Opinion of Mr Advocate General Mischo delivered on 27 January 1988. - Commission of the European Communities v Federal Republic of Germany. - Market in wine - Maximum enrichment limit. - Case 74/86.



European Court reports 1988 Page 02139



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The action brought by the Commission against the Federal Republic of Germany on account of the provision added by the Law of 27 August 1982 to paragraph 6 ( 2 ) of the Weingesetz ( Wine Law ) does not raise any major difficulties . Concurring entirely with the Commission' s position, I am therefore able to give my Opinion at once .

2 . In its defence and at the hearing today the Federal Republic stated in any event that it did not dispute and had never disputed that the Commission' s complaint was well founded .

3 . It pointed out, however, that the provisions of Community law concerning the increase in the alcoholic strength by volume of wine were strictly applied in practice, so that there was no legal uncertainty in the Federal Republic of Germany .

4 . Unfortunately, I am unable to share that view . When the letter of the law and administrative practice do not coincide, this is likely to cause uncertainty, at least amongst some wine growers, as to what is allowed and what is not . The article appearing in a specialist publication just cited by the agent for the Commission confirms this . Moreover, it is clear from the case-law of the Court, in particular the judgment of 4 April 1974 in Case 167/73 Commission v French Republic (( 1974 )) ECR 359, paragraph 47; the judgment of 25 October 1979 in Case 159/78 Commission v Italian Republic (( 1979 )) ECR 3247, paragraph 22 and the judgment of 15 October 1986 in Case 168/85 Commission v Italian Republic (( 1986 )) ECR 2945, paragraph 11 ) that :

"if a provision of national law that is incompatible with a provision of the Treaty, even one directly applicable in the legal order of the Member States, is retained unchanged, this creates an ambiguous state of affairs by keeping the persons concerned in a state of uncertainty as to the possibility of relying on Community law and ... maintaining such a provision in force therefore amounts to a failure by the State in question to comply with its obligations under the Treaty ".

This must apply a fortiori to the introduction into the national legislation of a Member State of a new provision which is incompatible with Community law .

5 . In paragraph 13 of the same judgment of 15 October 1986 the Court also pointed out that it has consistently held that :

"mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty ".

6 . Finally, I share the Commission' s opinion that it is extremely doubtful that, as paragraph 6 ( 2 ) of the Weingesetz stands at present, German courts are in a position to apply the criminal provisions of that law where an individual is prosecuted for having enriched wine beyond the "standard rate" of 3.5% vol .

Conclusion

7 . For all those reasons I can only propose that the Court should grant the Commission' s application and declare that, by introducing a rule into the Weingesetz providing that, in respect of certain wine varieties in certain localities of the Moselle-Saar-Ruhr, Mittelrhein and Ahr wine-growing areas, alcoholic strength by volume may be increased to 4.5%, the Federal Republic of Germany has infringed the rules of the common organization of the market in wine, in particular Article 32 of Council Regulation No 337/79, which in the mean time has become Article 18 of Regulation No 822/87, and Articles 5 and 189 of the EEC Treaty .

8 . The defendant should accordingly be ordered to pay the costs .

(*) Translated from the French .