C-202/82

JUDGMENT OF 21. 2. 1984 — CASE 202/82

In Case 202/82

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Rolf Wägenbaur, Legal Adviser to the Commission, with an address for service in Luxembourg at the office of Oreste Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg, applicant, ν

FRENCH REPUBLIC, represented by Gilbert Guillaume, acting as Agent, and Bernard Botte, acting as Deputy Agent, with an address for service in Luxembourg at the French Embassy, defendant, supported by ITALIAN REPUBLIC, represented by Ivo M. Braģuglia, Avvocato dello Stato, acting as Agent, with an address for service in Luxembourg at the Italian Embassy, intervener,

APPLICATION for a declaration that the French Republic, by applying to imported pasta products a method for determining their common-wheat content and also tolerances regarding the presence of common wheat which are liable to constitute obstacles to imports, has failed to fulfil its obligations under Article 30 of the EEC Treaty,

THE COURT

I — Facts and p r o c e d u r e II — C o n c l u s i o n s of t h e p a r t i e s

The Commission claims that the Court should: In France and Italy the manufacture and marketing of pasta products containing 1. Declare that the French Republic, by common wheat are prohibited. The auth­ applying to imported pasta products orities of each country have laid down manufactured exclusively from durum methods of analysis allowing them to wheatmeal and legally marketed in detect the presence of common wheat another Member State a method for in such products. The methods are determining their common-wheat different, but both rely on the same content and tolerances regarding the phenomenon, namely the presence of a presence of common wheat which protein which exists only in common are liable to constitute obstacles to wheat. It follows that every sample in imports, has failed to fulfil its which that protein can be found obligations under Article 30 of the necessarily contains common wheat. EEC Treaty;

authorities responsible for the prevention applied to the same samples by different of fraud to bring criminal proceedings laboratories frequently gives different against certain importers. In several results. cases, there have been criminal con- victions for the importation into France of pasta products of Italian origin containing common wheat, even though compliance with the Italian provisions The French Government considers that it was not only required by the contract cannot be concluded from that study that but also constantly monitored by both the application of the same method to Italian and French laboratories. The the same samples by different labora- effect of this situation is to create an tories will frequently produce different unjustified barrier to intra-Community results. In any event, if the French labora- trade. tories were imprecise in their analysis, they would be equally so if they were using the Italian method.

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minimum requirement is that the The French Government considers that it different methods of analysis should be is dangerous to extend the principles laid equivalent in every respect and always down by the Court in the "Cassis de give identical results. That is not in fact Dijon" case (Case 120/78, REWE ν the case as regards the French and Bundesmonopolverwaltung für Brannt- Italian methods for determining the wein, [1979] ECR 649) to behaviour common-wheat content of pasta pro­ which is both illegal and hard to prove, ducts. The Commission analyses in detail since this is likely to give rise to difficult the results of the two "Ring Tests" problems of legal certainty and to force carried out on behalf of UNAFPA in Member States to allow products to be 1978 and 1980 and refers to the marketed which are not in conformity criticisms of the two methods made by with the legislation of their country of the German and Netherlands As­ origin. sociations of Manufacturers of Pasta Products, maintaining in particular that the methods may not be used either for pasta dried at high temperature or for pre-cooked pasta. In the alternative, the French Gov- ernment contests the facts alleged by the Commission. There certainly is a degree of tolerance in France, but it is 5%. According to the results of the analyses More precisely, the official laboratories presented by the Commission, the two do not consider that pasta products are methods have a margin of error so not in conformity with the law unless the considerable as to render them extremely common-wheat content is at least equal unreliable as a means of determining the to 8%, plus or minus 3 % , the purpose of exact composition of pasta products. the safety margin of 3 % being to allow Consequently, the method used by the for the errors which are always possible French authorities is liable to constitute a in the method of analysis or in the barrier to imports. laboratory's techniques ("technical tolerance"). This practice is more liberal than that recommended by the trade associations in five Member States (including Italy), which consider a 2. The tolerances common-wheat content higher than 4 % , plus or minus 2 % , to be unacceptable.

