Free movement of goods - Biocides

The decision of the Court makes a combined application of Community rules harmonizing national laws (Directive no. 98/8/EC concerning the placing of biocidal products on the market, hereinafter the “Directive”) and of basic provisions of the European Community Treaty (EC) on the free movement of goods, Article 28 EC and 30 EC.

The case was referred to the Court of Justice after criminal proceedings were started against Mr. Schreiber following the placing on the market, in Italy, of blocks of red cedar wood having natural anti-moth properties. The product was legally marketed in Germany where no prior marketing authorization was required. In contrast, applicable Italian rules require prior authorization of such products.

Under the Directive, biocidal products are defined as “active substances and preparations containing one or more active substances, put up in the form in which they are supplied to the user, intended to destroy, deter, render harmless, prevent the action of, or otherwise exert a controlling effect on any harmful organism by chemical or biological means”. While products falling under the definition of biocidal product are subject to authorization, the Directive creates two further categories, respectively, low-risk biocidal products subject only to registration and inclusion in annex IA to the Directive and basic substances which may be marketed if listed in annex IB to the Directive.

As the Directive is not fully implemented, notably its annexes are still being established, the Court considers that the effective harmonization provided by the Directive is currently limited to the definition of biocidal product and that such definition covers blocks of red cedar wood having natural anti-moth properties.

Since other rules contained in the Directive are not yet effective, the Court considered that the review of national rules, beyond the definition of biocidal product, was subject to Articles 28 EC and 30 EC, regarding the free movement of goods. Applying its established case law, the Court concludes that the requirement for authorization contained in the Italian legislation is an obstacle to trade between Member States (prohibited by Article 28 EC), but goes on to say that such requirement is (a) justified given the qualification of the product as a biocidal product, potentially harmful to human health, and (b) proportionate to the legitimate objective of protecting public health (under Article 30 EC). In this connection, the Court specifically recalls that the fact that one Member State has less strict rules (here Germany) than another (here Italy), does not mean that the rules of the second State are disproportionate with regard to Community law.

The Court decision recalls that until harmonizing Community rules are fully implemented, or the scope of Community rules in force, Member States may still maintain national rules provided such rules are legitimate under Treaty rules (here Article 30 EC), (for example the protection of public health) and proportionate. The Court does however refer to ongoing activities for the implementation of the Directive, in particular Commission Regulation no. 2032/2003/EC amending Regulation no. 1896/2000/EC, to determine its position.