1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 18 FEBRUARY 1985 , THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT BY REFUSING TO PERMIT THE ADDITION OF RECTIFIED CONCENTRATED GRAPE MUST IN THE PRODUCTION OF LOCAL WINE AND QUALITY WINES PRODUCED IN SPECIFIED REGIONS ( PSR ) THE FEDERAL REPUBLIC OF GERMANY WAS IN BREACH OF ITS OBLIGATIONS UNDER THE COMMON ORGANIZATION OF THE MARKET IN WINE , IN PARTICULAR ARTICLES 32 AND 33 OF 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 ) AND ARTICLE 8 OF COUNCIL REGULATION ( EEC ) NO 338/79 OF 5 FEBRUARY 1979 LAYING DOWN SPECIAL PROVISIONS RELATING TO QUALITY WINES PRODUCED IN SPECIFIED REGIONS ( OFFICIAL JOURNAL 1979 , L 54 , P . 48 ).
2 IN ITS REPLY THE COMMISSION ALSO RELIES ON ARTICLE 30 OF THE EEC TREATY , ARGUING THAT A PROHIBITION ON THE USE OF RECTIFIED CONCENTRATED GRAPE MUST LAWFULLY MANUFACTURED IN ANOTHER MEMBER STATE AMOUNTS TO A MEASURE EQUIVALENT IN EFFECT TO A QUANTITATIVE RESTRICTION ON IMPORTS AND INTERFERES WITH THE FREE MOVEMENT OF RECTIFIED CONCENTRATED GRAPE MUST GUARANTEED BY ARTICLE 33 OF REGULATION NO 337/79 .
3 UNDER PARAGRAPH 10 ( 8 ) OF THE GERMAN WEINGESETZ ( LAW ON WINE PRODUCTION ) OF 31 AUGUST 1982 , THE DESIGNATION ' LANDWEIN ' ( LOCAL WINE ) CANNOT BE USED FOR WINE MADE WITH THE ADDITION OF CONCENTRATED GRAPE MUST OR RECTIFIED CONCENTRATED GRAPE MUST . PARAGRAPH 11 PROVIDES THAT THE DESIGNATION ' QUALITATSWEIN B . A . ' ( QUALITY WINE PSR ) MAY NOT BE USED FOR WINE MADE WITH THE ADDITION OF THOSE SUBSTANCES .
4 THE COMMISSION CONSIDERS THAT THOSE PROVISIONS ARE INCOMPATIBLE WITH THE COMMUNITY REGULATIONS ON THE COMMON ORGANIZATION OF THE MARKET IN WINE CONCERNING THE INCREASE OF THE NATURAL ALCOHOLIC STRENGTH BY VOLUME OF WINE .
5 UNDER ARTICLE 32 ( 1 ) OF REGULATION NO 337/79 , AS AMENDED BY COUNCIL REGULATION ( EEC ) NO 3577/81 OF 3 DECEMBER 1981 AMENDING REGULATION ( EEC ) NO 337/79 ON THE COMMON ORGANIZATION OF THE MARKET IN WINE ( OFFICIAL JOURNAL 1981 , L 359 , P . 1 ), WHERE CLIMATIC CONDITIONS HAVE MADE IT NECESSARY IN CERTAIN WINE-GROWING ZONES OF THE COMMUNITY MEMBER STATES MAY PERMIT THE NATURAL ALCOHOLIC STRENGTH BY VOLUME OF WINE TO BE INCREASED IN ACCORDANCE WITH THE OENOLOGICAL PROCESSES SET OUT IN ARTICLE 33 OF THAT REGULATION .
