61975C0010
OPINION OF MR ADVOCATE-GENERAL MAYRAS
DELIVERED ON 8 JULY 1975 (
1
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Mr President,
Members of the Court,
Introduction
Like the Cour d'appel, Bordeaux, the Cour d'appel, Aix- en-Provence has referred to you questions for a preliminary ruling on the interpretation of the Community regulations on the market in wine.
However, the cases brought before the Cour d'appel, Aix- en-Provence, deal with prosecutions brought against traders from Marseilles who imported table wines produced in Italy into France between November 1970 and November 1971. Therefore the problems which have been raised must be examined from the point of view of intra-Community trade.
It was ascertained by analyses carried out at the request of the. Service de la répression des fraudes that certain quantities of these wines came within the presumption in law of over-alcoholization which was created by the French Decree of 19 April 1898 and re-enacted in Article 8 of the Code du vin.
As you know, my Lords, this legal rule presumes that red wines in respect of which the alcohol/reduced dry, extract ratio is in excess of a certain fixed level which is as a rule 4·6, subject to corrections which were introduced to take account of certain methods of wine-making, are over-alcoholized.
The five accused were acquitted by the Tribunal Correctionnel, Marseilles, but on appeal brought by the Fédération nationale des producteurs de vins de table et vins de pays, plaintiff claiming damages, and the Public Prosecutor, the Cour d'appel, Aix- en-Provence, considered that the result of the cases brought before them was dependent upon the interpretation of Regulation No 816/70 of the Council laying down additional provisions for the common organization of the market in wine. It requests you to rule:
1.
Whether table wines which are the subject of this regulation, must, in order to be entitled to this designation and circulate within the territory of the Member States of the Community, comply only with the rules of analysis laid down in Item 10 of Annex II to this Community regulation or, in addition, with national rules and practices.
2.
Whether Regulation No 816/70 makes the presumption in national law that table wines are over-alcoholized where the alcohol/dry extract ratio laid down by national regulations has been exceeded inapplicable to intra-Community trade.
I — The first question
The first of these questions does not in my opinion present any particular difficulty. In fact, the very wording of Article 27 (1) of Regulation No 816/70 reads: ‘the description “table wine” shall be limited to the wine defined under Item 10 of Annex II’ of this Regulation.
The provisions involved require that table wine:
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be derived exclusively from vine varieties referred to in Article 16 of the Regulation, that is, vine varieties approved for cultivation in the Community;
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be produced in the Community;
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have an actual alcoholic strength of not less than 8-5o and a total alcoholic strength not exceeding 15o, that upper limit, however being raised to 17o in respect of wines from certain wine growing areas to be determined;
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havej furthermore, a total acidity content of not less than 4-50 g/1, expressed as tartaric acid.
These requirements as to quality must however be supplemented by the provisions of Regulation No 817/70 on the mixing of fresh grapes, grape must, grape must in fermentation and new wine still in fermentation. Where only one of these products does not comply with the characteristics laid down for table wine, the wine which has been produced is not entitled to this Community designation.
In the same way, the rules on coupage laid down in Article 26 provide basically that, with certain exceptions, only products resulting from the coupage between table wines and from the coupage of table wines with wines suitable for yielding table wines shall be considered as table wines, in the Community sense.
Finally, certain oenological processes are forbidden or controlled. Those processes which are of interest to the Court in the present cases are mentioned in Articles 18 and 19 on the one hand and on the other in Article 25 of Regulation No 816/70.
The first two articles deal with the increase in the natural alcoholic strength, actual or potential, which Member States may permit where climatic conditions have made it necessary in certain wine-growing zones of the Community, according to specified methods. In particular, this increase may only be effected in accordance with the processes described in Article 19 either by adding sucrose or concentrated grape must to the fresh grapes or grape must or by partial concentration in respect of grape must or wine.
Article 25 simply prohibits the addition of alcohol to table wines.
However, it should be noted immediately that the supervision of the compliance with these provisions is not carried out by the Community authorities but falls to the competent national authorities who not only have the power but are also under a duty to ensure that these rules are observed.