In any event, the situation described In its reply, the Commission states that shows that there is sufficient legal uncer- the existence of tolerances cannot be tainty with regard to the accepted regarded as illegal, in view of the fact tolerance to give rise to barriers to intra- that their purpose is to take account of Community trade. the natural presence of common wheat in durum wheat, the uncertainties (reliability margins) which those who have developed the methods of analysis The Commission maintains that, when it recognize as being inherent in them and stated that the conformity of Italian the margins of error in the performance pasta products with the law was of the analyses. constantly monitored, it was referring mainly to voluntary checks carried out at the request of manufacturers and importers. If, however, the accepted tolerances are not the same in two countries, this may have the result of creating barriers to trade, because a product which is The French Government, in its rejoinder, considered to have been legally produced states that the laboratories which parti- in one Member State — having regard to cipate in the prevention of fraud consider the accepted tolerance in that Member samples to be: State — might not be so considered in another Member State where a less favourable tolerance is applied. "in conformity with the law" if their common-wheat content is less than 5 % , plus or minus 3 % ; The Commission does not accept the French Government's allegation that the accepted tolerance is 5% or 8%, plus or minus 3 % . In the first place, the French "to be examined further" if their Government meant to say 5 % , plus or common-wheat content is at least equal minus 3 % , so that the accepted maxi- to 5%, plus or minus 3 % , but less than mum is 8%. In the second place, the 8%, plus or minus 3 % ;

The "technical" tolerance (plus or minus 3%) is intended to take account of the inaccuracies which can take place during 3. The reliability of the French method the visual implementation of the method of analysis. It is in no way intended to allow for a lack of precision in the method itself, which cannot indicate the (The arguments put forward on this presence of common wheat in pasta subject in the application, the defence products containing no common wheat and the reply have been summarized on and which becomes relatively inaccurate pages 5, 6 and 7.) only if the common-wheat content exceeds 15%. In its rejoinder, the French Government emphasizes that the two methods of The judgments cited by the Commission analysis have been developed in order to which mention a tolerance of 3 % refer verify that the prohibition of the to events which took place before 1978, inclusion of common wheat in pasta that is to say, before the present products is observed. The essential tolerances were put into effect. In view purpose of the French method is to of the results obtained, the trader in detect the presence of common wheat question would have been prosecuted (qualitative analysis) and not to even under the present tolerances. determine the quantity thereof once its presence has been detected (quantitative analysis). Whilst the qualitative reliability of the method is absolute, its quantitative The French Government considers it reliability can vary according to the curious that the Commission should refei­ percentage of common wheat present in to a lack of legal certainty supposedly the samples being analysed. The method created by the Italian tolerances. The is very precise where the common-wheat

content is no more than 15%, but is only reliability of the Italian method, but "semi-quantitative" beyond that. raises the question why the Commission wishes to see this method used in France if it is of such doubtful validity. It The French Government criticizes the wonders whether the Commission's Commission's analysis of the results of purpose is not to induce the Court to the "Ring Test" carried out by the Lord decide the theoretical problem of Rank Research Centre and contests the whether the "Cassis de Dijon" decision, relevance of the criticisms made of the cited above, applies to procedural rules French and Italian methods by the governing the verification of compliance Netherlands and German associations. with substantive rules, by making use of Since the legislation of certain European an alleged Franco-Italian problem. countries allows common wheat to be used in the manufacture of pasta products, it is understandable that the If the theoretical problem were to arise, associations in question expect a the French Government would oppose European method to have a very high such an extension of the "Cassis de degree of quantitative accuracy. Dijon" decision to methods of analysis. It cites the judgment of 17 December 1981 in Case 272/'80 (Biologische Producten, As regards the implementation of the [1981] ECR 3277). In the alternative, the French method, it should be noted that French Government considers that, if the the common-wheat content of a sample "Cassis de Dijon" decision is applicable, is evaluated visually. This is the reason any barriers which exist are justified in for certain minimal inaccuracies and why the interests of fair trading. The a margin of plus or minus 3 % is applied difference between the price of durum to the results obtained. wheat and common wheat, which is about 50%, makes fraud extremely lucrative even where the quantities The French Government also points out involved are relatively small. There is no that an accused has the right to ask for a other way of determining whether or not second expert opinion. pasta products imported from a foreign country contain common wheat. In conclusion, the French Government considers that all precautions have been taken to prevent a trader from being convicted in France for marketing pasta products which do not contain common I V — O b s e r v a t i o n s of t h e inter- wheat. The absence of barriers to vener imports is confirmed by the fact that the Italian Government recognizes the reliability of the controls. 1. The method of analysis to he applied to imported pasta products

Furthermore, the solution proposed by Furthermore, the Italian Government the Commission would in reality entail denies that pasta products cooked at impractical and absurd consequences. high temperature and pre-cooked pasta The experts responsible for carrying out products play any role in trade between the verifications in a Member State the two countries, which consists of would be obliged to learn the methods of ordinary dried pasta products. analysis of all the other Member States and the State would be obliged to acquire all the additional scientific instru­ It adds that exports to France represent ments and to provide the necessary 50% of Italian exports of pasta products training. to the EEC and that French production does not cover the needs of its own domestic market. The Italian Government points out that the methods of analysis are only one of a number of means used to establish the existence of fraud, and that a criminal 2. The tolerances court can make use of other means of investigation to form its own opinion.

Italian law does not allow for any It should be emphasized that it is not tolerance, even where common wheat is technically possible to obtain perfect deliberately added. results with such methods of analysis. The reliability of a method must be considered in the light of the result The situation is different where the which is sought to be achieved. The presence of common wheat is due to a French and Italian methods are more natural impurity in the durum wheat than adequate to ensure that an analysis meal. In such a case, the authorities take of pasta products manufactured account of the lack of any deliberate exclusively from durum wheatmeal does intent on the part of the producer and a not indicate that it contains common minimal presence of common wheat is wheat. This is confirmed by the results of not punished. It is only in that sense that the UNAFPA studies carried out in 1978 there is any tolerance.

2 T h e Commission's action concerns barriers which France is said to have raised t o the importation of pasta products legally manufactured and m a r k e t e d in Italy. T h e legislation of b o t h those countries requires that pasta products should be manufactured solely from d u r u m w h e a t and prohibits the manufacture or m a r k e t i n g of pasta products containing c o m m o n wheat. T h e Commission's action is n o t directed against the prohibition itself, which, it is agreed, does n o t create a barrier to the importation of pasta products legally manufactured a n d m a r k e t e d in Italy, but rather against the rules a d o p t e d in France to ensure compliance with the prohibition.

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3 The French and Italian authorities have each adopted an official method of analysis which allows them to detect the presence of common wheat in pasta products. The French method, called the "Montpellier" method, and the Italian method, called the "Resmini" method, differ in detail but are both based on the identification of a protein which exists only in common wheat. Every sample in which the presence of that protein can be detected necessarily contains common wheat.

4 The Commission has claimed that the disparity between the two methods of inspection is such as to create a barrier to the importation of pasta products legally manufactured and marketed in Italy. In the view of the Commission, goods produced in another Member State must be presumed to have been legally manufactured and marketed, and it is for the importing Member State which wishes to prohibit the marketing of those goods to prove the contrary on the basis of the substantive rules and rules governing inspections in force in the Member State in which the goods were produced. The Commission has also expressed doubts regarding the reliability of the French method and its correct application by the specialized laboratories in France.

7 Finally, the Commission has claimed that the French authorities are stricter than the Italian authorities as regards the tolerances which they accept. Thus, according to the Commission, Italy accepts in practice a common-wheat content of 7%, below which level a trader will not be prosecuted or, at least, will not be convicted, whilst in France the tolerance is only 4 % .

8 It must be held that the Commission's complaint has not been proved. The explanations provided by the French and Italian Governments show that the situation is in fact the reverse, inasmuch as the tolerances applied in Italy are, at present, stricter than those in force in France.

9 Furthermore, in so far as it has been neither proved nor contended that a prohibition on the importation of pasta products containing common wheat is contrary to Community law, it cannot be considered that judicial or administrative practices designed to combat breaches of that prohibition come within the ambit of Community law, at least in the absence of any discriminatory treatment of imports.

10 It follows from the foregoing considerations, taken as a whole, that the Commission's application must be dismissed.

Costs

1 1 Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. Since the Commission has failed in its submissions, it must be ordered to pay the costs, including those incurred by the Italian Government.

Menens de Wilmars Koopmans Bahlmann

Galmot Pescatore Mackenzie Stuart O'Keeffe

Bosco Due Everling Kakouris

Delivered in open court in Luxembourg on 21 February 1984.

P. Heim J. Mertens de Wilmars Registrar President

O P I N I O N OF M R ADVOCATE GENERAL MANCINI DELIVERED O N 14 DECEMBER 1983 1