OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 2 September 2021 ( 1 )

Case C‑86/20

Vinařství U Kapličky s.r.o.

v

Státní zemědělská a potravinářská inspekce, ústřední inspektorát

(Request for a preliminary ruling from the Krajský soud v Brně (Regional Court, Brno, Czech Republic))

(Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Wine – Regulation (EU) No 1308/2013 – Rules concerning marketing – Article 80 – Oenological practices – Article 90 – Imports of wine – Regulation (EC) No 555/2008 – Article 43 – Document V I 1 – Certificate – Regulation (EU) No 1306/2013 – Article 89 – Penalties – Marketing of wine from a third country – Wine having undergone unauthorised oenological practices – Exoneration from liability – Effective and dissuasive penalties)

I. Introduction

1. This request for a preliminary ruling has been made in proceedings between Vinařství U Kapličky s. r. o., a Czech company, and the Státní zemědělská a potravinářská inspekce, ústřední inspektorát (Central Inspectorate of the National Agriculture and Food Inspection Authority, Czech Republic; ‘the central inspectorate’) in relation to a fine imposed on that company for putting into circulation consignments of Moldovan wine which had undergone oenological practices not authorised by EU law.

2. The request relates, essentially, to the interpretation of Regulation (EU) No 1308/2013 ( 2 ) and Regulation (EC) No 555/2008. ( 3 ) It concerns, first, the issue of the relevance of the documents, drawn up by a body of the third country from which the abovementioned consignments of wine originate, certifying that the wine conforms to the oenological practices authorised by EU law at the time of its importation, in the examination of the liability of a wine merchant who does not comply with those oenological practices, and second, the issue of whether EU law precludes national legislation under which a person may avoid liability for putting into circulation consignments of wine imported from a third country, having undergone oenological practices not authorised by EU law, where the national authorities are unable to rebut the ‘presumption of conformity’ arising by virtue of the V I 1 document, under which the consignments of wine are presumed to conform with oenological practices authorised by EU law.

II. Legal background

A. EU law

1. Rules on oenological practices: Regulation No 1308/2013

3. As can be seen from Article 1(1) of Regulation No 1308/2013, that regulation establishes a common organisation of the markets for agricultural products, including wine. ( 4 )

4. Recitals 4 and 71 of Regulation No 1308/2013 state: ‘(4) It should be clarified that Regulation (EU) No 1306/2013 ( 5 ) … and the provisions adopted pursuant to it should in principle apply to the measures set out in this Regulation. In particular, Regulation [No 1306/2013] lays down provisions guaranteeing compliance with obligations laid down by provisions relating to the [common agricultural policy (CAP)], including checks and the application of administrative measures and administrative penalties in case of non-compliance, and rules related to the lodging and releasing of securities and the recovery of undue payments. … (71) Marketing standards should apply to enable the market to be easily supplied with products of a standardised and satisfactory quality, and in particular should relate to technical definitions, classification, presentation, marking and labelling, packaging, production method, conservation, storage, transport, related administrative documents, certification and time limits, restrictions of use and disposal.’

5. Title II of Regulation No 1308/2013 includes, in Chapter I, which contains Articles 73 to 123, the rules concerning marketing. Article 80, which is headed ‘Oenological practices and methods of analyses’, provides: ‘1. Only oenological practices authorised in accordance with Annex VIII and provided for in point (g) of Article 75(3) and in Article 83(2) and (3) shall be used in the production and conservation of the products listed in Part II of Annex VII [ ( 6 )] in the Union. … Authorised oenological practices shall only be used for the purposes of ensuring proper vinification, proper preservation or proper refinement of the product. Products listed in Part II of Annex VII shall be produced in the Union in accordance with the rules laid down in Annex VIII. [ ( 7 )] 2. Products listed in Part II of Annex VII shall not be marketed in the Union if: (a) they have undergone unauthorised Union oenological practices; (b) they have undergone unauthorised national oenological practices; or (c) they do not comply with the rules laid down in Annex VIII. …’

6. Article 90 of Regulation No 1308/2013, which is headed ‘Special provisions for the imports of wine’, reads as follows: ‘1. Save as otherwise provided for in international agreements concluded in accordance with the [FEU] Treaty, the provisions concerning designation of origin and geographical indications and labelling of wine set out in Section 2 of this Chapter, and the definitions, designations and sales descriptions referred to in Article 78 of this Regulation shall apply to products imported into the Union and falling within CN codes 200961, 200969 and 2204. [ ( 8 )] 2. Save as otherwise provided for in international agreements concluded in accordance with the [FEU] Treaty, products referred to in paragraph 1 of this Article shall be produced in accordance with oenological practices authorised by the Union pursuant to this Regulation or, prior to the authorisation pursuant to Article 80(3), produced in accordance with oenological practices recommended and published by the [International Organisation of Vine and Wine (OIV)]. 3. The import of the products referred to in paragraph 1 shall be subject to the presentation of: (a) a certificate evincing compliance with the provisions referred to in paragraphs 1 and 2, drawn up by a competent body, included on a list to be made public by the Commission, in the product’s country of origin; (b) an analysis report drawn up by a body or department designated by the product’s country of origin, if the product is intended for direct human consumption.’

2. Rules on documentation concerning imports of wine into the European Union

(a) Regulation No 555/2008

7. As is apparent from Article 1(1) of Regulation No 555/2008, ( 9 ) that regulation lays down implementing rules concerning the application of the provisions of Regulation (EC) No 479/2008 ( 10 ) concerning the common organisation of the market in wine, particularly as regards trade with third countries (Title IV).

