In a judgment of January 19, 2023, the Court of Justice of the European Union, seized of a preliminary question by the French Council of State, ruled that neither Regulation No. 528/2012 on biocidal products, nor the principle of free movement of goods, or more generally, the law of the European Union, did not in itself preclude national regulations prohibiting certain commercial and advertising practices relating to biocidal products authorized on the Union market, which are stricter than those provided for by Union law. Restrictive measures are permitted where they are justified by the objectives of protecting human health and life and the environment, are suitable for securing the attainment of those objectives and do not go beyond what is necessary to attain them.

However, the Court held that the regulation on biocidal products precludes national legislation which requires a statement, in addition to that provided for by that regulation, to be made on advertising for professionals in respect of biocidal products falling within product types 2 (disinfectants and algaecides not intended for direct application to humans or animals) and 4 (surfaces in contact with food and animal feed), as well as product types 14 and 18. For the area concerning the statements relating to the risks associated with the use of biocidal products which may be used in their advertising has been harmonized, in a comprehensive manner, by the Union legislature.

However, the Court held that the Member States may prohibit the advertising to the general public of biocidal products which present the highest risks to human health (product types 2, 4, 14 and 18), provided that it applies without distinction to all the operators concerned carrying on their activity on French territory and that it affects in the same way, in law and in fact, the marketing of domestic products and that of products from other Member States.

This reference for a preliminary ruling was made in the context of a litigation between the Inter-Trade Committee for French Essential Oils and eight companies operating in the essential oils sector and the Minister for Ecological Transition and the Prime Minister concerning two actions seeking the annulment, first, of Decree No 2019-642, of June 26, 2019, relating to prohibited commercial practices for certain categories of biocidal products, and, second, of Decree No 2019-643, of June 26, 2019, relating to commercial advertising for certain categories of biocidal products. Decree No. 2019-642 provides that biocides may not be subject to certain commercial practices, such as rebates, price reductions and discounts. Decree No. 2019-643, on the other hand, limits commercial advertising of biocides. According to the applicants, these two decrees were incompatible with the Biocidal Products Regulation.