61985J0234

1 . MEASURES ADOPTED BY THE COMMUNITY INSTITUTIONS - VALIDITY - ASSESSMENT ONLY IN THE LIGHT OF COMMUNITY LAW

2 . COMMUNITY LAW - PRINCIPLES - FUNDAMENTAL RIGHTS - FREEDOM TO PURSUE ONE ' S TRADE OR PROFESSION - LIMITATIONS - PERMISSIBILITY - CONDITIONS

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - WINE - DESCRIPTION AND PRESENTATION OF WINE - LABELLING OF TABLE WINE - LIMITATION OF TERMS USED - GENERAL OBJECTIVES - JUSTIFICATION

( COUNCIL REGULATION NO 355/79 , ART . 2 ( 2 ) ( H ); - COMMISSION REGULATION NO 997/81 , ART . 13 ( 6 ))

1 . THE VALIDITY OF MEASURES ADOPTED BY THE INSTITUTIONS OF THE COMMUNITY CAN BE JUDGED ONLY IN THE LIGHT OF COMMUNITY LAW . A CLAIM THAT FUNDAMENTAL RIGHTS LAID DOWN IN THE CONSTITUTION OF A MEMBER STATE HAVE BEEN INFRINGED CANNOT IN ITSELF AFFECT THE VALIDITY OF A COMMUNITY MEASURE OR ITS EFFECT WITHIN THAT STATE .

2 . THE FREEDOM TO PURSUE ONE ' S TRADE OR PROFESSION IS PROTECTED WITHIN THE COMMUNITY LEGAL ORDER ONLY SUBJECT TO THE LIMITS JUSTIFIED BY THE GENERAL OBJECTIVES PURSUED BY THE COMMUNITY , ON CONDITION THAT THE SUBSTANCE OF THE RIGHT IS LEFT UNTOUCHED .

WHEREAS THE COMMUNITY RULES ON THE LABELLING OF WINES PLACE CERTAIN RESTRICTIONS WITHIN A CLEARLY DEFINED SPHERE ON THE BUSINESS ACTIVITY OF THE TRADERS CONCERNED , THEY IN NO WAY IMPINGE ON THE ACTUAL SUBSTANCE OF THE FREEDOM TO PURSUE THAT ACTIVITY .

3 . THE PRINCIPLE OF RESTRICTING THE NUMBER OF TERMS WHICH MAY BE USED ON THE LABELLING OF WINES , WHICH IS IMPLEMENTED BY COUNCIL REGULATION NO 355/79 AND COMMISSION REGULATION NO 997/81 ON THE DESCRIPTION AND PRESENTATION OF WINES AND GRAPE MUSTS , IS JUSTIFIED ON THE BASIS OF THE GENERAL OBJECTIVES PURSUED BY THE COMMON ORGANIZATION OF THE MARKET IN WINE . IN PARTICULAR THE EXCLUSION OF THE TERM ' DURCHGEGOREN ' ON THE LABELLING OF TABLE WINE IS WARRANTED BY THE GENERAL INTEREST AND HENCE DOES NOT CONSTITUTE A RESTRICTION , IN A MANNER CONTRARY TO COMMUNITY LAW , OF THE FREE PURSUIT OF THE TRADE OF WINE-GROWER .

IN CASE 234/85

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE AMTSGERICHT ( LOCAL COURT ) BREISACH-AM-RHEIN FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN THE

STAATSANWALT ( PUBLIC PROSECUTOR ) FREIBURG

AND

FRANZ KELLER

ON THE VALIDITY OF PROVISIONS 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 COMMISSION REGULATION NO 997/81 OF 26 MARCH 1981 LAYING DOWN DETAILED RULES FOR THE DESCRIPTION AND PRESENTATION OF WINES AND GRAPE MUSTS ( OFFICIAL JOURNAL 1981 , L 106 , P . 1 ),

1 BY AN ORDER OF 2 JULY 1985 , WHICH WAS RECEIVED AT THE COURT ON 25 JULY 1985 , THE AMTSGERICHT BREISACH-AM RHEIN REFERRED A QUESTION TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ON THE VALIDITY OF PROVISIONS OF COUNCIL REGULATION NO 355/79 OF 5 FEBRUARY 1979 LAYING DOWN GENERAL RULES FOR THE DESCRIPTION AND PRESENTATION OF WINES AND GRAPE MUSTS AND COMMISSION REGULATION NO 997/81 OF 26 MARCH 1981 LAYING DOWN DETAILED RULES FOR THE DESCRIPTION AND PRESENTATION OF WINES AND GRAPE MUSTS .

