Opinion of Mr Advocate General Mischo delivered on 6 July 1988. - Erzeugergemeinschaft Goldenes Rheinhessen w.V. v Land Rheinland-Pfalz. - Reference for a preliminary ruling: Oberverwaltungsgericht Rheinland-Pfalz - Germany. - Market in wine - Description and presentation of wines - Information on bottling. - Case 311/87.



European Court reports 1988 Page 06295



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . Erzeugergemeinschaft Goldenes Rheinhessen w.V . is a group of wine-growers recognized by the State . It has laid down rules relating to production and quality which its members must observe when making their grapes into wine, which they do in their own vineyards . The association collects its members' wines, carries out fining and sweetening in its own cellars and then arranges for their transportation to a "Weinkellerei" for bottling .

2 . The dispute in the main proceedings concerns the question whether such an association may use, when labelling its wines, the description "Erzeugerabfuellung" ( literally : bottled by the producer ) although the wine has been neither made nor bottled in the facilities of the producers' group .

3 . Under Article 12 ( 2 ) ( q ) 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 ( 1 ) the description on the labelling may be supplemented by a statement that the wines were bottled :

( i ) either at the vineyard where the grapes used were harvested and made into wine,

( ii ) or by a group of vineyards,

( iii ) or in an undertaking situated in the specified region indicated or in the immediate vicinity of that region, with which the vineyards where the grapes used were harvested are connected as members of a group of vineyards, and which made wine from the said grapes .

4 . Article 17 ( 1 ) ( a ) of Commission Regulation ( EEC ) No 997/81 of 26 March 1981 laying down detailed rules for the description and presentation of wines and grape musts ( 2 ) provides that for German wines and wines from the province of Bolzano the term to be used in each of the three abovementioned cases is "Erzeugerabfuellung ".

5 . The Oberverwaltungsgericht Rheinland-Pfalz, before which an action was brought by Erzeugergemeinschaft Goldenes Rheinhessen for a declaration that it was entitled to use the description "Erzeugerabfuellung" in the circumstances set out in paragraph 2 above, put the following question to the Court :

"Is the second indent of Article 12 ( 2 ) ( q ) of Council Regulation ( EEC ) No 355/79, of 5 February 1979, laying down general rules for the description and presentation of grape musts ( Official Journal 1979, L 54, p . 99 ) to be interpreted as meaning that the right of a group of vineyards to describe its wines as 'Erzeugerabfuellung' does not depend on the undertaking in which the bottling took place and the grapes were made into wine, or as meaning that the bottling and wine-making or one of those two operations must have taken place in the facilities of the producers' group?"

6 . The whole problem obviously derives from the fact that the second indent of Article 12 ( 2 ) ( q ) of Council Regulation No 355/79 uses the expression "( bottled ) by a group of vineyards" and thus refers only to the person responsible for the bottling, while the first and third indents stress the place where the bottling and wine-making are to have taken place, that is to say the individual vineyard or the undertaking as defined in the third indent .

7 . Should it be concluded, reasoning a contrario, that a group of vineyards is not bound by strict rules in this regard? In an attempt to find an answer to this question, I shall examine in turn the literal meanings of the expressions used in the relevant legislation and its general scheme and purpose .

8 . It should first of all be noted that there can be no doubt that the expression "bottled by a group of vineyards" (" von einem Erzeugerzusammenschluss", "da parte di un' associazione di aziende viticole", "par un groupement d' exploitations viticoles", etc .) means that bottling must take place in such a manner as to ensure that the group can be considered truly responsible for the bottling operation . That operation must therefore take place under the actual direction and continuous supervision of the group and at its sole responsibility .

9 . Secondly, we must examine the scope of the terms used in Article 17 of Commission Regulation No 997/81, referred to above . We have seen that the regulation provides only for the indication "Erzeugerabfuellung" for German wines and wines from the province of Bolzano . As the Commission has made no distinction between the three cases provided for in Council Regulation No 355/79, the use of the term "Erzeugerabfuellung" must correspond to an essentially identical factual situation in each of these three cases . Were that not so, purchasers might be misled .

10 . Furthermore, the term "Erzeugerabfuellung" in itself implies that the "Erzeuger" ( producer ) and the "Abfueller" ( bottler ) are one and the same .

