(1)

The French Government maintains that Article 26 (4) is perfectly clear. It is necessary merely to read the article to be convinced that all coupage of wines originating in nonmember countries is in principle prohibited, without there being any need to draw a distinction between wines intended for direct consumption and those intended for industrial use. Consequently, in its view, by suggesting such a distinction despite the general wording of the provision, the question raised adds to the provisions of Article 26 (4) without any justification and in fact seeks to alter its scope with retroactive effect.

It is true that the provision under consideration does not expressly state that wines intended for industrial use are exempt from the prohibition in principle of coupage. Nor does it state, however, that those wines are covered by that prohibition. Consequently, it may be concluded that Article 26 (4) raises a difficulty of interpretation which must be resolved on the basis of arguments other than those which may be derived from its wording.

Whilst an analysis of Article 26 (4) alone does not therefore seem conclusive, the general scheme of the article on the other hand appears to be scarcely compatible with the view put forward by the French Government.

Article 26 (1) specifies the wines (table wines and wines suitable for yielding table wines) which, when coupage has taken place between them, produce wines which themselves are table wines. Consequently, it refers only to wines cultivated in the Community and intended for direct human consumption. Table wines are by definition consumed directly by humans; moreover, as is clear from point 10 of Annex II to Regulation No 810/70, the description “table wine” is a Community description reserved for wines which fulfil certain conditions and are produced in the Member States. For the same reasons paragraphs (2) and (3) of Article 26, which lay down the conditions which a coupage must fulfil in order to yield a table wine, have exactly the same scope as paragraph (1).

In that context it may be thought that if the Community legislature had intended that paragraph (4) of Article 26 should, unlike the provisions preceding it, apply to wines intended for industrial use, it would have stated so expressly.

(2)

However, in order to show that the paragraph has an exceptionally wide scope, the French Government put forward a further line of argument, based this time on the objective which that paragraph pursues. In its view, the absence of any distinction on the basis of the intended use of the wine is attributable to the difficulties involved in verifying the use for which the blended wine is actually intended. The only verification which could easily be carried out would be that of alcoholic strength. However, a check of that kind would be insufficient to avoid frauds, which might, for example, be committed by substituting for a barrel of French table wine, which would be sent for vinegar-making, a barrel of blended wine originating in a nonmember country, which would purportedly be intended for vinegar-making but would be delivered in its existing condition for human consumption. That is why a number of governments have sought to eliminate at source any possibility of fraud by extending the prohibition in principle of coupage to all wines coming from a nonmember country, irrespective of the use to which they are put. That is the significance of the wording adopted for Article 26 (4) of Regulation No 816/70 and retained in the corresponding provision of Regulation No 337/79.

For a number of reasons those considerations do not seem convincing. First of all, the French Government does not adduce even the slightest evidence of the intention which it imputes to certain Member States.

Moreover, one of the matters which has been of concern to the Court is the possibility of fraud: it asked the Commission and the Clément company what are the safeguards which exist to ensure that a wine derived from coupage, such as that at issue in this case, is actually used for its intended purpose (vinegar-making), where the wine is also suitable for direct consumption.

In its reply the Commission described the system set up for that purpose on a Community scale, which at the relevant time was governed by Regulation (EEC) No 1022/70 of the Commission of 29 May 1970 introducing for a transitional period accompanying certificates for certain wines. Under Article 1 of that regulation, a wine intended for direct consumption could not be the subject of trade between the Member States unless it had an accompanying certificate issued following inspections by the Member State of origin. The certificates had different colours depending on whether or not the wine was of Community origin and stated, where appropriate, whether the wine was the result of coupage. By virtue of Article 9 (1) of the regulation, wines which did not originate in the Community and were not approved for direct human consumption were to be placed by the Member States under customs or administrative control providing equivalent safeguards to ensure that they were used for their intended purpose. For their part, the importing companies enumerated the precautions taken by the French authorities: statement of the intended industrial use on the French customs document; special form of the transit document which accompanies industrial wines on national territory; different rates of VAT (paid when the goods cross the frontier) for industrial wines and for those intended for direct consumption; final control at the vinegar factory itself. Those answers are, I think, such as to reassure even the most suspicious minds.

Consequently, in my view the rules in force are sufficient to meet the undoubtedly legitimate concerns expressed by the French Government without their being any need to have recourse to Article 26 (4).

