4.

We now come to the argument which the German Government has maintained since the prelitigation stage, and puts forward as its main one. The power to enact national measures prohibiting the use of rectified concentrated must, it asserts, is based, in so far as quality wines are concerned, on Article 19 of Regulation No 338/79, and in so far as local wine is concerned, on the second paragraph of Article 2 (3) (i) of Regulation No 355/79 of 5 February 1979 (Official Journal 1979, L 54, p. 99). Article 19 of Regulation No 338/79 provides that: ‘In addition to the provisions laid down in this regulation, producer Member States may, taking into account fair and traditional practices, lay down any additional or more stringent characteristics or conditions of production and movement in respect of the quality wines produced in specified regions within their territory.’ Under Article 2 of Regulation No 355/79, the terms ‘Landwein’, ‘vin de pays’ and ‘vino tipico’ may be used in the labelling of table wine only in so far as national rules reserve them for ‘table wines meeting certain production requirements, particularly as regards vine varieties, minimum natural alcoholic strength by volume and organoleptic characteristics’. The object of those provisions, according to the German Government, is to permit each Member State to take due account of the conditions of production and traditional requirements applying to its better wines, whether quality wines or local wines. The common rules on winegrowing therefore constitute minimum criteria and for that very reason the Member States may apply stricter rules without breaching their own obligations under Community law. That is precisely what has been done in the case of rectified concentrated grape must, the use of which is open to abuse and also raises microbiological problems, is not one of the production methods of German wine growers and is foreign to their traditions. Let me say right away that that argument is also unfounded. The German Government fails to establish that subsequent national provisions can derogate from the Community rules on the increase of alcoholic strength and in particular that such a derogation is authorized by Article 19 of Regulation No 338/79 and Article 2 of Regulation No 355/79. That is not all. Even supposing such a derogation to be lawful, the argument put forward by the German Government does not explain: (a) what objective criteria justify the greater strictness of the national rules in comparison with the conditions laid down in the basic regulations; (b) in what manner the use of rectified concentrated grape must may harm the quality of the wine; (c) how a provision regarding a designation which may be included in the labelling of table wine justifies an absolute prohibition such as that laid down in Articles 10 and 11 of the Weingesetz. Let us deal with these issues one by one. As appears from the 21st recital in the preamble to Regulation No 337/79, the Community legislature accepted that in certain years ‘it may be necessary to permit the enrichment of products suitable for yielding table wine’; it considered it necessary, however, ‘in the interests alike of the quality and of the market, that such enrichment be subject to certain conditions and limits ... ’ (my italics). Article 1 of that regulation thus provides that: ‘The common organization of the market in wine shall comprise ... rules concerning production ... and rules concerning oenological processes.’ The practices concerned, in particular those regarding enrichment, are the only ones authorized with regard to table wines and quality wines (see Article 46 of Regulation No 337/79 and Articles 8 and 10 of Regulation No 338/79). The Court has thus correctly held that ‘the general rule ... is that increases in alcoholic strength are prohibited’ and that consequently Articles 32, 33 and 36 of the basic regulation represent ‘a body of rules which strictly regulate practices involving enrichment’ (paragraphs 17 and 22 of the Röser judgment; my italics). Where do those remarks lead us? The reply, I think, is easy. When the Community establishes a market organization and, in order to safeguard the quality of a product, lays down specific and detailed rules governing certain practices, the well known principle of ‘preemption’ applies: the Member States must refrain from taking any measures which might undermine or create exceptions to those rules (see, most recently, the judgment of 7 February 1984 in Case 237/82, Jongeneel Kaas v Netherlands, [1984] ECR 483. In this case therefore, the Federal Republic of Germany could not enact measures regarding enrichment methods for which detailed rules had already been laid down under the common organization of the market in wine. Or rather, it could have enacted such measures — but, as we know, it did not — only in accordance with the procedure provided for in Article 67 of the basic regulation, that is to say, in the context of a management committee composed of representatives of the Commission and of the Member States. Since it is thus established that in general the increase of alcoholic strength is forbidden and that Member States may not enact legislation with regard to the processes permitted in exceptional circumstances by Regulation No 337/79, it must be determined whether they have such a power under other provisions of Community law. In particular, can it be said that the two provisions — Article 19 of Regulation No 338/79 and Article 2 of Regulation No 355/79 — relied on by the German Government have that effect? Article 19, as I have pointed out, allows Member States to lay down more stringent characteristics or conditions concerning the production and movement of quality wines. No mention is made of enrichment, however, and it is clear that silence on that point cannot be understood as implied authorization to modify the specific rules governing those processes which are moreover exceptional in nature. Si lex tacuit, voluit is a Latin tag of dubious reliability; in any event, I think that the silence in question was entirely intentional. It will be recalled that under Article 46 (1) of the basic regulation ‘only those oenological practices and processes referred to in this regulation ... shall be authorized’ and that they ‘may only be applied for the purpose of ensuring proper vinification’. Article 46 (2) provides that by way of derogation ‘Member States may, in respect of the oenological practices and processes referred to in Annex HI, impose stricter conditions to ensure the preservation of the essential characteristics of quality wines psr and table wine.’ There we have a derogation with regard to which there can be no doubt. But the German Government has not referred to it. Why? The reason is clear: it concerns only the practices and processes referred to in a part of the regulation— Annex III — which does not mention operations for the increase of alcoholic strength. If, therefore, those practices are excluded from the scope of Article 46 (2), a fortiori they cannot be regarded as implicitly included, with regard to quality wines and table wines, in the provisions of Article 19 of Regulation No 338/79 and Article 2 of Regulation No 355/79. The keystone of the German Government's argument is therefore without substance. Let us suppose, however, that it is possible to make derogations. In that case, in comparison with the conditions laid down in Article 32 and confirmed in Article 33, the prohibition on the use of rectified concentrated grape must does indeed constitute a stricter measure, but at the price of conflicting with those articles and, what is worse, without being justified by any objective criterion. The German Government has sought to justify it by referring to factors such as impurities in rectified concentrated grape must, the abuses to which its use might give rise, German wine growers' lack of familiarity with it, or, conversely, the neutral nature and lower cost of sugar. At the hearing, however, it acknowledged that rectified concentrated grape must is a type of sugar free of wine particles and equivalent in quality to sucrose. It may well be true that German wine growers are unfamiliar with its use, but to prohibit it for such a reason seems to me to be frankly absurd. Let me add a few words, finally, on Article 2, which the German Government relies on in order to justify its prohibition on the use of rectified concentrated grape must in local wine. I do not consider that article to be relevant. Far from envisaging derogations or stricter conditions regarding the increase of alcoholic strength, it merely provides for the inclusion of additional information in labelling, in the context of a regulation (Regulation No 355/79) whose main object is the protection of commercial transactions and consumers. I conclude, therefore, that neither Article 19 of Regulation No 338/79 nor Article 2 of Regulation No 355/79 gives the Member States any power to prohibit the use of rectified concentrated grape must to increase the alcoholic strength of vinous products.