De Groot en Slot Allium BV and Bejo Zaden BV v Ministre de l'Économie, des Finances et de l'Industrie and Ministre de l'Agriculture, de l'Alimentation, de la Pêche et des Affaires rurales.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Arestis
• ECLI: ECLI:EU:C:2005:300
• Date: 24 May 2005
• Docket Number: C-147/04
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

RUIZ-JARABO COLOMER

delivered on 24 May 2005 ¹(1)

Case C‑147/04

De Groot en Slot Allium BV and

Bejo Zaden BV

v

Ministère de l’économie, des finances et de l’industrie and

Ministère de l’agriculture, de l’alimentation, de la pêche et des affaires rurales

(Reference for a preliminary ruling from the Conseil d’État (France))

(Free movement of agricultural goods – Quantitative restrictions – Measures having equivalent effect – National legislation permitting only bulbs produced by vegetative propagation to be marketed as ‘shallots’)

1. The Conseil d’État of the French Republic (‘the referring court’) has turned to the Court of Justice for clarification as to whether a Member State may prohibit the distribution in its territory under the name ‘shallot’ of plants of the species (2) cultivated from seeds, not bulbs.

2. By way of Community provisions precluding such a prohibition, the referring court invokes Directives 70/458/EEC (3) and 92/33/EEC (4) which govern, respectively, the marketing of vegetable seed and vegetable propagating and other planting material. (5) However, as well as analysing the directives, it is essential to broaden the perspective by taking into consideration the content of the EC Treaty, in order to provide the referring Court with a helpful answer.

I – Legislative framework

A – Community law

1. Primary law: the common market, the free movement of goods and agricultural products

3. The common market, which Article 2 EC seeks to establish, extends to agriculture and trade in agricultural products, (6) the operation of that common market being facilitated by a common policy (Articles 3(1)(e) EC and 32(1) and (2) EC), one of the aims of which is to increase agricultural productivity by promoting technical progress and by ensuring the rational development of production (Article 33(1)(a) EC). Uniform action requires, in some cases, coordination of the various national market organisations (Article 34 (1)(b) EC).

4. The construction of that framework also requires the abolition, as between Member States, of obstacles to the free movement of goods (Article 3(1)(c) EC), including agricultural products (Article 32(1) and (2) EC). Quantitative restrictions and all measures having equivalent effect are therefore prohibited (Articles 28 EC and 29 EC) unless justified on the grounds stated in Article 30 EC, (7) and must not, in any case, constitute a means of arbitrary discrimination or a disguised restriction on trade.

5. Under Article 37 EC, legislative power in this field lies with the Council, which acts on a proposal from the Commission and after consulting the European Parliament.

2. Secondary legislation: the marketing of plant reproduction material

6. Satisfactory results in vegetable cultivation depend to a large extent on the quality and plant health of the seeds, planting material and other material used for their propagation. Pursuant to Article 37 EC, the Council adopted Directives 70/458 and 92/33 in order to harmonise the conditions applying to the movement of propagation material by removing the barriers to the distribution of those plant materials brought about as a result of the disparities between the rules applying in the various Member States (second and fourth recitals in the preamble to both directives).

7. It was decided to create a common catalogue, in accordance with uniform rules, so that a variety listed therein is not subject to any trade restrictions (fifth, seventh, ninth and tenth recitals in the preamble to Directive 70/458, and Article 16 thereof; tenth and fifteenth recitals in the preamble to Directive 92/33, and Article 14 thereof).

8. However, Directives 70/458 and 92/33 differ in scope.

a) Directive 70/458

9. The scope of Directive 70/458 is defined by reference to the seeds of the plants listed in Article 2(1)(A) thereof – which does not refer to shallots (8) – the varieties of which, once they have been officially accepted in at least one Member State, may be certified, (9) checked as standard seed (10) and marketed in the territory of the Community (Article 3(1)).

10. Each Member State is to establish one or more catalogues, (11) on the basis of which a common catalogue is to be established, which is then to be published by the Commission (Articles 3(3) and 17).

11. In order to be entered in those catalogues, a variety must be distinct, stable and sufficiently uniform: it must differ markedly, in one or more important morphological or physiological characteristics, from any other variety accepted or submitted for acceptance; after successive multiplications or at the end of each cycle, it must remain true to the description of its essential characteristics; and, apart from a very few aberrations, the plants of which it is composed must, account being taken of the distinctive features of the reproductive systems of the plants, be similar or genetically identical (Articles 4 and 5). If a variety loses those characteristics, its acceptance must be revoked and the entry deleted (Articles 14(1) and 15(1)).

