ECLI:EU:C:2026:461

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OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 4 June 2026 (1)

Case C‑33/25

T vof

Stichting Bloembollenkeuringsdienst

(Request for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Supreme Administrative Court for Trade and Industry, Netherlands))

( Reference for a preliminary ruling – Directive 98/56/EC – Scope – Planting of flower bulbs infected with a virus – Enforcement – Fine – Conservation of genetic diversity )

I. Introduction

1. In 1636 and 1637, the Kingdom of the Netherlands witnessed ‘Tulip Mania’, widely regarded as the first economic bubble in history. During that period, the price of a tulip bulb could exceed that of real estate or a piece of art. The bubble seemed to have been triggered by the ‘broken tulip’, a rare, mysterious and beautiful bicoloured flower that led to soaring demand. It was not until 1928 that it was discovered that the colouring of that flower was actually caused by a virus – the tulip-breaking virus (‘the TBV’). (2)

2. In the case in the main proceedings, several lots of tulips were found to be infected with the TBV. The competent authority prohibited their replanting, regardless of whether the resulting bulbs were intended for marketing.

3. The referring court thus seeks to clarify the scope of Directive 98/56/EC. (3) It wishes to know whether the health and quality requirements laid down in that directive apply solely to the marketing stage, or equally to the planting stage, and, if only to marketing, then whether Member States remain free to extend those requirements to the planting stage.

4. It may be said that the present case illustrates the downfall of the broken tulip, from being a luxury commodity to becoming an undesirable or even banned item. (4)

II. Legal framework

A. European Union law

5. Recitals 3, 8, 9 and 10 of Directive 98/56 are worded as follows:

‘(3) Whereas the establishment of harmonised conditions at [EU] level will ensure that purchasers throughout the [European Union] receive propagating material which is healthy and of good quality;

…

(8) Whereas in the first instance it is the responsibility of the suppliers of propagating material to ensure that their products fulfil the conditions laid down in this Directive;

(9) Whereas the competent authorities of the Member States, when carrying out controls and inspections, should ensure that suppliers fulfil those conditions;

(10) Whereas [EU] control measures should be introduced to ensure uniform application in all the Member States of the standards laid down in this Directive;’

6. Pursuant to the first sentence of its Article 1(1), ‘this Directive shall apply to the marketing of propagating material of ornamental plants within the [European Union].’

7. Article 2(2) and (3) provides:

‘For the purpose of this Directive, the following definitions shall apply:

…

2. “Supplier”: any natural or legal person engaged professionally in marketing or importing of propagating material.

3. “Marketing”: sale or delivery by a supplier to another person. “Sale” includes holding available or in stock, display with a view to sale, offering for sale.’

8. Article 3 of that directive provides:

‘1. Suppliers may market propagating material only if it meets the requirements laid down in this Directive.

2. Paragraph 1 shall not apply to propagating material intended for:

…

3. Detailed rules for the application of paragraph 2 may be adopted in accordance with the procedure laid down in Article 17.’

9. Article 5(1), (2) and (4) of that directive provides:

‘1. … propagating material when marketed:

– shall at least on visual inspection, be substantially free from any harmful organisms impairing quality, or any signs or symptoms thereof, which reduce its usefulness,

…

– if marketed with reference to a variety pursuant to Article 9, shall have satisfactory varietal identity and purity.

2. Any propagating material which, on the basis of visible signs or symptoms, is not substantially free of harmful organisms, shall be properly treated or, where appropriate, shall be removed.

…

4. In the case of flower bulbs the following requirement shall also be met:

– the propagating material shall be derived directly from material which, at the stage of the growing crop, has been checked and found to be substantially free from any harmful organisms and diseases, signs or symptoms thereof.’

10. In accordance with Article 7(1) and (2) of that directive:

‘1. Suppliers engaged in production of propagating material shall:

– identify and monitor critical points in their production process which influence the quality of the material,

– keep information, for examination when requested by the responsible official body on the monitoring laid down in the first indent,

– take samples where necessary for analysis in a laboratory with suitable facilities and expertise,

– ensure that, during production, lots of propagating material remain separately identifiable.

2. In the case of the appearance, on the premises of a supplier engaged in the production of propagating material, of a harmful organism listed in Directive 77/93/EEC [(5)] or in any measures established pursuant to Article 5(5), the supplier shall report it to the responsible official body and shall carry out any measures laid down by that body.’

11. Article 8(1) and (2) of that directive provides:

‘1. Propagating material shall be marketed in lots. …

2. Propagating material when marketed shall be accompanied by a label or other document made out by the supplier.’

12. Article 12(1) provides:

‘Member States shall require that suppliers take all necessary measures to guarantee compliance with the requirements of this Directive. To this end Member States shall ensure that propagating material is officially inspected:

– at least by random checks, and

– at least in respect of marketing to persons professionally engaged in production or sale of ornamental plants or propagating material,

to verify compliance with the requirements. …

…’

13. Article 13 provides:

‘1. If, during official inspections referred to in Article 12 … it is found that propagating material does not meet the requirements of this Directive, the responsible official body shall ensure that the supplier takes appropriate corrective action or, if that is not possible, shall prohibit the marketing of that propagating material in the [European Union].

2. If it is found that propagating material marketed by a particular supplier does not comply with the requirements of this Directive, the Member State concerned shall ensure that appropriate measures are taken in relation to that supplier.

3. Any measures taken under paragraph 2 shall be withdrawn as soon as it has been established with sufficient certainty that the propagating material intended for marketing by the supplier will, in future, comply with the requirements and conditions of this Directive.’

14. Article 15 of that directive provides that ‘the marketing of propagating material which complies with the requirements of this Directive shall be subject to no restrictions as regards supplier, quality, plant health, labelling and packaging, other than those laid down in this Directive.’

B. Dutch law

15. Article 1 of the Landbouwkwaliteitsbesluit 2007 (Decree on the Quality of Agricultural Products of 2007) transposes into Dutch law certain definitions set out in Article 2 of Directive 98/56. The definition of ‘marketing’ is equivalent to that provided for in that directive.

16. Pursuant to Article 9 of that decree, ‘flower bulb propagating material shall only be marketed if it complies with Articles 3 to 9 of Directive [98/56] and with the rules laid down in or pursuant to this Decree.’

III. Facts, procedure and the questions referred

17. T vof (‘the applicant’) is a vennootschap onder firma (general partnership) and is involved in the cultivation of flower bulbs. It is affiliated with the Stichting Bloembollenkeuringsdienst (Flower Bulb Inspection Service Foundation; ‘the BKD’).

