C-420/01

COMMISSION v ITALY

OPINION OF ADVOCATE GENERAL MISCHO delivered on 27 February 2003 1

1. The Commission of the European Com- B — National legislation munities seeks a declaration from the Court that, by applying to drinks manufactured and marketed in other Member States rules prohibiting the marketing in Italy of energy 3. Article 15(3) of Presidential Decree drinks containing caffeine in excess of a No 719 of 18 May 1958 (GURI No 178 certain limit, without showing how such a of 24 July 1958, p. 3081, hereinafter 'PD limit is necessary and proportionate for the No 719/58'), entitled 'Regulation laying protection of public health, the Italian down the general health provisions relating Republic has failed to fulfil its obligations to the production and marketing of spark- under Articles 28 EC and 30 EC. ling water, and sparkling or still non- alcoholic drinks produced in sealed con- tainers', provides:

'The addition of substances other than those listed in this regulation, which have I — Legal background not received prior approval by the High Commissioner for Hygiene and Public Health, must, at the request of the health authority of the district in which the factory is established and following an opinion from the district health council, be duly authorised in each case by the High Commissioner.' A — Community legislation

2. There is no Community legislation which lays down the conditions governing II — Facts and pre-litigation procedure the addition of nutrients to common food- stuffs. 4. The Commission's attention was drawn 1 — Original language: French. to the existence of barriers to the import

7. On the basis that this limit represented a measure having equivalent effect to a quantitative restriction on imports, contrary to Article 28 EC and not justified 11. By letter of 6 March 1998, the Italian by Article 30 EC in the absence of scientific authorities informed the Commission that data demonstrating the extent to which the CSS had determined that, according to I - 6448

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current levels of knowledge, the drinks in firmed that, in practice, the free movement question raised no public health concerns in Italy of drinks originating in other and that a circular (a copy of which was Member States was being ensured as a enclosed) had authorised that they be result of Circular No 5 of 3 April 1998. placed on the market for consumption and provided for the communication of certain information to the consumer by means of a label containing instructions and warnings. 15. However, by fax of 14 April 1999, the Commission reminded the Italian auth- orities of their undertaking to adopt an appropriate measure, in the form of a legislative amendment, to govern the matter. 12. By letter of 2 April 1998, the Commis- sion replied, amongst other things, that while a circular is an appropriate means of guaranteeing immediate compliance with Community provisions on free movement of goods, the Italian authorities neverthe- less remained under the obligation to 16. The Italian authorities forwarded to the amend the legislation in question as soon Commission a draft regulation drawn up as possible definitively and by the usual by the Minister for Industry, Trade and procedure. Crafts relating to 'rules for the manufactur- ing and marketing of bottled water and non-alcoholic drinks'.

— declare that, by applying to drinks produced and marketed in other Member States a rule prohibiting the 19. The Commission reminded the Italian marketing in Italy of energy drinks authorities of the observation it had made containing caffeine in excess of a in its letter of 22 November 1999, that the certain limit, without showing that that mutual recognition clause needed to be limit is necessary and proportionate for altered in some respects in order to elimin- the protection of public health, the ate all ambiguity. Having received no Italian Republic has failed to fulfil its response from the Italian Republic, the obligations under Articles 28 EC and Commission, by letter of 9 April 2001 and 30 EC; and referring back to its letter of 22 November 1999, asked the Italian authorities whether they had received the observations on the draft and when the Italian Government expected to adopt the regulation.

— order the Italian Republic to pay the costs.

20. Given that the original text of PD No 719/58 was still in force and that no amendment had been made in order to bring the matter of recognition of non- alcoholic drinks produced and marketed in other Member States into line with Com- 22. The Italian Republic contends that the munity law, the Commission brought the Court should dismiss the case as present proceedings. unfounded. I - 6450

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IV — Analysis 25. As regards a possible justification based on the protection of human health and life, the Commission argues that in any event it is difficult to see how the Italian authorities can assert on the one hand that drinks with a high caffeine content pose a risk to health and, on the other hand, authorise their distribution, as the Italian Republic did by A — Arguments of the parties means of Circular No 5 of 3 April 1998.

2 — Case 178/84 [1987] ECR 1227. 3 — C a s e C-96/95 [ 1 9 9 7 ] ECR I-1653.

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of 3 April 1998 is not sufficient to amend able level of caffeine in alcoholic drinks and the contested provisions in Article 15 of PD the introduction of rules governing the No 719/58. composition of non-alcoholic drinks. How- ever, it stresses that this intention is not the result of either a legal obligation or an absolute necessity inasmuch as technical rules, such as the one envisaged, inevitably reflect current scientific knowledge and 28. The Italian Government states in its take no account of any possible interaction defence that the fixing of an upper limit for with ingredients of specified alcoholic caffeine content is justified in particular by drinks, whether cited in the relevant provi- the evaluations undertaken by the relevant sions or not. Reserving the right to issue a health authorities. It contends that the specific authorisation for the use of ingredi- whole matter must be resolved from the ents other than those envisaged serves point of view of the lawfulness of the rather to evaluate that interaction and, as scientific position adopted by the Italian a result, to protect the life and health of health authorities. Any other solution consumers, which should not be subject to would, according to the Italian Govern- considerations relating to profit or to ment, deprive Article 30 EC of its content abstract interpretations of the EC Treaty. by replacing the non-arbitrary discretion of the Member State with the subjective opinion of the health authorities of another Member State, which although legitimate cannot, by its very nature, be considered as indisputable.

