Judgment of the Court of 22 March 1983. - Commission of the European Communities v French Republic. - Free movement of goods - Importation of Italian wine into France. - Case 42/82.



European Court reports 1983 Page 01013

Spanish special edition Page 00281

Swedish special edition Page 00103

Finnish special edition Page 00103



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . ACTION FOR FAILURE OF A STATE TO FULFIL ITS OBLIGATIONS - SUBJECT-MATTER OF THE DISPUTE - PRACTICES OCCURRING BEFORE AND AFTER THE REASONED OPINION - TAKING INTO CONSIDERATION - CONDITIONS - PRACTICES OF THE SAME KIND AND CONSTITUTING THE SAME CONDUCT

( EEC TREATY , ART . 169 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - WINE - INTRA-COMMUNITY TRADE - VA 1 FORM - VERIFICATION OF REGULARITY BY THE IMPORTING MEMBER STATE - LIMITS - CHECKING FOR SUBSTANTIAL IRREGULARITIES

( REGULATION NO 1153/75 OF THE COMMISSION )

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - WINE - INTRA-COMMUNITY TRADE - ACCOMPANYING DOCUMENTS - VERIFICATION OF REGULARITY BY THE IMPORTING MEMBER STATE - REQUEST FOR DETAILED INVESTIGATIONS AND DOCUMENTARY EVIDENCE - PERMISSIBILITY - CONDITIONS - REASONABLE CAUSE FOR SUSPICION OF NON-CONFORMITY IN RESPECT OF A SPECIFIC CARRIAGE OPERATION - CONCEPT

( COUNCIL REGULATION NO 359/79 , ART . 3 )

4 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - WINE - INTRA-COMMUNITY TRADE - ACCOMPANYING DOCUMENTS - VERIFICATION OF REGULARITY BY THE IMPORTING MEMBER STATE - DUTY OF COOPERATION BETWEEN MEMBER STATES - SCOPE

( COUNCIL REGULATION NO 359/79 , REGULATION NO 1153/75 OF THE COMMISSION )

5 . FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS - MEASURES HAVING AN EQUIVALENT EFFECT - OENOLOGICAL CHECKS OF WINE IMPORTED FROM A MEMBER STATE - WHETHER IMPERMISSIBLE - CONDITIONS

( EEC TREATY , ART . 30 )

6 . FREE MOVEMENT OF GOODS - DEROGATIONS - PROTECTION OF HEALTH - HEALTH CHECKS OF WINE IMPORTED FROM ANOTHER MEMBER STATE - PERMISSIBILITY - CONDITIONS

( EEC TREATY , ART . 36 )

7 . FREE MOVEMENT OF GOODS - DEROGATIONS - PROTECTION OF HEALTH - HEALTH CHECKS OF WINE IMPORTED FROM ANOTHER MEMBER STATE - RANDOM ANALYSES - SUBSTANTIAL PERIODS OF SUSPENSION OF IMPORTS - WHETHER PERMISSIBLE - CONDITIONS

( EEC TREATY , ARTS 30 AND 36 )

Summary

1 . PRACTICES WHICH HAD ALREADY BEEN CONDEMNED IN THE REASONED OPINIONS GIVEN TO THE MEMBER STATE IN QUESTION AND WHICH WERE CONTINUED SUBSEQUENTLY AND PRACTICES WHICH OCCURRED AFTER THE OPINIONS HAD BEEN GIVEN BUT WHICH WERE OF THE SAME KIND AS THOSE TO WHICH THE OPINIONS REFERRED AND CONSTITUTED THE SAME CONDUCT , ARE BOTH RELEVANT TO PROCEEDINGS IN RESPECT OF FAILURE OF A STATE TO FULFIL OBLIGATIONS WITHIN THE MEANING OF ARTICLE 169 OF THE TREATY .

2 . ALTHOUGH THE AUTHORITIES OF THE IMPORTING MEMBER STATE ARE ENTITLED BY VIRTUE OF REGULATION NO 1153/75 TO CHECK THAT ALL CARRIAGE IN BULK OF WINE ORIGINATING IN ANOTHER MEMBER STATE PRESENTED AT THE FRONTIER IS IN FACT ACCOMPANIED BY A VA 1 FORM WHICH HAS BEEN PROPERLY COMPLETED AND ISSUED BY THE COMPETENT AUTHORITIES OF THE EXPORTING MEMBER STATE , IT NONE THE LESS FOLLOWS FROM THE SAID REGULATION THAT THE OBLIGATION TO HAVE AN ACCOMPANYING DOCUMENT SHOULD NOT AMOUNT TO AN IMPEDIMENT TO TRADE OR TO THE MARKETING OF PRODUCTS IN THE WINE SECTOR . CONSEQUENTLY ONLY ERRORS OR IRREGULARITIES IN A DOCUMENT WHICH ARE OF A SUBSTANTIAL NATURE AND WHICH ARE THEREFORE CAPABLE OF RENDERING IT USELESS FOR THE FULFILMENT OF ITS FUNCTION , AS AN OFFICIAL DOCUMENT , OF PROVIDING ESSENTIAL INFORMATION ABOUT THE NATURE OF THE PRODUCT , MAY JUSTIFY OBJECTIONS TO SUCH A DOCUMENT AND , THUS , OBSTACLES TO IMPORTS .

3 . A ' ' REASONABLE CAUSE FOR SUSPECTING ' ' , WITHIN THE MEANING OF ARTICLE 3 OF REGULATION NO 359/79 , THAT THE WINE IMPORTED FROM ANOTHER MEMBER STATE DOES NOT CONFORM TO THE WINE PROVISIONS , WHICH JUSTIFIES THE MAKING OF A REQUEST FOR DETAILED INVESTIGATIONS AND FOR THE FORWARDING OF DOCUMENTARY EVIDENCE , MUST BE BASED ON CONCRETE EVIDENCE RELATING TO A SPECIFIC CARRIAGE OPERATION . THERE ARE NO GROUNDS FOR ENTERTAINING A GENERAL SUSPICION WITH REGARD TO ALL IMPORTS OF WINE ON THE BASIS OF A FEW IRREGULARITIES OR BREACHES WHICH HAVE BEEN FOUND IN PARTICULAR CASES IN THE PAST . IN NO CASE MAY MERE FORMAL ERRORS IN THE ACCOMPANYING DOCUMENTS JUSTIFY A REASONABLE CAUSE FOR SUSPICION .

4 . IN ORDER TO AVOID OBSTACLES TO INTRA-COMMUNITY WINE IMPORTS THE DUTY OF COOPERATION BETWEEN MEMBER STATES WHICH IS INHERENT IN THE COMMUNITY SYSTEM OF SUPERVISION REQUIRES THAT , IN THE CASE OF A CHANGE IN A PRACTICE WHICH HAS BEEN ESTABLISHED FOR MANY YEARS BETWEEN THE IMPORTING MEMBER STATE AND THE EXPORTING MEMBER STATE IN RESPECT OF THE CHECKING OF ACCOMPANYING DOCUMENTS , THE IMPORTING MEMBER STATE UNDERTAKING THE CHANGE MUST GIVE NOTICE OF THE NEW PRACTICE TO THE AUTHORITIES OF THE EXPORTING MEMBER STATE SO THAT IT IS NOT MADE IMPOSSIBLE FOR THEM TO MAKE PREPARATIONS FOR THE NEW PRACTICE AND TO TAKE IT INTO ACCOUNT IN COMPLETING THE ACCOMPANYING DOCUMENTS .

5 . OENOLOGICAL CHECKS , WHETHER CARRIED OUT SYSTEMATICALLY OR NOT , OF TABLE WINE ORIGINATING IN A MEMBER STATE AND IMPORTED IN BULK BY ANOTHER MEMBER STATE , WHICH ARE LIKELY TO MAKE IMPORTATION MORE DIFFICULT AND MORE COSTLY AS A RESULT IN PARTICULAR OF THE DELAYS AND THE ADDITIONAL TRANSPORT COSTS WHICH THE IMPORTER MAY INCUR THEREBY , CONSTITUTE MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS WITHIN THE MEANING OF ARTICLE 30 OF THE TREATY .

