1.

Whether table wines which are the subject of this regulation, must, in order to be entitled to this designation and circulate within the territory of the Member States of the Community, comply only with the rules of analysis laid down in Item 10 of Annex II to this Community regulation or, in addition, with national rules and practices.

2.

Whether Regulation No 816/70 makes the presumption in national law that table wines are over-alcoholized where the alcohol/dry extract ratio laid down by national regulations has been exceeded inapplicable to intra-Community trade.

—

be derived exclusively from vine varieties referred to in Article 16 of the Regulation, that is, vine varieties approved for cultivation in the Community;

—

be produced in the Community;

—

have an actual alcoholic strength of not less than 8-5o and a total alcoholic strength not exceeding 15o, that upper limit, however being raised to 17o in respect of wines from certain wine growing areas to be determined;

—

havej furthermore, a total acidity content of not less than 4-50 g/1, expressed as tartaric acid.

1.

May Member States apply national legislation in order to control and ensure compliance with Community law concerning oenological processes and rules of analysis? In this connexion, is a measure of control based on a presumption in law of over-alcoholization compatible with Community law?

2.

Supposing that this is so, is the use of the 100o method which is employed nationally to find the alcohol/reduced dry extract ratio prohibited by Regulation No 1539/71 of the Commission determining Community methods for the analysis of wines?

3.

Do the actual circumstances in which evidence to the contrary, enabling the presumption in law to be rebutted must be brought where wines are produced in a Member State other than France not have the effect of creating an impediment to intra-Community trade and do they not render the rule of the presumption irrebuttable so that its application constitutes a measure having an effect equivalent to a quantitative restriction?

1.

In the first place, there seems to me to be no doubt that Member States are not only entitled, but are also under a duty, to adopt all measures of control calculated to ensure compliance with Community rules and to detect and prevent fraudulent practices resulting from prohibited oenological processes. This obligation follows expressly, in particular as regard the processes of enriching wine, from Article 9 of Regulation No 1594/70 of the Commission whereby: ‘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. They shall inform the Commission of these measures without delay’.

The obligation is expressed more generally by Article 39a of Regulation No 816/70: ‘Member States shall take all appropriate measures to ensure compliance with this Regulation’.

Although this provision was added to the original version by Regulation No 2680/72 of 27 (sic) December 1972 it is in my opinion interpretive in nature and only confirms a principle which was already inherent in the system laid down in Regulation No 816/70. The Commission moreover does not have at its disposal any means for implementing these provisions which would enable it to take upon itself this task of verification, and it can at the most provide that Member States must use certain methods or rules to carry this out.

But as we shall see, the Community rules are far from being exhaustive on this point Here also I agree with the Commission that as a verification measure, the presumption of over-alcoholization which follows when certain limits of the alcohol/reduced dry extract ratio are exceeded may be applied by a Member State to ascertain whether a wine has been enriched in irregular circumstances.

Basically, the rule of the presumption of over-alcoholization is not incompatible with Community law.

On the other hand, there is no doubt that Member States may not, even to control wines, apply measures which in intra-Community trade would constitute measures having an effect equivalent to quantitative restrictions. The French system of the presumption of over-alcoholization is based on certain values of the alcohol/dry extract ratio which if exceeded cause this presumption to apply. The way in which these values are fixed may constitute an essential factor of such a nature as in fact to affect intra-Community trade in so far as, taking account essentially of national climatic conditions or national methods of wine making, it might lead to the creation of a disadvantage for wines produced in other Member States. As you know, Article 8 of the Code du vin fixes the maximum value of the alcohol/dry extract ratio at 4·6 in respect of red wine. But you were told in the oral proceedings that, taking account for example of climatic factors, a wine produced below a certain latitude may produce a ratio in excess of that limit.

In the same way, it was maintained that the values set by the French rules are no longer suited to modern methods of rapid wine-making which, by reducing the quantity of the deposits of certain substances in wine, have a considerable influence on the alcohol/dry extract ratio.