The penalty for not observing these provisions consists in the fact that wine which has been the subject of prohibited practices may not be, disposed of for direct human consumption. This consequence, which already followed by implication from the original wording of the Regulation, was expressly put into words by Article 28a which was introduced by amending Regulation No 2680/72.
That being the case, whether reference is made to the characteristics of table wine enumerated in Item 10 of Annex II or to the provisions concerning certain oenological processes, there seems to me no possible doubt that the description ‘table wines’ is only governed by the provisions of Regulation No 816/70 and the supplementing regulations.
Therefore the. first question may be answered, on this point, to the effect that this description is not subject to national rules or practices.
In my opinion, the same applies to the circulation of Community table wines between the Member States. Products of the wine sector mentioned in Regulation No 816/70 may only be put into circulation within the Community if they are accompanied by a document officially checked by the national administrative authorities of the producer State. Regulation No 1022/70 of the Commission introduced accompanying certificates for certain wines, including table wines, at the time when the Italian wines in question were imported. Under the provisions of Articles 4 and 5 of this Regulation, the accompanying certificate shall be issued by a competent agency appointed by the Member State in whose territory the wine was produced. This agency must satisfy itself after analysis and organoleptic examination carried out in a laboratory or an official institute that the wine in question is of wholesome and of good merchantable quality and furthermore fulfils the requirements of Article 27 (2) (a) of Regulation No 816/70, that is, that the wine may be offered or disposed of for direct human consumption within the Community.
. Since the competent agency is responsible for verifying that these conditions have been fulfilled, it seems to me to be certain that the accompanying certificate is the only document which Member States may require to be produced in order to allow table wines which conform to the Community description and are produced in another Member State to be imported into their territory. This result, which already followed from the original version of Article 29 of Regulation No 816/70, was expressly confirmed by Regulation No 2312/71 of the Council, the second paragraph of Article 1 whereof provides: ‘For the period ending 31 August 1972 and without prejudice to national provisions on the circulation of products within a Member State, provisions may be adopted with regard to documents which must accompany the products listed in Article 1 when traded between Member States’.
This amounts to saying that although during this transitional period each State could make the circulation of wines produced on its own territory subject to conditions laid down under its own legislation, it could on the other hand only require production of the accompanying certificate prescribed by Regulation No 1022/70 in respect of wines from another Member State. However, the exact scope of this system of intra-Community trade in table wines must be laid down in detail. In this connexion, I share the view of the Commission that a distinction should be made between putting wines originating in the Community on the market within the territory of the different Member States and release of these wines for direct human consumption.
As regards the importation into the territory of an importing Member State of wine originating in another producer Member State, the accompanying certificate is the only document production of which may be required, or else the Community system laid down in Article 29 of Regulation No 816/70 would be a dead letter and the free circulation of the product would be impeded.
Compliance with this principle does not preclude an importing Member State from carrying out verification measures, in particular to satisfy itself that the imported wine may in fact be released for direct consumption.
These controls may be carried out at any stage in the marketing of the wine, whether it is in the hands of the importing trader or the retailer.
This is confirmed by Article 9 of Regulation No 1022/70 whereby Member States are requested to subject wines originating in the Community which are not allowed for direct human consumption to inspection to ascertain that they are used as prescribed.
In the same way, if the inspection of an imported wine described as ‘table wine’ by the accompanying certificate reveals that the product does not conform to the characteristics required by Regulation No 816/70 for this description, the competent authority of the importing State may and, in my opinion, must prohibit it from being released for direct consumption. But on the other hand, it may not prohibit it from being imported into its territory.
Therefore on the second point, this leads me to reply to the first question of the national court that free circulation of table wines between Member States is only subject to the requirements of Community law and not to domestic rules or practices.
II — The second question
The second question raises more delicate problems. It questions the system of the presumption in law of over-alcoholization which was created by French legislation and it inquires whether this presumption is still applicable to intra-Community trade in table wines.
In fact, the question is whether the application of this system of a presumption in law constitutes an obstacle to this trade.
