EN Official Journal of the European Union C 301/16

Action brought on 25 August 2008 — Commission of the European Communities v Italian Republic

(Case C-383/08)

(2008/C 301/30)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: L. Pignataro, Agent)

Defendant: Italian Republic

Form of order sought

— Declare that, by adopting the provisions of the ministerial order of 26 August 2005, as last amended by the order of 17 December 2007, which makes it compulsory to indicate the country of origin of the poultrymeat listed in Article 3(1) of that order, the Italian Republic has failed to fulfil its obligations under Article 3(1)(8) and Article 18(2) of Directive 2000/13/EC (1) on the labelling, presentation and advertising of foodstuffs, in conjunction, until 30 June 2008, with Article 5(3)(e) and Article 5(4) of Regulation (EEC) No 1906/90 (2) on certain marketing standards for poultry and, from 1 July 2008, with Article 5(4)(e) and Article 5(5) of Commission Regulation (EC) No 543/2008 (3).

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission considers that the obligation to indicate the origin of poultrymeat from other Member States laid down by the order of 26 August 2005, as last amended by the order of 17 December 2007, constitutes a breach of Article 3(1)(8) and of Article 18(2) of Directive 2000/13, in conjunction, until 30 June 2008, with Article 5(3)(e) and Article 5(4) of Regulation No 1906/90 and, from 1 July 2008, with Article 5(4)(e) and Article 5(5) of Regulation No 543/2008. According to the Italian Government, that obligation was introduced as a measure intended to ensure the traceability of meat following the confirmation of outbreaks of bird flu in third countries.

The Commission considers that the obligation in question is contrary to Article 3(1)(8) of Directive 2000/13. It is clear from that article that, for foodstuffs in general, particulars of the place of origin or provenance must appear on the labelling only where, in the absence of such an indication the consumer might be misled as to the true origin or provenance of the foodstuff. The Community legislature does not, therefore, consider that the indication of origin is a necessary piece of information for consumers in general or in absolute terms, but only where failure to give such an indication might mislead them.

It is for the Italian Government to establish that the obligation to indicate the origin of poultry from other Member States which is laid down by the order in question really is important for poultrymeat and that failure to give such an indication entails a risk of error on the part of the consumer. In fact, the Commission submits, the Italian Government has not adduced any evidence capable of proving that the Italian consumer would be misled as regards the origin or the provenance of poultrymeat in the absence of any indication of origin.

The circumstances surrounding the bird flu crisis do not explain why the failure to indicate origin might mislead the consumer and lead him to believe that poultrymeat has a particular origin. The mere fact that the average consumer attaches importance to the origin of the product does not mean that, in the absence of indications of origin, he will be misled as to the real origin of the product. That would imply that a consumer automatically attributes a specific origin to poultrymeat, which remains to be proven by the Italian Government. It should also be observed that matters of animal health cannot be assessed by the consumer who does not have the necessary knowledge to assess the risk on the basis of an indication of origin.

Moreover, the above provisions of the order are not justified by the public health considerations within the meaning of Article 18(2) of that directive which are relied on by the Italian Government to justify the additional labelling requirement. In order to combat bird flu, the Community has adopted a wide range of veterinary measures intended to ensure that only healthy poultrymeat can enter the Community and be marketed there.

The argument raised by the Italian Government that the abovementioned Community measures do not ensure traceability is irrelevant, according to the Commission, because the Community measures in question are intended precisely to prevent the entry into the Community of meat from third countries in which outbreaks of bird flu have been discovered. Thus, those measures take effect at a stage before that of marketing, when the Italian measure takes effect, precisely because their objective is to prevent meat from third countries in which there has been an outbreak of bird flu from being imported into the Community. Moreover, the Community has also adopted measures which ensure the isolation of any outbreaks of bird flu which may be confirmed within Community territory so as to prevent any risk of contamination. Within the European Community a series of veterinary measures were then adopted in order to prevent the spread of the virus from wild birds to poultry in the regions in which infected wild birds have been identified and to stem any epidemics in poultry.

The Italian Government then cites Regulation (EC) No 1760/2000 (4) which set up a system of traceability for beef which introduces an obligation to indicate origin on labelling, to demonstrate the legitimacy of the obligation introduced by the order in question.

The Commission, however, submits that that measure, unlike the order in question, is a Community measure and not a national, and therefore unilateral, measure likely to constitute an obstacle to trade. Moreover, the effectiveness of the system introduced by Regulation No 1760/2000 is not solely based on a system of merely indicating the origin of the product, like the Italian order on poultrymeat, but on the combination of a series of elements including a system of identification and registration of animals.

As regards the argument of the Italian Government attempting to justify the measure on the basis of the precautionary principle, in that the Commission has not established that there is not scientific uncertainty regarding the ways in which the virus is transmitted to man, the Commission observes, in accordance with the case-law of the Community courts, that the scientific data relied on by the Italian Government in the reply to the reasoned opinion do not establish that there is genuine scientific uncertainty regarding the ways in which the virus is transmitted to man. According to the case-law of the Community courts, it is for the Italian authorities to prove the scientific uncertainty which justifies the adoption of national measure in pursuance of the precautionary principle and not for the Commission to prove the absence of scientific uncertainty as the Italian Government appears to suggest in its reply to the reasoned opinion.

Even if it is accepted that, as regards the specific case of the possible transmission of the virus from infected poultry to domestic animals in general and cats in particular, the Italian Government has demonstrated the existence of genuine scientific uncertainty regarding the guidance in the documents of the WHO and the Food Authority cited by it in the reply to the reasoned opinion, the Commission none the less considers that application of the precautionary principle adopted to justify the order in question appears excessive and therefore not proportionate to the objective of the protection of animal health, given that a series of Community measures have been adopted which are intended to achieve the same objective.

Finally, until 30 June 2008, Article 5(3)(e) and Article 5(4) of Regulation 1906/90 on certain marketing standards for poultry and, from 1 July 2008, Article 5(4)(e) and Article 5(5) of Commission Regulation (EC) No 543/2008 impose an obligation to indicate the origin of poultrymeat only on poultry from third countries. On that point the Italian Government does not put forward any counterarguments.

(1) OJ 2000 L 109, p. 29.

(2) OJ 1990 L 173, p. 1.

(3) OJ 2008 L 157, p. 46.

(4) Regulation (EC) No 1760/2000 of the European Parliament and of the Council of 17 July 2000 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products and repealing Council Regulation (EC) No 820/97.