In the case, Söll case (C-420/10), that was submitted to the ECJ for preliminary ruling by the District Court of Hamburg (Germany), two competing companies argue about the interpretation of the term "biocidal product" under the Biocidal Product Directive (98/8/EC).
The bone of contention is a product marketed by the company Tetra GmbH, which contains aluminium hydroxide chloride and which is used against algae in ponds. When added to water in ponds, the algae present in the ponds flocculate, which means that they bond with one another in a mechanical-physical process to form larger units. The algae remains alive and photosynthesizes so longs as it has not been mechanically removed from the water.
In the original competition suit, the plaintiff, the Söll GmbH, argued that the product would be placed on the market unlawfully as it would be a biocidal product of which the active substance is not listed in Annex I or IA to the Biocidal Product Directive (BPD), nor in Annex II to the Second Review Regulation (1451/2007/EC). Referring to a judgment of the appellate court in Hamburg in a previous case, the plaintiff submitted that the term "biocidal product" under the BPD had to be interpreted broadly to ensure effective consumer protection.
Article 2 (1)(a) BPD defines biocidal products as "active substances and preparations containing one or more active substances, put up in the form in which they are supplied to the user, intended to destroy, deter, render harmless, prevent the action of, or otherwise exert a controlling effect on any harmful organism by chemical or biological means."
The plaintiff argued that, for the interpretation of the term "biocidal product," it would be irrelevant whether the product had a direct or indirect effect on the harmful organisms. The decisive factor would be that the "general effect" on the growth of algae was intended and actually took place.
The defendant argued that the product had no controlling effect on the algae, which continues to photosynthesize.
The District Court in Hamburg tended to agree with the defendant and suspended the proceedings pending a preliminary ruling from the ECJ on the following:
1.Does the qualification of a product as "biocidal product" within the meaning of the BPD require a direct biological or chemical effect of the product on the harmful organism itself, intended to destroy, deter, render harmless, prevent the action of, or otherwise exert a controlling effect on it, or is an indirect effect on the harmful organism sufficient?
2.Inasmuch as the court considers the indirect effect as sufficient, would this cover any indirect effect, or are there specific requirements that must be met as regards the indirect effect of a product on the harmful organisms for a product to qualify as a biocidal product?
During the hearing before the ECJ, the parties to the suspended proceedings each submitted a proposal for the court to respond to the two questions reflecting their respective view on the matter (as explained above).
The Kingdom of Belgium and the European Commission also submitted proposals. Belgium took a strict stance on the issue, suggesting that it is irrelevant whether the biological or chemical effect is direct or indirect and that it should be sufficient that the product is "sufficiently effective and is intended to destroy these organisms by chemical or biological means" to qualify as a biocidal product.
The Commission took a less categorical approach: it agreed with Belgium that a direct biological or chemical effect of the product on the harmful organisms itself was not required, but added that "an indirect biological or chemical effect on the harmful organism is at least sufficient in case it is part of an integrative process that aims at preventing the action of or controlling a harmful organism."
It seems that if the Tetra product case were submitted to the Commission, it would qualify the product as a biocidal product on the basis that the use of the aluminium hydroxide chloride may not have a direct chemical or biological effect on the algae itself, but would be part of the cleaning process, which would be divided into: a chemical process (hydrolysis) leading to the flocculation of the algae, and a mechanical process involving the removal of the larger algae units from the ponds. In so doing the Commission would depart from its own stance in the Manual of Decisions, which discusses a similar case involving a pond cleaner (Section 2.3.2) where it concluded that if the algae after flocculation behave in the same way as before, then "there has obviously been no impact on (it). Therefore also in this case the product seems not to be within the scope of the BPD."
There is no obvious difference between the above case contained in the Manual of Decisions and the Tetra product case. Therefore the Commission seems to have changed its view on the matter although the reason remains unclear.
Clearly, the ruling of the ECJ will have a strong impact not only on pond cleaners. The question whether a product having only an indirect effect on the harmful organism qualifies as biocidal is a recurrent theme in the Manual of Decisions. The ECJ's answer will impact greatly on the biocides industry.
