Opinion of Mr Advocate General Van Gerven delivered on 15 January 1991. - Criminal proceedings against Roger Guitard. - Reference for a preliminary ruling: Tribunal correctionnel de Carcassonne - France. - Common organization of the market in wine - Minimum alcoholic strength of wine - Marketing of an alcohol-free wine. - Case C-75/90.



European Court reports 1991 Page I-04205



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. Proceedings were brought against Roger Guitard, in his capacity as President of l' Union des Caves Coopératives de l' Ouest Audois et du Razès (Union of Cooperative Wineries in Western Aude and Razès), in the Tribunal Correctionnel (Criminal Court), Carcassonne, for the offences of misrepresentation and conducting misleading advertising in marketing, from November 1988 under the name "alcohol-free wine", a beverage based on wine from which the alcohol had been removed.

The national court considered that in order to establish whether the facts of the case constituted a criminal offence, it was necessary first to obtain an interpretation of the Community definition of wine. It therefore requested a preliminary ruling from the Court on the following question:

"Do the EEC regulations require that wine, defined in point 8 of Annex II to Regulation No 337/79 and in point 10 of Annex I to Regulation No 822/87, must, when supplied, have a minimum degree of alcoholic strength?"

2. At the outset, I would make two observations. First, it appears from the documents before the Court and the parties' arguments at the hearing that the beverage at issue was presented to the public as having had all alcohol removed (the label stating "0 vin sans l' alcool") and that this indication of the degree to which alcohol had been removed was not the subject of criminal proceedings. I can therefore restrict my examination to the question whether or not wine, within the meaning of the Community legislation, must contain alcohol, without having to specify, if the answer to that question is in the affirmative, the minimum degree of alcoholic strength which renders a beverage wine within the meaning of that legislation.

Secondly, I would observe that the main proceedings are concerned with the description of a French product marketed in France. There is therefore no need to consider the aspects of Community law which govern the marketing in France of products originating in other Member States under the description "alcohol-free wine".

3. In Point 8 of Annex II to Council Regulation No 337/79 of 5 February 1979 on the common organization of the market in wine, (1) to which the national court first refers in its question, the following definition of wine appeared:

"8. Wine, the product obtained exclusively from the total or partial alcoholic fermentation of fresh grapes, whether or not crushed, or of grape musts."

Regulation No 337/79 was repealed by Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organization of the market in wine (2) with effect from 1 April 1987. Point 10 of Annex I to Regulation No 822/87 gives a definition of wine which is identical in every word (3) to that which appears in point 8 of Annex II to the repealed Regulation No 337/79. The conduct which is the subject of the main proceedings (the marketing of "alcohol-free wine" from November 1988) occurred at a time when Regulation No 822/27 was already in force. I shall therefore refer to the definition in Regulation No 822/87 only, it being understood that its substance has not been changed in relation to the definition which appears in Regulation No 337/79.

4. According to that definition, wine is a product obtained from the alcoholic fermentation of fresh grapes or grape musts. According to "Robert", (4) the word "fermentation" means "the molecular chemical transformation of a substance of organic origin which occurs under the influence of leaven which does not appear to undergo any change itself". The term "alcoholic fermentation" is defined in that dictionary as the process "whereby alcohol is produced from sugar".

Since point 10 of Annex I to Regulation No 822/87 refers exclusively to the process of alcoholic fermentation in order to designate the product obtained from fresh grapes or grape musts, (5) it follows that the product defined therein must necessarily have a certain degree of alcoholic strength.

5. Admittedly, the Community definition of wine does not expressly prescribe a minimum alcoholic strength, which is, however, required in the case of certain types of wine, in particular "wine suitable for yielding table wine", (6) "table wine" (7) and "quality wines". (8) The absence of any indication of alcoholic strength in the definition of wine in general does not, however, enable it to be assumed that an alcohol-free beverage made from grapes would be covered by that definition. As I have already indicated, one of the essential characteristics of wine is its alcohol content.

6. It is also true that "alcohol-free wine", which is the subject of the main proceedings, is a beverage obtained from wine from which the alcohol has been removed by means of a specific process. I consider, however, that the product which remains after the alcohol has been removed from wine, that is to say after the wine has lost one of its essential characteristics, can no longer be classified as wine within the meaning of the Community rules, especially since the process of removing alcohol from wine is not a permitted oenological practice within the meaning of Title II of Regulation No 822/87. A wine from which the alcohol has been removed must therefore be considered as no longer falling within the scope of Regulation No 822/87.

7. The Community legislation contains none the less some provisions relating to the use of the name "wine" which, in order to avoid confusion in the mind of the consumer, (9) also apply to beverages other than wine within the meaning of the Community definition. Although the national court does not refer to those provisions in the Order for reference, it would seem appropriate, given the facts of the case and in order to give the the national court all the elements of Community law which might be of use in resolving it, to examine the implications of those provisions as well.

8. Article 45(1)(a) 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, (10) which was applicable at the material time, (11) restricts use of the appellation "wine" to products conforming to the definition in point 8 of Annex II to Regulation 337/79 and therefore, at the material time, in point 10 of Annex I to Regulation No 822/87. Article 45(2) of Regulation No 355/79 provides, however, for the following relaxation:

"2. Without prejudice to the provisions for the harmonization of laws, the possibility for the Member States to allow:

- the use of the word 'wine' accompanied by the name of a fruit and in the form of a composite name to describe products obtained by the fermentation of fruit other than grapes,

- other composite names including the word 'wine' ,

shall not, however, be affected by the provisions of paragraph 1.