B — Assessment 35. Nevertheless, even if the prohibition was simply in the form of an administrative practice it may still constitute a failure to fulfil obligations. 6 33. The documents in the file show that at the end of the period laid down in the reasoned opinion, which according to settled case-law 4is the date at which the existence of a failure to fulfil obligations must be assessed and which in this case is 36. Given that this prohibition on market- the end of November 1997, 5there existed ing, in so far as it applies to imported a prohibition on the marketing in Italy of products, constitutes a measure having energy drinks lawfully for sale in other equivalent effect to a quantitative restric- Member States but having a caffeine con- tion on imports contrary to Article 28 EC, tent in excess of 125 mg/l. the question arises as to whether this prohibition is justified by one of the inter- ests laid down in Article 30 EC and in particular that of the protection of human health and life.

38. However, I agree with the Commission that the Italian Government has not proved that the prohibition which was in force at 42. In response to a written question by the the end of November 1997 was justified by Court, the Italian Government contended a need to protect human life and health. once again that the issue which formed the basis of the action for failure to fulfil obligations had been resolved by the adop- tion of Circular No 5 of 3 April 1998.

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it was found to be incompatible with and effects of the tax system introduced by Community law, and therefore to the the Decree-Law in question to the point question of whether by adopting Circular where they asked the Court to consider the No 5 of 3 April 1998 the Italian Govern- resulting situation as a whole. ment has remedied the incompatibility.

45. I am of the opinion that that question is 49. In response to this request, the Court not relevant to the case in hand. declared, at paragraph 4 of the judgment, that '... in so doing the applicant has thus amended the subject-matter of its appli- cation so that it is no longer concerned only with the question whether at the time when 46. It is appropriate in this respect to refer the application was lodged there was a to the judgment in Commission v Italy, 9 failure on the part of the Italian Republic to which dealt with facts similar to those in fulfil its obligations under Article 95, but the present case. principally with the question whether this failure still continues after the coming into force of the Decree-Law...'.

47. In that case, the Commission had brought an action before the Court against the Italian Republic for failure to fulfil obligations as a result of a system of 50. The Court continued, at paragraphs 5 turnover tax which it considered consti- and 6 of that judgment, in the following tuted an infringement of Article 95 of the terms: EEC Treaty (now, after amendment, Article 90 EC).

48. The Italian Republic, in its defence, '5 ... the Court cannot give judgment in observed that a Decree-Law which had the present case on the failure to fulfil amended the tax system in dispute was, in an obligation occurring after legislation its opinion, of such a nature as to justify the has been amended during the course of withdrawal of the application. The Com- the proceedings without thereby mission disagreed, and a debate ensued adversely affecting the rights of the between the parties relating to the impact Member State to put forward its argu- ments in defence based on complaints formulated according to the procedure 9 — Case 7/69 [1970] ECR 111. laid down by Article 169.

55. It is appropriate to recall the lack of clarity as regards the legislative basis in Italian law for the disputed prohibition. 52. However, in the case at hand, the Whilst the Commission considered that allegation by the Commission that the Circular No 5 of 3 April 1998 is not Italian Republic has failed to fulfil its sufficient to amend Article 15 of PD obligations under Articles 28 EC and 30 No 719/58, it recognised in its response to EC by lifting a prohibition on marketing a written question put by the Court that the which was contrary to the Treaty by means disputed prohibition may not result in fact of the adoption of a circular amounts to a from that provision, but simply from different ground of failure to that made administrative practice. against the same Member State for having failed to fulfil the same obligations by reason of the very existence of that prohib- ition. 56. However, this question of the legis- 10 — Emphasis added. lative basis for the disputed prohibition 11 — See, in particular, Case C-347/88 Commission v Greece [1990] ECR I-4747, paragraph 16; Case C-439/99 Com- mission v Italy [2002] ECR I-305, paragraph 11; and Case C-287/00 Commission v Germany [2002] ECR I-5811, 12 — Case C-287/00 Commission v Germany, cited above, paragraph 18. paragraph 17.

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seems to me to be of fundamental import- 57. While a Member State may not 'repeal' ance to the assessment of the manner in a domestic legislative provision giving rise which the Italian Republic must remedy its to a failure to fulfil obligations by means of failure which has, in my opinion, been a circular, I cannot see prima facie, on the established and is based on the existence of other hand, why a Member State may not the prohibition at the end of the period laid (other than in the context of the implemen- down in the reasoned opinion. tation of a directive, which is not the case here) convert by means of a circular an administrative practice which breaches the Treaty into a practice which conforms to the Treaty.