| The case of Mebrom MV v European Commission | | | | importers; and |
| [2007] concerned the importation of pesticides. The | | | | - Limiting imports of methyl bromide on a case by |
| applicant was an importer of the chemical methyl | | | | case basis, thus preventing importers from building up |
| bromide into the European Union. Methyl bromide was | | | | stocks. |
| a pesticide applied to crops by fumigation and as it | | | | The interpretation therefore gave practical effect to |
| depleted the ozone layer, its importation was subject | | | | those provisions and ensured that they were applied |
| to restrictions provided by Council and European | | | | coherently and in a manner that corresponded to the |
| Parliament Regulation (EC) 2037/2000 ("the | | | | overall scheme and the objectives of the Regulation. |
| Regulation"). The Regulation concerned substances | | | | The overall objectives of the Regulation sought to |
| which deplete the ozone layer. | | | | limit the production and use of methyl bromide in |
| Articles 3 and 4 of the Regulation imposed | | | | order to protect the ozone layer. |
| restrictions on the production, use, marketing and | | | | It followed that the European Commission was not |
| selling of methyl bromide. Articles 6 and 7 of the | | | | obliged under the Regulation to award an import |
| Regulation created a system of licences and quotas | | | | quota in 2005 to the applicant as an importer. It was |
| for the chemical's importation and free circulation. | | | | also held that the new system established by the |
| Each year importers applied for import quotas for the | | | | European Commission constituted a lawful application |
| following year, and pursuant to that system the | | | | of Articles 3, 4, 6 and 7 of the Regulation that was |
| applicant had been awarded quotas from 1996 to | | | | compatible with those provisions. |
| 2004. However, in 2004, the European Commission | | | | Secondly, according to settled authority the right to |
| changed the system. According to the new system, | | | | freedom to pursue a trade or profession was not |
| the fumigators now had to request authorisation to | | | | absolute but should be viewed in relation to its social |
| import or produce methyl bromide, before requesting | | | | function. Its exercise might therefore be restricted, |
| importers, such as the applicant, to actually import | | | | provided that such restrictions corresponded to |
| the amount of methyl bromide granted under the | | | | objectives of general interest pursued by the |
| licence. | | | | European Community. It is also important that the |
| In addition to this, importers were no longer entitled | | | | trade or profession did not constitute, with regard to |
| to import quotas from the 1st of January 2005 | | | | the aim pursued, a disproportionate and intolerable |
| onwards, as well as being prevented from building up | | | | interference which infringed upon the very substance |
| stocks. Accordingly, the European Commission | | | | of the rights thus guaranteed. |
| adopted a decision refusing the applicant a quota for | | | | In this case, the new system introduced by the |
| the year 2005. | | | | European Commission simply changed the |
| The applicant brought an action to annul that decision | | | | circumstances in which methyl bromide was imported |
| in the Court of First Instance of the European | | | | and did not mean that the applicant was obliged to |
| Communities. It submitted the following arguments: | | | | cease trading. Furthermore, it did not lead to a |
| - Firstly, that the European Commission had | | | | distortion of the competition in the market, since |
| misapplied the legal framework established in the | | | | importers were not prevented from competing with |
| Regulation; | | | | fumigators for the importation and sale of methyl |
| - Secondly, that the Regulation obliged the European | | | | bromide. |
| Commission to grant it a quota; and | | | | Even if the new system were to be regarded as a |
| - Thirdly, that the new system would oblige current | | | | restriction, the general public interest pursued by the |
| importers to close their businesses, since they would | | | | European Community was the protection of the |
| be excluded from the new system of importation, | | | | ozone layer and any restriction there might be was |
| which would be at odds with the freedom to pursue | | | | justified by the fact that it was imposed in application |
| a trade. | | | | of the Regulation, with which it was consistent. It |
| The action was dismissed. | | | | could not be regarded as disproportionate, intolerable |
| Firstly, in view of the restrictions on the production, | | | | or as infringing upon the very substance of that right |
| use and placing on the market of methyl bromide | | | | since the applicant could continue to pursue its |
| imposed by Articles 3 and 4 of the Regulation, it | | | | previous economic activities, albeit in a different way. |
| followed from the overall scheme of the Regulation | | | | Please contact us for more information on assessing |
| that the purpose of Articles 6 and 7 was to ensure | | | | damages due under termination of a contract at Visit |
| that the importation of methyl bromide did not go | | | | |
| beyond what was strictly necessary for the critical | | | | © RT COOPERS, 2007. This Briefing Note does |
| uses specifically identified. | | | | not provide a comprehensive or complete statement |
| The European Commission's interpretation of Articles | | | | of the law relating to the issues discussed nor does it |
| 3, 4, 6 and 7 of the Regulation achieved the | | | | constitute legal advice. It is intended only to highlight |
| following: | | | | general issues. Specialist legal advice should always be |
| - No longer any allocation of import quotas to | | | | sought in relation to particular circumstances. |