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	Číslo (Kód CELEX): Number (CELEX Code):		61989J0128

	Název: Title:		ECJ Judgment of 12 July 1990 Case C-128/89 Commission of the European Communities v Italian Republic Proceeding concerning failure by Member States [1990] ECR I-3239

	Publikace: Publication:

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:		31977L0093

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837 Case 104/75 De Peijper [1976] ECR 613 Case 41/76 Donckerwolcke v Procureur de la République [1976] ECR 1921 Case 46/76 Bauhuis v Netherlands [1977] ECR 5


	Plný text: Fulltext:		Ne

Fakta:
Under Article 4 (2) and Annex III.B of Council Directive 77/93/EEC Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Member States of organisms harmful to plants or plant products OJ 1977 L 26, p. 20, Italy was allowed to ban the imports of citrus plant fruits into her territory.
By Ministerial Decree of 11 June 1980 Ministerial Decree of 11 June 1980 on the plant-health rules relating to the importation, exportation and transit of plants and plant products (Gazzetta ufficiale della Repubblica italiana No 203, 25.7.1980, p. 6317) Italy subjected the import of grapefruit from any country to a limited number of border checkpoints in order that a plant-health inspection could be executed. In subsequent years the number of checkpoints was frequently changed, and in 1985 import of grapefruit was restricted to coastal ports.
The Commission considered that practice to be in violation of Article 28 (ex Art. 30) of the EEC Treaty and of Directive 77/93/EEC claiming that the Italian legislation was not proportional, and that, due to the foreclosure of imports via land, the measure was also discriminatory because it bore more heavily on imports from other Member States, which are effected mainly by land, whereas imports from non-member countries are generally transported by sea. The infringement, the Commission claimed, could also not be justified under Article 30 (ex Art. 36) of the Treaty.
The Italian Government, however, stated that it was permissible under Article 4 (2) of Directive 77/93/EEC to impose a total ban on grapefruit, so that consequently that provision must have authorised it to adopt rules of less restrictive effects on trade.
In reply to the Commission’s claim, that the inspection of grapefruit could be organised in a way which would not restrict the means and ways of imports, the Italian administration stated that the Commission’s argument would make custom’s operations excessively complex, cause difficulties in the organisation of checks and would be additionally expensive for both the importers and the authorities. However, no further proof was provided by the Italian Government to sustain this argument.

Názor soudu a komentář:
The Court introduces its decision by pointing to its jurisprudence which has consistently held that legislation which is applicable without distinction to products originating in the Community and to those which were put into free circulation in any of the Member States, irrespective of the actual origin of these products, (Case 41/76 paragraph 18) is governed by Article 28 (ex Art. 30) of the EEC Treaty (Case 8/74 paragraph 5). The Court then investigates whether the justification given by the Italian Government could validly be based on Article 30 (ex Art. 36) of the Treaty, even though the matter of plant-health protection has been harmonised by Directive 77/93/EEC.
Highlighting its consistent view that Member States may only adopt measures within the framework outlined by the harmonising directive, the Court rules that, since the relevant directive was introduced in order to promote the free movement of goods (Case 46/76 paragraph 30) by eliminating or at least reducing obstacles to free movement which might be set by national health inspection measures adopted under Article 30 (ex Art. 36) of the Treaty, Member States are only empowered by the harmonising directive to adopt measures which must not under any circumstance exceed the limits laid down by Article 30 (ex Art. 36). Therefore, measures which are adopted under the directive must comply with the test of proportionality as contained in Article 30 (ex Art. 36) (Case 104/75 paragraphs 16, 17), in which the aim pursued is the protection of plant-health, being the aim of the directive itself.
The Court then states that, according to its consistent case-law, Member States ”may not derogate from Article 28 (ex Art. 30) of the EEC Treaty by introducing or maintaining rules or practices which (...) contain restrictions which are explained primarily by a concern to lighten the administration’s burden or reduce the public expenditure”. However, that requirement is limited where ”this burden or expenditure clearly would exceed the limits of what can reasonably be required.”Moreover, the Court adds that it is the Member States’ burden to prove that the conditions for derogating from Article 28 (ex Art. 30) are met (Case 251/78 Denkavit Futtermittel v Minister für Ernährung, Landwirtschaft und Forsten [1979] ECR 3369, paragraph 24).
The Court concludes that in the present case, the Italian authorities have neither provided any proof to explain why imports by land would have resulted in an unreasonable administrative burden or excessive public expenditure, nor stated convincingly why imports had to be restricted to only a few ports.

Shrnutí (Summary of the Judgment):

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