# C_2005031EN.01000902.xml

| 5.2.2005 | EN | Official Journal of the European Union | C 31/9 |
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5.2.2005

EN

Official Journal of the European Union

C 31/9

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Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic

(Case C-487/04)

(2005/C 31/19)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 25 November 2004 by the Commission of the European Communities, represented by C. Cattabriga and A. Bordes, acting as Agents.

The applicant claims that the Court should:

| — | Declare that, by unilaterally instituting a system of traceability of powder milk for certain uses, not provided for by fully harmonised provisions of Community law applicable to the sector, the Italian Republic has failed to fulfil its obligations under Council Regulation (EC) No 1255/1999 of 17 May 1999 (1) on the common organisation of the market in milk and milk products and Commission Regulation (EC) No 2799/1999 of 17 December 1999 (2) laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder. |
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Declare that, by unilaterally instituting a system of traceability of powder milk for certain uses, not provided for by fully harmonised provisions of Community law applicable to the sector, the Italian Republic has failed to fulfil its obligations under Council Regulation (EC) No 1255/1999 of 17 May 1999 (1) on the common organisation of the market in milk and milk products and Commission Regulation (EC) No 2799/1999 of 17 December 1999 (2) laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder.

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| — | Order the Italian Republic to pay the costs. |
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Order the Italian Republic to pay the costs.

Pleas and main arguments

| 1. | In order to prevent abuses in the receipt of aid for skimmed-milk powder intended for animal feed, Regulations (EC) No 1255/1999 and (EC) No 2799/1999 lay down detailed machinery for monitoring undertakings using that product. Although that machinery leaves to the Member States the power to adopt supplementary supervisory measures in order to ensure observance of the provisions concerning the grant of the aid, it none the less does not allow them to impose on operators in the sector additional obligations of a different nature from those which Regulation No 2799/1999 imposes on the undertakings in receipt of the aid. |
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1.

In order to prevent abuses in the receipt of aid for skimmed-milk powder intended for animal feed, Regulations (EC) No 1255/1999 and (EC) No 2799/1999 lay down detailed machinery for monitoring undertakings using that product. Although that machinery leaves to the Member States the power to adopt supplementary supervisory measures in order to ensure observance of the provisions concerning the grant of the aid, it none the less does not allow them to impose on operators in the sector additional obligations of a different nature from those which Regulation No 2799/1999 imposes on the undertakings in receipt of the aid.

| 2. | In particular, it must be regarded as not open to the Member States unilaterally to impose conditions affecting the composition of the powder milk which forms the subject matter of Regulation No 2799/1999, such as the admixture of colour tracers intended to make it plain that the product is intended for animal feed. |
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2.

In particular, it must be regarded as not open to the Member States unilaterally to impose conditions affecting the composition of the powder milk which forms the subject matter of Regulation No 2799/1999, such as the admixture of colour tracers intended to make it plain that the product is intended for animal feed.

| 3. | Such condition cannot but impede trade in skimmed-milk powder between the Member States. In fact, since the intended use of the product is not normally known at the time of production, the requirement to add tracers imposed by Italian legislation requires undertakings which are engaged in trade in skimmed-milk powder on the Italian market to conduct complicated operations in regard to consignments intended for that market. However, as has been consistently held, common organisations of the market are based, as regards intracommunity trade, on freedom of commerce and preclude any national legislation which, as in the present case, impedes trade between the Member States. |
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3.

Such condition cannot but impede trade in skimmed-milk powder between the Member States. In fact, since the intended use of the product is not normally known at the time of production, the requirement to add tracers imposed by Italian legislation requires undertakings which are engaged in trade in skimmed-milk powder on the Italian market to conduct complicated operations in regard to consignments intended for that market. However, as has been consistently held, common organisations of the market are based, as regards intracommunity trade, on freedom of commerce and preclude any national legislation which, as in the present case, impedes trade between the Member States.

| 4. | Furthermore, the Italian legislation at issue is damaging to the functioning of the common organisation of the markets in the milk sector which, as regards the aid schemes introduced by it, is based on uniform requirements applicable erga omnes. Indeed it is plain that if all the Member States considered themselves, in the same way as Italy, authorised unilaterally to introduce ad hoc tracing rules for skimmed milk-powder intended for animal feed, that would involve insuperable difficulties for the operators in the sector who would be subject to different sets of rules and would have to differentiate their products depending on the rules applied in 25 different national markets. |
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4.