But this presumption, which is based on the finding that the proportion of the alcoholic strength to the reduced dry extract of the wine is in excess of a specific figure, cannot on the one hand be divorced from the method used on the national level to ascertain this proportion, called the 100o method, and on the other from the conditions under which evidence in rebuttal may in fact be brought.
I shall therefore examine three questions in turn:
1.
May Member States apply national legislation in order to control and ensure compliance with Community law concerning oenological processes and rules of analysis? In this connexion, is a measure of control based on a presumption in law of over-alcoholization compatible with Community law?
2.
Supposing that this is so, is the use of the 100o method which is employed nationally to find the alcohol/reduced dry extract ratio prohibited by Regulation No 1539/71 of the Commission determining Community methods for the analysis of wines?
3.
Do the actual circumstances in which evidence to the contrary, enabling the presumption in law to be rebutted must be brought where wines are produced in a Member State other than France not have the effect of creating an impediment to intra-Community trade and do they not render the rule of the presumption irrebuttable so that its application constitutes a measure having an effect equivalent to a quantitative restriction?
1.
In the first place, there seems to me to be no doubt that Member States are not only entitled, but are also under a duty, to adopt all measures of control calculated to ensure compliance with Community rules and to detect and prevent fraudulent practices resulting from prohibited oenological processes. This obligation follows expressly, in particular as regard the processes of enriching wine, from Article 9 of Regulation No 1594/70 of the Commission whereby: ‘Pending the adoption of Community provisions in this matter, Member States shall take all necessary measures to ensure that the provisions relating to enriching, acidifying and deacidifying are observed. They shall inform the Commission of these measures without delay’.
The obligation is expressed more generally by Article 39a of Regulation No 816/70: ‘Member States shall take all appropriate measures to ensure compliance with this Regulation’.
Although this provision was added to the original version by Regulation No 2680/72 of 27 (sic) December 1972 it is in my opinion interpretive in nature and only confirms a principle which was already inherent in the system laid down in Regulation No 816/70. The Commission moreover does not have at its disposal any means for implementing these provisions which would enable it to take upon itself this task of verification, and it can at the most provide that Member States must use certain methods or rules to carry this out.
But as we shall see, the Community rules are far from being exhaustive on this point Here also I agree with the Commission that as a verification measure, the presumption of over-alcoholization which follows when certain limits of the alcohol/reduced dry extract ratio are exceeded may be applied by a Member State to ascertain whether a wine has been enriched in irregular circumstances.
Basically, the rule of the presumption of over-alcoholization is not incompatible with Community law.
On the other hand, there is no doubt that Member States may not, even to control wines, apply measures which in intra-Community trade would constitute measures having an effect equivalent to quantitative restrictions. The French system of the presumption of over-alcoholization is based on certain values of the alcohol/dry extract ratio which if exceeded cause this presumption to apply. The way in which these values are fixed may constitute an essential factor of such a nature as in fact to affect intra-Community trade in so far as, taking account essentially of national climatic conditions or national methods of wine making, it might lead to the creation of a disadvantage for wines produced in other Member States. As you know, Article 8 of the Code du vin fixes the maximum value of the alcohol/dry extract ratio at 4·6 in respect of red wine. But you were told in the oral proceedings that, taking account for example of climatic factors, a wine produced below a certain latitude may produce a ratio in excess of that limit.
In the same way, it was maintained that the values set by the French rules are no longer suited to modern methods of rapid wine-making which, by reducing the quantity of the deposits of certain substances in wine, have a considerable influence on the alcohol/dry extract ratio.
Indeed, it would no doubt be possible to say in reply to these two arguments, as the representative of the French Government made sure to do, that on the one hand the values adopted for the purposes of applying the presumption are no less valid in respect of wines produced in the southern regions of the Community than they were in respect of those originating in North Africa, to which the French system was effectively applied for a very long time. It could also be claimed that the French system is flexible in its application since the limit of 4·6 may, by virtue of a circular from the Minister of Agriculture in 1965, be revised upwards according to the permanganate level to take account of certain methods of wine-making. Above all, we are told, the presumption is in no way irrebuttable. The authorities have taken care to relax and adapt both these methods of application and the means whereby evidence in rebuttal may be brought.
