C-64/75

2. Agriculture — Common organization of the markets — Wine — Analysis — Method — Non-exhaustive nature — Competence of Member States (Regulation No 1539/71 of the Commission)

3. Agriculture — Common organization of the markets — Wine — Importation — National control — Over-alcoholization — Presumption — Method of analysis — Permissibility — Conditions (Regulations Nos 816/70 and 817/70 of the Council; Regulation No 1539/71 of the Commission; EEC Treaty, Article 30)

1. The methods of analysis laid down by application of Regulations Nos Regulation No 1539/71 are mandatory 816/70 and 817/70. not merely when wine has to be 3. A Member State may in the present analysed for commercial purposes but state of Community law apply as a also whenever the determination of national measure of control a

the elements referred to is necessary presumption in law of over- to establish fraud or adulteration. alcoholization which is based on the proportion of alcohol to the dry 2. Regulation No 1539/71 is not extract measured by the 100° method, exhaustive but leaves to the Member provided that that presumption is States the choice of applying other capable of being rebutted and that it methods of analysis for determining is applied in such a way as not to the constituent elements of wine place at a disadvantage, in law or in which are not relevant to the fact, wines from other Member States.

In Case 64/75,

Reference to the Court under Article 177 of the EEC Treaty by the Cour d'Appel, Lyon, for a preliminary ruling in the criminal proceedings pending before that court between:

and

INSTITUT NATIONAL DES APPELLATIONS D'ORIGINE, Paris, plaintiff claiming damages, and

DIRECTION GÉNÉRALE DES IMPÔTS DU DEPARTEMENT DU RHÔNE, Lyon, plaintiff claiming damages,

on the interpretation of Regulation No 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 method of analysis which is the basis of a presumption under French law of the over-alcoholization of wine,

THE COURT

composed of: R. Lecourt, President, H. Kutscher, President of Chamber, A. M. Donner, J. Mertens de Wilmars, P. Pescatore, M. Sørensen and Lord Mackenzie Stuart, Judges,

PROCUREUR GÉNÉRAL v MOMMESSIN

French Law before the establishment of the Community organization of the These different operations are either market in wine. It was prohibited in prohibited or strictly regulated. certain areas and authorized in others. 2. Such rules are contained in the 4. With the object of effectively Community regulations which have preventing breaches of these laws, the established the common organization of French Decree of 19 April 1898 on the the market in wine since 1 June 1970. over-alcoholization of wine, which was Regulation (EEC) No 816/70 laying re-enacted in Article 8 of the Code du down additional provisions for the Vin, introduced a provision concerning a common organization of the market in presumption of over-alcoholization of wine contains the provisions valid for all wine which reads as follows: products in this sector save as otherwise provided. Title IV of this Regulation 'Red wines in respect of which the is headed thus: 'Rules concerning proportion of alcohol to reduced extract oenological processes and conditions for is in excess of 4-6 and white wines in release to the market'. Article 18 lays respect of which this proportion is in down the circumstances in which excess of 6-5 shall be presumed to Member States may permit the natural be over-alcoholized.

3. Before the Community regulations Fortification and chaptalization create an were implemented, the addition of imbalance between the constituents of

