1 BY A JUDGMENT OF 23 MAY 1975 WHICH WAS RECEIVED AT THE COURT ON 21 JULY 1975, THE COUR D'APPEL, LYON, REFERRED A QUESTION TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF REGULATION NO 1539/71 OF THE COMMISSION OF 19 JULY 1971 DETERMINING COMMUNITY METHODS FOR THE ANALYSIS OF WINES ( OJ, ENGLISH SPECIAL EDITION, 1971 ( II ), P . 552 ).
2 IT APPEARS FROM THE JUDGMENT MAKING THE REFERENCE THAT THE QUESTION WAS RAISED DURING CRIMINAL PROCEEDINGS BROUGHT AGAINST A VINE GROWER AND A WINE MERCHANT ACCUSED OF HAVING ILLEGALLY ENRICHED CERTAIN QUANTITIES OF RED WINE AND HAVING OFFERED THOSE QUANTITIES FOR SALE UNDER THE APPELLATION 'BEAUJOLAIS VILLAGES '.
3 THE PROSECUTIONS ARE BASED ON ARTICLE 8 OF THE CODE DU VIN WHICH RE-ENACTS THE PROVISIONS OF THE DECREE OF 19 APRIL 1898 AND CREATES A PRESUMPTION OF OVER-ALCOHOLIZATION OF WINE IF THE PROPORTION OF ALCOHOL TO REDUCED EXTRACT IS IN EXCESS OF 4.6 IN RESPECT OF RED WINES AND 6.5 IN RESPECT OF WHITE WINES, SUBJECT TO CERTAIN ADJUSTMENTS WHICH WERE INTRODUCED TO TAKE ACCOUNT OF PARTICULAR METHODS OF WINE-MAKING .
4 BY VIRTUE OF PROVISIONS ADOPTED BY THE FRENCH AUTHORITIES TO PREVENT FRAUD AND ADULTERATION IN CONNEXION WITH WINES, THE METHOD OF ANALYSIS KNOWN AS THE 100* METHOD IS USED TO MEASURE THE DRY EXTRACT IN ORDER TO DETERMINE THE PROPORTION OF ALCOHOL TO REDUCED EXTRACT MENTIONED IN ARTICLE 8 OF THE CODE DU VIN .
5 THE COUR D'APPEL, LYON, ASKS 'WHETHER THE COMMUNITY METHODS FOR THE ANALYSIS OF WINES LAID DOWN IN REGULATION ( EEC ) NO 1539/71 OF 19 JULY 1971 ARE MANDATORY FOR THE INVESTIGATION INTO AND PUNISHMENT OF FRAUD RELATING TO WINE '.
6 ARTICLE 1 OF THAT REGULATION PROVIDES THAT THE METHODS OF ANALYSIS SET OUT IN THE ANNEX TO THE REGULATION SHALL BE USED FOR THE APPLICATION 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 AND REGULATION NO 817/70 OF THE COUNCIL LAYING DOWN SPECIAL PROVISIONS RELATING TO QUALITY WINES PRODUCED IN SPECIFIED REGIONS ( OJ, ENGLISH SPECIAL EDITION, 1970 ( I ), P . 234 AND P . 252 ).
7 ITEM 3 IN THE ANNEX PROVIDES THAT 'THE TOTAL DRY EXTRACT SHALL BE MEASURED BY A DENSIMETER AND CALCULATED INDIRECTLY FROM THE SPECIFIC GRAVITY OF THE RESIDUE WITHOUT ALCOHOL '.
8 IN ORDER TO DECIDE WHETHER THIS METHOD, AND ALSO THE OTHER METHODS OF ANALYSIS LAID DOWN BY THE REGULATION, ARE MANDATORY FOR THE INVESTIGATION INTO AND PUNISHMENT FOR FRAUD RELATING TO WINE, IT MUST FIRST BE OBSERVED THAT THEY WERE LAID DOWN PRIMARILY IN ORDER TO DETERMINE THE AMOUNTS OF THE VARIOUS CONSTITUENT ELEMENTS WHICH WINE MUST CONTAIN IN ORDER TO BE GIVEN THE DESCRIPTION TABLE WINE OR QUALITY WINE PRODUCED IN A SPECIFIED REGION UNDER REGULATION NOS 816/70 AND 817/70 .
9 NEVERTHELESS, THE THIRD RECITAL IN THE PREAMBLE TO REGULATION NO 1539/71 PROVIDES THAT 'THESE METHODS SHOULD BE COMPULSORY FOR ALL COMMERCIAL TRANSACTIONS AND ALL VERIFICATION PROCEDURES '.
