JUDGMENT OF 11. 7. 1984 — CASE 51/83 COMMISSION v ITALY

In Case 51/83

THE COURT composed of: Lord Mackenzie Stuart, President, Y. Galmot (President of Chamber), P. Pescatore, A. O'Keeffe, G. Bosco, U. Everhng and C. Kakouris, Judges, Advocate General: C. O. Lenz Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

IV — Oral procedure

Decison

Admissibility

Substance

Costs

I —. Facts and procedure

1. On 20 October 1978 the Italian Ministry of Health issued a ministerial order (General supplement to the Gazzetta Ufficiale [Official Gazette] No 337 of 2. 12. 1978) concerning permissible chemical additives in the manufacture and conservation of foodstuffs; under that order the use of animal gelatin in the manufacture and marketing of foodstuffs is limited as follows :

2. The Commission did not regard that position as a satisfactory reply to its request addressed to the Italian Government to adopt the measures necessary to terminate the default with which it was charged; it therefore lodged an application at the Court Registry on 29 March 1983. The written procedure followed the normal course.

II —. Conclusions of the parties

1. The Commission claims that the Court should declare that the Italian Republic has, by restricting the importation of foodstuffs which contain animal gelatin and which are lawfully manufactured and marketed in another Member State, failed to fulfil its obligations under Article 30 of the EEC Treaty.

2. The Italian Republic contends that the Court should:

III —. Submissions and arguments of the parties

1. In its application the Commission maintains that Council Directive 74/329/EEC, on the approximation of the laws of the Member States relating to emulsifiers, stabilizers, thickeners and gelling agents for use in foodstuffs, is not applicable in this case because Article 9 (d) thereof provides that Article 2, which limits the use of certain substances, is not to apply to edible gelatin. It therefore follows that the Member States remain free to apply their own rules with regard to the use of gelatin in foodstuffs, provided they comply with Community law and in particular with Article 30 of the Treaty.

2. In its statement of defence the Italian Government observes that according to the Commission's letter of 24 March 1982 the question before the Court relates solely to confectionery products, that is to say to the importation of sweets containing animal gelatin.

3. In its reply the Commission observes that the Italian Government refers to the partial repeal of the measures impugned; in other words, it claims to have repealed them only in relation to one confectionery product and not in relation to all the products in which animal gelatin may be used.

4. In its rejoinder the Italian Government reiterates that the restriction on the use of animal gelatin laid down in the Decreto Ministeriale of 20 October 1978 does not in fact mean that imports into Italy of preserved meat products, ice cream and other confectionery products (other than jellied sweets) are prohibited and that the Commission has not produced any evidence to the contrary in its reply.

IV —. Oral procedure

1. By an application lodged at the Court Registry on 29 March 1983, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that the Italian Republic, by restricting the importation of confectionery products, preserved meat products and ice-cream which contain animal gelatin and which are lawfully manufactured and marketed in another Member State, has failed to fulfil its obligations under the EEC Treaty.

2. The Italian Government points out that the letter of 24 March 1982, by which the Commission invited it to submit its observations with regard to the alleged failure to fulfil its obligations, referred solely to the restriction on the use of gelatin in sweets, whilst the Commission's reasoned opinion of 24 November 1982 and the application to the Court also relate to confectionery products, preserved meat products and ice-cream.

3. It should be recalled that under Article 169 of the Treaty the Commission may bring before the Court an action for a declaration that a State has failed to fulfil its obligations only if that State does not comply with the reasoned opinion within the period laid down therein by the Commission. The Commission does not deliver its reasoned opinion until the Member State has been given an opportunity to submit its observations.

4. It follows from the purpose assigned to the preliminary stage of the procedure under Article 169 that the initial letter is intended to define the subject-matter of the dispute and to indicate to the Member State which is invited to submit its observations the factors enabling it to prepare its defence.

5. As the Court held in its judgments of 17 February 1970 (Case 31/69, Commission v Italy, [1970] ECR 25) and of 15 December 1982 (Case 211/81, Commission v Denmark [1982] ECR 4547), the opportunity for the Member State concerned to submit its observations constitutes an essential guarantee required by the Treaty and, even if the Member State does not consider it necessary to avail itself thereof, observance of that guarantee is an essential formal requirement of the procedure under Article 169.

