OPINION OF ADVOCATE GENERAL

delivered on 24 May 2005 1

Case C‑147/04

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’)

I – Legislative framework

A.A – Community law

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).

a.a) Directive 70/458

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)).

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.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.

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.

25. During 2000 and 2001 two complaints were sent to the Commission concerning the free movement of these vegetables, but received no reply. The first complaint was from French and Dutch growers, protesting against the entry of those varieties in the common catalogue, and the second was from Dutch producers, claiming that the French order is incompatible with Community law.

26. On an unspecified date in 2001, (19) De Groot and Bejo applied to the competent ministers for repeal of the Order, but met with silence. They therefore brought proceedings before the Conseil d’État, in which the Comité économique agricole régional ‘Fruits et légumes de la Région Bretagne’ (‘Cerafel’) has also intervened.

27. By order of 4 February 2004, the Conseil d’État asked the Court of Justice to clarify whether Directives 70/458 and 92/33 permit only varieties of shallot reproduced by vegetative propagation, without seed, to be included in the common catalogue, and to determine whether the ‘Matador’ and ‘Ambition’ varieties may be listed under the heading reserved for shallots.

III – Procedure before the Court of Justice

IV – Analysis of the question referred for a preliminary ruling

29. The question referred for a preliminary ruling arose in the context of proceedings for annulment – on the ground that it is contrary to Community law – of the order which governs, in France, the sale of shallots to the consumer without prior processing. Accordingly, it is necessary to undertake an analysis of two aspects which are closely related and which have been dealt with at length in some of the written observations: (i) the material scope of the Directives interpreted and (ii) the possibility that the body of legislation at issue might change, abandoning those texts and incorporating fundamental principles of primary law, such as the principle laid down in Article 28 EC, under which quantitative restrictions on imports and measures having an equivalent effect are prohibited.

A – The subject-matter of Directives 70/458 and 92/33

30. These Community acts apply to the material for vegetable production, the former to seeds, the latter to planting and other propagating material; on the other hand, the Order contested before the Conseil d’État concerns in natura plants prepared for sale, that is to say, the result of the reproductive process. In other words, the legislation to be compared does not have the same subject-matter: the Community legislation seeks to promote intra-Community trade, free of restriction, in the aforementioned reproductive material, whereas the Order concerns the distribution to the public in French territory of the resulting product.

31. Once that has been made clear, it is possible to respond quickly and coherently to the doubts expressed by the national court, by stating that the directives at issue do not apply in the case before the referring court, since they do not govern the marketing or appellation of the end product; in consequence, the Order of 17 May 1990 does not infringe Community law. That approach, which has been suggested by the Commission and also by De Groot and Bejo, is in keeping with both the letter and spirit of the law.

32. Directives 70/458 and 92/33 seek, in accordance with the objectives set out in Article 33(1)(a) EC, to increase productivity in vegetable cultivation by a particular means: control of the quality and plant health of the material used for their reproduction, so that only those which satisfy the conditions laid down move without restriction within the Community. For those purposes, a common catalogue has been established as a means of ensuring publicity and legal certainty.

34. In short, in order to settle the dispute, the Conseil d’État does not need to know whether the combined effect of Directive 70/458, which does not apply to shallots, and Directive 92/33, which does, is to prohibit the inclusion of seed varieties of that kind of liliaceous plant in the common catalogue, without guaranteeing their freedom of movement, since the Order on which it has to give a ruling does not govern propagation material but specimens which have been reproduced for sale to the consumer.

35. A ban on trade – under the name ‘shallot’ – in plants grown from seed has an indirect impact on the distribution of the seeds, and the marketing of those vegetables is adversely affected. However, that aspect falls to be addressed in the main proceedings. The Court of Justice must confine itself to providing the national court with guidelines for determining whether the national legislation is compatible with Community law, and for that purpose Directives 70/458 and 92/33 are irrelevant.

36. Yet the argument does not stop here. (21) All agricultural products must be free to move without restriction, (22) as laid down in Article 28 EC, with the exception only of restrictions justified on one of the grounds specified in Article 30 EC; for those purposes, it is a matter of no importance whether the particular product concerned is the vegetable, more or less prepared and ready for consumption, or the plant material from which the vegetable is obtained. (23)

B – Application of Article 28 EC

37. The French Government relies on the judgment in DaimlerChrysler (24) in order to maintain that, when the regulation of a particular field has been harmonised, it must be assessed in the light of secondary legislation, not in the light of the provisions of the Treaty. However, that argument has a serious weakness, in that Directives 70/458 and 92/33 concern propagation material, and do not cover shallots, regarded as an end product. There is therefore no reason why the Court of Justice should not express its opinion in the light of the EC Treaty.

38. Since the judgment of 11 July 1974 in Dassonville (25) which coined a formula later to be described as ‘famous’, (26) it has been acknowledged that Article 28 EC prohibits any rule capable of hindering, directly or indirectly, actually or potentially, trade between the Member States, and that such a rule is to be regarded as a measure equivalent in effect to a quantitative restriction (paragraph 5).

39. Legislation which treats domestic products differently from imported products constitutes such a measure, and is permissible only if justified by reference to one of the public-interest exceptions set out in Article 30 EC. (27)

40. Measures which, although treating imported products and domestic products alike, make it more difficult for the former to enter the market, also fall into that category. (28) That type of situation arises frequently in uncoordinated sectors, in which existing differences create obstacles to freedom of movement from one Member State to another. (29) However, such obstacles are justified if they pursue one of the objectives set out in Article 30 EC or if they are necessary for effective fiscal supervision, the protection of public health, the fairness of commercial transactions or consumer protection. (30)

41. The case-law established in Dassonville, which has been re-stated on many occasions, sometimes in relation to food products, (31) has been applied in cases where the facts are similar to those in the case before the referring court, and provides useful guidelines for deciding that dispute.

42. Miro (32) established that Article 30 of the EC Treaty (now, following amendment, Article 28 EC) precludes national legislation which requires a spirituous beverage, in order to be sold as gin, to have a pre-fixed alcohol content, and prohibits the marketing under the same appellation of such beverages imported from another Member State if they do not have the minimum fixed alcohol content, even though the beverage is a traditional drink in the country of origin, and the purchaser is provided with proper information. In Deserbais (33), the Court ruled to the same effect in respect of Edam cheeses.

43. In Smanor, cited above, it was held that the aforementioned provision does not permit prohibition of the use of the name ‘yoghurt’ in the case of deep-frozen yoghurt which is lawfully marketed in other Member States, when the characteristics of the latter product are not substantially different from those of the fresh product. In Commission v France (34), the Court found that France had infringed Article 28 EC by prohibiting the marketing as ‘foie-gras’ of foie-gras manufactured in another Member State in accordance with rules and procedures different from the requirements of French legislation. In Guimont (35), the provision was construed as precluding a Member State (France again) from prohibiting the use, within its borders, of the designation ‘Emmenthal cheese’ for cheeses lawfully manufactured without rind in the Community. Spain and Italy also infringed Article 28 EC – according to judgments against them, both dated 16 January 2003 (36) – by prohibiting the marketing, as ‘chocolate’, of products known by that name in other Member States.

44. The position is similar in the present case, (37) because the prohibition against the marketing, as ‘shallots’, of vegetables grown from seed affects not only those cultivated in France but also those grown elsewhere. As in the cases cited (38) and in other similar cases, (39) it seems that the prohibition, because it affects shallots cultivated in other Member States, constitutes an obstacle to their importation: in so far as it entails an obligation to market shallots grown from seed under another name, which is either unknown to consumers, or less highly regarded by them, its is likely to make the marketing of those products difficult, thus directly impeding trade between Member States. (40)

46. This reason for restricting the movement of goods makes it possible for the user to be properly informed about them, so that his choice is not based on a misapprehension. (44)

48. However, if the difference between the products is significant, Smanor (paragraph 21) and Deserbais (in an obiter dictum in paragraph 13) (47) authorise Member States to require the description of an imported foodstuff to be altered, provided that the product, in terms of its composition or production, is so different from the products generally understood as falling within that description within the Community that it may be regarded as falling within a different category.

49. On this point is not easy to give an answer. First, nobody disputes that traditional shallots and shallots grown from seed are outwardly similar, although, once they have been opened, they are significantly different, since only the latter look like onions. Furthermore, the production process runs along different lines, since the former are propagated vegetatively by means of bulbs, which are replanted and generate their own progeny, whereas the latter are reproduced generatively, by sowing seeds, and the final fruit does not create new individual plants. However, in spite of the different propagation procedures, it should not be forgotten that, from a taxonomic point of view, both varieties belong to the same species (allium ascalonicum L.).

