Judgment;Summary — ECLI:EU:C:2024:393
Date: 2024-05-08
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Agriculture and Fisheries;Approximation of laws;Wine
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-216/23 – 1 
Case C-216/23 
Request for a preliminary ruling 
Date lodged: 
4 April 2023 
Referring court: 
Bayerischer Verwaltungsgerichtshof (Germany) 
Date of the decision to refer: 
23 March 2023 
Applicant: 
Hauser Weinimport GmbH 
Defendant: 
Freistaat Bayern 
  
[…] 
Bayerischer Verwaltungsgerichtshof 
(Bavarian Administrative Court) 
 
In the administrative-law case of  
Hauser Weinimport GmbH,  
[…] Fischach, 
- applicant - 
[…] 
v 
Freistaat Bayern, 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 23. 3. 2023 – CASE C-216/23 
 
2  
- defendant - 
concerning 
the law on foodstuffs; 
at this instance: appeal by the applicant against the judgment of the Bayerisches 
Verwaltungsgericht Augsburg (Bavarian Administrative Court, Augsburg) of 
21 September 2020, 
the Bayerisches Verwaltungsgerichtshof (Bavarian Administrative Court), 20th 
Chamber, 
[…] 
on 23 March 2023, adjudicating without a hearing, makes the following 
Order: 
1. This Chamber refers the following questions to the European Court of 
Justice for a preliminary ruling under Article 267 TFEU: 
a.) Is Article 3(4)(c) of Regulation (EU) No 251/2014 to be interpreted as 
meaning that the term ‘alcohol’ also includes a drink which contains alcohol 
and is not a grapevine product within the meaning of Article 3(4)(a) of 
Regulation (EU) No 251/2014? 
b.) Does ‘added’ within the meaning of Article 3(4)(c) of Regulation (EU) 
No 251/2014 mean that the alcoholic strength of the end product must have 
increased by comparison with the grapevine product used in accordance with 
Article 3(4)(a) of Regulation (EU) No 251/2014? 
c.) If Question a.) is answered in the affirmative, is the first sentence of 
Article 3(1) of Regulation (EU) No 251/2014, read in conjunction with 
Annex I(1)(b)(ii) thereto, to be interpreted as meaning that the term 
‘flavouring foodstuff’ includes an alcohol-containing drink within the 
meaning of Question a.)? 
2. The proceedings are stayed pending the decision of the European Court of 
Justice on the questions referred for a preliminary ruling […]. 
Grounds: 
1 At issue between the parties to this dispute is whether the applicant may describe 
the product which it manufactures and markets as an ‘aromatised wine-product 
cocktail’ within the meaning of Article 3 of Regulation (EU) [No] 251/2014 of the 
European Parliament and of the Council of 26 February 2014, as amended by 
Regulation (EU) 2021/2117 of the European Parliament and of the Council of 
2 December 2021. 
HAUSER WEINIMPORT 
 
