FOR MAKING AND SELLING UNDER THE DESCRIPTION OF WINE-BASED APERITIF AN APERITIF , ST-RAPHAEL , WHICH WAS NOT MADE IN ACCORDANCE WITH THE QUALITY REQUIREMENTS CONTAINED IN ARTICLE 5 OF THE FRENCH DECREE OF 31 JANUARY 1930 .
3 THAT ARTICLE PROVIDES THAT ' ' IT SHALL BE PROHIBITED TO SELL OR OFFER FOR SALE , TO BE IN POSSESSION OF OR TRANSPORT WITH A VIEW TO SALE UNDER THE DESCRIPTION VERMOUTH OR ANY OTHER DESCRIPTION COMMONLY RESERVED FOR WINE-BASED APERITIFS , BEVERAGES WITH AN ALCOHOLIC STRENGTH EXCEEDING 23* OR CONTAINING LESS THAN 80 % OF LIQUEUR WINE , GRAPE MUST OR GENUINE ORDINARY WINE OF MERCHANTABLE QUALITY AND HAVING AN ALCOHOLIC STRENGTH OF NOT LESS THAN 10* ' ' .
4 THE ACCUSED WERE PROSECUTED FOR MAKING AND MARKETING DURING 1975 AND UNTIL 31 MAY 1978 UNDER THE DESCRIPTION OF WINE-BASED APERITIF AT LEAST 221 327.34 HECTOLITRES OF APERITIF NOT CONTAINING THE MINIMUM PERCENTAGE OF 80 % OF WINE AND OF WHICH MOREOVER 218 715.67 HECTOLITRES HAD BEEN MADE USING WINE WITH A STRENGTH OF LESS THAN 10* .
5 THE ACCUSED CLAIMED THAT THE FRENCH DECREE OF 31 JANUARY 1930 WAS NOT APPLICABLE ON THE GROUND THAT IT WAS INCOMPATIBLE WITH COMMUNITY LAW BECAUSE THE MINIMUM ALCOHOL CONTENT WHICH THE COMMUNITY REGULATIONS REQUIRE TABLE WINE CONTAINED IN WINE-BASED APERITIFS TO HAVE IS 8.5* INSTEAD OF 10* AS REQUIRED BY THE FRENCH LEGISLATION .
6 THEY CLAIM THAT ARTICLE 5 OF THE DECREE OF 31 JANUARY 1930 HAS THEREFORE BECOME INAPPLICABLE IN ITS ENTIRETY BECAUSE THE FACT THAT THE RULE WHICH IT CONTAINS ON THE ALCOHOLIC STRENGTH OF TABLE WINE USED IN WINE-BASED APERITIFS IS INCOMPATIBLE WITH COMMUNITY REGULATIONS MAKES THE RULE AS TO THE MINIMUM PERCENTAGE OF 80% INCOMPATIBLE AS WELL .
7 IN ORDER TO BE ABLE TO DECIDE WHETHER THE NATIONAL PROVISIONS ARE COMPATIBLE WITH COMMUNITY LAW THE NATIONAL COURT REFERRED THE FOLLOWING THREE QUESTIONS TO THE COURT :
' ' 1 . MAY THE DESCRIPTION ' WINE-BASED APERITIF ' BE REGARDED AS COVERED BY AN EEC REGULATION PRECLUDING THE APPLICATION OF NATIONAL LAW IN SO FAR AS HEADING 22.06 OF THE COMMON CUSTOMS TARIFF REFERS TO PRODUCTS DEFINED AS ' VERMOUTHS , AND OTHER WINES OF FRESH GRAPES FLAVOURED WITH AROMATIC EXTRACTS WITH AN ALCOHOLIC STRENGTH NOT EXCEEDING 22* ' AND IF THE ANSWER IS IN THE AFFIRMATIVE , MUST SUCH A PRODUCT HAVE CHARACTERISTICS OTHER THAN THOSE SPECIFIED IN THE SAID DEFINITION?
2 . IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE , HAS REGULATION ( EEC ) NO 816/70 OF THE COUNCIL OF 28 APRIL 1970 , BY DEFINING , IN POINT 11 OF ANNEX II THERETO , TABLE WINE TO WHICH IT IS LAWFUL TO ADD ALCOHOL FOR THE PURPOSE OF PRODUCING PRODUCTS FALLING WITHIN THE ABOVE-MENTIONED TARIFF HEADING 22.06 AS A WINE WHICH MUST HAVE NATURAL ALCOHOLIC STRENGTH OF NOT LESS THAN 8.5* , WHEN ARTICLE 5 OF THE DECREE OF 31 JANUARY 1930 PROHIBITS IN FRANCE THE POSSESSION