C-128/89
ECLI:EU:C:1990:244
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COMMISSION v ITALY
OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 12 June 1990 *
My Lords, fruit plants'. It is common ground that that expression covers grapefruit.
1. In this case, the Commission seeks a 2. At the beginning of the 1980s, grapefruit declaration that Italy has failed to fulfil its could be imported into Italy via a number of obligations under Article 30 of the EEC road, rail, air and sea routes. The relevant Treaty and Directive 77/93/EEC (Official Italian legislation was subsequently modified Journal 1977 L 26, p. 20) by prohibiting on a number of occasions and, on 18 the importation of grapefruit from other January 1985, a ministerial decree was Member States through inland border posts. adopted (see GURI No 17, 21.1.1985, Directive 77/93 is concerned, according to p. 425) requiring imports of grapefruit into Article 1(1), with 'protective measures Italy to be effected through five named against the introduction into the Member coastal ports. All other points of entry, of States from other Member States or which there had in 1980 been a considerable non-member countries of organisms which number, were henceforward closed to such are harmful to plants or plant products'. imports. The number of coastal ports Article 4(2) provides, as far as is relevant, through which grapefruit could be imported that: into Italy was subsequently increased slightly but other points of entry remained closed to grapefruit.
'Member States may: 3. This reduction in the number of points of entry through which grapefruit could be imported into Italy took place against the background of an exponential growth in the (a) ban the introduction into their territory quantity of grapefruit imported into Italy of the plants, plant products and other from other Member States. Figures supplied objects listed in Annex III, Part B, by the Commission, in response to a against their names … ' question from the Court, show that, although the vast majority of the grapefruit imported into Italy between 1980 and 1989 was imported from outside the Community, the quantity imported from other Member States, including grapefruit produced in Against the name of Italy in Annex III. B of non-member countries, rose from 85 000 kg the directive appears the description 'Citrus in 1980 to 6 184 000 kg in 1983. It should
* Original language: English.
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be noted that, on 8 March 1984, a minis- to Italy without passing through third terial decree was adopted (see GURI countries. No 83, 23.3.1984, p. 2505) which for the first time singled out grapefruit for special treatment and significantly reduced the number of points of entry through which they could lawfully be imported into Italy. 6. This ban on indirect imports is not chal- By 1988, the quantity imported from other lenged by the Commission in these Member States had fallen to 167 000 kg. In proceedings, but its existence appears to the following year, no grapefruit at all were deprive the Commission's application of imported into Italy from other Member much of its purpose. If the measure which is States. challenged in these proceedings, namely the ban on importation of grapefruit from other Member States through inland border posts, is held unlawful, the removal of that ban might have little effect if the ban on indirect imports were to remain in place. Since the only Member State which has a land frontier with Italy is France, the result might 4. The Commission has stated, without be only to open the frontier to imports of being contradicted by the Italian grapefruit produced in France; but, Government, that imports of grapefruit although France is apparently a producer of from other Member States used to take citrus fruit, it is not clear from the infor- place principally by land, whereas imports mation before the Court whether France from third countries have always arrived produces grapefruit. There may therefore be mainly by sea. The Italian Government some doubt about the practical effect of acknowledges that its national production of these proceedings. grapefruit is limited and insufficient to satisfy demand.
7. None the less, the Court should in my view proceed to give a ruling on the breach of Community law alleged by the Commission, and the Italian Government has not suggested the contrary. The precise 5. At the hearing, counsel for the Italian scope and the effects of the ban on indirect Government pointed out that, according to imports are not clear from the information the figures produced by the Commission, before the Court. The possibility cannot be imports of grapefruit into Italy from other excluded that imports of grapefruit may be Member States were greater in 1986 than in affected by the ban on imports by land inde- 1985. He also claimed that the absence of pendently of the ban on indirect imports. imports from other Member States in 1989 Moreover, the Court's ruling in this case was due to the adoption on 30 March 1988 may offer guidance on the legality of the of a ministerial decree (see GURI No 107, ban on indirect imports and thereby avoid 9.5.1988, p. 11) which, while increasing the the need for that ban to be the subject of number of coastal ports through which separate proceedings. I therefore return to grapefruit could be imported into Italy to the question whether the Italian Republic seven, introduced a further requirement that acted lawfully in requiring imports of imports of grapefruit be transported directly grapefruit to be effected by sea.