6 . IT CANNOT BE EXCLUDED THAT IN CERTAIN CASES HEALTH CHECKS BY MEANS OF ANALYSES OF WINE IMPORTED FROM A MEMBER STATE MAY BE AN APPROPRIATE MEANS OF PREVENTING THE DANGERS RESULTING , FOR EXAMPLE , FROM PROHIBITED OENOLOGICAL PRACTICES OR THE USE OF UNHYGIENIC MEANS OF TRANSPORT AND MAY SERVE TO ENSURE THE PROTECTION OF HEALTH AND LIFE OF HUMANS .

NEVERTHELESS THE MEASURES OF VERIFICATION CARRIED OUT MUST BE NECESSARY FOR ATTAINMENT OF THE DESIRED OBJECTIVES AND MUST NOT CREATE OBSTACLES TO TRADE WHICH ARE DISPROPORTIONATE TO THOSE OBJECTIVES .

IN NO CASE CAN ADULTERATION OR IRREGULARITIES DISCOVERED PREVIOUSLY IN PARTICULAR CASES JUSTIFY A GENERAL SUSPICION IN RELATION TO ALL IMPORTS OF WINE FROM ANOTHER MEMBER STATE OR THE CARRYING OUT OF SYSTEMATIC ANALYSES WHEN NO SIMILAR PRACTICE EXISTS IN RELATION TO NATIONAL WINE PRODUCTION .

7 . IN THE CASE OF RANDOM ANALYSES CONSIGNMENTS OF WINE IMPORTED FROM A MEMBER STATE THE DETENTION OF THE CONSIGNMENT AT THE FRONTIER UNTIL THE RESULTS OF THE ANALYSES ARE KNOWN CONSTITUTES A DISPROPORTIONATE AND DISCRIMINATORY OBSTACLE TO IMPORTS CONTRARY TO ARTICLES 30 AND 36 OF THE TREATY WHERE SUCH ANALYSES INVOLVE SUBSTANTIAL PERIODS OF TIME IN EXCESS OF A FEW DAYS AND IN VIEW OF THE POSSIBILITY OF LOCATING AND IDENTIFYING A CONSIGNMENT OF WINE . THE SITUATION WOULD BE DIFFERENT ONLY IF THE ANALYSES WERE CARRIED OUT IN AN INDIVIDUAL CASE ON THE BASIS OF A REASONABLE SUSPICION OF FRAUD OR IRREGULARITY REGARDING THE PRODUCT CONCERNED .

Parties

IN CASE 42/82

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JEAN CLAUDE SECHE , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

AND

ITALIAN REPUBLIC , REPRESENTED BY ITS AGENT , ARNALDO SQUILLANTE , HEAD OF THE DEPARTMENT FOR CONTENTIOUS DIPLOMATIC AFFAIRS , TREATIES AND LEGISLATIVE MATTERS , AND IVO M . BRAGUGLIA , AVVOCATO DELLO STATO , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY ,

INTERVENER ,

V

FRENCH REPUBLIC , REPRESENTED BY ITS AGENT , NOEL MUSEUX , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE FRENCH EMBASSY ,

DEFENDANT ,

Subject of the case

APPLICATION CONCERNING OBSTACLES TO THE IMPORTATION OF ITALIAN WINE INTO FRANCE ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 4 FEBRUARY 1982 , THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE FRENCH REPUBLIC HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE COMMUNITY RULES APPLICABLE TO THE WINE SECTOR AND UNDER ARTICLE 30 OF THE EEC TREATY

BY SUBJECTING CUSTOMS CLEARANCE OF ITALIAN TABLE WINES TO A DELAY CONSIDERABLY IN EXCESS OF THE TIME NECESSARY FOR THE PERFORMANCE OF THE PERMISSIBLE MATERIAL OPERATIONS AND BY MAKING CUSTOMS CLEARANCE SUBJECT TO A SYSTEMATIC ANALYSIS ;

BY OMITTING TO COMMENCE PROMPTLY THE PROCEDURE FOR REGULARIZING THE CARRIAGE OPERATIONS IN RESPECT OF A NUMBER OF CONSIGNMENTS OF ITALIAN WINE ONCE THE ACCOMPANYING DOCUMENTS HAD BEEN PRESENTED FOR CLEARANCE AT ITS FRONTIER POSTS ;

BY MAKING THE REGULARIZATION OF CARRIAGE OPERATIONS IN RESPECT OF ITALIAN WINES HELD UP AT FRONTIER POSTS SUBJECT IN NUMEROUS CASES TO THE TRANSMISSION BY THE ITALIAN AUTHORITIES OF THE DOCUMENTS AND PAPERS UPON WHICH THEIR CERTIFICATES ARE BASED ;

BY DELAYING CUSTOMS CLEARANCE EVEN IN CASES WHICH HAVE BEEN REGULARIZED .

2 IT IS THE CONTENTION OF THE COMMISSION , SUPPORTED BY THE ITALIAN GOVERNMENT AS INTERVENER , THAT BECAUSE OF THOSE PRACTICES CONSIDERABLE DELAYS OCCURRED IN RELEASING FOR CONSUMPTION THE TABLE WINE ORIGINATING IN ITALY AND IMPORTED IN BULK INTO FRANCE AS FROM AUGUST 1981 AND AGAIN AS FROM JANUARY 1982 AND THAT SUBSTANTIAL QUANTITIES OF ITALIAN TABLE WINE , AT TIMES IN EXCESS OF ONE MILLION HECTOLITRES , WERE HELD UP FOR SEVERAL WEEKS AND EVEN FOR SEVERAL MONTHS AT VARIOUS FRONTIER POSTS IN FRANCE . THE PRACTICES IN QUESTION ARE SAID TO HAVE BEEN ADOPTED BY THE FRENCH AUTHORITIES IN ORDER TO IMPEDE THE IMPORTS IN BULK OF TABLE WINE ORIGINATING IN ITALY AND TO REDUCE THE VOLUME OF SUCH IMPORTS WHICH WAS CONSIDERED TO BE TOO HIGH IN RELATION TO THE NEEDS OF THE MARKET . THE MEASURES IN QUESTION WERE THEREFORE EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON IMPORTS PROHIBITED BY ARTICLE 30 OF THE EEC TREATY .

3 THE FRENCH GOVERNMENT DISAGREES THAT THE PRACTICES IN DISPUTE WERE INTENDED TO REDUCE THE VOLUME OF IMPORTS AND CONTENDS THAT THEIR PURPOSE WAS TO ENSURE COMPLIANCE WITH THE COMMUNITY RULES IN THE WINE SECTOR AND TO PROTECT CONSUMERS AND THE HEALTH AND LIFE OF HUMANS FROM FRAUDULENT OPERATIONS AND PROHIBITED AND UNHYGIENIC PRACTICES .

1 . THE BACKGROUND TO AND DEVELOPMENT OF THE PRACTICES IN DISPUTE

4 BEFORE EXAMINING THE PRACTICES IN DISPUTE IN GREATER DETAIL IT IS NECESSARY TO RECALL THE CIRCUMSTANCES WHICH SURROUNDED THEIR ADOPTION .

5 FOR YEARS NO PARTICULAR DIFFICULTIES AROSE WITH REGARD TO THE FORMALITIES TO BE COMPLETED PRIOR TO THE RELEASE FOR CONSUMPTION OF WINES OF ITALIAN ORIGIN IMPORTED INTO FRANCE .

6 DURING THE PERIOD BETWEEN APRIL 1980 AND THE BEGINNING OF 1981 THE FRENCH AUTHORITIES SENT A NUMBER OF COMMUNICATIONS TO THE ITALIAN AUTHORITIES WITH REGARD TO IRREGULARITIES OR BREACHES WHICH THEY HAD DISCOVERED IN RELATION TO THE TRANSPORTATION OF ITALIAN WINES AND IN PARTICULAR WITH REGARD TO THE USE OF INAPPROPRIATE MEANS OF TRANSPORT RESULTING IN THE POLLUTION OF THE WINE BEING TRANSPORTED . THE QUESTION WHETHER THE ITALIAN AUTHORITIES REACTED TO THOSE COMMUNICATIONS IN AN APPROPRIATE MANNER AND IN GOOD TIME IS THE SUBJECT OF DISPUTE BETWEEN THE PARTIES .

