2.

Although it was not formally raised by the Cour d'appel, Aix- en-Provence, in my opinion it is necessary to raise the problem of the method whereby the alcohol/reduced dry extract ratio of a wine may be sought in order to reach a decision on whether the presumption is applicable. For, my Lords, the question is whether the system in law of the presumption of over-alcoholization, which is not per se incompatible with the Community rules in the abstract, may be applied in practice. If on the one hand it is true that the 100o method used to detect the fraudulent practice constituted by over-alcoholization is certainly the only one which enables the alcohol/reduced dry extract ratio to be ascertained and, on the other, as the parties in the main action, the French Government and the Commission state, it is impossible to transpose the results obtained by the method in question and those produced by the densimeter method, then it must be enquired whether the 100o method is permissible Under the Community rules. If the answer is in the negative, then recourse to the presumption would have to be considered to be quite simply ineffective, if not useless. Regulation No 1539/71 of the Commission laid down Community methods for the analysis of wines. According to the preamble to this regulation, these methods must be compulsory for all commercial transactions and all verification procedures. This is at least the objective stated. But the question is what verification this is and for what purpose it is designed. The field of application of the Regulation of the Commission can clearly not be wider than that of Regulation No 816/70. However, although this basic regulation lays down rules for or prohibits certain oenological processes, though not exhaustively, it does not touch the problem of the detection and control of fraudulent practices. Article 39a thereof, which was added by Regulation No 2680/72 to the original regulation, gives the Member States, as we have seen, jurisdiction to take all appropriate measures to ensure compliance with the provisions which it prescribes. In addition, Article 39a provides that it falls to the Council itself to adopt at the Community level measures designed to ensure uniform application of the provisions of the regulation especially as regards verification. But the basic regulation itself did not establish any Community system of detection and verification of fraudulent practices. Consequently, Regulation No 1539/71 only deals with the methods of analysis intended to verify the material properties and the constituents of Community wines; it cannot be interpreted as defining the methods for the detection and prevention of fraudulent practices in wine-making. The regulation in question also expressly refers to the methods formulated under the 1954 International Convention for the Unification of Methods for the Analysis and Appraisal of Wines for the application of the methods of analysis which it lists. But these international methods do not aim to investigate fraudulent practices and adulteration. They were only drawn up for the purpose of ascertaining the constituents of wines. This is the reason why, although the annex to the regulation of the Commission provides that the total dry extract should be determined by the densimeter method which only enables the total amount of the constituents of the wine to be identified, on the other hand there is no method laid down therein which makes it possible to ascertain the alcohol/reduced dry extract ratio, which alone enables the fraudulent practice of over-alcoholization to be detected. Moreover, in its reply on 29 May 1974 to a written question in the European Parliament, the Commission itself acknowledged that there is a gap in Community law in the sphere of the control of fraudulent practices since it states therein its intention to propose to the Council on the basis of Article 39a of Regulation No 816/70 provisions laying down common methods or rules to detect breaches of the rules on oenological processes. This proves, on the one hand, that it acknowledges that it has no power to lay down common methods of control and on the other that the methods of analysis laid down in Regulation No 1539/71 are on another subject or are not in any case sufficient to detect fraudulent practices. In addition, on 31 October 1974, the Commission replied to another written question concerning the case brought before a national court, or a similar case, that ‘as regards the establishment of an effective system for preventing breaches of Community law’ it was working out draft ‘common rules’ in conjunction with the Member States ‘on the prevention of breaches committed by individuals in areas which are the subject of Community regulations, directives and decisions’. Accordingly, my Lords, I consider that Regulation No 1539/71 of the Commission which does not deal with all methods whereby the constituents of wine may be ascertained does not prohibit the use of the 100o method under national rules for the prevention of fraudulent practices. It remains, my Lords, for me to give my views, in the alternative however, on the question whether the presumption created by the Code du vin may have harsher consequences for French traders who import Community wines than for domestic producers. This presumption is not irrebuttable in law since Article 8 permits those concerned to bring evidence to the contrary, that is, to show by a comparison of the various constituent elements of the wine, its taste, the conditions of its production and its place of origin that that wine results exclusively from the fermentation of fresh grapes. It was claimed before the Court that the obligation thus imposed on traders brought about a restriction on the freedom of Community trade in so far as it is in practice particularly difficult for those concerned to put forward this evidence in respect of imported wines. The Cour d'appel, Aix- en-Provence also seems to be of this view and it deduces from this that there therefore exists serious doubt as to the compatibility with the Community rules of the French system of the presumption of over-alcoholization. But, my Lords, it is not for the Community Court, at least when a matter is referred to it under Article 177 of the Treaty, to commit itself to this evaluation of the matter which concerns not only the interpretation but the actual application of national law. As you held in a judgment of 23 January 1975 in the Hulst case (51/74 [1974] ECR 92) in the context of proceedings brought under Article 177 of the Treaty, the Court may not give a ruling on such a point which, like any other assessment of the facts involved, is a matter for assessment by the national court. I shall merely state for my part that to be lawful, recourse to a system of presumption must be had in accordance with the following conditions: 1. The Service de la répression des fraudes ought, when comparing the results of the analyses with the specifications required, to take into consideration the margins allowed, having regard in particular to the place of origin of the wines; 2. The decisions of this department should be able to be effectively contested by those concerned, whether wine-producers or traders; 3. The right to carry out a fresh analysis ought to be reserved; 4. Finally, the practical means of bringing evidence in rebuttal should be equally accessible to all parties without distinction. Such would not be the case if these means were more difficult to use for traders in table wine imported and regularly put into circulation in a Member State, than for producers of or traders in nationally-produced table wines (Judgment of 11 July 1974Dassonville, Case 8/74 [1974] ECR 852). Accordingly, if the method upon which the presumption is based or if the operation of the system of the presumption in law, taking account of the burden of bringing evidence in rebuttal, could have a discriminatory effect or an effect equivalent to a quantitative restriction, it would fall, where appropriate, to the Commission to set in motion the procedure for establishing that the State concerned has failed to fulfil an obligation, or to the national courts, subject to having recourse to Article 177, to protect the rights of the traders in question. It seems to me impossible for the Court to take the place of these authorities in the context of these proceedings.