12. The Member States are to arrange for official publication of the catalogue of varieties accepted in their territory and to send notification to the other Member States and to the Commission of any alterations, together with a brief description of their characteristics in respect of use (Articles 10(1) and 11(1) and (2)).

13. Marketing restrictions on the catalogued seeds are to be avoided, although a Member State may, in accordance with the procedure laid down in Article 40 of the Directive, be authorised to prohibit the marketing of seeds of a variety which is not distinct, stable or sufficiently uniform (Article 16(1) and (2)).

14. As I have already pointed out, the Commission is to publish, under the title ‘Common Catalogue of Varieties of Vegetable Species’, a list of all varieties whose seed, pursuant to Article 16, is not to be subject to any marketing restrictions (Article 17).

15. A Member State may be authorised, pursuant to Article 40, to prohibit the sale of a variety entered in the common catalogue if its cultivation is harmful, from the point of view of plant health, to the cultivation of other species (Article 18).

16. Directive 70/458 was codified by Council Directive 2002/55/EC of 13 June 2002, (12) which replaced it (keeping the same title). The new directive entered into force in August 2002 but does not apply in the present case, since the application before the referring court refers, as is explained below, to two varieties of seed entered in the 1997 common catalogue.

b) Directive 92/33

17. Directive 92/33 applies to the marketing, within the Community, of vegetable propagating and planting materials, (13) other than seeds, belonging to the genera and species, and their hybrids, listed in Annex II (Article 1), which include the shallot.

18. Propagating material which belongs to plants listed in Annex II to Directive 92/33 and which is also covered by Directive 70/458 is to move freely within the Community if it belongs to a variety accepted in accordance with the latter Directive (Article 9(1) of Directive 92/33). In other cases, such as that of the shallot, marketing is to be conditional on official acceptance in at least one Member State, that acceptance to be in accordance with the requirements and procedures laid down in the Directive 70/458 (Article 9(2) of Directive 92/33). In both sets of circumstances, they are to be included in the common catalogue in accordance with the conditions, and with the consequent legal effects, specified in Articles 16 to 19 of Directive 70/458 (Article 9(4) of Directive 92/33). In particular, they are not to be subject to any trade restrictions other than those provided for in Directive 92/33 (Article 14 of Directive 92/33).

B – French law: the Order of 17 May 1990 (14)

19. This Order relates to in natura varieties intended for consumption (Article 2); it authorises use of the term ‘shallot’ only in respect of the fruit of the Allium cepa L. var ascalonicum produced by vegetative propagation, using bulbs with specific characteristics, and thus prohibits the sale, as ‘shallots’, of plants produced by other means.

20. Under Article 214-2 of the Consumer Code and Order No 55-1126 of 19 August 1955 implementing the Law of 1 August 1905 on the prevention of fraud in the marketing of fruit and vegetables, (15) infringement of the provisions of the Order of 17 May 1990 is punishable as a criminal offence.

II – The facts, the main proceedings and the question referred for a preliminary ruling

21. The shallot is a liliaceous vegetable garden plant, traditionally cultivated by vegetative propagation, (16) using bulbs. This method is employed above all in the French regions of Brittany and the Loire Valley.

22. The Dutch companies De Groot En Slot Allium BV and Bejo Zaden BV (‘De Groot and Bejo’) have developed two seed varieties of this tuber, called’Ambition’ and ‘Matador’, so that it can be produced generatively. On 29 June 1995, after the relevant tests, both varieties were entered, in accordance with Directive 70/458, in the Netherlands catalogue as derivatives of the species allium ascalonicum L. – Ecgalote, and notification of the entry, together with the description of the characteristics of the variety, was sent to the other Member States and to the Commission.

23. On 18 March 1997 the Commission published a supplement to the 19th complete edition of the common catalogue, including the ‘Ambition’ and ‘Matador’ varieties under the species name allium ascalonicum L, (17) a situation which has remained unaltered in subsequent publications. (18) Since that date, the varieties ‘Ambition’ and ‘Matador’ have been marketed as shallots in the Member States, with the exception of France, owing to the application of Ministerial Order of 17 May 1990.

24. Since 1999, De Groot and Bejo, whose main activity...