36 of the eec treaty. In its view, account should be taken first of all of the uncertainty of scientific knowledge with regard to the effects of the pesticides in question, and secondly of the eating habits of consumers, climatic conditions and other uses of maleic hydrazide, which differ from one member state to another. It considers that, since it is the total quantity of that pesticide and of substances having similar effects which are ingested by consumers that is crucial, member states are justified in adopting different rules to regulate the use of such products, even if they agree on the maximum quantity that may be ingested daily.

10 The commission too has laid emphasis on the similarity between this case and the Heijn case, but points out that, whilst in the latter case the national rules provided for a maximum permitted pesticide content, the national rules at issue in this case involve a total ban on the treatment of onions with maleic hydrazide. According to the commission, articles 30 and 36 of the treaty preclude a member state from prohibiting the importation of fruit and vegetables from another member state on the sole ground that in the latter state they have been subjected to treatment which is not authorized by the rules of the former state. In its view, the position might be different only if the treatment in question involved greater risks than those accepted by that member state for comparable kinds of treatment on its own territory, in connection with its policy on the presence of pesticides in foodstuffs. In that regard, the authorities of the importing member state would be obliged to take action in order to obtain the necessary information by asking the importer to submit any information which he may have, by approaching the authorities of the member state which authorized the treatment and by taking account of the scientific information available. According to the commission, if national rules do not permit such an inquiry to be carried out, as is the case in this instance, such rules are contrary to articles 30 and 36 of the treaty.

11 To begin with, it should be noted that the use of the pesticide at issue in this case is not regulated either by council directive no 76-895-eec 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) or by council directive 76-117-eec of 21 december 1978 prohibiting the placing on the market and use of plant protection products containing certain active substances (official journal 1979, l 33, p. 36).

12 The imposition by a member state of a total ban on the use of maleic hydrazide for treating crops and the resulting ban on the importation of any products treated with that substance are capable of affecting imports from other member states in which treatment involving the use of that substance is permitted either wholly or in part. Accordingly, rules imposing such a ban constitute a measure having an effect equivalent to a quantitative restriction.

13 However, as the court pointed out in its judgment of 19 september 1984 in the Heijn case, pesticides constitute a major risk to human and animal health and to the environment; this has been recognized at community level, in particular in the fifth recital in the preamble to the aforementioned council directive 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 '. In the absence of harmonization in this field it is therefore for the member states, pursuant to article 36, to determine the level of protection which should be given to human health and life, whilst taking account of the requirements of the free movement of goods as laid down by the treaty and, in particular, by the last sentence of article 36.

14 Accordingly, it must be borne in mind, as the court stated in its aforesaid judgment in the Heijn case, that in adopting measures relating to the use of pesticides the member states must take account of the fact that those substances 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, as the government of the federal republic of Germany has rightly contended.

15 Thus, in so far as the relevant community rules do not cover certain pesticides, the member states may regulate the presence of residues of those pesticides on foodstuffs in a way which varies from one country to another according to the climatic conditions, the normal diet of the population and their state of health.

16 However, the authorities of the importing member state are obliged to review the prohibition on the use of a pesticide or a prescribed maximum level if it appears to them that the reasons which led to the adoption of such measures have changed, for example, as a result of the discovery of a new use for a particular pesticide, or as a result of further information becoming available through scientific research.

17 The authorities must also allow, by means of a procedure that is easily accessible to traders, for exceptions to be made to the rules laid down, where it appears that the use of the pesticide in question for a given purpose is not dangerous to public health.

18 The answer to the question submitted must therefore be that, as community legislation on foodstuffs treated with pesticides stands at present, neither articles 30 and 36 of the treaty nor any other provisions of community law preclude a member state from applying to fruit and vegetables imported from another member state its own rules prohibiting the marketing of those products if they have been treated with maleic hydrazide.

Costs

19 The costs incurred by the government of the federal republic of Germany 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 proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court (third chamber),

In answer to the question referred to it by the tribunal de police, Dijon, by judgment of 4 february 1985, hereby rules:

As community legislation on foodstuffs treated with pesticides stands at present, neither articles 30 and 36 of the treaty nor any other provisions of community law preclude a member state from applying to fruit and vegetables imported from another member state its own rules prohibiting the marketing of those products if they have been treated with maleic hydrazide.