Several methods of analysis have been Heading 3 of the Annex provides that: worked out for the calculation of the dry extract. One is the '100° method' which The total dry extract shall be measured consists in weighing what is left after by a densimeter and calculated indirectly evaporating the volatile substances in the from the specific gravity of the residue wine at 100°. Another is the 70° without alcohol.' vacuum method' which consists in 6. Mr Henri Mommessin, Chairman weighing what is left after evaporating and Managing Director of the the volatile substances in the wine at 70 Mommessin limited company, and Mr in a vacuum. A third method is the 'densimeter method' which consists in Jean-Claude Chevalier, vine grower, were convicted, by a judgment of 12 June calculating the dry extract indirectly 1973 of the Tribunal de Grande Instance, from the specific gravity of the wine Villefranche-sur-Saone, of having, in from which the alcohol has been 1971 and 1972, enriched wine unlawfully removed and which has been brought up by chaptalization, in the case of Mr to the initial volume by adding water. Chevalier, and of having offered for sale or sold this wine under the description The choice between the various methods 'Beaujolais Villages', in both cases. of calculating the dry extract is of practical importance because it appears Appeals were brought against this that the results obtained vary according decision before the Cour d'Appel, Lyon. to the different methods. (The dry extract obtained by the 100° method is less than Holding that 'the disparity which has that obtained by the other two methods been pointed out between the because evaporation at 100° causes some Community and national rules on the obtaining of the dry extract makes the 1 — Article 8 of the Code du Vin uses the expression arguments of the defence relevant to the 'reduced extract', the definition of which is annexed to decision and makes it necessary to the Order of 24 June 1963 on official methods for the analysis of wine and grape musts: The reduced extract inquire whether the methods of analysis is the total reduced dry extract less all the total sugars in laid down by the regulation are excess of 1 gramme, potassium sulphate in excess of 1 mandatory in all spheres, including that gramme, mannitol, if any, and all chemical substances which may have been added to the wine'. of the investigation of adulteration, as

1971 are mandatory for the investigation into and punishment of fraud relating to It recalls that this point of view seems wine.' moreover to be shared by the Commission which, in a reply of 29 May 7. The order for reference was entered 1974 to a written question in the in the Court Register on 21 July 1975. Parliament made known its intention to submit proposals to the Council for In accordance with Article 20 of the provisions for common methods or rules Protocol on the Statute of the Court of for the purpose of discovering Justice of the EEC written observations infringements of the rules relating to were submitted by the French oenological practices. Government and the Commission.

expressly stated by these constants and to Thus it appears that the method of the quantities which they adopt. determining the dry extract at 100°, which is necessary for the application of In connexion with the dry extract, the Article 8 of the Code du Vin, is confusion which may arise by reason of compatible with the provisions of the existence of similar descriptions Regulation No 1539/71. which however apply to different groups of constituents must be avoided. Until 2. Observations of the Commission

extract. Commission recalls that the question has been raised with regard to the specific In other respects, analysts agree that it is fraudulent practice of over-chaptalization, impossible to find a transposition which is governed by Community coefficient which enables the total dry provisions. The Commission takes the extract to be converted into the dry view that where the Member States extract. When measurements are taken investigate and punish infringements of according to the French concept of the these rules committed by individuals dry extract at 100°, most of the dextrans they are acting in application of and pectic derivatives and some of the Regulations Nos 816/70 and 817/70. glycerine are not taken into account; Furthermore, since Article 39a of therefore, for the same wine the number Regulation No 816/70 and Article 9 of expressing the value of the extract given Regulation No 1594/70 give to the by the 100° method is smaller than that Member States the task of taking any obtained by the densimetric method. It is appropriate measures to ensure ad just this great variability in the quantity herence to the relevant Community of the substances of the types mentioned provisions, the States' methods of above in different wines which makes it investigation and punishment of impossible in practise to transpose results fraudulent practices incontestably fall of one method into the other. within the ambit of Regulations Nos

PROCUREUR GENERAL v MOMMESSIN

part of the regulation appears to indicate methods of analysis set out in the annex a wider scope. may be used for determination of the substances listed in the annex.

