OPINION OF MR ADVOCATE GENERAL MANCINI
DELIVERED ON 14 DECEMBER 1983 ( 1 )
Mr President,
Members of the Court,
1.
The Court is called upon to give judgment on a direct action brought by the Commission against the French Republic for infringement of Article 30 of the EEC Treaty. The infringement with which it is charged concerns national rules for controlling the quality of goods coming from other Member States. The Court must decide whether and, if so, within what limits the authorities of the importing State must, when carrying out such controls, observe the rules in force in the State in which the product originated.
The facts are as follows: In France and in Italy, the manufacture and marketing of pasta products containing common wheat is prohibited. To detect the presence of common wheat, the authorities of the two States adopt methods of analysis which are different but which are based on the same, extremely simple principle. It may be summarized as follows: because only common wheat contains a certain protein, it is sufficient to identify that protein in the samples tó be certain that the product has been manufactured, at least in part, from that type of wheat.
Considering that the differences between the two methods created barriers to the importation of Italian pasta products into France, the Commission, by a letter of 4 March 1981, brought proceedings under Article 169 of the EEC Treaty, accusing the French Government of having infringed Article 30. The Government did not reply and the Commission then delivered its reasoned opinion (3 August 1981), in which it contended that “by applying to pasta products imported from Italy tolerances ... and methods of analysis likely to create ... barriers to trade, the French Republic has failed to fulfil its obligations under the Treaty and in particular under ... Article 30”. In its reply (20 November 1981), the French Government stated:
(a)
that the methods used-in France and Italy produce the same results;
(b)
that the French public prosecutors “tolerate”, that is to say do not prosecute, importersand distributors of pasta products in which the common wheat content is not more than 5%.
Since the position adopted by the French Government amounted to a clear refusal to comply with the opinion, the Commission instituted proceedings before the Court under the second paragraph of Article 169, claiming that the Court should declare that France had failed to fulfil its obligations under Article 30. In support of its application it stated that France applied to imported pasta products manufactured exclusively from durum wheatmeal and legally marketed in another Member State a method for determining the common-wheat content and “tolerances” liable to constitute obstacles to imports.
2.
The complaints which the Commission makes against the French Republic are of two kinds: the use of its own method of analysis to detect the presence of common wheat in pasta products; and the application of certain “tolerances” to the results of analyses carried out according to that method.
I shall begin with the first complaint, providing some details of the legal rules in question, that is to say the French rules, of course, and also the Italian rules, which interest us because, according to the Commission, it is pasta products imported from Italy which are impeded by the rules at issue. In France a Law of 3 July 1934 (Journal Officiel de la République Française of 6 July 1934, p. 6787) provides that pasta products must be manufactured “exclusively from pure durum wheatmeal”. That provision was subsequently incorporated in the Decree of 27 May 1957, amended by the Decree of 6 December 1974 (Journal Officiel of 12 December 1974, p. 12369), in which it is provided that the exclusive use of durum wheat is to be determined by a method of analysis to be fixed by the administration (Article 8). The method in question was developed by Professor Feillet in Montpellier and adopted by the Decree of 13 August 1974 (Journal Officiel 12 of 15 January 1975, p. 639). That decree provides that the analyses must be carried out by laboratories responsible for carrying out technical research to assist the public authorities in combatting fraud.
As regards Italy, the rule that pasta products may only be manufactured from durum wheatmeal was laid down in Law No 580 of 4 July 1967 on the manufacture and marketing of cereals, flours, wheat and pasta products (Gazzetta Ufficiale 189 of 29 July 1967, p. 4182; Gazzetta Ufficiale Suppi. Ord. 4 of 5 January 1980, p. 3). The method used by the Italian administration was developed by Professor Resmini of the University of Milan.
The Commission relies principally on the contention that, to verify whether pasta products have been manufactured in accordance with Italian law, the method to be used is that applied in Italy. That argument is presented as the corollary of a principle laid down by this Court in connection with the interpretation of Article 30 and which can be expressed as follows: a product which may be marketed in its country of origin because it meets the requirements of the law of that country must for that reason alone be allowed into circulation in the other Member States. The Commission infers from that that the inspection carried out by the importing country with a view to ensuring compliance with the substantive rules of the country of origin must be carried out in accordance with the implementing rules in force in the latter country, and, as I have stated, it concludes that the French authorities must make use of the Resmini method. I am convinced by that argument. It is in conflict with the case-law of the Court and produces illogical results.
