Commission of the European Communities v Italian Republic.
Date: 1993-05-25
11 In order to assess the merits of this complaint, it should be noted in the first place that, even though the provisions of Regulation No 3796/81, cited above, do not expressly prohibit quantitative restrictions on imports and measures having equivalent effect as regards intra-Community trade, it follows from the combined provisions of Articles 38 to 46 and Article 8(7) of the Treaty that this prohibition arises out of the Treaty provisions automatically, from the expiry of the transitional period at the latest, as was stressed moreover in the 30th recital in the preamble to Regulation No 3796/81 (see to this effect Joined Cases 3/76, 4/76 and 6/76 Kramer [1976] ECR 1279, paragraph 53/54).
12 Moreover, the measures at issue are caught by the prohibition set out in Article 30 of the Treaty. As the Court has consistently held (see, in the first place, Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5), the prohibition of measures having equivalent effect to quantitative restrictions within the meaning of Article 30 of the Treaty covers all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.
16 In those circumstances, it was for the Member States to decide on the level of protection which they wished to accord to the protection of health and life of humans in this sector, whilst taking account of the requirements of the free movement of goods within the Community (see in particular Case C-205/89 Commission v Hellenic Republic [1991] ECR I-1361, paragraph 8).
18 However, it must also be borne in mind that rules which restrict intra-Community trade are only compatible with the Treaty to the extent to which they are necessary for the effective protection of health and life of humans, and consequently do not fall within the exception specified in Article 36 if the health and life of humans can be as effectively protected by measures which do not restrict intra-Community trade so much (see in particular Case 104/75 De Peijper [1976] ECR 613, paragraphs 16 and 17).
20 The Court has already held on several occasions that a double check on products on importation, which consists, on the one hand, of the requirement of a certificate from the competent authority of the country of dispatch to the effect that the goods have been subjected to a process intended to eliminate certain parasites and, on the other hand, of a systematic inspection at the frontier following which importation is only permitted after the health authorities of the State of destination have confirmed that the goods are free from the parasites in question, exceeds what Article 36 of the Treaty permits (see Case 251/78 Denkavit Futtermittel v Minister fuer Ernaehrung, Landwirtschaft und Forsten [1979] ECR 3369, Case 132/80 United Foods and Van den Abeele v Belgian State [1981] ECR 995, Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 3277 and Case 124/81 Commission v United Kingdom [1983] ECR 203).
21 Thus, according to the case-law, in cases where the product has already undergone a health check in the State of dispatch affording guarantees equivalent to those resulting from the inspection on importation, the second check must not duplicate that carried out in the Member State of dispatch and must therefore, in all cases, be limited to measures designed to counter the risks arising from transportation or from any handling following the check carried out on dispatch (see United Foods and Van den Abeele v Belgian State, paragraph 29).
22 Likewise, the Court has held that, where cooperation between the authorities of the Member States makes it possible to facilitate and simplify frontier checks, the authorities responsible for health inspections must ascertain whether the substantiating documents issued within the framework of that cooperation raise a presumption that the imported goods comply with the requirements of domestic health legislation, thus enabling the checks carried out upon importation to be simplified (see in particular Denkavit Futtermittel v Minister fuer Ernaehrung, Landwirtschaft und Forsten, paragraph 23, and Commission v United Kingdom, paragraph 30).
27 As for the second point, it must be borne in mind that, as the Court has consistently held (see in particular Case 227/82 Van Bennekom [1983] ECR 3883, paragraph 40), it is for the Member States to demonstrate in each case that their rules are necessary to give effective protection to the interests referred to in Article 36 of the Treaty and, in particular, to show that the marketing of the product in question creates a serious risk to public health.
39 The purpose of Directive 83/643, cited above, is to lay down various rules for the carrying out of physical inspections of goods and the completion of the required administrative formalities upon crossing a frontier with a view, according to its preamble, to reducing the waiting time at frontiers and ensuring a smoother flow of goods traffic between Member States (see Case 190/87 Oberkreisdirektor des Kreises Borken v Moorman [1988] ECR 4689, paragraph 26).