6 ARTICLE 33 OF THAT REGULATION , AS AMENDED BY COUNCIL REGULATION ( EEC ) NO 453/80 OF 18 FEBRUARY 1980 AMENDING REGULATION ( EEC ) NO 337/79 ON THE COMMON ORGANIZATION OF THE MARKET IN WINE ( OFFICIAL JOURNAL 1980 , L 57 , P . 1 ), PERMITS ONLY THE FOLLOWING PRACTICES : ( A ) THE ADDITION OF SUCROSE ; ( B ) THE ADDITION OF CONCENTRATED GRAPE MUST ; ( C ) THE ADDITION OF RECTIFIED CONCENTRATED GRAPE MUST ; ( D ) IN RESPECT ONLY OF TABLE WINE AND WINE SUITABLE FOR YIELDING TABLE WINE , PARTIAL CONCENTRATION THROUGH COOLING ; ( E ) IN RESPECT OF GRAPE MUST , PARTIAL CONCENTRATION .
7 THE COMMISSION ARGUES THAT THESE PROCESSES ARE NOT ALL EQUALLY DESIRABLE AND THAT THERE IS AN ORDER OF PRECEDENCE AMONG THEM , WHICH IS APPARENT FROM OTHER COMMUNITY PROVISIONS . ACCORDING TO PARAGRAPH 17 OF THE COMMISSION ' S ACTION PROGRAMME ( SUPPLEMENT 7/78 TO THE BULLETIN OF THE EUROPEAN COMMUNITIES , P . 9 ), THE PROHIBITION OF THE USE OF SUCROSE FOR ENRICHMENT IS AN OBJECTIVE OF THE COMMON POLICY IN THE WINE SECTOR . MOREOVER , UNDER ARTICLE 33 ( 3 ) OF REGULATION NO 337/79 THAT PROCESS MAY BE USED ONLY IN WINE-GROWING REGIONS IN WHICH IT IS TRADITIONALLY OR EXCEPTIONALLY PRACTISED IN ACCORDANCE WITH LEGISLATION EXISTING ON 8 MAY 1970 , AND THE ADDITION OF SUCROSE IN AQUEOUS SOLUTION HAS BEEN PROHIBITED SINCE 30 JUNE 1979 . CONVERSELY , BY ESTABLISHING A SYSTEM OF AID FOR THE USE OF RECTIFIED CONCENTRATED GRAPE MUSTS ( COUNCIL REGULATION ( EEC ) NO 2144/82 OF 27 JULY 1982 AMENDING REGULATION ( EEC ) NO 337/79 ON THE COMMON ORGANIZATION OF THE MARKET IN WINE ( OFFICIAL JOURNAL 1982 , L 227 , P . 1 ) THE COMMUNITY LEGISLATURE HAS SHOWN ITS PREFERENCE FOR THE USE OF VINE PRODUCTS . ACCORDING TO THE COMMISSION , IT FOLLOWS FROM THAT ORDER OF PREFERENCE THAT WHEN MEMBER STATES MAKE USE OF THE POSSIBILITY OF AUTHORIZING ENRICHMENT PROVIDED FOR IN ARTICLE 32 OF REGULATION NO 337/79 THEY MAY NOT PRECLUDE RECOURSE TO THE PROCESSES REFERRED TO IN ARTICLE 33 WHICH ARE MOST IN KEEPING WITH THE INTENDED OBJECTIVE , THAT IS TO SAY , TO ENSURE THAT WINE IS A PRODUCT MADE EXCLUSIVELY FROM GRAPES AND TO AVOID THE PRODUCTION OF SURPLUSES OF WINE WHICH CANNOT BE DISPOSED OF .
8 THE ITALIAN REPUBLIC , INTERVENING , ARGUES THAT A NATIONAL MEASURE AUTHORIZING THE ADDITION OF SUCROSE BUT PROHIBITING THE ADDITION OF RECTIFIED CONCENTRATED GRAPE MUST IS UNACCEPTABLE ON THE GROUND THAT IT IS CONTRARY TO THE LETTER AND THE SPIRIT OF THE COMMUNITY RULES . SINCE NEITHER PRACTICE CAN AFFECT THE TASTE OR THE OTHER TYPICAL CHARACTERISTICS OF THE PRODUCT , TO PERMIT ONE AND NOT THE OTHER DOES NOT CONSTITUTE THE APPLICATION OF A MORE STRINGENT CRITERION BUT IS AN ENTIRELY ILLOGICAL AND UNJUSTIFIED MEASURE , TO THE DETRIMENT OF A METHOD GIVEN PREFERENCE BY THE COMMUNITY LEGISLATION AND IN FAVOUR OF ANOTHER WHICH THAT LEGISLATION PERMITS ONLY IN SPECIAL CIRCUMSTANCES .
