Opinion of Advocate General Kokott delivered on 4 June 2020.

• Jurisdiction: European Union
• Celex Number: 62019CC0514
• ECLI: ECLI:EU:C:2020:422
• Date: 04 June 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 4 June 2020 (1)

Case C‑514/19

Union des industries de la protection des plantes

v

Premier ministre and Others

(Request for a preliminary ruling from the Conseil d’État (Council of State, France))

(Request for a preliminary ruling — Agriculture — Environment — Regulation (EU) No 1107/2009 — Placing of plant protection products on the market — Lawfulness of an emergency measure taken by a Member State — Neonicotinoids — Protection of bees — Notification of concerns — Directive (EU) 2015/1535 — Procedure for the provision of information in the field of technical regulations and of rules on Information Society services — Sincere cooperation — Protective measures taken by the Commission)

I. Introduction

1.Regulation (EC) No 1107/2009 (2) harmonises the authorisation of active substances and plant protection products in the European Union. Nevertheless, Member States may take unilateral protective measures if they have previously raised concerns about an active substance with the Commission and the Commission does not adopt protective measures of its own.

2. In the present case, clarification is required as to when a communication to the Commission in this sense is to be regarded as an expression of concerns. In the present case, France sent a communication to the Commission in accordance with Directive (EU) 2015/1535, (3) but did not expressly invoke the safeguard clause of the Plant Protection Regulation. It will also be necessary to examine what requirements must be met by measures taken by the Commission in order to exclude protective measures taken by the Member States.

II. Legal framework

A. EU law

1. Plant Protection Regulation

3. The Plant Protection Regulation was adopted on the basis of Article 37(2), Article 95 and Article 152(4)(b) EC. These are the legal bases for the common agricultural and fisheries policies (now Article 41 TFEU), the internal market (now Article 114 TFEU) and measures in the veterinary and phytosanitary fields which derogate from the common agricultural policy and have as their direct objective the protection of public health (now Article 168(4)(b) TFEU).

4. Article 114(10) TFEU provides that measures based on that article ‘shall, in appropriate cases, include a safeguard clause authorising the Member States to take, for one or more of the non-economic reasons referred to in Article 36, provisional measures subject to a Union control procedure’.

5. Pursuant to Articles 13 and 79 of the Plant Protection Regulation, the Commission decides on the approval of active substances together with a committee in which the Member States are represented.

6.Article 4 of the Plant Protection Regulation contains the approval criteria for active substances, which aim to ensure, in particular, that active substances that qualify for approval must not have any harmful effects on human health or any unacceptable effect on the environment.

7.Article 6 of the Plant Protection Regulation provides that the approval of active substances may be subject to conditions and restrictions. Article 14 et seq. of the Plant Protection Regulation governs the renewal of the approval of an active substance, and Article 21 governs the review of approval.

8. Pursuant to Article 28 et seq. of the Plant Protection Regulation, Member States are to authorise plant protection products on the basis of approved active substances for their respective national territories. Article 36(3) of the Plant Protection Regulation allows Member States to restrict the use of plant protection products or refuse authorisation in order to mitigate risk, in particular on the basis of concerns relating to human or animal health or the environment.

9.Article 49 of the Plant Protection Regulation contains special rules for the placing on the market of treated seeds. Pursuant to paragraph 1, Member States are not to prohibit placing on the market and use of seeds treated with plant protection products authorised for that use in at least one Member State. Where there are serious concerns, the Commission may establish derogations from this in a procedure in accordance with Article 69. Articles 70 and 71 also apply in addition to that provision, however.

10. Irrespective of that reference, Articles 69 to 71 of the Plant Protection Regulation allow emergency measures to be adopted by the Commission and the Member States.