18. In the spring of 2020, upon field inspections at the applicant’s premises, the BKD found that five lots of tulips, each of a different variety, were infected with the TBV (‘the lots concerned’). Accordingly, those lots were rejected.

19. In the 2021 Registratie voorjaarsgewassen (2021 Spring Crop Registration), the applicant indicated that it had replanted the lots concerned.

20. In a letter dated 20 January 2021, the BKD asked for clarification on the matter. By email of 21 January 2021, the applicant replied that it had registered more than 400 varieties and that the five lots concerned had slipped through the net. Furthermore, it applied for dispensation to plant those lots.

21. On 25 January 2021, the BKD ordered the applicant to destroy three of the lots concerned, failing which the matter would be submitted to the Tuchtgerecht voor de Bloembollensector (Disciplinary Court for the Flower Bulb Sector, Netherlands). Additionally, it granted a dispensation for the one-off planting of the remaining two lots, subject to conditions. The BKD informed the applicant that, as a result of the premature planting and the failure to submit a timely application, it would submit that matter to that court for review.

22. The following day, the applicant requested permission to clean up the lots by identifying and removing those tulip bulbs contaminated with the TBV, which the BKD refused. Accordingly, after grubbing up the flower bulbs, the applicant identified and removed those contaminated with the TBV from two of the lots concerned and destroyed the other three lots.

23. In the disciplinary statement, the BKD charged the applicant with planting, or at least cultivating, in the autumn of 2020, tulip bulbs of the lots concerned with a view to harvesting, or at least producing commercially, those bulbs which did not originate directly from material which, at the stage of the growing crop, was checked and found to be substantially free from any harmful organisms and diseases, signs or symptoms thereof, as required by Article 9 of the Decree on the Quality of Agricultural Products of 2007, in conjunction with Article 3(1) and Article 5(4) of Directive 98/56.

24. On 13 January 2022, the Tuchtgerecht voor de Bloembollensector (Disciplinary Court for the Flower Bulb Sector) declared those charges proven and imposed a fine of EUR 12 500 on the applicant.

25. The applicant lodged an appeal against that ruling before the College van Beroep voor het bedrijfsleven (Supreme Administrative Court for Trade and Industry, Netherlands), which is the referring court.

26. Before that court, the applicant argues that it is the only grower to cultivate the varieties at issue, of which there is only a small number of bulbs available. Accordingly, destroying the bulbs would result in destroying the variety. When diseases are found in such a rare tulip variety, growers try to identify and remove the infected bulbs in order to prevent the variety from becoming extinct. For purely commercial reasons, it would make more sense to destroy all the bulbs infected, or at least not replant them, as the costs of identifying and removing them often outweigh the resulting revenues. While the applicant planted the lots concerned in 2020, it did not market them afterwards nor did it intend to do so.

27. For its part, the BKD claims that the planting of lots that have been rejected infringes Article 3(1) of Directive 98/56, in conjunction with Article 5(4) thereof. In its view, the definition of ‘marketing’, as laid down in Article 2(3) of that directive, includes ‘holding available’. The applicant held flower bulbs ‘available’ by growing them and thus marketing them. That means that the requirements that the propagating material must meet, laid down in Articles 3 to 9 of Directive 98/56 (and referred to in Article 9 of the Decree on the Quality of Agricultural Products of 2007), do indeed apply.

28. In those circumstances, the referring court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must the phrase “holding available or in stock” in Article 2(3) of [Directive 98/56] be interpreted as meaning that it also applies if propagating material in the form of flower bulbs has been planted but not yet harvested, so that even the planting of flower bulbs constitutes marketing within the meaning of that provision?

(2) Does the exception in Article 3(2)(c) of [Directive 98/56] also apply to the situation in which a flower bulb grower plants flower bulbs with a view to conserving a certain cultivar [(6)]?

(3) Can the exception in Article 3(2)(c) of [Directive 98/56] also be invoked if the detailed rules referred to in Article 3(3) of [Directive 98/56] have not yet been adopted?

(4) Does [Directive 98/56], in view of recital 10 thereof, allow Member States, in provisions of national law intended to implement [Directive 98/56] and which refer to Articles 3 to 9 of [Directive 98/56], to give the term “marketing” a broader meaning than the definition in Article 2(3) of [Directive 98/56], so that the planting of flower bulbs is also considered to be “marketing” and an infringement of those provisions of national law can be punished by a fine?’

29. Written observations were submitted by the Greek and the Netherlands Governments, and the European Commission. The same parties, as well as the applicant, participated in the hearing held on 5 March 2026.

IV. Assessment

A. The first and fourth questions referred

1. Preliminary remarks

30. It should be noted as a preliminary point that, according to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. The Court may also find it necessary to consider provisions of EU law which the national court has not referred to in its question. (7)

31. Moreover, the fact that the referring court has formally referred, in its questions, to certain specific provisions of EU law does not prevent the Court from providing it with all the elements of interpretation which may be useful for the judgment in the main proceedings, by extracting from the body of material provided by that court, and in particular from the statement of reasons for the order for reference, the elements of EU law which require interpretation in the light of the subject matter of the dispute. (8)

32. In that regard, considering its wording, the first question referred solely concerns whether the definition of ‘marketing’ in Article 2(3) of Directive 98/56, particularly the expression ‘holding available or in stock’, encompasses the planting of flower bulbs that have not yet been harvested. If that question is answered in the negative, then by its fourth question the referring court seeks to ascertain if a Member State may extend that definition in order to include the planting of flower bulbs, so that an infringement of national law referring to Articles 3 to 9 of Directive 98/56 can be punished by a fine.

33. However, it is clear from the file before the Court and from the arguments presented at the hearing that the issue in the main proceedings is broader than that indicated by the wording of the questions, in that it also concerns the scope of the harmonisation imposed by Directive 98/56 and, in particular, by Article 5(4) thereof.

34. In fact, according to the referring court, the issue is whether the Tuchtgerecht voor de Bloembollensector (Disciplinary Court for the Flower Bulb Sector) was correct in finding that, by replanting the lots concerned that had been rejected due to the presence of the TBV, the applicant infringed Article 3(1), read in conjunction with Article 5(4), of Directive 98/56.

35. Moreover, the referring court appears to favour an interpretation of the definition of ‘marketing’ in Article 2(3) of Directive 98/56 that does not include activities that take place in the (production) stage of the planting of flower bulbs, (9) at which point they are not yet a finished product. That position is shared by the Greek Government and by the Commission. At the hearing, the Netherlands Government conceded that, strictly speaking, the planting stage does not fall within the scope of ‘marketing’. Nevertheless, it maintained that Directive 98/56 lays down rules applicable to the planting stage.