7 IN THE SUMMER OF 1981 THE WINE MARKET IN FRANCE WAS CHARACTERIZED BY A LARGE INCREASE IN IMPORTS OF TABLE WINE OF ITALIAN ORIGIN . THAT INCREASE HAD THE EFFECT OF REDUCING PRICES ON THAT MARKET . VIOLENT DEMONSTRATIONS TOOK PLACE AMONG THE WINE GROWERS IN THE MIDI IN FRANCE BY WAY OF PROTEST AGAINST THAT SITUATION .

8 IT IS CLEAR FROM DOCUMENTS PRODUCED TO THE COURT BY THE COMMISSION THAT DURING JULY 1981 COMITE NATIONAL DU COMMERCE COMMUNAUTAIRE DES VINS ET SPIRITUEUX ( THE NATIONAL COMMITTEE FOR COMMUNITY TRADE IN WINES AND SPIRITS ), CONTINUING A PRACTICE WHICH HAD ALREADY BEEN FOLLOWED FOR SEVERAL YEARS , PROPOSED TO LIMIT , BY MEANS OF SELF-RESTRAINT AGREEMENTS , THE IMPORTS OF TABLE WINES FROM ITALY TO A VOLUME WHICH IT CONSIDERED TO BE ACCEPTABLE AND WHICH WAS ASSESSED AT 425 000 HECTOLITRES PER MONTH . THE QUESTION WHETHER AND IF SO TO WHAT EXTENT THE FRENCH MINISTER OF AGRICULTURE TOOK PART IN AND GAVE HIS SUPPORT TO SUCH PROPOSALS REMAINS THE SUBJECT OF DISPUTE BETWEEN THE PARTIES .

9 FROM THE MIDDLE OF AUGUST 1981 THE FRENCH AUTHORITIES INTENSIFIED THE MEASURES THEY TOOK TO CHECK THE IMPORTS OF ITALIAN TABLE WINES . ON THE ONE HAND , THEY REFUSED TO ACCEPT A LARGE NUMBER OF THE ACCOMPANYING DOCUMENTS WHICH RELATED TO THE TRANSPORTATION OF THE WINES IN QUESTION AND , ON THE OTHER HAND , THEY SYSTEMATICALLY SUBJECTED THE WINE TO HEALTH AND OENOLOGICAL CHECKS BY MEANS OF ANALYSIS BEFORE RELEASING THE CONSIGNMENTS IN QUESTION FOR CONSUMPTION . THE CONSEQUENCE OF THOSE PRACTICES WAS THAT CONSIDERABLE QUANTITIES OF TABLE WINES WERE HELD UP AT THE FRONTIER .

10 IN VIEW OF THOSE PRACTICES THE COMMISSION COMMENCED TWO SETS OF PROCEEDINGS FOR FAILURE BY A STATE TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY , IN THE COURSE OF WHICH IT SENT TWO REASONED OPINIONS TO THE FRENCH GOVERNMENT .

11 IN THE FIRST REASONED OPINION OF 2 OCTOBER 1981 THE COMMISSION CLAIMED THAT THE FRENCH REPUBLIC HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE COMMUNITY RULES APPLICABLE TO THE WINE SECTOR AND UNDER ARTICLE 30 OF THE TREATY BY HAVING FAILED TO INITIATE SPEEDILY THE PROCESS OF REGULARIZING CARRIAGE OPERATIONS RELATING TO A CERTAIN NUMBER OF CONSIGNMENTS BY SUBJECTING , IN MANY CASES , REGULARIZATION TO THE TRANSMISSION BY THE ITALIAN AUTHORITIES OF THE DOCUMENTS AND OTHER EVIDENCE ON WHICH THEY BASED THEIR CERTIFICATES , AND BY DELAYING CUSTOMS CLEARANCE EVEN IN THOSE CASES WHERE THE OPERATIONS HAD BEEN REGULARIZED .

12 IN THE SECOND REASONED OPINION OF 9 OCTOBER 1981 THE COMMISSION CLAIMED THAT SUBJECTING ITALIAN TABLE WINES TO CUSTOMS CLEARANCE OPERATIONS OF A FAR GREATER DURATION THAN THE TIME NEEDED FOR THE COMPLETION OF PERMISSIBLE MATERIAL OPERATIONS AND MAKING RELEASE TO THE MARKET SUBJECT TO A SYSTEMATIC ANALYSIS CONSTITUTED A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ON IMPORTS , PROHIBITED BY ARTICLE 30 OF THE EEC TREATY , AND A FAILURE BY THE FRENCH REPUBLIC TO FULFIL ITS OBLIGATIONS UNDER COUNCIL REGULATION NO 337/79 .

13 THE CONSIGNMENTS WHICH HAD BEEN HELD UP WERE ONLY RELEASED GRADUALLY , UP TO THE END OF THE YEAR , BY THE FRENCH AUTHORITIES UNDER AN ARRANGEMENT MADE AT PISA ON 13 OCTOBER 1981 WITH THE ITALIAN GOVERNMENT . THAT ARRANGEMENT PROVIDED , AMONGST OTHER THINGS , FOR THE RELEASE , WITHIN TWO MONTHS , OF THE DETAINED WINE AND FOR AN APPROACH BY THE TWO GOVERNMENTS CONCERNED TO THE COMMISSION FOR THE RELEASE TO BE ACCOMPANIED BY COMMUNITY AIDS FOR STORAGE CONTRACTS . PARALLEL TO THAT RELEASE , ACCORDING TO THE DOCUMENTS PRODUCED BY THE COMMISSION , THE MEMBERS OF THE NATIONAL COMMITTEE FOR COMMUNITY TRADE IN WINES AND SPIRITS APPLIED A COMPLETE STANDSTILL TO THE LOADING OF WINE IN ITALY UNDER A SELF-RESTRAINT AGREEMENT .

14 AT THE SAME TIME THE FRENCH GOVERNMENT INFORMED THE COMMISSION WITH REGARD TO THE ANALYSES , WHICH HAD UNTIL THAT TIME BEEN CARRIED OUT SYSTEMATICALLY ON ALL CONSIGNMENTS OF IMPORTED WINE , THAT THE FRENCH AUTHORITIES WOULD HENCEFORTH BE SATISFIED WITH RANDOM ANALYSES CARRIED OUT ON ONE IN TEN CONSIGNMENTS .

15 DURING JANUARY 1982 THE QUANTITY OF IMPORTED TABLE WINE OF ITALIAN ORIGIN RELEASED FOR CONSUMPTION REACHED A HIGH LEVEL ONCE MORE , THAT IS TO SAY MORE THAN 875 507 HECTOLITRES . AT THE END OF JANUARY FURTHER VIOLENT DEMONSTRATIONS AGAINST THOSE IMPORTS TOOK PLACE AMONG WINE GROWERS IN THE MIDI REGION OF FRANCE .

16 AT THE BEGINNING OF FEBRUARY THE FRENCH AUTHORITIES ONCE MORE INTENSIFIED THEIR CHECKS OF IMPORTED TABLE WINE OF ITALIAN ORIGIN , REFUSING TO ACCEPT ACCOMPANYING DOCUMENTS ON THE GROUND OF IRREGULARITIES AND CARRYING OUT ANALYSES ON THREE CONSIGNMENTS OUT OF FOUR . A TELEX MESSAGE ON THE SUBJECT OF THOSE INTENSIFIED CHECKS SENT BY THE FRENCH GOVERNMENT TO THE COMMISSION ON 2 FEBRUARY 1982 CONTAINED , INTER ALIA , THE FOLLOWING PASSAGE : ' ' GREAT ANXIETY HAS ARISEN IN WINE-GROWING CIRCLES IN THE MIDI AS A RESULT OF THE GREAT INCREASE IN IMPORTS OF WINE ORIGINATING IN ITALY DURING JANUARY 1982 AT PRICES APPRECIABLY BELOW THE MARKET PRICE . CONSEQUENTLY THE GOVERNMENT HAS MADE THE NECESSARY ARRANGEMENTS WITH EFFECT FROM 30 JANUARY IN ORDER THAT MORE NUMEROUS QUALITATIVE ANALYSES SHOULD BE CARRIED OUT BY THE COMPETENT ADMINISTRATIVE AUTHORITIES PRIOR TO THE WINE ' S BEING PUT ON THE MARKET . CONTRARY TO WHAT HAS BEEN SAID BY CERTAIN ORGANS OF THE PRESS IMPORTS HAVE NOT BEEN STOPPED BUT SLOWED DOWN WITH A VIEW TO A RETURN TO A NORMAL MONTHLY RATE ' ' . CONSIDERABLE QUANTITIES OF TABLE WINE OF ITALIAN ORIGIN WERE ONCE AGAIN HELD UP AT THE FRONTIER AS A RESULT OF THOSE INTENSIFIED CONTROL MEASURES .

