1THE PURPOSE OF THE APPLICATION , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 13 FEBRUARY 1978 , ACCORDING TO ITS WORDING , AND ON THE BASIS OF ARTICLE 215 OF THE TREATY , IS : ( 1 ) TO OBTAIN A DECLARATION THAT THE COMMISSION HAS ACTED UNLAWFULLY IN THAT IT FAILED TO ADOPT A MEASURE IN RESPECT OF THE ITALIAN STATE REQUIRING IT TO REVOKE THE URGENT NOTE ( ' ' BIGLIETTO URGENTE ' ' ) OF 7 SEPTEMBER 1976 WHEREBY THE ITALIAN AUTHORITIES FIXED A MAXIMUM PERMITTED LEVEL FOR NITRATES IN CERTAIN FEEDING-STUFFS AND PROHIBITED THE MARKETING AND IMPORTATION OF FEEDING-STUFFS WHICH DID NOT FULFIL THAT CONDITION ; ( 2)TO OBTAIN AN ORDER ENJOINING THE COMMISSION TO ADOPT SUCH A MEASURE AS A MATTER OF URGENCY ; AND ( 3)TO OBTAIN AN ORDER THAT THE COMMISSION SHALL PAY THE APPLICANTS SUCH SUMS AS SHALL BE DETERMINED SUBSEQUENTLY BY THE COURT FOR THE DAMAGE WHICH THEY CLAIM TO HAVE SUFFERED AS A RESULT OF THE COMMISSION ' S FAILURE TO ACT OR DELAY IN ACTING IN THE MANNER INDICATED ABOVE ; TO OBTAIN IN EACH CASE AN ORDER THAT THE COMMISSION SHOULD PAY THE COSTS .
2THE FIRST CLAIM RELATES NOT TO THE SUBJECT-MATTER OF THE APPLICATION BUT TO THE LEGAL FOUNDATION WHICH MAY JUSTIFY THE TWO OTHER CLAIMS , SO THAT THE EXAMINATION OF THAT CLAIM INVOLVES CONSIDERATION OF THE OTHER TWO .
3AS FAR AS CONCERNS THE SECOND CLAIM IN THIS APPLICATION , THE COMMISSION BY DECISION NO 78/523/EEC OF 30 MAY 1978 ( OFFICIAL JOURNAL L 159 , P . 45 ) - ADOPTED DURING THESE PROCEEDINGS - DECIDED ON THE BASIS OF COUNCIL DIRECTIVE NO 74/63/EEC OF 17 DECEMBER 1973 ON THE FIXING OF MAXIMUM PERMITTED LEVELS FOR UNDESIRABLE SUBSTANCES AND PRODUCTS IN FEEDING-STUFFS THAT IT WAS UNNECESSARY TO FIX MAXIMUM PERMITTED LEVELS FOR NITRATES IN FEEDING-STUFFS ( ARTICLE 1 ) AND THAT THE ITALIAN REPUBLIC SHOULD TAKE THE MEASURE NECESSARY TO COMPLY WITH THAT DECISION WITHIN ONE MONTH OF ITS NOTIFICATION ( ARTICLE 2 ), WHICH MEANS THAT THE GOVERNMENT OF THAT MEMBER STATE WAS REQUIRED TO REPEAL THE URGENT NOTE ( ' ' BIGLIETTO URGENTE ' ' ) AT ISSUE WITHIN THE PERIOD SPECIFIED .
4CONSEQUENTLY THIS CLAIM NO LONGER HAS ANY PURPOSE .
