EN

Official Journal of the European Union

C 180/33

(Case C-190/09)

2009/C 180/57

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: I. Khatzigiannis, A. Margelis, acting as Agents)

Defendant: Republic of Cyprus

Form of order sought

The Court is asked to:

—declare that, by prohibiting the distribution and sale of biofuels produced from genetically modified plants and by enacting section 6 of Law 66(I) of 2005 without previous notification to the European Commission, the Republic of Cyprus is in breach of its obligations under Article 28 EC and Article 8(1) of Directive 98/34/EC (1);

—order the Republic of Cyprus to pay the costs.

Pleas in law and main arguments

Cypriot Law No 66(I) of the promotion of the use of biofuels or other renewable fuels for transport transposes into Cypriot law Directive 2003/30/EC on the promotion of the use of biofuels or other reusable fuels for transport. However, section 6 of that Cypriot law contains a clause pursuant to which the distribution and sale of biofuels produced from genetically modified plants is prohibited.

The cultivation of approved varieties of genetically modified (GM) plants in the European Union is lawful on the basis of Directive 2001/18/EC and Regulation (EC) No 1829/2003. Nevertheless, processed fuels produced from genetically modified plants do not fall within the scope of application of that legislation and consequently the compatibility of the clause with Articles 28 to 30 of the EC Treaty falls to be examined.

As regards infringement of Articles 28 to 30 of the EC Treaty, the Commission considers, first, that the Cypriot prohibition is not necessary to protect any kind of public interest and, second, that the national rules which prohibit a product absolutely are contrary to the principle of proportionality.

As regards infringement of Directive 98/34/EC, the Commission considers that section 6 of Law No 66(I) 2005 constitutes a technical regulation within the meaning of Article 1 thereof, and does not fall within the exemption of Article 10(1), first indent. Consequently, the Cypriot authorities were required to inform the Commission of the above provision. Since the Cypriot authorities enacted the provision without prior notification, they were in breach of their obligation under Article 8(1) of Directive 98/34/EC.

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(1) OJ L 204 of 21.7.1998, p. 37.