CELEX: 61985CC0234
Language: en
Date: 1986-06-25
Title: Opinion of Mr Advocate General Mischo delivered on 25 June 1986. # Staatsanwaltschaft Freiburg v Franz Keller. # Reference for a preliminary ruling: Amtsgericht Breisach am Rhein - Germany. # Validity of Council and Commission regulations - Labelling of table wine. # Case 234/85.

OPINION OF MR ADVOCATE GENERAL MISCHO
      delivered on 25 June 1986 (
            *1
         )
      
         Mr President,
      
      
         Members of the Council,
      
      I — The background to the request for a preliminary ruling
      The request for a preliminary ruling was made by the Amtsgericht [Local Court] Breisach-am-Rhein in connection with criminal proceedings brought by the Public Prosecutor of Freiburg on 9 February 1984 pursuant to the criminal-law provisions of the German Weingesetz [Wine Law] against Franz Keller, a wine producer, inter alia for failing to observe the Community rules on the labelling of table wine.
      The provisions in question are Article 2 (2) (h) of Council Regulation No 355/79 of 5 February 1979 laying down general rules for the description and presentation of wines and grape musts (Official Journal 1979, L 54, p. 99) and Article 13 (6) of Commission Regulation No 997/81 of 26 March 1981 laying down detailed implementing rules (Official Journal 1981, L 106, p. 1).
      
         Article 2 (1) of Regulation No 355/79 sets out the information which is required to appear on the labelling of table wine. Article 2 (2) lists information which may also be incorporated in table-wine labelling, including, under Article 2 (2) (h),
      
      ‘details as to:
      
               (i)
            
            
               the type of product,
            
         
               (ii)
            
            
               the particular colour of the table wine,
               
                  in so far as this information is governed by implementing rules or, failing this, by provisions of the Member State concerned...’
            
         
         Article 13 (6) of Regulation No 997/81 (
            1
         ) lists optional information intended to specify the type of product. It provides as follows:
      ‘Pursuant to Articles 2 (2) (h), 12 (2) (k) and 28 (2) (k) of Regulation (EEC) No 355/79 the following terms may be used as appropriate:
      
                
            
            
               “demi-sec”, “halbtrocken”, “medium dry”...
            
         
                
            
            
               “moelleux”, “lieblich”, “medium”,
            
         
                
            
            
               “medium sweet”... “doux”, “süss”, “sweet” ...
            
         The terms “sec”, “trocken”, ...“dry” ... may only be used if the wine concerned has a residual sugar content of:
      
                
            
            
               4 g/l maximum, or
            
         
                
            
            
               9 g/l maximum where the level of the total acidity in g/1 expressed as tartaric acid does not fall more than 2 g/1 below the residual sugar content’.
            
         The Public Prosecutor charged Mr Keller with using the term ‘durchgegoren’ [fully fermented] on the labels of bottles of wine produced by him although that description is not one of the terms listed above. Mr Keller should have used the term ‘trocken’ [dry] to indicate the low residual sugar content of his wine.
      The Amtsgericht Breisach agreed with Mr Keller, that the provisions cited above were incompatible with Article 12 of the Grundgesetz [Basic Law], which guarantees the right freely to choose and pursue one's trade or professional activities and at his request, by order of 2 July 1985, asked the Court to deliver a preliminary ruling on the validity of those provisions in Community law.
      In its order requesting a preliminary ruling, the national court mentions that it proposes also to refer the matter to the Bundesverfassungsgericht [Federal Constitutional Court] with a view to obtaining a decision as to the compatibility with the constitution of the provisions in question.
      II — Legal assessment
      
               1.
            
            
               In order to replace the issue in its proper context I would point out in the first place that:
               
                        (i)
                     
                     
                        the Court of Justice of the European Communities may rule only on the validity and the interpretation of provisions of Community law;
                     
                  
                        (ii)
                     
                     
                        it carries out its appraisal having regard to Community law only and not in relation to any provision of national law, even a constitutional provision;
                     
                  
                        (iii)
                     
                     
                        the question of a possible infringement of fundamental rights by a measure of the Community institutions can only be judged in the light of Community law itself.
                     
                  The latter principle was established by the Court, in particular in its judgments in the Internationale Handelsgesellschaft (
                        2
                     ) and Hauer (
                        3
                     ) cases.
               In the latter judgment, the Court explained that principle in the following terms: ‘the introduction of special criteria for assessment stemming from the legislation or constitutional law of a particular Member State would, by damaging the substantive unity and efficacy of Community law, lead inevitably to the destruction of the unity of the Common Market and the jeopardizing of the cohesion of the Community’.
               In the same judgment (paragraph 15) the Court also stated, by reference to the judgment in the Internationale Handelsgesellschaft case (paragraph 4) and the judgment of 14 May 1974 in the Nold case, (
                     4
                  ) that ‘fundamental rights form an integral part of the general principles of the law, the observance of which [the Court] ensures’ and that ‘in safeguarding those rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, so that measures which are incompatible with the fundamental rights recognized by the constitutions of those States are unacceptable in the Community’.
               The Court added that ‘international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply-guidelines which should be followed within the framework of Community law’.
               For its part, the fundamental right freely to pursue one's trade or professional activities was recognized explicitly by the Court in the judgments in the Nold case (paragraph 14, p. 507) and the Hauer case (paragraph 32, p. 3750). The Court observed that although that right was guaranteed under the constitutional systems of several Member States it was far from constituting an unfettered prerogative and was liable to be subject to certain limitations in the light of the public interest and of the social utility of the activities safeguarded. It concluded that ‘within the Community legal order it likewise seems legitimate that [the right] should, if necessary, be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of [the right] is left untouched’.
            
