1 BY ORDER OF 29 SEPTEMBER 1980 WHICH WAS RECEIVED AT THE COURT ON 20 OCTOBER 1980 THE TRIBUNAL CORRECTIONNEL ( DIVISION OF THE REGIONAL COURT HAVING JURISDICTION IN CRIMINAL CASES ), MONTPELLIER , REFERRED THREE QUESTIONS TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TO ENABLE THE TRIBUNAL CORRECTIONNEL TO DECIDE WHETHER PROVISIONS OF FRENCH LEGISLATION LAYING DOWN MINIMUM REQUIREMENTS AS TO THE PERCENTAGE AND ALCOHOLIC STRENGTH OF WINE CONTAINED IN PRODUCTS CALLED ' ' WINE-BASED APERITIFS ' ' FALLING WITHIN TARIFF HEADING 22.06 ARE COMPATIBLE WITH THE COMMON ORGANIZATION OF THE MARKET IN WINE .
2 THOSE QUESTIONS WERE RAISED IN THE CONTEXT OF CRIMINAL PROCEEDINGS BROUGHT AGAINST THE MANAGING DIRECTOR AND THE WAREHOUSE MANAGERS OF A COMPANY 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 , TRANSPORTATION AND SALE UNDER THE APPELLATION OF WINE-BASED APERITIFS OR ANY OTHER NAME RESERVED FOR THAT PURPOSE OF BEVERAGES CONTAINING LESS THAN 80 % OF GENUINE ORDINARY WINE OF MERCHANTABLE QUALITY HAVING A NATURAL ALCOHOLIC STRENGTH OF NOT LESS THAN 10* , MADE THIS LATTER REQUIREMENT OF 10* INAPPLICABLE AND REPLACED IT WITH A STRENGTH OF 8.5*? 3 . IF THE ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE , BY MAKING ONE OF THE TWO ESSENTIAL CONDITIONS LAID DOWN BY THE ABOVE-MENTIONED ARTICLE 5 INAPPLICABLE , DO THE COMMUNITY REGULATIONS MEAN THAT THE OTHER CONDITION REQUIRING VERMOUTHS AND SIMILAR PRODUCTS TO CONTAIN 80 % WINE MAY NO LONGER BE IMPOSED SEPARATELY , AND FINALLY HAS ARTICLE 5 OF THE DECREE OF 31 JANUARY 1930 BECOME INAPPLICABLE IN ITS ENTIRETY? ' ' QUESTION 1
8 IT MUST BE OBSERVED THAT 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 , WHICH WAS CITED BEFORE THE NATIONAL COURT AND IS INCORPORATED IN COUNCIL REGULATION ( EEC ) NO 337/79 OF 5 FEBRUARY 1979 ON THE COMMON ORGANIZATION OF THE MARKET IN WINE , DOES NOT MENTION THE PRODUCTS SET OUT IN HEADING 22.06 OF THE COMMON CUSTOMS TARIFF WITHIN WHICH WINE-BASED APERITIFS FALL . AS A RESULT THE PRODUCTS IN QUESTION ARE NOT DEFINED IN ANNEX II REFERRED TO IN ARTICLE 1 ( 4 ) ( B ) OF REGULATION NO 337/79 .
9 NOR IS SUCH A DEFINITION TO BE READ INTO THE COMMUNITY REGULATIONS BECAUSE OF THE FACT THAT AT THE TIME OF THE EVENTS IN QUESTION PRODUCTS FALLING WITHIN HEADING 22.06 OF THE COMMON CUSTOMS TARIFF WERE REFERRED TO IN ARTICLE 1 ( 3 ) OF REGULATION ( EEC ) NO 1876/74 OF THE COUNCIL OF 15 JULY 1974 CONCERNING THE ADDITION OF ALCOHOL TO PRODUCTS IN THE WINE SECTOR , AS AMENDED BY REGULATION ( EEC ) NO 680/75 OF THE COUNCIL OF 4 MARCH 1975 . AT THE PRESENT TIME THIS IS ALSO THE CASE UNDER ARTICLE 1 ( 3 ) OF COUNCIL REGULATION ( EEC ) NO 351/79 OF 5 FEBRUARY 1979 CONCERNING THE ADDITION OF ALCOHOL TO PRODUCTS IN THE WINE SECTOR . THE AIM OF THAT REGULATION IS TO MAKE DEROGATIONS FROM ARTICLE 42 ( 1 ) OF COUNCIL REGULATION ( EEC ) NO 337/79 AND THUS TO ALLOW THE ADDITION OF ALCOHOL TO CERTAIN PRODUCTS TO BE USED TO MAKE PRODUCTS FALLING WITHIN TARIFF HEADING 22.06 WHICH INCLUDE TABLE WINE .