The case-law: As the Italian Government, which intervened in support of the conclusions of France, pointed out in its observations, the Court, in 1975, accepted the validity of a legal presumption of enrichment of wine accepted only by the importing country. The Member States, it stated, must take effective measures of control to ensure compliance with Community rules regarding enrichment, acidification and de-acidification of wine, whilst retaining “the power to choose the measures which they consider appropriate for that purpose” (judgments of 30 September 1985 in Joined Cases 89/74 and 18 and 19/75, Arnand, [1975] ECR 1203, and in Joined Cases 10 and 14/75, Lahaille, [1975] ECR 1053). If importing countries can use their own method of analysis in a sector (viticulture) in which a common organization of the market has been established, then there is all the more reason, it seems to me, to recognize the existence of a similar power where, as in the case of pasta products, no such organization exists.
The results: The Commission's argument presupposes that each Member State should set up a department which is able to subject imported goods to the same technical inspections as those which are (or may be) imposed on them in their country of origin, that is to say, it must be able to apply as many methods of analysis as there arc other Member States. Is such a demand reasonable?
And, most importantly, what advantages does it offer? In reply to a question which I put to to him, Professor Resmini told us during the oral procedure that the method of analysis which he has developed is reliable only if it is carried out by highly specialized technicians. I do not think I am wrong in presuming that the methods in use elsewhere are subject to the same requirement. However, since such a high degree of specialization in relating to nine methods of analysis, either existing or potential, is a practically unattainable objective, the solution proposed by the applicant would lead to unreliable results. This would be the opposite to what was intended.
The true position is therefore different. In a matter such as this, the methods do not have to be identical. What matters is that the results should be equivalent, and in this instance it is unquestionably the case that, as long as they are correctly applied, the French and Italian methods produce equivalent results. The governments in question have both stated that to be the case and, during the oral procedure, the Commission unreservedly admitted it.
This is the origin of the Commission's alternative complaint. Even on the assumption, it contends, that the French Government was entitled to use its own method, the French authorities used it in a manner which was incorrect or, at least, unsatisfactory. In that sense at least, France has failed to fulfil its obligations under Article 30. That complaint is also unfounded. To demonstrate this, it is unnecessary to consider whether the French authorities are in fact unreliable when using the Feillet method. It is sufficient to observe that they have experience of it, while they have none of the Resmini method. Thus, if they are unreliable when using the first method, they will be all the more so if they are obliged to use the second.
3.
I have already drawn attention to the other complaint that the Commission is making against the French Government. France, it states, applies more restrictive “tolerances” to the results of the analyses than those accepted for the same products in Italy. In that way, it creates obstacles, contrary to Article 30, to the importation and marketing of pasta products which are in free circulation on the Italian market. That complaint is even weaker than the first one. The documents before the Court indicate that there is indeed a difference between the tolerances accepted by the two States, but in the opposite sense to that indicated by the Commission. France is in fact more tolerant than Italy, which means that the flow of trade from Italy to France is in no way interfered with.
I could conclude my Opinon there; however, the problem raised by the applicant lends itself to a wider consideration which I think ought to be put before the Court. A few words, first of all, on the concept of tolerance. This takes account of the fact: (a) that a small quantity of common wheat can be mixed accidentally with durum wheat (this is known as “natural impurity” of durum wheat); and (b) that the technicians responsible for the analyses can misread their instruments. As long as this remains within certain limits, the administration and the courts disregard it. In France, the administrative limit is 8% and there is no specific judicial limit. In Italy, both coincide with the decree of tolerance (4%) for durum wheat delivered to the intervention agencies (see Commission Regulation No 3525 of 9 December 1981, Official Journal, L 355, 10. 12. 1981).
However, since those limits are not part of the written law, they are, in Italy and in France, subject to judicial review. The courts may of course require that the analyses be repeated and, on the basis of the evidence obtained, decide whether the importer or the distributor is criminally liable. In other words, the question of “tolerances” ultimately affects the rules of evidence in criminal matters. However, as this Court has proved in 25 years of history, a great deal can be inferred from Article 30, even — though some would doubt this — matters influencing criminal procedure in the Member States. But to apply this to a practice such as tolerances, which are of such minor importance and so reasonable, seems to me to be frankly absurd.
4.
In conclusion, I propose that the Court dismiss the action brought by the Commission of the European Communities against the French Republic by an application lodged at the Court Registry on 9 August 1982.
Since the applicant has failed in its submissions, it must bear the costs of the proceedings.
( 1 ) Translated from the Italian.
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