         
               2.
            
            
               It is appropriate therefore to consider the objectives of the contested rules and to assess whether the measures embodied in those rules reasonably correspond to the objectives which they pursue.
               Consequently, the contested provisions must first be considered in the general context of the common organization of the market in wine laid down in Council Regulation No 337/79 of 5 February 1979 (Official Journal 1979, L 54, p. 1). According to the 39th recital in the preamble to that regulation, the common organization of the market in wine seeks to establish a single market in the wine sector, in particular by means of the removal at the internal frontiers of the Community of all obstacles to the free movement of the goods in question. Divergent rules with regard to the description and presentation of products of the wine sector in the various Member States may constitute such obstacles. (
                     5
                  ) Indeed, the Amtsgericht Breisach will find in the European Court Reports numerous illustrations of Member States using their national rules on product labelling as a pretext for prohibiting the marketing in their territory of goods produced in other Member States. Consequently, Article 54 (1) of Regulation No 337/79 provides for the adoption by the Council of common general rules on product description and presentation.
               As the Commission correctly points out in its written observations (paragraph 4 on page 6), only uniform rules with regard to product description can guarantee producers and traders the opportunity to market their products without hindrance in all the Member States.
               Furthermore, the contested rules pursue two specific objectives which may also be described as being in the general interest.: that of laying down rules on description and presentation such as ‘to supply potential buyers and public bodies responsible for organizing and supervising the marketing of the products concerned with information which is sufficiently clear and accurate to enable them to form an opinion of the products’ (second recital in the preamble to Regulation No 355/79).
               It is clear that the requirement in Regulation No 355/79 that the information be ‘as complete as possible’ (third recital in the preamble) and in Regulation No 997/81 that ‘the information on the label [be] as clear and complete as possible’ (third recital in the preamble) is designed to serve the needs of both consumer protection and effective supervision.
               It is also clear that limiting and standardizing the information authorized to appear on labelling decreases the risk of confusion on the part of the consumer and facilitates supervision, points made by the Council and the Commission respectively in their written observations.
               Accordingly, the actual existence of Community rules with regard to the description and labelling of wine cannot be regarded as an infringement of the fundamental right freely to pursue the occupation of wine-grower.
               Far from being an instance ‘of administrative dirigisme in the interests of the bureaucracy’ (page 9 of Mr Keller's observations), the rules were adopted principally in the interests of wine-growers and consumers.
               That is also true of Article 2 (2) (h) of Council Regulation No 355/79, which does not permit optional information concerning the type of product to appear on labelling except in so far as that information is governed by implementing rules adopted by the Commission or, failing that, by the Member State concerned.
            
         
               3.
            
            
               But the real crux of the question is whether the limitation and standardization introduced by the Commission in Article 13 (6) of Regulation No 997/81 completely satisfy the objectives of a single market, consumer protection and effective supervision. In other words, the question is whether the exclusion of the term ‘durch-gegoren’ jeopardizes the achievement of the objectives of general interest pursued by the rules in question and hence constitutes an unjustified restriction on the free pursuit of the occupation of wine-grower.
               Mr Keller considers that the terms ‘trocken’ and ‘durchgegoren’ are substantially different and hence that to describe a fully fermented wine as ‘dry’ — which corresponds to a residual sugar content in the wine which may vary within the range indicated in the contested provision — is far from providing the consumer with full and accurate information and hence far from protecting him. Furthermore, diversification in the descriptions given to a category of products — in so far as the descriptions accord with reality — serves to increase competitiveness and, in general, to preserve the strength and viability of the sector in question.
               The following arguments can be levelled against that contention:
               
                        (a)
                     
                     
                        In the first place, the term ‘durch-gegoren’ is readily understandable only in Germany and the possible renderings in the other languages are by no means usual. I-consider that, even though the Community legislature deliberately sought to take account, when laying down rules on the description and presentation of wines and grape musts, of the differing traditions and usages of the Member States, and indeed the wine-producing regions of the Community, it did so only ‘to the extent that they are compatible with the idea of a single market’ (third recital in the preamble to Regulation No 997/81). Consequently it had good reason to eschew a term which is used in only one Member State and adopt only descriptions which are current in all the Member States.
                        Moreover, it transpired in the course of the oral procedure that the expression ‘durchgegoren’ was not generally used on wine labels in Germany prior to the entry into force of the Community rules.
                     