In the event of use of the composite names referred to in the previous subparagraph, any confusion with the products referred to in paragraph 1 must be avoided."

9. The scope of Article 45(2) of Regulation No 355/79 was specified by Article 20 of Commission Regulation (EEC) No 997/81 of 21 March 1981 laying down detailed rules for the description and presentation of wines and grape musts. (12) According to Article 20(1)(b), Member States may authorize, to describe beverages from their own production or beverages which originate in other Member States or which have been imported, the use of the word "wine" in composite names such as "British wine" or "Irish wine". Article 20(2) contains, moreover, the following provision:

"2. To avoid confusion between the terms referred to in paragraph 1 above and the words 'wine' and 'table wine' , Member States shall ensure that:

- the word 'wine' is used only in a composite name and in no circumstances on its own, and

- the composite names referred to in the first indent are shown on the label in lettering of the same type and of the same colour and of such a height that they are clearly distinguishable from other information."

10. At the hearing, the Commission stated, without being contradicted by the other parties, that the words "alcohol-free wine" constitute a composite name. Accordingly, the appellation "alcohol-free wine" can be used to describe a beverage obtained by removing the alcohol from wine, in so far as the Member State has availed itself of the option provided for in Article 45 of Regulation No 355/79 (repealed), which is now Article 43 of Regulation No 2392/89. When they avail themselves of that option Member States must ensure that the word "wine" is used in accordance with the conditions laid down by the abovementioned provision and by Article 20 of Regulation No 997/81 in order to avoid any confusion in the mind of the consumer.

It is therefore for the national court to ascertain whether the French legislation authorizes the use of the words "alcohol-free wine" to describe a product other than wine within the meaning of the Community rules. However, in this connection, the French Government has indicated in the observations which it submitted to the Court that the French legislature has not used that option.

11. It remains for me to examine a final point relating to the defence mentioned in the Order for reference, to the effect that French winegrowers would be discriminated against if a beverage obtained by removing the alcohol from wine could be marketed under the name "alcohol-free wine" in other Member States. In that connection it should be noted that the special situation of French wine growers arises from the fact that the Community legislation empowers but does not require Member States to authorize the use of the word "wine" for products other than wine. It follows that by refraining from taking advantage of that possibility a Member State may make the marketing on its territory of beverages originating there subject to conditions which are stricter than those in force in other Member States. (13) As the Court has consistently held, (14) Community law does not preclude such a difference in treatment.

Conclusion

12. I propose that the Court should give the following reply to the question submitted by the national court:

"Point 10 of Annex I to Council Regulation No 822/87 (EEC) of 16 March 1987 on the common organization of the market in wine is to be interpreted as meaning that wine, as defined in that provision, must contain a certain degree of alcohol. However, although Article 45(1)(a) 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, restricts the appellation 'wine' to products conforming to the definition in the said point 10, paragraph 2 of that article enables Member States to authorize the use of the composite appellation 'alcohol-free wine' to describe wine-based products from which all alcohol has been removed."

(*) Original language: French.

(1) - OJ 1979 L 54, p. 1.

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

(3) - I would, however, point out a difference in the French text in which the word foulée (crushed) gramatically does not relate to fresh grapes as in Regulation No 337/79 but to alcoholic fermentation. Given the other versions and the context, this is manifestly an error.

(4) - Robert, P.: Dictionnaire alphabétique et analogique de la langue française, 1975.

(5) - Point 2 of Annex I to Regulation No 822/87 allows the grape musts to have an alcoholic strength of not more than 1%, by volume.

(6) - Point 12 of Annex I to Regulation No 822/87.

(7) - Point 13 of Annex I to Regulation No 822/87.

(8) - Article 7 of Council Regulation (EEC) No 823/87 of 16 March 1987 laying down special provisions relating to quality wines produced in specified regions (OJ 1987 L 84, p. 59).

(9) - See the judgment in Case 56/80 Firma A. Weigand v Schutzverband Deutscher Wein eV [1981] ECR 583.

(10) - OJ 1979 L 54, p. 99.

(11) - Regulation No 355/79 was repealed by Council Regulation (EEC) No 2392/89 of 24 July 1989 laying down general rules for the description and presentation of wines and grape musts (OJ 1989 L 232, p. 13), which came into force on 4 September 1989, thus after the events which are the subject of the main proceedings. The provision which corresponds to Article 45 of Regulation No 355/79 is now to be found in Article 43 of Regulation No 2392/89.

(12) - OJ 1981 L 106, p. 1. Article 20 of Regulation No 997/81 remained applicable after the coming into force of Regulation No 2392/89 repealing Regulation No 355/79.

(13) - As mentioned in paragraph 2, the facts of the case do not justify a review of the provisions of Community law governing intra-Community trade in products marketed under the appellation alcohol-free wine .

(14) - See in particular the judgment in Case C-350/88 Delacre and Others v Commission [1990] ECR I-395.