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Who Will Save the Olive Tree?: C-443/18, Commission v Italy
Published online by Cambridge University Press: 19 December 2019
In Xylella II the CJEU was called upon to assess whether Italy had failed to meet the obligations stemming from the Plant Health Directive and Decision 2015/789/EU, aiming to inhibit the spread of the plant pathogen Xylella fastidiosa in Apulia (Southern Italy). In carrying out its review, the Court relied to a large extent on the scientific evidence submitted by the Commission. It found that the Member State had failed to properly remove infected plants and monitor the presence of the pathogen in the 20km strip dividing the infected zone from the buffer zone. However, the Court also confirmed that in proceedings brought under Article 258, the burden of proof lies on the Commission, which may not rely on any presumption to demonstrate the State’s failure to meet EU law obligations. The Italian authorities are now expected to comply with the Court’s ruling, as financial sanctions may be imposed at a later stage.
- Case Commentary
- European Journal of Risk Regulation , Volume 10 , Issue 4: Symposium on European Union Governance of Health Crisis and Disaster Management , December 2019 , pp. 811 - 820
- © Cambridge University Press 2019
1 C-443/18, Commission v Italy  ECLI:EU:C:2019:676; hereinafter Xylella II.
2 Commission Implementing Decision (EU) 2015/789 of 18 May 2015 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al) (notified under document C(2015) 3415) OJ L 125, 21.5.2015, pp 36–53.
3 Council Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community OJ L 169, 10.7.2000, pp 1–112.
4 To tackle the spread of the pathogen, the Commission gradually intensified the necessary measures. First, with Implementing Decisions 2014/87/EU and 2014/497/EU, then with Decision 2015/789/EU (the decision here at stake).
5 At present (29 October 2019), the current version of Art 4(2) of the Decision provides for a buffer zone of a width of “at least 5km, surrounding the infected zone”.
6 Art 4(2) of the Decision.
7 Commission Implementing Decision (EU) 2015/2417 of 17 December 2015 amending Implementing Decision (EU) 2015/789 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al) (notified under document C(2015) 9191) OJ L 333, 19.12.2015, pp 143–147.
8 Commission Implementing Decision (EU) 2016/764 of 12 May 2016 amending Implementing Decision (EU) 2015/789 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al) (notified under document C(2016) 2731) C/2016/2731 OJ L 126, 14.5.2016, pp 77–84.
9 Art 4(2) of the Decision.
10 CJEU, press release no 106/19 Luxembourg, 5 September 2019, Xylella II, note 1.
12 The Decision has been further amended after 2016 by Commission Implementing Decisions 2017/2352/EU, 2018/927/EU and 2018/1511/EU.
13 Xylella II, supra, note 1, para 13.
14 See press release, supra, note 10.
15 Ismea report, Olive oil production in Italy – estimations on the 2017/2018 campaign, available at www.pianidisettore.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/144 accessed 24 November 2019.
16 See supra, note 4.
17 Namely the plan of intervention adopted under Art 1(4) of the “OCDPC 225/2015 by the Deputy Commissioner Giuseppe Silletti to face the phytosanitary risk related to the spread of Xylella fastidiosa” (Wells et al) within the territory of the Apulia region (also known as “piano Silletti”). Order n. 225/2015, Bari, 16 March 2015.
18 Regional Administrative Court of Lazio, sec. I, reference n. 780 of 22 January 2016, for a preliminary ruling to the CJEU, para 3.4.
19 Joined Cases C-78/16 and C-79/16, Pesce and Others  ECLI:EU:C:2016:428.
20 See M Pagano, “The Italian Xylella Case: The Role of EFSA in the EU Decision-making on Risk” (2017) 8(3) EJRR 599.
21 Xylella II, supra, note 1, para 19.
25 The pleas of the Commission brought before the CJEU are, of course, the same as those included in the reasoned opinion, since the substantive content of the Commission’s application file under Art 258 TFEU may not be different from the one of the reasoned opinion. On this point, see R-M Popescu, “General Aspects of the Infringement Procedure” (2010) 17(2) Lex ET Scientia Int’l Jnl 65.
26 Xylella II, supra, note 1, para 22.
32 Here Italy referred to the case law of the CJEU on infringement procedures in the field of air quality, namely to C-488/15, Commission v Bulgaria  ECLI:EU:C:2017:267.
33 Xylella II, supra, note 1, para 36.
36 EFSA PLH Panel (EFSA Panel on Plant Health), 2015 “Scientific Opinion on the risks to plant health posed by Xylella fastidiosa in the EU territory, with the identification and evaluation of risk reduction options” (2015) 13(1) EFSA Journal 262, doi: 10.2903/j.efsa.2015.3989.
37 EFSA PLH Panel (EFSA Panel on Plant Health), 2016 “Statement on treatment solutions to cure Xylella fastidiosa diseased plants” (2016) 14(4) EFSA Journal 4456, doi: 10.2903/j.efsa.2016.4456.
38 Xylella II, supra, note 1, para 39.
41 C-498/17, Commission v Italy  ECLI:EU:C:2019:243, para 35.
42 Xylella II, supra, note 1, para 50.
43 This is because the infection caused by Xylella is usually detected by analysing the leaves of the plant, which are not present during the winter.
44 Xylella II, supra, note 1, para 51.
52 C-441/02, Commission v Germany  ECLI:EU:C:2006:253, para 48.
53 Xylella II, supra, note 1, para 80.
55 Covelo de Abreu, J, “Infringement Procedure and the Court of Justice as an EU Law’s Assurer: Member States’ Infringements Concerning Failure to Transpose Directives and the Principle of an Effective Judicial Protection” in Moura Vicente, D (ed), Towards a Universal Justice? Putting International Courts and Jurisdictions into Perspective (Brill 2016) p 469Google Scholar.
56 Art 260(1) TFEU.
57 Chalmers et al, supra, note 54, p 371.
58 Communication from the Commission – Modification of the calculation method for lump sum payments and daily penalty payments proposed by the Commission in infringements proceedings before the Court of Justice of the European Union C/2019/1396 OJ C 70, 25.2.2019, pp 1–7.
59 W Vandenbruwaene et al, “Article 260 TFEU Sanctions in Multi-Tiered Member States”, (2015) 7(2) Perspectives on Federalism, E-140, available at <www.on-federalism.eu/index.php/articles/218-article-260-tfeu-sanctions-in-multi-tiered-member-states>, accessed 24 November 2019. See also Adina Apostolache, M, “The Infringement Procedure and Its Implications in Practice” (2017) 7(22)Google Scholar JL & Admin Sci 31.
60 Hedemann-Robinson, M, Enforcement of European Union Environmental Law (Routledge-Cavendish 2007) p 119Google Scholar.
61 C-653/13, Commission v Italy  ECLI:EU:C:2015:478.