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Monday, 12 November 2007

Parallel pesticides, personal use

With some small relevance to intellectual property, via the significance of forcible branding of parallel imported products, is the European Court of Justice ruling last week, in Criminal proceedings concerning Escalier and Criminal proceedings concerning Bonnarel (Joined Cases C-260/06 and C-261/06).

Right: not every Escalier ends up in court ...

The defendants were French wine growers. Each was accused of having in his possession, with intent to use, pesticidal products designed for agricultural use which did not have a marketing authorisation. Escalier was also accused of using such products, while Bonnarel was also accused of failing to destroy such products. In each case the product in question originated from Spain. Both defendants appealed against their convictions, arguing that the products at issue had already obtained market authorisation in France when imported by other importers, or that their pesticides were similar or identical to products authorised there. They also submitted that the French simplified marketing authorisation procedure and the provision of French law that provided the legal basis for their prosecution could not be applied to farmers who were importing products for personal purposes rather than for commercial ones. Not only that, but the French simplified marketing authorisation procedure did not comply with Community law or, at the least, was disproportionate because of its complexity and its cost. The Cour d’appel de Montpellier stayed the proceedings and referred the following questions concerning the interpretation of Articles 28 and 30 of the EC Treaty to the European Court of Justice for a preliminary ruling:

"(1) Where a Member State subjects the importation of a plant protection product from another Member State in which the product already has a marketing authorisation issued in accordance with [the Directive] to a simplified marketing authorisation procedure in order to verify that the product imported meets the identity requirements laid down in Case C‑100/96 [British Agrochemicals Association [1999] ECR I‑1499], is that Member State entitled to make an operator subject to that simplified authorisation procedure where:

– the importer is a farmer who is importing the product solely for the needs of his farm, which are manifold but limited in quantity, and is therefore not placing it on the market in the commercial sense which that concept implies;

– the simplified marketing authorisation procedure constituting import authorisation is personal to each operator/distributor, who is required to give the product imported his own brand name and is subject to a charge of EUR 800?

(2) If the reply to the first question is negative, can the judgment in Case C‑212/03 [Commission v France [2005] ECR I‑4213] on personal imports of medicinal products by individuals be applied to the case of plant protection products imported by farmers solely for the needs of their farms?"
Last Thursday the Court ruled:

"A Member State may subject to a simplified marketing authorisation procedure the parallel import of a plant protection product from another Member State in which it already has the benefit of such an authorisation, where the importation is made by a farmer solely for the needs of his farm, and the marketing authorisation thus granted is personal to each operator. It cannot be made a condition of that authorisation that the imported product be named with the brand name belonging to the operator concerned where he is a farmer who is making the parallel importation solely for the needs of his own farm. That authorisation cannot be subject to payment of a charge which bears no relation to the costs incurred by the control or the administrative steps needed for examination of the authorisation application. An appraisal of such costs as a fixed sum is however permissible provided that the principle of proportionality is observed".
On the issue of forcible branding the Court had this to say:

"44 As regards the obligation to designate the plant protection product introduced as a parallel import with the operator’s brand name, the French Government, supported by the Netherlands Government, claims that French law imposes no such obligation. French law only requires, under the annex to the ministerial order of 17 July 2001, the provision, in support of an application for marketing authorisation, of ‘the trade name to be used in France for the product for which application is made’.

45 Such an obligation, whether what is involved is attaching a trade name to the product concerned or naming it with the brand name of the operator, is neither appropriate nor necessary to achieve the objectives of protection of human and animal health and of the environment, in the case of parallel import of a product made with a view to its use solely for the needs of a farmer’s holding.

46 It follows that such an obligation cannot be considered to be justified on the grounds of protection of human and animal health and of the environment in cases such as those at issue in the main proceedings and consequently, that obligation cannot be imposed on the parties concerned".
The IPKat thinks this must be right: to require the imposition of a brand name in such circumstances can serve no purpose at all. Merpel has her lingering doubts: can all products that are imported for personal use be guaranteed not to enter the market at a later stage, for example following a seizure or forced sale of the importer's stock?

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