10 IT MUST BE CONCLUDED THAT THEY ARE MANDATORY NOT MERELY WHEN WINE HAS TO BE ANALYSED FOR COMMERCIAL PURPOSES BUT ALSO WHENEVER THE DETERMINATION OF THE ELEMENTS REFERRED TO IS NECESSARY TO ESTABLISH FRAUD OR ADULTERATION .
11 ON THE OTHER HAND IT MUST BE NOTED THAT THE METHODS OF ANALYSIS LAID DOWN IN REGULATION NO 1539/71 ONLY SERVE TO DETERMINE THE CONSTITUENT ELEMENTS OF WINE LISTED IN THE ANNEX TO THE REGULATON .
12 IT FOLLOWS THAT THE REGULATION IS NOT EXHAUSTIVE BUT LEAVES TO THE MEMBER STATES THE CHOICE OF APPLYING OTHER METHODS OF ANALYSIS FOR DETERMINING THE CONSTITUENT ELEMENTS OF WINE WHICH ARE NOT RELEVANT TO THE APPLICATION OF REGULATIONS NOS 816/70 AND 817/70 .
13 IN ORDER TO PROVIDE THE NATIONAL COURT WITH ALL THOSE ELEMENTS OF INTERPRETATION OF COMMUNITY LAW WHICH MAY BE OF USE TO IT IN DETERMINING THE EFFECTS OF THE COMMUNITY PROVISIONS AT ISSUE THE COURT MUST NEVERTHELESS EXAMINE WHETHER THE LATTER PREVENT THE USE OF THE 100* METHOD OF ANALYSIS FOR THE PURPOSES OF A PRESUMPTION IN LAW AS PROVIDED BY ARTICLE 8 OF THE CODE DU VIN .
14 IN THIS RESPECT IT MUST FIRST BE ASCERTAINED WHETHER SUCH A PRESUMPTION IN LAW FOR THE DETERMINATION OF CASES OF OVER-ALCOHOLIZATION IS COMPATIBLE WITH COMMUNITY RULES, LEAVING ASIDE THE QUESTION OF THE METHOD OF ANALYSIS USED .
15 IT MUST BE OBSERVED IN THIS RESPECT THAT, WHILST THE COMMUNITY RULES HAVE NOT, UP TO NOW, BEEN EXTENDED TO COVER ALL OENOLOGICAL PRACTICES, REGULATION NO 816/70 CONTAINS IN TITLE IV DETAILED PROVISIONS RELATING TO THE ENRICHMENT OF WINE TO WHICH ARTICLES 7 AND 9 OF REGULATION NO 817/70 REFER .
16 ARTICLE 39 ( A ) OF REGULATION NO 816/70, WHICH WAS INTRODUCED BY ARTICLE 12 OF REGULATION NO 2680/72 OF THE COUNCIL OF 12 DECEMBER 1972, PROVIDES THAT THE MEMBER STATES SHALL TAKE ALL APPROPRIATE MEASURES TO ENSURE COMPLIANCE WITH THAT REGULATION .
17 MOREOVER, THIS RULE AIMS TO STRENGTHEN AND TO EXTEND THE APPLICATION OF THAT LAID DOWN IN ARTICLE 9 OF REGULATION NO 1594/70 OF THE COMMISSION OF 5 AUGUST 1970 WHICH PROVIDES THAT PENDING THE ADOPTION OF COMMUNITY PROVISIONS IN THIS MATTER, MEMBER STATES SHALL TAKE ALL NECESSARY MEASURES TO ENSURE THAT THE PROVISIONS RELATING TO ENRICHING, ACIDIFYING AND DE-ACIDIFYING ARE OBSERVED .
18 IT FOLLOWS FROM THIS THAT THE MEMBER STATES MUST TAKE EFFECTIVE MEASURES OF CONTROL WHILST RETAINING THE POWER TO CHOOSE THE MEASURES WHICH THEY CONSIDER APPROPRIATE FOR THAT PURPOSE WITHIN THE LIMITS WHICH HAVE BEEN LAID DOWN BY OTHER RULES OF COMMUNITY LAW .
