Products not killing algae still are biocides

Case C-420/10, Söll Gmbh v Tetra Gmbh, 1 March 2012

The Biocides Directive defines biocides as active substances and preparations containing one or more active substances, 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. It obliges member states to ensure that only authorized biocidal products are placed on the market and used in their territory.

The Court considered the definition’s scope in its preliminary ruling in a case between German manufacturers of anti-algae products for use in ponds. Aluminium chlorohydrate, the active substance in the product in question, has not been notified under the EU review procedure of Regulation no 1451/2007. The producer, Tetra, argued that its product could not be classified as biocidal substance since it does not kill the algae but only facilitates their removal; when poured into water, the active substance takes the form of a net that in which the algae stick together, making it easy to remove them. Tetra’s competitor, Söll, argued that a product with a non-notified active substance cannot be legally placed on the market, and that Tetra engaged in unfair competition. According to the referring German court, if the product in question were to be classified as a ‘biocidal product’ within the meaning of the Biocides Directive, the marketing of that product would indeed be unlawful.

While contending that products destroying organisms like algae fall under the definition of biocides, the ECJ considered whether the same holds true for products which only affect the environment of the harmful organism, and not the organism itself. Following the Advocate General’s opinion, the Court pointed out a discrepancy between different language versions of the definition of biocides, focusing on the wording “exert a controlling effect”. Some versions are believed to suggest that a biocidal product must be intended to have a direct effect on the target organism. Other versions are said to refer to a broader controlling effect of such products on the organism.

Having recognized these semantic differences between the different language versions of the directive, the Court placed interpretative emphasis on its purpose and general scheme to determine the scope of the biocides definition. It found that the objective of providing a high level of protection for humans, animals and the environment would be compromised if the biocides definition excluded products of indirect biological or chemical impact on the target harmful organism. The ECJ also pointed out that exerting greater control over the target harmful organisms or facilitating their elimination is sufficient to say that the substance has a controlling effect. It concluded that such products must be seen as falling under the concept of biocides when they trigger a “chemical or biological action which forms an integral part of a causal chain, the objective of which is to produce an inhibiting effect in relation to those organisms.