10 IT FOLLOWS THAT WINE-BASED APERITIFS ARE NOT AT PRESENT GOVERNED BY COMMUNITY REGULATIONS . THIS HAS BEEN ACCEPTED BY ALL THE INTERESTED PARTIES WHO HAVE SUBMITTED OBSERVATIONS TO THE COURT AND IS MOREOVER SHOWN BY THE DRAFT PROPOSAL FOR A COUNCIL REGULATION DRAWN UP BY THE COMMISSION ON 16 FEBRUARY 1981 LAYING DOWN GENERAL RULES ON THE DEFINITION , DESCRIPTION AND PRESENTATION OF SPIRITUOUS BEVERAGES AND OF VERMOUTHS AND OF OTHER WINES OF FRESH GRAPES FLAVOURED WITH AROMATIC EXTRACTS .
11 THE FACT THAT WINE-BASED APERITIFS BELONG TO HEADING 22.06 OF THE COMMON CUSTOMS TARIFF CAN BE NO SUBSTITUTE FOR SUCH REGULATIONS . THE PURPOSE OF THE COMMON CUSTOMS TARIFF IS TO CLASSIFY GOODS SO THAT CUSTOMS DUTIES CAN BE COLLECTED AND NOT TO REGULATE THE METHODS BY WHICH THE PRODUCTS WHICH IT TAXES ARE MADE .
12 THE ANSWER TO THE FIRST QUESTION PUT TO THE COURT MUST THEREFORE BE THAT THE APPELLATION ' ' WINE-BASED APERITIFS ' ' IS NOT AT PRESENT GOVERNED BY COMMUNITY REGULATIONS WHICH EXCLUDE THE APPLICATION OF THE NATIONAL LEGISLATION OF THE MEMBER STATES . QUESTION 2
13 THE ACCUSED CONTEND THAT IN SO FAR AS THEY EXIST THE COMMUNITY REGULATIONS ALLOW TABLE WINE OF AN ALCOHOLIC STRENGTH OF 8.5* TO BE USED TO MAKE WINE-BASED APERITIFS , TABLE WINE BEING DEFINED IN ANNEX II TO REGULATION ( EEC ) NO 816/70 OF THE COUNCIL AND NOW BY ANNEX II TO REGULATION NO 337/79 AS WINE WHICH HAS AN ALCOHOLIC STRENGTH OF NOT LESS THAN 8.5* AND NOT MORE THAN 15* OR 17* . THEY CLAIM THAT THIS HAS THE EFFECT OF RENDERING INAPPLICABLE ARTICLE 5 OF THE DECREE OF 31 JANUARY 1930 PROHIBITING THE USE OF A WINE OF AN ALCOHOLIC STRENGTH OF LESS THAN 10* FOR MAKING WINE-BASED APERITIFS .
14 ACCORDING TO THE FRENCH GOVERNMENT , THE FACT THAT WINE-BASED APERITIFS ARE NOT REGULATED AT COMMUNITY LEVEL MEANS THAT ARTICLE 5 OF THE FRENCH DECREE OF 31 JANUARY 1930 ON THE MAKING OF WINE-BASED APERITIFS , WHICH IS INTENDED TO MAINTAIN THE NECESSARY QUALITY STANDARDS FOR NATIONAL PRODUCTS CONTINUES TO APPLY . THE FRENCH GOVERNMENT HAS EXPLAINED THAT THE MINIMUM PROPORTION OF ALCOHOL IN BASE WINES WAS FIXED AT 10* IN ORDER TO ENSURE THAT SINCE IT IS ENRICHED WITH DISTILLED ALCOHOL THE PRODUCT SOLD AS ' ' WINE-BASED APERITIF ' ' SHOULD CONTAIN A SUFFICIENTLY REPRESENTATIVE PROPORTION OF ALCOHOL DERIVED FROM THE NATURAL FERMENTATION OF GRAPES .
