The Advocate General at the European Court of Justice has issued his interpretation of the term 'biocidal product' in the case of Söll (C-420/10).
Bone of contention
In our bulletin of June 2011 we reported on the case that was submitted to the ECJ for preliminary ruling by the District Court of Hamburg (Germany), where two competing companies argued 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 it is added to the water in ponds the algae present in the ponds flocculate, which means that they bond to each other in a mechanical-physical process and form larger units. The algae continue to live and to photosynthesize as longs as they are not 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 listed neither in Annex I or IA to the Biocidal Product Directive (BPD), nor in Annex II to the Second Review Regulation (1451/2007/EC).
Regulatory Definition & Interpretation
Article 2 (1)(a) BPD in its English version, 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.”
Advocate General Niilo Jääskinen concludes in his opinion of 27 October 2011 that an indirect effect on the harmful organism by biological or chemical means is sufficient, inasmuch as the effect is part of a causation chain which aims at otherwise exerting a controlling effect on the harmful organism.
In his analysis, the Advocate General examines the question whether a product which does not have an effect on the harmful organism itself but solely on its environment is covered by the definition of 'biocidal product'.
He commences by stating that, at the very least, the definition does not exclude such a product. He then moves on to focus on the interpretation of the phrase "or otherwise exert a controlling effect". He states that in some versions of the definition, e.g. in the German one which had been submitted by the German court, as well as in the French version, the wording is more restrictive ("in anderer Weise zu bekämpfen", and "combattre de toute autre manière", respectively). In contrast, other versions, e.g. the English ("exert a controlling effect") and the Italian versions ("esercitare altro effetto di controllo"), talk of a more general controlling effect.
Against the background that the BPD aims for the protection of humans, animals and the environment, the Advocate General finds it appropriate to interpret the phrase in a broad way in the sense of "control" of harmful organisms. He sees this interpretation as being also justified by the definition of an 'active substance' in the BPD, which encompasses substances and micro-organisms "having general or specific action on or against harmful organisms".
He further argues that it is sufficient that the product initiates a causation chain at the end of which the life of the harmful organism will either be hampered, its presence reduced or it will become easier to control. In such a case, the product would be part of an integrative process that aims at destroying or controlling harmful organisms. The Advocate General concludes that such a product would, therefore, have to be classified as 'biocidal product' even if it does not exert a direct effect on the harmful organisms by chemical or biological means.
Conclusion
The opinion of the Advocate General in the Söll case is in line with the jurisdiction of the European Court of Justice which has often stressed that the scope of legislation aiming at a high level of protection of human health and the environment has to be interpreted broadly. Therefore, no surprises are expected to come from the judgment in the case of Söll.
