Commission of the European Communities v Italian Republic.
Date: 2004-02-05
18. The prohibition on measures having an effect equivalent to restrictions set out in Article 28 EC covers all commercial rules enacted by the Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see, in particular, Case 8/74  Dassonville  [1974] ECR 837, paragraph 5; Case 178/84  Commission  v  Germany  [1987) ECR 1227 ( " Beer purity law " ), paragraph 27; and Case C-12/00  Commission  v  Spain  [2003] ECR I-459, paragraph 71).
19. So far as concerns the marketing in a Member State of goods lawfully manufactured and marketed in another Member State and, in the absence of any harmonisation at Community level, a requirement such as that imposed in this case by Article 8 of Legislative Decree No 111/92, which requires foods intended to meet the expenditure of intense muscular effort, aimed especially at sportsmen and women, to be subjected to a prior authorisation procedure and to payment of the relevant administrative costs, renders the marketing of such foods more difficult and expensive (see, to that effect, Case C-33/97  Colim  [1999] ECR I-3175, paragraph 36, and Case C-217/99  Commission  v  Belgium  [2000] ECR I-10251, paragraph 17). Consequently, it constitutes a barrier to intra-Community trade and constitutes a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 28 EC.
20. It is true that, according to the case-law of the Court, national legislation making the use of a nutritional substance in a foodstuff lawfully manufactured and/or marketed in other Member States subject to prior authorisation is not, in principle, contrary to Community law if certain conditions are satisfied (see, to that effect Case C-344/90  Commission  v  France  [1992] ECR I-4719, paragraph 8, and Case C-24/00  Commission  v  France  [2004] ECR I-0000, paragraphs 25 to 27).
21. However, a requirement such as that in issue can only be justified on one of the public-interest grounds set out in Article 30 EC, such as the protection of health and life of humans, or by an imperative requirement relating,  inter alia , to consumer protection (see, among others, Case 120/78  REWE-Zentral  [1979] ECR 649 ( " Cassis de Dijon " ), paragraph 8, and Case C-420/01  Commission  v  Italy  [2003] ECR I-6445, paragraph 29).
22. According to settled case-law, it is for the competent national authorities to show that their rules are necessary in order to attain one or more objectives mentioned in Article 30 EC or meet imperative requirements and, where appropriate, that the marketing of the products in question poses a serious risk to public health and that those rules are in conformity with the principle of proportionality (Case 227/82  Van Bennekom  [1983] ECR 3883, paragraph 40; Case C-358/95  Morellato  [1997] ECR I-1431, paragraph 14; Case C-14/02  ATRAL  [2003] ECR I-4431, paragraph 67; and  Commission  v  Italy , cited above, paragraph 30).
25. Moreover, as the Commission contends, if the procedure in question is, in fact, intended mostly to protect consumers, the Italian Government has also failed to show in what way that procedure is necessary and proportionate to that objective.  Less restrictive measures exist for the prevention of such residual risks as misleading consumers, such as notification of the marketing of the product in question of the competent authority by the manufacturer or distributor of that product together with transmission of a model of the labelling and the obligation requiring the manufacturer or the distributor of that product to furnish, if necessary, evidence of the accuracy of the factual data appearing on the label (see, to that effect, Case C-77/97  Unilever  [1999] ECR I-431, paragraph 35, and Case C-221/00  Commission  v  Austria  [2003] ECR I-1007, paragraphs 49 and 52).