9 THE FEDERAL REPUBLIC OF GERMANY DENIES THAT THERE IS ANY ORDER OF PREFERENCE WHATSOEVER AMONG THE VARIOUS PROCESSES PERMITTED BY ARTICLE 33 , AND ASSERTS THAT THAT PROVISION MERELY INDICATES THE METHODS OF ENRICHMENT WHICH MAY LAWFULLY BE USED , NOT THOSE WHICH MUST BE USED . IT IS FOR THE MEMBER STATES , WITHIN THE FRAMEWORK OF THE POSSIBILITIES SET OUT IN ARTICLE 33 , TO DECIDE WHICH OF THE PERMISSIBLE METHODS OF ENRICHMENT TO AUTHORIZE .
10 IT MUST THEREFORE BE DETERMINED WHETHER REGULATION NO 337/79 LEAVES IT TO THE MEMBER STATES TO CHOOSE BETWEEN THE METHODS DECLARED BY ARTICLE 33 TO BE THE ONLY PERMISSIBLE ONES OR WHETHER , AS THE COMMISSION ARGUED AT THE HEARING , THE MEMBER STATES MERELY HAVE THE CHOICE , UNDER ARTICLE 32 , TO AUTHORIZE ENRICHMENT OR NOT , AND ONCE AUTHORIZATION IS GIVEN THEY MUST PERMIT ALL THE METHODS SET OUT IN ARTICLE 33 UNDER THE CONDITIONS LAID DOWN IN THAT ARTICLE .
11 ACCORDING TO ARTICLE 1 , REGULATION NO 337/79 ESTABLISHES A COMMON ORGANIZATION OF THE MARKET IN WINE COMPRISING A PRICE AND INTERVENTION SYSTEM , A SYSTEM OF TRADE WITH NON-MEMBER COUNTRIES , RULES CONCERNING PRODUCTION AND FOR CONTROLLING PLANTING AND RULES CONCERNING OENOLOGICAL PROCESSES AND CONDITIONS FOR RELEASE TO THE MARKET .
12 AS THE COURT HAS POINTED OUT ON A NUMBER OF OCCASIONS , IT IS ONE OF THE FUNDAMENTAL CHARACTERISTICS OF A COMMON ORGANIZATION OF THE MARKET THAT IN THE SECTORS CONCERNED THE MEMBER STATES CAN NO LONGER TAKE ACTION THROUGH NATIONAL PROVISIONS ADOPTED UNILATERALLY ( SEE IN PARTICULAR THE JUDGMENT OF 29 JUNE 1978 IN CASE 154/77 , PROCUREUR DU ROI V DECHMANN , ( 1978 ) ECR 1573 ). THEIR LEGISLATIVE COMPETENCE CAN ONLY BE RESIDUAL ; IT IS LIMITED TO SITUATIONS WHICH ARE NOT GOVERNED BY THE COMMUNITY RULES AND TO CASES WHERE THOSE RULES EXPRESSLY GIVE THEM POWER TO ACT .