50. Shallots grown from seed have appeared on the market recently, and their impact on the total volume of shallots grown in the Community is very small. This is explained by the fact that in France, the leading producer in the European Union (90% of the total), the vegetative method is usually used, because France is the country in which – precisely because the Order of 17 May 1990 is in force – shallots cultivated generatively are not called ‘shallots’, although they are marketed under that name in other Member States, such as the Netherlands. (48)

51. The most appropriate approach is suggested by the Commission in its written observations, in which, without offering any proposal as to how to answer the question referred for a preliminary ruling, the Commission calls for a legislative initiative designed to harmonise the naming of products, with the name ‘seed shallots’ reserved for shallots reproduced from seed; however, until that scheme materialises, the Court of Justice must provide the Conseil d’État with the relevant criteria for settling the dispute in the main proceedings.

52. In those circumstances and in light of the fact that the objective pursued by the French authorities may be attained by properly informing the purchaser, through appropriate labelling, that the vegetable he is buying has been cultivated from seed, I suggest that the Court of Justice confirm to the national court that Article 28 EC precludes national legislation such as that on which it is called to give a ruling, which creates an obstacle that is unnecessary and, as is clear from the fact that it is protected by criminal penalties, disproportionate.

V – Conclusion

53. In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the French Conseil d’État:

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1 – Original language: Spanish.

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2 – The shallot is a tuber, of the same species as the onion (allium cepa L) and garlic (allium sativum)

), which is used as seasoning. It comes from Central Asia and owes its name to the ancient Palestinian city of Ascalón, where it was cultivated.

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3Council Directive 70/458/EEC of 29 September 1970 on the marketing of vegetable seed (OJ, English Special Edition 1970 (III), p. 674; ‘Directive 70/458’).

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4Council Directive 92/33/EEC of 28 April 1992 on the marketing of vegetable propagating and planting material, other than seed (OJ 1970 L 157, p. 1; ‘Directive 92/33’).

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5To date, the Court of Justice has not interpreted either of those directives; it has only held on two occasions that the Italian Republic failed to fulfil its obligations by not transposing them within the prescribed period: Directive 70/458 in Case 52/75 Commission v Italy [1976] ECR 277, and Directive 92/33 in Case C-118/95 Commission v Italy [1995] ECR I-4281).

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6In my Opinion of 28 April 2005 in Joined Cases C-346/03 Atzeni and Others and C-529/03 Scalas and Lilliu [2006] ECR I-1875, points 104 et seq., I considered the interdependence of agricultural production, the common market and competition.

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7This article refers to public morality, public policy or public security; the protection of health and life of humans, animals; the conservation of plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property.

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8The list is not unalterable, since Article 2(1)(a) (inserted by Council Directive 78/55/EC of 19 December 1977, OJ 1978 L 16, p. 23) provides for amendments.

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9Article 2(1) defines ‘basis seed’ (Part B) and ‘certified seed’ (Part C).

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10This is what Article 2(1)(D) of the Directive calls ‘standard seed’, as may be inferred from language versions other than English, for example, the French version (‘semences standard’), the Spanish version (‘semillas estándar’), the German version (‘Standardsaatgut’), the Italian version (‘sementi standard’) or the Portuguese version (‘sementes-tipo’). This is seed which has sufficient varietal identity and purity, which is intended mainly for the production of vegetables, fulfils the conditions of purity, content of seeds of other plant species and germination contained in Annex II to the directive, and is subject to official post-control by check inspection.

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11There are catalogues of varieties officially accepted for certification, checking as standard seed and marketing (Article 3(2)).

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12OJ 2002 L 193, p. 33.

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13‘[P]ropagating material’ means parts of plants and all plant material intended for the propagation and production of vegetables, whereas ‘planting material’ means entire plants and parts of plants, including the grafted components, which are planted in order to produce new plants (Article 3(a) and (b)).

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14Decree published in Journal officiel de la République Française No 127, 2 June 1990.

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15JORF, 23 August 1955.

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16This is an asexual method for reproducing multicellular plants, based on the natural or artificial detachment of parts of a plant (stolons, bulbs, tubers, rhizomes), which are able to grow and, in favourable conditions, generate a new plant.

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17OJ 1997 C 87 A, pp. 1 et seq., especially p. 4. The French Government criticises this inclusion and protests that it is unlawful, but its objection is pointless since it did not react at the time in accordance with the procedure laid down in Directive 70/458.

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18The 20th (OJ 1998 C 130 A, p. 5), 21st (OJ 1999 C 167 A, p. 5), 22nd (OJ 2003 C 308 A, p. 5) and 23rd (OJ 2004 C 260 A, p. 8) editions.