15 THE COMMISSION SUBMITS THAT THE ADDITION OF ALCOHOL WITHIN THE MEANING OF REGULATION NO 351/79 TO PRODUCTS GOVERNED BY THE COMMON ORGANIZATION MAY TAKE PLACE ONLY IN COMPLIANCE WITH THE COMMUNITY DEFINITIONS OF THOSE PRODUCTS AND , IN THE CASE OF TABLE WINE , WITH THE DEFINITION GIVEN AT POINT 11 OF ANNEX II REGULATION NO 337/79 WHICH ALLOWS A MINIMUM ALCOHOLIC STRENGTH OF 8.5* AND A MAXIMUM OF 15* OR 17* , AS THE CASE MAY BE . ACCORDING TO THE COMMISSION , IT FOLLOWS IF A RULE OF NATIONAL LAW RELATING TO TABLE WINE USED TO MAKE WINE-BASED APERITIFS REQUIRES WINE OF AN ALCOHOLIC STRENGTH OF LESS THAN 8.5* OR MORE THAN 15* OR 17* TO BE USED , THAT RULE IS NOT COMPATIBLE WITH COMMUNITY LAW .
16 SINCE THERE ARE NO APPLICABLE COMMUNITY REGULATIONS THE MEMBER STATES CONTINUE TO HAVE THE POWER TO DEFINE THE STANDARDS APPLICABLE TO THE MANUFACTURE AND MARKETING OF NATIONAL PRODUCTS CALLED WINE-BASED APERITIFS . THEREFORE A MEMBER STATE MAY NOT BE PREVENTED FROM SUBJECTING THE MANUFACTURER OF WINE-BASED APERITIFS TO SPECIAL QUALITY RULES , DEPENDING ON THE CHARACTERISTICS OF THAT KIND OF BEVERAGE . IF A REQUIREMENT OF A MINIMUM PROPORTION OF ALCOHOL LIKE THAT CONTAINED IN ARTICLE 5 OF THE FRENCH DECREE OF 31 JANUARY 1930 IS WITHIN THE COMMUNITY LIMITS , IT MEETS THAT CRITERION OF QUALITY .
17 IT DOES NOT APPEAR THAT THE POWER WHICH MEMBER STATES THEREFORE HAVE IS RESTRICTED BY THE PROVISIONS OF COMMUNITY LAW GOVERNING THE MARKETING OF PRODUCTS USED TO MAKE WINE-BASED APERITIFS AND , IN THIS CASE , TABLE WINE .
18 POINT 10 OF ANNEX II TO REGULATION NO 816/70 OF THE COUNCIL AND NOW POINT 11 OF COUNCIL REGULATION NO 337/79 LIMIT THE ALCOHOLIC STRENGTH OF TABLE WINE TO BETWEEN 8.5* AT THE MINIMUM AND 15* OR 17* AT THE MAXIMUM , AS THE CASE MAY BE ; HOWEVER , THAT PROVISION DEALS ONLY WITH WINES INTENDED FOR DIRECT CONSUMPTION IN THEIR PRESENT STATE WHICH MAY THEREFORE BE IMPORTED AND MAY CIRCULATE FREELY IN THE COMMUNITY , ALTHOUGH UNDER THE RELEVANT NATIONAL LEGISLATION THEY MAY NOT BE USED TO MAKE WINE-BASED APERITIFS IF THEIR ALCOHOLIC STRENGTH IS NOT THAT FIXED BY THAT LEGISLATION .
19 THE ANSWER TO THE SECOND QUESTION MUST THEREFORE BE THAT REGULATION NO 816/70 DOES NOT PRECLUDE NATIONAL LEGISLATION ON THE PREPARATION OF WINE-BASED APERITIFS FROM CONTAINING A PROVISION SUCH AS THAT REFERRED TO BY THE NATIONAL COURT . QUESTION 3
20 IN VIEW OF THE ANSWERS GIVEN TO QUESTIONS 1 AND 2 CONSIDERATION OF QUESTION 3 IS NO LONGER NECESSARY FOR THE NATIONAL COURT TO BE ABLE TO DECIDE THE CASE BEFORE IT .