Indeed, it would no doubt be possible to say in reply to these two arguments, as the representative of the French Government made sure to do, that on the one hand the values adopted for the purposes of applying the presumption are no less valid in respect of wines produced in the southern regions of the Community than they were in respect of those originating in North Africa, to which the French system was effectively applied for a very long time. It could also be claimed that the French system is flexible in its application since the limit of 4·6 may, by virtue of a circular from the Minister of Agriculture in 1965, be revised upwards according to the permanganate level to take account of certain methods of wine-making. Above all, we are told, the presumption is in no way irrebuttable. The authorities have taken care to relax and adapt both these methods of application and the means whereby evidence in rebuttal may be brought.

But, my Lords, that is a technical dispute about which you will not be able to come to a decision. For my part, I shall merely point out that the presumption as such is a national means of control which the Community rules do not at present prohibit and that the maximum value of the alcohol/reduced dry extract ratio must be fixed and applied so that there is no discrimination between home-produced wines and wines originating in other Member States as a result, failing which the operation of the presumption might constitute an obstacle to intra-Community trade.

2.

Although it was not formally raised by the Cour d'appel, Aix- en-Provence, in my opinion it is necessary to raise the problem of the method whereby the alcohol/reduced dry extract ratio of a wine may be sought in order to reach a decision on whether the presumption is applicable.

For, my Lords, the question is whether the system in law of the presumption of over-alcoholization, which is not per se incompatible with the Community rules in the abstract, may be applied in practice.

If on the one hand it is true that the 100o method used to detect the fraudulent practice constituted by over-alcoholization is certainly the only one which enables the alcohol/reduced dry extract ratio to be ascertained and, on the other, as the parties in the main action, the French Government and the Commission state, it is impossible to transpose the results obtained by the method in question and those produced by the densimeter method, then it must be enquired whether the 100o method is permissible Under the Community rules. If the answer is in the negative, then recourse to the presumption would have to be considered to be quite simply ineffective, if not useless.

Regulation No 1539/71 of the Commission laid down Community methods for the analysis of wines. According to the preamble to this regulation, these methods must be compulsory for all commercial transactions and all verification procedures. This is at least the objective stated. But the question is what verification this is and for what purpose it is designed.

The field of application of the Regulation of the Commission can clearly not be wider than that of Regulation No 816/70. However, although this basic regulation lays down rules for or prohibits certain oenological processes, though not exhaustively, it does not touch the problem of the detection and control of fraudulent practices. Article 39a thereof, which was added by Regulation No 2680/72 to the original regulation, gives the Member States, as we have seen, jurisdiction to take all appropriate measures to ensure compliance with the provisions which it prescribes. In addition, Article 39a provides that it falls to the Council itself to adopt at the Community level measures designed to ensure uniform application of the provisions of the regulation especially as regards verification.

But the basic regulation itself did not establish any Community system of detection and verification of fraudulent practices. Consequently, Regulation No 1539/71 only deals with the methods of analysis intended to verify the material properties and the constituents of Community wines; it cannot be interpreted as defining the methods for the detection and prevention of fraudulent practices in wine-making.

The regulation in question also expressly refers to the methods formulated under the 1954 International Convention for the Unification of Methods for the Analysis and Appraisal of Wines for the application of the methods of analysis which it lists.

But these international methods do not aim to investigate fraudulent practices and adulteration. They were only drawn up for the purpose of ascertaining the constituents of wines. This is the reason why, although the annex to the regulation of the Commission provides that the total dry extract should be determined by the densimeter method which only enables the total amount of the constituents of the wine to be identified, on the other hand there is no method laid down therein which makes it possible to ascertain the alcohol/reduced dry extract ratio, which alone enables the fraudulent practice of over-alcoholization to be detected.

Moreover, in its reply on 29 May 1974 to a written question in the European Parliament, the Commission itself acknowledged that there is a gap in Community law in the sphere of the control of fraudulent practices since it states therein its intention to propose to the Council on the basis of Article 39a of Regulation No 816/70 provisions laying down common methods or rules to detect breaches of the rules on oenological processes. This proves, on the one hand, that it acknowledges that it has no power to lay down common methods of control and on the other that the methods of analysis laid down in Regulation No 1539/71 are on another subject or are not in any case sufficient to detect fraudulent practices.