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8. The restrictions which are the subject of heavily on imports from other Member these proceedings were imposed ostensibly States than on imports from third countries. to prevent the introduction into Italy of The Commission concludes that the closure harmful organisms, Italian citrus fruit, it is of all inland frontier posts to imports of said, currently being among the healthiest in grapefruit into Italy is contrary both to the world. The Italian Government Directive 77/93 and to Article 30 of the maintains that the imposition of such Treaty. restrictions is authorized by Article 4(2)(a) and Annex III. B.l of Directive 77/93. Requiring imports of grapefruit to pass through coastal ports is said to be the only way of enabling proper phytosanitary inspections to be carried out.
Such inspections have to be effected, so it is 10. The Commission deals with a number claimed, when a cargo arrives in port and is of apparent obstacles to that conclusion in unloaded. It would be impracticable for its letter of formal notice and reasoned them to be carried out at inland frontier opinion. First, although most grapefruit crossings because of the shortage of comes originally from outside the qualified staff and because cargoes cannot Community, the Commission points out that conveniently be unloaded and examined in Article 30 applies to it as soon as it enters physical isolation, which is necessary if into free circulation in the Member States: harmful organisms are to be detected. see Article 9(2) of the Treaty; Case 41/76 Moreover, according to the Italian Donckerwolcke [1976] ECR 1921, para- Government, unloading cargoes at coastal graphs 17 and 18. The Court held in Case ports facilitates the detection of citrus fruit 8/74 Dassonville [1974] ECR 837 that hidden among other types of fruit. The risk Member States were not entitled to create of infection from smuggled fruit is unjustified distinctions between products in considered by the Italian Government to be free circulation within the Community and particularly high. products imported directly from third
countries. It is true that grapefruit are subject to the common organization of the market in fruit and vegetables established by Regulation (EEC) No 1035/72 (Official Journal, English Special Edition 1972 (II), p. 437), as amended, but Article 30 forms an integral part of that organization. Those 9. The Council acknowledged the particular points are not challenged by the Italian risks to plant health created by imports of Government. citrus fruit when it adopted Article 4(2)(a) of Directive 77/93. The Commission does not deny that special care needs to be taken to ensure that imported grapefruit is not harbouring harmful organisms, but argues that the steps taken by the Italian Government to achieve this end are dispro- 11. It follows that, since the contested portionate and discriminatory: dispropor- Italian legislation has the effect of making tionate because the health of the Italian imports of grapefruit into Italy from at least citrus fruit industry could be protected some of the other Member States more by other means which would be less difficult, that legislation will be caught by detrimental to intra-Community trade; Article 30 of the Treaty unless it can be discriminatory because they bear more justified under Article 36.
The Italian
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Government argues that, apart from Article than is necessary to prevent the introduction 36, Article 4(2)(a) of Directive 77/93 of harmful organisms or which discriminate confers a general and unlimited power on arbitrarily between imports from other the Member States concerned to prohibit Member States and imports from third imports of grapefruit. I would reject that countries. It follows, however, that in auth- argument. The powers conferred on the orizing, subject to these conditions, a Member States by the directive must be complete ban on imports of citrus fruit, exercised in accordance with the Treaty. Article 4(2)(a) of Directive 77/93 must be This means in the present case that interpreted as permitting lesser restrictions restrictions on imports from other Member where these are adequate to prevent the States must be justified under Article 36 of introduction of harmful organisms into the the Treaty as being necessary for the Member State in question. protection of the health and life of plants. If that were not so and if Article 4(2) (a) of Directive 77/93 purported to derogate from Article 30 of the Treaty in circumstances falling outside the scope of Article 36, then the validity of Article 4(2) (a) would have to be reviewed in the light of the duty of the Community institutions to 'have due regard to freedom of trade within the Community, which is a fundamental principle of the common market' (see Case 37/83 Rewe- 13. Article 4(2)(a) simply embodies a recog- Zentrak v Landwirtschafiskammer Rheinland nition by the Community legislature that [1984] ECR 1229, paragraph 18). citrus fruit are prone to diseases against which special protection may be required. It thereby contributes to the comprehens- iveness of that directive as a code on protective measures against the introduction of harmful plant organisms. It does not in my view purport to create derogations from the Treaty rules on the free movement of goods where none previously existed. 12. I do not consider it necessary to examine the validity of Article 4(2)(a) of Directive 77/93 here, because, properly construed, it is not in any event inconsistent with the Treaty. In conferring on certain Member States the power to derogate from the fundamental principle of the free movement of goods, Article 4(2)(a) of Directive 77/93 must be interpreted strictly. This means in particular that it should be 14. The case consequently turns on whether understood as authorizing restrictions on Italy could have protected its citrus fruit imports from other Member States only industry against the introduction of harmful where the general principles of law, notably organisms from abroad by measures having proportionality and non-discrimination, a less deleterious effect on intra-Community have been respected. It cannot therefore be trade. The answer to that question depends read as permitting the imposition of on whether it is feasible for imported restrictions on imports which are stricter grapefruit to be subjected to the necessary