2 ARTICLE 3 OF COUNCIL REGULATION NO 355/79 , AS AMENDED BY COUNCIL REGULATION NO 3456/80 OF 22 DECEMBER 1980 ( OFFICIAL JOURNAL 1980 , L 360 , P . 18 ) AND COUNCIL REGULATION NO 3685/81 OF 15 DECEMBER 1981 ( OFFICIAL JOURNAL 1981 , L 369 , P . 1 ), PROVIDES THAT : ' ONLY THE INFORMATION SPECIFIED IN ARTICLE 2 SHALL BE ALLOWED FOR THE DESCRIPTION ON THE LABELLING OF TABLE WINES ' . ARTICLE 2 OF REGULATION NO 355/79 SETS OUT THE INFORMATION WHICH IS REQUIRED TO APPEAR ON THE LABELLING OF TABLE WINE . ARTICLE 2 ( 2 ) LISTS SUPPLEMENTARY INFORMATION WHICH MAY APPEAR ON THE LABELLING OF SUCH WINES , INCLUDING IN PARTICULAR , 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 . . . ' .

3 PURSUANT TO REGULATION NO 355/79 , THE COMMISSION ADOPTED REGULATION NO 997/81 , ARTICLE 13 ( 6 ) OF WHICH 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 ' ' , ' ' SUSS ' ' , . . . ' ' 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/L EXPRESSED AS TARTARIC ACID DOES NOT FALL MORE THAN 2 G/L BELOW THE RESIDUAL SUGAR CONTENT . '

4 THE ABOVEMENTIONED QUESTION WAS RAISED IN CRIMINAL PROCEEDINGS BROUGHT BY THE PUBLIC PROSECUTOR OF FREIBURG AGAINST MR KELLER IN WHICH HE WAS CHARGED WITH HAVING INFRINGED THE PROVISIONS OF COMMISSION REGULATION NO 997/81 BY USING THE TERM ' DURCHGEGOREN ' ( FULLY FERMENTED ) ON THE LABELS OF BOTTLES OF TABLE WINE PRODUCED BY HIM WHEREAS THE ONLY TERM AUTHORIZED BY THE AFORESAID COMMUNITY RULES TO INDICATE THE RESIDUAL SUGAR CONTENT OF THAT TYPE OF WINE IS ' TROCKEN ' ( DRY ).

5 AT MR KELLER ' S REQUEST , THE AMTSGERICHT BREISACH-AM-RHEIN SUSPENDED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :

' ARE ARTICLE 2 ( 2 ) ( H ) OF COUNCIL REGULATION ( EEC ) NO 355/79 AND ARTICLE 13 ( 6 ) OF COMMISSION REGULATION ( EEC ) NO 997/81 VALID UNDER THE LAW OF THE EUROPEAN COMMUNITIES?

'

6 ACCORDING TO ITS ORDER REQUESTING THE PRELIMINARY RULING , THE AMTSGERICHT CONSIDERS THAT THE AFOREMENTIONED PROVISIONS , WHICH LIMIT THE TERMS WHICH GERMAN PRODUCERS MAY USE TO DESCRIBE THEIR TABLE WINES TO THE TERMS SET OUT THEREIN , ARE INCOMPATIBLE WITH THE FREEDOM TO PURSUE THEIR TRADE WHICH IS GUARANTEED BY ARTICLE 12 OF THE GRUNDGESETZ ( BASIC LAW ).

7 IN VIEW OF THE NATIONAL COURT ' S REFERENCE TO THE BASIC LAW OF THE FEDERAL REPUBLIC OF GERMANY IT MUST BE POINTED OUT FORTHWITH THAT THE COURT HAS CONSISTENTLY HELD THAT THE VALIDITY OF MEASURES ADOPTED BY THE INSTITUTIONS OF THE COMMUNITY CAN BE JUDGED ONLY IN THE LIGHT OF COMMUNITY LAW . IT FOLLOWS THAT A CLAIM THAT A COMMUNITY MEASURE INFRINGES FUNDAMENTAL RIGHTS LAID DOWN IN THE CONSTITUTION OF A MEMBER STATE CANNOT IN ITSELF AFFECT THE VALIDITY OF THAT MEASURE OR ITS EFFECT WITHIN THAT STATE ( SEE THE COURT ' S JUDGMENT OF 17 DECEMBER 1970 IN CASE 11/70 INTERNATIONALE HANDELSGESELLSCHAFT MBH V EINFUHR- UND VORRATSSTELLE FUR GETREIDE UND FUTTERMITTEL ( 1970 ) ECR 1125 AT P . 1134 ).