13 THE ORGANIZATION OF THE MARKET AT ISSUE IN THIS CASE IS CHARACTERIZED , IN THE SECTORS REFERRED TO IN ARTICLE 1 OF THE REGULATION , BY COMPREHENSIVE RULES . THE ADOPTION OF DETAILED IMPLEMENTING RULES IS A MATTER FOR THE COMMISSION IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 67 , UNDER WHICH SUCH MEASURES ARE TO BE ADOPTED BY THE COMMISSION AFTER HEARING THE OPINION OF THE MANAGEMENT COMMITTEE FOR WINE ; WHERE THE MEASURES ADOPTED BY THE COMMISSION ARE NOT IN ACCORDANCE WITH THE OPINION OF THE COMMITTEE , THE COUNCIL MAY INTERVENE . IT IS ONLY IN CERTAIN WELL-DEFINED RESPECTS THAT THE MEMBER STATES MAY ADOPT SPECIFIC MEASURES DIVERGING OR DEROGATING FROM THE COMMON RULES , EITHER DURING A SPECIFIED TRANSITIONAL PERIOD OR IN SPECIFIED CIRCUMSTANCES .
14 ARTICLE 32 IS BASED ON THE PRINCIPLE WHICH , AS THE COURT HELD IN ITS JUDGMENT OF 27 FEBRUARY 1986 ( CASE 238/84 , ROSER , ( 1986 ) ECR 795 ) IS CLEAR FROM THE SCHEME OF THE PROVISIONS SET OUT IN TITLE IV OF REGULATION NO 337/79 , THAT INCREASES IN THE NATURAL ALCOHOLIC STRENGTH BY VOLUME OF WINE AND GRAPE MUST ARE PROHIBITED , BUT IT ALLOWS THE MEMBER STATES , UNDER THE CONDITIONS LAID DOWN IN ARTICLES 32 , 33 AND 36 , TO PERMIT SUCH INCREASES IN EXCEPTIONAL CASES WHERE CLIMATIC CONDITIONS HAVE MADE IT NECESSARY . IF THE CONDITIONS LAID DOWN IN THAT ARTICLE ARE MET , EACH MEMBER STATE IS THUS FREE TO DECIDE WHETHER OR NOT TO PERMIT SUCH INCREASES IN PRINCIPLE . WHERE A MEMBER STATE DOES PERMIT SUCH INCREASES , THE THIRD SUBPARAGRAPH OF ARTICLE 32 ( 1 ) PROVIDES THAT ' THE INCREASE IN . . . NATURAL ALCOHOLIC STRENGTH BY VOLUME SHALL BE EFFECTED ACCORDING TO THE OENOLOGICAL PROCESSES REFERRED TO IN ARTICLE 33 . . . ' .
15 ARTICLE 33 LISTS THE ONLY PERMISSIBLE PROCESSES , AND DISTINGUISHES ACCORDING TO THE VARIOUS STAGES OF WINE PRODUCTION . PARAGRAPH ( 2 ) PROVIDES THAT THOSE PROCESSES ARE MUTUALLY EXCLUSIVE . PARAGRAPHS ( 4 ) TO ( 7 ) LAY DOWN THE LIMITS WHICH MUST NOT BE EXCEEDED WHEN THOSE ENRICHMENT METHODS ARE USED . UNDER PARAGRAPH ( 8 ) IT IS THE COMMUNITY AUTHORITIES ( ARTICLE 67 ) WHICH HAVE THE POWER TO ADOPT DETAILED RULES FOR THE APPLICATION OF ARTICLE 33 .
16 IT FOLLOWS FROM THE FOREGOING THAT REGULATION NO 337/79 LEAVES MEMBER STATES WHICH HAVE TAKEN ADVANTAGE OF THE POSSIBILITY , UNDER ARTICLE 32 , OF PERMITTING INCREASES IN ALCOHOLIC STRENGTH NO DISCRETION WITH REGARD TO THE ENRICHMENT METHODS WHICH MAY BE USED . CONSEQUENTLY , ON THIS POINT NATIONAL LEGISLATION CANNOT LIMIT THE EFFECTS OF THE REGULATION AND RESTRICT THE RIGHTS WHICH MAY BE DERIVED BY INDIVIDUALS FROM AN EXPRESS PROVISION WHICH DOES NOT PERMIT OF DEROGATION .
