Judgments nº C-42/82 of Court of Justice of the European Communities, March 22, 1983

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Summary

1 . PRACTICES WHICH HAD ALREADY BEEN CONDEMNED IN THE REASONED OPINIONS GIVEN TO THE MEMBER STATE IN QUESTION AND WHICH WERE CONTINUED SUBSEQUENTLY AND PRACTICES WHICH OCCURRED AFTER THE OPINIONS HAD BEEN GIVEN BUT WHICH WERE OF THE SAME KIND AS THOSE TO WHICH THE OPINIONS REFERRED AND CONSTITUTED THE SAME CONDUCT , ARE BOTH RELEVANT TO PROCEEDINGS IN RESPECT OF FAILURE OF A STATE TO FULFIL OBLIGATIONS WITHIN THE MEANING OF ARTICLE 169 OF THE TREATY .

2 . ALTHOUGH THE AUTHORITIES OF THE IMPORTING MEMBER STATE ARE ENTITLED BY VIRTUE OF REGULATION NO 1153/75 TO CHECK THAT ALL CARRIAGE IN BULK OF WINE ORIGINATING IN ANOTHER MEMBER STATE PRESENTED AT THE FRONTIER IS IN FACT ACCOMPANIED BY A VA 1 FORM WHICH HAS BEEN PROPERLY COMPLETED AND ISSUED BY THE COMPETENT AUTHORITIES OF THE EXPORTING MEMBER STATE , IT NONE THE LESS FOLLOWS FROM THE SAID REGULATION THAT THE OBLIGATION TO HAVE AN ACCOMPANYING DOCUMENT SHOULD NOT AMOUNT TO AN IMPEDIMENT TO TRADE OR TO THE MARKETING OF PRODUCTS IN THE WINE SECTOR . CONSEQUENTLY ONLY ERRORS OR IRREGULARITIES IN A DOCUMENT WHICH ARE OF A SUBSTANTIAL NATURE AND WHICH ARE THEREFORE CAPABLE OF RENDERING IT USELESS FOR THE FULFILMENT OF ITS FUNCTION , AS AN OFFICIAL DOCUMENT , OF PROVIDING ESSENTIAL INFORMATION ABOUT THE NATURE OF THE PRODUCT , MAY JUSTIFY OBJECTIONS TO SUCH A DOCUMENT AND , THUS , OBSTACLES TO IMPORTS .

3 . A ' ' REASONABLE CAUSE FOR SUSPECTING ' ' , WITHIN THE MEANING OF ARTICLE 3 OF REGULATION NO 359/79 , THAT THE WINE IMPORTED FROM ANOTHER MEMBER STATE DOES NOT CONFORM TO THE WINE PROVISIONS , WHICH JUSTIFIES THE MAKING OF A REQUEST FOR DETAILED INVESTIGATIONS AND FOR THE FORWARDING OF DOCUMENTARY EVIDENCE , MUST BE BASED ON CONCRETE EVIDENCE RELATING TO A SPECIFIC CARRIAGE OPERATION . THERE ARE NO GROUNDS FOR ENTERTAINING A GENERAL SUSPICION WITH REGARD TO ALL IMPORTS OF WINE ON THE BASIS OF A FEW IRREGULARITIES OR BREACHES WHICH HAVE BEEN FOUND IN PARTICULAR CASES IN THE PAST . IN NO CASE MAY MERE FORMAL ERRORS IN THE ACCOMPANYING DOCUMENTS JUSTIFY A REASONABLE CAUSE FOR SUSPICION .

4 . IN ORDER TO AVOID OBSTACLES TO INTRA-COMMUNITY WINE IMPORTS THE DUTY OF COOPERATION BETWEEN MEMBER STATES WHICH IS INHERENT IN THE COMMUNITY SYSTEM OF SUPERVISION REQUIRES THAT , IN THE CASE OF A CHANGE IN A PRACTICE WHICH HAS BEEN ESTABLISHED FOR MANY YEARS BETWEEN THE IMPORTING MEMBER STATE AND THE EXPORTING MEMBER STATE IN RESPECT OF THE CHECKING OF ACCOMPANYING DOCUMENTS , THE IMPORTING MEMBER STATE UNDERTAKING THE CHANGE MUST GIVE NOTICE OF THE NEW PRACTICE TO THE AUTHORITIES OF THE EXPORTING MEMBER STATE SO THAT IT IS NOT MADE IMPOSSIBLE FOR THEM TO MAKE PREPARATIONS FOR THE NEW PRACTICE AND TO TAKE IT INTO ACCOUNT IN COMPLETING THE ACCOMPANYING DOCUMENTS .

5 . OENOLOGICAL CHECKS , WHETHER CARRIED OUT SYSTEMATICALLY OR NOT , OF TABLE WINE ORIGINATING IN A MEMBER STATE AND IMPORTED IN BULK BY ANOTHER MEMBER STATE , WHICH ARE LIKELY TO MAKE IMPORTATION MORE DIFFICULT AND MORE COSTLY AS A RESULT IN PARTICULAR OF THE DELAYS AND THE ADDITIONAL TRANSPORT COSTS WHICH THE IMPORTER MAY INCUR THEREBY , CONSTITUTE MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS WITHIN THE MEANING OF ARTICLE 30 OF THE TREATY .

