«(Measures having equivalent effect – Foodstuffs for sportsmen and women lawfully manufactured and marketed in other Member States – Prior marketing authorisation)»

Judgment of the Court (Third Chamber), 5 February 2004

Summary of the Judgment

Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National legislation making the marketing of food products for sportsmen and women subject to authorisation – Not permissible – Justification – Protection of public health – Consumer protection – Inability to demonstrate the necessity and proportionality of the said measure (Arts 28 EC and 30 EC)

A Member State which maintains in force legislation which subjects the marketing of food products for sportsmen and women lawfully manufactured and marketed in other Member States to a requirement of applying for prior authorisation and of initiating a procedure for that purpose without having shown that it is necessary and proportionate fails to fulfil its obligations under Articles 28 EC and 30 EC. It is for the competent national authorities to show that their rules are necessary in order to attain one or more objectives mentioned in Article 30 EC, such as the protection of health and life of humans, or to meet imperative requirements relating, inter alia, to consumer protection and, where appropriate, that the marketing of the products in question poses a serious risk to public health and that those rules are in conformity with the principle of proportionality.see paras 21-22, 26, operative part

JUDGMENT OF THE COURT (Third Chamber) 5 February 2004 (1)

(Measures having equivalent effect – Foodstuffs for sportsmen and women lawfully manufactured and marketed in other Member States – Prior marketing authorisation)

In Case C-270/02,

Commission of the European Communities, represented by C.-F. Durand and R. Amorosi, acting as Agents, with an address for service in Luxembourg,

applicant,

Italian Republic, represented by I.M. Braguglia, acting as Agent, assisted by G. Aiello, avvocato dello Stato, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by maintaining in force legislation which subjects the marketing of food products for sportsmen and women lawfully manufactured and marketed in other Member States to a requirement of applying for prior authorisation and of initiating a procedure for that purpose without having shown that it is necessary and proportionate, the Italian Republic has failed to fulfil its obligations under Articles 28 EC and 30 EC,

THE COURT (Third Chamber),

composed of: C. Gulmann, acting for the President of the Chamber, J.-P. Puissochet and F. Macken (Rapporteur), Judges,

Advocate General: J. Mischo, Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

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(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

[1999] ECR I-3175, paragraph 36, and Case C-217/99 Commission v Belgium [2000] ECR I-10251, paragraph 17). Consequently, it constitutes a barrier to intra-Community trade and constitutes a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 28 EC.

It is true that, according to the case-law of the Court, national legislation making the use of a nutritional substance in a foodstuff lawfully manufactured and/or marketed in other Member States subject to prior authorisation is not, in principle, contrary to Community law if certain conditions are satisfied (see, to that effect Case C-344/90 Commission v France [1992] ECR I-4719, paragraph 8, and Case C-24/00 Commission v France [2004] ECR I-0000, paragraphs 25 to 27).

However, a requirement such as that in issue can only be justified on one of the public-interest grounds set out in Article 30 EC, such as the protection of health and life of humans, or by an imperative requirement relating, inter alia, to consumer protection (see, among others, Case 120/78 REWE-Zentral [1979] ECR 649 (Cassis de Dijon), paragraph 8, and Case C-420/01 Commission v Italy [2003] ECR I-6445, paragraph 29).

According to settled case-law, it is for the competent national authorities to show that their rules are necessary in order to attain one or more objectives mentioned in Article 30 EC or meet imperative requirements and, where appropriate, that the marketing of the products in question poses a serious risk to public health and that those rules are in conformity with the principle of proportionality (Case 227/82 Van Bennekom [1983] ECR 3883, paragraph 40; Case C-358/95 Morellato [1997] ECR I-1431, paragraph 14; Case C-14/02 ATRAL [2003] ECR I-4431, paragraph 67; and Commission v Italy, cited above, paragraph 30).

In the present case, the Italian Government has not shown that the prior authorisation procedure for the marketing of sports foods is justified by and proportionate to one of the public-interest grounds set out in Article 30 EC, namely protection of public health.

Despite the requests of the Commission, the Italian Government has not shown any alleged risk to public health which the products in question are likely to pose. It failed to explain on what scientific data or medical reports the guidelines which it enclosed were based and has not given general information on those alleged risks. Furthermore, it has not made clear the link between the procedure in question and the alleged risk to public health nor explained the reasons why such protection is more effective than other forms of control and thus proportionate to the objective pursued.

Moreover, as the Commission contends, if the procedure in question is, in fact, intended mostly to protect consumers, the Italian Government has also failed to show in what way that procedure is necessary and proportionate to that objective. Less restrictive measures exist for the prevention of such residual risks as misleading consumers, such as notification of the marketing of the product in question of the competent authority by the manufacturer or distributor of that product together with transmission of a model of the labelling and the obligation requiring the manufacturer or the distributor of that product to furnish, if necessary, evidence of the accuracy of the factual data appearing on the label (see, to that effect, Case C-77/97 Unilever [1999] ECR I-431, paragraph 35, and Case C-221/00 Commission v Austria [2003] ECR I-1007, paragraphs 49 and 52).

In view of all the foregoing, it must be held that, by maintaining in force legislation which subjects the marketing of food products for sportsmen and women lawfully manufactured and marketed in other Member States to a requirement of applying for prior authorisation and of initiating a procedure for that purpose without having shown that it is necessary and proportionate, the Italian Republic has failed to fulfil its obligations under Articles 28 EC and 30 EC.

Costs

Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Italian Republic has been unsuccessful in its defence, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Third Chamber),

hereby:

Declares that, by maintaining in force legislation which subjects the marketing of food products for sportsmen and women lawfully manufactured and marketed in other Member States to a requirement of applying for prior authorisation and of initiating a procedure for that purpose without having shown that it is necessary and proportionate, the Italian Republic has failed to fulfil its obligations under Articles 28 EC and 30 EC;

Orders the Italian Republic to pay the costs.

Delivered in open court in Luxembourg on 5 February 2004.

Registrar

President

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Language of the case: Italian.