61984J0121

ACTION FOR FAILURE BY A MEMBER STATE TO FULFIL ITS OBLIGATIONS - SUBJECT-MATTER OF THE DISPUTE - DETERMINATION BY A REASONED OPINION - SUBSEQUENT WIDENING OF THE SCOPE OF THE DISPUTE - NOT PERMISSIBLE - TERMINATION OF THE INFRINGEMENT WITHIN THE PERIOD PRESCRIBED IN THE REASONED OPINION - CHALLENGE - ONUS OF PROOF ON THE COMMISSION

( EEC TREATY , ART . 169 )

IN CASE 121/84

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY GIULIANO MARENCO , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MANFRED BESCHEL , ALSO A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT , V

ITALIAN REPUBLIC , REPRESENTED BY LUIGI FERRARI BRAVI , HEAD OF THE DEPARTMENT FOR CONTENTIOUS DIPLOMATIC AFFAIRS , ACTING AS AGENT , ASSISTED BY OSCAR FIUMARA , AVVOCATO DELLO STATO , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT , BY IMPOSING RESTRICTIONS ON THE TRANSIT BY ROAD THROUGH ITALIAN TERRITORY OF LIVE ANIMALS ORIGINATING IN A MEMBER STATE AND BOUND FOR ANOTHER MEMBER STATE OR A NON-MEMBER COUNTRY , THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 8 MAY 1984 , THE COMMISSION BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT , BY IMPOSING RESTRICTIONS ON THE TRANSIT BY ROAD THROUGH ITALIAN TERRITORY OF LIVE ANIMALS ORIGINATING IN A MEMBER STATE AND BOUND FOR ANOTHER MEMBER STATE OR A NON-MEMBER COUNTRY , THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 30 TO 34 OF THE EEC TREATY AND UNDER ARTICLE 20 ( 2 ) OF COUNCIL REGULATION ( EEC ) NO 805/68 OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 187 ) AND THE CORRESPONDING PROVISIONS OF OTHER COMMON ORGANIZATIONS OF THE MARKET IN LIVE ANIMALS .

2 THIS APPLICATION WAS PROMPTED BY A COMPLAINT WHICH THE COMMISSION RECEIVED FROM THE BELGIAN GOVERNMENT IN 1981 . ACCORDING TO THE COMMISSION , THE BELGIAN GOVERNMENT CONTENDED THAT WHERE LIVE ANIMALS WERE IN TRANSIT THROUGH ITALIAN TERRITORY AND WERE BOUND FOR ANOTHER MEMBER STATE OR A NON-MEMBER COUNTRY , THE ITALIAN AUTHORITIES REQUIRED THE LORRIES TO BE UNLOADED AND THE ANIMALS TO BE RELOADED ONTO RAILWAY WAGONS , ALTHOUGH THE ITALIAN AUTHORITIES DID NOT OBJECT TO LIVE ANIMALS BEING TRANSPORTED BY ROAD IF THEY WERE BOUND FOR THE ITALIAN MARKET .

3 IN REPLY TO THE COMMISSION ' S LETTER REQUESTING IT TO SUBMIT ITS OBSERVATIONS CONCERNING THAT DISCRIMINATORY ATTITUDE , THE ITALIAN GOVERNMENT POINTED OUT , IN THE FIRST PLACE , THAT THERE COULD NOT BE ANY DISCRIMINATION AGAINST BELGIAN TRADERS SINCE THERE WERE NO COMPETING ITALIAN EXPORTS TO GREECE AND , SECONDLY , THAT RAIL TRANSPORT ENABLED ADVANTAGEOUS USE TO BE MADE OF THE FACILITIES PROVIDED BY THE ITALIAN RAILWAYS .

4 TAKING THE VIEW THAT THOSE OBSERVATIONS WERE INCAPABLE OF ALTERING ITS POSITION , THE COMMISSION DELIVERED A REASONED OPINION ON 16 MARCH 1980 IN WHICH IT CHARGED THE ITALIAN REPUBLIC WITH PROHIBITING LORRIES CARRYING LIVE ANIMALS ORIGINATING IN A MEMBER STATE AND BOUND FOR ANOTHER MEMBER STATE OR A NON-MEMBER COUNTRY FROM CROSSING ITS TERRITORY . THE COMMISSION REQUESTED THE ITALIAN REPUBLIC TO COMPLY WITH THE TERMS OF THE REASONED OPINION WITHIN TWO MONTHS .