8 HOWEVER , AS THE COURT HAS HELD , THE FREEDOM TO PURSUE ONE ' S TRADE OR PROFESSION IS PART OF THE GENERAL PRINCIPLES OF LAW , THE OBSERVANCE OF WHICH IT ENSURES . JUST AS , IN THE PUBLIC INTEREST , LIMITATIONS ARE LAID DOWN ON THE EXERCISE OF THAT RIGHT BY THE MEMBER STATES , IT IS PROTECTED WITHIN THE COMMUNITY LEGAL ORDER ONLY SUBJECT TO THE LIMITS JUSTIFIED BY THE GENERAL OBJECTIVES PURSUED BY THE COMMUNITY , ON CONDITION THAT THE SUBSTANCE OF THE RIGHT IS LEFT UNTOUCHED ( SEE THE COURT ' S JUDGMENT OF 14 MAY 1974 IN CASE 4/73 J . NOLD V COMMISSION ( 1974 ) ECR 491 AT PP . 507 AND 508 ).

9 IT MUST BE POINTED OUT IN THE FIRST PLACE THAT WHEREAS THE COMMUNITY RULES ON THE LABELLING OF WINES PLACE CERTAIN RESTRICTIONS WITHIN A CLEARLY DEFINED SPHERE ON THE BUSINESS ACTIVITY OF THE TRADERS CONCERNED , THEY IN NO WAY IMPINGE ON THE ACTUAL SUBSTANCE OF THE FREEDOM TO PURSUE THAT ACTIVITY .

10 IN ORDER TO ASSESS THE VALIDITY OF THE PROVISIONS REFERRED TO BY THE NATIONAL COURT , IT IS NECESSARY TO CONSIDER WHETHER , AS THE ACCUSED IN THE MAIN PROCEEDINGS CLAIMS , THE INTERFERENCE WITH THE FREE EXERCISE OF HIS TRADE IS NOT JUSTIFIED BY THE OBJECTIVES PURSUED BY THE COMMUNITY IN THE GENERAL INTEREST .

11 ACCORDING TO MR KELLER , THE ESSENTIAL PURPOSE OF ANY RULES ON THE DESCRIPTION OF WINE IS TO PROMOTE PRODUCTIVITY AND GUARANTEE CONSUMERS ' RIGHTS TO INFORMATION WHICH IS ACCURATE AND NOT MISLEADING . HOWEVER , MR KELLER CONSIDERS THAT THE TERM ' TROCKEN ' ( DRY ) IS NOT COMPATIBLE WITH SUCH INFORMATION IN SO FAR AS IT CORRESPONDS TO A RESIDUAL SUGAR CONTENT IN THE WINE WHICH MAY VARY WITHIN A WIDE RANGE , LAID DOWN IN ARTICLE 13 ( 6 ) OF REGULATION NO 997/81 . IN HIS CONTENTION , THE USE OF THE TERM ' DURCHGEGOREN ' TO SUPPLEMENT THE TERM ' DRY ' WOULD PROVIDE FULL AND UNAMBIGUOUS INFORMATION WHICH , BY PROMOTING TRANSPARENCY OF COMMERCIAL DEALINGS , WOULD BETTER FULFIL THE OBJECTIVES OF THE RULES IN QUESTION .

12 COUNCIL REGULATION NO 355/79 AND COMMISSION REGULATION NO 997/81 ON THE DESCRIPTION AND PRESENTATION OF WINES AND GRAPE MUSTS ARE , AS THE CITATIONS IN THE PREAMBLES INDICATE , PART OF THE COMMON ORGANIZATION OF THE MARKET IN WINE WHICH WAS INTRODUCED BY COUNCIL REGULATION NO 337/79 OF 5 FEBRUARY 1979 ( OFFICIAL JOURNAL 1979 , L 54 , P . 1 ).

13 WITHIN THAT CONTEXT , THE PROVISIONS AT ISSUE ARE AIMED PRIMARILY AT ABOLISHING BARRIERS TO TRADE BETWEEN THE MEMBER STATES , IN PARTICULAR BY LAYING DOWN UNIFORM RULES FOR THE WINE SECTOR WHICH ARE COMPATIBLE WITH THE IDEA OF A SINGLE MARKET AND BY RESTRICTING , TO THAT END , THE USE OF OPTIONAL TERMS ON THE LABELS OF BOTTLES , AS IS INDICATED BY THE THIRD AND FOURTEENTH RECITALS , RESPECTIVELY , IN THE PREAMBLE TO COMMISSION REGULATION NO 997/81 .

