3.

In view of the foregoing it may be stated that conduct such as that complained of, namely that, in connection with the importation of curds and sporadic checks carried out in that respect, lorries were detained for several days at the frontier instead of being permitted — in order to avoid a deterioration in the condition of their load — to proceed to their destination under customs control, would amount to an infringement of Article 30 of the EEC Treaty because it would obviously be likely to discourage undertakings from importing. Moreover, it is not possible to conclude from the small numbers of cases referred to by the Commission that the complaint is unjustified since, as the Court has held on many occasions, the degree to which imports are restricted is irrelevant. It is, however, not clear that the existence of such a failure to fulfil Treaty obligations has actually been sufficiently established. The Italian Government stated in that connection that although in some cases there were lengthy delays at the frontier for the purpose of taking samples, that was to be ascribed solely to the decision of the importers concerned and was not the fault of the relevant frontier officials. It refers in that regard to a notice dated 31 October 1975 issued by the Italian Ministry of Health from which it is clear that where samples are taken the consignments may be sent to their destination subject to customs control, if the importer so wishes. However, if the notice (which has been produced, on request, to the Court) is examined in greater detail it may be seen that the meaning attributed to it by the Italian Government is by no means unequivocal since under point 3 reference is made merely to the fact that consignments from which a sample has been taken may be detained at the frontier or sent on to their destination subject to the health check. It appears from that, therefore, that the competent veterinary officer has a discretion in the matter for the exercise of which no criteria are laid down. Accordingly the notice certainly does not make it clear that transportation may continue in each case at the desire of the importer and therefore it can hardly be claimed that the Commission's complaint is unjustified merely by reference to the aforementioned notice. For its part the Commission relies in that connection on two cases referred to in its telex message of 21 June 1982 (Annex 1 to its application), the one relating to a lorry belonging to Molkereizentrale Süd, Nuremberg, which was detained at the frontier from 27 May to 3 June 1982 — that is, for seven days — and the other relating to four lorries belonging to Milchwerk Jäger, Haag, which were detained at the frontier on 7 June 1982 and were taken to the cold stores only after three days. It also refers to the fact, which is also mentioned in the aforementioned telex message, that attention was already drawn in a letter dated 26 March 1982 to the obstruction of a consignment of French cheese in Aosta. Finally it refers to a letter dated 17 November 1983 from Molkereizentrale Süd (Annex 2 to its application) from which it may be seen that a consignment of cheese was returned to Germany because inspection took too long. If it is assumed, as I think it must be, that the Commission is under a duty to prove its allegations, it is difficult to accept that, in view of the explanations given by the Italian Government in which it vigorously denies any misconduct on the part of its authorities, the Commission has succeeded in proving an infringement of the Treaty in the aforementioned manner. In that respect it is of importance that the final two cases referred to by it concern the transportation of cheese and therefore do not constitute appropriate evidence in proceedings concerned only with the importation of curds, which is an intermediate product the condition of which easily deteriorates. It must be recognized too — and this applies to all four cases referred to — that it is not clear from the documents relied upon in the proceedings that detention at the frontier occurred as a result of the instructions of the Italian authorities and not as a result of the importers' own decisions. It is true in this respect that it is difficult to dismiss completely the Commission's statement that it can hardly be imagined that importers, in view of the costs involved in a delay at the frontier, the danger that the condition of the load would deteriorate and the uncertainty regarding the length of an inspection, would of their own accord give up the opportunity of having their consignment dispatched to its destination in accordance with the aforementioned notice. However, it is not possible to exclude that possibility since, in any such decision expectations with regard to the results of the checks may also be relevant and the distance between that destination and the frontier may very well make it seem advisable not to dispatch the goods to their destination. Moreover it is also relevant, as the Italian Government has shown, that in 16 other cases, to which I shall refer shortly, the journey to the destination did in fact continue after samples had been taken. In view of the foregoing it is necessary to declare that the allegation that consignments of curds have been wrongly detained at the frontier for a considerable period has not been proved sufficiently and that on that point the claim made by the Commission, which should have produced clear proof in relation to the undertakings concerned, should have been produced in view of the Italian Government's vigorous denial, cannot be accepted.