C44302
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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Schreiber (Approximation of laws)) [2004] EUECJ C-443/02 (15 July 2004) URL: https://www.bailii.org/eu/cases/EUECJ/2004/C44302.html Cite as: [2004] EUECJ C-443/02, [2004] EUECJ C-443/2 |
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JUDGMENT OF THE COURT (First Chamber)
15 July 2004 (1)
(Article 28 EC - Directive 98/8/EC - Placing of biocidal products on the market - National measure requiring authorisation for the placing on the market of blocks of red cedar wood having natural anti-moth properties)
In Case C-443/02,REFERENCE to the Court under Article 234 EC by the Tribunale di Pordenone (Italy) for a preliminary ruling in the criminal proceedings before that court against Nicolas Schreiber on the interpretation of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (OJ 1998 L 123, p. 1), and Article 28 EC,THE COURT (First Chamber),
after considering the written observations submitted on behalf of:
- Mr Schreiber, by M. Casini and F. Capelli, avvocati, - the Belgian Government, by A. Snoecx, acting as Agent, - the Commission of the European Communities, by L. Ström, acting as Agent, and M. Moretto, avocat,having regard to the Report for the Hearing,
after hearing the Opinion of the Advocate General at the sitting on 12 February 2004,
gives the following
Substantive rules
-1. Member States shall prescribe that a biocidal product shall not be placed on the market and used in their territory unless it has been authorised in accordance with this directive.2. By way of derogation from paragraph 1:(i) Member States shall, subject to registration, allow the placing on the market and use of a low-risk biocidal product, provided that a dossier in accordance with Article 8(3) has been submitted and verified by the competent authorities.Unless otherwise specified, all provisions relating to authorisation under this directive shall also apply to registration.(ii) Member States shall allow the placing on the market and use of [basic substances] for biocidal purposes once they have been entered in Annex IB.-
National lawDefinitions
Substantive rules
-1. Must Article 2(1)(a) and (b) of Directive 98/8/EC be construed, in the light of the general rules which that directive introduces into the Community legal order, as meaning that the terms -biocidal products- and -low-risk biocidal product- refer solely to products whose biocidal function depends on active substances added to those products by chemical or biological means through processes expressly designed to add such substances in order to confer on those products a biocidal function?2. Must Article 2(1)(c) of Directive 98/8/EC be construed, in the light of the general rules which that directive introduces into the Community legal order, as meaning that the term -basic substance- refers to substances which are not added to a product in order to enable it to perform an intended biocidal function but whose biocidal function is performed in addition to the function normally performed by that product during its use -?3. May a piece of red cedar wood be classed, simply by virtue of the fact that it is marketed as being -anti-moth-, as a -biocidal product-, as a -low-risk biocidal product- or as a -basic substance-, bearing in mind that: (a) the wood in question has in no way been treated chemically or biologically; (b) the substance on which the effects attributed to the wood may depend is naturally present in the product; (c) the product is substantially marketed as found in its natural state?4. Must Article 2(1)(c) of Directive 98/8/EC be construed as meaning that it is only if a -basic substance- is included on the list referred to in Annex IB that that substance may be exempted from the authorisation and registration provided for for the marketing in the Member States of products covered by Article 2, with such inclusion on the list referred to in Annex IB thus acquiring constitutive effectiveness for all purposes?5. Must Article 4 of Directive 98/8/EC be construed, by reference to Articles 28 EC and 30 EC, as meaning that a product such as that described in Question 3, placed lawfully on the market in a Member State without any need for authorisation or registration in that Member State, may be made subject to authorisation or registration in another Member State in which it is subsequently marketed by reason of the fact that the product in question is not included on the list referred to in Annex IB to Directive 98/8/EC?-
The first four questions: the obligation on the Member States to allow the placing on the market of products containing only -basic substances-
In that context, the referring court wishes to know whether such blocks may be classified as a product containing only a -basic substance- so that, pursuant to Article 3(2)(ii) of the directive, they may be placed on the market in Italy without prior authorisation or registration, or whether they should be classified as a -biocidal product- or a -low-risk biocidal product- within the meaning of Directive 98/8.
The first part of the fifth question: the obligation on Member States to recognise authorisation and registration granted by another Member State
The second part of the fifth question: the right of free movement of goods
On those grounds,
THE COURT (First Chamber),
in answer to the questions referred to it by the Tribunale di Pordenone by order of 20 November 2002, hereby rules: 1. Article 3(2)(ii) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market does not preclude a Member State from requiring prior authorisation for the marketing of blocks of red cedar wood having natural anti-moth properties. Such blocks cannot be classed as a product containing only a -basic substance- such that they may be placed on the market in Italy without prior authorisation or registration, but must be classed as a -biocidal product- within the meaning of Directive 98/8. 2. Article 4(1) of Directive 98/8 does not preclude a Member State from requiring prior authorisation for the marketing of blocks of red cedar wood having natural anti-moth properties, which have been lawfully placed on the market in another Member State in which there is no requirement of authorisation or registration. 3. The fact that a Member State requires prior authorisation for the marketing of blocks of red cedar wood having natural anti-moth properties, which have been lawfully placed on the market in another Member State in which there is no requirement of authorisation or registration, constitutes a measure having equivalent effect contrary to Article 28 EC, which may nevertheless be regarded as justified on grounds of the protection of public health under Article 30 EC.
Jann |
Rosas |
von Bahr |
Silva de Lapuerta |
Lenaerts |
|
R. Grass |
P. Jann |
Registrar |
President of the First Chamber |
1 - Language of the case: Italian.