61982CJ0202_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 202/82
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ROLF WAGENBAUR, LEGAL ADVISER TO THE COMMISSION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
APPLICANT,
V
FRENCH REPUBLIC, REPRESENTED BY GILBERT GUILLAUME, ACTING AS AGENT, AND BERNARD BOTTE, ACTING AS DEPUTY AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE FRENCH EMBASSY,
DEFENDANT,
SUPPORTED BY
ITALIAN REPUBLIC, REPRESENTED BY IVO M . BRAGUGLIA, AVVOCATO DELLO STATO, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY,
INTERVENER,
Subject of the case
APPLICATION FOR A DECLARATION THAT THE FRENCH REPUBLIC, BY APPLYING TO IMPORTED PASTA PRODUCTS A METHOD FOR DETERMINING THEIR COMMON-WHEAT CONTENT AND ALSO TOLERANCES REGARDING THE PRESENCE OF COMMON WHEAT WHICH ARE LIABLE TO CONSTITUTE OBSTACLES TO IMPORTS, HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 30 OF THE EEC TREATY,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 9 AUGUST 1982, THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE FRENCH REPUBLIC, BY APPLYING TO IMPORTED PASTA PRODUCTS MANUFACTURED EXCLUSIVELY FROM DURUM WHEATMEAL A METHOD FOR DETERMINING THEIR COMMON-WHEAT CONTENT AND TOLERANCES REGARDING THE PRESENCE OF COMMON WHEAT WHICH WERE LIABLE TO CONSTITUTE OBSTACLES TO IMPORTS, HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 30 OF THE EEC TREATY .
2 THE COMMISSION ' S ACTION CONCERNS BARRIERS WHICH FRANCE IS SAID TO HAVE RAISED TO THE IMPORTATION OF PASTA PRODUCTS LEGALLY MANUFACTURED AND MARKETED IN ITALY . THE LEGISLATION OF BOTH THOSE COUNTRIES REQUIRES THAT PASTA PRODUCTS SHOULD BE MANUFACTURED SOLELY FROM DURUM WHEAT AND PROHIBITS THE MANUFACTURE OR MARKETING OF PASTA PRODUCTS CONTAINING COMMON WHEAT . THE COMMISSION ' S ACTION IS NOT DIRECTED AGAINST THE PROHIBITION ITSELF, WHICH, IT IS AGREED, DOES NOT CREATE A BARRIER TO THE IMPORTATION OF PASTA PRODUCTS LEGALLY MANUFACTURED AND MARKETED IN ITALY, BUT RATHER AGAINST THE RULES ADOPTED IN FRANCE TO ENSURE COMPLIANCE WITH THE PROHIBITION .
3 THE FRENCH AND ITALIAN AUTHORITIES HAVE EACH ADOPTED AN OFFICIAL METHOD OF ANALYSIS WHICH ALLOWS THEM TO DETECT THE PRESENCE OF COMMON WHEAT IN PASTA PRODUCTS . THE FRENCH METHOD, CALLED THE ' ' MONTPELLIER ' '
METHOD, AND THE ITALIAN METHOD, CALLED THE ' ' RESMINI ' '
METHOD, DIFFER IN DETAIL BUT ARE BOTH BASED ON THE IDENTIFICATION OF A PROTEIN WHICH EXISTS ONLY IN COMMON WHEAT . EVERY SAMPLE IN WHICH THE PRESENCE OF THAT PROTEIN CAN BE DETECTED NECESSARILY CONTAINS COMMON WHEAT .
4 THE COMMISSION HAS CLAIMED THAT THE DISPARITY BETWEEN THE TWO METHODS OF INSPECTION IS SUCH AS TO CREATE A BARRIER TO THE IMPORTATION OF PASTA PRODUCTS LEGALLY MANUFACTURED AND MARKETED IN ITALY . IN THE VIEW OF THE COMMISSION, GOODS PRODUCED IN ANOTHER MEMBER STATE MUST BE PRESUMED TO HAVE BEEN LEGALLY MANUFACTURED AND MARKETED, AND IT IS FOR THE IMPORTING MEMBER STATE WHICH WISHES TO PROHIBIT THE MARKETING OF THOSE GOODS TO PROVE THE CONTRARY ON THE BASIS OF THE SUBSTANTIVE RULES AND RULES GOVERNING INSPECTIONS IN FORCE IN THE MEMBER STATE IN WHICH THE GOODS WERE PRODUCED . THE COMMISSION HAS ALSO EXPRESSED DOUBTS REGARDING THE RELIABILITY OF THE FRENCH METHOD AND ITS CORRECT APPLICATION BY THE SPECIALIZED LABORATORIES IN FRANCE .