In sum, the arguments put forward as to the actual wording of Article 26 (4) or as to the purpose of that one provision, as seen by the French Government, are in my view unfounded.

(3)

However, in addition to the material for interpretation provided by the general scheme of Article 26 in its entirety, material may also be found in the reasons which led to the adoption of the Community rules on coupage, considered as a whole.

It seems to me that in reaching an interpretation regard must be had to the fifteenth recital in the preamble to Regulation No 816/70 (twenty-eighth recital in the preamble to Regulation No 337/79), which in regard to coupage states as follows: “whereas, in view of its possible consequences, its control is necessary in order to prevent abuse”.

(a) As the wording of that recital indicates, the Community rules on coupage are strict. It is to be observed however, at least with regard to wines produced in the Community, which are the only ones for which a complete body of rules exist, that this rigour only applies to wines intended for direct consumption. As we have seen, paragraphs (1) to (3) of Article 26, which concern table wines and wines suitable for yielding table wine, lay down precise rules concerning the quality (paragraph (1)) and colour (paragraph (3)) of the wines which may be the subject of coupage and the zones in which the process must take place (paragraph (2)). Wines resulting from the coupage of quality wines produced in specified regions (quality wines psr) with a wine other than a quality wine psr or with a quality wine psr which is not entitled to bear the name of the same specific region may in principle not be supplied for direct human consumption by virtue of Article 4 (a) of Commission Regulation (EEC) No 1972/78 of 16 August 1978 laying down detailed rules on oenological practices.

On the other hand, wines derived from coupage and intended for industrial use are unrestricted. They are not covered by paragraphs (1) to (3) of Article 26. Moreover, Article 27 (3) of Regulation No 816/70 expressly provides that wine “derived from the vine varieties” approved for cultivation in the Community “but not corresponding to the definitions” of table wine and wine suitable for yielding table wine “may be used only for consumption in the family of the individual winegrowers, for the production of wine vinegar or for distillation”.

In order to understand the reasons for this different treatment, it is in my view necessary to have regard to the objectives of the Community policy on wine.

In the case of all wines, including those which owing to their inferior quality are intended for industrial uses, such as vinegar-making, the rules must ensure in particular the safeguarding of public health, the protection of consumers and fair trading. However, in the case of wines consumed directly, those requirements are combined with the concern to achieve production of the highest possible quality. It is the latter consideration which explains the particular strictness of the rules governing the coupage of those wines.

With regard to wines having undergone coupage coming from nonmember countries, on the other hand, Article 26 (4), which forms the major part of the rules on the matter, does not, as we have seen, expressly make any distinction on the basis of their intended use. However, since the rules on the coupage of Community wines apply only to wines intended for direct consumption, special reasons would be required if the position were to be different with regard to wines from nonmember countries.

In my view, such special reasons exist only in the case of wines intended for direct human consumption. Wines produced in the Community are subject to uniform rules which, as we have seen, are reflected in a common definition of “table wine”, so that there is no objection to allowing the mixing of wines corresponding to that definition with each other or with wines suitable for yielding table wine which also corresponds to a common definition. Wines from nonmember countries, on the other hand, do not individually correspond to common criteria of quality, even where they have undergone quality control in the State in which they have been produced, nor are they subject to comparable controls. Consequently, the safeguards intended to ensure the quality of each wine are likely to become ineffective if the wines are mixed.

In the case of wines intended for vinegar-making, on the other hand, the need for quality control disappears. Consequently, provided of course that in all other respects they comply with all the requirements for importation into the Community, there is no further purpose to be served by prohibiting in principle the coupage of such wines. As the maxim has it, “cessante ratione legis cessat lex ipsa”.

The justification for the different treatment advanced by the French Government, namely the need to maximize the outlets for Community wines in a market characterized by surpluses, does not seem to me to be relevant. If it is true that Community preference is a fundamental principle of the common agricultural policy, then observance of that principle may, I think, be ensured only by instruments provided for that purpose and not by exaggerating the scope of a provision, for the use of which for protectionist purposes I can see no legal justification.

In sum, I consider that the arguments set out above as to the basis of the Community rules on coupage, in conjunction with the factors which the general scheme of Article 26 seemed to me to disclose, are conclusive as to the interpretation of the provision in question.

I conclude therefore that in reply to the question raised by the Eleventh Criminal Chamber of the Tribunal de Grande Instance, Paris, the Court should rule that the provisions of Article 26 (4) 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 do not apply to wines intended for vinegar-making.