Case C-59/11

Association Kokopelli

v

Graines Baumaux SAS

(Reference for a preliminary ruling from the Cour d’appel de Nancy)

‛Agriculture — Directives 98/95/EC, 2002/53/EC, 2002/55/EC and 2009/145/EC — Validity — Vegetables — Sale on the national seed market of vegetable seed not included in the official common catalogue of varieties of vegetable species — Non-compliance with system of prior authorisation for marketing — International Treaty on Plant Genetic Resources for Food and Agriculture — Principle of proportionality — Freedom to conduct a business — Free movement of goods — Equal treatment’

Summary of the Judgment

1. Questions referred for a preliminary ruling — Admissibility — Assessment as to whether the questions are necessary being a matter for the national court — General or hypothetical questions — Inadmissibility

   (Art. 267 TFEU)

2. European Union — Judicial review of the legality of acts of the institutions — Measures of general scope — Need for natural or legal persons who cannot directly challenge those acts to have recourse to a plea of illegality or a reference for a preliminary ruling on validity

   (Arts 263, fourth para., TFEU and 277 TFEU)

3. Agriculture — Common agricultural policy — Objectives — Discretion of the institutions — Judicial review — Limits — Principle of proportionality — Scope — Taking into account of the other interests involved, apart from the main objective pursued — Directives 2002/55 and 2009/145 on the marketing of seed — Observance of that principle — Infringement of the right to pursue an economic activity — Not included

   (Arts 40 TFEU and 43 TFEU; Council Directive 2002/55; Commission Directive 2009/145)

4. EU law — Principles — Equal treatment — Concept — Directives 2002/55 and 2009/145 on the marketing of seed — Difference in treatment between seed of conservation varieties and standard seed that may be accepted for inclusion in the official catalogues — Seed having different characteristics — Lawfulness

   (Council Directive 2002/55; Commission Directive 2009/145)

5. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Article 34 TFEU — Scope — Measures adopted by the institutions of the European Union — Included — Directives 2002/55 and 2009/145 on the marketing of seed — Measures promoting the free movement of goods

   (Art. 34 TFEU; Council Directive 2002/55; Commission Directive 2009/145)

6. International agreements — European Union agreements — Effects of an agreement in the legal order of the European Union where not expressly provided for in that agreement — Examination of the validity of an act of the European Union in the light of the provisions of that agreement — Conditions — Infringement of the International Treaty on Plant Genetic Resources for Food and Agriculture by Directives 2002/55 and 2009/145 — Excluded — No provisions in that treaty that are unconditional and sufficiently precise to challenge the validity of those directives

   (Arts 216(2) TFEU and 267 TFEU; Council Directive 2002/55; Commission Directive 2009/145)

1.  See the text of the decision.

   (see paras 28, 29)

2.  See the text of the decision.

   (see paras 34, 35)

3.  In matters concerning the common agricultural policy the EU legislature has a broad discretion which corresponds to the political responsibilities given to it by Articles 40 TFEU and 43 TFEU; accordingly the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate, having regard to the objective which the competent institution is seeking to pursue.

   However, while the importance of the objectives pursued may justify restrictions which have adverse consequences, and even substantial adverse consequences, for certain traders, it is appropriate to ascertain, when examining the constraints relating to the various possible measures, whether the EU legislature fully took into account all the interests involved, apart from the main objective pursued.

   That is so in the case of Directive 2002/55 on the marketing of vegetable seed and Directive 2002/145 providing for certain derogations, for acceptance of vegetable landraces and varieties which have been traditionally grown in particular localities and regions and are threatened by genetic erosion and of vegetable varieties with no intrinsic value for commercial crop production but developed for growing under particular conditions and for marketing of seed of those landraces and varieties. It follows from recitals 2 to 4 in the preamble to Directive 2002/55 that the primary objective of the rules relating to the acceptance of seed of vegetable varieties is to improve productivity in vegetable cultivation in the European Union. The establishment of a common catalogue of varieties of vegetable species on the basis of national catalogues, as provided for by that directive, is capable of ensuring that that objective is attained.

   Directive 2002/55 is also intended to establish the internal market for vegetable seed by ensuring its free movement within the European Union. In the present case, the acceptance regime laid down by that directive contributes to the attainment of that objective, since such a regime ensures that seed marketed in the various Member States will satisfy the same requirements.

   Lastly, as is apparent from Article 4(4) of Directive 2002/55, the directive is also aimed at conserving plant genetic resources. In that regard, in so far as the Member States may depart from the acceptance criteria set out therein in accordance with the derogating acceptance regime implemented by Directive 2009/145, which applies to certain categories of seed, such a regime is capable of ensuring that that objective also is attained.

   A less restrictive measure, such as labelling, would not be as effective a means of ensuring that those objectives are attained, since it would allow the sale and, therefore, the sowing of seed that is potentially harmful or not conducive to optimum agricultural production. It follows from this that that legislation cannot be regarded as being manifestly inappropriate in the light of the aforementioned objectives.

   In view of the appropriateness of that legislation, the obstacle to the freedom to pursue an economic activity which the measures provided for by that legislation represent cannot, in the light of the aims pursued, be regarded as disproportionately impairing the right to exercise that freedom.