8. Recital 40 of Regulation No 555/2008 states: ‘The certificate and, where appropriate, the analysis report relating to each consignment of an imported product should be checked in order to prevent fraud. To this end, the document(s) must accompany each consignment until it is placed under Community control.’

9. Title III of that regulation, which contains Articles 38 to 54, governs trade with third countries. Within Chapter II of that Title, which is headed ‘Certificates and analysis reports for wine, grape juice and must on import’, Article 40 of the regulation, headed ‘Documents required’, provides: ‘The certificate and the analysis report referred to in Article 82(3)(a) and (b), respectively, of Regulation [No 479/2008 ( 11 )] shall form a single document: (a) the “certificate” part of which shall be made out by a body of the third country from which the products [come]; (b) the “analysis report” part of which shall be made out by an official laboratory recognised by the third country from which the products [come].’

10. Article 41 of Regulation No 555/2008, which is headed ‘Contents of the analysis report’, provides: ‘The analysis report shall include the following information: (a) in the case of wines and grape must in fermentation: (i) the total alcoholic strength by volume; (ii) the actual alcoholic strength by volume; (b) in the case of grape must and grape juice, the density; (c) in the case of wines, grape must and grape juice: (i) the total dry extract; (ii) the total acidity; (iii) the volatile acid content; (iv) the citric acid content; (v) the total sulphur dioxide content; …’

11. Within Section 2 of Title III, Chapter II of the regulation, which is headed ‘Requirements to be met and detailed rules for drawing up and using the certificate and analysis report for imports of wine, grape juice and grape must’, Article 43 of the regulation, headed ‘V I 1 document’, provides, in paragraph 1: ‘The certificate and analysis report for each consignment intended for import into the Community shall be drawn up on a single V I 1 document. The document referred to in the first subparagraph shall be drawn up on a V I 1 form corresponding to the specimen shown in Annex IX. It shall be signed by an officer of an official body and by an official of a recognised laboratory as referred to in Article 48.’

12. Article 44 of that regulation, which is headed ‘Description of documents’, reads as follows: ‘1. V I 1 forms shall comprise a typed or handwritten original and a simultaneously produced copy, in that order. 2. The V I 2 form shall be an extract made out in accordance with the specimen shown in Annex X, containing the data appearing on a V I 1 document or another V I 2 extract and stamped by a Community customs office. V I 2 forms shall comprise an original and two copies, in that order. 3. V I 1 documents and V I 2 extracts shall comply with the technical rules set out in Annex XI. 4. Both the original and the copy shall accompany the product. V I 1 and V I 2 forms must be completed either in typescript or by hand, or by equivalent technical means recognised by an official body. Handwritten forms shall be completed in ink and in capital letters. No erasures or overwriting shall be permitted. Any alterations shall be made by crossing out the incorrect particulars and, where appropriate, adding those required. Any change made in this way must be approved by its author and stamped, as the case may be, by the official agency, the laboratory or the customs authorities. …’

13. Article 47 of the regulation, which is headed ‘Use’, provides, in paragraph 1: ‘The original and the copy of V I 1 documents or V I 2 extracts shall be handed over to the competent authorities of the Member State in which the customs formalities required for putting into free circulation the consignment to which they relate are carried out, on completion of those formalities. …’

14. Article 48 of Regulation No 555/2008, which is headed ‘List of competent bodies’, provides: ‘1. The Commission shall draw up and update lists containing the names and addresses of the agencies and laboratories, and of the wine producers authorised to draw up V I 1 document[s], on the basis of notifications from the competent authorities of third countries. The Commission shall make the names and addresses of these agencies and laboratories public on the internet. 2. The notifications from the competent authorities of third countries referred to in paragraph 1 shall contain: (a) the names and addresses of the official agencies and laboratories approved or appointed for the purpose of drawing up V I 1 documents; (b) the names, addresses and official registration numbers of the wine producers authorised to draw up V I 1 documents. The lists referred to in paragraph 1 shall contain only agencies and laboratories as referred to in point (a) of the first subparagraph of this paragraph which have been authorised by the competent authorities of the third country concerned to provide the Commission and the Member States, on request, with any information required to evaluate the data appearing on the document. 3. The lists shall be updated, in particular to take account of changes of address and/or name of agencies or laboratories.’

15. Title VI of that regulation, which contains Articles 96 to 104, concerns general, transitional and final provisions. Article 98, which is headed ‘National sanctions’, provides: ‘Without prejudice to any sanctions set out in [Regulation No 479/2008] or in this Regulation, Member States shall provide for the application of sanctions at national level in relation to irregularities committed in respect of requirements set out in [Regulation No 479/2008] and in this Regulation which are effective, proportionate and dissuasive so that they provide adequate protection for the Communities’ financial interests.’

16. Panels 9 and 10 of the form reproduced in Annex IX to Regulation No 555/2008, under the heading ‘V I 1 document as provided for in Article 43(1)’, read as follows: ‘9. CERTIFICATE The product described above [...] is / ☐ is not intended for direct human consumption, complies with the Community definitions of categories of grapevine products and has been produced using oenological practices [...] ☐ recommended and published by the OIV/ ☐ authorised by the Community. … 10. ANALYSIS REPORT (describing the analytical characteristics of the product described above) … FOR WINE … – Total alcoholic strength: – Actual alcoholic strength: …’

(b) Regulation (EC) No 607/2009

17. As is apparent from Article 1(1) of Regulation (EC) No 607/2009, ( 12 ) which is headed ‘Subject matter’, that regulation lays down detailed rules for the implementation of Title III of Regulation No 479/2008 as regards, in particular, the provisions contained in Chapter VI of that Title, which relate to the labelling and presentation of certain wine sector products.

