The Court of Justice of the European Union ruled on Thursday 19 January that European Union law does not prevent Member States from restricting the sales promotion of biocidal products, if such barriers to free movement are appropriate to protect public health and the environment (Case C-147/21).
In the name of the free movement of goods, French manufacturers of essential oils challenged before the Council of State two French decrees prohibiting certain commercial practices (discounts, rebates) for insecticides and rodenticides and limiting commercial advertising for these products and certain disinfectants.
Referring to a preliminary ruling, the Court found that the European treaties and the regulation (528/2012) governing the placing of biocidal products on the market do not preclude national legislation which prohibits certain commercial practices (discounts, rebates, differentiation of general and special terms and conditions of sale) relating to biocidal products of types 14 (rodenticides) and 18 (insecticides, acaricides, etc.). It is up to the Council of State to verify whether such prohibitions are justified by the objectives of protecting human health and life and the environment and do not go beyond what is necessary to achieve them.
However, the European Court is of the opinion that the biocidal products regulation precludes a national legislation which requires a statement, in addition to that provided for in the regulation, to be made in advertising to professionals for biocidal products falling within product types 2 (disinfectants and algaecides not intended for direct application to humans or animals) and 4 (surfaces in contact with food and animal feed), as well as product types 14 and 18.
According to the Court, the regulation already contains a provision regulating, in a detailed and comprehensive manner, the wording of statements relating to the risks associated with the use of biocidal products which may appear in advertising relating to biocidal products. It requires the addition of the note “Use biocides safely. Always read the label and product information before use.”, and prohibits potentially misleading statements such as, “low-risk biocidal product”.
Furthermore, the Court ruled that EU law does not preclude national legislation which prohibits the advertising of biocidal products (types 2, 4, 14 and 18) to the general public. In its view, such a provision does not go beyond what is necessary to protect public health and the environment, as advertising to professionals remains permitted.
It is also down to the court which referred the case to verify that the French decrees apply without distinction to operators carrying out their work in France, and that they affect in the same way, in law as in fact, the marketing of national products and those originating in other Member States. This ban is also limited in scope, as it targets the four types of biocidal products that pose the greatest risk to health.
See the Court’s judgement: https://aeur.eu/f/50c (Original version in French by Mathieu Bion)