1 BY JUDGMENT OF 4 JANUARY 1982 , WHICH WAS RECEIVED AT THE COURT ON 1 MARCH 1982 , THE FRENCH COUR DE CASSATION ( COURT OF CASSATION ) REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE INTERPRETATION OF THE EXPRESSION ' ' NEW WINE STILL IN FERMENTATION ' ' AS DEFINED IN PARAGRAPH 8 OF ANNEX II TO 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ORGANIZATION OF THE MARKET IN WINE ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 234 ) WHICH HAS SINCE BEEN REPLACED BY PARAGRAPH 9 OF ANNEX II TO COUNCIL REGULATION ( EEC ) NO 337/79 OF 5 FEBRUARY 1979 ON THE COMMON ORGANIZATION OF THE MARKET IN WINE ( OFFICIAL JOURNAL 1979 , L 54 , P . 1 ).
2 THAT QUESTION WAS RAISED IN CRIMINAL PROCEEDINGS INITIATED FOR POSSESSION FOR THE PURPOSE OF SALE AS WINE OF A PRODUCT DISPLAYING THE FEATURES OF A ' ' NEW WINE STILL IN FERMENTATION ' ' . BY VIRTUE OF ARTICLE 27 ( 2 ) OF REGULATION NO 816/70 ( REPLACED BY ARTICLE 48 ( 2 ) OF REGULATION NO 337/79 ) ' ' NEW WINE STILL IN FERMENTATION ' ' IS NOT INCLUDED AMONGST THE PRODUCTS WHICH MAY BE OFFERED OR DISPOSED OF FOR DIRECT HUMAN CONSUMPTION WITHIN THE COMMUNITY .
3 ACCORDING TO BOTH REGULATION NO 816/70 OF THE COUNCIL AND REGULATION NO 337/79 , ' ' NEW WINE STILL IN FERMENTATION ' ' IS A WINE ' ' IN WHICH ALCOHOLIC FERMENTATION IS NOT YET COMPLETE AND WHICH IS NOT YET SEPARATED FROM ITS LEES ' ' . IN THE OPINION OF THE COUR DE CASSATION , THE SOLE QUESTION TO BE RESOLVED IS WHETHER THE WINE IN QUESTION MAY BE REGARDED AS ' ' SEPARATED FROM ITS LEES ' ' .
4 SEEKING AN INTERPRETATION OF THAT DEFINITION , THE COUR DE CASSATION HAS REQUESTED THE COURT OF JUSTICE TO GIVE A PRELIMINARY RULING ON THE QUESTION ' ' WHETHER THE NATIONAL COURT IS EMPOWERED TO REGARD AS SEPARATED FROM ITS LEES A WINE WHICH CONTAINS A PERCENTAGE OF LEES OF BETWEEN 0.35% AND 0.40% ON THE GROUND THAT ACCORDING TO EXPERT EVIDENCE SUCH A PERCENTAGE IS NEGLIGIBLE . ' '
5 THAT QUESTION SEEKS IN SUBSTANCE TO ASCERTAIN WHETHER A WINE CONTAINING A NEGLIGIBLE PERCENTAGE OF LEES MAY BE REGARDED AS SEPARATED FROM ITS LEES WITHIN THE MEANING OF PARAGRAPH 8 OF ANNEX II TO REGULATION NO 816/80 ( REPLACED BY PARAGRAPH 9 OF ANNEX II TO REGULATION NO 337/79 ) ON THE COMMON ORGANIZATION OF THE MARKET IN WINE .
6 IT IS CLEAR FROM THE OBSERVATIONS SUBMITTED TO THE COURT BY THE FRENCH GOVERNMENT , BY THE COMMISSION AND BY THE ACCUSED IN THE MAIN PROCEEDINGS THAT THE QUANTITY OF LEES WHICH REMAINS IN THE WINE FOLLOWING ' ' SEPARATION ' ' DEPENDS ON SEVERAL FACTORS AND CANNOT BE DETERMINED IN AN ABSTRACT MANNER . THUS THE PERCENTAGE OF LEES WHICH REMAINS PRESENT VARIES ACCORDING TO THE METHOD USED FOR THE PURPOSE OF SEPARATION ( RACKING , A CENTRIFUGAL PROCESS OR FILTRATION ) AND TO THE CLIMATE , VARIETY OF VINE OR STATE OF MATURITY OF THE GRAPE . SIMILARLY , THE PERCENTAGE OF LEES MAY BE EXPRESSED AS LIQUID OR DRY MATTER . THUS THE PERCENTAGE OF 0.35% TO 0.40% REFERRED TO BY THE COUR DE CASSATION MUST BE ADJUSTED ACCORDING TO WHETHER LIQUID LEES OR DRY LEES ARE CONCERNED .
7 IN SPITE OF THE DIFFICULTIES WHICH MAY BE INVOLVED IN ESTABLISHING AN EXACT PERCENTAGE OF LEES REMAINING PRESENT IN THE WINE AFTER IT HAS BEEN SEPARATED FROM ITS LEES , THE FACT NONE THE LESS REMAINS THAT A COMPLETE SEPARATION CAN NEVER BE ACHIEVED . THAT IS DEMONSTRATED INTER ALIA BY THE FACT THAT A FRESH FORMATION OF LEES MAY TAKE PLACE AT ANY TIME EVEN IN A WINE SUITABLE FOR CONSUMPTION . SEPARATION IS CARRIED OUT EITHER AS A RESULT OF RE-FERMENTATION OF THE WINE , OR EVEN IN THE ABSENCE OF FERMENTATION .
8 MOREOVER , THE RESULTS OF A SCIENTIFIC STUDY CITED BY THE COMMISSION SHOW THAT THE PERCENTAGE OF LEES REFERRED TO BY THE COUR DE CASSATION IN THE PRESENT CASE IS MUCH SMALLER THAN THE AVERAGE PERCENTAGE OF LEES OBTAINED WHEN WINE IS FIRST RACKED AND IS SMALLER OR VIRTUALLY EQUAL ( ACCORDING TO WHETHER LIQUID OR DRY LEES ARE CONCERNED ) TO THE MINIMUM QUANTITY OBTAINED FROM THE FIRST RACKING .
9 ACCORDINGLY , THE ANSWER TO THE QUESTION SUBMITTED BY THE COUR DE CASSATION MUST BE THAT A WINE CONTAINING A PERCENTAGE OF LEES WHICH IS MUCH SMALLER THAN THE AVERAGE PERCENTAGE OF LEES OBTAINED WHEN THE WINE IS FIRST RACKED MAY BE REGARDED AS SEPARATED FROM ITS LEES WITHIN THE MEANING OF PARAGRAPH 8 OF ANNEX II TO REGULATION NO 816/70 ( REPLACED BY PARAGRAPH 9 TO ANNEX II TO REGULATION NO 337/79 ) ON THE COMMON ORGANIZATION OF THE MARKET IN WINE . IT IS FOR THE NATIONAL COURT TO ASSESS THE PERCENTAGE IN QUESTION BY REFERENCE TO THE TRADITIONAL METHODS OF PRODUCTION OF THE WINE CONCERNED .