5 THE COMMISSION ' S MAIN ARGUMENT MUST BE REJECTED . IT IS APPARENT THAT THE IMPORTATION INTO FRANCE OF ITALIAN PASTA PRODUCTS MANUFACTURED EXCLUSIVELY FROM DURUM WHEAT IS NOT LIABLE TO BE HINDERED IN ANY WAY, SINCE THE RESULTS OF ANY ANALYSIS CARRIED OUT BY THE FRENCH AUTHORITIES RESPONSIBLE FOR THE PREVENTION OF FRAUD CAN ONLY CONFIRM THE ABSENCE OF COMMON WHEAT . FURTHERMORE, ALTHOUGH ARTICLE 30 OBLIGES MEMBER STATES, IN CERTAIN CIRCUMSTANCES, TO TAKE ACTIVE STEPS TO ENSURE THE FREE MOVEMENT OF GOODS LEGALLY PRODUCED AND MARKETED IN OTHER MEMBER STATES, IN PARTICULAR BY ACCEPTING CERTIFICATES ISSUED BY THE COMPETENT AUTHORITIES IN OTHER MEMBER STATES, THAT OBLIGATION DOES NOT GO SO FAR AS TO REQUIRE THEM TO CARRY OUT INSPECTIONS ACCORDING TO THE METHODS LAID DOWN BY THE LEGISLATION OF THE OTHER MEMBER STATES . SUCH A REQUIREMENT WOULD ENTAIL AN OBLIGATION TO ACQUIRE THE APPROPRIATE ADDITIONAL EQUIPMENT AND TO EMPLOY SPECIALIZED STAFF . THAT SOLUTION, COSTLY IN ECONOMIC TERMS, IS OF NO VALUE IN ENSURING THE FREE MOVEMENT OF GOODS, PARTICULARLY WHEN THIS CAN BE EFFECTIVELY GUARANTEED BY OTHER MEANS .
6 AS REGARDS THE DOUBTS EXPRESSED BY THE COMMISSION REGARDING THE RELIABILITY OF THE FRENCH METHOD AND ITS CORRECT APPLICATION, IT IS CLEAR FROM THE EXPLA
NATIONS PROVIDED BY THE FRENCH GOVERNMENT AND THE ITALIAN GOVERNMENT, WHICH HAS INTERVENED IN SUPPORT OF THE CONCLUSIONS OF THE FRENCH GOVERNMENT, THAT THE OBJECTIVE OF THE TWO METHODS IS TO DETECT THE PRESENCE OF COMMON WHEAT IN PASTA PRODUCTS AND NOT, PRIMARILY, TO DETERMINE THE EXACT PROPORTION OF COMMON WHEAT IN A GIVEN SAMPLE . IN THAT RESPECT THE TWO METHODS APPEAR TO BE EQUALLY RELIABLE, AND THEREFORE THE SMALL DIFFERENCES BETWEEN THEM ARE OF NO CONSEQUENCE IN THE CONTEXT OF THESE PROCEEDINGS . MOREOVER, IT WOULD APPEAR THAT THE SOLUTION PROPOSED BY THE COMMISSION WOULD LEAD TO RESULTS LESS CERTAIN THAN THOSE PRODUCED BY THE PRESENT SITUATION, INASMUCH AS THE STAFF RESPONSIBLE FOR CARRYING OUT THE INSPECTIONS WOULD LACK EXPERIENCE IN THE USE OF THE METHOD IN FORCE IN THE OTHER MEMBER STATES .
7 FINALLY, THE COMMISSION HAS CLAIMED THAT THE FRENCH AUTHORITIES ARE STRICTER THAN THE ITALIAN AUTHORITIES AS REGARDS THE TOLERANCES WHICH THEY ACCEPT . THUS, ACCORDING TO THE COMMISSION, ITALY ACCEPTS IN PRACTICE A COMMON-WHEAT CONTENT OF 7%, BELOW WHICH LEVEL A TRADER WILL NOT BE PROSECUTED OR, AT LEAST, WILL NOT BE CONVICTED, WHILST IN FRANCE THE TOLERANCE IS ONLY 4% .
8 IT MUST BE HELD THAT THE COMMISSION ' S COMPLAINT HAS NOT BEEN PROVED . THE EXPLANATIONS PROVIDED BY THE FRENCH AND ITALIAN GOVERNMENTS SHOW THAT THE SITUATION IS IN FACT THE REVERSE, INASMUCH AS THE TOLERANCES APPLIED IN ITALY ARE, AT PRESENT, STRICTER THAN THOSE IN FORCE IN FRANCE .
9 FURTHERMORE, IN SO FAR AS IT HAS BEEN NEITHER PROVED NOR CONTENDED THAT A PROHIBITION ON THE IMPORTATION OF PASTA PRODUCTS CONTAINING COMMON WHEAT IS CONTRARY TO COMMUNITY LAW, IT CANNOT BE CONSIDERED THAT JUDICIAL OR ADMINISTRATIVE PRACTICES DESIGNED TO COMBAT BREACHES OF THAT PROHIBITION COME WITHIN THE AMBIT OF COMMUNITY LAW, AT LEAST IN THE ABSENCE OF ANY DISCRIMINATORY TREATMENT OF IMPORTS .
10 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS, TAKEN AS A WHOLE, THAT THE COMMISSION ' S APPLICATION MUST BE DISMISSED .
Decision on costs
COSTS
11 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COMMISSION HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS, INCLUDING THOSE INCURRED BY THE ITALIAN GOVERNMENT .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION ;
2.ORDERS THE COMMISSION TO PAY THE COSTS, INCLUDING THOSE INCURRED BY THE ITALIAN GOVERNMENT .