In addition, on 31 October 1974, the Commission replied to another written question concerning the case brought before a national court, or a similar case, that ‘as regards the establishment of an effective system for preventing breaches of Community law’ it was working out draft ‘common rules’ in conjunction with the Member States ‘on the prevention of breaches committed by individuals in areas which are the subject of Community regulations, directives and decisions’.

Accordingly, my Lords, I consider that Regulation No 1539/71 of the Commission which does not deal with all methods whereby the constituents of wine may be ascertained does not prohibit the use of the 100o method under national rules for the prevention of fraudulent practices.

It remains, my Lords, for me to give my views, in the alternative however, on the question whether the presumption created by the Code du vin may have harsher consequences for French traders who import Community wines than for domestic producers.

This presumption is not irrebuttable in law since Article 8 permits those concerned to bring evidence to the contrary, that is, to show by a comparison of the various constituent elements of the wine, its taste, the conditions of its production and its place of origin that that wine results exclusively from the fermentation of fresh grapes.

It was claimed before the Court that the obligation thus imposed on traders brought about a restriction on the freedom of Community trade in so far as it is in practice particularly difficult for those concerned to put forward this evidence in respect of imported wines.

The Cour d'appel, Aix- en-Provence also seems to be of this view and it deduces from this that there therefore exists serious doubt as to the compatibility with the Community rules of the French system of the presumption of over-alcoholization.

But, my Lords, it is not for the Community Court, at least when a matter is referred to it under Article 177 of the Treaty, to commit itself to this evaluation of the matter which concerns not only the interpretation but the actual application of national law.

As you held in a judgment of 23 January 1975 in the Hulst case (51/74 [1974] ECR 92) in the context of proceedings brought under Article 177 of the Treaty, the Court may not give a ruling on such a point which, like any other assessment of the facts involved, is a matter for assessment by the national court.

I shall merely state for my part that to be lawful, recourse to a system of presumption must be had in accordance with the following conditions:

Such would not be the case if these means were more difficult to use for traders in table wine imported and regularly put into circulation in a Member State, than for producers of or traders in nationally-produced table wines (Judgment of 11 July 1974Dassonville, Case 8/74 [1974] ECR 852).

Accordingly, if the method upon which the presumption is based or if the operation of the system of the presumption in law, taking account of the burden of bringing evidence in rebuttal, could have a discriminatory effect or an effect equivalent to a quantitative restriction, it would fall, where appropriate, to the Commission to set in motion the procedure for establishing that the State concerned has failed to fulfil an obligation, or to the national courts, subject to having recourse to Article 177, to protect the rights of the traders in question.

It seems to me impossible for the Court to take the place of these authorities in the context of these proceedings.

1.

In order to obtain the benefit of the Community designation ‘table wines’, wines which are the subject of Regulation No 816/70 of the Council need only comply with the standards of analysis laid down in Item 10 of Annex II to that regulation;

2.

To be allowed to circulate freely between Member States, moreover, these wines need only be accompanied by the document called the ‘accompanying certificate’ which was introduced by Regulation No 1022/70 of the Commission when the table wines originating in Italy which are in question in these cases were imported into France.

3.

To be released for direct human consumption within the territory of a Member State, a table wine must fulfil the requirements of the rules of that State on the verification and prevention of fraudulent practices; in this respect neither Regulation No 816/70 of the Council nor the implementing regulations issued thereunder prohibit a Member State from applying for this purpose a presumption of over-alcoholization based on the alcohol/reduced dry extract ratio;

4.

Regulation No 1539/71 of the Commission does not rule out the use of the 100o method of analysis to find this ratio;

5.

The application of the presumption in national law of over-alcoholization must not, in particular having regard to the upper and lower limits fixed for the alcohol/reduced dry extract ratio and to the requirements for the admission of evidence in rebuttal, lead to actual discrimination between traders or constitute a measure having an effect equivalent to a quantitative restriction.