19 THUS, WHEN A MEMBER STATE ADOPTS OR MAINTAINS, FOR THE DETECTION OF ILLEGAL ENRICHMENT OPERATIONS, A PRESUMPTION IN LAW OF OVER-ALCOHOLIZATION BASED, LIKE ARTICLE 8 OF THE CODE DU VIN, ON THE PROPORTION OF ALCOHOL TO REDUCED EXTRACT, THE PROBLEM ARISES WHETHER THIS PROVISION MUST BE CONSIDERED AS A MEASURE OF CONTROL WHICH COMES WITHIN THE NATIONAL JURISDICTION OR AS A RULE OF ANALYSIS WHICH MIGHT BE INCOMPATIBLE WITH THE COMMUNITY RULES ON THAT SUBJECT .
20 SUCH A PRESUMPTION IN LAW MUST BE DESCRIBED AS A MEASURE OF CONTROL AND NOT AS A RULE OF ANALYSIS WHEN IT IS NOT IRREBUTTABLE BUT MAY BE INVALIDATED .
21 IT MUST THEREFORE BE CONCLUDED, AS IS RECOGNIZED MOREOVER BY THE NATIONAL COURT, THAT IN THE PRESENT STATE OF THE COMMUNITY RULES, THE LATTER DO NOT IN PRINCIPLE PREVENT A MEMBER STATE FROM APPLYING A PRESUMPTION IN LAW AS A MEASURE OF CONTROL IN ORDER TO DETECT CASES OF OVER-ALCOHOLIZATION .
22 IT IS NECESSARY THEN TO CONSIDER WHETHER, NOTWITHSTANDING THIS, THE PROVISIONS OF COMMUNITY LAW ON THE METHODS OF ANALYSING WINE PROHIBIT THE APPLICATION IN A MEMBER STATE OF SUCH A MEASURE OF CONTROL BECAUSE IT REQUIRES RESORT TO A METHOD OF ANALYSIS WHICH IS NOT AUTHORIZED BY COMMUNITY RULES .
23 IT APPEARS FROM ARTICLE 1 OF REGULATION NO 1539/71 THAT THE DENSIMETRIC METHOD PRESCRIBED IN THE ANNEX FOR MEASURING THE TOTAL DRY EXTRACT WAS INTRODUCED, TOGETHER WITH THE OTHER METHODS CONTAINED IN THE ANNEX, 'FOR THE APPLICATION OF REGULATIONS ( EEC ) NOS 816/70 AND 817/70 '.
24 THEREFORE, IN ORDER TO DECIDE WHETHER THE DENSIMETRIC METHOD IS OBLIGATORY, IT MUST FIRST BE EXAMINED WHETHER THE NATIONAL MEASURE OF CONTROL IN QUESTION COMES WITHIN THE APPLICATION OF REGULATION NO 816/70 OR OF REGULATION NO 817/70 .
25 IN THIS RESPECT IT IS IMPORTANT TO REMEMBER THAT ALTHOUGH REGULATION NO 816/70 LEAVES TO THE MEMBER STATES THE CHOICE OF THE NECESSARY MEASURES OF CONTROL, IT NEVERTHELESS REQUIRES THEM TO ENSURE COMPLIANCE WITH THE PROVISIONS CONCERNING OENOLOGICAL PROCESSES, INCLUDING THE ENRICHMENT OF WINE .
26 IN ANY CASE, THIS HAS BEEN THE SITUATION SINCE REGULATION NO 2680/72 OF 12 DECEMBER 1972, WHICH CAME INTO FORCE ON 1 JANUARY 1973, INTRODUCED INTO REGULATION NO 816/70 AN ARTICLE, 39A, WHICH PROVIDES THAT 'MEMBER STATES SHALL TAKE ALL APPROPRIATE MEASURES TO ENSURE COMPLIANCE WITH THIS REGULATION '.
27 IT MUST BE CONCLUDED FROM THIS THAT A NATIONAL MEASURE OF CONTROL WHICH IS INTENDED TO DETECT CASES OF THE ENRICHMENT OF WINE IN VIOLATION OF THE COMMUNITY PROVISIONS COMES WITHIN THE FIELD OF APPLICATION OF REGULATION NO 816/70 AND CONSEQUENTLY WITHIN THAT OF REGULATION NO 1539/71 ON METHODS OF ANALYSIS .
28 HOWEVER, IN ORDER TO ANSWER THE QUESTION WHICH HAS BEEN REFERRED IT IS ALSO NECESSARY TO INQUIRE WHETHER A PRESUMPTION IN LAW BASED ON THE PROPORTION OF ALCOHOL TO DRY EXTRACT MAY BE APPLIED IN PRACTICE IF ONLY THE DENSIMETRIC METHOD LAID DOWN BY REGULATION NO 1539/71 IS PERMISSIBLE FOR THE MEASUREMENT OF THE TOTAL DRY EXTRACT .