18. Article 56 of Regulation No 607/2009, which is headed ‘Indication of the bottler, producer, importer and vendor’, ( 13 ) provides, in paragraph 1: ‘For the purposes of the application of Article 59(1)(e) and (f) of Regulation [No 479/2008] [ ( 14 )] and of this Article: … (d) “importer” means a natural or legal person or group of such persons established within the Community assuming responsibility for bringing into circulation non-Community goods within the meaning of Article 4(8) of [Regulation (EEC) No 2913/92]; ( 15 ) …’

3. Rules on penalties

(a) Regulation (EC) No 178/2002

19. As is apparent from Article 1 of Regulation (EC) No 178/2002, ( 16 ) that regulation contains the basic provisions concerning, amongst other things, food safety, at both Union and national level.

20. Article 17 of that regulation, which is headed ‘Responsibilities’, provides: ‘1. Food and feed business operators at all stages of production, processing and distribution within the businesses under their control shall ensure that foods or feeds satisfy the requirements of food law which are relevant to their activities and shall verify that such requirements are met. 2. Member States shall enforce food law, and monitor and verify that the relevant requirements of food law are fulfilled by food and feed business operators at all stages of production, processing and distribution. … Member States shall also lay down the rules on measures and penalties applicable to infringements of food and feed law. The measures and penalties provided for shall be effective, proportionate and dissuasive.’

(b) Regulation No 1306/2013

21. As is apparent from Article 1 of Regulation No 1306/2013, that regulation lays down the rules governing, amongst other things, the financing of expenditure under the CAP and the management and control systems to be put in place by the Member States.

22. Recital 39 of that regulation states: ‘… In cases of infringement of the sectoral agricultural legislation, where detailed rules on administrative penalties have not been laid down by Union legal acts, Member States should impose national penalties which should be effective, dissuasive and proportionate.’

23. Title V of that regulation, which is headed ‘Control systems and penalties’ provides in Article 64, headed ‘Application of administrative penalties’: ‘… 2. No administrative penalties shall be imposed: … (d) where the person concerned can demonstrate to the satisfaction of the competent authority that he or she is not at fault for the non-compliance with the obligations referred to in paragraph 1 or if the competent authority is otherwise satisfied that the person concerned is not at fault; …’

24. Article 89 of that regulation, which is headed ‘Other checks and penalties related to marketing rules’ provides in paragraphs 3 and 4: ‘3. Member States shall carry out checks, based on a risk analysis, in order to verify whether products referred to in Annex I to [Regulation No 1308/2013] conform to the rules laid down in Section I of Chapter I of Title II of Part II [of that] regulation and shall apply administrative penalties as appropriate. 4. Without prejudice to acts regarding the wine sector adopted on the basis of Article 64, in the event of infringement of Union rules in the wine sector, Member States shall apply proportionate, effective and dissuasive administrative penalties. Such penalties shall not apply in the cases set out in points (a) to (d) of Article 64(2) and where the non-compliance is of a minor nature.’

B. Czech law

25. Paragraph 39(1)(ff) of the zákon č. 321/2004 Sb., o vinohradnictví a vinařství (Law No 321/2004 on viticulture and viniculture; ‘Law No 321/2004’), in the version in force until 31 March 2017, provides: ‘A legal or natural person, as a person producing or marketing a product, commits an administrative offence in failing to comply with obligations laid down by [EU] legislation on viticulture, the winemaking sector or trading in wine.’

26. Paragraph 40(1) of Law No 321/2004 is worded as follows: ‘A legal person shall not be held responsible for an administrative offence if it shows that it did not fail to take any step which might have been required of it to prevent infringement of the obligation.’

III. The dispute in the main proceedings, the questions referred and the procedure before the Court

27. By decision of 14 January 2016, the Státní zemědělská a potravinářská inspekce, Inspektorát v Brně (National Agriculture and Food Inspection Authority, Brno Section, Czech Republic) found that Vinařství U Kapličky, a company trading in wine, had committed administrative offences falling within Paragraph 39(1)(ff) of Law No 321/2004, imposed on it a fine of 2100000 Czech koruna (CZK) (approximately EUR 80000) and demanded reimbursement of laboratory analysis fees of CZK 86420 (approximately EUR 3000), on the basis that that company had put into circulation, in the Czech Republic, consignments of wine imported from Moldova (‘the product in question’) which had undergone unauthorised oenological practices, contrary to Article 80(2)(a) of Regulation No 1308/2013, or which did not comply with the rules concerning enrichment of the natural alcoholic strength by volume, contrary to Article 80(2)(c) of that regulation (‘the offences at issue’).

28. After several rounds of administrative and court proceedings, in which Vinařství U Kapličky was either successful, on the basis that there was no reason, in principle, why that company could not avoid liability for the offences at issue on the basis of the V I 1 documents drawn up by the competent Moldovan authorities, pursuant to Regulation No 555/2008, or unsuccessful, on the basis that the V I 1 documents were merely an administrative formality undertaken for the purposes of bringing the product in question into the European Union, and were not sufficient to exonerate the company from liability for the offences at issue, the Ústavní soud (Constitutional Court, Czech Republic), by decision of 5 September 2019, held that Vinařství U Kapličky’s right to a fair hearing had been infringed, by reason of the fact that the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) had rejected the argument based on the binding nature of the certificate appearing on the V I 1 document without first referring a question to the Court under Article 267 TFEU.