11.Article 69 of the Plant Protection Regulation governs the adoption of emergency measures by the Commission:

‘Where it is clear that an approved active substance, safener, synergist or co-formulant or a plant protection product which has been authorised in accordance with this Regulation is likely to constitute a serious risk to human or animal health or the environment, and that such risk cannot be contained satisfactorily by means of measures taken by the Member State(s) concerned, measures to restrict or prohibit the use and/or sale of that substance or product shall be taken immediately in accordance with the regulatory procedure referred to in Article 79(3), either at the own initiative of the Commission or at the request of a Member State. Before taking such measures the Commission shall examine the evidence and may request an opinion from the Authority. The Commission may set a time limit within which such an opinion shall be provided.’

12. Pursuant to Article 70 of the Plant Protection Regulation, the Commission may take emergency measures on an expedited basis in cases of extreme urgency.

13.Article 71 of the Plant Protection Regulation relates to the powers of the Member States to adopt emergency measures:

‘1. Where a Member State officially informs the Commission of the need to take emergency measures, and no action has been taken in accordance with Article 69 or 70, the Member State may adopt interim protective measures. In this event, it shall immediately inform the other Member States and the Commission.

2. Within 30 working days, the Commission shall put the matter before the Committee referred to in Article 79(1) in accordance with the regulatory procedure referred to in Article 79(3) with a view to the extension, amendment or repeal of the national interim protective measure.

3. The Member State may maintain its national interim protective measures until the Community measures have been adopted.’

2. The Notification Directive

14. Article 5(1) of the Notification Directive contains the fundamental notification obligation for technical regulations:

‘Subject to Article 7, Member States shall immediately communicate to the Commission any draft technical regulation …; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.

…

Where, in particular, the draft technical regulation seeks to limit the marketing or use of a chemical substance, preparation or product on grounds of public health or of the protection of consumers or the environment, Member States shall also forward either a summary or the references of all relevant data relating to the substance, preparation or product concerned and to known and available substitutes, where such information may be available, and communicate the anticipated effects of the measure on public health and the protection of the consumer and the environment, together with an analysis of the risk carried out as appropriate in accordance with the principles provided for in the relevant part of Section II.3 of Annex XV to Regulation (EC) No 1907/2006 of the European Parliament and of the Council. [(4)]

…’

15. Article 5(5) of the Notification Directive concerns the relationship with the communication of technical regulations under other Union acts:

‘When draft technical regulations form part of measures which are required to be communicated to the Commission at the draft stage under another Union act, Member States may make a communication within the meaning of paragraph 1 under that other act, provided that they formally indicate that the said communication also constitutes a communication for the purposes of this Directive.

The absence of a reaction from the Commission under this Directive to a draft technical regulation shall not prejudice any decision which might be taken under other Union acts.’

16. Article 7(1) of the Notification Directive contains exceptions to the notification obligation:

‘Articles 5 and 6 shall not apply to those laws, regulations and administrative provisions of the Member States or voluntary agreements by means of which Member States:

…

(c) make use of safeguard clauses provided for in binding Union acts;

…’

B. French law

17. Article L. 253‑8(II) of the Code rural et de la pêche maritime (Rural and Maritime Fishing Code), in the version amended by Article 125 of the loi du 8 août 2016 pour la reconquête de la biodiversité, de la nature et des paysages (Law of 8 August 2016 for the reconquest of biodiversity, nature and landscapes) prohibits the use of neonicotinoids:

‘The use of plant protection products containing one or more of the active substances of the neonicotinoid family and seeds treated with those products shall be prohibited from 1 September 2018.

…

Derogations from the prohibition referred to in the first and second subparagraphs of this paragraph II may be granted until 1 July 2020 by joint order of the ministers for agriculture, the environment and health.

…’

18. Adopted on the basis of Article L. 253‑8(II) of the Rural and Maritime Fishing Code, Decree No 2018‑675 of 30 July 2018 on the definition of active substances of the neonicotinoid family present in plant protection products (‘the decree at issue’) inserted an Article D. 253‑46‑1 in the Rural and Maritime Fishing Code, which stipulates the prohibited neonicotinoids:

‘the substances of the neonicotinoid family referred to in Article L...