29 THE PRESUMPTION IN QUESTION IS BASED ON AN OENOLOGICAL RULE, WHICH IS DRAWN FROM EXPERIENCE, ACCORDING TO WHICH NATURAL FERMENTATION RESULTS IN A CERTAIN RELATIONSHIP BETWEEN THE WEIGHT OF THE ALCOHOL AND THAT OF THE REDUCED DRY EXTRACT CONTAINED IN THE WINE .
30 THE CONCEPT OF REDUCED DRY EXTRACT WHICH IS RELEVANT IN THIS CONTEXT APPEARS TO DIFFER FROM THE CONCEPT OF TOTAL DRY EXTRACT PRESCRIBED BY THE PROVISION OF COMMUNITY LAW NOT ONLY IN THAT CERTAIN SUBSTANCES ARE DEDUCTED BUT ALSO IN THAT IT IMPLIES THAT RECOURSE MAY ONLY BE HAD TO THE SO-CALLED 100* METHOD IN ORDER TO EXTRACT THE DRY SUBSTANCES FROM THE WINE .
31 IT SEEMS IN FACT THAT THE REDUCED DRY EXTRACT CANNOT BE CALCULATED FROM ANOTHER METHOD OF ANALYSIS, IN PARTICULAR THE DENSIMETRIC METHOD, AND THAT EXPERIENCE SHOWS THAT NO COEFFICIENTS EXIST WHICH ENABLE THE VALUES OF THE DRY EXTRACT OBTAINED BY OTHER METHODS TO BE TRANSPOSED INTO THOSE WHICH WOULD BE THE RESULT OF THE 100* METHOD .
32 IN SPITE OF THE CRITICISM OF THIS METHOD IN SCIENTIFIC AND PROFESSIONAL CIRCLES, NO OTHER METHOD HAS BEEN FOUND UNTIL NOW TO REPLACE IT FOR THE PURPOSES OF THE PRESUMPTION IN LAW OF OVER-ALCOHOLIZATION .
33 IT FOLLOWS THAT THIS PRESUMPTION WOULD BE RENDERED IMPRACTICABLE IF THE DENSIMETRIC METHOD WERE OBLIGATORY TO THE EXCLUSION OF THE 100* METHOD, BUT THAT ON THE OTHER HAND THE LATTER MAY ONLY BE APPLIED WITH CAUTION .
34 THE USE OF THE DENSIMETRIC METHOD LAID DOWN BY THE COMMUNITY REGULATION IS NOT AN AIM IN ITSELF BUT A MEANS INTENDED TO ENSURE COMPLIANCE WITH COMMUNITY RULES ON OENOLOGICAL PROCESSES AND ON THE QUALITY OF WINES .
35 IN THE ABSENCE OF COMMUNITY MEASURES OF CONTROL, IT WOULD THEREFORE BE CONTRARY TO THE AIMS OF THE COMMUNITY RULES ON THIS SUBJECT TO REQUIRE THAT THIS METHOD BE USED AT THE COST OF INVALIDATING THE ONLY METHOD OF CONTROL WHICH IS AT PRESENT ACKNOWLEDGED TO BE APPROPRIATE FOR THE DETECTION OF OVER-ALCOHOLIZATION .
36 IT MUST BE CONCLUDED FROM THIS THAT UNTIL MORE APPROPRIATE METHODS HAVE BEEN WORKED OUT, THE COMMUNITY RULES IN THE WINE SECTOR DO NOT PROHIBIT MEMBER STATES FROM USING THE 100* METHOD TO MEASURE THE DRY EXTRACT OF WINE IN ORDER TO APPLY A PRESUMPTION IN LAW OF OVER-ALCOHOLIZATION BASED ON THE PROPORTION OF ALCOHOL TO DRY EXTRACT .
37 IT MUST BE ADDED THAT, AS WAS STATED IN THE JUDGMENTS OF THE COURT OF 30 SEPTEMBER 1975 IN JOINED CASES 89/74 AND 18 AND 19/75 AND IN JOINED CASES 10 TO 14/75, IN THE CASE OF WINES COMING FROM OTHER MEMBER STATES, SUCH A PRESUMPTION MUST BE APPLIED IN SUCH A WAY AS TO AVOID ANY DISCRIMINATION .