17 ON 4 MARCH 1982 THE COURT , BY WAY OF AN INTERLOCUTORY DECISION ON AN APPLICATION MADE BY THE COMMISSION , ORDERED AS FOLLOWS :

' ' 1 . PENDING THE JUDGMENT IN THE MAIN ACTION THE FRENCH REPUBLIC IS REQUIRED TO OBSERVE THE LIMITATIONS HEREINAFTER SPECIFIED REGARDING THE PRACTICES RELATING TO THE RELEASE TO THE MARKET IN FRANCE OF WINES IMPORTED FROM ITALY ;

( A ) APART FROM SPECIAL CASES IN WHICH SPECIFIC EVIDENCE MAY JUSTIFY A SUSPICION OF FRAUD THE FREQUENCY OF ANALYSES BEFORE THE RELEASE TO THE MARKET OF THE CONSIGNMENTS IN QUESTION MUST NOT EXCEED FIFTEEN PER CENT OF THE CONSIGNMENTS PRESENTED AT THE FRONTIER ;

( B)THE DURATION OF ANALYSES MADE BEFORE THE RELEASE TO THE MARKET OF THE CONSIGNMENTS IN QUESTION MUST NOT EXCEED TWENTY-ONE DAYS FROM PRESENTATION OF THE CONSIGNMENTS AND THE DOCUMENTS AT THE FRONTIER UNLESS THERE ARE SPECIAL GROUNDS WHICH JUSTIFY SPECIFIC ANALYSES IN EXCEPTIONAL CASES ;

( C)THE RELEASE TO THE MARKET OF CONSIGNMENTS OF WINE MAY NOT BE REFUSED ON GROUNDS OF IRREGULARITY OF THE ACCOMPANYING DOCUMENTS UNLESS THE IRREGULARITIES ARE SUBSTANTIAL .

( D)WHEN SUBSTANTIAL IRREGULARITIES ARE FOUND BY THE FRENCH AUTHORITIES THEY MUST WITHOUT DELAY INFORM THE ITALIAN AUTHORITIES OF SUCH IRREGULARITIES AND SUPPLY THEM WITH THE NECESSARY DOCUMENTS . WHERE THE ACCOMPANYING DOCUMENT IN RESPECT OF ANY CONSIGNMENT HAS BEEN REGULARIZED BY THE ITALIAN AUTHORITIES THAT CONSIGNMENT MUST IMMEDIATELY BE RELEASED TO THE MARKET .

2.WHEN THE RELEASE TO THE MARKET OF QUANTITIES OF WINE FROM ITALY IN EXCESS OF 50 000 HECTOLITRES IS REFUSED FOR MORE THAN TWENTY-ONE DAYS ON GROUNDS EITHER OF ANALYSES OR IRREGULARITIES IN ACCOMPANYING DOCUMENTS , THE FRENCH AUTHORITIES MUST INFORM THE COMMISSION OF THE REASONS FOR SUCH REFUSAL . ' '

18 AFTER THAT ORDER NO PARTICULAR DIFFICULTIES WERE EXPERIENCED IN RELATION TO THE IMPORTATION OF ITALIAN WINE INTO FRANCE .

2 . THE SUBJECT-MATTER OF THE PROCEEDINGS RELATING TO A FAILURE OF STATE TO FULFIL AN OBLIGATION

19 BY THE FOUR COMPLAINTS FORMULATED IN ITS APPLICATION , THE COMMISSION ESSENTIALLY SEEKS TO OBTAIN A FINDING THAT THE FRENCH AUTHORITIES LIMITED THE QUANTITIES OF TABLE WINE OF ITALIAN ORIGIN IMPORTED IN BULK BY DELAYING THE RELEASE ON TO THE MARKET OF SUCH CONSIGNMENTS BY THE TWO SETS OF PRACTICES WHICH WERE THE SUBJECT OF THE REASONED OPINIONS OF 2 AND 9 OCTOBER 1981 , THAT IS TO SAY THE REJECTION OF THE ACCOMPANYING DOCUMENTS COVERING THE CARRIAGE OF ITALIAN WINE , ON THE ONE HAND , AND THE SUBJECTION OF THE IMPORTED WINES TO INSPECTION IN THE FORM OF SYSTEMATIC ANALYSES ON THE OTHER HAND .

20 IT MUST BE OBSERVED THAT PART OF THE DELAYS COMPLAINED OF , THAT IS TO SAY THE GRADUAL AND DECELERATING RELEASE OF THE QUANTITIES HELD UP AT THE FRONTIER AS A RESULT OF THE ARRANGEMENT ARRIVED AT BY THE FRENCH AND ITALIAN GOVERNMENTS ON 13 OCTOBER 1981 , THE RESUMPTION OF THE CONTESTED PRACTICES AT THE BEGINNING OF FEBRUARY AND THE CONTINUATION OF THEM UNTIL MARCH 1982 , TOOK PLACE AFTER THE REASONED OPINIONS WERE GIVEN . NEVERTHELESS IT IS COMMON GROUND THAT THESE ARE PRACTICES WHICH HAD ALREADY BEEN CONDEMNED IN THE REASONED OPINIONS AND WHICH WERE CONTINUED SUBSEQUENTLY OR ARE PRACTICES WHICH OCCURRED AFTER THE OPINIONS HAD BEEN GIVEN BUT WERE OF THE SAME KIND AS THOSE TO WHICH THE OPINIONS REFERRED AND CONSTITUTED THE SAME CONDUCT .

3 . THE REFUSAL TO ACCEPT THE ACCOMPANYING DOCUMENTS

21 IT IS APPROPRIATE TO EXAMINE FIRST THE DELAYS ARISING FROM THE PRACTICES OF THE FRENCH AUTHORITIES IN RELATION TO THE ACCOMPANYING DOCUMENTS AND THE PROCEDURE FOR THEIR REGULARIZATION .

22 THE COMMISSION , SUPPORTED BY THE ITALIAN GOVERNMENT , CLAIMS THAT THE ACCOMPANYING DOCUMENTS WHICH THE FRENCH AUTHORITIES REFUSED TO ACCEPT AS FROM THE MIDDLE OF AUGUST 1981 DID NOT IN FACT CONTAIN SUBSTANTIAL IRREGULARITIES WHICH JUSTIFIED SUCH A REFUSAL UNDER THE RELEVANT COMMUNITY RULES .

23 THE FRENCH GOVERNMENT ASSERTS THAT THE DOCUMENTS WERE IRREGULAR AND THAT IT WAS THEREFORE AUTHORIZED TO REFUSE THEM . MOREOVER THE ONUS IS ON THE COMMISSION TO PROVE THAT THE DOCUMENTS WHICH WERE REJECTED WERE NOT IN ORDER AND THE COMMISSION HAD NOT DISCHARGED THAT BURDEN .

24 ACCORDING TO REGULATION ( EEC ) NO 1153/75 OF THE COMMISSION OF 30 APRIL 1975 PRESCRIBING THE FORM OF THE ACCOMPANYING DOCUMENTS FOR WINE PRODUCTS AND SPECIFYING THE OBLIGATIONS OF WINE PRODUCERS AND TRADERS OTHER THAN RETAILERS ( OFFICIAL JOURNAL 1975 , L 113 , P . 1 ) ALL CARRIAGE OF WINE WITHIN THE COMMUNITY REQUIRES AN ACCOMPANYING WINE DOCUMENT OF THE TYPE ANNEXED TO THAT REGULATION . IN THE CASE OF COMMUNITY PRODUCTS , WITH THE EXCEPTION OF QUALITY WINES PSR AND WINES FORTIFIED FOR DISTILLATION , THE RELEVANT DOCUMENT IS FORM VA 1 . THE ACCOMPANYING DOCUMENTS AND ANY REQUISITE COPIES THEREOF ARE TO BE COMPLETED BY THE COMPETENT AGENCY OR AGENCIES OF THE MEMBER STATE IN WHICH CARRIAGE BEGINS OR BY THE AUTHORITY EMPOWERED FOR THAT PURPOSE , ACCORDING TO THE INFORMATION SUPPLIED BY AND ON THE RESPONSIBILITY OF THE CONSIGNOR AND IN THE MANNER LAID DOWN BY THE STRICT RULES OF THE REGULATION .

