C-51/83

JUDGMENT OF 11. 7. 1984 — CASE 51/83

manufactured and marketed in other such protection may be ensured by Member States. With regard to such other measures, such as requiring the products, the imperative need to provision of appropriate information, protect consumers cannot justify the which restrict trade between Member prohibition of imports in so far as States to a lesser extent.

In Case 51/83

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Alberto Prozzillo, acting as Agent, with an address for service in Luxembourg at the office of Oreste Montako, Jean Monnet Building, Kirchberg, applicant, v

ITALIAN REPUBLIC, represented by Ivo Braguglia, Avvocato dello Stato, acting as Agent for the purposes of this action, with an address for service in Luxem- bourg at the Italian Embassy, defendant,

APPLICATION by the Commission of the European Communities for a declaration under Article 169 of the EEC Treaty that, by restricting the importation of foodstuffs which contain animal gelatin and which are lawfully manufactured and marketed in another Member State, the Italian Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty,

Facts and Issues

JUDGMENT OF 11. 7. 1984 — CASE 51/83

ingredients of little value and those With regard to the Commission's which cost more and contain a higher argument concerning Article 9 of the level of nutritive ingredients; although, directive, the Italian Government replied according to the aforementioned that the effect of that article's providing judgment, the requirements of consumer that Article 2 is not to apply to gelatin is protection may justify a provision that the prohibition laid down in Article restricting the free movement of goods, 2 is no longer applicable so that gelatin the national provision in question does should be equated with the subtances not seem to be capable of being justified listed in Annex I to the directive. on those grounds. Moreover, according Consequently, Article 4 of the directive, to the Commission, even if there were which provides that the Council is to such justification it must be emphasized determine as soon as possible the that the Court of Justice has stated in a foodstuffs to which the substances listed recent judgment concerning consumer in Annex I may be added and the protection that "the provision of suitable conditions under which they may be information for consumers may easily be added, is applicable to gelatin and ensured by appropriate means, such as therefore in the absence of the requiring labelling showing, for example, harmonizing measures provided for by the weight and specific composition of Article 4 the differences between the an imported product" (judgment of national laws in force have to be 19. 2. 1981 in Case 130/80, Kelderman, accepted. [1981] ECR 527).

In a letter of 7 February 1983 the Italian 29 March 1983. The written procedure Government took note of the reasoned followed the normal course. opinion but stated that the observations which it had previously submitted remained valid, that is to say that the Upon hearing the report of the Judge- question of admitting for consumption in Rapporteur and the views of the one Member State foodstuffs which did Advocate General, the Court decided to not comply with the law in force in that open the oral procedure without any Member State but which did comply preparatory inquiry. However, the Court with the law in force in another Member requested the Commission to produce a State ought to be discussed and resolved list of the different rules of national law at a political level. The Italian Govern- in Italy and the other Member States ment also referred to the confusion concerning the amount of gelatin which which might arise as a result of the the products in question could contain. Commission's request to it, according to In response to that request the which it would have to admit into free Commission produced the information circulation products which, in the concerning the provisions in force in absence of Community harmonization in Belgium within the period laid down and the field in question, complied with the concerning the provisions in force in rules in force in another Member State other Member States after that period but did not comply with the provisions had expired. of Italian law. It observed that the Ministry of Health would thereby be forced to adopt the provisions of national law of other States without being able to exercise its own will and its II — C o n c l u s i o n s of the p a r t i e s own discretion in the adoption of equivalent measures. 1. The Commission claims that the Court should declare that the Italian Republic has, by restricting the impor- The Italian Government also made it tation of foodstuffs which contain animal known that with regard to the con- gelatin and which are lawfully manu- fectionery products referred to in the factured and marketed in another Commission's letter of 24 March 1982 Member State, failed to fulfil its the Ministry of Health had itself decided obligations under Article 30 of the EEC to abolish the restrictions in question Treaty. independently of the request addressed to it in the reasoned opinion of 24 November 1982; that did not however indicate recognition on its part that it 2. The Italian Republic contends that was under an obligation to do so. the Court should:

