Opinion of Mr Advocate General Elmer delivered on 9 March 1995. - Criminal proceedings against Michèle Voisine. - Reference for a preliminary ruling: Tribunal de police de Bordeaux - France. - Description of wines - Definition of "labelling" - Affixing of decoration unconnected with the wine marketed. - Case C-46/94.



European Court reports 1995 Page I-01859



Opinion of the Advocate-General

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1. In this case the Court has been asked to settle a question of interpretation concerning the rules of Community law on the labelling of wine and champagne.

Facts

2. The question arose in criminal proceedings in which Michèle Voisine was charged with having infringed Article 11 of the Law of 1 August 1905 on fraud and falsification relating to products or services inasmuch as, in her capacity as manager of SARL "Bouteilles en fête", she was alleged to have fraudulently misled consumers by selling, in breach of Community law rules, 1 425 bottles of Bordeaux wine and 60 bottles of champagne in Vendôme, Romorantin, Blois and Azay le Rideau in bottles carrying photographs of the towns in which the bottles were on sale, together with a short text concerning the town' s history.

It appears that the charge was laid inter alia because the authorities responsible for competition, consumer protection and the prevention of fraud in Loir et Cher decided that the information was liable to mislead buyers as to the origin of the wine or the variety of grape, since the names of the towns could be regarded as designations of origin and, with regard to "Romorantin", could be confused with the "Romorantin" vine variety.

In the criminal proceedings before the Tribunal de Police, Bordeaux, the accused contended that the Community law rules related solely to the labelling of wine. The pictures of towns and so forth, which were carried as prints or moulding on the "Bouteilles en fête" bottles marketed by her, did not constitute part of the labelling but part of the bottle' s decoration.

The order for reference

3. The Tribunal de Police was in doubt as to whether the definition of "labelling" in the Community rules set out below should be understood as covering only the information describing the product or all information on the bottle, and requested the Court of Justice to answer the following question:

"Does the definition of 'labelling' in Article 38 of Council Regulation No 2392/89 prohibit any decoration or advertising on the bottle which is unconnected with the wine itself?"

Community law

4. Council Regulation (EEC) No 2392/89 of 24 July 1989 laying down general rules for the description and presentation of wines and grape musts (1) was adopted having regard to Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organization of the market in wine. (2)

In the fifth recital in the preamble to the regulation it is stated that to avoid too divergent interpretations "it was deemed appropriate to lay down fairly comprehensive rules on description; whereas, to ensure that these rules are effective, it should also be laid down as a principle that only the details specified in the rules in question or in the relevant implementing rules are permitted for the description of wines and grape musts".

The regulation distinguishes between mandatory information necessary to identify the product and optional information designed mainly to indicate the special properties of the product or to characterize it.

In Title I, Section B, concerning the "Description of quality wines produced in specified regions" (abbreviated in the regulation and hereinafter to "quality wine psr", subheading B.I. is entitled "Labelling".

Article 11(1) sets out the mandatory information to be included in the description on the labelling: inter alia (a) the name of the specified region of origin and (d), first indent, in the case of containers with a nominal volume of not more than 60 litres the name or business name of the bottler and the local administrative area or part thereof and the Member State in which his head office is situated.

Article 11(2) lays down rules concerning the information which may supplement the description on the labelling; such information is listed in detail and includes "(c) a brand name, in accordance with the conditions laid down in Article 40".

Article 12(1) states that only the information specified in Article 11 is to be allowed for the description on the label of a quality wine psr, subject to a list of exceptions which are not relevant as far as the reply to the question referred to the Court is concerned.

Article 38(1) defines "labelling" as "all descriptions and other references, signs, designs or brand names which distinguish the product and which appear on the same container, including its sealing device, or the tag attached to the container".

The article continues:

"Particulars, signs and other references shall not constitute part of the labelling if they:

° are required under the tax provisions of the Member States,

° refer to the manufacturer or to the volume of the container and are inscribed directly and indelibly thereon,

° are used for the purpose of bottling checks and are indicated in detailed rules to be laid down,

° are used to identify the product by means of a figure code and/or of a mechanical scanning symbol,

° refer to the price of the product concerned,

° are laid down by the legislation of the Member States on quantity and quality control of products subject to systematic official examination".