Furthermore, the Italian legislation at issue is damaging to the functioning of the common organisation of the markets in the milk sector which, as regards the aid schemes introduced by it, is based on uniform requirements applicable erga omnes. Indeed it is plain that if all the Member States considered themselves, in the same way as Italy, authorised unilaterally to introduce ad hoc tracing rules for skimmed milk-powder intended for animal feed, that would involve insuperable difficulties for the operators in the sector who would be subject to different sets of rules and would have to differentiate their products depending on the rules applied in 25 different national markets.

erga omnes

ad hoc

| 5. | Nor, moreover, can the Italian Government rely on the case-law according to which introduction of a common organisation of markets does not prevent the Member States from applying national provisions pursuing a public-interest objective which differs from the objectives pursued by the common organisation of the markets. In fact it is clear from a reading of the preparatory documents to Law No 250/2000 that the aim of the provisions contained therein is to prevent the unlawful diversion of skimmed-milk powder away from its stated use. Accordingly, that law seeks to achieve the same aims as those underlying Articles 9 et seq. of Regulation No 2799/1999. |
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5.

Nor, moreover, can the Italian Government rely on the case-law according to which introduction of a common organisation of markets does not prevent the Member States from applying national provisions pursuing a public-interest objective which differs from the objectives pursued by the common organisation of the markets. In fact it is clear from a reading of the preparatory documents to Law No 250/2000 that the aim of the provisions contained therein is to prevent the unlawful diversion of skimmed-milk powder away from its stated use. Accordingly, that law seeks to achieve the same aims as those underlying Articles 9 et seq. of Regulation No 2799/1999.

| 6. | It is also stated in those preparatory documents that the decision by the Italian authorities to depart from the supervisory regime provided for in Regulation No 2799/1999 is justified owing to the ineffectiveness in the Italian context of the monitoring machinery provided for by the regulation. |
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6.

It is also stated in those preparatory documents that the decision by the Italian authorities to depart from the supervisory regime provided for in Regulation No 2799/1999 is justified owing to the ineffectiveness in the Italian context of the monitoring machinery provided for by the regulation.

| 7. | That justification runs counter to settled case-law according to which, whenever the Community has established a common organisation of the market in a given sector, the Member States must refrain from any unilateral measure, even if it serves to support the common policy. Secondly, practical difficulties coming to light in the implementation of a Community act do not permit the Member State unilaterally to dispense with observance of its own obligations. |
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7.

That justification runs counter to settled case-law according to which, whenever the Community has established a common organisation of the market in a given sector, the Member States must refrain from any unilateral measure, even if it serves to support the common policy. Secondly, practical difficulties coming to light in the implementation of a Community act do not permit the Member State unilaterally to dispense with observance of its own obligations.

| 8. | Finally, the Italian authorities cannot rely on the fact that Law No 250/2000 has never in fact been applied owing to the fact that the Ministerial decree which was to specify the tracers and to determine detailed rules concerning their use was never adopted. As the Court has consistently held, the fact that legislation contrary to Community law is scarcely or indeed never applied cannot have the effect of nullifying the infringement in that connection. |
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8.

Finally, the Italian authorities cannot rely on the fact that Law No 250/2000 has never in fact been applied owing to the fact that the Ministerial decree which was to specify the tracers and to determine detailed rules concerning their use was never adopted. As the Court has consistently held, the fact that legislation contrary to Community law is scarcely or indeed never applied cannot have the effect of nullifying the infringement in that connection.

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(1)  OJ 1999 L 160, p. 48

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(2)  OJ 1999 L 340, p. 3

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