25 IT FOLLOWS FROM THOSE RULES THAT THE FRENCH AUTHORITIES WERE ENTITLED TO CHECK THAT ALL CARRIAGE IN BULK OF WINE OF ITALIAN ORIGIN PRESENTED AT THE FRONTIER WAS IN FACT ACCOMPANIED BY A VA 1 FORM WHICH HAD BEEN PROPERLY COMPLETED AND ISSUED BY THE COMPETENT ITALIAN AUTHORITIES .

26 NEVERTHELESS THE PROVISIONS CITED ABOVE MUST BE INTERPRETED IN THE LIGHT OF THE SECOND RECITAL IN THE PREAMBLE TO REGULATION NO 1153/75 ACCORDING TO WHICH THE OBLIGATION TO HAVE AN ACCOMPANYING DOCUMENT SHOULD NOT AMOUNT TO AN IMPEDIMENT TO TRADE OR TO THE MARKETING OF PRODUCTS IN THE WINE SECTOR . IT FOLLOWS FROM THAT RECITAL THAT ONLY ERRORS OR IRREGULARITIES IN A DOCUMENT WHICH ARE OF A SUBSTANTIAL NATURE AND WHICH ARE CONSEQUENTLY CAPABLE OF RENDERING IT USELESS FOR THE FULFILMENT OF ITS FUNCTION , AS AN OFFICIAL DOCUMENT , OF PROVIDING ESSENTIAL INFORMATION ABOUT THE NATURE OF THE PRODUCT , MAY JUSTIFY OBJECTIONS TO A DOCUMENT AND , CONSEQUENTLY , OBSTACLES TO IMPORTS .

27 IT IS CLEAR FROM THE FILE THAT THE IRREGULARITIES RELIED UPON BY THE FRENCH AUTHORITIES VARIED IN NATURE AND IMPORTANCE FROM CASE TO CASE . THUS , IN CONTRAVENTION OF REGULATION NO 1153/75 , IN CERTAIN CASES THE DOCUMENTS DO NOT SEEM TO HAVE BEEN COMPLETED IN TYPESCRIPT OR IN BLOCK CAPITALS , ALTHOUGH THEY WERE LEGIBLE , OR TO HAVE BEEN COMPLETED FULLY , ALTHOUGH CONTAINING INDIRECTLY ALL THE REQUIRED INFORMATION . SUCH IRREGULARITIES CANNOT , HOWEVER , BE REGARDED AS SUBSTANTIAL AND CANNOT JUSTIFY OBJECTIONS TO A DOCUMENT .

28 IN OTHER CASES , HOWEVER , AS WAS ADMITTED BY THE COMMISSION AND THE ITALIAN GOVERNMENT AT THE HEARING , THE LACK OF THE REQUIRED INFORMATION IN A NUMBER OF VA 1 FORMS WAS SUCH AS TO RENDER THE DOCUMENTS USELESS FOR THE FULFILMENT OF THEIR FUNCTION AS DESCRIBED ABOVE . THUS IN CERTAIN CASES THE DOCUMENT FAILED TO STATE THE ALCOHOLIC STRENGTH OR TO INDICATE THE ITALIAN AUTHORITY WHICH HAD ISSUED IT , IN OTHERS THAT STATEMENT WAS ILLEGIBLE AND IN YET OTHERS THE DOCUMENT DID NOT GIVE ANY INFORMATION , EVEN INDIRECTLY , ENABLING THE COUNTRY OF ORIGIN TO BE IDENTIFIED . SUCH IRREGULARITIES MUST BE REGARDED AS SUBSTANTIAL AND JUSTIFY OBJECTIONS TO A DOCUMENT .

29 IN THE PRESENT CASE IT HAS NOT BEEN POSSIBLE TO ESTABLISH WHETHER OR NOT ALL THE DOCUMENTS IN QUESTION WERE IRREGULAR AND WHETHER OR NOT THOSE IRREGULARITIES WERE OF A SUBSTANTIAL NATURE SINCE BOTH THE COMMISSION AND THE FRENCH GOVERNMENT HAVE STATED THAT THEY ARE NOT IN A POSITION TO PRODUCE THE DOCUMENTS . IT IS NEVERTHELESS POSSIBLE TO ACCEPT THAT AT LEAST SOME OF THE DOCUMENTS CONTAINED IRREGULARITIES OF SUCH A NATURE AS TO MAKE IT POSSIBLE , IN PRINCIPLE , TO RAISE OBJECTIONS TO THEM .

30 ARTICLE 12 ( 2 ) OF REGULATION NO 1153/75 PROVIDES THAT ' ' IF PRODUCTS ARE FOUND TO BE MOVING WITHOUT AN ACCOMPANYING DOCUMENT OR WITHOUT THE PROPER ACCOMPANYING DOCUMENT , THE COMPETENT AGENCY OF THE MEMBER STATE IN WHICH SUCH FINDING IS MADE OR ANY OTHER AUTHORITY RESPONSIBLE FOR VERIFICATION SHALL TAKE THE MEASURES NECESSARY TO REGULARIZE AND IF APPROPRIATE PENALIZE SUCH IRREGULAR CARRIAGE OPERATION ' ' . IT FOLLOWS FROM THAT PROVISION THAT THE AUTHORITIES FINDING IRREGULARITIES MUST IN THE FIRST PLACE TAKE STEPS TO REGULARIZE THEM IF THOSE AUTHORITIES ARE NOT TO IMPEDE TRADE UNJUSTIFIABLY .

31 SUCH REGULARIZATION MUST BE UNDERTAKEN IN PURSUANCE OF COUNCIL REGULATION ( EEC ) NO 359/79 OF 5 FEBRUARY 1979 ON DIRECT COOPERATION BETWEEN THE BODIES DESIGNATED BY MEMBER STATES TO VERIFY COMPLIANCE WITH COMMUNITY AND NATIONAL PROVISIONS IN THE WINE SECTOR ( OFFICIAL JOURNAL 1979 , L 54 , P . 136 ). ARTICLE 4 OF THAT REGULATION PROVIDES THAT , IN CASES OF DOUBT , THE COMPETENT BODY IS TO REQUEST THE COMPETENT BODY OF THE MEMBER STATE OF ORIGIN TO CHECK THE DOCUMENTS AND ENTRIES IN THE RECORDS . ACCORDING TO ARTICLE 3 THE COMPETENT BODY MAY REQUEST ANY RELEVANT INFORMATION AND IN PARTICULAR THE FORWARDING OF DOCUMENTS AND OTHER EVIDENCE WHERE THERE IS ' ' REASONABLE CAUSE FOR SUSPECTING ' ' THAT THE PRODUCT DOES NOT CONFORM TO THE WINE PROVISIONS .

32 A REASONABLE CAUSE FOR SUSPICION , IN THE SENSE OF ARTICLE 3 , CITED ABOVE , WHICH JUSTIFIES THE MAKING OF A REQUEST FOR DETAILED INVESTIGATIONS AND FOR THE FORWARDING OF DOCUMENTARY EVIDENCE , MUST BE BASED ON CONCRETE EVIDENCE RELATING TO A SPECIFIC CARRIAGE OPERATION . CONTRARY TO THE ARGUMENT PUT FORWARD BY THE FRENCH GOVERNMENT , THERE ARE NO GROUNDS FOR ENTERTAINING A GENERAL SUSPICION WITH REGARD TO ALL IMPORTS OF ITALIAN WINE ON THE BASIS OF A FEW IRREGULARITIES OR BREACHES WHICH HAD BEEN FOUND IN PARTICULAR CASES IN THE PAST . IN NO CASE MAY MERE FORMAL ERRORS IN THE ACCOMPANYING DOCUMENTS JUSTIFY A REASONABLE CAUSE FOR SUSPICION . IN THE ABSENCE OF A REASONABLE CAUSE FOR SUSPICION IN A SPECIFIC CASE THE FRENCH AUTHORITIES WERE THEREFORE ENTITLED TO REQUIRE NOTHING MORE THAN SIMPLE CHECKS AND CONFIRMATIONS ON THE PART OF THE ITALIAN AUTHORITIES FOR THE PURPOSE OF REGULARIZING THE CARRIAGE OPERATION IN QUESTION .

