OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON21 APRIL 1983 ( 1 )

Mr President,

Members of the Court,

1. The question submitted for a preliminary ruling

In the present case, the French Cour de Cassation [Court of Cassation] has requested the Court of Justice to give a preliminary ruling on the question :

“Whether the national court is empowered to regard as separated from its lees a wine which contains a percentage of lees of between 0.35% and 0.40% on the ground that according to expert evidence such a percentage is negligible.”

2. The relevant provisions of Community law and the course of the national proceedings

The question arose because Soler was in possession, for the purpose of sale, of wine which, according to the French supervisory authorities, was unfit for human consumption since it was not table wine but a product which had to be regarded as “new wine still in fermentation”. That product is defined in paragraph 8 of Annex II to Regulation

No 816/70 of the Council of 28 April 1970 (Official Journal, English Special Edition 1970 (I), p. 234) in the following terms :

“8. New wine in fermentation: wine in which alcoholic fermentation is not yet complete and which is not yet separated from its lees.”

A product which satisfies those two concurrent requirements may not, according to Article 27 (2) of Regulation No 816/70, be offered for direct human consumption but may be used for the production of wine or for distillation.

The experts appointed by the Court concluded in their report that the product in question was indeed still in fermentation but that it had been separated from its lees since the quantity of lees present in the wine cannot be regarded as normal.

At both first and second instance, the expert evidence was accepted by the Court and Soler was acquitted. The revenue authorities thereupon appealed, as civil party in the proceedings, to the Cour de Cassation on the ground that since lees were detected in the product it could not have been established that it had been separated from its lees.

For the remaining facts and the course of the proceedings I would refer the Court to the report for the hearing.

3. Points of reference for answering the question

To answer the question, it must in the first place be stated that Regulation No 816/70 does not contain any clear points of reference for resolving the question. Hence I attach considerable importance to the observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

Initially, there appeared from their observations to be a difference of opinion between the French Government and the Commission. However, in the light of their answers to the questions puţ to them by the Court, I am of the opinion that their views now largely coincide and can serve as a basis for a solution to the question referred to the Court.

In the first place, it seems to be impossible for separation from the lees to be completely achieved in the sense that no lees whatsoever remain in the wine following the process in question. That is demonstrated by what happens when a bottle of old wine is decanted. Moreover, the quantity of lees which remains present in the wine appears to depend upon the method of “separation” which is used.

Apparently, separation can be carried out by racking, by filtration or by a centrifugal process. Since no specific method is prescribed either by Community law or, as far as can be seen from the file, by national law, no assistance whatever for resolving the question can be derived from the method applied in concreto.

Moreover, the quantity of lees present in the wine appears to depend on a number of variable factors, such as the climate and the variety and state of maturity of the grape, which determine the nature of the basic product. As is stated in the report for the hearing the Commission's observations on that point include a reference to a scientific study carried out by Professor C. Cantarelli on the basis of information contained in national reports. ( 2 ) It is clear from that study that in general wine contains a percentage of lees which varies between 0.5% and 6% before it is racked for the first time.

The solution to this dispute therefore appears to lie in the establishment of a relationship between the quantity of lees found in the wine and the percentage of lees which is usually present in the wine before it is racked for the first time. That test makes it possible to establish or, as the case may be, to assume that the wine has been separated from its lees.

The requirements laid down in paragraph 8 of Annex II to Regulation No 816/70 would thus be satisfied. According to the Commission, the meaning of the provision is that only clear wine free from cloudiness may be offered to the consumer. Apparently, however, it cannot be excluded that, in exceptional cases, wine which is already regarded as table wine may begin to ferment anew and lees may be formed. It was in order to ensure that such wine was no longer classified as table wine but as new wine still in fermentation which may not be offered for consumption that the requirement that wine must be separated from its lees was adopted. Thus, table wine which starts to ferment (anew) may continue to be regarded as table wine provided that it has been separated from its lees.

4. Conclusion

To conclude, I am of the opinion that the answer to the question whether wine has been separated from its lees cannot be found by reference to Community law alone, but also depends on a number of factual circumstances which vary from case to case. In particular, it is impossible to establish a maximum percentage of lees which is applicable to every variety of wine as a guideline for determining whether the requirement that the wine must be separated from its lees has been fulfilled. In general terms, however, the percentage of lees detected in the wine raises, in my opinion, a rebuttable presumption that the requirement in question has been satisfied, if that percentage is distinctly smaller than the percentage of lees which is normally present in the variety of wine concerned before it is separated from its lees for the first time. Furthermore, the existence of a negligible percentage of lees in the wine, such as is mentioned in the question put to the Court, can always justify the assumption on the part of the court hearing the case that the requirement has been fulfilled, although it must always be possible to disprove the correctness of that assumption by evidence to the contrary. In the present case, the Court making the reference does not seek from this Court a general ruling on interpretation; it seeks merely an interpretation of Community law in respect of the negligible percentages specified in the question.

Finally, I agree in principle with the answer which was proposed by the Commission to the question referred to this Court and which is as follows :

“Wine which contains a percentage of lees of betwen 0.35% and 0.40% may be regarded as separated from its lees within the meaning of paragraph 8 of Annex II to Regulation No 816/70 (paragraph 9 of Annex II to Regulation No 337) on the common organization of the market in wine. The position would not be different unless it was shown that such percentage is the same as that contained in the wine in question at the outset.”

However, in order to provide the Cour de Cassation with a legal guideline in a more abstract form, and without expressing a definite opinion on questions which experts alone are competent to answer, I would suggest that the Court replace the words “of between 0.35% and 0.40%” in the answer proposed by the Commission with the words “which is distinctly smaller than the minimum percentage of lees which according to expert opinion is present in the wine before it is separated from its lees.” In that way the court making the reference is in my opinion provided with sufficient clarity in regard to the question concerning the extent to which, in determining whether the requirement in question has been fulfilled, it is possible to apply a rebuttable presumption based on minimum percentages of lees established by experts.

( 1 ) Translated from the Dutch.

( 2 ) ‘Produits secondaires de la vinification’, general report by Professor C. Cantarelli, Director of clic Istituto di Tecnologia Alimentare at the Università degli Studi, Milan, Bulletin of the OIV 1972, p. 947 at p. 951.