C-14/78

applicants, v

Commission of the European Communities , represented by A. Prozzillo, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, M. Cervino, Jean Monnet Building, Kirchberg, defendant,

Application for damages under the second paragraph of Article 215 of the EEC Treaty,

THE COURT

composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), A. M. Donner, P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges,

Advocate General: H. Mayras Registrar: A. Van Houtte

The facts and the arguments of the The procedure laid down in Article 10 parties put forward during the written requires a decision to be taken by the procedure may be summarized as Commission after consulting a Standing follows: Committee for Feeding-stuffs. However, if no opinion is delivered by that Committee or if the Commission I — Facts and procedure proposes to adopt measures which are not in accordance with that opinion it 1. Council Directive No 74/63/EEC of must bring the matter before the Council 17 December 1973 (Official Journal which shall act by a qualified majority. 1974, L 38, p. 31) fixes maximum If the Council has not adopted any permitted levels for undesirable sub­ measures within 15 days the Commission stances and products in feeding-stuffs shall adopt the proposed measures and which are tolerated in those feeding- implement them forthwith, except where stuffs only under the conditions set out the Council has voted by a simple in the annex to that directive (Article 3). majority against such measures. Feeding-stuffs which conform to the provisions of that directive may no 2. On 7 September 1976 the Italian longer be subject to any other marketing Government, in exercise of the power restrictions as regards the presence of provided by Article 5 of the directive, by undesirable substances and products an urgent note (biglietto urgente) of the (Article 7). However, pursuant to Article Minister of Health prohibited the 5 of the directive Member States may, if marketing of feeding-stuffs containing a product not listed in the annex presents powdered milk or powdered whey a danger to animal or human health, having a nitrate content exceeding 30 forbid by a immediately applicable and 50 parts per million (milligrammes measures the presence of that product in per kilogramme) respectively. That feeding-stuffs or fix maximum permitted prohibition caused the detention in levels. If the Member State concerned September 1976 at the Italian frontier of makes use of this power it must advise a delivery of feedings-stuffs by the under­ the other Member States and the taking Denkavit B.V. to the undertaking Commission without delay of the content Tedeschi and gave rise to an action of and the reasons for the measure which before the Pretura di Lodi and to a it has adopted, and Article 5 (2) further reference to the Court for a preliminary provides that: ruling pursuant to Article 177 of the "In accordance with the procedure laid EEC Treaty (Case 5/77, Carlo Tedeschi down in Article 10, an immediate v Denkavit Commerciale s.r.l. [1977] ECR decision shall be made as to whether the 1555). Annex should be modified. So long as no decision has been made by either the 3. The Court in its judgment of 5 Council or the Commission the Member October 1977 acknowledged that Article State may maintain the measures it has 5 of the above-mentioned directive was implemented". valid and, in so far as the prohibition of

the marketing of products which did not commenced these consultations had not comply with the criteria laid down by the resulted in a decision being taken either provisional national measure was by the Commission or by the Council on concerned, held that: "For products the question whether or not nitrates coming from other Member States such should be included in the list of prohibition on marketing may take the undesirable products annexed to form of a prohibition on importation". Directive No 74/63/EEC. As for the procedure laid down in Article 10 of the directive for the purpose of 5. On 9 November 1977 a consignment enabling the Community authorities to of feeding-stuffs, of which the potassium supervise the use which Member States nitrate content exceeded the level make of the power conferred upon them permitted by the Italian measure and by Article 5, the Court held in its which Denkavit Commerciale, the first judgment that the said Article 10 was not applicant in these proceedings, had drafted in such a way as to lead to an intended to import once again into Italy indefinite extension of the provisional from the Netherlands was stopped at the (national) measure — and is frontier. consequently not illegal — because, Since the first applicant was of the although it is true that the last sentence opinion that, as a result of the judgment of Article 10 prevents the Commission delivered by the Court on 5 October from implementing the proposal rejected 1977 in Case 5/77, the Commission was by the Council where its proposal has under a duty to compel the Italian been rejected by the Council and even Government to withdraw the provisional where, in that case, the latter does not measure adopted on 7 September 1976, put forward an alternative solution, the it wrote on 23 November 1977 (Annex Commission still has jurisdiction to issue, 12 to the application) to the in accordance with the procedure laid Commission, formally requiring it to down in the first subparagraph of Article adopt within two months the measures 10 (4), any other measure which it provided for in Article 10 of the directive considers appropriate (paragraphs 51 to and in the meantime to require the

Treaty. stuffs" set up by Commission Decision No 76/791/EEC of 24 September 1976 In the meantime the Commission on 30 (Official Journal L 279, p. 35), for the May 1978, while these proceedings were purpose of providing opinions on pending, adopted a decision compelling scientific and technical questions relating the Italian Government to repeal the to the nutrition and health of animals in contested provisional measure. general and on additives, substances and products which might be considered 6.

