61987J0311

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Agriculture - Common organization of the markets - Wine - Description and presentation of wines - Information on bottling - Group of wine-growers whose wines are bottled by an outside undertaking - Use of the term "Erzeugerabfuellung" - Conditions

( Council Regulation No 355/79, Art . 12 ( 2 ) ( q ); Commission Regulation No 997/81, Art . 17 ( 1 ) ( a ) )

The second indent of Article 12 ( 2 ) ( q ) of Regulation No 355/79 laying down general rules for the description and presentation of wines and grape musts is to be interpreted as meaning that the use of the description "Erzeugerabfuellung" by a group of vineyards whose wine has been bottled in the facilities of an undertaking which does not form part of that group is subject to the condition that the entire operation must take place under the actual direction and strict, continuous supervision of that group and at its sole responsibility .

In Case 311/87

REFERENCE to the Court under Article 177 of the EEC Treaty by the Oberverwaltungsgericht Rheinland-Pfalz ( Higher Administrative Court for the Rhineland-Palatinate ) for a preliminary ruling in the proceedings pending before that court between

Erzeugergemeinschaft Goldenes Rheinhessen w.V ., Bornheim,

and

Land Rheinland-Pfalz

on the interpretation of the second indent of Article 12 ( 2 ) ( q ) 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 ),

THE COURT ( Fourth Chamber )

composed of : T . Koopmans, President of Chamber, C . N . Kakouris and G . C . Rodríguez Iglesias, Judges,

Advocate General : J . Mischo

Registrar : H . A . Ruehl, Principal Administrator

after considering the observations submitted on behalf of

Erzeugergemeinschaft Goldenes Rheinhessen w.V ., the plaintiff in the main proceedings, in the written procedure by H . Boeckel, Rechtsanwalt, Mainz, and in the oral procedure by H . Boeckel and by K . Rohwedder, Rechtsanwalt, Mainz,

the Land Rheinland-Pfalz, the defendant in the main proceedings, by Dr J . Faltin, Regierungsdirektor at the Ministry of the Environment and Health, acting as Agent,

the Commission of the European Communities, by its Legal Adviser P . Karpenstein, acting as Agent,

having regard to the Report for the Hearing and further to the hearing on 31 May 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 6 July 1988,

gives the following

Judgment

1 By order of 29 September 1987, which was received at the Court on 12 October 1987, the Oberverwaltungsgericht Rheinland-Pfalz referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of the second indent of Article 12 ( 2 ) ( q ) 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 ).

2 The question was raised in the context of proceedings brought by Erzeugergemeinschaft Goldenes Rheinhessen, a group of wine-growers recognized by the State, against the Land Rheinland-Pfalz concerning two letters by which the competent ministry of that Land informed the group that the use of the description "Erzeugerabfuellung" ( bottled by the producer ) on the labels of its wines appeared to be illegal in view of the conditions under which those wines were bottled .

3 The producers' group brought the dispute before the Verwaltungsgericht Mainz, which dismissed the application on the ground, inter alia, that the group was not entitled to use the indication "Erzeugerabfuellung" inasmuch as it did not make the wine in its own cellars . The Verwaltungsgericht did not feel it necessary to look at the question of bottling . The group appealed against that judgment to the Oberverwaltungsgericht, which concentrated instead on the latter problem .

4 It is apparent from the documents before the court that the producers' group entrusted the bottling of its wines, under a contract, to another firm, Weinkellerei Parco GmbH . Weinkellerei covered the costs of transporting the wine and stored the wine in tanks in its cellars . During transport, the wine was accompanied by a delivery note stating that it was "for bottling on a contract basis ". Bottling was carried out by Weinkellerei' s staff under the supervision of one of the group' s employees . Once an official inspection number had been issued at the group' s request, the group then sold the wine thus bottled, bearing the description "Erzeugerabfuellung Erzeugergemeinschaft Goldenes Rheinhessen", to Weinkellerei Parco .

5 It is also apparent from the documents that under the abovementioned contract the producers' group undertook to supply to Weinkellerei Parco each year certain quantities of quality wines at minimum prices, bearing the description "Erzeugerabfuellung", and that Weinkellerei had the sole right to market the wine in Germany .

6 The national court held, on the basis of the abovementioned points and in the absence of other details in the contract, that it was not a contract for the lease of bottling equipment but an agreement for the bottling of wine on a contract basis, to be carried out in Weinkellerei' s facilities on behalf of the group .

7 That was the situation in respect of which the Oberverwaltungsgericht decided to refer the following question to the Court for a preliminary ruling :

"Is the second indent of Article 12 ( 2 ) ( q ) 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 ) to be interpreted as meaning that the right of a group of vineyards to describe its wines as 'Erzeugerabfuellung' does not depend on the undertaking in which the bottling took place and the grapes were made into wine, or as meaning that the bottling and wine-making or one of these two operations must have taken place in the facilities of the producers' group?"

