Opinion of Mr Advocate General Mischo delivered on 7 February 1990. - Criminal proceedings against Angelo Bagli Pennacchiotti. - Reference for a preliminary ruling: Pretura di Frascati - Italy. - Agriculture - Wine - Rules concerning wines psr and quality sparkling wines psr. - Case C-315/88.



European Court reports 1990 Page I-01323



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . In March 1987, criminal proceedings were brought against Mr Bagli Pennacchiotti before the national court, because the winegrower' s cooperative for which he is responsible vinified 1 495 hectolitres of wine under the registered designation of origin Frascati outside the area in which the grapes were harvested, contrary to Article 515 of the Italian Penal Code, which concerns commercial fraud, and Article 28 of Decree No 930 of the President of the Republic of 12 July 1963, which lays down penalties for the unjustified use of a registered or registered and certified designation of origin .

2 . The defendant, relying on the existence in Italian law of "inconsistent administrative measures" concerning the movement of grapes outside the area in which they were harvested, asked the national court to seek a preliminary ruling from the Court of Justice on the degree of freedom left in such matters to the Member States by Community law, under which the wine in issue is classified as a quality wine produced in a specified region ( hereinafter "quality wine psr ") or a quality sparkling wine produced in a specified region ( hereinafter "quality sparkling wine psr "). The national court allowed the request and referred the following question to the Court :

"Do the powers conferred on the Member States by Regulation ( EEC ) No 822/87 concerning movements and territorial limits in regard to vinification entail a mere prohibition, or do they enable Member States to adopt measures laying down different rules?"

3 . It is first necessary to point out, as the Commission and the Italian and Spanish Governments have done, that in addition to Council Regulation ( EEC ) No 822/87 of 16 March 1987 on the common organization of the market in wine, ( 1 ) to which the national court refers, the Council has also adopted Regulation ( EEC ) No 823/87 of 16 March 1987 laying down special provisions relating to quality wines produced in specified regions, ( 2 ) and the wine in issue falls, as we have seen, in that category . Article 15 of that regulation refers to the designations "denominazione di origine controllata" and "denominazione di origine controllata e garantita", which the defendant is charged with having wrongfully used .

4 . That regulation replaced Council Regulation ( EEC ) No 338/79 of 5 February 1979 laying down special provisions relating to quality wines produced in specified regions, ( 3 ) to which the defendant in the main proceedings refers .

5 . The question of which of those two enactments applies to the facts in issue does not, however, arise, since the articles governing the point with which we are concerned here are identical .

6 . Essentially, the relevant provisions are contained in Article 6(2 ) of those regulations, which provide :

"The processing of grapes as referred to in paragraph 1(a ) into must and of must into wine shall be carried out within the specified region where the grapes were harvested .

The preparation of a quality sparkling wine psr shall take place only within the specified region referred to in the foregoing subparagraph .

However, the operations referred to in the first and second subparagraphs may take place outside the specified region, where :

( a ) the rules of the Member State in whose territory the grapes were harvested permit,

and

( b ) production is supervised ."

7 . The purport of that provision is clear : a quality wine produced in a specified region must, in principle, be made from grapes harvested and processed within the limits of the specified region, as defined by the legislation, but Member States may nevertheless authorize processing and preparation outside the region in question if production is supervised .

8 . In that case, however, they must also comply with the provisions of Regulation ( EEC ) No 1698/70 of the Commission of 25 August 1970 on certain derogations concerning the production of quality wines produced in specified regions, ( 4 ) which was adopted on the basis of Article 5 of Regulation ( EEC ) No 817/70 ( 5 ) and which defined the circumstances in which Member States may authorize such derogations . Article 2(2 ) of that regulation provides, inter alia, that any party interested in benefiting from the derogation must obtain express authorization from the competent authority of the Member State concerned .

9 . Since Frascati wine may also, apparently, be a sparkling wine, I should point out that I share the Commission' s view that Regulation No 1698/70 applies also to quality sparkling wines psr . Article 5 of Regulation No 817/70, which is equivalent to Article 6 of Regulation No 823/87, is the provision on the basis of which Regulation No 1698/70 was adopted, and it applies to all quality wines . There is nothing in the provisions of Regulation No 1698/70 from which it can be inferred that the substantive scope of the regulation is more limited than that of the provision on which it is based .

10 . For the details of the conditions laid down in Regulation No 1698/70, I would refer to the report for the hearing . It appears from the documents before the Court that, with regard to Frascati wine, the Italian Republic has availed itself only to a very limited extent of the possibility of authorizing derogations from the general rule; it has done so only in respect of one part of the commune of Montecompatri, with which the present case is not concerned . If, however, the Italian rules do provide, in accordance with Community law, for a wider derogation covering the preparation of Frascati sparkling wines, the national court must take account of that fact if the main proceedings concern such wines - which appears very doubtful . But if that is the case, the defendant must also hold an express authorization .

11 . The defendant claims, however, that Article 15(2 ) of Regulation No 822/87, read together with Annex VI thereto, allows aeration and heat treatment to be carried out by movement for climatic purposes . That argument cannot, in my view, be accepted . The relevant provisions listing authorized processes do indeed include aeration and heat treatment among those processes, but make no mention whatever of where they are to be carried out .

12 . Those operations unquestionably form part of the vinification process, so the rules set out above must be applied .

13 . The defendant in the main proceedings also claims that the Italian legislation in this field is inconsistent . In view of the observations submitted by the Italian Government, that does not appear to be the case but, in any event, it is not a question to be decided by the Court in the context of this reference for a preliminary ruling .

14 . It must also be noted that the question referred to the Court refers also to "transfers ". It appears, however, from the order for reference that Mr Bagli Pennacchiotti is charged with having "carried out the vinification process outside the area of production of the grapes as laid down in the production rules ". It would therefore appear that the only problem raised concerns the question of the territorial limits of vinification, which I have examined above .

15 . In so far as it may be relevant to the main proceedings, however, I would state that I share the Commission' s view that only after the processing of the grapes into wine, whether sparkling or not, is completely finished - that is to say, at the end of the minimum ageing period, where applicable - that any movement outside the "specified region" may take place without the wine losing its right to the designation "quality wine psr" or "quality sparkling wine psr ".

Conclusion

16 . In view of the foregoing, I propose that the following answer should be given to the national court' s question :

"Community law, in this case Article 6(2 ) of Council Regulation ( EEC ) No 823/87, provides that, for the production of quality wines, whether or not sparkling, produced in a specified region, the processing of grapes into must and of must into wine, and the preparation of a sparkling wine, must be carried out entirely within the region concerned unless the legislation of the Member State in whose territory the grapes were harvested provides for a derogation from that rule in respect of that specific region, in accordance with Regulation ( EEC ) No 1698/70 ."

(*) Original language : French .

( 1 ) OJ 1987, L 84, p . 1 .

( 2 ) OJ 1987, L 84, p . 59 .

( 3 ) OJ 1979, L 54, p . 48 .

( 4 ) OJ, English Special Edition 1970 ( II ), p . 579 .

( 5 ) Regulation ( EEC ) No 817/70 of the Council of 28 April 1970 laying down special provisions relating to quality wines produced in specified regions ( OJ, English Special Edition 1970 ( I ), p . 252 ).