Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

In this case, which concerns alleged restrictions on the importation of curds from the Federal Republic of Germany into Italy, a declaration is sought that by imposing such restrictions the Italian Republic has failed to fulfil its obligation under Article 30 of the EEC Treaty (according to which quantitative restrictions on imports and all measures having equivalent effect are prohibited) and under Article 22 of Regulation No 804/68 on the common organization of the market in milk and milk products (Official Journal, English Special Edition 1968 (I), p. 176), which contains a similar prohibition. The case has its origin in complaints made by German undertakings with regard to time-consuming frontier checks from which the Commission concluded that Italy was carrying out systematic health checks on such products (which is, of course, no longer permissible according to the case-law of the Court).

First of all by a telex message dated 21 June 1982 the Director General for Agriculture drew attention to two cases in which lorries loaded with milk products were detained at the frontier for days for inspection purposes. He also complained that decisions on admission of imports were only being made a week (or even more) after the results of the analysis were known and that where the goods were refused admission written confirmation thereof was given only months later or not at all.

On 5 July 1982, in reply to a request to submit its observations with regard to those complaints, the Permanent Representation of Italy explained that, in the absence of Community rules concerning health requirements for curds, Italy carried out checks in that connection at random but not systematically. In the course of such checks it was discovered that, in breach of the standards fixed by the World Health Organization, Escherichia coli bacteria were present in consignments from several German dairies (whose consignments were therefore also checked subsequently). Such checks, which could not be eliminated completely for the reasons given, necessarily involved delays for imports since four days were normally needed to carry out the analyses. That inevitable delay at the frontier could be reduced, however, if the importers concerned undertook to comply with the regulations issued by the Italian Ministry of Health concerning the dispatch of inspected goods to their destination (subject to the health check). In addition the checks could be reduced considerably if the German authorities were to provide, as requested by Italy, that curds were to be manufactured from heat-treated milk only, as required in Italy (see the Ministerial circular dated 15 December 1978) and if a veterinary certificate were provided to the effect that such treatment had been effected, that the manufacturers were officially approved and that no powdered milk or casein had been used in the manufacture of the curds (in accordance with the prohibition laid down in the Italian Law of 11 April 1974).

Since it was not satisfied with that reply the Commission, by a letter dated 7 March 1983, instituted the procedure under Article 169 of the EEC Treaty. Its letter contained the following four complaints:

The Commission received no reply to its letter, which had also requested certain information (inter alia, with regard to the sampling and analysis of the products and to the conclusions to be drawn from the results of the analyses) and accordingly on 26 October 1983 the Commission delivered a reasoned opinion listing its complaints.

The Commission's request that the necessary measures be adopted within one month of delivery of the reasoned opinion was not complied with and finally, on 9 February 1984, the Commission brought the matter before the Court of Justice seeking a declaration that, by imposing restrictions on imports of sour milk products from another Member State, the Italian Republic had failed to fulfil its obligations under Article 30 of the EEC Treaty and Article 22 (1) of Regulation No 804/68.

My views on that application, which the Italian Republic claims should be dismissed with costs, are as follows.

1. It should be stated immediately that of the Jour complaints made by the Commission, referred to in the description of the preliminary procedure, the one alleging that systematic checks of imports on curds are not permissible was omitted from its second statement.

2. The criteria by which such a question is to be judged have long been settled in the case-law of the Court. In its judgment in Case 8/74 the Court stated that all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions, (Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5 at p. 852). Mention may also be made of the Court's judgment in Case 35/76 (Simmenthal v Italian Minister for Finance [1976] ECR 1871 et seq.) according to which health inspections carried out on imports, whether of a systematic nature or not, constitute measures having an effect equivalent to quantitative restrictions and may be justified only under Article 36 (which means that they must be limited to what is absolutely necessary and may not result in a disproportionate restriction on trade). Finally the Court's judgment in Case 42/82 (Commission of the European Communities v French Republic [1983] ECR 1013, which concerned checks carried out on wine imports) is of relevance. In that judgment it was stressed that checks of that kind were likely, in view of the fact that they involved delays and additional storage costs for the importer, to make importation more difficult and it was also emphasized that, with regard to random analyses, the fact that the consignments were detained at the frontier until the results of the analysis were known constituted a disproportionate obstacle to imports.

3. In view of the foregoing it may be stated that conduct such as that complained of, namely that, in connection with the importation of curds and sporadic checks carried out in that respect, lorries were detained for several days at the frontier instead of being permitted — in order to avoid a deterioration in the condition of their load — to proceed to their destination under customs control, would amount to an infringement of Article 30 of the EEC Treaty because it would obviously be likely to discourage undertakings from importing. Moreover, it is not possible to conclude from the small numbers of cases referred to by the Commission that the complaint is unjustified since, as the Court has held on many occasions, the degree to which imports are restricted is irrelevant.

4. There is a further complaint that in some cases random checks had taken too long (because it must be accepted in any case that the period needed for the carrying out of analyses is four days including weekends) and furthermore that the decision as to the admission or rejection of the goods was often issued only weeks later.

5. Finally, the Commission has alleged an infringement of Community law inasmuch as when admission of imports of curds was refused the importers concerned received a written decision only after a very long delay or not at all. In that respect it referred, in its letter initiating the procedure, to the case in which Molkereizentrale Süd, Nuremberg, was orally refused permission to import in November 1979 and received written confirmation only in June 1980 and to another case in which imports sent by Milchwerk Jäger were refused admission in June 1982 and by January 1983 written confirmation had still not been received.

6. Finally it may therefore be stated that the objections raised by the Commission appear to be justified in so far as, on the importation of curds into Italy and after the carrying out of random checks, the decision whether or not to admit the imports has repeatedly been taken after unacceptable delay and in the case of refusals decisions provided with a written statement of the reasons have not been immediately supplied. In that respect it must be stated that the Italian Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty and Article 22 of Regulation No 804/68.

7. My opinion with regard to the costs of the action is as follows: the Commission withdrew its first complaint — that checks had been carried out systematically — after the Italian Republic had given a detailed rebuttal thereof in its defence. However, during the preliminary procedure under Article 169 the defendant failed to reply to the Commission's allegations regarding that matter. Accordingly it gave the Commission cause to institute proceedings and must bear the costs to that extent.

1 Translated from the German.