3 
2 1. According to the information provided by the applicant itself and not disputed 
by the defendant […], the applicant manufactures an alcoholic mixed drink which 
consists of 55% wine and 10% beer, with an alcohol content of 5.5%, and is 
flavoured with elderflower. It marketed that drink under the description 
‘aromatised wine-product cocktail’. The defendant objected to this on the ground 
that, in its view, the beer added to the drink is ‘alcohol’ within the meaning of 
Article 3(4)(c) of Regulation (EU) No 251/2014, which may not be added to a 
drink described as an ‘aromatised wine-product cocktail’. The applicant is of the 
opinion that alcohol within the meaning of Article 3(4)(c) of Regulation (EU) 
No 251/2014 is to be construed as referring only to the alcohol mentioned in 
Annex I(3), since the addition of alcohol within the meaning of Article 3 of 
Regulation (EU) No 251/2014 must lead to an increase, rather than – as in the case 
of the applicant’s product – a reduction, in the alcohol already present in the wine. 
In any event, however, beer is a flavouring ingredient within the meaning of 
Annex I(1)(b)(ii) to Regulation (EU) No 251/2014, with the result that the 
description ‘aromatised wine-product cocktail’ may be used even in the event that 
beer is regarded as alcohol within the meaning of Regulation (EU) No 251/2014. 
3 2. The request for a preliminary ruling concerns the interpretation of 
Article 3(4)(c) of Regulation (EU) No 251/2014 of the European Parliament and 
of the Council of 26 February 2014 on the definition, description, presentation, 
labelling and the protection of geographical indications of aromatised wine 
products and repealing Council Regulation (EEC) No 1601/91, as amended by 
Regulation (EU) No 2021/2117 of the European Parliament and of the Council of 
2 December 2021. 
4 a.) The provisions relevant to the adjudication of the dispute are Article 3(4)(c) of 
Regulation (EU) No 251/2014, as amended by Regulation (EU) No 2021/2117 of 
the European Parliament and of the Council of 2 December 2021, and 
Paragraph 25(1), point 1, read in conjunction with Paragraph 49, point 4, of the 
German Weingesetz (Law on Wine) (‘WeinG’), read in conjunction with 
Article 7(1)(a) of Regulation (EU) No 1169 of the European Parliament and of the 
Council of 25 October 2011, read in conjunction with Article 2(2) and Article 1(2) 
of Regulation (EU) No 251/2014. 
5 b.) The national provisions are worded as follows: 
6 Paragraph 25 of the WeinG (‘Weingesetz (Law on Wine), in the version set 
forth in the notice of 18 January 2011 (BGBl. I p. 66), as last amended by 
Article 2(4) of the Law of 20 December 2022 (BGBl. I p. 2752’) – Prohibitions 
to protect against deception 
7 (1) It is prohibited, as a responsible operator for the purposes of Article 8(1) of 
Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 
25 October 2011 on the provision of food information to consumers, amending 
Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European 
Parliament and of the Council, and repealing Commission Directive 87/250/EEC, 
REQUEST FOR A PRELIMINARY RULING OF 23. 3. 2023 – CASE C-216/23 
 
4  
Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 
2000/13/EC of the European Parliament and of the Council, Commission 
Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) 
No 608/2004 (OJ 2011 L 304, p. 18; OJ 2011 L 331, p. 41; OJ 2015 L 50, p. 48; 
OJ 2016 L 266, p. 7), as last amended by Regulation (EU) 2015/2283 (OJ 2015 
L 327, p. 1), to place on the market or to advertise generally or individually a 
product containing information on products that does not meet the requirements of  
1. 
8 Article 7(1) of Regulation (EU) No 1169/2011, read in some cases in conjunction 
with Article 7(4) thereof, 
[…]. 
9 Paragraph 49 of the WeinG – Criminal provisions  
10 Anyone who […] 
4. places on the market or advertises a product in contravention of 
Paragraph 25(1) […] 
shall be liable to a custodial sentence not exceeding one year or a monetary 
penalty. 
11 c.) National case-law: 
The Verwaltungsgericht Trier (Administrative Court, Trier), by judgment of 
18 April 2019, held that a fruit wine added to a grapevine product must be 
classified as a flavouring foodstuff for the purposes of Annex I(1)(b)(ii) to 
Regulation (EU) No 251/2014 and that that product does not constitute alcohol for 
the purposes of Article 3(4)(c) of Regulation (EU) No 251/2014 (VG Trier 
(Administrative Court, Trier), judgment of 18 April 2019 – 2 K 6133/18.TR). The 
Verwaltungsgericht Augsburg (Administrative Court, Augsburg), by judgment of 
21 September 2020 (VG Augsburg (Administrative Court, Augsburg), judgment 
of 21 September 2020 – Au 9 K 20.597), which this Chamber allowed to be 
appealed, held that no (further) alcohol-containing drink may be added to a drink 
which is intended to carry the description ‘aromatised wine-product cocktail’. 
12 So far as this Chamber is able to tell, the higher German courts have not 
established any case-law on this question. 
13 4. On the basis of the product composition chosen by the applicant, the questions 
referred for a preliminary ruling are relevant to the decision to be given because 
the applicant may describe the product in question as an ‘aromatised wine-product 
cocktail’ only if the beer contained in it either is not to be regarded as alcohol 
within the meaning of Article 3(4)(c) of Regulation (EU) No 251/2014 or, if it 
HAUSER WEINIMPORT 
 
