Case C-443/02

Criminal proceedings against Nicolas Schreiber

(Reference for a preliminary ruling from the Tribunale di Pordenone)

(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)

Summary of the Judgment

1. Approximation of laws – Restriction on the marketing of certain dangerous substances and preparations – Directive 98/8 concerning biocidal products – Concept of biocidal products – Blocks of red cedar wood – Included – National measure requiring prior authorisation for placing on the market – Whether permissible

(Directive 98/8 of the European Parliament and of the Council, Arts 2(1)(a) and 3(2)(ii))

2. Approximation of laws – Biocidal products – Directive 98/8 – Product placed on the market in a Member State without prior authorisation – Legislation of another Member State requiring authorisation for the marketing of that product – Whether permissible

(Directive 98/8 of the European Parliament and of the Council, Art. 4(1))

3. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National legislation prohibiting the placing on the market of biocidal products without prior authorisation – Justification – Protection of public health – Proportionality of the measure – Whether permissible

(Arts 28 EC and 30 EC)

1. Article 3(2)(ii) of Directive 98/8 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’ used for biocidal purposes such that they may be placed on the market in a Member State without prior authorisation or registration, but must be classed as a ‘biocidal product’ within the meaning of Directive 98/8 if they are sold as an anti-moth product containing an active substance that repels moths and are mentioned on the list of biocidal products drawn up under Annex V to that directive. In this respect, the fact that the repellent effect of the active substance is natural does not obviate the need for the blocks in question to be classified as ‘biocidal products’.

(see paras 28, 30, 32-33, operative part 1)

2. Article 4(1) of Directive 98/8 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, which have been lawfully placed on the market in another Member State in which there is no requirement of authorisation or registration.

(see para. 39, operative part 2)

3. A national system requiring prior authorisation for the placing on the market 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 when such an authorisation system corresponds to the level of protection of public health that the Member State concerned intends to assure, in that it concerns the placing on the market of all biocidal products and is thus not disproportionate to that objective.

(see paras 49-50, operative part 3)

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

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),,

composed of: P. Jann (Rapporteur), President of the Chamber, A. Rosas, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

after considering the written observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 12 February 2004,

gives the following

Definitions

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.’

Definitions

Substantive rules

‘1.

2.

3.

4.

5.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.

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:

Jann

Rosas

von Bahr

Silva de Lapuerta

Lenaerts

Delivered in open court in Luxembourg on 15 July 2004.

R. Grass

P. Jann

Registrar

President of the First Chamber