14 THEY ALSO SEEK TO RECONCILE THAT OBJECTIVE WITH THE AIM OF PROVIDING CONSUMERS WITH INFORMATION THAT IS ' AS COMPLETE AS POSSIBLE ' , THAT IS TO SAY ' INFORMATION ON THE LABEL ( WHICH ) IS AS CLEAR AND COMPLETE AS POSSIBLE ' , IN THE WORDING OF , RESPECTIVELY , THE THIRD RECITAL IN THE PREAMBLE TO COUNCIL REGULATION NO 355/79 AND THE THIRD RECITAL IN THE PREAMBLE TO COMMISSION REGULATION NO 997/81 .

15 ACCORDINGLY , THE PRINCIPLE OF RESTRICTING THE NUMBER OF TERMS WHICH MAY BE USED ON THE LABELLING OF WINES IS JUSTIFIED ON THE BASIS OF THE GENERAL OBJECTIVES PURSUED BY THE COMMON ORGANIZATION OF THE MARKET IN WINE .

16 ON THE MORE SPECIFIC QUESTION WHETHER THE EXCLUSION OF THE TERM ' DURCHGEGOREN ' FROM THE LIST OF AUTHORIZED TERMS GOES BEYOND WHAT IS REQUIRED IN TERMS OF THE CLEAR AND NECESSARY INFORMATION WHICH IS THE AIM OF THE RULES IN QUESTION , IT MUST BE OBSERVED IN THE FIRST PLACE THAT THAT EXPRESSION IS UNDERSTOOD ONLY IN GERMANY AND RENDERINGS IN OTHER LANGUAGES DO NOT CORRESPOND TO ANY DESCRIPTIONS IN GENERAL USAGE IN THE OTHER MEMBER STATES OF THE COMMUNITY .

17 FURTHERMORE , IT MUST BE OBSERVED THAT , AS THE COMMISSION HAS POINTED OUT , THE TERM ' DURCHGEGOREN ' IS NOT FACTUALLY CORRECT IN SO FAR AS IN PRACTICE NO WINE IS ' FULLY FERMENTED ' . MOREOVER , MR KELLER CONCEDED THAT THE TERM MEANT THAT ALL THE SUGAR PARTICLES CONTAINED IN THE GRAPE MUST HAD BEEN TRANSFORMED INTO ALCOHOL YET DID NOT CONTEST THAT SOME OF THE TYPES OF SUGAR CONTAINED IN GRAPES CANNOT BE SO TRANSFORMED .

18 IN THOSE CIRCUMSTANCES IT MUST BE HELD THAT THE EXCLUSION OF THE TERM ' DURCHGEGOREN ' IS WARRANTED BY THE GENERAL INTEREST AND HENCE DOES NOT CONSTITUTE A RESTRICTION , IN A MANNER CONTRARY TO COMMUNITY LAW , OF THE FREE PURSUIT OF THE TRADE OF WINE-GROWER .

19 THE FACT THAT , AFTER THE CRIMINAL PROCEEDINGS WERE BROUGHT AGAINST MR KELLER , THE COMMISSION AMENDED ARTICLE 13 ( 6 ) OF REGULATION NO 997/81 , BY REGULATION NO 1011/84 OF 10 APRIL 1984 , SO AS TO MAKE IT POSSIBLE FOR MEMBER STATES TO PERMIT , FOR WINES MARKETED ON THEIR TERRITORY , THE RESIDUAL SUGAR CONTENT DENOTING THE TYPE OF WINE TO BE INDICATED BY A FIGURE OR OTHER MARK FORMING PART OF A GRADUATED SCALE , CANNOT AFFECT THE ASSESSMENT OF THE PREVIOUS VERSION OF ARTICLE 13 ( 6 ).

20 THE REPLY TO THE QUESTION PUT BY THE NATIONAL COURT MUST THEREFORE BE THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF ARTICLE 2 ( 2 ) ( H ) OF COUNCIL REGULATION NO 355/79 OR ARTICLE 13 ( 6 ) OF COMMISSION REGULATION NO 977/81 .

COSTS

21 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND BY THE COUNCIL OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED WRITTEN OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE AMTSGERICHT BREISACH-AM-RHEIN , BY AN ORDER DATED 2 JULY 1985 , HEREBY RULES :

CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF ARTICLE 2 ( 2 ) ( H ) OF COUNCIL REGULATION NO 355/79 OR ARTICLE 13 ( 6 ) OF COMMISSION REGULATION NO 997/81 .