OPINION OF MR MAYRAS — CASE 14 /78 DENKAVIT v COMMISSION

Mr President,

Members of the Court,

I —. The Italian company Denkavit, the first applicant in this case, sells feeding-stuffs which it buys from a Netherlands supplier forming part of the same group. It undertook once again on 9 November 1977 to import a consignment of these feeding-stuffs of which the potassium nitrate content was higher than the limit fixed by the Italian authorities on 7 September 1976. By that measure those authorities unilaterally introduced a maximum permitted level for that substance which they considered was dangerous and which in their opinion had been added to the feeding-stuffs and they applied marketing restrictions calculated to give effect thereto. The Court has already had to deal with this point in the proceedings which culminated in its judgment of 5 October 1977 in Case 5/77 Carlo Tedeschi v Denkavit Commerciale s.r.l. ([1977] ECR 1555) delivered in answer to questions referred to if for a preliminary ruling by the Pretura di Lodi. I do not know what benefit that court derived from the Court's judgment but the fact remains that, as happened in September 1976, the consignment was refused by the Italian Customs and had to be sent back to the Netherlands.

II —. Formally, the applicants claim the Court should declare that the Commission has acted unlawfully in that it failed to adopt, with reference to the Italian State, a measure designed to require the urgent note of 7 September 1976 to be revoked. The Commission in fact acquiesced for nearly two years in this failure to respect the principle of the free movement of the products in question, which is nevertheless enshrined in Article 30 of the Treaty and in the directive; the proper functioning of the common organization of the market in milk products established by Regulation No 804/68 has for this reason not been ensured.

III —. At the legislative level the applicants maintain that the Commission has exceeded or misused the powers conferred upon it by Articles 5 and 10 of the directive. The nature of the powers which the Commission derives from those articles must therefore be ascertained.

IV —. It remains for me to consider the complaints which the applicants make against the Commission on the administrative level.

In all these circumstances it is my view that neither at the legislative nor at the administrative level has the Commission acted in such a way as to render the Community liable and I submit that the application should be dismissed and that the applicants should bear the costs.

1 Translated from the French.