8 Reference is made to the Report for the Hearing for a more complete statement of the legal and factual background to the case and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

9 It appears from the information supplied by the national court and outlined above that the question is aimed essentially at determining whether the description "Erzeugerabfuellung" may be used by a producers' group whose wine is bottled in an undertaking which does not form part of the group .

10 Under the provisions of the abovementioned Article 12 ( 2 ) ( q ) of Regulation No 355/79 the description on the labelling may be supplemented by a statement "that the wines were bottled :

( i)either at the vineyard where the grapes used were harvested and made into wine,

( ii ) or by a group of vineyards,

( iii ) or in an undertaking situated in the specified region indicated or in the immediate vicinity of that region, with which the vineyards where the grapes were harvested are connected as members of a group of vineyards, and which made wine from the said grapes ".

11 Article 17 ( 1 ) ( a ) of 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 ) provides that for German wines and for wines from the province of Bolzano the term to be used in each of the above three cases is "Erzeugerabfuellung ".

12 It should be noted that the wording of the second indent of Article 12 ( 2 ) ( q ) of Regulation No 355/79 refers solely to the undertaking which carried out the bottling, that is to say "a group of vineyards", while laying down no requirements as to the location of the bottling equipment . The first and third indents, on the other hand, require the bottling to have been carried out in a particular place, that is to say at the individual vineyard or in the undertaking referred to in the third indent .

13 The problem therefore arises whether the second indent of that provision should be interpreted independently of the contents of the first and third indents, with the result that a group of vineyards would be subject to less stringent rules than the individual vineyards referred to in the first indent or the undertakings defined in the third indent of the same provision .

14 In this connection it should be noted that it is apparent from Article 43 of Regulation No 355/79 and the preamble to Regulation No 997/81 that the purpose of the rules on the use of a statement regarding bottling is to ensure that the consumer is protected and properly informed . In particular, the 27th Recital in the preamble to Regulation No 997/81 states that the information that a wine has been bottled at the wine-growing holding where the grapes from which it was made were harvested and turned into wine, or under equivalent conditions, expresses the idea that all the stages of production have been carried out under the supervision and responsibility of the same natural or legal person, thereby enhancing the prestige of the wine thus obtained in the estimation of some purchasers .

15 In order to use the term "Erzeugerabfuellung", which indicates that the producer and the person or undertaking carrying out the bottling are one and the same, therefore, this latter operation must have been performed by the producer himself either at his own vineyard or, where the producer does not have bottling equipment, under conditions providing substantially identical guarantees . Such guarantees are present in particular, as the Commission has rightly remarked, when bottling takes place under the actual direction and strict, continuous supervision of the producer and at his sole responsibility .

16 It follows that the aim of ensuring that the consumer is protected and properly informed requires that a group of vineyards be precluded from using the indication "Erzeugerabfuellung" if it bottles its wines under conditions other than those set forth above, that is to say either in its own facilities or under equivalent conditions .

17 When, as in the present case, bottling is carried out in the facilities of an undertaking which has an interest of its own, in the form of an exclusive right to market the wine bottled there, which pays for the transport of the wine to its cellars and stores it there and which, moreover, bottles the wine under a contract described by the national court as one for bottling on a contract basis, those equivalent conditions required by the provision referred to above cannot be said to be fulfilled .

18 It should be added that a different interpretation, holding that a group of vineyards was not bound to observe rules equivalent to those which apply to individual vineyards or to the undertakings referred to in the third indent, would mean that such a group would benefit from a commercial advantage with no objective justification, contrary to the principle laid down in Article 40 ( 3 ) of the EEC Treaty prohibiting any discrimination between agricultural producers .

19 The reply to the question put by the national court must therefore be that the second indent of Article 12 ( 2 ) ( q ) of Regulation No 355/79 is to be interpreted as meaning that the use of the description "Erzeugerabfuellung" by a group of vineyards whose wine has been bottled in the facilities of an undertaking which does not form part of that group is subject to the condition that the entire operation must take place under the actual direction and strict, continuous supervision of that group and at its sole responsibility .

Costs

20 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable . As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT ( Fourth Chamber ),

in answer to the question referred to it by the Oberverwaltungsgericht Rheinland-Pfalz, by order of 29 September 1987, hereby rules :

The second indent of Article 12 ( 2 ) ( q ) of Regulation No 355/79 laying down general rules for the description and presentation of wines and grape musts is to be interpreted as meaning that the use of the description "Erzeugerabfuellung" by a group of vineyards whose wine has been bottled in the facilities of an undertaking which does not form part of that group is subject to the condition that the entire operation must take place under the actual direction and strict, continuous supervision of that group and at its sole responsibility .