Action brought on 3 March 2004 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-114/04)

(2004/C 106/50)

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 3 March 2004 by the Commission of the European Communities, represented by Dr Bernhard Schima of the Legal Service of the Commission, acting as Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments

The Commission is of the opinion that the measures instituted by the Biologische Bundesanstalt (Federal Biological Agency) are not compatible with the principle of free movement of goods laid down in Articles 28 to 30 EC and the relevant case-law.

The withdrawal of the licence for the reference product without the provision of any period for liquidation of current stocks held by the parallel importers, with the result that the parallel imported products could no longer be sold, constituted an obstacle to the free movement of goods as laid down in the Court’s case-law and therefore was fundamentally incompatible with Article 28 EC.

A parallel importer needs to purchase large quantities of the relevant product abroad in order to offer the product for sale on the market of the importing State at a competitive price and to satisfy his clients’ orders. For this reason it is unavoidable that the parallel importer should hold a certain amount of stock. The automatic disappearance of the possibility of selling that stock after the withdrawal of the licence for the reference product undoubtedly amounts to a quantitative restriction on imports.

This obstacle to trade in respect of the parallel import of plant protection products is not justifiable, since the withdrawal of the licence was not made on one of the grounds laid down in Article 30 EC and in particular not for reasons of public health.