Regulating biocidal products within the European single market : between harmonisation and national restrictions

A recent litigation pending before the French Council of State led to a preliminary ruling by which the European Court of Justice (ECJ) ruled that Member States are allowed to enact restrictive measures relating to commercial practices and advertising of biocidal products, provided that those measures are justified by objectives of protection of the health and life of humans and of the environment, that it is suitable for securing the attainment of those objectives and that it does not go beyond what is necessary in order to attain them.
The Court held that the Biocidal Products Regulation seeks to establish a system of prior authorisation allowing the making available on the market of biocidal products and to identify common principles for evaluating applications for authorisation of those products, but not to harmonise the rules relating to commercial practices linked to their sale.
Therefore, neither the Biocidal Products Regulation nor TFEU provisions preclude national legislation which prohibits commercial practices such as those targeted by article L. 522-18 of the Environmental Code (discounts, price reductions, rebates, the differentiation of general and special sales conditions, the gift of free units or any equivalent practices).
This case illustrates the complexity to determine the balance between the free movement of biocidal products and a high level of protection of public health and the environment within the European single market (ECJ, January 19th 2023, CIHEF and Others v. France, C-147/21).

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Regulating biocidal products within the European single market : between harmonisation and national restrictions