36. Additionally, by mentioning recitals 10 and 18 of Directive 98/56 in its fourth question and in its statement of reasons, respectively, the referring court is seeking clarification on the degree of harmonisation imposed by that directive and on the power retained by Member States to regulate the field of propagating material of ornamental plants.

37. It thus follows that, by its first question, the referring court asks, in essence, whether Article 3(1) and Article 5(4) of Directive 98/56 must be interpreted as precluding the replanting of material which, at the stage of the growing crop, was found not to be substantially free from harmful organisms and diseases, irrespective of whether the resulting propagating material is intended for marketing, as defined in Article 2(3) of that directive.

38. If that question is answered in the negative, then by its fourth question the referring court asks, in essence, whether Directive 98/56 is to be interpreted as allowing Member States to prohibit the replanting of material which, at the stage of the growing crop, was found not to be substantially free from harmful organisms and diseases, irrespective of whether the resulting propagating material is intended for marketing.

2. The first question referred

(a) The introductory provisions of Directive 98/56 focus on the ‘marketing’ of propagating material

39. Directive 98/56 lays down the requirements to be met by propagating material itself (Title III), by suppliers of propagating material (Title IV), and as regards the marketing and labelling of propagating material (Title V).

40. Those requirements are intended to apply within a given scope. Pursuant to Article 1(1) of Directive 98/56 (under Title I, entitled ‘Scope’), that directive is to apply to the marketing of propagating material of ornamental plants within the European Union.

41. For its part, ‘marketing’ is defined in Article 2(3) of Directive 98/56 as ‘sale or delivery by a supplier to another person. “Sale” includes holding available or in stock, display with a view to sale, offering for sale.’ Likewise, under Article 2(2) of that directive, ‘supplier’ means ‘any natural or legal person engaged professionally in marketing or importing of propagating material’.

42. Moreover, under Article 3(1) of Directive 98/56, suppliers may market propagating material only if it meets the requirements laid down in that directive.

43. In my opinion, a combined reading of those introductory provisions indicates that the scope of Directive 98/56 is limited to the marketing of propagating material, and thus excludes the production of that material.

44. However, Article 5(4) of Directive of 98/56 requires that propagating material be checked at the stage of the growing crop, thus raising the question of whether the health requirement established therein applies to the production stage too.

45. In order to answer the question raised by the referring court, it is therefore necessary to consider the context in which the aforementioned provisions occur and the objectives of Directive 98/56. The origins of EU law provisions may also provide information relevant to their interpretation. (10)

(b) The evolution from Directive 91/682/EEC to Directive 98/56

46. As regards the origins of Directive 98/56, it results from its recitals 19 to 23 that that directive seeks to simplify the regime established by its predecessor, Directive 91/682/EEC, (11) namely by clarifying the persons to be controlled under that legal regime. (12)

47. To that end, the definition of ‘supplier’ was amended in order to encompass significantly fewer activities. (13) Whereas, under Article 3(c) of Directive 91/682, that definition included ‘reproducing, producing, preserving and/or treating and placing on the market’ propagating material or ornamental plants, the definition laid down in Article 2(2) of Directive 98/56 covers only the activities of ‘marketing or importing’.

48. Nevertheless, I shall also note that, pursuant to its Article 1(1), Directive 91/682 applied to the marketing of ornamental-plant-propagating material and ornamental plants.

49. In order to understand fully whether the scope of Directive 91/682 was broader than that of Directive 98/56, it is necessary to compare the general scheme of both directives.

50. As regards the general scheme of Directive 91/682, I wish to state from the outset that, in the same way as Article 3(c) of that directive on the definition of ‘supplier’, several other of its provisions indicate that the requirements it laid down applied to both the marketing and the production stages alike.

51. First, Article 5(1) of Directive 91/682 provided that ‘Member States shall ensure that suppliers take all the necessary measures to guarantee compliance with the standards set by this Directive at all stages of the production and marketing …’. (14)

52. Secondly, Article 17 of Directive 91/682 provided that ‘Member States shall ensure that propagating material and ornamental plants are officially inspected during production and marketing, at least by random checks, to verify compliance with the requirements and conditions of this Directive.’ (15)

53. Thirdly, and in any event, all of the provisions of Directive 91/682 imposing quality and health requirements on propagating material were addressed to ‘suppliers’, thus invariably encompassing all the activities referred to in point 47 of the present Opinion.

54. That brings me to the assessment of the general scheme of Directive 98/56.

(d) The general scheme of Directive 98/56

55. As mentioned above, Title III of Directive 98/56, comprising Articles 3 to 5 thereof, lays down requirements to be met by propagating material.

56. In that regard, Article 3(1) of Directive 98/56 is a general provision determining the consequence of a failure to comply with the requirements set out in Title III, namely that suppliers cannot market propagating material. For its part, paragraph 2 of that article derogates from paragraph 1 thereof, whereby it provides that suppliers may market propagating material intended for the purposes set out in indents (a) to (c), even if that material does not comply with those requirements. (16)

57. For their part, Articles 4 and 5 of Directive 98/56 are the core provisions setting out the requirements to be met by propagating material. Two sets of requirements with relevance to the present case may be distinguished: (i) requirements applicable to all material, laid down in Article 4 and Article 5(1), and (ii) a requirement applicable to flower bulbs, under Article 5(4). Given its relevance for the present case, I will analyse the latter provision separately.

58. Accordingly, without prejudice to the obligation to comply with relevant conditions laid down in other EU acts, (17)when marketed, all propagating material must comply with the requirements laid down in Article 5(1) of Directive 98/56, the first indent of which requires propagating material to be, at least on visual inspection, substantially free from any harmful organisms impairing quality, or any signs or symptoms thereof, which reduce its usefulness.

59. In that regard, in accordance with Article 5(2) of Directive 98/56, if, on the basis of visible signs or symptoms, material is not substantially free of harmful organisms, it must be properly treated or, where appropriate, removed.

60. In that context, the Netherlands Government construes, in essence, Article 5(2) of Directive 98/56 as indicating that the requirements laid down in Article 5 of that directive apply irrespective of whether the material is intended for marketing.

61. I do not share that view.

62. First, as shown by the similar wording used in the first indent of Article 5(1) and in Article 5(2) of Directive 98/56, those two provisions deal with the same requirement, where the latter determines a specific consequence for failure to comply with the requirement laid down by the former. Secondly, Article 5(2) of that directive cannot be interpreted in isolation from Article 5(1) and Article 3(1) thereof, pursuant to which the requirements imposed by that directive apply only to propagating material when marketed.