5 IN RESPONSE , THE ITALIAN GOVERNMENT EXPLAINED THAT THE ITALIAN VETERINARY AUTHORITIES WERE SIMPLY CONCERNED TO PLAN ROAD TRANSPORT ON THE BASIS OF THE FACILITIES AVAILABLE FOR ACCOMMODATING LIVE ANIMALS AT THE VARIOUS FRONTIER CROSSINGS . HOWEVER , RAIL TRANSPORT WAS NOT SYSTEMATICALLY PREFERRED TO ROAD TRANSPORT , NOR WAS TRADE IN ANIMALS BOUND FOR THE ITALIAN MARKET TREATED MORE FAVOURABLY THAN TRADE IN ANIMALS BOUND FOR OTHER MARKETS . THE ITALIAN GOVERNMENT ALSO INFORMED THE COMMISSION THAT , FOLLOWING CONSULTATIONS BETWEEN THE BELGIAN VETERINARY AUTHORITIES AND THE RELEVANT ITALIAN AUTHORITIES , TRANSIT LICENCES HAD BEEN ISSUED FOR LORRIES CARRYING A CERTAIN NUMBER OF LIVE ANIMALS , SUBJECT TO PROOF THAT THOSE ANIMALS WOULD NOT BE TURNED BACK BY THE COUNTRY OF DESTINATION AND ON CONDITION THAT COMMUNITY HEALTH REQUIREMENTS WERE SATISFIED .

6 AFTER BEING INFORMED BY A LETTER FROM THE BELGIAN GOVERNMENT IN AUGUST 1983 THAT , AS A RESULT OF SEASONAL RESTRICTIONS ON LORRIES CROSSING ITALIAN TERRITORY AND OF SYSTEMATIC HEALTH INSPECTIONS AT THE FRONTIER , THE BELGIAN GOVERNMENT WAS DISSATISFIED WITH THE OUTCOME OF THOSE CONSULTATIONS , THE COMMISSION BROUGHT THIS APPLICATION .

7 IN ITS REPLY AND AT THE HEARING , THE COMMISSION RELIED ON THE GENERAL TERMS IN ITS APPLICATION AIMED AT RESTRICTIONS ON LORRIES CROSSING ITALIAN TERRITORY TO CHALLENGE THE REQUIREMENT OF CERTIFICATES GUARANTEEING THAT THE ANIMALS WOULD NOT BE TURNED BACK BY THE COUNTRY OF DESTINATION AND THE ACTUAL SYSTEM OF ISSUING LICENCES , ESTABLISHED BY ARTICLE 61 OF PRESIDENTIAL DECREE NO 320 OF 8 FEBRUARY 1954 LAYING DOWN VETERINARY HEALTH INSPECTION RULES ( GAZZETTA UFFICIALE DELLA REPUBBLICA ITALIANA , NO 142 OF 24 JUNE 1954 ); THAT ARTICLE PROVIDES THAT ' THE TRANSPORT ACROSS ITALIAN TERRITORY OF ANIMALS DIRECTLY BOUND FOR OTHER COUNTRIES IS , IN THE ABSENCE OF SPECIAL AGREEMENTS CONCERNING VETERINARY INSPECTIONS , TO BE AUTHORIZED BY THE HIGH COMMISSIONER FOR PUBLIC HEALTH UPON REQUEST BY THE COMPETENT AUTHORITIES OF THE COUNTRY OF DESTINATION , SUBJECT TO COMPLIANCE WITH THE RULES LAID DOWN FROM TIME TO TIME ... ' .

8 IT MUST BE REMEMBERED IN THE FIRST PLACE THAT IN NO CIRCUMSTANCES MAY THE SCOPE OF THE PROCEEDINGS , AS DEFINED IN THE REASONED OPINION , BE WIDENED .