JUDGMENT OF 5. 12 1978 — CASE 14/78

II — Conclusions of the parties had to pay for the transport of the goods refused at the Italian The applicants claim that the Court frontier and sent back to the should: Netherlands and for the

1. Declare that the Commission had additional analyses carried out; acted unlawfully in that it failed to 4. Order the Commission to pay the adopt a measure in respect of the costs of the proceedings. Italian State requiring it to revoke the urgent note of 7 September 1976 as The defendant contends that the Court regards feeding-stuffs for calves and should: declare that the retention of the note — Declare that the application is was unlawful with effect from, prin­ inadmissible; cipally, 7 October 1976 (thirtieth and — In the alternative, dismiss the last day of the period for the application as unfounded; emergency procedure under Article 10 of Directive No 74/63/EEC) or, in — Order the applicant to bear the costs. the alternative, 5 November 1977 (thirtieth and last day of the period for the said emergency procedure as III — Submissions and argu­ from the date on which judgment was ments of the parties delivered in Case 5/77); Admissibility 2. In any event order the Commission, so The defendant takes the view that the as to avoid aggravation of the injury, to take measures urgently on the basis application is inadmissible because it is of the combined provisions of Articles not directed against an act or omission 5 and 10 of Directive No 74/63/EEC of a Community institution but against in order to re-establish the free an act of a Member State. It relies in this

course of the proceedings and which Case 5/77, Carlo Tedeschi v Denkavit are derived: Commerciale s.r.l., to support the (a) as regards Denkavit Commerciale admissibility of their application. If the Court in its judgment of 5 October 1977, s.r.l.: from the amount which it which was also concerned with Italian had to pay in excess of what was measures relating to the nitrate content owed (amounting to Lit 2 500 per in powdered milk or whey, had held that tonne) for all imports of feeding- the Italian State had acted illegally, the stuffs into Italy from the time undertakings which suffered damage when the Court of Justice would not nave met with any difficulty if declares that the Commission has they had claimed against that State acted unlawfully in accordance compensation for the damage suffered, with claim (1). but, since the Court held that the Italian (b) as regards Denkavit Nederland measure was justified, the Italian State B.V.: from the amount which it cannot be regarded as liable.

DENKAVIT v COMMISSION

A — The evaluation of the Com­ opinion until April 1978. The mission's conduct Commission's prudence must be attributed to its concern to protect In their applications the applicants human and animal health, even if the maintain that the Commission has price to be paid was an obstacle to the incurred liability: free movement of the product. (1) Principally, in that the Commission The applicants reply that Articles 6 and 9 failed to carry through the procedure of Directive No 74/63 lay down a laid down in Articles 5 and 10 of procedure enabling the annex to the said Directive No 74/63/EEC in such a directive to be amended or adapted so as way that it resulted in the Italian to take account of developments in Government's being forbidden to scientific knowledge, but it is plain that maintain in force the measure at in this case the position is entirely issue within 30 days from the date different. The issue in these proceedings when the urgent note (biglietto is the conduct of the Commission when urgente) of 7 September 1976 was applying the emergency procedure laid brought to its notice. down by Articles 5 and 10 of Directive (2) In the alternative, in that the No 74/63/EEC, which mention an Commission did not issue the said extremely short time-limit, reckoned by prohibition, at least within 30 days the applicants at 30 days. On the other from the date of the judgment hand, the Court of Justice in paragraph delivered by the Court of Justice on 50 of its decision in the Tedeschi case 5 October 1977 in Case 5/77 (Carlo held in clear terms that when the Tedeschi v Denkavit s.r.l., mentioned Commission adopts this procedure it above). must make an immediate decision, since the aim of the emergency procedure is to The Commission, in its defence, replies restore in the shortest possible time the that there is no such time-limit as the uniform treatment of a given product period of 30 days which the applicants within the common market. Conse­ mention. The time-limits laid down in quently, if a Member State asks for the Article 10 of Directive No 74/63/EEC annex to the directive to be amended, so are undoubtedly short but they only that a new substance may be added to it, apply after the Commission has that Member State itself must from the submitted a draft of the measures to be very beginning produce the scientific adopted to the Standing Committee for evidence for the restrictive measure Feeding-stuffs. In certain cases an which it has just adopted. Furthermore,

the ground of protection of public health the Italian Government had to be put forward by the defendant is repealed within one month of irrelevant. Since the aim of Directive No notification of the said decision. 74/63/EEC is to protect public health, Finally, as far as the extent of its dis not only in Italy but in all the Member cretionary power is concerned, the States, the Commission should rather be Commission points out that, since the concerned to ascertain whether there are "Scientific Committee" did not finish its valid grounds for holding that the Italian work until 19 April 1978, it is wrong to application to amend the annex is well- allege that from the month of April 1977 founded in relation to the Community as the Commission was convinced that no a whole, because something which may limitation of the nitrate content of injure the Italian consumer may also feeding-stuffs for calves was permissible. injure consumers in the other Member

little. Since this line of argument was not flows from the cost of transporting the followed by several Member States, goods which were stopped at the Italian which asked for a more thorough frontier. The two applicants reserve the scientific investigation to be undertaken right to prove this damage by in this field, the Commission at that time documentary evidence during the considered that it would be better to proceedings. The Commission's answer leave things as they were. Since the to this is that in order for economic Commission was of the opinion that that damage to give rise to compensation that situation could not lead to an indefinite damage must amount to a wrong, that is postponement, it adopted a decision, to say it must flow from unlawful after having collected a quantity of conduct or at least from an infringement scientific data, stating that it was of a superior legal principle.