29. Against that background, the Krajský soud v Brně (Regional Court, Brno, Czech Republic) decided to stay the proceedings and refer the following two questions to the Court of Justice for a preliminary ruling: ‘(1) Does a V I 1 document issued under [Regulation No 555/2008] containing a certificate issued by an authorised body from a third country certifying that the product has been produced in accordance with oenological practices recommended and published by the OIV or approved by the Community constitute a mere administrative condition for the entry of wine into the territory of the [European Union]? (2) Does EU law preclude a national rule which allows a dealer of wine imported from Moldova to avoid liability for the administrative offence of marketing wine which has undergone oenological practices not allowed in the [European Union], unless the national authorities refute the dealer’s assumption that the wine was produced in accordance with oenological practices approved by the [European Union], which the dealer made on the basis of the V I 1 document issued by the Moldovan authorities under [Regulation No 555/2008]?’

30. The Czech Government and the European Commission submitted written observations. Those parties also provided written answers to questions from the Court. The Italian Government, which had not submitted written observations, also provided answers to those questions. The Court has decided to rule without holding a hearing, in accordance with Article 76(2) of its Rules of Procedure.

IV. Analysis

A. The first question referred

1. Preliminary remarks

31. By its first question, the referring court is essentially seeking to establish whether the certificate provided for in Article 90(3)(a) of Regulation No 1308/2013, which appears on the V I 1 document drawn up as referred to in Article 43 of Regulation No 555/2008, and which states that the product in question has been produced using oenological practices authorised by EU law, is a mere ‘administrative condition’ for the entry of that product into the territory of the European Union, or whether, on the contrary, it is relevant in determining whether a merchant is liable for marketing that product in the case where it has not been produced in compliance with those practices as referred to in Article 80(2)(a) of Regulation No 1308/2013.

32. In the present case, in considering whether Vinařství U Kapličky was liable for the offences at issue, the central inspectorate decided that it was not necessary to consider the V I 1 documents relating to the product in question, on the basis that those documents could not exonerate the company from its liability for the offences – whereas, according to the referring court, the EU legislation automatically recognises certificates from bodies authorised to issue V I 1 documents, except in the case of breach of trust. On that basis, the referring court considers that the certificate which appears on the V I 1 document is not a mere administrative formality, undertaken for customs purposes, but can lead the wine merchant to believe that the imported wine meets certain quality standards.

33. In that regard, the Czech Government maintains that the V I 1 document merely serves to meet the customs formalities required for the product in question to be released into free circulation, and that it has no relevance to the subsequent marketing of the product within the European Union, while the Commission submits that it has some relevance in establishing the characteristics of the product, but does not automatically guarantee that the imported wine conforms to the EU rules, which is a matter to be verified through further inspections carried out by the Member State concerned or the importer. The Italian Government also takes essentially the same stance as the Commission.

34. I think it may be useful to set out a summary of the relevant legislative framework in the following points of this Opinion, before going on to consider the relevance of the V I 1 document to a determination – such as that to be made in the main proceedings – as to the liability of a merchant.

2. The relevant legislative framework

35. First, Regulation No 1308/2013 lays down, amongst other things, the rules relating to oenological practices and methods of analysis, and the requirements for import of grapevine products. Article 80(2) of that regulation provides, essentially, that such products cannot be marketed in the European Union if they have undergone unauthorised oenological practices. Under Article 90(3)(a) and (b) of the same regulation, in order to import such products it is necessary to produce the following two documents: – one the one hand, a certificate evincing compliance with the oenological practices authorised by EU law or recommended and published by the OIV, drawn up by a competent body of the third country from which the product originates, included on a list to be made public by the Commission, in the product’s country of origin; – on the other hand, an analysis report drawn up by a body or department designated by the product’s country of origin.

36. Second, Regulation No 555/2008 makes provision as to the documents required upon import of the product in question, amongst other things. Article 40 of that regulation provides that the abovementioned certificate and analysis report are to form a single document, which is defined by Article 43 of the same regulation as the ‘V I 1 document’. Article 43 also provides, in the second subparagraph of paragraph 1, that this document is to be drawn up, for each consignment intended for import into the Union, on a ‘V I 1 form’ corresponding to the specimen shown in Annex IX to that regulation. This form, which is reproduced in point 16 of this Opinion, contains a specimen certificate in tick-box form by which the competent body certifies, amongst other things, that the inspected product has been produced using oenological practices either recommended and published by the OIV, or authorised by the European Union. It also contains a partly completed specimen analysis report, on which the total and actual alcoholic strengths by volume are to be indicated.

37. Pursuant to Article 47 of Regulation No 555/2008, the V I 1 document is handed over, on completion of the customs formalities required for the products to be released into free circulation, to the competent customs authorities of the country of importation.