But, my Lords, that is a technical dispute about which you will not be able to come to a decision. For my part, I shall merely point out that the presumption as such is a national means of control which the Community rules do not at present prohibit and that the maximum value of the alcohol/reduced dry extract ratio must be fixed and applied so that there is no discrimination between home-produced wines and wines originating in other Member States as a result, failing which the operation of the presumption might constitute an obstacle to intra-Community trade.
2.
Although it was not formally raised by the Cour d'appel, Aix- en-Provence, in my opinion it is necessary to raise the problem of the method whereby the alcohol/reduced dry extract ratio of a wine may be sought in order to reach a decision on whether the presumption is applicable.
For, my Lords, the question is whether the system in law of the presumption of over-alcoholization, which is not per se incompatible with the Community rules in the abstract, may be applied in practice.
If on the one hand it is true that the 100o method used to detect the fraudulent practice constituted by over-alcoholization is certainly the only one which enables the alcohol/reduced dry extract ratio to be ascertained and, on the other, as the parties in the main action, the French Government and the Commission state, it is impossible to transpose the results obtained by the method in question and those produced by the densimeter method, then it must be enquired whether the 100o method is permissible Under the Community rules. If the answer is in the negative, then recourse to the presumption would have to be considered to be quite simply ineffective, if not useless.
Regulation No 1539/71 of the Commission laid down Community methods for the analysis of wines. According to the preamble to this regulation, these methods must be compulsory for all commercial transactions and all verification procedures. This is at least the objective stated. But the question is what verification this is and for what purpose it is designed.
The field of application of the Regulation of the Commission can clearly not be wider than that of Regulation No 816/70. However, although this basic regulation lays down rules for or prohibits certain oenological processes, though not exhaustively, it does not touch the problem of the detection and control of fraudulent practices. Article 39a thereof, which was added by Regulation No 2680/72 to the original regulation, gives the Member States, as we have seen, jurisdiction to take all appropriate measures to ensure compliance with the provisions which it prescribes. In addition, Article 39a provides that it falls to the Council itself to adopt at the Community level measures designed to ensure uniform application of the provisions of the regulation especially as regards verification.
But the basic regulation itself did not establish any Community system of detection and verification of fraudulent practices. Consequently, Regulation No 1539/71 only deals with the methods of analysis intended to verify the material properties and the constituents of Community wines; it cannot be interpreted as defining the methods for the detection and prevention of fraudulent practices in wine-making.
The regulation in question also expressly refers to the methods formulated under the 1954 International Convention for the Unification of Methods for the Analysis and Appraisal of Wines for the application of the methods of analysis which it lists.
But these international methods do not aim to investigate fraudulent practices and adulteration. They were only drawn up for the purpose of ascertaining the constituents of wines. This is the reason why, although the annex to the regulation of the Commission provides that the total dry extract should be determined by the densimeter method which only enables the total amount of the constituents of the wine to be identified, on the other hand there is no method laid down therein which makes it possible to ascertain the alcohol/reduced dry extract ratio, which alone enables the fraudulent practice of over-alcoholization to be detected.
Moreover, in its reply on 29 May 1974 to a written question in the European Parliament, the Commission itself acknowledged that there is a gap in Community law in the sphere of the control of fraudulent practices since it states therein its intention to propose to the Council on the basis of Article 39a of Regulation No 816/70 provisions laying down common methods or rules to detect breaches of the rules on oenological processes. This proves, on the one hand, that it acknowledges that it has no power to lay down common methods of control and on the other that the methods of analysis laid down in Regulation No 1539/71 are on another subject or are not in any case sufficient to detect fraudulent practices.
In addition, on 31 October 1974, the Commission replied to another written question concerning the case brought before a national court, or a similar case, that ‘as regards the establishment of an effective system for preventing breaches of Community law’ it was working out draft ‘common rules’ in conjunction with the Member States ‘on the prevention of breaches committed by individuals in areas which are the subject of Community regulations, directives and decisions’.