33 IT IS CLEAR FROM VARIOUS COMMUNICATIONS BY WHICH THE FRENCH GOVERNMENT ADDRESSED REQUESTS TO THE ITALIAN AUTHORITIES IN RELATION TO IRREGULAR VA 1 FORMS , THAT THE PURPOSE OF THOSE REQUESTS WAS SYSTEMATICALLY TO OBTAIN , WITHOUT ALLEGING ANY REASONABLE CAUSE FOR SUSPICION , DETAILED INVESTIGATIONS AND IN PARTICULAR TO OBTAIN THE ACCOMPANYING DOCUMENTS COVERING THE GOODS DURING THEIR PRELIMINARY CARRIAGE IN ITALY BETWEEN THE PLACE OF PRODUCTION AND THE WAREHOUSES FROM WHICH THEY WERE SENT TO FRANCE , SINCE THE FRENCH AUTHORITIES REFUSED TO RECOGNIZE AS ADEQUATE SIMPLE CONFIRMATION BY TELEX FROM THE ITALIAN AUTHORITIES , AFTER VERIFICATION , THAT THE VA 1 DOCUMENTS WERE IN ORDER .

34 IT FOLLOWS THAT THE FRENCH AUTHORITIES LAID DOWN REQUIREMENTS , FOR THE PURPOSES OF REGULARIZING IRREGULAR DOCUMENTS , WHICH WERE NOT COVERED BY THE RELEVANT COMMUNITY RULES .

35 IN ADDITION , THE ITALIAN GOVERNMENT CONTENDED THAT IN ACCORDANCE WITH A PRACTICE ESTABLISHED BETWEEN THE FRENCH AND ITALIAN AUTHORITIES , WHICH HAD EXISTED FOR SEVERAL YEARS , IRREGULARITIES SUCH AS THOSE FOUND AS FROM THE MIDDLE OF AUGUST 1981 IN THE VA 1 FORMS , WHICH OCCURRED FREQUENTLY , WERE ACCEPTED BY THE AUTHORITIES OF BOTH MEMBER STATES . THE FRENCH AUTHORITIES SUDDENLY AND WITHOUT NOTICE CHANGED THAT PRACTICE RELATING TO THE VERIFICATION OF DOCUMENTS . IN SUPPORT OF THAT CONTENTION THE ITALIAN GOVERNMENT PRODUCED TO THE COURT A NUMBER OF VA 1 FORMS WHICH HAD BEEN COMPLETED PRIOR TO THE PERIOD AT ISSUE , SOME BY THE FRENCH AUTHORITIES AND SOME BY THE ITALIAN AUTHORITIES , AND WHICH , DESPITE IRREGULARITIES OF THE TYPE REFERRED TO ABOVE , WERE ACCEPTED BY THE AUTHORITIES OF BOTH COUNTRIES WITHOUT ANY OBJECTION BEING TAKEN TO THEM . THE FRENCH GOVERNMENT HAS NOT PRESENTED ANY ARGUMENT PUTTING IN DOUBT THE EXISTENCE OF SUCH A PRACTICE .

36 IN ORDER TO AVOID OBSTACLES TO TRADE THE DUTY OF COOPERATION BETWEEN MEMBER STATES WHICH IS INHERENT IN THE COMMUNITY SYSTEM REQUIRES THAT IN SUCH A CASE OF A CHANGE IN PRACTICE NOTICE OF THE NEW PRACTICE MUST BE GIVEN TO THE AUTHORITIES OF THE MEMBER STATES CONCERNED SO THAT IT IS NOT MADE IMPOSSIBLE FOR THEM TO MAKE PREPARATIONS FOR THE NEW PRACTICE AND TO TAKE IT INTO ACCOUNT IN COMPLETING THE VA 1 DOCUMENTS .

37 MOREOVER , THE PROCEDURE LAID DOWN IN ARTICLE 8 OF REGULATION NO 359/79 , CITED ABOVE , ACCORDING TO WHICH REPRESENTATIVES OF THE MEMBER STATES ARE TO MEET AT REGULAR INTERVALS WITHIN THE MANAGEMENT COMMITTEE FOR WINE IN ORDER TO DISCUSS THE PROBLEMS RAISED BY THE APPLICATION OF THE REGULATION AND ANY OTHER PROBLEM RELATING TO THE UNIFORM SUPERVISION OF COMMUNITY PROVISIONS IN THE WINE SECTOR , SHOULD HAVE BEEN USED IN THE PRESENT CASE . THAT PROCEDURE IS INTENDED TO AVOID THE DIFFICULTIES WHICH MAY ARISE FROM UNILATERAL MEASURES OR THE ABSENCE OF UNIFORMITY IN THE APPLICATION OF THE COMMUNITY RULES AND TO AVOID THE OBSTACLES TO THE FREE MOVEMENT OF GOODS RESULTING THEREFROM .

38 IT FOLLOWS THAT , BY SUDDENLY ALTERING THE ESTABLISHED PRACTICE , THE FRENCH AUTHORITIES COMMITTED A BREACH OF AN OBLIGATION IMPOSED ON THEM BY COMMUNITY LAW .

39 THE COMMISSION AND THE ITALIAN GOVERNMENT ALSO CLAIMED THAT THE REQUESTS SENT BY THE FRENCH AUTHORITIES TO THE ITALIAN AUTHORITIES WITH REGARD TO IRREGU LARITIES IN VA 1 FORMS RELATED IN PART TO OPERATIONS WHICH HAD TAKEN PLACE SEVERAL MONTHS OR SEVERAL WEEKS PREVIOUSLY .

40 WHEN AN IRREGULARITY IN ACCOMPANYING DOCUMENTS IS FOUND ARTICLE 12 ( 2 ) OF REGULATION NO 1153/75 IMPOSES AN OBLIGATION ON THE NATIONAL AUTHORITIES IN QUESTION TO ADOPT WITHOUT DELAY THE MEASURES NEEDED TO REGULARIZE ANY IRREGULAR CARRIAGE OPERATION SO AS TO AVOID UNJUSTIFIED DELAYS IN THE RELEASE OF THE WINE IN QUESTION FOR CONSUMPTION .

41 IN THE PRESENT CASE THE FRENCH GOVERNMENT HAS NOT DISPUTED THE DETAILED ALLEGATIONS MADE BY THE ITALIAN GOVERNMENT IN RELATION TO THE SUBSTANTIAL DELAYS IN THE REQUESTS ADDRESSED TO THE ITALIAN AUTHORITIES IN CERTAIN CASES . IT SHOULD THEREFORE BE ACCEPTED THAT , AGAIN IN REGARD TO THIS ASPECT , THE PRACTICE OF THE FRENCH AUTHORITIES IN RELATION TO THE CHECKING OF THE ACCOMPANYING DOCUMENTS DID NOT CONFORM IN ALL CASES TO THE COMMUNITY RULES .

42 FINALLY , THE COMMISSION AND THE ITALIAN GOVERNMENT HAVE CONTENDED THAT THE FRENCH AUTHORITIES DID NOT RELEASE FOR CONSUMPTION THE QUANTITIES OF WINE WHICH WERE HELD UP EVEN IN CASES WHICH HAD BEEN REGULARIZED .

43 IN THAT CONNECTION IT SHOULD BE NOTED THAT THE RELEASE OF THE CONSIGNMENTS WHICH HAD BEEN HELD UP AS FROM AUGUST 1981 WAS CARRIED OUT , REGARDLESS OF ANY REGULARIZATION OF THE DOCUMENTS , IN ACCORDANCE WITH THE PROCEDURES UNDER THE POLITICAL ARRANGEMENT MADE AT PISA ON 13 OCTOBER 1981 BETWEEN THE FRENCH AND ITALIAN GOVERNMENTS .

44 THUS IN THAT RESPECT , TOO , THE FRENCH AUTHORITIES HAVE ALSO FAILED TO FULFIL THE OBLIGATION IMPOSED ON THEM BY THE COMMUNITY RULES ON WINE TO REGULARIZE THE CARRIAGE OPERATIONS IN RESPECT OF WINES ACCOMPANIED BY IRREGULAR DOCUMENTS .

