1.

It is above all necessary, as the Commission has done, to recall the relevant case-law of the Court of Justice, in other words the judgments in Joined Cases 89/74, 18 and 19/75 (Procureur Général at the Cour d'Appel, Bordeaux v Robert Jean Arnaud and Others, judgment of 30 September 1975 [1975] ECR 1023) and Case 64/75 (Procureur Général at the Cour d'Appel, Lyon v Henri Mommessin and Others, judgment of 9 December 1975 [1975] ECR 1599).

In the first of the above-mentioned judgments useful explanations for laymen on the term ‘dry extract’ — that is the non-volatile substances contained in wine — and on the various methods of calculating this are given in the statement of facts and issues. Thus we learn that in the case of the 100o method what is left after evaporating the volatile substances in the wine at 100o is weighed and that in the case of the densimeter method the dry extract is calculated indirectly from the specific gravity of the wine from which the alcohol has been removed and which has been brought up to the initial volume by adding water.

In the decision in this judgment it is stated with regard to the presumption of over-alcoholization applicable under French law — it applies if the proportion of alcohol to dry extract is in excess of specific limits — that, provided it is not irrebuttable, it is a measure of control in connexion with the duty of the Member States to ensure compliance with the provisions of Community law and in particular with those relating to enriching, acidifying and de-acidifying. This is compatible with the provisions of Community law on the methods of analysing wine, in particular with the annex to Regulation No 1539/71. This is so because only the 100o method is practicable as regards the presumption in law of over-alcoholization, and the reduced dry extract referred to in the French provisions cannot be calculated by means of the densimeter method. Because therefore the 100o method is an essential element of the presumption of over-alcoholization and because the densimetric method is ‘not an aim in itself’ the Community rules in the wine sector do not prohibit Member States from using the 100o method to measure the dry extract of wine in order to apply a presumption in law of overalcoholization based on the proportion of alcohol to dry extract until more appropriate methods have been worked out.

This was confirmed by the judgment in Case 64/75, the operative part of which also states as follows:

‘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 100o 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, wine from other Member States’.

In my opinion the Commission is correct in stating that the question submitted in the present proceedings may also be answered by that and indeed likewise to the effect that the 100o method mentioned in the order of the French Minister for Agriculture in addition to the densimeter is compatible with Regulation No 1539/71 of the Commission. In this connexion the consideration that Article 7 of Regulation No 817/70 contains provisions relating to the conditions under which the alcohol content may be increased is sufficient. The Member States must ensure compliance with those provisions and only if they are complied with may a wine receive the designation of quality wine produced in specified regions. It is therefore necessary to assume that in the analytical test of the wine it is impossible to disregard the test based on the presumption of over-alcoholization. The test of over-alcoholization is, as the Commission has shown, inseparably linked to the analytical test. If however it is impossible to object to the 100o method within the context of the presumption of over-alcoholization the same must be said with regard to the above-mentioned joint test which constitutes an inseparable entity.

2.

In addition, Commission Regulation No 2984/78 of 17 November 1978 (Official Journal L 360 of 22 December 1978, p. 1) is of interest in the present case although it cannot be of decisive importance owing to its date of adoption. It replaced Regulation No 1539/71 after the above-mentioned judgments had been delivered. It is true that Annex 3 states with regard to the total dry extract: ‘Single method: measurement by a densimeter’. Article 1 (4) of the regulation however contains a transitional provision the content of which reads as follows:

‘Until Community provisions are adopted on the level of the constituents which indicate that certain oenological practices have been employed and on tables enabling a comparison of the analysis data, the Member States may, in order to assess whether a product has been subjected to treatments or practices which are not in accordance with Community provisions,

This also applies precisely to the 100o method in France which has apparently been used there since an order adopted in 1907 and which accordingly is no longer permissible as from 1 September 1979 — it is hoped that by then more suitable methods will have been developed.

3.

As the Commission has suggested and has also been advocated by the French Government the following answer should therefore be given to the question raised by the French Conseil d'État:

A Member State may in the present state of Community law apply in connexion with the issue of certificates for wines produced in specified regions and 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 100o method, if that presumption is capable of being rebutted.