This is confirmed by the reasons The Commission further states that for contained in the preamble to Regulation No 1539/71. In this connexion the the purposes of the presumption of Commission refers in particular to the over-alcholization the total dry extract third recital. It is true that the articles must be determined and not any other expressly mentioned as being the legal matter, such as the reduced dry extract or basis of the regulation militate in favour just the dry extract, as certain parties have stated. In the context of French law of a restrictive interpretation. But this fact cannot in the Commission's opinion it is not possible to maintain that the prevail over the unequivocal statements 100° method determines anything other than the total extract, whilst French in the operative part of the regulation and the statement of reasons. legislation itself defines the reduced extract as being derived from the total extract. As to the second question, the Commission maintains that Regulation At the public hearing on 20 November No 1539/71 does not permit the Member 1975, the French Government, re­ States to prescribe any method of presented by R. Tinlot, Chief Inspector analysis of the dry extract other than in the Service de la Repression des the densimetric method for the Fraudes of the Ministry of Agriculture, determination of the dry extract of wine and the Commission, represented by its necessary for establishing the al­ Legal Adviser, G. Marenco, presented oral cohol/reduced dry extract ratio. argument.

4 By virtue of provisions adopted by the French authorities to prevent fraud and adulteration in connexion with wines, the method of analysis known as the 100° method is used to measure the dry extract in order to determine the proportion of alcohol to reduced extract mentioned in Article 8 of the Code du Vin.

5 The Cour d'Appel, Lyon, asks 'Whether the Community methods for the analysis of wines laid down in Regulation (EEC) No 1539/71 of 19 July 1971 are mandatory for the investigation into and punishment of fraud relating to wine'.

6 Article 1 of that regulation provides that the methods of analysis set out in the annex to the regulation shall be used for the application 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 and Regulation No 817/70 of the Council laying down special provisions relating to quality wines produced in specified regions (OJ, English Special Edition, 1970 (I), p. 234 and p. 252).

7 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'.

8 In order to decide whether this method, and also the other methods of analysis laid down by the regulation, are mandatory for the investigation into and punishment for fraud relating to wine, it must first be observed that they were laid down primarily in order to determine the amounts of the various constituent elements which wine must contain in order to be given the description table wine or quality wine produced in a specified region under Regulation Nos 816/70 and 817/70.

14 In this respect it must first be ascertained whether such a presumption in law for the determination of cases of over-alcoholization is compatible with Community rules, leaving aside the question of the method of analysis used.

15 It must be observed in this respect that, whilst the Community rules have not, up to now, been extended to cover all oenological practices, Regulation No 816/70 contains in Title IV detailed provisions relating to the enrichment of wine to which Articles 7 and 9 of Regulation No 817/70 refer.

16 Article 39 (a) of Regulation No 816/70, which was introduced by Article 12 of Regulation No 2680/72 of the Council of 12 December 1972, provides that the Member States shall take all appropriate measures to ensure compliance with that regulation.

JUDGMENT OF 9. 12. 1975 - CASE 64/75

17 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 de-acidifying are observed.

18 It follows from this that the Member States must take effective measures of

PROCUREUR GENERAL v MOMMESSIN

24 Therefore, in order to decide whether the densimetric method 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 of Regulation No 817/70.

25 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 enrichment of wine.

26 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, 39a, which provides that 'Member States shall take all appropriate measures to ensure compliance with this regulation'.

27 It must be concluded from this that a national measure of control which is intended to detect cases of the enrichment of wine in violation of the

Community provisions comes within the field of application of Regulation No 816/70 and consequently within that of Regulation No 1539/71 on methods of analysis.

32 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.

33 It follows that this presumption would be rendered impracticable if the densimetric method were obligatory to the exclusion of the 100° method, but that on the other hand the latter may only be applied with caution.

34 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.

35 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.

36 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.

37 It must be added that, as was stated in the judgments of the Court of 30 September 1975 in Joined Cases 89/74 and 18 and 19/75 and in Joined Cases 10 to 14/75, in the case of wines coming from other Member States, such a presumption must be applied in such a way as to avoid any discrimination.

in answer to the question referred to it by the Cour d'Appel, Lyon, by judgment of 23 May 1975, hereby rules:

Regulation 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.

Lecourt Kutscher Donner

Mertens de Wilmars Pescatore Sørensen Mackenzie Stuart

Delivered in open court in Luxembourg on 9 December 1975.