Commission of the European Communities v Italian Republic.
Date: 2003-06-19
21.  The Italian Government considers that an upper limit for caffeine is justified, in particular, by the evaluations undertaken by the Italian health authorities. The whole matter must be resolved from the point of view of the lawfulness of the scientific position adopted by the those authorities. Any other solution would, in its view, deprive Article 30 EC of its content by replacing the non-arbitrary discretion of the Member State with the subjective opinion of the health authorities of another Member State, which although legitimate is certainly not such as to be inherently indisputable.
22.  The Italian Government submits that it is for the Commission to produce scientific evidence that, given the prevailing environmental conditions in Italy, the fixing of a maximum authorised caffeine level does not satisfy the criteria of a proper balancing of the interests in question.
25.  The prohibition on measures having equivalent effect to quantitative restrictions laid down in Article 28 EC covers all trading rules in Member States which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade (Case 8/74   Dassonville   [1974] ECR 837, paragraph 5, and Case 178/84   Commission   v   Germany   ( "Beer Purity "  ) [1987] ECR 1227, paragraph 27).
26.  According to settled case-law, in an action under Article 226 EC, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing at the end of the period laid down in the reasoned opinion (see Case C-476/98   Commission   v   Germany   [2002] ECR I-9855, paragraph 42). In the present case, it is clear from the case-file that at the time of the expiry of the two-month period laid down in the reasoned opinion, there was a prohibition in Italy on the marketing of energy drinks, lawfully produced and marketed in other Member States, whose caffeine content was in excess of a certain limit.
28.  It is common ground that a prohibition on the marketing of energy drinks containing caffeine in excess of a certain limit, which are lawfully produced and marketed in other Member States, whether it derives from regulatory provisions or an administrative practice, impedes intra-Community trade, and thereby constitutes in principle a measure having an equivalent effect to a quantitative restriction within the meaning of Article 28 EC (see, to that effect, Case C-42/90   Bellon   [1990] ECR I-4863, paragraph 10).
29.  Such a prohibition can only be justified if it is necessary on one of the grounds of public interest set out in Article 30 EC, such as the protection of health and life of humans, or in order to meet imperative requirements relating,   inter alia  , to consumer protection.
30.  According to settled case-law, it is for the competent national authorities to show, in each case, that their rules or administrative practices are necessary to effectively protect the interests envisaged by Article 30 EC or to meet imperative requirements and, where appropriate, that the marketing of the products in question poses a risk to public health (see, to that effect, Case 304/84   Muller and Others   [1986] ECR 1511, paragraph 25,   Beer Purity  , cited above, paragraph 46, and Joined Cases C-13/91 and C-113/91   Debus   [1992] ECR I-3617, paragraph 18).
31.  In the present case, the Italian Government has not shown that the prohibition on the marketing of energy drinks containing caffeine in excess of a certain limit is necessary and proportionate for the protection of public health.
34.  As regards the 1998 Circular which, according to the Italian authorities, authorised the release for consumption of the energy drinks in question and thus put an end to the failure to fulfil obligations that gave rise to this action, it should be recalled that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any subsequent changes (see Case C-476/98   Commission   v   Germany  , cited above, paragraph 42, and Case C-122/02   Commission   v   Belgium   [2003] ECR I-833, paragraph 11).