11 . In respect of wines produced in other Member States, various expressions may be used depending on whether the wine is bottled at an individual vineyard or by a producers' association . In the latter case, the forms to be used for French and Italian wines are "mis en bouteilles par les producteurs réunis" and "imbottigliato dai produttori riuniti" ( bottled by the associated producers ). The Greek formula would appear to be translatable as "bottled by a producers' group ". For the wines of Spain, Italy and Luxembourg, reference to a cooperative is also allowed : "embottellado por la cooperativa" in Spanish, "imbottigliato dalla cantina sociale" in Italian ( bottled by the cooperative ), but "mis en bouteille à la coopérative" ( bottled at the cooperative ) for Luxembourg wines . This latter formulation, in which the cooperative is stated to be the place of bottling, might be interpreted as meaning, a contrario, that bottling by a cooperative need not necessarily in all cases imply bottling at the cooperative - for otherwise would not a single expression have been used? The fact remains, however, that the descriptions provided for in the other languages all refer, as do the German formulation and the second indent of Article 12 ( 2 ) ( q ) of Regulation No 355/79, to the producers' group or to the cooperative as the entity responsible for bottling .

12 . Linguistic analysis, therefore, will not provide a definitive answer to the problem, but rather prompts us to consider whether it can be compatible with the scheme and purpose of the regulations to regard a group of vineyards as responsible for bottling even when it is not performed in the group' s own facilities .

13 . The purpose of the rules on the use of a statement regarding bottling is clearly to ensure that consumers are protected and properly informed .

14 . This concern is expressed in particular in Article 43 of Regulation No 355/79, which provides, inter alia, as follows :

( 1 ) The description and presentation of the products referred to in Article 1 ( 3 ), including any form of advertising, must not be liable to cause any confusion as to the nature, origin and composition of the product; this shall apply to the information referred to in Articles 2, 12, 27, 28 and 29 .

( 2 ) The description and presentation in advertising material must be such as not to create a false impression of the product in question, particularly as regards :

- ...

- the identity or status of the natural or legal persons or group of persons involved in the production or distribution of the product in question .

15 . The concern with ensuring that the consumer is protected and objectively informed runs like a thread throughout the preamble to Commission Regulation No 997/81 laying down detailed rules for the implementation of Council Regulation No 355/79 . The third recital in the preamble is worded as follows :

"Whereas ... when drawing up these detailed rules ... further criteria should be the desire to avoid any confusion in the use of expressions employed in labelling and to ensure that the information on the label is as clear and complete as possible for the consumer;"

16 . The sixth recital says, with regard to certain terms and details which have a commercial value or can contribute to the prestige of the product offered for sale without being absolutely necessary, that the use of such terms should be permitted provided that they are justified and are not misleading as regards the quality of the product . The ninth, 11th, 13th, 14th, 15th, 22nd, 27th and 28th Recitals in the preamble to Regulation No 997/81 may also be cited in this regard .

17 . The 27th Recital is particularly instructive . It reads as follows : "Whereas the information that a wine has been bottled at the wine-growing holding where the grapes from which it was made were harvested and turned into wine, or under equivalent conditions, expresses the idea that all the stages of production have been carried out under the supervision and responsibility of the same natural or legal person, thereby enhancing the prestige of the wine thus obtained in the estimation of some purchasers; whereas the terms which may be used to convey such information should therefore be specified ".

18 . This wording is eloquent in several respects . It proves first of all that in the view of the Commission, its author, a wine bottled by a group of vineyards must, if it is to be entitled to use the description, have been bottled under conditions equivalent to those which would have prevailed had the whole process taken place at the vineyard of an individual wine-grower .

19 . The recital also confirms that the statement regarding bottling is indeed intended to convey the idea that a single natural or legal person has been responsible for the whole process, referred to in the specialized German literature by the expression "alles in einer Hand ". It does, however, seem to me that an exception should be made with regard to the cultivation and harvesting of the grapes, which it would be difficult for the group as such to carry out .

20 . Finally, the passage explicitly states that the intended aim is to create a feeling of confidence on the part of the consumer, in order no doubt to induce him to pay a higher price .

21 . If, therefore, it were considered that the second indent of Article 12 ( 2 ) ( q ) of Regulation No 355/79 authorized the use of the term "Erzeugerabfuellung" by a group of vineyards which has not bottled the wine under conditions essentially equivalent to those prevailing at an individual vineyard ( we shall deal with the question of the making of the wine at a later stage ), that would give such a group a commercial advantage, with no objective justification, over individual vineyards and over the undertakings referred to in the third indent . Such an interpretation would be contrary to the principle embodied in Article 40 of the EEC Treaty prohibiting any discrimination between agricultural producers . It would also go against the rule that when the wording of secondary Community law is open to more than one interpretation preference should be given to the interpretation which renders the provision consistent with the Treaty . ( 3 )

22 . Finally, one cannot but share Koch' s opinion ( 4 ) that the right of a group of vineyards to use the indication "Erzeugerabfuellung" derives from the individual rights of its members . We are therefore entitled to suppose that the group must comply with the same rules as its members . Any other conclusion would mean giving the group a better position on the market than each of its individual members .

23 . There is however, no reason to do so . On the contrary, it is the individual wine-grower, if anyone, who deserves preferential treatment, as he is far less able to afford the purchase of bottling equipment than is a group of several wine-growers .

