Case C-487/04: Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic
Date: 2005-02-05
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, aid system, animal nutrition, milk, milk product, skimmed milk powder

5.2.2005

EN

Official Journal of the European Union

C 31/9

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

— order the Italian Republic to pay the costs.

(Case C-486/04)

Pleas in law and main arguments:

(2005/C 31/18)

(Language of the case: Italian)

The Commission submits that the Italian Republic has failed to
fulfil its obligations under Directive 85/337/EEC as amended by
Directive 97/11/EEC for the reasons set out in its application.

(1) OJ L 175 of 5.7.1985, p. 40.
(2) OJ L 73 of 14.3.1997, p. 5.

Justice of

An action against the Italian Republic was brought before the
Court of
the European Communities on 25
November 2004 by the Commission of the European Commu-
nities, represented by M. Van Beek, F. Louis and A. Capobianco,
acting as Agents.

The applicant claims that the Court should:

— declare that the Italian Republic has failed to fulfil its obli-
gations under Article 2(1) and Article 4(1), (2) and (3) of
Directive
by Directive
as
97/11/EEC (2):

85/337/EEC (1)

amended

1. by not subjecting the Massafra WDF and biomass incin-
eration plant project, which is a plant included in Annex
I to the Directive 85/337/EEC as amended by Directive
97/11/EEC, to an environmental impact assessment in
accordance with Articles 5 to 10 of Directive
85/337/EEC as amended;

2. by not adopting legislation (Article 3(1)(i) and (l) of the
DPCM (Decree of the President of the Council of Minis-
ters) of 3 September 1999 amending Annex A to the
DPR (Decree of the President of the Republic) of 12
April 1996) which excludes from the environmental
impact assessment procedure any projects falling within
Annex I to Directive 85/337/EEC as amended (projects
for installations for the recovery of hazardous waste and
non-hazardous waste with a capacity exceeding 100
tonnes per day) if subject to the simplified authorisation
procedure within the meaning of Article 11 of Directive
75/442/EEC, and

3. by adopting legislation (Article 3(1)(i) and (l) of the
DPCM of 3 September 1999 amending Annex A to the
DPR of 12 April 1996) which, for the purposes of estab-
lishing whether or not a project falling within Annex II
of Directive 85/337/EEC as amended must be the
impact assessment (EIA),
subject of an environmental
sets an inadequate test in that projects which have a
significant impact on the environment can be excluded
from an EIA;

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)

Justice of

An action against the Italian Republic was brought before the
Court of
the European Communities on 25
November 2004 by the Commission of the European Commu-
nities, 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 trace-
ability 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 obli-
gations 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 Regu-
lation (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.

— Order the Italian Republic to pay the costs.

C 31/10

EN

Official Journal of the European Union

5.2.2005

Pleas and main arguments

1. In order

the power

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
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 Regu-
lation No 2799/1999 imposes on the undertakings in
receipt of the aid.

to adopt

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.

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 intro-
duced 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.

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 super-
visory 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
the Community has established a
to which, whenever
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 unilat-
erally 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.

(1) OJ 1999 L 160, p. 48
(2) OJ 1999 L 340, p. 3

Reference for a preliminary ruling by the Cour de cassa-
tion (France), chambre commerciale, financière et écono-
mique – by judgment of that court of 16 November 2004
in the case of Galeries de Lisieux SA against Organic
Recouvrement

(Case C-488/04)

(2005/C 31/20)

(Language of the case: French)

5. Nor, moreover, can the Italian Government rely on the case-
law according to which introduction of a common organisa-
tion 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
to Law No
the preparatory documents
250/2000 that the aim of the provisions contained therein
the unlawful diversion of skimmed-milk
is

to prevent

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of
the Cour de cassation
(France), chambre commerciale, financière et économique (the
Court of Cassation (France), Commercial,
and
Economic Chamber) of 16 November 2004, received at the
Court Registry on 29 November 2004, for a preliminary ruling
in the case of Galeries de Lisieux SA against Organic Recouvre-
ment on the following question:

Financial