Accordingly, my Lords, I consider that Regulation No 1539/71 of the Commission which does not deal with all methods whereby the constituents of wine may be ascertained does not prohibit the use of the 100o method under national rules for the prevention of fraudulent practices.
It remains, my Lords, for me to give my views, in the alternative however, on the question whether the presumption created by the Code du vin may have harsher consequences for French traders who import Community wines than for domestic producers.
This presumption is not irrebuttable in law since Article 8 permits those concerned to bring evidence to the contrary, that is, to show by a comparison of the various constituent elements of the wine, its taste, the conditions of its production and its place of origin that that wine results exclusively from the fermentation of fresh grapes.
It was claimed before the Court that the obligation thus imposed on traders brought about a restriction on the freedom of Community trade in so far as it is in practice particularly difficult for those concerned to put forward this evidence in respect of imported wines.
The Cour d'appel, Aix- en-Provence also seems to be of this view and it deduces from this that there therefore exists serious doubt as to the compatibility with the Community rules of the French system of the presumption of over-alcoholization.
But, my Lords, it is not for the Community Court, at least when a matter is referred to it under Article 177 of the Treaty, to commit itself to this evaluation of the matter which concerns not only the interpretation but the actual application of national law.
As you held in a judgment of 23 January 1975 in the Hulst case (51/74 [1974] ECR 92) in the context of proceedings brought under Article 177 of the Treaty, the Court may not give a ruling on such a point which, like any other assessment of the facts involved, is a matter for assessment by the national court.
I shall merely state for my part that to be lawful, recourse to a system of presumption must be had in accordance with the following conditions:
1.
The Service de la répression des fraudes ought, when comparing the results of the analyses with the specifications required, to take into consideration the margins allowed, having regard in particular to the place of origin of the wines;
2.
The decisions of this department should be able to be effectively contested by those concerned, whether wine-producers or traders;
3.
The right to carry out a fresh analysis ought to be reserved;
4.
Finally, the practical means of bringing evidence in rebuttal should be equally accessible to all parties without distinction.
Such would not be the case if these means were more difficult to use for traders in table wine imported and regularly put into circulation in a Member State, than for producers of or traders in nationally-produced table wines (Judgment of 11 July 1974Dassonville, Case 8/74 [1974] ECR 852).
Accordingly, if the method upon which the presumption is based or if the operation of the system of the presumption in law, taking account of the burden of bringing evidence in rebuttal, could have a discriminatory effect or an effect equivalent to a quantitative restriction, it would fall, where appropriate, to the Commission to set in motion the procedure for establishing that the State concerned has failed to fulfil an obligation, or to the national courts, subject to having recourse to Article 177, to protect the rights of the traders in question.
It seems to me impossible for the Court to take the place of these authorities in the context of these proceedings.
I conclude that you should rule that:
1.
In order to obtain the benefit of the Community designation ‘table wines’, wines which are the subject of Regulation No 816/70 of the Council need only comply with the standards of analysis laid down in Item 10 of Annex II to that regulation;
2.
To be allowed to circulate freely between Member States, moreover, these wines need only be accompanied by the document called the ‘accompanying certificate’ which was introduced by Regulation No 1022/70 of the Commission when the table wines originating in Italy which are in question in these cases were imported into France.
3.
To be released for direct human consumption within the territory of a Member State, a table wine must fulfil the requirements of the rules of that State on the verification and prevention of fraudulent practices; in this respect neither Regulation No 816/70 of the Council nor the implementing regulations issued thereunder prohibit a Member State from applying for this purpose a presumption of over-alcoholization based on the alcohol/reduced dry extract ratio;
4.
Regulation No 1539/71 of the Commission does not rule out the use of the 100o method of analysis to find this ratio;
5.
The application of the presumption in national law of over-alcoholization must not, in particular having regard to the upper and lower limits fixed for the alcohol/reduced dry extract ratio and to the requirements for the admission of evidence in rebuttal, lead to actual discrimination between traders or constitute a measure having an effect equivalent to a quantitative restriction.
(
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)	Translated from the French.