5 
were to be regarded as such, is to be regarded as a flavouring ingredient within the 
meaning of Annex [I](1)(b)(ii) to that regulation. 
14 5. The questions referred for a preliminary ruling need to be answered by the 
Court of Justice because this Chamber cannot dispose of the issue relevant to the 
decision to be given on this dispute with the necessary clarity and a binding 
interpretation by the Court of Justice of the provision crucial to the adjudication of 
the case is necessary to enable it to settle the dispute. 
15 The part of the provision relevant to the dispute reads: ‘(Aromatised wine-product 
cocktail is a drink: …) to which no alcohol has been added’ (Article 3(4)(c) of 
Regulation (EU) No 251/2014). 
16 a.) Clarification is required in relation to the question as to whether ‘alcohol’ 
refers only to the alcohol defined in Annex I(3) to Regulation (EU) No 251/2014 
as being that which may not be added to a cocktail – which would not include 
beer, as this does not meet the criteria set out there – or whether alcohol within the 
meaning of the provision [relevant to the adjudication of the dispute] refers to any 
alcohol already present in an added drink which is not itself a grapevine product 
within the meaning of Article 3(4)(a), inasmuch as such alcohol does not fulfil the 
criteria set out in Annex I(3) and for that reason alone may not be added to drinks 
within the category of aromatised wine-based drinks (Article 3(1) of Regulation 
(EU) No 251/2014). Support for that view – it being irrelevant whether or not the 
food business operator intends to increase the alcoholic strength of the drink – 
might be found in the need, for reasons of clarity for the market and consumers, 
for it to be made readily apparent that, in order to be described as an aromatised 
wine product for the purposes of Article 3 of Regulation (EU) No 251/2014, such 
a product, in addition to the alcohol contained in the grapevine product itself, may 
entail the use only of alcohol within the meaning of Annex I(3) to Regulation 
(EU) No 251/2014, but not the use of any other alcoholic drinks. 
17 b.) This Chamber – unlike the lower court – inclines to the position that the beer 
used in this instance, with an alcohol content of 5.5% vol, is not to be regarded as 
alcohol within the meaning of the provision relevant to the adjudication of the 
dispute. This emerges from the following considerations: 
18 aa.) The verb ‘versetzen’ 1 [used in the German-language version of 
Article 3(4)(c) of Regulation (EU) No 251/2014] probably has the same meaning 
as the substantive form ‘Zusatz’ (‘addition’ in English) used in Annex I(3) to 
Regulation (EU) No 251/2014[,] and therefore almost certainly means ‘zusetzen’ 
in the sense of ‘hinzüfugen’ (‘to add’ in English). This follows from a comparison 
with the French-language version of Regulation (EU) No 251/2014, which uses 
the term ‘l’addition’ (in German: ‘Zugabe’, ‘Zusatz’; in English: ‘addition’) in 
Article 3 and ‘l’adjonction’ (in German: ‘Hinzufügung’; in English: ‘addition’) in 
 
1 N.d.t: the ambiguity of the verb ‘versetzen’ only concerns the German-language version of 
Regulation (EU) No 251/2014. 
REQUEST FOR A PRELIMINARY RULING OF 23. 3. 2023 – CASE C-216/23 
 