17 SINCE REGULATION NO 337/79 LEAVES THE NATIONAL LEGISLATURE NO SUCH POWER , IT MUST BE DETERMINED WHETHER , AS THE FEDERAL REPUBLIC OF GERMANY CONTENDS , OTHER PROVISIONS PERMIT IT TO RESTRICT THE SCOPE OF ARTICLE 33 OF REGULATION NO 337/79 .
18 WITH REGARD TO QUALITY WINE PSR , THE FEDERAL REPUBLIC OF GERMANY ASSERTS THAT THE FIRST PARAGRAPH OF ARTICLE 19 OF REGULATION NO 338/79 , WHICH PERMITS MEMBER STATES TO LAY DOWN MORE STRINGENT CONDITIONS OF PRODUCTION THAN THOSE PROVIDED FOR UNDER COMMUNITY LAW , GIVES IT A BASIS IN COMMUNITY LAW FOR PROHIBITING RECTIFIED CONCENTRATED GRAPE MUST . THAT POSSIBILITY IS ALSO OPEN , IT SAYS , UNDER ARTICLE 8 ( 2 ) OF THAT REGULATION , WHICH PROVIDES THAT THE SPECIFIC WINE-MAKING AND PREPARATION METHODS TO BE USED ARE TO BE LAID DOWN FOR EACH QUALITY WINE PSR BY EACH OF THE MEMBER STATES CONCERNED , SINCE ENRICHMENT OPERATIONS MUST BE REGARDED AS PART OF THE WINE-MAKING PROCESS .
19 ARTICLE 19 PERMITS MEMBER STATES TO SUPPLEMENT THE PROVISIONS OF REGULATION NO 338/79 WITH MEASURES , WHICH , TAKING INTO ACCOUNT FAIR AND TRADITIONAL PRACTICES , LAY DOWN ADDITIONAL OR MORE STRINGENT CHARACTERISTICS OR CONDITIONS OF PRODUCTION . IT DOES NOT CONCERN ENRICHMENT METHODS , WHICH CANNOT BE REGARDED AS BEING INCLUDED IN CONDITIONS OF PRODUCTION . AS IS CLEAR FROM ARTICLE 46 OF REGULATION NO 337/79 , THE CONDITIONS OF PRODUCTION COMPRISE THE OENOLOGICAL PRACTICES AND PROCESSES REFERRED TO IN ANNEX III OF THE REGULATION , WHICH DOES NOT LIST ENRICHMENT METHODS . INDEED , ARTICLE 32 OF REGULATION NO 337/79 EXCLUDES SUCH METHODS FROM THE NORMAL CONDITIONS OF PRODUCTION , AND SIMPLY AUTHORIZES THE MEMBER STATES TO PERMIT THEM IN PRINCIPLE , IN EXCEPTIONAL CIRCUMSTANCES AND UNDER RESTRICTIVE CONDITIONS .
20 ARTICLE 8 ( 2 ) OF REGULATION NO 338/79 DOES SPECIFICALLY PROVIDE FOR THE POSSIBILITY , IN EXCEPTIONAL CIRCUMSTANCES , OF AN INCREASE IN THE NATURAL ALCOHOLIC STRENGTH BY VOLUME , BUT IT REFERS TO THE METHODS AND CONDITIONS MENTIONED IN ARTICLE 33 OF REGULATION NO 337/79 , AND DOES NOT PROVIDE FOR THE POSSIBLE IMPOSITION OF LIMITATIONS BY THE MEMBER STATES .
21 IT FOLLOWS THAT NOTHING IN THE SPECIFIC RULES GOVERNING QUALITY WINES PSR GIVES MEMBER STATES POWER TO LAY DOWN RESTRICTIONS IN THEIR LEGISLATION ON THE CHOICE GIVEN TO PRODUCERS BY ARTICLE 33 OF REGULATION NO 337/79 .