5THE THIRD CLAIM IN THE APPLICATION IS FOR COMPENSATION FOR THE DAMAGE WHICH THE APPLICANTS CLAIM TO HAVE SUFFERED BY REASON OF THE FACT THAT DELIVERIES OF FEEDING-STUFFS BY DENKAVIT NEDERLAND - THE SECOND APPLICANT - TO ITS ITALIAN SUBSIDIARY , DENKAVIT COMMERCIALE - THE FIRST APPLICANT - AND IN PARTICULAR ONE DELIVERY OF 12 TONNES WHICH ARRIVED AT THE ITALIAN FRONTIER ON 9 NOVEMBER 1977 , WERE STOPPED AT THE SAID FRONTIER BECAUSE THEIR POTASSIUM NITRATE CONTENT WAS HIGHER THAN THAT PERMITTED BY THE ' ' URGENT NOTE ' ' ISSUED BY THE ITALIAN MINISTER OF HEALTH ON 7 SEPTEMBER 1976 .
6.IT IS THE APPLICANTS ' VIEW THAT THE COMMISSION , BY FAILING , AS FROM 7 OCTOBER 1976 - BEING ONE MONTH AFTER THE ADOPTION OF THE ' ' URGENT NOTE ' ' - AND IN ANY EVENT AS FROM 5 NOVEMBER 1977 - BEING ONE MONTH AFTER THE JUDGMENT OF THE COURT OF 5 OCTOBER 1977 IN CASE 5/77 , CARLO TEDESCHI V DENKAVIT COMMERCIALE S.R.L . ( 1977 ) ECR 1555 - TO REQUIRE THE ITALIAN GOVERNMENT TO REPEAL THE MEASURE COMPLAINED OF , HAS ACTED IN SUCH A WAY AS TO INCUR LIABILITY WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 215 OF THE TREATY .
7A PERIOD OF NEARLY 21 MONTHS ELAPSED BETWEEN THE DATE OF THE ITALIAN MEASURE - 7 SEPTEMBER 1976 - AND THE DATE WHEN THE COMMISSION ADOPTED THE DECISION REQUIRING THE GOVERNMENT CONCERNED TO WITHDRAW IT - 30 MAY 1978 .
8CONSEQUENTLY , TAKING INTO ACCOUNT THE FACT THAT THE MEASURE AT ISSUE WAS AN OBSTACLE TO TRADE BETWEEN MEMBER STATES , IT IS NECESSARY TO CONSIDER WHETHER THE COMMISSION , BY CONDUCT FOR WHICH THERE WAS NO JUSTIFICATION , DID NOT IMPROPERLY CONTRIBUTE TO THE MAINTENANCE OF THAT OBSTACLE AND THEREBY INCUR LIABILITY .
9WHEN THE ITALIAN GOVERNMENT ADOPTED THE MEASURE COMPLAINED OF ON 7 SEPTEMBER 1976 IT WAS A MATTER OF UNCERTAINTY AT LAW WHETHER THAT MEASURE ' S LEGAL FOUNDATION WAS COUNCIL DIRECTIVE NO 70/524 OF 23 NOVEMBER 1970 CONCERNING ADDITIVES IN FEEDING-STUFFS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( III ), P . 840 ) - IN WHICH CASE IT WAS DEFINITIVE , SUBJECT TO A REVIEW OF ITS LEGALITY - OR COUNCIL DIRECTIVE NO 74/63/EEC OF 17 DECEMBER 1973 ON THE FIXING OF MAXIMUM PERMITTED LEVELS FOR UNDESIRABLE SUBSTANCES AND PRODUCTS IN FEEDING-STUFFS - IN WHICH CASE IT WAS MERELY A PROVISIONAL MEASURE ADOPTED IN EXERCICE OF THE EMERGENCY POWERS CONFERRED UPON MEMBER STATES BY ARTICLE 5 OF THE DIRECTIVE , IN ANTICIPATION OF THE COMMISSION ' S DECISION , IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 10 OF THE SAID DIRECTIVE , AS TO WHETHER OR NOT IT WAS NECESSARY TO ADD NITRATES TO THE LIST OF ' ' UNDESIRABLE SUBSTANCES AND PRODUCTS ' ' .