3. The relevance of the V I 1 document

38. As regards the relevance of the V I 1 document to the determination of the liability of a merchant for marketing wine which does not conform to the oenological practices authorised by EU law, it is necessary, in my view, to distinguish between the rules relating to the import and release into free circulation of the product in question within the European Union, ( 17 ) and the rules relating to the marketing of that product on the Union market. For the purposes of import and release into free circulation of the product, it is sufficient to verify its origin, authenticity and qualitative characteristics at the point in time when it is imported, by means, in particular, of documents drawn up by bodies authorised under EU legislation – but as regards the marketing of the same product, there is a requirement, amongst other things, for it to conform to those oenological practices at all times.

39. While the presentation of the V I 1 document to the competent authorities of the Member State in which the customs formalities are completed enables the product in question to be released into free circulation, it is not in itself sufficient to conclude that the product complies at all times with the oenological practices authorised by EU law, as is required if the product is to be sold on the EU market. As the Commission states, given that wine is a complex product which is sensitive to external conditions in many respects, including during transport, it may also fail to conform to EU standards as a result of events taking place after the V I 1 document has been issued. For this reason, further quality checks – for which the importer is responsible ( 18 ) – are required to be carried out periodically.

40. In other words, it seems clear to me that, in principle, compliance with the oenological practices authorised by EU law as regards the import and release into free circulation of wine – which is the subject of the certificate and analysis report contained in the V I 1 document – is not sufficient, by itself, to ensure conformity with those practices, in accordance with Article 80(2)(a) of Regulation No 1308/2013, when that wine is marketed.

41. That having been said, given that the V I 1 document certifies, at the time of importation, that the consignment of wine conforms to the oenological practices authorised by EU law, it cannot be concluded that that document is a mere ‘administrative formality’ which has no relevance in determining the liability of a merchant for marketing that wine. In my view, the document may be taken into account by the competent national authorities, together with other relevant material, in considering the level of diligence shown by the wine merchant and, consequently, in deciding whether it can be exonerated from liability for offences such as those at issue in the main proceedings.

42. Undoubtedly, the relevance of the V I 1 document must be assessed in the light of the circumstances of the case, including for example the time that has passed since the issue of that document, the transport and other operations to which the relevant product may have been subject, and any other factor liable to affect the quality of that product. ( 19 ) In that regard, without wishing to trespass on the jurisdiction of the referring court, I would simply observe that in the light of the matters set out by the Czech Government, demonstrating that Vinařství U Kapličky ought to have been aware of the problematic nature of the wines it was importing ( 20 ) – and in so far as those matters are confirmed by the referring court – the V I 1 document is of very limited relevance in the present case.

43. In conclusion, I suggest that the answer to the first question referred should be that Article 90(3)(a) of Regulation No 1308/2013 is to be interpreted as meaning that the certificate appearing on the V I 1 document, drawn up pursuant to Article 43 of Regulation No 555/2008 and stating that the product in question has been produced using oenological practices authorised by EU law, is not a mere ‘administrative condition’ for the entry of wine into the territory of the European Union, and may be taken into account as one of the relevant considerations in determining whether a wine merchant is liable for marketing wine which does not conform with such practices as required by Article 80(2)(a) of Regulation No 1308/2013.

B. The second question referred

1. Preliminary remarks

44. By its second question, the referring court is essentially asking whether EU law precludes national legislation under which a person can avoid liability for the offences at issue if the national authorities do not rebut the presumption arising by virtue of the certificate appearing on the V I 1 document, to the effect that the product in question has been produced in accordance with oenological practices which are authorised under EU law.

45. In that regard, the referring court interprets Paragraph 40(1) of Law No 321/2004 in the light of the case-law of the Ústavní soud (Constitutional Court), as meaning that the certificate appearing on the V I 1 document gives rise to a (rebuttable) presumption that the consignment of wine to which the certificate relates has been produced in accordance with oenological practices which are authorised by EU law. This ‘presumption of conformity’ would apply, it seems to me, not merely at the time of importation of the product in question, but for as long as it is marketed within the European Union.

46. The Czech Government considers that EU law does not permit a company such as Vinařství U Kapličky to avoid liability for the offences at issue on the basis of the V I 1 document alone, while the Commission submits that EU law does not preclude a national rule permitting a wine merchant trading in wine imported from Moldova to avoid liability for the offences at issue if it proves that it took every step which might have been required of it to avoid the commission of those offences, provided that such a national rule is not interpreted as meaning that the merchant can avoid such liability simply by producing a V I 1 document issued by the competent Moldovan authorities.

47. Before turning to consider whether a presumption of the kind envisaged by the referring court would be compatible with EU law, I think it may be useful to summarise the relevant legislative framework.

2. The relevant legislative framework

48. As stated in recital 4 of Regulation No 1308/2013, the penalties for non-compliance with the rules laid down by that regulation are provided for by Regulation No 1306/2013, which lays down, amongst other things, the rules governing management and control systems to be put in place by Member States in respect of the financing of CAP expenditure. Article 89(4) of Regulation No 1306/2013 provides that the Member States are to apply, in respect of infringements of EU rules in the wine sector, which include Article 80 of Regulation No 1308/2013, ‘proportionate, effective and dissuasive’ administrative penalties. The same provision stipulates, furthermore, that those penalties are not to apply in cases falling within Article 64(2)(d) of Regulation No 1306/2013, or, in other words, where the person concerned can demonstrate to the satisfaction of the competent authority that he or she is not at fault for the non-compliance with obligations arising under the sectoral agricultural legislation, or where the competent authority is otherwise satisfied that the person concerned is not at fault.

