CELEX: 61981CC0002
Language: en
Date: 1981-11-19
Title: Opinion of Mr Advocate General Rozès delivered on 19 November 1981. # Criminal proceedings against Albert Clément, Gérard Ces and others. # Reference for a preliminary ruling: Tribunal de grande instance de Paris - France. # Common organization of the market in wines - Coupage of wines. # Case 2/81.

OPINION OF MRS ADVOCATE GENERAL ROZÈS
      delivered on 19 November 1981 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      The case which forms the subject-matter of my opinion today arose from the coupage carried out in the Netherlands of wines of Greek and Algerian origin which had been put into free circulation in that State. The wines were subsequently sold by the Netherlands company Europe Vins to the French companies Albert Clément and Gérard Ces as wines intended for vinegar-making. The latter companies imported them into France under customs documents which described them as “Community goods ‘Origin: Netherlands’”.
      The imports were described by the French customs authorities as imports without a declaration of prohibited goods by means of a false declaration of origin within the meaning of Article 426 (3) of the Code Français des Douanes [French Customs Code]. The purpose of that false declaration had been to enable the undertakings in question to evade the prohibition in principle of the blending of wines from nonmember countries within the Community provided for by Article 26 (4) of Regulation (EEC) No 816/70 of the Council of 28 April 1970 laying down additional provisions for the common organization of the market in wine.
      As it indicates in its judgment malung the reference to the Court, the Eleventh Criminal Chamber of the Tribunal de Grande Instance [Regional Court], Paris, adopts the analysis of the customs authorities with regard to table wines. However, since the wines in this case were intended for vinegar-making, it preferred to stay the proceedings and request a preliminary ruling from the Court on the question as to whether Article 26 (4) cited above also applies to those goods.
      I —
      Before a reply is given to that question, it is helpful to consider certain of the observations of the French Government and of the companies Clément and Ces. My comments will be brief because they concern developments which do not fall within the ambit of the question asked by the court malung the reference and are therefore not in keeping with the spirit of the preliminary ruling procedure. According to wellestablished and consistent case-law, that procedure “is based upon a clear separation of functions between national courts and the Court of Justice”, with the result that the Court may neither “investigate the facts of the case” nor “criticize the grounds and purpose of the request for interpretation” (judgment of 15 July 1964 in Case 6/64 Costa v ENEL [1964] ECR 585, at p. 593), as “the parties to the main action” and other interveners “are merely invited to state their case within the legal limits laid down by the national court” (judgment of 1 March 1973 in Case 62/72 Bollmann v Hauptzollamt Hamburg-Waltershof [1973] ECR 269, at p. 275, paragraph 4).
      Thus, the French Government claimed that coupage itself — and no longer the importation into France of wines derived therefrom, which is the sole issue in these proceedings — was unlawful under French law, to which the matter was left by Regulation No 1021/70 of the Commission of 29 May 1970 authorizing as a transitional measure coupage between imported wines. Clearly, this Court has no jurisdiction to settle such a question concerning assessment of validity in relation to national law.
      Likewise, whilst generally one cannot fail to subscribe to the opinion, expressed with some insistence by counsel for the companies concerned, that the customs authorities of each Member State are equal in law, that is not so with regard to his suggestion that the Court should declare that, under Article 36 (1) of Regulation (EEC) No 542/69 of the Council of 18 March 1969 on Community transit, it is the exporting country which is responsible for deciding upon the origin of the goods. It is apparent from the judgment making the reference that for the same reason the Clément company has already raised an objection of lack of jurisdiction before the Tribunal de Paris, maintaining that jurisdiction lies with the Netherlands courts. The Tribunal dismissed that objection in the firmest of terms and it is certainly not for the Court of Justice to review that decision. The relationship of the Court of Justice to the national courts is neither that of a court of appeal nor that of a court of cassation (jugdment of 9 December 1965 in Case 44/65 Hessische Knappschaß v Maison Singer [1965] ECR 965, at pp. 970 and 971; judgment of 15 June 1972 in Case 5/72 Fratelli Grassi fit Davide v Italian Finance Administration [1972] ECR 443, paragraph 4 of the decision at pp. 447 and 448).
      The importing companies also maintained that the contested coupages did not fall within the rules laid down in Article 26 (4) of Regulation No 816/70, because for the most part coupage took place before the regulation entered into force. However, according to the judgment making the reference the blending was carried out in September 1970, that is to say after the regulation entered into force. According to it case-law of the Court of Justice is bound to accept the final findings of fact made by the national court (judgment of 23 January 1975 in Case 51/74 P.J. Van der Hulst's Zonen v Produktschap voor Siergewassen [1975] ECR 79, paragraph 12 of the decision at p. 92; judgment of 16 March 1978 in Case 104/77 Oehlschläger v Hauptzollamt Emmerich [1978] ECR 791, paragraph 4 of the decision at p. 797; judgment of 15 November 1979 in Case 36/79 Denkavit v Finanzamt Warendorf [1979] ECR 3439, paragraph 12 of the decision at p. 3455). It is therefore not possible to devote further time to a discussion of that argument.
      II —
      Having thus dealt with those preliminary matters, I may now turn to the actual question which has been put to the Court: do the provisions of Article 26 (4) of Regulation No 816/70 of the Council apply to wines intended for vinegar-making?
      Article 26 (4) reads as follows:
      “The coupage of an imported wine with a Community wine and the coupage on Community territory of imported wines shall be prohibited except by way of derogation to be decided by the Council, acting in accordance with the voting procedure laid down in Article 43 (2) of the Treaty on a proposal from the Commission.”
      Except for amendments of mere form and the addition of two further paragraphs concerning the particular case of the coupage of wines intended for nonmember countries, the text differs little from that of Article 43 (4) of the codifying Council Regulation (EEC) No 337/79 of 5 February 1979 on the common organization of the market in wine. As the French Government rightly points out, the decision which this Court will give in this case may, depending on the grounds given, form a precedent with regard to facts arising under the present rules.
      