6 . IT CANNOT BE EXCLUDED THAT IN CERTAIN CASES HEALTH CHECKS BY MEANS OF ANALYSES OF WINE IMPORTED FROM A MEMBER STATE MAY BE AN APPROPRIATE MEANS OF PREVENTING THE DANGERS RESULTING , FOR EXAMPLE , FROM PROHIBITED OENOLOGICAL PRACTICES OR THE USE OF UNHYGIENIC MEANS OF TRANSPORT AND MAY SERVE TO ENSURE THE PROTECTION OF HEALTH AND LIFE OF HUMANS .

NEVERTHELESS THE MEASURES OF VERIFICATION CARRIED OUT MUST BE NECESSARY FOR ATTAINMENT OF THE DESIRED OBJECTIVES AND MUST NOT CREATE OBSTACLES TO TRADE WHICH ARE DISPROPORTIONATE TO THOSE OBJECTIVES .

IN NO CASE CAN ADULTERATION OR IRREGULARITIES DISCOVERED PREVIOUSLY IN PARTICULAR CASES JUSTIFY A GENERAL SUSPICION IN RELATION TO ALL IMPORTS OF WINE FROM ANOTHER MEMBER STATE OR THE CARRYING OUT OF SYSTEMATIC ANALYSES WHEN NO SIMILAR PRACTICE EXISTS IN RELATION TO NATIONAL WINE PRODUCTION .

7 . IN THE CASE OF RANDOM ANALYSES CONSIGNMENTS OF WINE IMPORTED FROM A MEMBER STATE THE DETENTION OF THE CONSIGNMENT AT THE FRONTIER UNTIL THE RESULTS OF THE ANALYSES ARE KNOWN CONSTITUTES A DISPROPORTIONATE AND DISCRIMINATORY OBSTACLE TO IMPORTS CONTRARY TO ARTICLES 30 AND 36 OF THE TREATY WHERE SUCH ANALYSES INVOLVE SUBSTANTIAL PERIODS OF TIME IN EXCESS OF A FEW DAYS AND IN VIEW OF THE POSSIBILITY OF LOCATING AND IDENTIFYING A CONSIGNMENT OF WINE . THE SITUATION WOULD BE DIFFERENT ONLY IF THE ANALYSES WERE CARRIED OUT IN AN INDIVIDUAL CASE ON THE BASIS OF A REASONABLE SUSPICION OF FRAUD OR IRREGULARITY REGARDING THE PRODUCT CONCERNED .

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Extract

Judgments nº C-42/82 of Court of Justice of the European Communities, March 22, 1983

Subject of the case

APPLICATION CONCERNING OBSTACLES TO THE IMPORTATION OF ITALIAN WINE INTO FRANCE ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 4 FEBRUARY 1982 , THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE FRENCH REPUBLIC HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE COMMUNITY RULES APPLICABLE TO THE WINE SECTOR AND UNDER ARTICLE 30 OF THE EEC TREATY

BY SUBJECTING CUSTOMS CLEARANCE OF ITALIAN TABLE WINES TO A DELAY CONSIDERABLY IN EXCESS OF THE TIME NECESSARY FOR THE PERFORMANCE OF THE PERMISSIBLE MATERIAL OPERATIONS AND BY MAKING CUSTOMS CLEARANCE SUBJECT TO A SYSTEMATIC ANALYSIS ;

BY OMITTING TO COMMENCE PROMPTLY THE PROCEDURE FOR REGULARIZING THE CARRIAGE OPERATIONS IN RESPECT OF A NUMBER OF CONSIGNMENTS OF ITALIAN WINE ONCE THE ACCOMPANYING DOCUMENTS HAD BEEN PRESENTED FOR CLEARANCE AT ITS FRONTIER POSTS ;

BY MAKING THE REGULARIZATION OF CARRIAGE OPERATIONS IN RESPECT OF ITALIAN WINES HELD UP AT FRONTIER POSTS SUBJECT IN NUMEROUS CASES TO THE TRANSMISSION BY THE ITALIAN AUTHORITIES OF THE DOCUMENTS AND PAPERS UPON WHICH THEIR CERTIFICATES ARE BASED ;

BY DELAYING CUSTOMS CLEARANCE EVEN IN CASES WHICH HAVE BEEN REGULARIZED .

2 IT IS THE CONTENTION OF THE COMMISSION , SUPPORTED BY THE ITALIAN GOVERNMENT AS INTERVENER , THAT BECAUSE OF THOSE PRACTICES CONSIDERABLE DELAYS OCCURRED IN RELEASING FOR CONSUMPTION THE TABLE WINE ORIGINATING IN ITALY AND IMPORTED IN BULK INTO FRANCE AS FROM AUGUST 1981 AND AGAIN AS FROM JANUARY 1982 AND THAT SUBSTANTIAL QUANTITIES OF ITALIAN TABLE WINE , AT TIMES IN EXCESS OF ONE MILLION HECTOLITRES , WERE HELD UP FOR SEVERAL WEEKS AND EVEN FOR SEVERAL MONTHS A...

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