45 IT FOLLOWS FROM THE ABOVE CONSIDERATIONS THAT THE PRACTICES OF THE FRENCH AUTHORITIES IN RELATION TO THE VERIFICATION OF DOCUMENTS WERE CONTRARY TO THE RULES CONCERNING WINE . THEY ALSO CONSTITUTE AN INFRINGEMENT OF ARTICLE 30 OF THE EEC TREATY WHICH PROHIBITS QUANTITATIVE RESTRICTIONS ON IMPORTS AND ALL MEASURES HAVING EQUIVALENT EFFECT .

4 . OENOLOGICAL CHECKS BY MEANS OF SYSTEMATIC ANALYSES

46 IN THE SECOND PLACE IT IS NECESSARY TO EXAMINE THE DELAYS IN THE RELEASE FOR CONSUMPTION CAUSED BY THE PRACTICE OF THE FRENCH AUTHORITIES OF SYSTEMATICALLY SUBJECTING CONSIGNMENTS OF ITALIAN WINE TO ANALYSES PRIOR TO SUCH RELEASE .

47 ACCORDING TO THE COMMISSION AND ITALIAN GOVERNMENT THE FRENCH AUTHORITIES CARRIED OUT SYSTEMATIC ANALYSES PRIOR TO RELEASE FOR CONSUMPTION IN ORDER TO DELAY THE RELEASE AND TO LIMIT THE VOLUME OF IMPORTS . THEY CONTEND THAT IN ANY EVENT IT IS NOT NECESSARY TO HOLD UP CONSIDERABLE QUANTITIES OF WINE AT THE FRONTIERS FOR THE PURPOSE OF OENOLOGICAL CHECKS AND THAT THE DURATION OF THE ANALYSES , WHICH COVERED SEVERAL WEEKS , EXCEEDED BY FAR THE ACCEPTABLE PERIOD OF A FEW DAYS .

48 THE FRENCH GOVERNMENT MAINTAINS THAT THE PURPOSE OF THE ANALYSES WAS TO ENSURE COMPLIANCE WITH THE COMMUNITY REGULATIONS ON WINE , TO PROTECT CONSUMERS AND THE HEALTH AND LIFE OF HUMANS . THE DELAY CAUSED BY THAT PROCESS WAS INHERENT IN THE NATURE OF SUCH ANALYSES .

49 IT IS AN ESTABLISHED FACT THAT THE FRENCH AUTHORITIES SYSTEMATICALLY SUBJECTED TABLE WINE IMPORTED IN BULK FROM ITALY TO ANALYSES AND DID SO , DURING THE FIRST PERIOD IN QUESTION , IN THE CASE OF ALL CONSIGNMENTS OF ITALIAN WINE AND , AFTER THE BEGINNING OF FEBRUARY 1982 , IN THE CASE OF THREE CONSIGNMENTS OUT OF FOUR , THAT THEY MADE THE RELEASE FOR CONSUMPTION OF THOSE CONSIGNMENTS DEPENDENT ON THE RESULTS OF THE ANALYSES AND THAT THOSE RESULTS WERE NOT KNOWN FOR SEVERAL WEEKS BECAUSE OF THE DELAYS INVOLVED IN THE PROCEDURE WHICH WAS EMPLOYED .

50 IN THAT CONNECTION IT MUST BE STATED FIRST THAT SUCH OENOLOGICAL CHECKS ARE LIKELY TO MAKE IMPORTATION MORE DIFFICULT OR MORE COSTLY AS A RESULT IN PARTICULAR OF THE DELAYS AND THE ADDITIONAL TRANSPORT COSTS WHICH THE IMPORTER MAY INCUR THEREBY . IT FOLLOWS THAT SUCH OPERATIONS - WHETHER CARRIED OUT SYSTEMATICALLY OR NOT - CONSTITUTE MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS WITHIN THE MEANING OF ARTICLE 30 OF THE EEC TREATY , WHICH ARE PROHIBITED BY THAT PROVISION , SUBJECT TO THE EXCEPTIONS LAID DOWN BY COMMUNITY LAW AND IN PARTICULAR BY ARTICLE 36 OF THE TREATY .

51 BY VIRTUE OF ARTICLE 36 OF THE TREATY , ARTICLE 30 DOES NOT PRECLUDE RESTRICTIONS ON IMPORTS JUSTIFIED IN PARTICULAR ON GROUNDS OF THE PROTECTION OF HEALTH AND LIFE OF HUMANS . NEVERTHELESS , SINCE SUCH RESTRICTIONS DEROGATE FROM THE FUNDAMENTAL PRINCIPLE OF THE FREE MOVEMENT OF GOODS , THEY ARE IN CONFORMITY WITH THE TREATY ONLY IN SO FAR AS THEY ARE NECESSARY FOR THE ATTAINMENT OF THOSE VERY OBJECTIVES AND DO NOT CONSTITUTE EITHER A MEANS OF ARBITRARY DISCRIMINATION OR A DISGUISED RESTRICTION ON TRADE BETWEEN MEMBER STATES .

52 IT CANNOT BE EXCLUDED THAT IN CERTAIN CASES HEALTH CHECKS BY MEANS OF ANALYSES MAY BE AN APPROPRIATE MEANS OF PREVENTING THE DANGERS RESULTING FOR EXAMPLE , FROM PROHIBITED OENOLOGICAL PRACTICES OR THE USE OF UNHYGIENIC MEANS OF TRANSPORT AND MAY SERVE TO ENSURE THE PROTECTION OF HEALTH AND LIFE OF HUMANS .

53 IT IS APPROPRIATE TO ADD THAT VARIOUS PROVISIONS OF THE COMMUNITY RULES ON WINE , SUCH AS ARTICLE 64 OF COUNCIL REGULATION ( EEC ) NO 337/79 OF 5 FEBRUARY 1979 ON THE COMMON ORGANIZATION OF THE MARKET IN WINE ( OFFICIAL JOURNAL 1979 , L 54 , P . 1 ) AND ARTICLE 46 ( 2 ) OF COUNCIL REGULATION ( EEC ) NO 355/79 OF 5 FEBRUARY 1979 LAYING DOWN GENERAL RULES FOR THE DESCRIPTION AND PRESENTATION OF WINES AND GRAPE MUSTS ( OFFICIAL JOURNAL 1979 , L 54 , P . 99 ) CONFER ON THE NATIONAL AUTHORITIES THE RESPONSIBILITY FOR ENSURING COMPLIANCE WITH THE COMMUNITY RULES . CHECKS BY MEANS OF ANALYSES MAY , IN THAT CONTEXT TOO , BE A USEFUL MEANS OF DISCOVERING INFRINGEMENTS OF THE RULES IN QUESTION .

54 NEVERTHELESS THE MEASURES OF VERIFICATION CARRIED OUT MUST BE NECESSARY FOR ATTAINMENT OF THE DESIRED OBJECTIVES AND MUST NOT CREATE OBSTACLES TO TRADE WHICH ARE DISPROPORTIONATE TO THOSE OBJECTIVES .

55 AS REGARDS THE QUESTION OF THE PERMISSIBLE FREQUENCY OF THE ANALYSES , IT MUST BE REMARKED THAT IT WAS THE SUBJECT OF GREAT FLUCTUATION DURING THE PERIOD IN QUESTION . WHEREAS IN AUGUST 1981 ALL CONSIGNMENTS OF WINE WERE SUBJECT TO ANALYSES , AFTER THE ARRANGEMENTS UPON WHICH AGREEMENT WAS REACHED IN PISA IN OCTOBER 1981 RANDOM CHECKS IN 10% OF CASES WAS CONSIDERED SUFFICIENT . AT THE END OF JANUARY 1982 THAT FREQUENCY WAS INCREASED ONCE MORE TO A CHECK OF THREE CONSIGNMENTS OUT OF FOUR . THE FRENCH GOVERNMENT WAS UNABLE TO PROVIDE ANY JUSTIFICATION FOR THOSE VARIATIONS WHICH THEREFORE DO NOT SEEM TO BEAR ANY RELATION TO THE OVERRIDING REQUIREMENTS RESULTING FROM THE AFOREMENTIONED OBJECTIVES . THE ANALYSES WERE CARRIED OUT IN THE ABSENCE OF ANY CONCRETE FACTS WHICH MIGHT JUSTIFY A SUSPICION OF FRAUD OR IRREGULARITIES IN A GIVEN CASE .