               (1)
            
            
               The French Government maintains that Article 26 (4) is perfectly clear. It is necessary merely to read the article to be convinced that all coupage of wines originating in nonmember countries is in principle prohibited, without there being any need to draw a distinction between wines intended for direct consumption and those intended for industrial use. Consequently, in its view, by suggesting such a distinction despite the general wording of the provision, the question raised adds to the provisions of Article 26 (4) without any justification and in fact seeks to alter its scope with retroactive effect.
               It is true that the provision under consideration does not expressly state that wines intended for industrial use are exempt from the prohibition in principle of coupage. Nor does it state, however, that those wines are covered by that prohibition. Consequently, it may be concluded that Article 26 (4) raises a difficulty of interpretation which must be resolved on the basis of arguments other than those which may be derived from its wording.
               Whilst an analysis of Article 26 (4) alone does not therefore seem conclusive, the general scheme of the article on the other hand appears to be scarcely compatible with the view put forward by the French Government.
               Article 26 (1) specifies the wines (table wines and wines suitable for yielding table wines) which, when coupage has taken place between them, produce wines which themselves are table wines. Consequently, it refers only to wines cultivated in the Community and intended for direct human consumption. Table wines are by definition consumed directly by humans; moreover, as is clear from point 10 of Annex II to Regulation No 810/70, the description “table wine” is a Community description reserved for wines which fulfil certain conditions and are produced in the Member States. For the same reasons paragraphs (2) and (3) of Article 26, which lay down the conditions which a coupage must fulfil in order to yield a table wine, have exactly the same scope as paragraph (1).
               In that context it may be thought that if the Community legislature had intended that paragraph (4) of Article 26 should, unlike the provisions preceding it, apply to wines intended for industrial use, it would have stated so expressly.
            
         
               (2)
            
            
               However, in order to show that the paragraph has an exceptionally wide scope, the French Government put forward a further line of argument, based this time on the objective which that paragraph pursues. In its view, the absence of any distinction on the basis of the intended use of the wine is attributable to the difficulties involved in verifying the use for which the blended wine is actually intended. The only verification which could easily be carried out would be that of alcoholic strength. However, a check of that kind would be insufficient to avoid frauds, which might, for example, be committed by substituting for a barrel of French table wine, which would be sent for vinegar-making, a barrel of blended wine originating in a nonmember country, which would purportedly be intended for vinegar-making but would be delivered in its existing condition for human consumption. That is why a number of governments have sought to eliminate at source any possibility of fraud by extending the prohibition in principle of coupage to all wines coming from a nonmember country, irrespective of the use to which they are put. That is the significance of the wording adopted for Article 26 (4) of Regulation No 816/70 and retained in the corresponding provision of Regulation No 337/79.
               For a number of reasons those considerations do not seem convincing. First of all, the French Government does not adduce even the slightest evidence of the intention which it imputes to certain Member States.
               Moreover, one of the matters which has been of concern to the Court is the possibility of fraud: it asked the Commission and the Clément company what are the safeguards which exist to ensure that a wine derived from coupage, such as that at issue in this case, is actually used for its intended purpose (vinegar-making), where the wine is also suitable for direct consumption.
               In its reply the Commission described the system set up for that purpose on a Community scale, which at the relevant time was governed by Regulation (EEC) No 1022/70 of the Commission of 29 May 1970 introducing for a transitional period accompanying certificates for certain wines. Under Article 1 of that regulation, a wine intended for direct consumption could not be the subject of trade between the Member States unless it had an accompanying certificate issued following inspections by the Member State of origin. The certificates had different colours depending on whether or not the wine was of Community origin and stated, where appropriate, whether the wine was the result of coupage. By virtue of Article 9 (1) of the regulation, wines which did not originate in the Community and were not approved for direct human consumption were to be placed by the Member States under customs or administrative control providing equivalent safeguards to ensure that they were used for their intended purpose. For their part, the importing companies enumerated the precautions taken by the French authorities: statement of the intended industrial use on the French customs document; special form of the transit document which accompanies industrial wines on national territory; different rates of VAT (paid when the goods cross the frontier) for industrial wines and for those intended for direct consumption; final control at the vinegar factory itself. Those answers are, I think, such as to reassure even the most suspicious minds.
               Consequently, in my view the rules in force are sufficient to meet the undoubtedly legitimate concerns expressed by the French Government without their being any need to have recourse to Article 26 (4).
               In sum, the arguments put forward as to the actual wording of Article 26 (4) or as to the purpose of that one provision, as seen by the French Government, are in my view unfounded.
            
         
               (3)
            
            
               However, in addition to the material for interpretation provided by the general scheme of Article 26 in its entirety, material may also be found in the reasons which led to the adoption of the Community rules on coupage, considered as a whole.
               It seems to me that in reaching an interpretation regard must be had to the fifteenth recital in the preamble to Regulation No 816/70 (twenty-eighth recital in the preamble to Regulation No 337/79), which in regard to coupage states as follows: “whereas, in view of its possible consequences, its control is necessary in order to prevent abuse”.
               (a) As the wording of that recital indicates, the Community rules on coupage are strict. It is to be observed however, at least with regard to wines produced in the Community, which are the only ones for which a complete body of rules exist, that this rigour only applies to wines intended for direct consumption. As we have seen, paragraphs (1) to (3) of Article 26, which concern table wines and wines suitable for yielding table wine, lay down precise rules concerning the quality (paragraph (1)) and colour (paragraph (3)) of the wines which may be the subject of coupage and the zones in which the process must take place (paragraph (2)). Wines resulting from the coupage of quality wines produced in specified regions (quality wines psr) with a wine other than a quality wine psr or with a quality wine psr which is not entitled to bear the name of the same specific region may in principle not be supplied for direct human consumption by virtue of Article 4 (a) of Commission Regulation (EEC) No 1972/78 of 16 August 1978 laying down detailed rules on oenological practices.
               On the other hand, wines derived from coupage and intended for industrial use are unrestricted. They are not covered by paragraphs (1) to (3) of Article 26. Moreover, Article 27 (3) of Regulation No 816/70 expressly provides that wine “derived from the vine varieties” approved for cultivation in the Community “but not corresponding to the definitions” of table wine and wine suitable for yielding table wine “may be used only for consumption in the family of the individual winegrowers, for the production of wine vinegar or for distillation”.
               In order to understand the reasons for this different treatment, it is in my view necessary to have regard to the objectives of the Community policy on wine.
               In the case of all wines, including those which owing to their inferior quality are intended for industrial uses, such as vinegar-making, the rules must ensure in particular the safeguarding of public health, the protection of consumers and fair trading. However, in the case of wines consumed directly, those requirements are combined with the concern to achieve production of the highest possible quality. It is the latter consideration which explains the particular strictness of the rules governing the coupage of those wines.
               With regard to wines having undergone coupage coming from nonmember countries, on the other hand, Article 26 (4), which forms the major part of the rules on the matter, does not, as we have seen, expressly make any distinction on the basis of their intended use. However, since the rules on the coupage of Community wines apply only to wines intended for direct consumption, special reasons would be required if the position were to be different with regard to wines from nonmember countries.
               In my view, such special reasons exist only in the case of wines intended for direct human consumption. Wines produced in the Community are subject to uniform rules which, as we have seen, are reflected in a common definition of “table wine”, so that there is no objection to allowing the mixing of wines corresponding to that definition with each other or with wines suitable for yielding table wine which also corresponds to a common definition. Wines from nonmember countries, on the other hand, do not individually correspond to common criteria of quality, even where they have undergone quality control in the State in which they have been produced, nor are they subject to comparable controls. Consequently, the safeguards intended to ensure the quality of each wine are likely to become ineffective if the wines are mixed.
               In the case of wines intended for vinegar-making, on the other hand, the need for quality control disappears. Consequently, provided of course that in all other respects they comply with all the requirements for importation into the Community, there is no further purpose to be served by prohibiting in principle the coupage of such wines. As the maxim has it, “cessante ratione legis cessat lex ipsa”.
               
               The justification for the different treatment advanced by the French Government, namely the need to maximize the outlets for Community wines in a market characterized by surpluses, does not seem to me to be relevant. If it is true that Community preference is a fundamental principle of the common agricultural policy, then observance of that principle may, I think, be ensured only by instruments provided for that purpose and not by exaggerating the scope of a provision, for the use of which for protectionist purposes I can see no legal justification.
               In sum, I consider that the arguments set out above as to the basis of the Community rules on coupage, in conjunction with the factors which the general scheme of Article 26 seemed to me to disclose, are conclusive as to the interpretation of the provision in question.
               I conclude therefore that in reply to the question raised by the Eleventh Criminal Chamber of the Tribunal de Grande Instance, Paris, the Court should rule that the provisions of Article 26 (4) of Regulation No 816/70 of the Council of 28 April 1970 laying down additional provisions for the common organization of the market in wine do not apply to wines intended for vinegar-making.
            
         (
            1
         )	Translated from the French.