63. Thus, in essence, Article 5(2) of Directive 98/56 offers an alternative to the prohibition on marketing. If the material is properly treated, it may still be marketed. That possibility is only offered in relation to the requirement laid down in the first indent of Article 5(1) of Directive 98/56 because that is the only requirement that may be satisfied by treating the propagating material. By contrast, the other four indents of Article 5(1) of that directive pertain to aspects that cannot be successfully treated (such as defects or unsatisfactory vigour, dimensions, germination capacity or varietal identity and purity). Accordingly, a failure to comply with those latter requirements can lead only to a prohibition on marketing that material, in accordance with Article 3(1) of that directive.

64. That interpretation is supported by Article 7(2) of Directive 98/56. Article 7, which is under Title IV on the requirements to be met by suppliers, (18) imposes specific requirements on suppliers engaged in the production of propagating material. In particular, under paragraph 2, if a harmful organism listed in Regulation 2016/2031 (19) or in any measures established pursuant to Article 5(5) of Directive 98/56 appears in the premises of a supplier engaged in the production of propagating material, the supplier must report it to the responsible official body and must carry out any measures laid down by that body.

65. Thus, Article 7(2) of Directive 98/56 expressly envisages enforcement measures being taken at the production stage, if the circumstances set out therein arise. In my view, outside that framework, no such enforcement may take place. In the present case, it does not appear from the case file before the Court that the BKD invoked the application of that provision.

66. I shall now consider Title V of Directive 98/56, which is headed ‘marketing and labelling of propagating material’. That heading could give the impression that the other requirements, for instance those listed in Title III to be met by propagating material, applied to other stages too. However, I do not think that that is the case. The provisions of Title V essentially require propagating material to be marketed in lots (Article 8(1)), with reference to a variety, if the conditions set out in Article 9 are met, and to be accompanied by a label (Article 8(2)). The requirements under both Title III and Title V thus concern aspects that form an integral part of the product (20) and apply to the marketing stage. The only difference is that the requirements under Title III are intrinsic to propagating material, whereas the requirements under Title V are extrinsic to it.

67. Finally, Title VIII of Directive 98/56 covers control measures and general provisions, of which Articles 12 and 13 are particularly relevant for the purposes of the present case. While Article 12 concerns inspections to verify compliance with the requirements of that directive, Article 13 deals with enforcement.

68. In that regard, under Article 12(1) of Directive 98/56, Member States are to ensure that suppliers (21) take all necessary measures to guarantee compliance with the requirements of that directive. To that end, pursuant to the second indent of that provision, they are to ensure that propagating material is officially inspected at least in respect of marketing to persons professionally engaged in the production or sale of ornamental plants or propagating material.

69. All of the interested parties intervening before the Court have focused on the expressions ‘at least’ and ‘in respect of marketing’, arguing that inspections may also take place during the production stage. While that interpretation is plausible, it seems to me that the emphasis should be placed on the type of marketing in relation to which inspections are mandatory. (22)

70. That latter interpretation is supported by reading the second indent of Article 12(1) in conjunction with Article 6(2) and Article 8(3) and (4) of Directive 98/56. Pursuant to those provisions, the ‘marketing of propagating material for persons not professionally engaged in the production or sale of ornamental plants or propagating material’ is released from certain requirements imposed by that directive. That indicates that the second indent of Article 12(1) is to be considered as a whole, that is to say, instead of focusing on the dichotomy between ‘marketing’ and ‘producing’.

71. Likewise, if the scope of Directive 98/56 also encompasses production, inspections at that stage would not be optional.

72. In any event, one thing is certain: whereas Article 17 of Directive 91/682 required official inspections during production and marketing, Directive 98/56 refers only to marketing. (23)

73. Finally, Article 13(1) of Directive 98/56 sets out the general consequences for failure to comply with the requirements of that directive, which include ensuring that the supplier takes appropriate corrective action, (24) or, if that is not possible, imposes a prohibition on marketing. Under Article 13(2), where a supplier fails to comply with the requirements of that directive, appropriate measures are to be taken in relation to that supplier, subject to the conditions laid down in Article 13(3).

74. In summary, it appears that Directive 91/682 applied to both the production and the marketing stages alike. By contrast, Directive 98/56 appears to apply only to the marketing stage, without prejudice to Article 7 thereof, which specifically applies to suppliers engaged in the production of propagating material.

75. That conclusion is nonetheless tested by Article 5(4) of Directive 98/56, (25) which requires flower bulbs to be checked at the growing crop stage. It is therefore necessary to clarify the scope of that particular legal provision.

(e) The scope of Article 5(4) of Directive 98/56

76. It follows from the above that only two provisions of Directive 98/56, namely Article 7 and Article 5(4), appear to challenge the otherwise univocal conclusion that that directive applies solely to the marketing of propagating material of ornamental plants.

77. With regard to Article 7 of Directive 98/56, its wording is nonetheless quite straightforward. Consequently, the requirements imposed on producers are well defined. By contrast, Article 5(4) of that directive is not entirely clear as to the type of material it addresses and the legal consequences of a failure to comply with the requirement that it imposes.

78. It will be recalled that, under that latter provision, applicable to flower bulbs, propagating material is to be derived directly from material which, at the stage of the growing crop, has been checked and found to be substantially free from any harmful organisms and diseases, signs or symptoms thereof.

79. As the Commission submitted at the hearing, Article 5(4) of Directive 98/56 refers to two types of material, namely the parent (or source) material and the resulting propagating material. On the one hand, the controls at the stage of the growing crop and the health conditions laid down in that provision concern the parent material. On the other hand, that provision applies to the resulting propagating material when it is marketed.

80. In essence, it is the parent material that has to be checked at the stage of the growing crop and found to be substantially free from any harmful organisms and diseases, signs or symptoms thereof, irrespective of whether that parent material will be marketed or not. Conversely, in line with the general scheme of Directive 98/56, in particular Article 5(1) thereof, resulting propagating material that is intended for marketing has to have been derived from parent material meeting that health condition.

81. It thus follows that parent material that has been checked and is found not to be substantially free from any harmful organisms and diseases, signs or symptoms thereof, cannot be replanted in order to generate propagating material that is intended for marketing. By contrast, if the resulting propagating material is not intended for marketing, the requirement laid down in Article 5(4) of Directive 98/56 does not apply to it.