24 . This leads me to the conclusion that a group of vinegyards cannot be entitled to bottle its wines outside its own facilities unless an individual wine-grower can also do so under the same conditions .

25 . It is striking to note that neither the legal literature ( 5 ) nor the Commission rule out in principle the possibility that such a practice may be allowed provided that certain very stringent conditions are fulfilled .

26 . It was not disputed, during the oral proceedings before the Court, that the description "Erzeugerabfuellung" may be used when the producer of the wine bottles it at his own vineyard using mobile equipment brought in . Conversely, I think it also possible to transport the wine to a bottling facility situated elsewhere provided that guarantees substantially identical to those offered by bottling at an individual vineyard are present . It is above all important to avert any possibility that the wines of the individual producer or the group may be mixed with wines of other origins .

27 . First, the wine should be transported either by the owner of the wine himself or under his very close supervision, and at his expense .

28 . During bottling the owner of the bottling equipment should, as the Commission stresses, be in a position of complete dependence in relation to the owner of the wine (" Bestand eines absoluten Herrschaftsverhaeltnisses "). The whole operation should take place under the latter' s sole responsibility, direction and continuous supervision, and should be carried out with the help of his own staff .

29 . Nor should there be any intermediate storage of the wine at the rented facility (" Zwischenlagerung "), and the wine should be returned after bottling, under the supervision of one of the group' s senior staff, to its own cellars for storage and sale . In no case may bottling take place in an undertaking which has been granted an exclusive right to purchase and market the wines in question . Only under such conditions can the wine still be said to have been bottled by the group . If any one of those conditions is not fulfilled, the situation is one of bottling on a contract basis and, under the third subparagraph of Article 4 ( 5 ) of Regulation No 997/81, only the description "bottled for ... by ..." may be used .

30 . Let us now address the second problem raised by the Oberverwaltungsgericht of the Land Rheinland-Pfalz . The German court also asks whether or not the grapes must have been made into wine in the facilities of the producers' group . The question here is thus not whether operations such as those performed in the facilities of Erzeugergemeinschaft Goldenes Rheinhessen still form part of the wine-making process or not - and indeed the information in the case file would be insufficient to enable us to reach a decision on that point . However, even in the form in which it is put, the question where the wine is to be made raises problems which are difficult to settle in a reference for a preliminary ruling .

31 . It is true that both the Land Rheinland-Pfalz and the Commission have presented powerful arguments in support of the view that the wine must necessarily be made in the facilities of the group of vineyards .

32 . We cannot, however, completely dismiss the view that by omitting to mention ( in the second indent of Article 12 ( 2 ) ( q ) ) the place where the wine is to be made and bottled, the Council may have wished to cover both the case where the wine is made in the group' s facilities and that where the wine is made by the individual wine-growers and the group is responsible only for bottling - as, for example, where several wine-growers form a group for the sole purpose of jointly using the bottling equipment belonging to one of them .

33 . An argument in support of that interpretation might be derived from the formulation used in the French and Italian versions of Regulation No 997/81, that is to say "mise en bouteille par les producteurs réunis", as in this context the term "producers" obviously refers to wine producers and not to grape producers .

34 . As it has not been possible to examine such a hypothesis in depth in this case, I feel bound to refrain from stating an opinion as to where the wine is to be made . That attitude should cause no problem in so far as the answer I would propose to give to the Oberverwaltungsgericht' s question should, if substantially adopted by the Court, enable the national court to settle the dispute before it .

35 . The answer proposed is as follows :

"The second indent of Article 12 ( 2 ) ( q ) of Council Regulation No 355/79 is to be interpreted as meaning that the description 'Erzeugerabfuellung' may not be used by a group of vineyards which has bottled its wine in an undertaking other than its own unless the entire operation was conducted under the sole responsibility, continuous direction and strict supervision of that group and by its own staff, there has been no intermediate storage, the bottled wine has been brought back to the group' s cellars for storage and sale to persons other than the owner of the bottling equipment and the wine has been transported in both directions under the group' s supervision and at its expense ."

(*) Translated from the French .

( 1 ) OJ L 54, 5.3.1979, p . 99 .

( 2 ) OJ L 106, 16.4.1981, p . 1 .

( 3 ) See for example the Court' s judgment of 4 December 1986 in Case 206/84 Commission v Ireland (( 1986 )) ECR 3817, at paragraph 15 .

( 4 ) Dr Hans-Joerg Koch : Weinrecht, Kommentar, under "Abfuellen" No 3.3.2.2 . and under "Erzeuger", No 5.2 ., third edition ( updated to September 1987 ), Deutscher Fachverlag GmbH, Frankfurt am Main .

( 5 ) See Koch, op . cit ., p . 11 .