56 THE FREQUENCY OF THE ANALYSES WAS DISTINCTLY HIGHER THAN THE OCCASIONAL CHECKS CARRIED OUT ON THE TRANSPORTATION OF FRENCH WINE WITHIN FRANCE . IT IS AN ESTABLISHED FACT THAT CHECKS ARE ALSO CARRIED OUT BY THE ITALIAN AUTHORITIES IN ORDER TO ENSURE THAT WINE PRODUCED IN ITALY COMPLIES WITH THE COMMUNITY RULES AND THAT CONSUMERS AND THE HEALTH AND LIFE OF HUMANS ARE PROTECTED . THE FRENCH AUTHORITIES WERE UNDER A DUTY TO TAKE INTO ACCOUNT THE EXISTENCE OF THOSE CHECKS CARRIED OUT IN THE COUNTRY OF ORIGIN OF THE WINE . ADULTERATION OR IRREGULARITIES DISCOVERED IN PARTICULAR CASES PRIOR TO THE PERIOD IN QUESTION CAN BY NO MEANS JUSTIFY A GENERAL SUSPICION IN RELATION TO ALL IMPORTS OF ITALIAN WINE OR THE CARRYING OUT OF SYSTEMATIC ANALYSES WHEN NO SIMILAR PRACTICE EXISTS IN RELATION TO FRENCH WINE .

57 IT FOLLOWS THAT THE FRENCH AUTHORITIES HAD NO RIGHT TO CARRY OUT SYSTEMATIC CHECKS BY MEANS OF ANALYSES AND , IN THE ABSENCE OF ANY REASONABLE SUSPICION ON THE BASIS OF SPECIFIC EVIDENCE IN A GIVEN CASE , OUGHT TO HAVE CONFINED THEMSELVES TO RANDOM CHECKS .

58 THE FRENCH GOVERNMENT ITSELF HAS DECLARED FOLLOWING THE REASONED OPINION THAT ANALYSES IN ONE CASE OUT OF 10 WOULD BE SUFFICIENT . IN VIEW OF THAT ASSESSMENT THE SYSTEMATIC ANALYSES CARRIED OUT BY THE FRENCH AUTHORITIES ON ALL CONSIGNMENTS OR ON THREE CONSIGNMENTS OUT OF FOUR EXCEED THE PERMISSIBLE FREQUENCY OF CHECKS BY MEANS OF ANALYSES AND CONSTITUTE DISCRIMINATORY TREATMENT IN COMPARISON TO THE CHECKS TO WHICH WINE PRODUCED IN FRANCE IS SUBJECTED .

59 WITH REGARD TO THE PERIOD OF SOME WEEKS DURING WHICH ANALYSES WERE CARRIED OUT , IT MUST BE OBSERVED THAT THE TIME NECESSARILY TAKEN BY SUCH ANALYSES OF WINE MAY VARY ACCORDING TO THE CIRCUMSTANCES OF THE CASE , IN PARTICULAR ACCORDING TO THE KIND OF ANALYSES TO BE UNDERTAKEN . IN THE PRESENT CASE THE COURT DOES NOT HAVE SUFFICIENT INFORMATION WITH REGARD TO THE CONDUCT OF THE ANALYSES IN SPECIFIC CASES TO BE ABLE TO CONSIDER WHETHER THE PERIOD BETWEEN THE TAKING OF SAMPLES FOR THE PURPOSE OF ANALYSES AND THE NOTIFICATION OF THE RESULTS WAS LONGER THAN WAS NECESSARY .

60 NEVERTHELESS IT MUST BE STATED THAT WHERE SAMPLES OF FRENCH WINE ARE TAKEN FOR THE PURPOSE OF ANALYSES THAT DOES NOT ENTAIL THE AUTOMATIC DETENTION OF THE WINE IN QUESTION UNTIL THE RESULTS OF THE ANALYSES ARE KNOWN BECAUSE THE PROVISIONS OF COMMUNITY LAW IN RESPECT OF THE KEEPING OF RECORDS AND IN RESPECT OF ACCOMPANYING DOCUMENTS NORMALLY ENABLE A CONSIGNMENT OF WINE TO BE LOCATED AND IDENTIFIED ONCE THE RESULTS OF THE ANALYSES ARE KNOWN .

61 IN THE CASE OF RANDOM ANALYSES OF CONSIGNMENTS OF IMPORTED WINE THE DETENTION OF THE CONSIGNMENT IN QUESTION AT THE FRONTIER UNTIL THE RESULTS OF THE ANALYSIS ARE KNOWN CONSTITUTES A DISPROPORTIONATE AND DISCRIMINATORY OBSTACLE TO IMPORTS WHERE SUCH ANALYSES INVOLVE SUBSTANTIAL PERIODS OF TIME IN EXCESS OF A FEW DAYS AND IN VIEW OF THE POSSIBILITY OF RELOCATING AND IDENTIFYING A CONSIGNMENT OF WINE . THE SITUATION WOULD BE DIFFERENT ONLY IF THE ANALYSES WERE CARRIED OUT IN AN INDIVIDUAL CASE ON THE BASIS OF A REASONABLE SUSPICION OF FRAUD OR IRREGULARITY REGARDING THE PRODUCT CONCERNED . THE FRENCH GOVERNMENT HAS NOT PLEADED ANY ACTUAL CASES WHERE THERE WAS SUCH A SUSPICION .

62 FURTHERMORE , IT MUST BE REMARKED THAT IT IS CLEAR FROM THE AFOREMENTIONED TELEX MESSAGE OF 2 FEBRUARY 1982 AND FROM ALL THE CIRCUMSTANCES THAT THE MAKING OF ANALYSES WAS INTENDED TO DELAY THE RELEASE TO THE MARKET OF THE CONSIGNMENTS IN QUESTION AND THEREBY TO LIMIT THE QUANTITY OF IMPORTS OF WINE OF ITALIAN ORIGIN .

63 IT FOLLOWS THAT , BOTH BY REASON OF THE FREQUENCY OF THE ANALYSES AND BY REASON OF THE FACT THAT THE CONSIGNMENTS CHECKED IN THAT MANNER WERE DETAINED AT THE FRONTIER IN ALL CASES , THE PRACTICE OF THE FRENCH AUTHORITIES WITH REGARD TO CHECKS BY MEANS OF SYSTEMATIC WAS CONTRARY TO THE REQUIREMENTS OF ARTICLES 30 AND 36 OF THE EEC TREATY .

64 IT FOLLOWS FROM THE FOREGOING THAT IT IS NECESSARY TO DECLARE THAT BY DELAYING THE RELEASE FOR CONSUMPTION OF TABLE WINES IMPORTED IN BULK FROM ITALY BY MEANS OF THE VERIFICATION AND REGULARIZATION OF ACCOMPANYING VA 1 DOCUMENTS AND OF SYSTEMATIC CHECKS BY MEANS OF ANALYSES , AND BY THEREBY RESTRICTING IMPORTS OF SUCH TABLE WINES BETWEEN AUGUST 1981 AND MARCH 1982 , THE FRENCH REPUBLIC FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 30 OF THE EEC TREATY AND UNDER THE COMMUNITY REGULATIONS OF WINE .

Decision on costs

COSTS

65 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . AS THE DEFENDANT HAS BEEN UNSUCCESSFUL IT MUST BE ORDERED TO PAY THE COSTS , INCLUDING THOSE OF THE PARTY INTERVENING IN SUPPORT OF THE APPLICANT AND THOSE ARISING FROM THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES WHICH WERE RESERVED BY ORDER OF THE COURT OF 4 MARCH 1982 .

Operative part

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DECLARES THAT BY DELAYING THE RELEASE FOR CONSUMPTION OF TABLE WINES IMPORTED IN BULK FROM ITALY BY MEANS OF THE VERIFICATION AND REGULARIZATION OF ACCOMPANYING VA 1 DOCUMENTS AND OF SYSTEMATIC CHECKS BY MEANS OF ANALYSES , AND BY THEREBY RESTRICTING IMPORTS OF SUCH TABLE WINES BETWEEN AUGUST 1981 AND MARCH 1982 , THE FRENCH REPUBLIC FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 30 OF THE EEC TREATY AND UNDER THE COMMUNITY REGULATIONS ON WINE .

2.ORDER THE DEFENDANT TO PAY THE COSTS , INCLUDING THOSE OF THE PARTY INTERVENING AND THOSE ARISING FROM THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .