C-89/74

(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 rebutted and that it is applied in such a of Community law apply as a national way as not to place at a disadvantage, in measure of control a presumption in law law or in fact, as a measure having an of over-alcoholization which is based on effect equivalent to a quantitative the proportion of alcohol to the dry restriction, wines from other Member extract by the 100° method, provided States. that that presumption is capable of being

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 général at the Cour d'appel Bordeaux

and

Syndicat girondin de défense 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,

THE COURT

Issues of fact and of law

oenological processes and conditions for vin, introduced a provision concerning a release to the market'. Article 18 lays presumption of over-alcoholization of down the circumstances in which wine which reads as follows:

JUDGMENT OF 30. 9. 1975 - JOINED CASES 89/74, 18 AND 19/75

'Red wines in respect of which the Several methods of analysis have been proportion of alcohol to reduced extract worked out for the calculation of the dry is in excess of 4-6 and white wines in extract. One is the '100° method' which respect of which this proportion is in consists in weighing what is left after excess of 6-5 shall be presumed to evaporating the volatile substances in the be over-alcoholized. However, this wine at 100°. Another is the 70° presumption may be rebutted when a vacuum method' which consists in comparison of the various constituent weighing what is left after evaporating elements of the wines, their taste, the the volatile substances in the wine at 70° conditions of their production and their in a vacuum. A third method is the place of origin enable it to be established 'densimeter method' which consists in

that they result exclusively from the calculating the dry extract indirectly fermentation of fresh grapes'. from the specific gravity of the wine from which the alcohol has been The presumption is based on the removed and which has been brought up following premises: to the initial volume by adding water.

1 — Article 8 of the Code du vin uses the expression Code du vin, the analyses referred to in 'reduced extract' the definition of which is annexed to the preceding Article shall be carried out the Order of 24 June 1963 on official methods for the in accordance with the methods analysis of wines and grape musts: The reduced extract is the total reduced dry extract less all the sugars in prescribed by the provisions of excess of 1 gramme, potassium sulphate in excess of 1 gramme, mannitol, if any, and all chemical substances Regulation No 1539/71/EEC of 19 July which may have been added to the wine'. 1971'.

PROCUREUR GÉNÉRAL, BORDEAUX v ARNAUD

Messrs Arnaud and Gallet were sentenced and Mr Gallet, represented by Mr J. to fines by the Tribunal correctionnel, Rozier, Advocate at the Cour d'appel, Bordeaux. The Court based its decision Bordeaux, Mr Raby, represented by Mr J. Froidefond, Advocate at the Libourne on the results of the analysis of the dry extract according to the 100° method. Bar, the Procureur général at the Cour d'appel, Bordeaux, the French Govern­ Mr Raby was acquitted by the Tribunal ment, represented by Mr R. Pisani, Chief de grande instance, Libourne, which took Inspector in the Service de la répression into consideration for this purpose the des fraudes at the Ministry of Agriculture, analysis of the dry extract according to the Government of the Italian Republic, the densimetric method and disregarded represented by Ambassador A. Maresca, the result obtained by the 100° method. assisted by Mr I. M. Braguglia, vice avvocato dello Stato and the

Appeals were brought against these three Commission, represented by its Legal Adviser, Mr G. Marenco, submitted decisions before the Cour d'appel, written observations. Bordeaux.

By order of 26 February 1975, the Court, The three accused maintained inter alia having heard the report of the that the provisions of Community Judge-Rapporteur and the views of the Regulations Nos 816/70, 817/70 and Advocate-General, decided to join Cases 1539/71 led to the repeal of Article 8 of 18 and 19/75 for the written procedure, the Code du vin on which the and, by order of 28 May 1975, to join the prosecutions are based and to the three cases for the oral procedure. prohibition of the use of the method of analysis involving dry extract at 100° to After hearing the report of the establish the presumption in law of Judge-Rapporteur and the views of the

Messrs Arnaud, Raby and Gallet claim In this connexion they recall the that Regulations Nos 816/70 and 817/70 difficulties which the application of the do not authorize the retention of Article presumption raises each time the 8 of the Code du vin. enrichment is legal and in particular where French wine is blended with wine Since all Community regulations have from another region of the Community the effect of repealing conflicting which has been legally chaptalized. provisions of national law and even provisions of national law which are in Moreover, they recall that the French accordance with them, and since Article legislation in this sphere has given rise to 25 of Regulation No 816/70 prohibits much criticism from oenological experts the addition of alcohol to wine, there is particularly because of the development no doubt that this article repeals the Law in wine-making conditions and the of 24 July 1894. However, as the rule of uncertainty of the results of the method the presumption of over-alcoholization of of analysing the dry extract obtained wine was adopted under that very Law, by evaporation at 100°. The French by the Decree of 1898, it follows that this Government must make allowances and Decree, which was re-enacted in Article even allow an alteration of the maximum 8 of the Code du vin, is also repealed. ratio, as it did for example by Circular No 424 of 2 March 1965 and by the They refer to the articles of Regulations Circular of 25 March 1974 (the latter Nos 816/70 and 817/70 concerning the relaxing the ratio in respect of Beaujolais chaptalization of wine and to the wines from the 1973 harvest which were definitions of 'wine suitable for yielding claimed to have been subject to a table wine', 'table wine' and 'quality wine shortened wine-making process). produced in a specified region' (quality wines p.s.r.) and claim that the legality of Finally they recall that experts hope that chaptalization was not made subject to the 100° method will be replaced by the the result of the alcohol/dry extract ratio densimetric method and that the 1954 and that none of the Community International Convention for the Regulations provides that a wine does Unification of Methods for the Analysis not answer the definition of 'wine and Appraisal of Wines laid down the suitable for yielding table wine' etc., if its 70° vacuum method as the reference alcohol/dry extract ratio is in excess of method and the densimetric method as