49. I note that the rules concerning the liability of operators in the food sector and of Member States, together with the rules concerning the associated penalties, are also laid down in Article 17 of Regulation No 178/2002 ( 21 ) and in Article 98 of Regulation No 555/2008, ( 22 ) which are not directly applicable in the present case. ( 23 )

50. In any event, Article 89 of Regulation No 1306/2013, Article 17(2) of Regulation No 178/2002 and Article 98 of Regulation No 555/2008 lay down the same legal requirements, leaving it open to the Member States, in accordance with the principle of procedural autonomy, to provide for administrative penalties for infringement of the rules, including in relation to oenological practices, and requiring the national law penalties for infringement of EU law to be proportionate, effective and dissuasive. ( 24 )

51. As regards the relevant national legislation, Paragraph 40(1) of Law No 321/2004 provides that a legal person is not liable for an administrative offence if it proves that it took every step which might have been required of it to avoid the infringement in question.

3. The interpretation of the relevant EU law

52. As I have observed in points 48 to 50 of this Opinion, the relevant EU law empowers the Member States to adopt administrative penalties for infringement of the rules on compliance with oenological practices, while requiring those penalties to be ‘proportionate, effective and dissuasive’. Furthermore, the second question referred does not relate to the penalties themselves, but to a procedural rule which essentially reverses the burden of proof, where a wine merchant is in possession of a V I 1 document, as to the establishment of the liability of that merchant for marketing a product which has undergone oenological practices not authorised by EU law.

53. In that regard, I would note that, under settled case-law of the Court, if there are no EU rules on the matter, it is for the national legal order of each Member State to establish such rules, under the principle of procedural autonomy, on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness). ( 25 )

54. As regards the principle of effectiveness, which is a matter arising in the main proceedings, I would point out that under Article 89(4) of Regulation No 1306/2013, the Member States are to apply penalties, in the case of infringement of EU rules in the wine sector, which are to be ‘effective and dissuasive’. ( 26 ) Under EU law, it is necessary to verify that the rules for the implementation of those penalties, including any relevant procedural rules, do not run counter to that principle, this being a matter for the referring court to establish. At first sight, national legislation such as that at issue in the main proceedings, which makes it especially difficult – if not impossible – to establish that a wine merchant is liable for infringement of the rules concerning EU oenological practices, ( 27 ) is capable of affecting the effectiveness of the penalties laid down by that legislation, pursuant to EU law.

55. In the interests of identifying, for the benefit of the referring court, matters of EU law which will assist in the task of interpretation and enable that court to determine for itself whether the relevant national legislation is compatible with EU law, I would note first of all that, under Article 56(1)(d) of Regulation No 607/2009, an importer is a natural or legal person or group of such persons established within the Union assuming responsibility for bringing into circulation imported goods, and is responsible, in particular, for the conformity of such goods with the oenological practices of the European Union in accordance with Article 80(2)(a) of Regulation No 1308/2013.

56. Second, I note that the interpretation of Paragraph 40(1) of Law No 321/2004 envisaged by the referring court involves, essentially, a reversal of the burden of proof with regard to the determination of whether a wine merchant is liable for marketing products which have undergone oenological practices not authorised by EU law, as referred to in Article 80(2)(a) of Regulation No 1308/2013, such reversal being based entirely on the certificate appearing on the V I 1 document. ( 28 )

57. Lastly, I note that under Article 90(3) of Regulation No 1308/2013, that certificate is produced for the purposes of importing the product in question and that, under Article 47 of Regulation No 555/2008, the document is handed over to the competent authorities on completion of the customs formalities required for putting that product into free circulation. As I observed in addressing the first question, ( 29 ) therefore, the certificate is not designed to confirm compliance with oenological practices authorised by EU law throughout the marketing of the product, in accordance with Article 80(2) of Regulation No 1308/2013.

58. In those circumstances, I doubt that a reversal of the burden of proof as to the liability of the person marketing the product in question, which shifts responsibility for checks on the quality of the product to the competent national authorities and makes it particularly difficult – if not impossible – to establish that that person is liable, can be based on a certificate, such as that appearing on the V I 1 document, confirming compliance with EU oenological practices at the time of import of a product such as wine, which is complex and sensitive to external conditions in many respects, including during transport, handling and other operations taking place after that time. It is however for the referring court to carry out the necessary checks.

59. In conclusion, I suggest that the answer to the second question referred should be that Article 89 of Regulation No 1306/2013 is to be interpreted as precluding national legislation under which a merchant importing wine from a third country is not liable for the non-conformity with oenological practices authorised by EU law of consignments of wine covered by a certificate appearing on a V I 1 document, if the national authorities are unable to rebut the ‘presumption of conformity’ arising by virtue of that document, where that presumption makes it particularly difficult – if not impossible – to establish that the merchant is liable, bearing in mind in particular that: – under Article 56(1)(d) of Regulation No 607/2009, an importer is a natural or legal person or group of such persons established within the Union assuming responsibility for bringing into circulation the imported goods; – the interpretation envisaged by the referring court of the national legislation essentially involves, a reversal of the burden of proof with regard to the determination of whether a wine merchant is liable for marketing products which have undergone oenological practices not authorised by EU law, such reversal being based entirely on the certificate appearing on the V I 1 document; – that certificate is not specifically designed to confirm compliance with oenological practices authorised by EU law throughout the marketing of that product, in accordance with Article 80(2) of Regulation No 1308/2013.