In Title II of the regulation, under the heading General Provisions, Article 40(1) states that the description and presentation of the products referred to must not be incorrect or likely to cause confusion or to mislead the persons to whom they are addressed, particularly as regards the information provided for in inter alia Article 11 and the characteristics of the products, and in particular their nature, origin or provenance.

Article 40(2) deals with "brand names" and provides:

"2. Where the description, presentation and advertising of the products referred to in this Regulation are supplemented by brand names, such brand names may not contain any words, parts of words, signs or illustrations which:

(a) are likely to cause confusion or mislead the persons to whom they are addressed within the meaning of paragraph 1; or

(b) are:

° liable to be confused by the persons to whom they are addressed with all or part of the description of a table wine, of a quality wine psr ...

° identical to the description of any such product unless the products used for making the final products referred to above are entitled to such description or presentation.

Moreover, the labelling used for the description of a table wine, a quality wine psr or an imported wine may not bear brand names containing words, parts of words, signs or illustrations which:

...

(b) ... contain false information, particularly with regard to geographical origin, vine variety, vintage year or a reference to a superior quality;

...."

5. As regards sparkling wines, Article 13 of Council Regulation (EEC) No 3309/85 laying down general rules for the description and presentation of sparkling wines and aerated sparkling wines (3) contains rules corresponding to those in Article 40 of Regulation No 2392/89.

6. Commission Regulation (EEC) No 3201/90 of 16 October 1990 laying down detailed rules for the description and presentation of wines and grape musts (4) contains in Article 1(1) and (2) detailed rules as to how the mandatory and optional information respectively is to be grouped. It can be grouped on one or more labels or printed directly on the container.

Procedure before the Court

7. Michèle Voisine contends that the bottles sold satisfy the labelling requirement in Article 11(1) of Regulation No 2392/89. "Labelling", according to Article 38 of that regulation is to mean "all descriptions and other references, signs, designs or brand names which distinguish the product ... ". Decoration on the bottle, she says, has, however, no connection with the wine itself, but may consist of, for instance, family photos, a firm' s logo, a club' s coat of arms, or a picture of a locality. The average consumer would therefore not be misled or believe that the wine is of the Romorantin vine variety simply because the bottle depicts the Olympic Stadium of Romorantin.

8. The Institut National des Appellations d' Origine, which is claiming damages from Ms Voisine in the main proceedings, states that the definition of "labelling" in Article 38 of Regulation No 2392/89 is a general one, so that labelling covers all the information on the bottle which in every respect must comply with the requirements of the regulations. Under Article 40 of Regulation No 2392/89 and Article 13 of Regulation No 3309/85, the use of "brand names" such as those at issue in this case must therefore not be misleading. In that regard national courts have a certain margin of discretion.

9. The French Government submits that there is no distinction between labelling and the other ways in which the bottle is presented. The expression "labelling" in the Community rules on the matter, which are also reflected in Commission Regulation No 3201/90, refers not only to labelling in the old-fashioned sense but also to other forms of marking bottles, for example marking in the form of prints or moulding of the glass. The detailed list of the elements that make up "labelling" in Articles 11 and 12 of Regulation No 2392/89 is exhaustive, but does not, on the other hand, prevent a bottle carrying decoration or other information unconnected with the wine itself, provided the requirements concerning brand names in Article 40 of the regulation are satisfied. It follows that a brand name should not be liable to mislead the consumer, which could be the case if the geographical information on the decoration does not tally with the area from which the wine originates.

10. The Commission has argued that both the fifth recital in the preamble to and Article 12 of Regulation No 2392/89 indicate that the list in Article 11 of the elements which should or may be included in the labelling description is exhaustive. The thread running through all the Community regulations on the matter is the interest of the consumer in being informed and also protected against being misled, and the requirements as to labelling therefore cover all information given on the bottle. Article 40 of the regulation acts as a sort of filter for that information to prevent consumers being misled or confused.

In the Commission' s view the present case is a good demonstration of why it is necessary to protect consumers against being misled. The charge is that inter alia bottles of Bordeaux wine were marketed carrying the name of the town Romorantin. That town is in Loir et Cher, but not, however, in the Bordeaux area. Romorantin is also the name of a vine variety used in the manufacture of wine in the Loire, but it is not permitted to use that vine variety in the manufacture of Bordeaux wine.