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Annex I(3)[,] and with the English version, which [uses] the expression ‘to which 
no alcohol has been added’ (‘to add’: ‘hinzufügen’ in German) in Article 3 of 
Regulation (EU) No 251/2014 and ‘addition of alcohol’ (‘addition’: ‘Zusatz’ in 
German) in Annex I(3). In the sense in which it is used in the present context of 
foodstuffs, the German term ‘versetzen’ means ‘vermischen’ (‘und dadurch in der 
Qualität mindern’) (‘to mix’ (‘and thereby to reduce the quality of’)) (source: 
Duden). In the light of the French- and English-language versions of Regulation 
(EU) No 251/2014, and the use of the term ‘Zusatz’ (‘addition’ in English) in [the 
German-language version of] Annex I(3) to Regulation (EU) No 251/2014, this 
Chamber inclines to the view that ‘versetzen’ properly means ‘zusetzen’ in the 
sense of ‘hinzüfugen’ (‘to add’ in English) here. The [German-language version of 
the] provision requiring interpretation thus stipulates that no alcohol within the 
meaning of Annex I(3) may be added to a drink described as an ‘aromatised wine-
product cocktail’. 
19 bb.) In the view of this Chamber, ‘alcohol’ within the meaning of Article 3(4)(c) 
is almost certainly to be construed as referring only to alcohol as defined in 
Annex I(3) to Regulation (EU) No 251/2014, since only the addition of the types 
of alcohol referred to in the latter provision to one or more of the grapevine 
products mentioned in Article 3(4)(a) would be likely to lead to an increase in the 
alcoholic strength of the drink. Alcohol-containing drinks with a lower alcohol 
strength than the grapevine product reduce the alcohol strength of the original 
product (in accordance with Article 3(4)(b) of Regulation (EU) No 251/2014, the 
grapevine products referred to in point (a) must represent at least 50% of the total 
volume) and are therefore incapable, from a linguistic point of view alone, of 
fulfilling the condition that alcohol must be ‘added’ (and must therefore represent 
a greater proportion of the total content of the drink). It is for this reason that the 
provision at issue here also provides that the actual alcoholic strength by volume 
of the end product must be between 1.2% vol. and 10% vol., and, thus, must not or 
not significantly exceed the alcoholic strength by volume of the grapevine product 
forming the basis of the drink (between 9% vol. and 14% vol. in the case of wine) 
(the position being otherwise, however, in the case of aromatised wines, the actual 
alcoholic strength by volume of which must be between 14% vol. und 22% vol., 
according to Article 3(2)(g) of Regulation (EU) No 251/2014). 
20 cc.) The second subparagraph of Article 4(2) of Regulation (EU) No 251/2014 
provides that, in establishing the authorised production processes referred to in the 
first subparagraph thereof, the Commission must take into account the production 
processes recommended and published by the OIV (International Organisation of 
Vine and Wine). Resolution OIV/ECO 288/2010 listed as treatments in Part I, 
Chapter 6 (Products derived from grapes, grape must or wine), points 6.6 
(Beverages based on vitivinicultural products) and 6.7 (Wine-based beverages), of 
the International Code of Oenological Practices, inter alia: the ‘addition of food-
related products or non-alcoholic products or beverages including water’. Since 
Regulation (EU) No 251/2014 makes reference to the production processes 
recommended and published by the OIV and the addition of non-alcoholic drinks 
is expressly provided for there, it is not clear why the text of the Regulation, 
HAUSER WEINIMPORT 
 
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instead of stipulating at the point concerned that only alcohol-free drinks may be 
added, uses the expression ‘to which no alcohol has been added’, if the legislature 
wished to ensure that no alcoholic drinks whatsoever should be permitted to be a 
component of an ‘aromatised wine-product cocktail’. 
21 dd.) According to recital 4 of Regulation (EU) No 251/2014, the measures 
applicable to aromatised wine products should contribute to the attainment of a 
high level of consumer protection, the prevention of deceptive practices and the 
attainment of market transparency and fair competition. On that basis, the 
informed average consumer is likely to expect an alcohol-containing drink 
described as a ‘cocktail’ to contain a mixture of various alcohol-containing drinks, 
as long as it is not labelled as being alcohol-free. What is more, the protection of 
consumers and marketing which the Regulation was intended to ensure is more 
apparent in the case of the categories of ‘aromatised wines’ and ‘aromatised wine-
based drinks’, the descriptions of which are closely associated with traditional 
production processes (‘vermouth’, Annex II(A)(3); ‘sangria’, Annex II(B)(3))[,] 
than in the case of drinks marketed under the term ‘aromatised wine-product 
cocktails’, because the Regulation does not classify as such any products known 
and described by reference to traditional production processes (Annex II(C)). 
22 6. In the event that, because of its alcohol content, the beer used in this instance 
were to constitute ‘alcohol’, within the meaning of Regulation 251/2014, which 
may not be added to an aromatised wine-based drink, this Chamber wishes to 
ascertain whether beer may be added to an aromatised wine-product cocktail, 
within the meaning of the Regulation, as a ‘flavouring foodstuff’ within the 
meaning of Annex I(1)(b)(ii) to Regulation (EU) No 251/2014, or whether its 
alcohol content precludes such an understanding. In Germany, there are numerous 
beer-flavoured foodstuffs on the market. As the research which this Chamber 
conducted before making the request for a preliminary ruling has shown, beer 
flavouring as a baking ingredient can be purchased and added to food. To this 
extent, this Chamber is in no doubt that beer is a flavouring foodstuff within the 
meaning of the Regulation. 
23 This order is final […]. 
[…]