82. That interpretation is in line, in particular, with that of Article 7(2) of Directive 98/56, referred to in points 64 and 65 of the present Opinion. In that regard, I read Article 7(2) of that directive as a special provision vis-à-vis Article 5(4) thereof. On the one hand, the former deals with, inter alia, planted material infected with a harmful organism listed in Regulation 2016/2031, in which case suppliers are to carry out any measures laid down by the responsible official body, regardless of whether that material will be replanted to generate propagating material intended for marketing. On the other hand, Article 5(4) of Directive 98/56 concerns material contaminated by any ‘harmful organisms and diseases’, which are not necessarily listed in Regulation 2016/2031. In that case, no measures regarding the contaminated parent material are envisaged, since that legal provision applies not to the parent material but to the resulting propagating material, as I observe in point 79 above.

83. Moreover, the interpretation I propose in points 80 and 81 above does not undermine the effectiveness of Directive 98/56, which seeks to ensure that purchasers receive propagating material that is healthy and of good quality. (26)

84. Indeed, Directive 98/56 includes mechanisms to trace the source of propagating material, thus ensuring that it is derived from healthy parent material. In particular, in accordance with Article 6 thereof, suppliers are required to be registered in relation to the activities that they carry out. (27) Moreover, under Article 8(1), suppliers are to keep records of the composition and origin of the different lots. Likewise, under Article 8(2), propagating material, when marketed, is to be accompanied by a label or other document made out by the supplier. (28)

85. In that regard, the present case must be distinguished from the case that gave rise to the judgment in Bundesminister für Gesundheit, (29) referred to by the Netherlands Government in its written observations.

86. In that reference for a preliminary ruling, the Court was asked whether Article 23(2) of Directive 2014/40/EU, (30) read in conjunction with Article 2(40) thereof, must be interpreted as meaning that the obligation of the Member States to ensure that tobacco products whose unit packet labelling infringes the requirements relating to their presentation are not placed on the market is limited to the stage at which those products are supplied by a retail outlet to the consumer, thus excluding the supply of those products by a wholesaler to a retail outlet.

87. Under Article 23(2) of Directive 2014/40, Member States are to ensure that tobacco and related products which do not comply with that directive, and with the implementing and delegated acts provided for therein, are not placed on the market. Article 2(40) of that directive defines the concept of ‘placing on the market’ as making products, irrespective of their place of manufacture, available to consumers located in the European Union, with or without payment, including by means of distance sale. (31)

88. Relying on a contextual and purposive interpretation of the provisions of Directive 2014/40 in question, the Court held that the obligation of the Member States to ensure that tobacco products whose unit packet labelling infringes the requirements relating to their presentation are not placed on the market is not limited to the stage at which those products are supplied by a retail outlet to the consumer. (32)

89. Several aspects prevent that ruling from being applied in the present case. First, in the case that gave rise to the judgment in Bundesminister für Gesundheit, the enforcement of the requirements of Directive 2014/40 at the wholesale stage was instrumental in preventing non-compliant products from ultimately being made available to consumers. In that regard, it would be useless to enforce the requirements of that directive only at the stage of the supply of tobacco products by a retail outlet to consumers, since prior stages necessarily lead to the placing on the market, within the meaning of that directive. (33)

90. By contrast, as argued by the applicant in the present case, the planting of propagating material of ornamental plants does not necessarily lead to marketing, as it may pursue other purposes, such as preventing the extinction of a certain variety.(34) In my view, that distinction is supported by the respective wording of Article 23(2) of Directive 2014/40 and of Article 13(1) of Directive 98/56. The former is a more general obligation, and its effectiveness may require intervention at other levels of the supply chain; the latter is a more specific and targeted obligation, limited to the prohibition of marketing. Moreover, as mentioned in point 84 above, the effectiveness of Directive 98/56 is guaranteed by the traceability mechanisms it establishes.

91. Secondly, propagating material of ornamental plants and tobacco are fundamentally different products. Consequently, Directive 2014/40 and Directive 98/56 pursue different objectives and follow a completely different logic. In particular, tobacco products are not ordinary commodities and, in view of the particularly harmful effects of tobacco on human health, health protection should be given high importance, in particular, to reduce smoking prevalence among young people. (35) Directive 2014/40 was therefore adopted under Article 114 TFEU, thus taking as a base a high level of health protection. That aspect played a decisive role in the Court’s reasoning. (36) Conversely, Directive 98/56 was adopted under what was then Article 43 TEC on the common agricultural policy.(37)

92. Accordingly, my proposed reply to the first question referred is that Article 3(1) and Article 5(4) of Directive 98/56 must be interpreted as not precluding the replanting of material which, at the stage of the growing crop, was found not to be substantially free from harmful organisms and diseases, provided that the resulting propagating material is not intended for marketing, as defined in Article 2(3) of that directive.

3. The fourth question referred

93. In the light of my proposed reply to the first question referred, the next question to address is whether Member States may extend the requirement under Article 5(4) of Directive 98/56 to include propagating material that is not intended for marketing and enforce that requirement accordingly.

94. To answer that question, it is necessary to distinguish the degree of harmonisation from the field of harmonisation.

95. As regards the degree of harmonisation, it is clear from Article 15 of Directive 98/56, as argued by the Commission, that that directive is a measure of maximum (or total) harmonisation as regards the marketing of propagating material, which means that Member States are required not to impose more stringent restrictions than those laid down by that directive as regards supplier, quality, plant health, labelling and packaging. (38)

96. However, the degree of harmonisation employed does not enable us to answer the question of whether Member States may extend the requirements of Directive 98/56 to the planting stage. That depends on whether, in adopting that directive, the EU legislature exhausted the entire field of propagating material of ornamental plants. (39)

97. In that regard, it necessarily follows from my proposed reply to the first question referred that Directive 98/56 did not exhaust the entire field of propagating material of ornamental plants, since the regime established solely concerns the marketing of that material. (40)

98. As a result, where Member States lay down, in their national law, health and quality requirements to be met by propagating material not intended for marketing, such requirements come within the competencies retained by them and are not governed by Directive 98/56. (41)

99. Nevertheless, two additional remarks appear necessary.

100. In the first place, according to settled case-law, a Member State may not apply national provisions liable to jeopardise the attainment of the objectives pursued by a directive and thus to deprive it of its effectiveness. (42) Moreover, national provisions must comply with the requirements imposed on Member States by EU law. (43)

101. In the second place, the circumstances of the case at hand present certain similarities to those where, in regulating situations outside the scope of an act of EU law, national legislation seeks to adopt, directly and unconditionally, the same solutions as those adopted in that act. In that regard, the Court has consistently held that it is clearly in the interest of the European Union that provisions taken from that act of EU law be given a uniform interpretation. That means that future differences of interpretation can be forestalled and identical treatment of internal situations and situations falling within the scope of those provisions can be ensured. Accordingly, there is a clear interest in the Court ruling on a question referred in those circumstances. (44)

102. In my view, that case-law implies that, when Member States decide to apply the health and quality requirements set out in Directive 98/56 to the planting stage, those requirements must be interpreted in the same way as they are when applied to the marketing stage.