V. Conclusion

60. In the light of the above considerations, I suggest that the Court should answer the questions referred for a preliminary ruling by the Krajský soud v Brně (Regional Court, Brno, Czech Republic) as follows: (1) Article 90(3)(a) of Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007, is to be interpreted as meaning that the certificate appearing on the V I 1 document, drawn up pursuant to Article 43 of Commission Regulation (EC) No 555/2008 of 27 June 2008 laying down detailed rules for implementing Council Regulation (EC) No 479/2008 on the common organisation of the market in wine as regards support programmes, trade with third countries, production potential and on controls in the wine sector, and stating that the product in question has been produced using oenological practices authorised by EU law, is not a mere ‘administrative condition’ for the entry of wine into the territory of the European Union, and may be taken into account as one of the relevant considerations in determining whether a wine merchant is liable for marketing wine which does not conform with authorised oenological practices as required by Article 80(2)(a) of Regulation No 1308/2013. (2) Article 89 of Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 is to be interpreted as precluding national legislation under which a merchant importing wine from a third country is not liable for the non-conformity with oenological practices authorised by EU law of consignments of wine covered by a certificate appearing on a V I 1 document, if the national authorities are unable to rebut the ‘presumption of conformity’ arising by virtue of that document, where that presumption makes it particularly difficult – if not impossible – to establish that the merchant is liable, bearing in mind in particular that: – under Article 56(1)(d) of Commission Regulation (EC) No 607/2009 of 14 July 2009 laying down certain detailed rules for the implementation of Council Regulation (EC) No 479/2008 as regards protected designations of origin and geographical indications, traditional terms, labelling and presentation of certain wine sector products, the importer is a natural or legal person or group of such persons established within the Union assuming responsibility for bringing into circulation the imported goods; – the interpretation envisaged by the referring court of the national legislation essentially involves, a reversal of the burden of proof with regard to the determination of whether a wine merchant is liable for marketing products which have undergone oenological practices not authorised by EU law, such reversal being based entirely on the certificate appearing on the V I 1 document; – that certificate is not specifically designed to confirm compliance with oenological practices authorised by EU law throughout the marketing of that product, in accordance with Article 80(2) of Regulation No 1308/2013.

( 1 ) Original language: French.

( 2 ) Regulation of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013 L 347, p. 671).

( 3 ) Commission Regulation of 27 June 2008 laying down detailed rules for implementing Council Regulation (EC) No 479/2008 on the common organisation of the market in wine as regards support programmes, trade with third countries, production potential and on controls in the wine sector (OJ 2008 L 170, p. 1).

( 4 ) That regulation repealed Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1).

( 5 ) Regulation of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 (OJ 2013 L 347, p. 549, and corrigendum OJ 2016 L 130, p. 13).

( 6 ) Part II of Annex VII to the regulation concerns ‘Categories of grapevine products’, including ‘wine’, which is defined as ‘the product obtained exclusively from the total or partial alcoholic fermentation of fresh grapes, whether or not crushed, or of grape must’.

( 7 ) Annex VIII concerns the ‘oenological practices referred to in Article 80’.

( 8 ) These codes include, amongst other things, grape must and wine.

( 9 ) Regulation No 555/2008 has been amended by Article 52 of Commission Delegated Regulation (EU) 2018/273 of 11 December 2017 supplementing [Regulation No 1308/2013] as regards the scheme of authorisations for vine plantings, the vineyard register, accompanying documents and certification, the inward and outward register, compulsory declarations, notifications and publication of notified information, and supplementing [Regulation No 1306/2013] as regards the relevant checks and penalties, amending Commission Regulations [No 555/2008], (EC) No 606/2009 and (EC) No 607/2009 and repealing Commission Regulation (EC) No 436/2009 and Commission Delegated Regulation (EU) 2015/560 (OJ 2018 L 58, p. 1). That provision repealed all the provisions of Regulation No 555/2008 referred to below, which are nevertheless applicable to the main proceedings ratione temporis.

( 10 ) Council Regulation of 29 April 2008 on the common organisation of the market in wine, amending Regulations (EC) No 1493/1999, (EC) No 1782/2003, (EC) No 1290/2005, (EC) No 3/2008 and repealing Regulations (EEC) No 2392/86 and (EC) No 1493/1999 (OJ 2008 L 148, p. 1). This regulation was repealed by Regulation (EC) No 491/2009 of the Council of 25 May 2009 amending Regulation No 1234/2007 (OJ 2009 L 154, p. 1). The second subparagraph of Article 3(1) of Regulation No 491/2009 provides that references to Regulation No 479/2008 are to be construed as references to Regulation No 1234/2007, which was itself repealed by Regulation No 1308/2013.

( 11 ) Article 82 of Regulation No 479/2008 was replaced by Article 158a of Regulation No 1234/2007, which was itself replaced by Article 90 of Regulation No 1308/2013.

( 12 ) Commission Regulation of 14 July 2009 laying down certain detailed rules for the implementation of Regulation No 479/2008 as regards protected designations of origin and geographical indications, traditional terms, labelling and presentation of certain wine sector products (OJ 2009 L 193, p. 60). This regulation was repealed by Commission Delegated Regulation (EU) No 2019/33 of 17 October 2018 supplementing Regulation No 1308/2013 as regards applications for protection of designations of origin, geographical indications and traditional terms in the wine sector, the objection procedure, restrictions of use, amendments to product specifications, cancellation of protection, and labelling and presentation (OJ 2019 L 9, p. 2). Nonetheless, in view of the date of the facts at issue in the main proceedings, Regulation No 607/2009 remains applicable to the present case.

