5.

It must, however, be recognized that the States nevertheless have power to apply their own verification methods which are calculated to prevent or detect breaches of the Community rules on wine products. In particular, the application of a presumption of an increase in natural alcoholic strength, based on the alcohol/dry-extract ratio is not, in principle, repugnant to any Community rule. But the presumption is allowable only on condition that it is not liable to lead to discrimination between the products of the various Member States, and on the further condition that it represents nothing more than a monitor of the extent to which products comply with the relevant Community rules and that it is not liable to constitute a substantive amendment of those rules, as would be the case if those concerned were not afforded adequate opportunity to supply conflicting evidence for the purpose of rebutting a result which, in the event, did not correspond with the facts. It is clear from the experts' reports which were quoted during the proceedings and from certain statements by the French authorities themselves that the application of the verification method concerned cannot in every case ensure that the result is accurate; this is because, depending upon the zone, the year, the prophylactic substances used on the wine, the method of production and other factors peculiar to the various wines, the result of the analysis might be such as to indicate over-alcoholization in cases where it was not present. It is, therefore, important that there should be valid opportunities of supplying evidence in rebuttal and that, in this connexion, there should be no discrimination, in law or in fact, between the products of the various zones of the Community. If, in the case of wines complying with the Community rules, it were to prove unduly difficult to adduce evidence in rebuttal of the presumption of over-alcoholization, this would be liable to convert the national rule on the subject of detection of fraudulent practices de facto into a rule making substantive amendments to the definition of the product which appears in Annex II to Regulation No 816/70 of the Council. But all this is taken for granted and applied under a method which takes into full account the practical requirements for the vitality of the market and the need for efficient monitoring. The importer of a wine produced in another Member State will, generally speaking, have greater difficulty in rebutting the presumption than a French producer or than when he is himself handling wine produced on the territory of his own country. From this point of view, therefore, traders in foreign wines suffer actual disadvantage compared with those dealing in home-produced wines. It should furthermore be noted that in the appraisal of evidence rebutting the presumption the administrative authorities are undoubtedly allowed some discretion. In the judgment in Case 39/70 (Fleischkontor, Rec. 1971, page 58) the Court held that where an excessive margin of discretion left to the State in adopting measures designed to prevent breaches of Community legislative provisions may lead to malpractices and discrimination based on nationality, it must be considered incompatible with Community law. This principle was laid down in respect of national provisions which, in view of the system of proof provided for under the Community rules applicable in the case under consideration, did not appear essential to enable the common organization of the market to work and is certainly not directly or, I would almost say, automatically, applicable to national laws designed to prevent fraudulent practices in the wine sector and which continue to be necessary so long as there are no effective Community rules on the subject of verification. The precedents established by this Court are at least a reminder, however, that the national bodies are required to be particularly careful in using their discretion in the exercise of powers which, even though they are not formally concerned with the movement of the product but only with its release for consumption, have a substantial effect on the free movement of the product between Member States. The serious and specific difficulties which importers of wine from other Member States may encounter with regard to evidence in rebuttal might lead to a situation which is incompatible with the Community system, apart from any alteration which they might de facto produce in the substantive provisions of Regulation No 816/70, not to mention infringement of the general prohibition of discrimination on grounds of nationality (or of the origin of the product, which is the same thing) or of the prohibition of measures having effect equivalent to a quantitative restriction on imports. As a case in point, we have learned during these proceedings that, in the circular of 25 March 1974, the French authorities were at pains to alter the ratios prescribed under Article 8 of the Wine Code in order to allow for the particular climatic conditions of the 1973 harvest in the Beaujolais and Mâcon vineyards. It would be difficult for a national authority to be in possession of the information necessary to react so promptly in this manner for the benefit of foreign wines when similar conditions were found to affect the harvest in other countries or, more generally, when particular conditions associated with climatic factors, affecting cultivation of processing, were such as to make it impossible to place much reliance on the result of applying the abovementioned method. The margin of error cannot be eliminated in a system which, like the one in question, is based on presumption and which, for technical reasons, may work to the disadvantage of foreign, as compared with national, products whose characteristics were used as the basis for determining the ratio between alcohol and dry extract and for the presumption of over-alcoholization. Because of this, the fundamental principle of equality of treatment for traders and products requires that the principle of equality, must also be, in essence, observed in respect of any additional burden which, through application of the verification system, may be placed on traders complying with the law. It is for the national court to determine whether, despite the fact that the system of verification may provide every opportunity for the production of evidence in rebuttal, the presumption results, in general terms, or even simply in a given case, in an undue burden on certain categories of the product concerned, because there is a grave risk that it would place them in a particularly unfavourable position compared to the products of their competitors. If this were to be the case, it would indicate a situation which was incompatible with the common legislation for the sector and would, accordingly, require that application of that verification method should cease, at least in the individual case. Any such behaviour of the administrative bodies might assume importance only when considered as a whole and, on this basis, would as a rule not be amenable to direct review by the court: this might occur where free circulation was restricted as a result of an over-zealous use of the methods of verification in the case of wines of other States in such a way as to discourage their importation. In the circumstances, it would be primarily for the Commission, after a comprehensive assessment of such conduct, to adopt the measures necessary to stop the abuse.