103. Accordingly, my proposed reply to the fourth question referred is that Member States may prohibit the replanting of material which, at the stage of the growing crop, was found not to be substantially free from harmful organisms and diseases, irrespective of whether the resulting propagating material is intended for marketing, provided that that legislation complies with EU law.

B. The second and third questions referred

104. By its second and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether the derogation laid down in Article 3(2)(c) of Directive 98/56 must be interpreted as also applying to certain flower bulb varieties intended for the conservation of genetic diversity, even though detailed rules for the application of that provision have not been adopted pursuant to Article 3(3) of that directive.

1. The need to reply to those questions

105. Article 3(2)(c) of Directive 98/56 applies only to situations falling within the scope of that directive. Indeed, the purpose of that provision is to allow the marketing of certain quantities of propagating material, despite the fact that they do not fulfil the related plant health and quality requirements, where such marketing is intended to contribute to preserving genetic diversity. (45) In other words, that derogation can be relied on only in relation to material that is intended for marketing.

106. In my proposed reply to the first question, I conclude that the planting of flower bulbs that are not intended for marketing does not fall within the scope of Directive 98/56. If the Court were to follow that proposed reply, it could be concluded that it is no longer necessary to answer the second and third questions referred.

107. However, it does not appear from the order for reference that an answer to those questions is sought only in the event that the Court holds that the planting of flower bulbs falls within the scope of Directive 98/56.

108. Moreover, in my proposed reply to the fourth question referred, I also conclude that Member States may, in principle, extend the requirements set out in Directive 98/56 to the planting stage. For the same reasons that gave rise to that conclusion, it must be added that Member States may also apply the derogation under Article 3(2)(c) of that directive to that stage.

109. Accordingly, and in the light of the case-law referred to in point 101 above, I advise that the Court provides a reply to the second and third questions in any event.

2. Analysis

110. Regarding, in the first place, the question whether the derogation provided for in Article 3(2)(c) of Directive 98/56 may apply to the conservation of the genetic diversity not only of an entire species but also of a certain variety, (46) nothing in the wording of that provision appears to preclude that application. On the contrary, the mere reference to ‘conservation of genetic diversity’, without further specifications or requirements, indicates that it should be interpreted as also including the conservation of a variety.

111. That interpretation is borne out, first, by the context in which Article 3(2)(c) of Directive 98/56 occurs. The interest in protecting varieties, as well as in ensuring their identity and purity, is clear from the wording of the last indent of Article 5(1) and of Article 9 of that directive, read in the light of recital 11 thereof.

112. Secondly, while Directive 98/56 seeks to ensure that purchasers receive propagating material which is healthy and of good quality, its objectives appear broader than merely safeguarding consumer protection. In that regard, it is important to recall that the legal basis upon which that directive was adopted was what is now Article 43 TFEU, concerning the common agricultural policy.

113. Thirdly, given the significant range of tulip bulb varieties, where some risk becoming extinct, an interpretation of Article 3(2)(c) of Directive 98/56 as encompassing the conservation of the genetic diversity of species only, and not of varieties, would deprive the derogation set out therein of its practical effect.

114. As regards, in the second place, the question whether Article 3(2)(c) of Directive 98/56 may apply even if detailed measures have not been adopted pursuant to Article 3(3) thereof, regard must be had, first of all, to the wording of that latter provision.

115. In that context, Article 3(3) of Directive 98/56 states that detailed rules for the application of Article 3(2) ‘may’ (47) be adopted in accordance with the comitology procedure laid down in Article 17 of that directive. The verb ‘may’ shows that the adoption of such detailed rules is not mandatory. The EU legislature appears to have left it to the Commission’s discretion as to whether to adopt those rules. (48)

116. Next, it must be recalled that the concrete scope of the implementation required by a directive is determined by the nature of its provisions. In that regard, Article 3(2) of Directive 98/56 appears to be sufficiently precise and unconditional to be relied on without the need to be specified by other provisions of EU or national law. (49) Indeed, that provision allows suppliers to market propagating material without meeting the requirements laid down in that directive, provided that that material is intended for one of the purposes listed in points (a) to (c) thereof. (50) Moreover, as the wording of Article 3(3) of Directive 98/56 itself indicates, the detailed rules referred to therein are merely intended to ensure the correct and straightforward application of the derogation laid down in Article 3(2) of that directive, without calling into question the unconditionality of that provision. (51)

117. That interpretation is further supported by a comparison of the wording of Article 3(3) of Directive 98/56 with that of other provisions of that directive that require the adoption of rules in accordance with Article 17 of that directive. That is the case in respect of Article 8(3), Article 11(1) and Article 14(4) and (6) of that directive, where, by contrast with Article 3(3), the verb ‘shall’ is used. (52)

118. The Greek and Netherlands Governments nonetheless argue that that interpretation is contrary to the objectives of Directive 98/56, as it would undermine compliance with the requirements laid down therein. In particular, the need to ensure the quality and health of propagating material would require, at the very least, that regulations adopted at EU or national level be put in place to govern the location of material covered by the derogation, as well as arrangements for keeping it separate from other material subject to the requirements under that directive.

119. As regards the adoption of detailed rules at EU level, it suffices to state that, pursuant to settled case-law, where the meaning of a provision of EU law is absolutely plain from its very wording, the Court cannot depart from that meaning. (53) I therefore repeat my observation that the EU legislature does not appear to have considered it necessary to adopt those rules at EU level, preferring to afford a certain margin of discretion to the Commission in that respect.

120. Nevertheless, if a Member State considers that, in order to implement properly Article 3(2) of Directive 98/56, detailed rules are desirable, it seems to me that it may adopt such rules.

121. In that context, it must be recalled, first, that when an EU act makes no specific provision, its implementation is a matter, primarily, for the Member States. (54) In the present case, given the optional nature of the adoption of detailed rules at EU level, I consider that such rules may, in principle, be enacted at national level.

122. Secondly, I recall that detailed rules at EU level are to be adopted following a comitology procedure, which is, in essence, a mechanism of control by Member States of the Commission’s exercise of its implementing powers (Article 291(3) TFEU). In my view, that indicates the intention of the legislature to secure the involvement of the Member States in all circumstances.

123. Thirdly, the adoption of detailed rules at national level and the resulting lack of uniform procedures at EU level does not appear to undermine the objectives of Directive 98/56, or, more specifically, the effectiveness of the derogation under Article 3(2)(c) of that directive. That approach may in fact respect particular national requirements concerning the conservation of genetic diversity, such as the need to acquire the status of a registered conservator in order to be able to rely on that provision, as mentioned by the Greek Government, or location requirements in order to mitigate the risk of contamination, as stated by the Netherlands Government. (55) Nevertheless, the detailed rules adopted must not impose an excessive burden on suppliers engaged in the conservation of genetic diversity.

124. Fourthly, by adopting detailed rules in order to implement Article 3(2)(c) of Directive 98/56, a Member State acts in line with the second subparagraph of Article 4(3) TEU, the third paragraph of Article 288 TFEU, and Article 291(1) TFEU.

125. Conversely, a Member State that deems detailed rules necessary for the implementation of Article 3(2) of Directive 98/56, yet has not adopted such rules, cannot simply refuse to apply the national provisions transposing that article, to the detriment of an individual, on the basis of an absence of detailed rules at EU level. Were it to do so, that Member State would be infringing the principle of sincere cooperation enshrined in Article 4(3) TEU. (56)

126. Accordingly, my proposed reply to the second and third questions referred is that the derogation laid down in Article 3(2)(c) of Directive 98/56 must be interpreted as also applying to certain flower bulb varieties intended for the conservation of genetic diversity, even though detailed rules for the application of that provision have not been adopted, pursuant to Article 3(3) of that directive.

V. Conclusion

127. In the light of all the foregoing considerations, I propose that the Court should answer the questions referred by the College van Beroep voor het bedrijfsleven (Supreme Administrative Court for Trade and Industry, Netherlands) as follows:

(1) Article 3(1) and Article 5(4) of Council Directive 98/56/EC of 20 July 1998 on the marketing of propagating material of ornamental plants

must be interpreted as not precluding the replanting of material which, at the stage of the growing crop, was found not to be substantially free from harmful organisms and diseases, provided that the resulting propagating material is not intended for marketing, as defined in Article 2(3) of that directive.

(2) Member States may prohibit the replanting of material which, at the stage of the growing crop, was found not to be substantially free from harmful organisms and diseases, irrespective of whether the resulting propagating material is intended for marketing, provided that that legislation complies with EU law.

(3) Article 3(2)(c) and (3) of Directive 98/56

must be interpreted as meaning that the derogation laid down in Article 3(2)(c) also applies to certain flower bulb varieties intended for the conservation of genetic diversity, even though detailed rules for the application of that provision have not been adopted, pursuant to Article 3(3) of that directive.

1 Original language: English.

2 Schipper, C., ‘Broken tulips: The beautiful curse’, Amsterdam Tulip Museum website, 6 December 2017; available at https://amsterdamtulipmuseum.com/blogs/tulip-facts/broken-tulips-the-beautiful-curse. For a detailed narration of the history of the tulip, see Dash, M., Tulipomania: The Story of the World’s Most Coveted Flower & the Extraordinary Passions it Aroused, Three Rivers Press, New York, 2000.

3 Council Directive of 20 July 1998 on the marketing of propagating material of ornamental plants (OJ 1998 L 226, p. 16).

4 Schipper, C., footnote 2, op. cit., and Schipper, C., ‘How dangerous is the tulip breaking virus?’, Amsterdam Tulip Museum website, 25 October 2017; available at https://amsterdamtulipmuseum.com/blogs/tulip-facts/how-dangerous-is-the-tulip-breaking-virus.

5 Council Directive of 21 December 1976 on protective measures against the introduction into the Member States of harmful organisms of plants or plant products (OJ 1977 L 26, p. 20), repealed and replaced by Regulation (EU) 2016/2031 of the European Parliament of the Council of 26 October 2016 on protective measures against pests of plants, amending Regulations (EU) No 228/2013, (EU) No 652/2014 and (EU) No 1143/2014 of the European Parliament and of the Council and repealing Council Directives 69/464/EEC, 74/647/EEC, 93/85/EEC, 98/57/EC, 2000/29/EC, 2006/91/EC and 2007/33/EC (OJ 2016 L 317, p. 4).

6 The terms ‘cultivar’ and ‘variety’ are used interchangeably by the referring court. In the present Opinion I shall refer to ‘variety’ only.

7 Judgments of 20 March 1986, Tissier (35/85, EU:C:1986:143, paragraph 9), and of 26 March 2026, Isergartler (C‑618/24, EU:C:2026:251, paragraph 24 and the case-law cited).

8 Judgments of 29 November 1978, Redmond (83/78, EU:C:1978:214, paragraph 26), and of 26 March 2026, Isergartler (C‑618/24, EU:C:2026:251, paragraph 25 and the case-law cited).

9 For ease of reference, I shall use the expressions ‘production’ and ‘planting’ interchangeably.

10 Judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 50 and the case-law cited), and of 26 March 2026, Gonrieh (C‑819/25 PPU, EU:C:2026:252, paragraph 47 and the case-law cited).

11 Council Directive of 19 December 1991 on the marketing of ornamental plant propagating material and ornamental plants (OJ 1991 L 376, p. 21).

12 See recital 22 of Directive 98/56.

13 See Communication from the Commission to the Council and the European Parliament – The SLIM Initiative (COM(1996) 559 final), Report of the Commission on the SLIM Pilot Project, p. 7, and Annex 1D, p. 11.

14 Emphasis added.

15 Emphasis added.

16 See, in that regard, judgment of 29 September 2021, Società agricola Vivai Maiorana and Others v Commission (T‑116/20, EU:T:2021:632, paragraphs 104 and 106).

17 Relevant plant health conditions under Regulation 2016/2031 (see Article 4 of Directive 98/56 and point 10 of, and footnote 5 to, the present Opinion) and the requirements stemming from Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (OJ 1997 L 61, p. 1) and European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste (OJ 1994 L 365, p. 10) (see Article 5(1) of Directive 98/56, in conjunction with the second sentence of Article 1(1) thereof).

18 As defined under Article 2(2) of Directive 98/56.

19 See point 10 of, and footnote 5 to, the present Opinion.

20 See, by analogy, judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 15), where no distinction is drawn between requirements relating to designation, form, size, weight, composition, presentation, labelling, or packaging.

