1 By an application lodged at the Court Registry on 3 March 1988, the Commission of the European Communities has brought an action under Article 169 of the EEC Treaty for a declaration that by making the marketing of edible vegetable oils, other than olive oil, and of margarine, hydrogenated edible fats and solid edible fats of animal and vegetable origin, other than butter and lard, imported from other Member States, conditional on the addition of colour-reactive sesame oil, the Italian Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty .
2 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure, the pleas in law and arguments of the parties which are mentioned or discussed hereinafter only in so far as necessary for the reasoning of the Court .
3 It should be pointed out at the outset that the Italian Government does not deny that the obligation laid down by the Italian rules to add sesame oil to the products in question constitutes, as regards the imported products for marketing in Italy, a measure having effect equivalent to a quantitative restriction prohibited by Article 30 of the Treaty . The point at issue between the parties is whether or not the provisions in question are justified by imperative requirements relating to the fairness of commercial transactions and the protection of consumers .
4 In this connection it should be noted that as the Court has held on a number of occasions since its judgment in Case 120/78 REWE v Bundesmonopolverwaltung fuer Branntwein [1979] ECR 649, in the absence of common rules relating to the marketing of the products in question, obstacles to free movement within the Community resulting from disparities between national laws must be accepted in so far as those provisions, which are applicable without distinction to domestic products and imported products, can be justified as being necessary in order to satisfy imperative requirements relating in particular to the fairness of commercial transactions and the protection of the consumer . A further requirement is that the national rules in question be proportionate to the aim pursued . If a Member State has a choice between different means of attaining the same end, it must choose the means which least hinders freedom of trade .
5 In this case the Italian Government maintains that the obligation to add colour-reactive sesame oil is indispensable in combating certain fraudulent practices intended to deceive consumers, in particular in the olive oil sector . It further contends that that aim cannot be achieved by means of appropriate labelling and that the measure renders superfluous laboratory analyses on whose reliability at the present stage of technical development it casts doubt moreover .
6 In this connection it suffices to point out that the obligation to add sesame oil to other edible vegetable oils is not such as to achieve the objective of protecting consumers against fraudulent mixtures of olive oil and other oils . The obligation is not a general obligation in so far as it relates only to oil intended for comestible purposes as laid down by Article 13 of the Italian Ministerial Decree of 18 December 1975 ( Gazzetta ufficiale della Repubblica italiana No 340 of 27.12.1975 ). It is apparent from the argument presented before the Court that vegetable oils to which sesame oil has not been added may be marketed without difficulty on the Italian market .
7 Furthermore there are no effective controls on either domestic production or imported products in order to check that sesame oil has indeed been added even where the imports are from countries where there is no obligation to add sesame oil . In those circumstances it is plain that a producer who intends to perpetrate a fraud will buy vegetable oils to which sesame oil has not been added in order to mix them with olive oil .
8 Consequently, since the measure in question is not such as to achieve effectively the aim pursued, it should be held that it is not necessary in order to satisfy the aforementioned imperative requirements .
9 Moreover, appropriate labelling and the application of scientific techniques make it possible to distinguish olive oil from other oils intended for human consumption; such methods are referred to in Article 1 of Commission Regulation ( EEC ) No 1058/77 of 18 May 1977 on the characteristics of olive oil and of certain products containing olive oil ( Official Journal 1977 L 128, p . 6 ) and in Annex VIII to that regulation entitled "Test for the presence of other oils in olive oils ".
10 It must therefore be held that by making the marketing of edible vegetable oils other than olive oil, and of margarine, hydrogenated edible fats and solid edible fats of animal and vegetable origin, other than butter and lard, imported from other Member States conditional on the addition of colour-reactive sesame oil, the Italian Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty .