Data source
Date of text
15 Jul 2004
Country
Seat of court
Luxembourg
Original language

English

Type of text
International court
Reference number
C-443/02
Court name
European Court of Justice
Justice(s)
Jann, P.
Rosas, A.
von Bahr, S.
Silva de Lapuerta, R.
Lenaerts, K.
Sources
InforMEA
Keywords
export, hazardous substance, health, import, pesticide, trade

The Tribunale di Pordenone (Pordenone District Court) referred to the Court for a preliminary ruling under Article 234 EC five questions 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, and Article 28 EC.
Those questions were raised in criminal proceedings against Mr Schreiber in his capacity as managing director of LIDL-ITALIA Srl. The Italian authorities alleged that, in March 2001, without having obtained the authorization necessary under Italian law, that company had placed on the market 20 packages of blocks of red cedar wood having natural anti-moth properties originating in Germany, which were considered to be ‘medico-surgical instruments’ within the meaning of the medico-surgical instruments decree.
Mr Schreiber submitted that those blocks were a product containing only a ‘basic substance’ within the meaning of Directive 98/8 and that, according to Article 3(2)(ii) of the directive, that product should be allowed to be placed on the market without authorization or registration. In the alternative, he submitted that the national rules infringed Article 28 EC.
The Court held that Article 3(2)(ii) of Directive 98/8 did not preclude a Member State from requiring prior authorization for the marketing of blocks of cedar wood such as those in issue in the main proceedings. Such blocks could not be classified as a product containing only a ‘basic substance’ such that they could be placed on the market in Italy without prior authorization or registration, but had to be classified as a ‘biocidal product’ within the meaning of Directive 98/8.
The national court also asked whether Article 28 EC precluded a Member State from requiring prior authorization for the marketing of blocks of cedar wood such as those in issue, which had been lawfully placed on the market in another Member State in which there was no requirement of authorization or registration.
According to settled case-law, all trading rules enacted by Member States which were capable of hindering intra-Community trade were measures having an effect equivalent to quantitative restrictions within the meaning of Article 28 EC and were therefore in principle prohibited. However, in the absence of Community harmonizing measures, the free movement of a good could be restricted by national rules justified either on one of the grounds laid down by Article 30 EC or by mandatory requirements.
The Court decided that a system requiring prior authorization for the placing on the market of blocks of red cedar wood having natural anti-moth properties had to be classed as a measure having equivalent effect contrary to Article 28 EC. However, since such a system corresponded to the level of protection of public health that the Member State concerned intended to assure, in that it concerned the placing on the market of all biocidal products and was not disproportionate to that objective, it could be regarded as justified under Article 30 EC.