( 13 ) This provision appears in Chapter IV of the regulation, which is headed ‘Labelling and presentation’, within Section I, headed ‘Compulsory particulars’.

( 14 ) Article 59 of that regulation, headed ‘Compulsory particulars’, provided in paragraph (1)(e) and (f) that, amongst other things, labelling and presentation of wine marketed in the European Union or for export was required to include compulsory particulars of the bottler or, in the case of sparkling wine, aerated sparkling wine, quality sparkling wine or quality aromatic sparkling wine, the name of the producer or vendor, and an indication of the importer in the case of imported wines. Article 59 of that regulation was replaced, without amendment, by Article 118y of Regulation No 1234/2007, which was itself replaced by Article 119 of Regulation No 1308/2013.

( 15 ) Council Regulation of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), repealed by Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code) (OJ 2008 L 145, p. 1), which was itself repealed by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1).

( 16 ) Regulation of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1).

( 17 ) I would point out that the EU legislation concerning the V I 1 document does not make a clear distinction between the use of that document for the purposes of importing the product in question and for its release into free circulation. While Article 90(3) of Regulation No 1308/2013 provides, amongst other things, that the import of wine is subject to the presentation of the certificate and analysis report which, under Articles 40 and 43 of Regulation No 555/2008, make up the V I 1 document, Article 47 of that regulation provides for that document to be handed over to the competent authorities on completion of the customs formalities required for the release into free circulation of the consignment to which it relates.

( 18 ) Article 56(1)(d) of Regulation No 607/2009 provides that for the purposes, inter alia, of application of Article 59(1)(f) of Regulation No 479/2008 (which corresponds at present to Article 119(1)(f) of Regulation No 1308/2013 – see footnote 14 to this Opinion), ‘importer’ means ‘a natural or legal person or group of such persons established within the [Union] assuming responsibility for bringing into circulation [imported] goods’ (my italics).

( 19 ) For example, it seems to me that while the certificate appearing on that document may have some relevance in verifying whether the importer was reasonably diligent at the time of releasing the relevant consignment of wine into free circulation, this is not so once the product has been transported or handled, or even after a certain time has passed since it was imported.

( 20 ) The Czech Government refers in particular to a penalty imposed on the company in respect of imported wines in 2014, and to the fact that the central inspectorate had expressed doubts as to the quality of certain imported wines, the extremely low price of the product in question and the ‘opaque’ sales arrangements under which it passed, before being retailed, between two companies managed by the same persons.

( 21 ) That article provides, in paragraph 1, that food business operators are to ensure compliance with the requirements of food law which are relevant to their activities and verify that such requirements are met, and, in paragraph 2, that the Member States are, amongst other things, to monitor and verify that the relevant requirements are fulfilled by food business operators and to lay down the rules on measures and penalties applicable to infringements of those rules, stipulating that the measures and penalties provided for are to be ‘effective, proportionate and dissuasive’.

( 22 ) This provision requires the Member States, amongst other things, to provide for the application of sanctions at national level in relation to irregularities committed in respect of requirements set out in Regulation No 479/2008, now replaced by Regulation No 1308/2013 (see footnote 10 to this Opinion), which are ‘effective, proportionate and dissuasive’ so that they provide adequate protection for the European Union’s financial interests.

( 23 ) As regards Article 17 of Regulation No 178/2002, the Court has already held that that provision constitutes a general rule of food law which is applicable only in so far as EU law does not lay down specific rules for the particular category of foodstuff (see, to that effect, judgment of 9 June 2005, HLH Warenvertrieb and Orthica, C‑211/03, C‑299/03 and C‑316/03 to C‑318/03, EU:C:2005:370, paragraphs 36 to 39). In my view, Article 89 of Regulation No 1306/2013 is a specific rule of that kind. As regards Regulation No 555/2008, as is apparent from Article 1 of that regulation, it lays down implementing rules concerning the application of certain provisions of Regulation No 479/2008, not including Article 27(4) of that regulation, which has essentially been replaced by Article 80(2) of Regulation No 1308/2013 (see footnote 10 to this Opinion).

( 24 ) I would also refer to recital 39 of Regulation No 1306/2013, which states, amongst other things, that in cases of infringement of the sectoral agricultural legislation, where detailed rules on administrative penalties have not been laid down by Union legal acts, Member States should impose national penalties which should be effective, dissuasive and proportionate.

( 25 ) See judgment of 21 January 2016, Eturas and Others (C‑74/14, EU:C:2016:42, paragraph 32 and the case-law cited).

( 26 ) The penalties are also required to be ‘proportionate’ within the meaning of that provision, but I note that that requirement is not at issue in the present case.

( 27 ) The ‘presumption of conformity’ arising from a V I 1 document could be interpreted in such a way that, for the purposes of Paragraph 40(1) of Law No 321/2004, a legal person holding such a document has not failed to take any step which could have been required of it to avoid infringement of Article 80(2) of Regulation No 1308/2013, and is therefore not liable for infringement of that provision. In such a situation, while it is not impossible, in principle, for the competent authority to carry out its own analyses to establish whether the wine conforms to oenological practices authorised by EU law, it would be practically impossible for that authority to demonstrate that the wine merchant is liable if the latter has not acted in compliance with those practices.

( 28 ) That might lead to the person marketing a product in respect of which such a certificate had been issued not being required to carry out checks, which would be a matter for the national authorities alone.

( 29 ) See points 38 to 42 of this Opinion.