III — Submissions and argu- present time the use of animal gelatin is m e n t s of the p a r t i e s permitted "in accordance with normal manufacturing processes" (Article 4 (2) of Title II of the Decreto Ministeriale of 14. 4. 1983, Gazzetta Ufficiale N o 120 1. In its application the Commission of 4. 5. 1983, p. 3409) and that maintains that Council Directive therefore, with regard to sweets, the 74/329/EEC, on the approximation of Commission no longer has an interest in the laws of the Member States relating to bringing an action. emulsifiers, stabilizers, thickeners and gelling agents for use in foodstuffs, is not applicable in this case because Article 9 The Italian Government also observes (d) thereof provides that Article 2, which that it nevertheless appears from the limits the use of certain substances, is not reasoned opinion of 24 November 1982 to apply to edible gelatin. It therefore and from the application to the Court follows that the Member States remain that the Commission is challenging all free to apply their own rules with regard the restrictions on the use of animal to the use of gelatin in foodstuffs, gelatin laid down in the aforementioned provided they comply with Community Decreto Ministeriale of 20 October law and in particular with Article 30 of 1978: that is to say, the restrictions the Treaty. relating to preserved meat products (maximum of 0.4%), ice-cream (maxi- mum of 1%) and other confectionery With regard to the requirements of products (maximum of 1%). consumer protection and fair trading as possible justification for the application of the Italian provisions of law- to In that respect the Italian Government imported products, the Commission is of states that restrictions on the use of the opinion that those objectives may be animal gelatin do not prevent the impor- attained by other means which affect tation into Italy of products of the trade to a lesser extent, such as requiring aforementioned type. labelling showing, for example, the composition of the product in question (cf. the Court's judgment of 19. 2. 1981 It also observes that the Commision has in Case 130/80, Kelderman, [1981] ECR failed to show, either in the course of the 527). preliminary procedure or in its ap- plication to the Court, in which other Member States and on the basis of which 2. In its statement of defence the legislative provisions the products in Italian Government observes that ac- question (that is to say preserved meat cording to the Commission's letter of 24 products, ice cream and confectionery March 1982 the question before the products other than sweets) are lawfully Court relates solely to confectionery marketed even though they contain a products, that is to say to "the impor- higher amount of animal gelatin additive tation of sweets containing animal than is permitted by the Decreto gelatin". Ministeriale of 20 October 1978

Directive 74/329 and that therefore it is regulate the matter and that even if, in one of the agents in relation to which, connection with this case, the national according to the third recital in the authorities have concluded that re- preamble to the directive, the protection cognized requirements concerning the of public health, the protection of the protection of public health do not exist consumer against falsification and, so far in relation to sweets and have therefore as health protection allows, economic abolished the restriction on the use of and technological needs are important animal gelatin in sweets, such reasoning considerations. should not be extended, and should not in any case be applied in the abstract, to the other products referred to in the It observes that, in that respect, it is of Decreto Ministeriale of 20 October little importance that Article 9 of the 1978, whether in relation to the directive provides that Article 2 is not to protection of public health or in relation apply to edible gelatin and that that to the protection of consumers. exclusion explains why edible gelatin is not referred to in Annex I to the directive, which lists the agents whose According to the Italian Government, it use in the treatment of foodstuffs must is therefore necessary to compare the be authorized by the Member States. relevant Italian rules with any rules in force in other Member States in order to determine in respect of each product The decisive factor, according to the whether the Italian rules are more Italian Government, is that edible gelatin restrictive and to establish the reasons is also regarded by the directive as a justifying such greater severity, if there substance in relation to which the , are any. protection of public health and the protection of the consumer against For the same reason, and still in relation adulteration are important considerations to the products other than sweets and whilst it is true that the provisions referred to in the Decreto Ministeriale of governing the use of edible gelatin, like 20 October 1978, the Italian Govern- the provisions relating to the substances ment considers it premature to examine listed in Annex I, have not been the proportionality of the national harmonized yet, nevertheless the absence measure and the question whether it of harmonization in respect of substances might be possible to attain the same such as edible gelatin cannot lead to the objectives by means of, for example, conclusions drawn by the Commission. information on the labels.

in other words, it claims to have repealed legislation in order to take account of them only in relation to one con- the position in the other Member States; fectionery product and not in relation to that that amendment relates to jellied all the products in which animal gelatin sweets, which fall within the category of may be used. "confectionery products", that the use of gelatin in such products is limited to 1%; that the proportion of 1% is the maximum permitted by the Italian With regard to the request made by the legislation; that at the present time the Italian Government concerning infor- use of animal gelatin in jellied sweets is mation relating to the legislative pro- no longer restricted; that the health of visions of other Member States which consumers of jellied sweets is as worthy permit the marketing of the products in of protection as that of consumers of question notwithstanding the addition of other confectionery products, ice-cream a higher quantity of animal gelatin than and preserved meat products; that, that permitted by the Italian rules, the consequently, the amendment of the Commission replies that, according to a legislation shows that such rules are not report published by an association of necessary in order to protect public producers: health; that the products whose marketing is prohibited in Italy are lawfully marketed in other Member States; that the prohibition on the impor- All Member States, with the exception of tation of sweets containing gelatin shows Italy, consider gelatin to be a foodstuff that the Italian Government intends to and not an additive and therefore the use apply the rules in question to products of gelatin in foodstuffs is permitted lawfully marketed in other Member without restriction; and States and that that is sufficient to create a potential obstacle to intra-Community trade and that therefore the Italian rules in question are illegal. Many foodstuffs marketed in the Com- munity at the present time contain a higher proportion of gelatin than is permitted by the Italian legislation. 4. In its rejoinder the Italian Govern- ment reiterates that the restriction on the use of animal gelatin laid down in the Decreto Ministeriale of 20 October 1978 With regard to the Italian Government's does not in fact mean that imports into view that edible gelatin must be regarded Italy of preserved meat products, ice as a "sensitive" substance from the point cream and other confectionery products of view of the protection of public health (other than jellied sweets) are prohibited and the protection of the consumer, the and that the Commission has not Commission reiterates that such ob- produced any evidence to the contrary in jectives may lawfully be pursued by the its reply. Italian Government, provided that no breach of Community law, in particular Article 30 of the EEC Treaty, is committed. With regard to the Commission's response concerning the production of information on those Member States where the products in question are In conclusion the Commission states that lawfully marketed even if a higher the Italian Government amended its quantity of animal gelatin has been