22 WITH REGARD TO LOCAL WINE ( LANDWEIN ), THE FEDERAL REPUBLIC OF GERMANY CONSIDERS THAT THE BASIS IN COMMUNITY LAW FOR ITS PROHIBITION ON THE USE OF RECTIFIED CONCENTRATED GRAPE MUST IS THE SECOND SUBPARAGRAPH OF ARTICLE 2 ( 3 ) ( I ) OF COUNCIL REGULATION ( EEC ) 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 ), WHICH ALLOWS THE MEMBER STATES TO SET PRODUCTION REQUIREMENTS FOR LOCAL WINE IN A PARTICULAR MEMBER STATE .
23 THAT ARTICLE PROVIDES THAT THE TERM ' LOCAL WINE ' IS TO BE RESERVED FOR ' TABLE WINES MEETING CERTAIN PRODUCTION REQUIREMENTS , PARTICULARLY AS REGARDS VINE VARIETIES , MINIMUM NATURAL ALCOHOLIC STRENGTH BY VOLUME AND ORGANOLEPTIC CHARACTERISTICS ' .
24 THAT REGULATION WAS ADOPTED IN IMPLEMENTATION OF ARTICLE 54 OF REGULATION NO 337/79 , WHICH EMPOWERS THE COUNCIL TO ADOPT ' THE RULES RELATING TO THE DESIGNATION AND PRESENTATION OF THE PRODUCTS LISTED IN ARTICLE 1 ' , AND , AS THE SECOND AND THIRD RECITALS IN THE PREAMBLE SHOW , IS INTENDED ONLY TO ENSURE THAT APPROPRIATE INFORMATION IS PROVIDED ON THE IDENTIFICATION AND SPECIAL PROPERTIES OF THESE TABLE WINES . ALTHOUGH IT MAY MAKE IT POSSIBLE TO REFUSE TO PERMIT THE USE OF THE DESIGNATION ' LOCAL WINE ' FOR TABLE WINE WHICH DOES NOT MEET THE PRODUCTION REQUIREMENTS FOR A SPECIFIC APPELLATION , IT GIVES THE MEMBER STATES NO POWER TO RESTRICT THE USE OF THE ENRICHMENT METHODS PERMITTED BY ARTICLE 33 OF REGULATION NO 337/79 WHEN THEY PERMIT IN PRINCIPLE INCREASES IN THE NATURAL ALCOHOLIC STRENGTH BY VOLUME . NOR DOES ARTICLE 46 ( 2 ) OF REGULATION NO 337/79 , WHICH ALSO APPLIES TO LOCAL WINE , GIVE SUCH POWER TO THE MEMBER STATES , SINCE THE STRICTER CONDITIONS WHICH IT ALLOWS THEM TO IMPOSE MAY RELATE ONLY TO THE ' OENOLOGICAL PRACTICES AND PROCESSES REFERRED TO IN ANNEX III ' , WHICH DO NOT INCLUDE ENRICHMENT METHODS .
25 IT MUST THEREFORE BE HELD THAT BY REFUSING TO PERMIT THE ADDITION OF RECTIFIED CONCENTRATED GRAPE MUST IN THE PRODUCTION OF LOCAL WINE AND OF QUALITY WINES PRODUCED IN SPECIFIED REGIONS THE FEDERAL REPUBLIC OF GERMANY HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE COMMON ORGANIZATION OF THE MARKET IN WINE , IN PARTICULAR ARTICLES 32 AND 33 OF COUNCIL REGULATION NO 337/79 OF 5 FEBRUARY 1979 ON THE COMMON ORGANIZATION OF THE MARKET IN WINE AND ARTICLE 8 OF COUNCIL REGULATION NO 338/79 OF 5 FEBRUARY 1979 LAYING DOWN SPECIAL PROVISIONS RELATING TO QUALITY WINES PRODUCED IN SPECIFIED REGIONS .