10THIS STATE OF UNCERTAINTY WAS NOT BROUGHT TO AN END UNTIL , ON 5 OCTOBER 1977 , IN RESPONSE TO A REQUEST FOR A PRELIMINARY RULING , THE COURT OF JUSTICE DELIVERED A JUDGMENT IN WHICH IT HELD THAT THE ITALIAN MEASURE CAME WITHIN THE FIELD OF APPLICATION OF DIRECTIVE NO 74/63/EEC , SO THAT IT IS ONLY AS FROM THAT DATE THAT IT WOULD BE REASONABLE TO REQUIRE THE COMMISSION TO HAVE SET IN MOTION THE PROCEDURE LAID DOWN IN ARTICLE 10 OF THAT DIRECTIVE .
11PURSUANT TO ARTICLE 5 OF DIRECTIVE NO 74/63/EEC , IF A MEMBER STATE ADOPTS A PROVISIONAL MEASURE WHICH RESTRICTS THE FREE MOVEMENT OF GOODS , ON THE SPECIFIC GROUND THAT THE PRESENCE IN CERTAIN FEEDING-STUFFS OF SUBSTANCES OR PRODUCTS , WHICH IT CONSIDERS ARE UNDESIRABLE AND OF WHICH THE PERMISSIBLE LEVEL HAS NOT YET BEEN DETERMINED BY THE DIRECTIVE , IS DETRIMENTAL TO ANIMAL OR HUMAN HEALTH , ' ' AN IMMEDIATE DECISION SHALL BE MADE ' ' , IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 10 OF THE DIRECTIVE , AS TO WHETHER OR NOT THE ANNEX TO THAT DIRECTIVE SHOULD BE SUPPLEMENTED OR MODIFIED .
12IN THE MEANTIME THE MEMBER STATE MAY MAINTAIN , ON A PROVISIONAL BASIS , THE MEASURE WHICH IT HAS IMPLEMENTED .
13ARTICLE 10 OF DIRECTIVE NO 74/63/EEC PROVIDES THAT THE DECISION AS TO WHETHER OR NOT TO ENTER THE SUBSTANCE IN QUESTION ON THE LIST OF UNDESIRABLE PRODUCTS SHALL BE ADOPTED BY THE COMMISSION PROVIDED THAT THE LATTER COMPLIES IN THIS CONNEXION WITH THE OPINION PREVIOUSLY DELIVERED BY A STANDING COMMITTEE FOR FEEDING-STUFFS ( HEREINAFTER REFERRED TO AS THE STANDING COMMITTEE ).
14IF , ON THE OTHER HAND , THE COMMISSION WISHES TO DEPART FROM THAT OPINION IT MUST CONFINE ITSELF TO SUBMITTING A PROPOSAL TO THE COUNCIL WHICH MUST MAKE THE DECISION , THE COMMISSION REGAINING SOME OF ITS FREEDOM OF ACTION ONLY IF THE COUNCIL HAS NOT REACHED A DECISION WITHIN 15 DAYS .
15ON 7 SEPTEMBER 1976 THE MATTER WAS BROUGHT BEFORE THE STANDING COMMITTEE , WHICH DECIDED AT ITS FIRST MEETING ON THAT DATE THAT THE QUESTION WHETHER NITRATES IN FEEDING-STUFFS MAY BE HARMFUL SHOULD BE REFERRED TO A ' ' SCIENTIFIC COMMITTEE FOR FEEDING-STUFFS ' ' WHICH IT WISHED TO HAVE SET UP .
16ON 24 SEPTEMBER 1976 THE COMMISSION SET UP THAT SCIENTIFIC COMMITTEE WHICH MET NINE TIMES DURING THE YEARS 1976 TO 1978 BEFORE , AS IS SHOWN BY THE MINUTES OF ITS MEETINGS ON 8 DECEMBER 1977 AND 19 APRIL 1978 , BEING IN A POSITION TO PREPARE A DEFINITIVE OPINION TO THE EFFECT THAT NITRATES IN FEEDING-STUFFS ARE HARMLESS .