DENKAVIT v COMMISSION

Decision

1 The purpose of the application, which was received at the Court Registry on 13 February 1978, according to its wording, and on the basis of Article 215 of the Treaty, is:

(1) To obtain a declaration that the Commission has acted unlawfully in that it failed to adopt a measure in respect of the Italian State requiring it to revoke the urgent note ("biglietto urgente") of 7 September 1976

JUDGMENT OF 5. 12 1978 — CASE 14/78

whereby the Italian authorities fixed a maximum permitted level for nitrates in certain feeding-stuffs and prohibited the marketing and import­ ation of feeding-stuffs which did not fulfil that condition;

(2) To obtain an order enjoining the Commission to adopt such a measure as a matter of urgency; and

DENKAVIT v COMMISSION

6 It is the applicants' view that the Commission, by failing, as from 7 October 1976 — being one month after the adoption of the "urgent note" — and in any event as from 5 November 1977 — being one month after the judgment of the Court of 5 October 1977 in Case 5/77, Carlo Tedeschi V Denkavit Commerciale s.r.l. [1977] ECR 1555 — to require the Italian Government to repeal the measure complained of, has acted in such a way as to incur liability within the meaning of the second paragraph of Article 215 of the Treaty.

7 A period of nearly 21 months elapsed between the date of the Italian measure — 7 September 1976 — and the date when the Commission adopted the decision requiring the Government concerned to withdraw it — 30 May 1978.

8 Consequently, taking into account the fact that the measure at issue was an obstacle to trade between Member States, it is necessary to consider whether the Commission, by conduct for which there was no justification, did not improperly contribute to the maintenance of that obstacle and thereby incur liability.

12 In the meantime the Member State may maintain, on a provisional basis, the measure which it has implemented.

13 Article 10 of Directive No 74/63/EEC provides that the decision as to whether or not to enter the substance in question on the list of undesirable products shall be adopted by the Commission provided that the latter complies in this connexion with the opinion previously delivered by a Standing Committee for Feeding-stuffs (hereinafter referred to as the Standing Committee).

14 If, on the other hand, the Commission wishes to depart from that opinion it must confine itself to submitting a proposal to the Council which must make the decision, the Commission regaining some of its freedom of action only if the Council has not reached a decision within 15 days.

15 On 7 September 1976 the matter was brought before the Standing Committee, which decided at its first meeting on that date that the question whether nitrates in feeding-stuffs may be harmful should be referred to a "Scientific Committee for Feeding-stuffs" which it wished to have set up.

16 On 24 September 1976 the Commission set up that Scientific Committee which met nine times during the years 1976 to 1978 before, as is shown by the minutes of its meetings on 8 December 1977 and 19 April 1978, being in a position to prepare a definitive opinion to the effect that nitrates in feeding- stuffs are harmless.

17 The Standing Committee for its pan had recorded on 27 February 1978 in one of its minutes that "eight delegations are opposed to any modification of the annex to Directive No 74/63/EEC" and went on to state that "consequently the Commission's departments shall endeavour to find a satis­ factory solution" and in this way refrained from adopting an unambiguous attitude.

23 Furthermore, the applicants overlook the fact that the Commission's responsibilities in this field are of a different kind to those of a trader who, in the case culminating in the judgment of 5 October 1977 (Case 5/77, cited above), conceded that powdered whey with a high nitrate content, which had previously been regarded as industrial waste, was added to feeding-stuffs not in order to improve their quality but for reasons connected with the economies which that operation made possible.

24 The certain knowledge throughout the Community that the institutions of the Community are vigilant to ensure that the free movement of goods cannot have any harmful effects on human or animal health is a factor which encourages that freedom of movement.

25 It follows from the above considerations that the conduct of the Commission is not such that it has incurred liability, so that the application must be dismissed.

OPINION OF MR MAYRAS — CASE 14 /78­

Costs

26 Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

Sørensen O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 5 December 1978.

A. Van Houtte H. Kutscher

Registrar President

OPINION OF MR ADVOCATE GENERAL MAYRAS DELIVERED ON 8 NOVEMBER 1978 1

Mr President, It undertook once again on 9 November Members of the Court, 1977 to import a consignment of these feeding-stuffs of which the potassium I — The Italian company Denkavit, the nitrate content was higher than the limit first applicant in this case, sells feeding- fixed by the Italian authorities on 7 stuffs which it buys from a Netherlands September 1976. By that measure those supplier forming part of the same group. authorities unilaterally introduced a