Case C-383/08: Action brought on 25 August 2008 — Commission of the European Communities v Italian Republic
Date: 2008-08-25
Institutions: Court of Justice
Subjects: Italy, action for failure to fulfil an obligation, animal disease, approximation of laws, poultrymeat, traceability

C 301/16

EN

Official Journal of the European Union

22.11.2008

2. If a sale of goods is to be presumed: in the case of contracts
involving carriage of goods,
is the place where under the
contract the goods sold were delivered or should have been
delivered to be determined according to the place of physical
transfer to the purchaser, or according to the place at which
the goods were handed over to the first carrier for transmis-
sion to the purchaser?

(1) OJ L 12, 16.1.2001, p. 1.

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 Regu-
lation 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,
introduced as a
measure intended to ensure the traceability of meat following
the confirmation of outbreaks of bird flu in third countries.

that obligation was

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 (repre-
sented 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 obli-
gations under Article 3(1)(8) and Article 18(2) of Directive
2000/13/EC (1) on the labelling, presentation and adver-
tising 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 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.

22.11.2008

EN

Official Journal of the European Union

C 301/17

The argument raised by the Italian Government that the above-
mentioned Community measures do not ensure traceability is
irrelevant, according to the Commission, because the Com-
munity 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 Com-
munity. 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.

then

Italian Government

The
(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.

Regulation

cites

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
the system
obstacle to trade. Moreover,
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.

the effectiveness of

As regards the argument of the Italian Government attempting
to justify the measure on the basis of the precautionary prin-
ciple, 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 Govern-
ment appears to suggest in its reply to the reasoned opinion.

domestic animals in general and cats in particular, the Italian
Government has demonstrated the existence of genuine scien-
tific 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 propor-
tionate 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 obliga-
tion 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 identifica-
tion and registration of bovine animals and regarding the labelling of
beef and beef products and repealing Council Regulation (EC)
No 820/97.

Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale del Lazio (Italy)
lodged on
27 August 2008 — Attanasio Group Srl v Comune di
Carbognano

(Case C-384/08)

(2008/C 301/31)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Attanasio Group Srl

Even if it is accepted that, as regards the specific case of the
the virus from infected poultry to
possible transmission of

Defendant: Comune di Carbognano