added than is permitted in Italy and on (paragraph (d)). That shows that, for the the relevant legislation of those States, purpose of the directive, animal gelatin is the Italian Government makes the not a foodstuff and that, furthermore, following observations : even if gelatin is regarded as a foodstuff that does not necessarily mean that its use "in foodstuffs" is permitted without (i) The second reply does not provide restriction. the evidence and information requested because it merely contains a general statement which is insufficient and which The Italian Government reiterates its cannot be regarded as a precise point of argument that in Directive 74/329 edible reference for the application of the gelatin is regarded as a substance in Court's case-law relating to Article 30 of relation to which the requirements of the the EEC Treaty to the contested Italian protection of public health and the measures. •: protection of the consumer against fraud and adulteration are of particular importance and emphasizes that national measures which regulate or limit the use (ii) The first reply is also unsatisfactory of animal gelatin in foodstuffs are on account of its general character since therefore justified, in the absence of if animal gelatin is regarded as a complete harmonization. foodstuff and not as an additive it does not necessarily follow that the use of such gelatin in foodstuffs may be unres- It concludes that it is not necessary for tricted. the Member State concerned to provide proof of the imperative requirements in relation to the protection of public health Moreover, according to the Italian or the protection of the consumer Government, to regard animal gelatin as because those requirements have already a foodstuff does not appear to been confirmed and recognized under correspond to the relevant provisions Community law in such a way until total contained in Directive 74/329. harmonization has been achieved the Member States remain free to restrict the use of animal gelatin in foodstuffs. In that respect, it observes that animal gelatin is certainly a "thickener" or "gelling agent" within the meaning of Moreover, according to the Italian Article 1 of the directive and since that Government, the imperative need to article defines "thickeners" and "gelling protect the consumer with regard to the agents" as those substances which are use of animal gelatin in foodstuffs is "added to a foodstuff" for certain obvious. purposes referred to therein, it follows that in Article 1 of the directive animal gelatin is not regarded as a foodstuff to It states that animal gelatin (which may which gelatin may be added as a be manufactured from primary products "thickener" or "gelling agent". or from secondary products resulting from the tanning of animal skins) is capable of thickening a quantity of water It maintains that the same conclusion between 10 and 15 or even 20 times its follows from Article 9 of Directive own volume and that it is therefore 74/329, which refers separately to necessary to prevent the sale to the foodstuffs possessing specific properties consumer as, for example, preserved (paragraph (a)) and to edible gelatine meats, of products which in fact contain

In that· connection, the Italian Govern- ment maintains that the same result could not be achieved by means of the It follows from the foregoing that, with provision of appropriate information for regard to the protection of the con- the consumer. It cites Article 6 (5) (a) of sumer, the national measure restricting Directive 79/112/EEC of 18 December the use of animal gelatin was justified 1978 (Official Journal 1979, L 33, p. 1) and necessary and, with regard to the and emphasizes that that provision does protection of public health, in particular not require the labelling of foodstuffs to in connection with preserved meat, the show the percentages of the various restriction on the use of animal gelatin ingredients, but only requires the was also intended to prevent the risk of ingredients to be listed "in descending unlimited use in foodstuffs, to the order of weight, as recorded at the time detriment of public health, of gelatin of their use"; furthermore, in the case of manufactured for purposes other than as added water that provision provides that a food product. the amount of water is to be listed if it exceeds 5 % by weight of the finished product but it does not provide that the In conclusion the Italian Government proportion of added water actually reiterates that the requirements of present in the product is to be listed. consumer protection and of public health must be determined in relation to each individual food product and that even if In those circumstances the Italian those requirements were not considered Government considers that the consumer to be imperative in relation to jellied might be confronted with two products sweets, with the result that the restriction which are apparently identical, one of of the use of animal gelatin in such which consists as to 5 1 % of preserved sweets was abolished, it does not follow meat and as to 4 9 % of water and animal that the requirements in question do not gelatin and the other of which consists as exist in relation to the other products to 94.4% of preserved meat, as to 5.1% referred to in the Decreto Ministeriale of of water and as to 0.5% of animal 20 October 1978, in particular preserved gelatin. meat products.

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.

JUDGMENT OF 11. 7. 1984 — CASE 51/83

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 ice- cream and thereby acted in breach of its duty to give the Italian Government a fair hearing.

n 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.

i2 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.

1 3 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.

H 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

JUDGMENT OF 11. 7. 1984 — CASE 51/83

preserved products if gelatin could be used without restriction in their manu- facture.

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.

COMMISSION v ITALY

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:

P. Heim A. J. Mackenzie Stuart Registrar President