Report for the Hearing in Case C-210/89

I — Facts

1. Article 22(1) of Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products (Official Journal, English Special Edition 1968 (I), p. 176) prohibits any quantitative restriction or measure having equivalent effect in trade within the Community.

2. Since that national legislation was not in conformity with Article 30 of the EEC Treaty or with the aforesaid provisions of Regulation No 804/68 of 27 June 1968, the Commission decided to initiate the procedure provided for in Article 169 of the Treaty.

3. On 18 April 1988, in reply to the Commission's letter of formal notice, the Italian authorities denied that Community law had been infringed. They contended that the Community rules did not specify a minimum fat or dry matter content for cheese and that the Member States were empowered to lay down specific requirements in the matter. Furthermore, in other Member States of the Community, such as the French Republic, the Federal Republic of Germany and the Kingdom of Denmark there were rules imposing obligations and prohibitions, with penalties for contravention, as regards the composition of cheeses. Such rules could not be maintained, according to the Commission's reasoning, if exporters could refrain from applying them on the ground that the cheeses in question had been manufactured in accordance with the provisions in force in their country of origin.

4. The Commission was not satisfied by that reply and on 21 November 1988 it issued a reasoned opinion with which the Italian State was required to comply within two months.

5. The Commission's reasoned opinion drew no response from the Italian authorities.

II — Written procedure and form of order sought by the parties

1. By an application lodged at the Court Registry on 6 July 1989, the Commission brought an action before the Court under the second paragraph of Article 169 of the Treaty.

2. The Commission claims that the Court should:

3. The Italian Republic contends that the Court should dismiss the application as unfounded.

III — Pleas in law and arguments of the parties

1. The Commission relies on the arguments which it had put forward in the pre-litigation procedure in support of the view that by prohibiting the marketing in Italy of products which are not in conformity with the rules laid down by the Italian legislation, when Community law does not prescribe a minimum fat content for cheeses, the Italian State has infringed Article 30 of the EEC Treaty and Article 22(1) of Regulation No 804/68 of 27 June 1968.

2. The Italian Republic points out that the Italian legislature intended to restrict the name cheese solely to products containing specified nutrients, with a view to protecting the legitimate expectations of consumers as regards the traditional manufacture of that foodstuff. Those rules also prevent numerous domestic products from being designated as cheese; such products are released for consumption under other names.

IV — Answer to a question from the Court

The following question was put to the Italian Government:

In its reply, the Italian Government first draws the Court's attention to the fact that the statements in its defence concerning the scope of the prohibition laid down in the Law of 2 February 1939 —limited to the use of the name cheese — had already been explained to the Commission in the pre-litigation procedure, as the Commission itself concedes in its reasoned opinion. The Commission has therefore accepted the Italian Government's position and acknowledged that the infringement lay in the existence of a prohibition concerning the use of the name cheese, and forming an obstacle, and not an absolute bar to the importation and marketing, under another name, of products not complying with the conditions laid down by the national legislation on cheeses.

With regard to the substance of the question, the Italian Government states that it consulted the Directorate-General for the Economic Protection of Agricultural Products, forming part of the Ministry of Agriculture and Forestry. That department considers that the national legislation in force merely has the effect of restricting the name cheese to products containing the nutrients specified in the Law of 2 February 1939 and that milk products with a fat content lower than that prescribed by law and offered for sale under a name other than cheese are freely imported into Italy (two products freely marketed in Italy are cited by way of illustration).

That outline of the factual position seems to correspond to the legislation now in force. Article 32 of Royal Decree Law No 2033 of 15 October 1925 is also designed to regulate the use of the name cheese by restricting it to products exhibiting certain characteristics. However, where the aim of the law was not only to reserve a given name but also to prohibit the production or importation of specified products not exhibiting certain characteristics, this was made clear by means of the distinction drawn between the use of the name and the prohibition on production. That is the case, as the Court is aware (judgment in Case 193/80 Commission v Italy [1981] ECR 3019), with regard to the rules on vinegar.

1 Language of the case: Italian.