6. It is clear from the documents before the Court that the Commission specified in the letter of 24 March 1982 that the default with which the Italian Republic was charged consisted in the restriction on the use of edible gelatin in the manufacture and marketing of confectionery products. After the Italian Government had submitted its observations on that point the Commission, in its reasoned opinion of 24 November 1982 and subsequently in the application to the Court, enlarged the scope of the complaint made against the Italian Republic by including preserved meat products and icecream and thereby acted in breach of its duty to give the Italian Government a fair hearing.

7. That irregularity cannot be regarded as having been cured by the fact that the Italian Republic subsequently submitted observations on the reasoned opinion of 24 November 1982.

8. It follows that the application is only admissible to the extent to which it relates to the use of animal gelatin in confectionery products and for the rest must be dismissed as inadmissible.

9. The Italian Government goes on to contend that the restriction on the use of animal gelatin in sweets was abolished by the Decreto Ministeriale of 14 April 1983 (Gazzetta Ufficiale of 4. 5. 1983). It maintains that accordingly the Commission no longer has an interest in securing a judgment in this action.

10. In that respect it must be noted that the aforementioned Decreto Ministeriale relates only to sweets, so that other confectionery products are not affected. The Commission therefore retains an interest in proceeding with its action.

11. It must be recalled that Article 30 of the Treaty prohibits measures having an effect equivalent to quantitative restrictions on the importation, of products lawfully manufactured and marketed in other Member States.

12. The Italian Government maintains first that the use of edible gelatin is governed by Council Directive 74/329 of 18 June 1974 on the approximation of the laws of the Member States relating to emulsifiers, stabilizers, thickeners and gelling agents for use in foodstuffs (Official Journal 1974, L 189, p. 1), which, it is argued, allows the Member States complete freedom to adopt the measures they consider necessary without their having therefore to comply with the prohibition laid down in Article 30 of the Treaty.

11. That argument must be rejected. Although edible gelatin is referred to in Council Directive 74/329, it does not follow from any provision of the directive that the Member States are vested with such freedom as to be able to deviate from the prohibition laid down in Article 30 of the Treaty when adopting measures relating to the use of animal gelatin.

12. The Italian Government goes on to contend that the national provisions in question are intended to satisfy imperative requirements relating to the protection of consumers, who might be confused as to the composition of preserved products if gelatin could be used without restriction in their manufacture.

15. However, as the Court has held on numerous occasions, Member States may satisfy such a requirement by adopting an appropriate measure which impedes trade between Member States as little as possible, for example by providing the consumer with suitable information.

16. The Italian Government also maintains that the national provisions in question are necessary for the protection of public health in view of the danger presented by the unrestricted use of animal gelatin in foodstuffs.

17. In that respect it must be stated that the Italian Government has not produced, in support of its contention, any evidence or information showing that public health was actually threatened by the use of animal gelatin at a cate in excess of the 1% laid down by the contested provisions.

18. It is therefore necessary to declare that the Italian Republic, by restricting the importation of confectionery products which contain more than 1% of animal gelatin and which are lawfully manufactured and marketed in another Member State, has failed to fulfil its obligations under the EEC Treaty.

19. Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. Where there are several unsuccessful parties the Court is to decide how the costs are to be shared.

20. In this case both parties have been partially unsuccessful. However, it must be noted that the Commission did not formally claim costs in its application. Furthermore, it is clear from the rejoinder that the Commission proceeded on the assumption that all the Member States apart from Italy permitted the use of gelatin in foodstuffs without restriction, a point which it has not been able to establish in the course of the proceedings; it thus appears that the Commission failed to make a full study of the case before instituting proceedings. Accordingly, the Commission must be ordered, under the second subparagraph of Article 69 (3), to pay the whole of the costs.

On those grounds, THE COURT hereby:

1 Declares that the Italian Republic, by restricting the importation of confectionery products which contain more than 1 % of animal gelatin and which are lawfully manufactured and marketed in other Member States, has failed to fulfil its obligations under Article 30 of the EEC Treaty;

2 Dismisses the remainder of the application;

3 Orders the Commission of the European Communities to pay the costs.