21 See the Report of 23 December 2002 from the Commission to the Council on the results of application of Article 12 of Council Directive 98/56/EC of 20 July 1998 on the marketing of propagating material of ornamental plants (COM(2002) 761 final) (‘the Report of 23 December 2002 from the Commission’), p. 2, where it is underlined that the term ‘supplier’ designates those engaged professionally in the marketing or importing of propagating material.

22 See, in the same vein, the Report of 23 December 2002 from the Commission, p. 4.

23 See point 52 of the present Opinion.

24 Examples of corrective action may include appropriate treatment, appropriate labelling, or no reference to varieties if the conditions under Article 9 of Directive 98/56 are not met.

25 Directive 91/682 did not include that provision.

26 Recital 3 of Directive 98/56.

27 See the annex to the Report of 23 December 2002 from the Commission, p. 8.

28 See, in that regard, Commission Directive 1999/66/EC of 28 June 1999 setting out requirements as to the label or other document made out by the supplier pursuant to Directive 98/56 (OJ 1999 L 164, p. 76); from the required information on the label, it should thus be possible to trace back to the parent material. See also, in the same vein, the Report of 23 December 2002 from the Commission, p. 4.

29 Judgment of 15 May 2025 (C‑717/23, ‘the judgment in Bundesminister für Gesundheit’, EU:C:2025:351).

30 Directive of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1).

31 The judgment in Bundesminister für Gesundheit (paragraph 34).

32 The judgment in Bundesminister für Gesundheit (paragraph 52).

33 See the judgment in Bundesminister für Gesundheit (paragraph 51) and my Opinion in that case (EU:C:2025:29, point 70).

34 See point 26 of the present Opinion.

35 Recital 8 of Directive 2014/40.

36 The judgment in Bundesminister für Gesundheit (paragraphs 49 to 51).

37 This provision was later renumbered Article 37 TEC. It now corresponds to Article 43 TFEU.

38 See, by analogy, judgment of 5 April 1979, Ratti (148/78, EU:C:1979:110, paragraphs 26 and 27). In legal literature, see Barnard, C., The Substantive Law of the EU: The Four Freedoms, 7th edition, Oxford University Press, Oxford, 2022, p. 581, and Slot, P.J., ‘Harmonisation’, European Law Review, No 21(5), 1996, pp. 378-387, pp. 382 and 383.

39 See, to that effect, judgment of 19 March 2026, Almirall (C‑589/24, EU:C:2026:217, paragraph 41). In the literature, see Slot, P.J., footnote 37, op. cit., p. 388, and Weatherill, S., ‘Maximum versus minimum harmonization: Choosing between unity and diversity in the search for the soul of the internal market’, in Nic Shuibhne, N. and Gormley, L.W. (eds.), From Single Market to Economic Union: Essays in Memory of John A. Usher, Oxford University Press, Oxford, 2012, p. 192.

40 See, by analogy, judgments of 5 October 1994, Centre d’insémination de la Crespelle (C‑323/93, EU:C:1994:368, paragraphs 34 and 35), and of 4 October 2024, AFAÏA (C‑228/23, EU:C:2024:829, paragraph 71).

41 See, by analogy, judgment of 19 March 2026, Almirall (C‑589/24, EU:C:2026:217, paragraph 40 and the case-law cited).

42 See, to that effect, judgment of 19 November 2019, TSN and AKT (C‑609/17 and C‑610/17, EU:C:2019:981, paragraph 51 and the case-law cited), and my Opinion in Almirall (C‑589/24, EU:C:2025:776, point 60 and the case-law cited).

43 See, to that effect, judgments of 8 November 1979, Denkavit Futtermitel (251/78, EU:C:1979:252, paragraphs 14 to 20), and of 10 July 1984, Campus Oil and Others (72/83, EU:C:1984:256, paragraphs 27 to 31), and my Opinion in Almirall (C‑589/24, EU:C:2025:776, point 60 and the case-law cited).

44 Judgments of 18 October 1990, Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360, paragraphs 36 and 37), and of 5 March 2026, AESTE (C‑210/24, EU:C:2026:145, paragraph 33 and the case-law cited).

45 See point 56 of the present Opinion, in particular the reference made to judgment of 29 September 2021, Società agricola Vivai Maiorana and Others v Commission (T‑116/20, EU:T:2021:632, paragraphs 104 and 106).

46 See point 26 of the present Opinion. It results from the order for reference that the applicant seeks to preserve the genetic diversity of the varieties at issue as such, that is to say, free from the TBV.

47 ‘Können’ in the German-language version, ‘podrán’ in the Spanish-language version, ‘peuvent’ in the French-language version, ‘possono’ in the Italian-language version, ‘można’ in the Polish-language version, and ‘podem’ in the Portuguese-language version.

48 See, a contrario, judgment of 16 December 2015, Sweden v Commission (T‑521/14, EU:T:2015:976, paragraphs 50, 52, 53 and 70).

49 Judgment of 16 December 2015, Sweden v Commission (T‑521/14, EU:T:2015:976, paragraph 53).

50 With regard to the precise nature of Article 3(2) of Directive 98/56, see, by analogy, judgment of 19 January 1982, Becker (8/81, EU:C:1982:7, paragraph 27).

51 See, by analogy, judgment of 19 January 1982, Becker (8/81, EU:C:1982:7, paragraphs 32 and 33).

52 ‘Devem’ in the Portuguese-language version of Article 8(3) of Directive 98/56. The Portuguese-language version of the other two provisions mentioned and the German-, Spanish-, Italian-, French- and Polish-language versions of the three provisions mentioned all use expressions that entail an obligation to act.

53 Judgment of 29 July 2024, HDI Global and MS Amlin Insurance (C‑771/22 and C‑45/23, EU:C:2024:644, paragraph 56 and the case-law cited).

54 Judgment of 23 November 1995, Nutral v Commission (C‑476/93 P, EU:C:1995:401, paragraph 14). See, in the legal literature, Lenaerts, K. and Van Nuffel, P., EU Constitutional Law, Oxford University Press, Oxford, 2021, p. 565.

55 See point 118 of the present Opinion.

56 See judgment of 19 January 1982, Becker (8/81, EU:C:1982:7, paragraph 33). See also, by analogy, judgments of 5 April 1979, Ratti (148/78, EU:C:1979:110, paragraph 22), and of 3 September 2014, GMAC UK (C‑589/12, EU:C:2014:2131, paragraph 39 and the case-law cited).

Opinion of Advocate General Szpunar delivered on 4 June 2026.###

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