the customary method and expressly such control. Measurement of the prescribed the 100° method for directly alcohol/dry extract ratio is, moreover, the measuring the extract of wines only means at the disposal of the containing sugars. supervising authorities, in respect of imported wines, of investigating adul­ As regards the second question, Messrs teration due to over-alcoholization. Arnaud, Raby and Gallet claim that Regulation No 1539/71 rules out the use The Procureur général also refers to the of the 100° method and makes the fact that Regulation No 1539/71 was densimetric method compulsory and that adopted in application of Articles 20 and the question should therefore be 39 of Regulation No 816/70 and in answered in the negative. This is all the application of Article 11 (4) of more so since the results obtained by one Regulation No 817/70. He claims that all method are not comparable with those these articles concern the identification obtained by the other. The two methods of table wines or quality wines p.s.r. and are totally different. It is impossible to that the sole objective of Regulation No transpose the result of one method into 1539/71 is to lay down the methods of the other. There is no correcting factor or analysis whereby this identification can table which enables one result to be be established. converted into the other. Moreover, for several reasons, the results obtained by He adds that it is impossible to transpose the 100° method are not reliable. The with sufficient accuracy the value of the densimetric method is a more accurate alcohol/dry extract ratio obtained by the and reliable method. densimetric method into the alcohol/dry extract ratio obtained by the 100° As regards the third question, Messrs method since the two techniques are very Arnaud, Raby and Gallet claim that different in their principles and their Article 2 of the Order of 22 January results. There can be no constant 1974 conflicts with Regulation No relationship between these two methods 1539/71 since its aim is to retain a of measurement. method of analysis which has been repealed. 3. The observations of the French Government 2. Observations of the Procureur général at the Cour d'appel, Bordeaux The French Government first of all points out that 'the proportion of alcohol The Procureur général examines the by weight to the reduced extract' is not a relevant French legislation and claims rule for the analysis of wine but the that all these provisions show the obvious expression of an oenological principle desire of the Minister of Agriculture to the results of which enable over- retain in force the presumption of the alcoholization of wine in a given case to over-alcoholization of wine which is be determined, by comparison with based on the 100° method in order to constants which have been established by measure the dry extract experiment.

total dry extract, French regulations only recognized the dry extract obtained on In the opinion of the French the basis of measurement at 100°. This Government, it must first be emphasized extract differs from the total dry extract that no Community provision has been because some of the dry substances are made on the investigation of fraudulent burned away when the wine is boiled at practices and adulteration except to call 100°. This dry extract is generally called upon the Member States to take all 'dry extract at 100°'. In some cases it appropriate measures to ensure com­ corresponds to the reduced extract pliance with the Community rules. In referred to in Article 8 of the Code du this connexion, it quotes in particular vin (where there are no sugars in excess Article 39a of Regulation No 816/70 of 1 gramme per litre and there is no introduced by Regulation (EEC) No potassium sulphate present), but it can 2680/72 of the Council of 12 December never be considered as the total dry 1972 (OJ, English Special Edition 1972 extract. (9-28 December) p. 30) which provides that Member States shall take all In other respects, analyists agree that it is appropriate measures to verify com­ impossible to find a transposition pliance with the provisions of that coefficient which enables the total dry Regulation. extract to be converted into the dry extract When measurements are taken With regard to the provisions of according to the French concept of the Regulation No 1539/71, the French dry extract at 100°, most of the dextrans Government observes that in the title and pectic derivatives and some of the thereof refers to 'methods for analysis' glycerine are not taken into account; ('des méthodes d'analyse') and therefore therefore, for the same wine the number does not lay down all the methods of expressing the value of the extract given analysis. The French Government by the 100° method is smaller than that maintains that the scope of Regulation obtained by the densimetric method. It is No 1539/71 must be considered as just this great veriability in the quantity limited to the identification and of the substances of the types mentioned characterization of wines and is not at all above in different wines which makes it concerned with the investigation of impossible in practice to transpose the fraudulent practices and adulteration. results of one method into the other. Therefore, it appears that the provisions of the Decree of 19 April 1898 (Article 8 Then the French Government claims of the Code du vin) are not contrary to that there has been no Community Community law or in conflict with it. provision defining the method of Finally, the French Government claims measuring the dry extract or the reduced that it would be paradoxical to make extract Consequently, a provision of Member States responsible for adopting national law which is neither contrary to checks appropriate to implement these nor concurrent with a provision of regulations and at the same time to Community law cannot be considered as deprive them of the means of carrying repealed. out such checks.

