61974J0089

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AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - WINE - IMPORTATION - QUANTITATIVE RESTRICTIONS - MEASURES HAVING EQUIVALENT EFFECT - NATIONAL CONTROL - OVER-ALCOHOLIZATION - PRESUMPTION - METHOD OF ANALYSIS - PERMISSIBILITY - CONDITIONS

( EEC TREATY, ARTICLE 30; REGULATIONS NOS 816/70 AND 817/70 OF THE COUNCIL; REGULATION NO 1539/71 OF THE COMMISSION )

A MEMBER STATE MAY IN THE PRESENT STATE OF COMMUNITY LAW APPLY AS A NATIONAL MEASURE OF CONTROL A PRESUMPTION IN LAW OF OVER-ALCOHOLIZATION WHICH IS BASED ON THE PROPORTION OF ALCOHOL TO THE DRY EXTRACT BY THE 100* METHOD, PROVIDED THAT THAT PRESUMPTION IS CAPABLE OF BEING REBUTTED AND THAT IT IS APPLIED IN SUCH A WAY AS NOT TO PLACE AT A DISADVANTAGE, IN LAW OR IN FACT, AS A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION, WINES FROM OTHER MEMBER STATES .

IN JOINED CASES 89/74 AND 18 AND 19/75

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR D'APPEL, BORDEAUX, FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN :

PROCUREUR GENERAL AT THE COUR D'APPEL BORDEAUX

AND

1 . ROBERT JEAN AUNAUD, RESIDING IN TEUILLAC, GIRONDE, ACCUSED,

( CASE 89/74 )

2 . CLAUDE CAMILLE RABY, RESIDING IN VIGNONET, GIRONDE, ACCUSED

AND

INSTITUT NATIONAL DES APPELLATIONS D'ORIGINE, PARIS, PLAINTIFF CLAIMING DAMAGES,

SYNDICAT GIRONDIN DE DEFENSE CONTRE LA FRAUDE, BORDEAUX, PLAINTIFF CLAIMING DAMAGES,

LIGUE DES VITICULTEURS DE LA GIRONDE, BORDEAUX, PLAINTIFF CLAIMING DAMAGES,

( CASE 18/75 )

3 . ROGER GALLET, RESIDING IN CAPIAN, GIRONDE, ACCUSED,

AND

THE DIRECTOR GENERAL OF TAXES, BORDEAUX, PLAINTIFF CLAIMING DAMAGES,

LIGUE DES VITICULTEURS DE LA GIRONDE, BORDEAUX, PLAINTIFF CLAIMING DAMAGES,

( CASE 19/75 )

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION ( EEC ) NO 816/70 OF THE COUNCIL OF 28 APRIL 1970 LAYING DOWN ADDITIONAL PROVISIONS FOR THE COMMON ORGANIZATION OF THE MARKET IN WINE ( OJ, ENGLISH SPECIAL EDITION 1970 ( I ) P . 234 ), REGULATION ( EEC ) NO 817/70 OF THE COUNCIL OF 28 APRIL 1970 LAYING DOWN SPECIAL PROVISIONS RELATING TO QUALITY WINES PRODUCED IN SPECIFIED REGIONS ( OFFICIAL JOURNAL ENGLISH SPECIAL EDITION 1970 ( I ) P . 252 ) AND REGULATION NO ( EEC ) 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 ) IN CONNEXION WITH A PRESUMPTION UNDER FRENCH LAW OF THE OVER-ALCOHOLIZATION OF WINE,

1 BY JUDGMENTS OF 22 MAY 1974 WHICH WERE RECEIVED AT THE COURT ON 7 NOVEMBER 1974 WITH REGARD TO CASE 89/74 AND ON 11 FEBRUARY 1975 WITH REGARD TO CASES 18 AND 19/75, THE COUR D'APPEL, BORDEAUX REFERRED UNDER ARTICLE 177 OF THE EEC TREATY CERTAIN QUESTIONS ON THE INTERPRETATION OF REGULATION ( EEC ) NO 816/70 OF THE COUNCIL OF 28 APRIL 1970 LAYING DOWN ADDITIONAL PROVISIONS FOR THE COMMON ORGANIZATION OF THE MARKET IN WINE ( OJ, ENGLISH SPECIAL EDITION 1970 ( I ) P . 234 ), REGULATION ( EEC ) NO 871/70 LAYING DOWN SPECIAL PROVISIONS RELATING TO QUALITY WINES PRODUCED IN SPECIFIED REGIONS ( OJ, ENGLISH SPECIAL EDITION 1970 ( I ) P . 252 ) AND REGULATION NO ( EEC ) 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 SINCE THE THREE CASES HAVE THE SAME SUBJECT-MATTER, THEY MUST BE JOINED FOR THE PURPOSES OF THE JUDGMENT .

3 IT FOLLOWS FROM THE JUDGMENTS MAKING THE REFERENCE THAT THE QUESTIONS WERE RAISED DURING PROSECUTIONS BROUGHT AGAINST FRENCH WINE TRADERS IN PARTICULAR FOR HAVING ILLEGALLY ENRICHED CERTAIN QUANTITIES OF RED WINE .

4 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 .

5 THE COUR D'APPEL, BORDEAUX ASKS ESSENTIALLY WHETHER THE COMMUNITY RULES IN THE WINE SECTOR ENABLE THE MEMBER STATES TO APPLY A PRESUMPTION IN LAW OF OVER-ALCOHOLIZATION SUCH AS THAT LAID DOWN IN ARTICLE 8 OF THE FRENCH CODE DU VIN .

6 UNDER REGULATION NO 816/70 CERTAIN PROCESSES SUCH AS THE INCREASE OF THE ALCOHOLIC STRENGTH BY VINIFICATION, ADDIFICATION, DEACIDIFICATION AND SWEETENING ARE ONLY AUTHORIZED UNDER THE CONDITIONS LAID DOWN IN ARTICLES 18 TO 21, WHILST THE ADDITION OF ALCOHOL TO WINE IS PROHIBITED BY ARTICLE 25 .

7 ARTICLE 39A OF REGULATION NO 816/70, WHICH WAS INTRODUCED BY ARTICLE 12 OF REGULATION NO 2680/70 OF THE COUNCIL OF 12 DECEMBER 1972, PROVIDES THAT THE MEMBER STATES SHALL TAKE ALL APPROPRIATE MEASURES TO ENSURE COMPLIANCE WITH THAT REGULATION .

8 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 DEACIDIFYING ARE OBSERVED .

9 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 .

10 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 .

11 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 .

12 IT MUST THEREFORE BE CONCLUDED THAT IN THE PRESENT STATE OF THE COMMUNITY RULES, A MEMBER STATE MAY IN PRINCIPLE APPLY A PRESUMPTION IN LAW AS A MEASURE OF CONTROL IN ORDER TO DETECT CASES OF OVER-ALCOHOLIZATION .

13 HOWEVER, A PRESUMPTION IN LAW OF OVER-ALCOHOLIZATION WOULD NOT BE PERMISSIBLE AS A NATIONAL MEASURE OF CONTROL IF ITS APPLICATION COULD PUT AT A DISADVANTAGE WINES FROM OTHER MEMBER STATES AND THEREFORE CONSTITUTE A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION, WHICH IS PROHIBITED BY ARTICLE 30 OF THE EEC TREATY AND ARTICLE 31 ( 1 ) ( B ) OF REGULATION NO 816/70 .

14 THIS WOULD BE THE CASE FOR EXAMPLE IF THE POSSIBILITY OF REBUTTING THE PRESUMPTION IN RESPECT OF WINES ORIGINATING IN ANOTHER MEMBER STATE WERE NOT AVAILABLE IN LAW AND IN FACT TO THE SAME EXTENT AND UNDER THE SAME CONDITIONS AS IN RESPECT OF HOME-PRODUCED WINES .

15 THE SAME COULD APPLY IF THE LEGAL PROVISION WERE SO APPLIED THAT ITS EFFECT WAS MERELY TO REVERSE THE BURDEN OF PROOF RELATING TO THE SPECIAL CIRCUMSTANCES OF THE CASE IN QUESTION, WITHOUT ACCEPTING THAT THE DATA RELATING TO THE CLIMATIC CONDITIONS OF THE PRODUCER REGION, TO THE METHODS OF WINE-MAKING AND TO THE OTHER FACTORS OF A GENERAL NATURE HAVING AN EFFECT ON THE PROPORTION OF ALCOHOL TO DRY EXTRACT, MAY BE SUFFICIENT TO REBUT THE PRESUMPTION OF OVER-ALCOHOLIZATION .

16 IT IS, IN THE FIRST PLACE, FOR THE NATIONAL COURT TO CHECK WHETHER SUCH IS THE CASE .

17 IT IS NECESSARY THEN TO CONSIDER WHETHER THE PROVISIONS OF COMMUNITY LAW ON THE METHODS OF ANALYSING WINE PROHIBIT THE APPLICATION IN A MEMBER STATE OF A MEASURE OF CONTROL BASED ON A PRESUMPTION OF OVER-ALCOHOLIZATION WHENEVER THE PROPORTION OF ALCOHOL TO DRY EXTRACT IS IN EXCESS OF CERTAIN VALUES .

18 ARTICLE 1 OF REGULATION NO 1539/71 OF THE COMMISSION OF 19 JULY 1971 DETERMINING COMMUNITY METHODS FOR THE ANALYSIS OF WINES, WHICH CAME INTO FORCE ON 1 SEPTEMBER 1971, PROVIDES THAT THE METHODS OF ANALYSIS 'FOR THE APPLICATION OF REGULATIONS ( EEC ) NOS 816/70 AND 817/70' ARE THOSE SET OUT IN THE ANNEX TO THAT REGULATION .

19 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 '.

20 THEREFORE, IN ORDER TO DECIDE WHETHER THIS METHOD OF ANALYSIS 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, AS THE CASE MAY BE, OF REGULATION NO 817/70 RELATING TO QUALITY WINES PRODUCED IN SPECIFIED REGIONS WHICH, HOWEVER, CONTAINS NO PARTICULAR PROVISIONS PROHIBITING THE ADDITION OF ALCOHOL TO WINE .

21 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 PROHIBITION ON ADDING ALCOHOL TO WINE .

22 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, 39 A, WHICH PROVIDES THAT 'MEMBER STATES SHALL TAKE ALL APPROPRIATE MEASURES TO ENSURE COMPLIANCE WITH THIS REGULATION '.

23 IT MUST BE CONCLUDED FROM THIS THAT A NATIONAL MEASURE OF CONTROL WHICH IS INTENDED TO DETECT CASES OF THE ADDITION OF ALCOHOL TO WINE IN VIOLATION OF THE COMMUNITY PROHIBITION COMES WITHIN THE FIELD OF APPLICATION OF REGULATION NO 816/70 AND CONSEQUENTLY WITHIN THAT OF REGULATION NO 1539/71 ON METHODS OF ANALYSIS .

24 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 .

25 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 .

26 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 .

27 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 .

28 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 .

29 IT FOLLOWS THAT THIS PRESUMPTION WOULD BE RENDERED INPRACTICABLE IF THE DENSIMETRIC METHOD WAS OBLIGATORY TO THE EXCLUSION OF THE 100* METHOD, BUT THAT ON THE OTHER HAND THE LATTER MAY ONLY BE APPLIED WITH CAUTION .

30 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 .

31 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 .

32 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 .

33 THE COSTS INCURRED BY THE FRENCH GOVERNMENT, THE GOVERNMENT OF THE ITALIAN REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

34 SINCE THE PROCEEDINGS ARE, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, IT IS FOR THAT COURT TO MAKE AN ORDER AS TO COSTS .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COUR D'APPEL, BORDEAUX, BY JUDGMENTS OF 22 MAY 1974, HEREBY RULES :

REGULATIONS NOS 816/70, 817/70 AND 1539/71 MUST BE INTERPRETED AS MEANING THAT :

A MEMBER STATE MAY IN THE PRESENT STATE OF COMMUNITY LAW APPLY AS A NATIONAL MEASURE OF CONTROL A PRESUMPTION IN LAW OF OVER-ALCOHOLIZATION WHICH IS BASED ON THE PROPORTION OF ALCOHOL TO THE DRY EXTRACT MEASURED BY THE 100* METHOD, PROVIDED THAT THAT PRESUMPTION IS CAPABLE OF BEING REBUTTED AND THAT IT IS APPLIED IN SUCH A WAY AS NOT TO PLACE AT A DISADVANTAGE, IN LAW OR IN FACT, WINES FROM OTHER MEMBER STATES .