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19In the order for reference, the Conseil d'État refers to 28 February 2001 (Recital 2); the applicants in the main action do not give the date of the application; the French Government refers to 21 February 2001 as the date on which De Groot and Bejo asked for the Order to be repealed; Cerafel, in its statement in intervention, likewise did not clarify this point; finally, the Commission assigns the date of 26 February 2001 to the application (Point 17 of its written observations), the same date as is given to the event in the Report for the Hearing (Point 23).

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20In my Opinion in Atzeni and Others and Scalas and Lilliu, I pointed out that the agricultural policy is one of the forms of integration for achieving the Community's economic objectives (point 104).

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21In paragraph 27 of the judgment in Case C-469/00 Ravil [2003] ECR I-5053, it is pointed out that, in the procedure established by Article 234 EC providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the question referred to it (Case C-88/99 Roquette Frères [2000] ECR I-10465, paragraph 18) and to consider provisions of Community law to which the order for reference has not referred (Case C-230/98 Schiavon [2000] ECR I-3547, paragraph 37).

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22Freedom of movement for agricultural goods means transfer without hindrance from places of production to places of processing and consumption. This is stated by Lorvellec, L. in ‘La liberté de circulation des marchandises agricoles’, Derecho agrario ante el tercer milenio(VI Congreso Mundial de Derecho Agrario), ed. University of Almería and Dykinson, S.L., Madrid 2002, p. 709.

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23According to the 23rd recital in the preamble to Directive 70/458, seed satisfying these requirements should, ‘without prejudice to Article 36 of the [EC] Treaty’ (now Article 30 EC, following amendment), be subject to no marketing restrictions other than those provided for in Community rules.

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24Case C-324/DaimlerChrysler [2001] ECR I-9897).

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25Case 8/74 Dassonville [1974] ECR 837, paragraph 5.

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26Point 48 of the Opinion in Case C-317/95 Canadane Cheese Trading and Kouri ECR 1970 I‑4681, which was removed from the register by order of 8 August 1997, after the national court had withdrawn the questions referred for a preliminary ruling.

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27See, to that effect, Case 229/83 Leclerc [1985] ECR 1, paragraph 29.

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28See point 33 of my Opinion in Case 398/98 Commission v Greece [2001] ECR I‑7915.

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In Commission v France, cited above, the Court warns that legislation prohibiting the marketing of foie-gras which is produced in accordance with the rules laid down by the Member State of origin but which does not fully comply with traditional practice in the State of destination is capable of hindering, at least potentially, inter-State trade (paragraph 18).

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Commission v Greece, paragraph 26; Commission v Germany, paragraph 29; 3 Glocken and Others, paragraph 11; and Zoni, paragraph 11.

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Miro, paragraph 22; Smanor, paragraphs 12 and 13; Guimont, paragraph 26; Commission v Spain, paragraphs 79 and 82; and the judgment of 16 January 2003 in Commission v Italy, paragraph 75.

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The representative of the French Government referred to the latter sector at the hearing.

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Joined Cases C-465/02 Germany v Commission and C-466/03 Denmark v Commission, in which judgment is pending.

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In Case C-3/91 Exportur [1992] ECR I-5529, relying on Case 16/74 Centrafarm [1974] ECR 1183, the Court states that Article 36 of the Treaty allows derogations from the free movement of goods only in so far as those derogations are justified for the purpose of safeguarding rights which constitute the specific subject-matter of industrial or commercial property (paragraph 24).

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Smanor, paragraph 18, and Commission v Spain, paragraph 84, inter alia.

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Guimont, paragraph 31, and Commission v Spain, paragraph 86, to which I have referred above, apply this notion.

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In Van der Laan, cited above, the Court points out that the interests of consumers must be protected by means which do not hinder the importation of products which have been lawfully manufactured and marketed in other Member States, in particular by labelling giving the nature of the products sold (paragraph 24). In Smanor, the Court expressly states that principle in paragraphs 15 and 23.

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Subsequently, the notion has been repeated in Case C-366/98 Geffroy [2000] ECR I-6579, paragraph 22, as well as in Commission v France, paragraph 23; Guimont, paragraph 30; Commission v Spain, paragraph 85; and the judgment of 16 January 2003 in Commission v Italy, paragraph 80.

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Before the recent expansion of the Community and excluding the shallots cultivated in France, those grown from seed represented 50% of Community production.