Opinion

11. Regulation No 2392/89 is a codification of a number of amendments to Council Regulation (EEC) No 355/89 of 5 February 1979. In previous decisions concerning corresponding provisions in Regulation No 355/89 the Court has held that:

"Those provisions serve the same purpose, namely the prevention in the marketing of wine of all practices which are of such a nature as to create false appearances, irrespective of whether such practices give rise in the minds of those engaged in the trade or of consumers to confusion with existing products or the erroneous impression of an origin or of characteristics which in reality do not exist." (5)

In Case 16/83 Prantl (6), the Court stated (at para. 29):

"... the provisions of Community law on the labelling of wines ... are particularly comprehensive and enable the feared confusion to be avoided."

As Advocate Mischo pointed out in his Opinion in Case 234/85 Keller (7), "[i]t is also clear that limiting and standardizing the information authorized to appear on labelling decreases the risk of confusion on the part of the consumer and facilitates supervision ...".

12. In my opinion the Community rules cited do not provide a basis for differentiating between the labelling on a bottle on the one hand and decoration on the other. They were clearly intended to prevent any possibility of confusion or mistake by specifying exhaustively what information may appear on wine bottles and so forth, subject solely to the exceptions expressly listed in Article 38(1). I would refer in that connection to the very broad wording of that provision "... of all descriptions and other references, signs, designs or brand names which distinguish the product and which appear on the same container, including its sealing device, or the tag attached to the container".

It is difficult to read any limitation into the words "which distinguish the product" since every piece of information on the container distinguishes the product and differentiates it from other products. When Ms Voisine puts pictures and so forth on her "Bouteilles en fête" it is precisely in order to distinguish the product in a way that sets it apart from other products.

Whether the labelling takes the form of affixing a piece of paper, moulding the glass, prints or any other form must therefore be immaterial; that also appears to be the position taken in Article 1 of the Commission' s implementing Regulation No 3201/90.

Accordingly it is only possible to put decoration on wine containers in so far as the information on that decoration is permitted under Articles 11 to 12 of Regulation No 2392/89. What is of relevance for the answer to the question referred to the Court is specifically the possibility afforded by Article 11(2) of adding a brand name under the conditions laid down in Article 40(2).

13. The purpose of the rules on brand names in Article 40(2) is to prevent consumers being misled by information on the labelling as to origin and characteristics or otherwise be induced into confusion by the description of geographical origin. Thus, at the heart of the Community provisions lies the consumer' s requirement to be protected against information that could cause confusion or otherwise mislead the persons to whom it is directed. It should be pointed out that the risk of confusion or the possibility of being misled does not arise because some descriptions ° in this specific case, for example, Romorantin ° are in fact quite unrelated to the wine itself. The problem is rather that the consumer might be led to believe that there is a connection between the information and the product although that is not in fact the case.

14. I agree that, as mentioned by the Commission, the information "Romorantin" is an example of a case where it is likely to mislead the consumer and cause confusion. On the other hand, it is just as clear that cases may be imagined where the brand name is not misleading, for instance, on the occasion of a silver wedding, bottles might be sold marked with a picture of the silver wedding couple, their name and details of the relevant dates of the marriage and silver wedding. It must be pointed out, however, that it is extremely difficult to lay down general guidelines as to what information might be misleading or give rise to confusion and what would not. In the final event this must hinge on a factual assessment of the circumstances of the individual case. For instance, if the silver wedding couple in question was publicly known as the owner of a particular vineyard, the information could, even in the case of a silver wedding, be regarded as misleading if the wine did not originate there.

15. It is for the national court in each individual instance to assess whether the labelling satisfies the said requirements.

Conclusion

In view of the foregoing I would propose that the Court reply to the question posed as follows:

° Article 38, in conjunction with Article 11(2), of Regulation (EEC) No 2392/89 does not preclude a container of wine carrying a decoration such as a brand name which is unconnected with the wine itself, provided that the conditions laid down in Article 40(2) of the regulation are satisfied.

° It is for the national court in each individual instance to assess whether the conditions thus laid down are satisfied.

(*) Original language: Danish.

(1) ° OJ 1989 L 232, p. 13.

(2) ° OJ 1987 L 84, p. 1.

(3) ° OJ 1985 L 320, p. 9.

(4) ° OJ 1990 L 309, p. 1.

(5) ° Judgment in Case 56/89 Weigand v Schutzverband Deutscher Wein [1981] ECR 583, paragraph 18.

(6) ° [1984] ECR 1299.

(7) ° [1986] ECR 2897, at p. 2906.