9 IN THIS CASE , THE ONLY PRACTICE CRITICIZED IN THE REASONED OPINION IS THE PROHIBITION ON THE TRANSIT OF LORRIES CARRYING LIVE ANIMALS ORIGINATING IN ONE MEMBER STATE AND BOUND FOR ANOTHER MEMBER STATE OR A NON-MEMBER COUNTRY ; THAT PROHIBITION ENTAILS UNLOADING AND RELOADING THE ANIMALS FROM THE LORRIES ONTO RAILWAY WAGONS . ACCORDINGLY , IT IS NOT POSSIBLE TO EXAMINE IN THESE PROCEEDINGS THE COMPLAINT CONCERNING THE ACTUAL SYSTEM WHEREBY THE TRANSIT OF LIVE ANIMALS IS SUBJECT TO THE PRIOR ISSUE OF A LICENCE OR THE COMPLAINT RELATING TO THE PRACTICE WHEREBY THE ISSUE OF A TRANSIT LICENCE IS CONDITIONAL ON THE CARRIER HOLDING A CERTIFICATE GUARANTEEING THAT THE ANIMALS WILL NOT BE TURNED BACK BY THE COUNTRY OF DESTINATION .

10 WITH REGARD TO THE PRACTICE OF REQUIRING THE ANIMALS TO BE RELOADED ONTO RAILWAY WAGONS , IT MUST BE EMPHASIZED THAT , UNDER THE SECOND PARAGRAPH OF ARTICLE 169 OF THE EEC TREATY , A MATTER MAY BE BROUGHT BEFORE THE COURT OF JUSTICE ONLY IF THE STATE CONCERNED HAS NOT COMPLIED WITH THE REASONED OPINION WITHIN THE PERIOD LAID DOWN BY THE COMMISSION .

11 IN THIS CASE , THE ITALIAN GOVERNMENT APPARENTLY ACKNOWLEDGES THAT THE OBLIGATION TO RELOAD THE ANIMALS ONTO RAILWAY WAGONS WAS IMPOSED AT A TIME WHEN THE ROAD HAULAGE INFRASTRUCTURE WAS NOT SUCH AS TO PERMIT EFFECTIVE HEALTH INSPECTIONS TO BE CARRIED OUT ; IN RESPONSE TO THE REASONED OPINION , HOWEVER , IT EMPHASIZED THAT THIS OBLIGATION WAS IN ANY EVENT NO LONGER IMPOSED BY THE ITALIAN AUTHORITIES . IN SUPPORT OF THAT ARGUMENT , IT REFERRED TO THE TRANSIT LICENCES WHICH HAD BEEN ISSUED TO ROAD TRANSPORT OPERATORS BEFORE THE COMMISSION DELIVERED ITS REASONED OPINION . A LIST OF THOSE AUTHORIZATIONS HAS BEEN ENTERED ON THE FILE .

12 SINCE THE ITALIAN GOVERNMENT DENIES THAT IT CONTINUED TO APPLY THE PRACTICE COMPLAINED OF AFTER THE EXPIRY OF THE PERIOD PRESCRIBED IN THE REASONED OPINION , THE ONUS WAS ON THE COMMISSION TO FURNISH PROOF TO THE CONTRARY .

13 THE COMMISSION HAS NOT DISCHARGED THAT OBLIGATION . ACCORDING TO THE COMMISSION , THE COMPLAINT WHEREBY THE BELGIAN GOVERNMENT NOTIFIED IT OF THE GRIEVANCES OF BELGIAN TRADERS DATES BACK TO 1981 . MOREOVER , IN THE BELGIAN GOVERNMENT ' S LETTER TO THE COMMISSION IN AUGUST 1983 , IN WHICH THE OUTCOME OF THE CONSULTATIONS WITH THE ITALIAN AUTHORITIES WAS DESCRIBED AS UNSATISFACTORY , NO MENTION WAS MADE OF ANY OBLIGATION TO RELOAD THE ANIMALS ONTO RAILWAY WAGONS .

14 IN THOSE CIRCUMSTANCES , THE APPLICATION MUST BE DISMISSED .

COSTS

15 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . AS THE APPLICANT HAS BEEN UNSUCCESSFUL IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

( 1 ) DISMISSES THE APPLICATION ;

( 2 ) ORDERS THE COMMISSION TO PAY THE COSTS .