17THE STANDING COMMITTEE FOR ITS PART HAD RECORDED ON 27 FEBRUARY 1978 IN ONE OF ITS MINUTES THAT ' ' EIGHT DELEGATIONS ARE OPPOSED TO ANY MODIFICATION OF THE ANNEX TO DIRECTIVE NO 74/63/EEC ' ' AND WENT ON TO STATE THAT ' ' CONSEQUENTLY THE COMMISSION ' S DEPARTMENTS SHALL ENDEAVOUR TO FIND A SATISFACTORY SOLUTION ' ' AND IN THIS WAY REFRAINED FROM ADOPTING AN UNAMBIGUOUS ATTITUDE .
18A SUFFICIENTLY EXPLICIT OPINION AGAINST THE ADDITION OF NITRATES TO THE ANNEX TO DIRECTIVE NO 74/63/EEC ONLY APPEARS IN THE COMBINED MINUTES OF THE MEETINGS OF THE STANDING COMMITTEE ON 3 AND 11 MAY 1978 .
19IMMEDIATELY AFTERWARDS , THAT IS ON 30 MAY 1978 , THE COMMISSION ADOPTED A DECISION IN ACCORDANCE WITH THE ASSESSMENT OF THE STANDING COMMITTEE AND THE SCIENTIFIC COMMITTEE .
20IN THOSE CIRCUMSTANCES THE COMMISSION CANNOT BE BLAMED FOR HAVING WAITED UNTIL IT WAS FULLY INFORMED BEFORE ADOPTING A DECISION ON A MATTER AS COMPLEX AS THE PRESENCE IN FEEDING-STUFFS OF SUBSTANCES WHICH MIGHT PROVE TO BE UNDESIRABLE FROM THE POINT OF VIEW OF HUMAN OR ANIMAL HEALTH .
21THE APPLICANTS ALSO SUBMIT THAT THE LENGTHY PROCEDURE WHICH WAS FOLLOWED WAS OF NO AVAIL BECAUSE IT WAS CLEAR AT THE OUTSET THAT THE PRESENCE OF POTASSIUM NITRATE WAS HARMLESS .
22THIS ASSERTION IS REFUTED BOTH BY THE REFUSAL OF THE SCIENTIFIC COMMITTEE TO EXPRESS AN OPINION BEFORE IT HAD CARRIED OUT EXPERIMENTS AND ALSO BY THE FACT THAT THE COMMISSION HAD DRAWN UP A PROPOSAL LIMITING THE POTASSIUM NITRATE CONTENT , AT LEAST IN THE CASE OF FEEDING-STUFFS FOR CERTAIN ANIMALS .
23FURTHERMORE , THE APPLICANTS OVERLOOK THE FACT THAT THE COMMISSION ' S RESPONSIBILITIES IN THIS FIELD ARE OF A DIFFERENT KIND TO THOSE OF A TRADER WHO , IN THE CASE CULMINATING IN THE JUDGMENT OF 5 OCTOBER 1977 ( CASE 5/77 , CITED ABOVE ), CONCEDED THAT POWDERED WHEY WITH A HIGH NITRATE CONTENT , WHICH HAD PREVIOUSLY BEEN REGARDED AS INDUSTRIAL WASTE , WAS ADDED TO FEEDING-STUFFS NOT IN ORDER TO IMPROVE THEIR QUALITY BUT FOR REASONS CONNECTED WITH THE ECONOMIES WHICH THAT OPERATION MADE POSSIBLE .
24THE CERTAIN KNOWLEDGE THROUGHOUT THE COMMUNITY THAT THE INSTITUTIONS OF THE COMMUNITY ARE VIGILANT TO ENSURE THAT THE FREE MOVEMENT OF GOODS CANNOT HAVE ANY HARMFUL EFFECTS ON HUMAN OR ANIMAL HEALTH IS A FACTOR WHICH ENCOURAGES THAT FREEDOM OF MOVEMENT .
25IT FOLLOWS FROM THE ABOVE CONSIDERATIONS THAT THE CONDUCT OF THE COMMISSION IS NOT SUCH THAT IT HAS INCURRED LIABILITY , SO THAT THE APPLICATION MUST BE DISMISSED .