                  
                        (b)
                     
                     
                        Authorization of the term in question would not have made for more accurate information for the consumer, quite the contrary.
                        It creates the impression that there is no residual sugar in the wine, which is not the case.
                        The residual sugar content of such a wine may vary from one year to another; by and large, it seems to amount to between 1 and 2 grams per litre. Technically speaking, it is not possible to produce a totally fermented wine.
                     
                  
                        (c)
                     
                     
                        The argument based on the breadth of the ‘range’(Bandbreite) covered by the term ‘dry’ wine is not cogent either. The term ‘dry’ covers wine whose residual sugar content is between 0 grams per litre (only theoretically possible, as we have seen) and 4 grams per litre. The category ‘medium dry’ ranges from 4 to 12 grams per litre, the category ‘medium sweet’ from 12 to 45 grams per litre and the category ‘sweet’ covers all wines whose residual sugar content exceeds 45 grams per litre (see Commission Regulation (EEC) No 1011/84 of 10 April 1984 cited in footnote 1.
                        The ‘range’ of ‘dry’ wines is therefore considerably narrower than the other ‘ranges’.
                        Mr Keller's argument that a wine nearing 4 grams per litre is itself to be regarded as sweet is also untenable.
                     
                  
                        (d)
                     
                     
                        Finally, it is not contested that winegrowers are entitled to use the expression ‘durchgegoren’ or to indicate the exact residual sugar content of their wines in their price lists and in their advertising.
                     
                  
         In my view, these arguments are convincing.
      The Court has stated on several occasions (
            6
         ) that, where the appraisal of a complex economic situation is involved, the Commission and the Management Committee enjoy a wide measure of discretion; and that in reviewing the legality of the exercise of such discretion, the Court must examine whether it contains a manifest error or consitutes a misuse of power or whether the authority in question did not clearly exceed the bounds of its discretion.
      It is clear from the above that that was not the case here.
      By stipulating that in order to designate the various residual sugar contents of wines produced in the Community certain terms must be used which, albeit limited in number, are broad enough to cover the main varieties and sufficiently common to be understood throughout the Community, the Community legislature has not unduly or unjustifiably limited wine-growers' freedom to pursue their occupation having regard to the objectives of general interest, of securing a fair standard of living for wine-growers — in particular through the achievement of a single market — consumer protection and effective supervision.
      It is therefore not possible to contend, as Mr Keller does in paragraph ec of his observations, that the legislature misused its legislative power for purposes other than the objectives pursued.
      Accordingly, the measure is not patently unsuited to the objective which the competent institution seeks to pursue (see judgment of 21 February 1979 In Case138/78 Stölting v Hauptzollamt Hamburg-Jonas [1979] ECR 713, paragraph 7 at p. 722).
      Lastly, Article 13 (6), in its version in force at the time when the criminal proceedings were brought against Mr Keller cannot be considered to be invalidated by the fact that, since then, the Commission has amended Article 13 (6) so as to enable Member States to permit the residual sugar content of wines marketed on their territory to be indicated by a figure or other mark forming part of a graduated scale. (
            7
         )
      By the same token, if tomorrow authorization were to be given to indicate the exact residual sugar content throughout the Community, that could not be utilized as an argument against the validity of Article 13 (6) in its original version.
      The fact that the legislature amends existing rules in the light of experience does not signify that the previous rules were illegal.
      It may therefore be concluded that consideration of the question raised has disclosed no factor of such a kind as to affect the validity of either Article 2 (2) (h) of Council Regulation (EEC) No 355/79 of 5 February 1979 or Article 13 (6) of Commission Regulation (EEC) No 997/81 of 26 March 1981.
      (
            *1
         )	Translated from the French.
      (
            1
         )	It should be noted that that article has been amended by Commission Regulation No 1011/84 of 10 April 1984 (OJ 1984, L 101, p. 17) which did not enter into force until 16 April 1984 and therefore docs not apply to this case).
      (
            2
         )	Judgment of 17 December 1970 in Case 11/70 Internationale Handelsgesellschaft v Einfuhr und Vorratstelle für Getreide und Futtermittel [1970] ECR 1125, in particular paragraph 3 at p. 1135.
      (
            3
         )	Judgment of 13 December 1979 in Case 44/79 Hauer v Land Rheinland Pfalz [1979] ECR 3727, in particular paragraph 14, at p. 3744.
      (
            4
         )	Case 4/73 Nold v Commission [1974] ECR 491, in particular paragraph 13 at pp. 507 and 508.
      (
            5
         )	The 38th recital in the preamble to the regulation stresses that it should be provided that products of the wine sector circulating within the Community must be furnished with an accompanying document and then goes on lo state that for these products also rules on description and presentation should be adapted.
      (
            6
         )	See, in particular, the judgment of 25 January 1979 in Case 98/78 Firma A. Racke v Hauplzollamt Mainz [1979] ECR 69, paragraph 5 at p. 81.
      (
            7
         )	Commission Regulation (EEC) No 1011/84, see footnote 1.