Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

A —. By this action, brought under Article 169 of the EEC Treaty, the Commission seeks a declaration that the Italian Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty. It is charged with restricting the importation of foodstuffs which contain animal gelatin and which are lawfully manufactured and marketed in another Member State.

B —. My views on those claims are as follows :

1. Admissibility

(a). The application is only admissible if the preliminary procedure has been properly followed. The purpose of that procedure is to give the Member States an opportunity to defend or alter their position in order to avoid legal proceedings. Consequently, according to a series of previous judgments of the Court, the subject-matter of the action and the subject-matter of the preliminary procedure must be the same. The mandatory requirement that the Member State concerned must be given an opportunity to submit its observations is satisfied only if the Member State is informed at the initial stage of the essence of all factual and legal complaints against it.

(b). Contrary to the Italian Government's contention it cannot be assumed that the Commission ceased to have a legal interest because, the defendant, after the application had been lodged, amended the original order relating to the gelatin content of sweets. Since, as I have already stated, the subject-matter of an action is determined in the final analysis by the Commission's reasoned opinion, in principle an action still has an object, according to previous decisions of the Court, if the default is only remedied after the period laid down under the second paragraph of Article 169 (See Case 39/72, Commission v Italy). A legal interest in securing a declaration that the Treaty has been infringed certainly continues to exist where, as in this case, the contested order is only repealed after the application has been lodged and even then only partially.

2. Substance

(a). The Commission takes the view that the contested order constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 since it is likely to impede importation of products which have a higher gelatin content and which are lawfully manufactured and marketed in another Member State.

(b). According to the Cassis de Dijon judgment, which resulted in the definition given in the Dassonville judgment being reformulated more narrowly, a measure is not to be regarded as a prohibited measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the EEC Treaty if, first, it applies to all products without distinction and, secondly, if it is necessary in order to satisfy mandatory requirements relating in particular to ... the fairness of commercial transactions and the defence of the consumer.

(c). It remains to examine whether, as the Italian Government contends, the measure is justified under Article 36 of the EEC Treaty on the ground of the protection of health.

3. Costs

According to Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. However, the Commission failed to apply for costs until the oral procedure.

Under Article 38 (1) of the Rules of Procedure, all claims made by the applicant must in principle be contained in the application. Since there appears to be no reason in this case justifying the extension of the application at a later stage the applicant's claim that the Court should order the defendant to pay the costs should be dismissed on the ground that it is out of time; the Court should therefore order the parties to bear their own costs.

C —. In conclusion, I therefore advise the Court to declare that the Italian Republic has, by restricting the importation., of foodstuffs which contain animal gelatin and which have been lawfully manufactured and marketed in. another Member State, failed to fulfil its obligations under Article 30 of the EEC Treaty.

1 Translated from the German.

2 Judgment of 1. 12. 1965 in Case 45/64, Commission v Italy, [1965] ECR 857.

3 Judgment of 7. 2. 1973 in Case 39/72, Commission v Italy, [1973] ECR 101.

4 Judgment of 11. 7. 1974 in Case 8/74, Procureur du Roi v Dassonville, [1974] ECR 837.

5 Judgment of 20. 2. 1979 in Case 120/78, Rewe-Zentral-AG v Bundesmonopolverwaltung für Branntwein, [1979] ECR 649.

6 Judgment of 20. 2. 1979 in Case 120/78, Rewe-Zentral-AG v Bundesmonopolverwaltung für Branntwein, [1979] ECR 649.

7 Judgment of 11. 7. 1974 in Case 8/74, Procureur du Roi v Dmsonville, [1974] ECR 837.

8 Judgment of 26. 6. 1980 in Case 788/79, Gilli and Andres, [1980] ECR2071.

9 Judgment of 10. 11. 1982 in Case 261/81, Walter Rau Lebensmittelwerke v De Smedt PvbA, [1982] ECR 3961.

10 Judgment of 20. 2. 1979 in Case 120/78, Rewe-Zentral-AG v Bundesmonopolverwaltung für Branntwein, [1979] ECR 649; Judgment of 26. 6. 1980 in Case 788/79, Gilli and Andres, [1980] ECR 2071; Judgment of 16. 12. 1980 in Case 27/80, Fietje, [1980] ECR 3839; Judgment of 19. 2. 1981 in Case 130/80, Kelderman, [1981] ECR 527; Judgment of 22. 6. 1982 in Case 220/81, Robertson, [1982] ECR 2349; Judgment of 10. 11. 1982 in Case 261/81, Walter Rau Lebensmittelwerke v De Smedt PvbA, [1982] ECR 3961.

11 Judgment of 14. 7. 1983 in Case 174/82, Sandoz, [1983] ECR 2445.