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examinations at points of entry other than 77/93, as amended by Article 1(7) of coastal ports. The Italian Government bears Directive 88/572/EEC (Official Journal the burden of establishing that those 1988 L 313, p. 39), which Member States questions fall to be answered in the were required to implement by 1 January negative: see Case 251/78 Denkavit Futter- 1989. This requires Member States to ensure mittel [1979] ECR 3369, paragraph 24. that the carrying out of inspections at the border to ensure compliance with Article 4 of the directive is progressively reduced. According to Article 11(3), such inspections should be 'carried out either at the place of destination of the plants, plant products or other objects, or at another designated place 15. I therefore turn to the issue whether the instead, provided that the routing of the Italian Government has discharged the plants, plant products or other objects is burden of showing that it is not practicable interfered with as little as possible'. In any for grapefruit entering Italy by land to be event, even if the Italian authorities were checked to ensure that they are not justified in insisting that cargoes imponed harbouring diseases. In its letter of formal by land be unloaded at the frontier, the notice and reasoned opinion, the Commission argues that the onus would be Commission suggests a number of ways in on haulage firms to transport loads in a way which this might be done. Those suggestions which took account of this possibility. The are not repeated in the application or reply, result would not necessarily be to cause but it is relevant to examine them in undue delay. considering whether the Italian Government has established that the contested Italian legislation complies with the principle of proportionality.
16. The Commission accepts that it is necessary to unload cargoes in order to carry out the necessary inspections properly 18. The Commission is not convinced either and even concedes that this may be more that Italy has insufficient qualified staff to difficult at inland border posts than at carry out inspections at inland border coastal ports. It suggests, however, that crossings. It takes the view that Italy could, cargoes could be sealed when they cross the at reasonable cost, ensure that inspectors are frontier and inspected within the territory of present at particular times, perhaps having the Italian Republic at a more appropriate been notified in advance by haulage place, perhaps even at a coastal port where companies that their services would be there is one in the vicinity. needed, in the same way as the arrival of ships is apparently notified in advance. The Commission points out that phytosanitary experts are already required by Italian law to be present at a number of inland frontier posts and claims that it would not be 17. In that respect, the Commission refers difficult to train those experts to examine in its reply to Article 11(3) of Directive grapefruit.
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19. The Italian Government has not in my 'which are explained primarily by a concern view succeeded in showing that those to lighten the administration's burden or proposals are unreasonable. It simply asserts reduce public expenditure, unless, in the that they would entail excessive complexity, absence of the said rules or practices, this organizational difficulties and expense, both burden or expenditure clearly would exceed for importers and for the authorities the limits of what can reasonably be responsible for carrying out the requisite required'. inspections. It adds that the Commission is exceeding its jurisdiction in seeking to interfere with the manner in which Italy organizes its internal administration.
22. I do not consider that the Italian Government has succeeded in establishing that to allow grapefruit to be imported into Italy by land would entail an unreasonable administrative burden or excessive public expenditure. It will be observed that, until 20. I do not find those objections the beginning of 1985, a number of inland convincing. The Commission is not seeking frontier posts remained open to such to interfere with the way Italy organizes its imports. Despite having been asked to do so internal administration, but merely to show by the Court, the Italian Government has that the restrictions imposed by the Italian been unable to identify any specific factor, authorities on the importation of grapefruit such as a sharp increase in the quantity of are disproportionate because their ostensible diseased or smuggled fruit entering Italy objective could be attained by other from abroad, which might explain the measures which would be less detrimental to decision taken in 1985 to restrict imports of intra-Community trade. grapefruit to a number of specified coastal ports.
21. As far as expense and administrative 23. With regard to the cost to importers of difficulty are concerned, the Court made it bringing grapefruit into Italy by land rather clear in Case 104/75 de Peijper [1976] ECR than by sea, this is clearly a matter for the 613, paragraph 18, that Article 36 of the importers concerned. The Commission does Treaty could not be used to justify rules or not suggest that imports of grapefruit from practices containing restrictions on the free other Member States by sea should be movement of goods: prohibited.
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24. I conclude that the Italian Government has failed to show that the closure of its inland border crossings to imports of grapefruit from other Member States was necessary to prevent the introduction into Italy of harmful plant organisms. I therefore propose that the Court:
(1) declare that, by prohibiting the importation of grapefruit from other Member States through inland border posts, the Italian Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty;
(2) order the Italian Republic to pay the costs.
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