points out that the presumption of if a different view were taken, the aim of over-alcoholization is a measure for the common organization of the market checking the existence of certain would be jeopardized since a product material properties which wine must which was regarded in one country and possess. It is thus not concerned with according to a certain method of analysis specifying these conditions but checking as a table wine fulfilling the required that they exist. conditions might not be regarded as such in another country which had adopted a In its opinion, an examination of the different method of analysis. provisions of Community law reveals that the task of checking that the material Since amongst the Community methods properties of the wine are present is left of analysis there is one method, that is, the densimetric method, the aim of to Member States, with some exceptions. In this connexion, it refers to Article 39a which is to carry out the same of Regulation No 816/70 and to Article 9 verification procedure as that which the of Regulation No 1594/70 (OJ, English national method of dry extract as 100° aims to do, the Italian Government

questions should be worded thus: mining Community methods for the 1. Do Regulations Nos 816/70 and analysis of wines. Some of the grounds 817/70 and the implementing upon which Regulation No 1539/71 is regulations made thereunder based, and especially the third recital in authorize Member States to apply a the preamble thereto (' . . . consequently, presumption of over-alcoholization to these methods should be compulsory for wines which is based upon the all commercial transactions and all alcohol/reduced extract ratio? verification procedures') make it 2. If the first question is answered in the necessary for the regulation to be affirmative, does Regulation No considered as also applicable to the 1539/71 authorize Member States to methods of analysis which are required prescribe the 100° method of analysis to verify the existence of the material for measurement of the dry extract properties which are required by the which is necessary to determine the Community rules in respect of the alcohol/reduced extract ratio?' product in. question.

JUDGMENT OF 30. 9. 1975 - JOINED CASES 89/74, 18 AND 19/75

The Commission's conclusion is that all Community wines and which Member States not only may but must penalize wines from other Member States take all appropriate measures to ensure by contrast with home-produced wines that the provisions of Community law is, for example, a measure having an are observed. In this connexion, it refers effect equivalent to a quantitative in particular to Article 9 of Regulation restriction on imports. Although the No 1594/70 and Article 13 of Regulation Commission cannot within the context No 817/70. The Commission observes of these proceedings, commit itself as to that the provisions of Community law on whether the values laid down in French the harmonization of verification law are fair in respect of all Community procedures which have been adopted up wines, there is nothing in its opinion to to the present are not exhaustive and make it believe a priori that these values that none of the provisions of the penalize wines from other Member Community rules prevents the States.

application of the presumption of over-alcoholization which is based on the Then the Commission dismisses another alcohol/dry extract ratio. objection which may be made to the conclusion set out above. The pre­ However it adds that the action of the sumption of over-alcoholization is not in Member States conflicts with the limit conflict with the opportunities of which the prohibition on measures enriching wine legally because simple having an effect equivalent to mathematical operations are sufficient for quantitative restrictions on imports the person concerned to show that the constitutes. If the controls imposed by a enrichment is legal, if such is really the Member State on the products of other case.

PROCUREUR GÉNÉRAL, BORDEAUX v ARNAUD

At the oral proceedings on 11 June 1975, The Commission claims moreover that Messrs Arnaud, Raby and Gallet, by adopting Regulation No 1539/71 the represented by Mr J. Rozier, the French Community legislature was essentially Government represented by Mr R. Tinlot, aiming at defining some methods of Chief Inspector in the Service de la analysis to measure the substances répression des fraudes, and the contained in wine expressly mentioned Commission, represented by its Legal in the Community regulations. Adviser, Mr G. Marenco, presented oral

Of these 54 cases, 18 were brought before Nor is a restrictive interpretation lent 1970. support by the reasons which appear in the preamble to Regulation No 1539/71. Messrs Arnaud, Raby and Gallet In this connexion the Commission refers emphasize in particular that the rule of in particular to the third recital. It is true presumption is a rule which affects the that the articles expressly mentioned as very composition of the product; being the legal basis of the regulation therefore it does not merely constitute a

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.

PROCUREUR GÉNÉRAL, BORDEAUX v ARNAUD

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.

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.

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.

JUDGMENT OF 30. 9. 1975 - JOINED CASES 89/74, 18 AND 19/75

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

PROCUREUR GÉNÉRAL, BORDEAUX v ARNAUD

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.

Costs

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

OPINION OF MR TRABUCCHI - JOINED CASES 89/74, 18 AND 19/75

applied in such a way as not to place at a disadvantage, in law or in fact, wines from other Member States.

Lecourt Mertens de Wilmars Mackenzie Stuart Donner Monaco

Pescatore Kutscher Sørensen O'Keeffe

Delivered in open court in Luxembourg on 30 September 1975.

1 — Translated from the Italian.