   (see paras 39, 40, 43, 44, 47-49, 60, 79)

4.  See the text of the decision.

   (see paras 70, 72-76)

5.  See the text of the decision.

   (see paras 80, 81)

6.  See the text of the decision.

   (see paras 84-89)

Case C-59/11

Association Kokopelli

v

Graines Baumaux SAS

(Reference for a preliminary ruling from the Cour d’appel de Nancy)

‛Agriculture — Directives 98/95/EC, 2002/53/EC, 2002/55/EC and 2009/145/EC — Validity — Vegetables — Sale on the national seed market of vegetable seed not included in the official common catalogue of varieties of vegetable species — Non-compliance with system of prior authorisation for marketing — International Treaty on Plant Genetic Resources for Food and Agriculture — Principle of proportionality — Freedom to conduct a business — Free movement of goods — Equal treatment’

Summary of the Judgment

1. Questions referred for a preliminary ruling — Admissibility — Assessment as to whether the questions are necessary being a matter for the national court — General or hypothetical questions — Inadmissibility

   (Art. 267 TFEU)

2. European Union — Judicial review of the legality of acts of the institutions — Measures of general scope — Need for natural or legal persons who cannot directly challenge those acts to have recourse to a plea of illegality or a reference for a preliminary ruling on validity

   (Arts 263, fourth para., TFEU and 277 TFEU)

3. Agriculture — Common agricultural policy — Objectives — Discretion of the institutions — Judicial review — Limits — Principle of proportionality — Scope — Taking into account of the other interests involved, apart from the main objective pursued — Directives 2002/55 and 2009/145 on the marketing of seed — Observance of that principle — Infringement of the right to pursue an economic activity — Not included

   (Arts 40 TFEU and 43 TFEU; Council Directive 2002/55; Commission Directive 2009/145)

4. EU law — Principles — Equal treatment — Concept — Directives 2002/55 and 2009/145 on the marketing of seed — Difference in treatment between seed of conservation varieties and standard seed that may be accepted for inclusion in the official catalogues — Seed having different characteristics — Lawfulness

   (Council Directive 2002/55; Commission Directive 2009/145)

5. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Article 34 TFEU — Scope — Measures adopted by the institutions of the European Union — Included — Directives 2002/55 and 2009/145 on the marketing of seed — Measures promoting the free movement of goods

   (Art. 34 TFEU; Council Directive 2002/55; Commission Directive 2009/145)

6. International agreements — European Union agreements — Effects of an agreement in the legal order of the European Union where not expressly provided for in that agreement — Examination of the validity of an act of the European Union in the light of the provisions of that agreement — Conditions — Infringement of the International Treaty on Plant Genetic Resources for Food and Agriculture by Directives 2002/55 and 2009/145 — Excluded — No provisions in that treaty that are unconditional and sufficiently precise to challenge the validity of those directives

   (Arts 216(2) TFEU and 267 TFEU; Council Directive 2002/55; Commission Directive 2009/145)

1.  See the text of the decision.

   (see paras 28, 29)

2.  See the text of the decision.

   (see paras 34, 35)

3.  In matters concerning the common agricultural policy the EU legislature has a broad discretion which corresponds to the political responsibilities given to it by Articles 40 TFEU and 43 TFEU; accordingly the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate, having regard to the objective which the competent institution is seeking to pursue.

   However, while the importance of the objectives pursued may justify restrictions which have adverse consequences, and even substantial adverse consequences, for certain traders, it is appropriate to ascertain, when examining the constraints relating to the various possible measures, whether the EU legislature fully took into account all the interests involved, apart from the main objective pursued.

   That is so in the case of Directive 2002/55 on the marketing of vegetable seed and Directive 2002/145 providing for certain derogations, for acceptance of vegetable landraces and varieties which have been traditionally grown in particular localities and regions and are threatened by genetic erosion and of vegetable varieties with no intrinsic value for commercial crop production but developed for growing under particular conditions and for marketing of seed of those landraces and varieties. It follows from recitals 2 to 4 in the preamble to Directive 2002/55 that the primary objective of the rules relating to the acceptance of seed of vegetable varieties is to improve productivity in vegetable cultivation in the European Union. The establishment of a common catalogue of varieties of vegetable species on the basis of national catalogues, as provided for by that directive, is capable of ensuring that that objective is attained.

   Directive 2002/55 is also intended to establish the internal market for vegetable seed by ensuring its free movement within the European Union. In the present case, the acceptance regime laid down by that directive contributes to the attainment of that objective, since such a regime ensures that seed marketed in the various Member States will satisfy the same requirements.

   Lastly, as is apparent from Article 4(4) of Directive 2002/55, the directive is also aimed at conserving plant genetic resources. In that regard, in so far as the Member States may depart from the acceptance criteria set out therein in accordance with the derogating acceptance regime implemented by Directive 2009/145, which applies to certain categories of seed, such a regime is capable of ensuring that that objective also is attained.

   A less restrictive measure, such as labelling, would not be as effective a means of ensuring that those objectives are attained, since it would allow the sale and, therefore, the sowing of seed that is potentially harmful or not conducive to optimum agricultural production. It follows from this that that legislation cannot be regarded as being manifestly inappropriate in the light of the aforementioned objectives.

   In view of the appropriateness of that legislation, the obstacle to the freedom to pursue an economic activity which the measures provided for by that legislation represent cannot, in the light of the aims pursued, be regarded as disproportionately impairing the right to exercise that freedom.

   (see paras 39, 40, 43, 44, 47-49, 60, 79)

4.  See the text of the decision.

   (see paras 70, 72-76)

5.  See the text of the decision.

   (see paras 80, 81)

6.  See the text of the decision.

   (see paras 84-89)