C-7/79

In Case 7/79

REFERENCE to the Court under Article 177 of the EEC Treaty by the French Conseil d'État for a preliminary ruling in the proceedings pending before that court between

GALLET

and

MINISTER FOR AGRICULTURE

on the interpretation of the provisions of Point 3 of the Annex to Regulation (EEC) No 1539/71 of the Commission of 19 July 1971 determining 1 — Language of the Case: F rench.

JUDGMENT

Facts and Issues

The facts of the case, the procedure and that the analytical test shall relate to the observations submitted in pursuance certain factors amongst which is to be of Article 20 of the Statute of the Court found "the dry extract measured by of Justice of the European Communities densimetry and at 100°". may be summarized as follows:

In support of his claim Mr Gallet maintains that the latter provision I — Facts and procedure infringes those of Regulation No 1539/71 of the Commission of 19 July Mr Gallet, residing at Château Plaisance, 1971 determining Community methods Capian en Gironde, applied to the for the analysis of wines (Official French Conseil d'État for annulment of Journal, English Special Edition 1971 the order relating to analytical and (II), p. 552), inasmuch as Point 3 of the organoleptic tests for wines bearing a Annex to the Community regulation in registered designation of origin (Journal question provides that "the total dry Officiel de la République Française of 22 extract shall be measured by a November 1974, p. 11712) and in densimeter and calculated indirectly particular of Article 3 thereof inasmuch from the specific gravity of the residue as it lays down a minimum requirement without alcohol".

GALLET v MINISTER FOR AGRICULTURE

In accordance with Article 20 of the November 1974 was adopted it appeared desirable to the French administration to Protocol on the Statute of the Court of permit testing of the total dry extract not Justice of the European Economic only by the densimetric method which is Community, written observations were expressly referred to in the Annex to lodged by the French Government, Regulation No 1539/71, but also by represented for that purpose by M. Dandelot, an official of the Interde­ evaporation according to the so-called 100° process. It continues that these two partmental Committee for Matters of methods of determination of the pro­ European Economic Co-operation, and portion of alcohol by weight to dry by the Commission of the European extract serve different purposes. The Communities, represented for that analytical and organoleptic test necessary purpose by its Legal Adviser, J. C. Séché, for the grant of a designation of origin is acting as Agent, assisted by G. Berardis, conducted, under Decree No 74-871, a member of the Commission's Legal according to the densimetric method Department. within the framework of Community legislation on quality wines produced in On hearing the report of the Judge-Rap­ specified regions ("quality wines psr") porteur and the views of the Advocate (Article 11 of Regulation No 817/70). On the other hand the detection of fraud General the Court decided to open the oral procedure without any preparatory in the context of the presumption in law inquiry. of over-chaptalization (Article 8 of the Code du Vin [wine code]) is carried out according to the "100°" method, which has been traditional in France since 1907 (Order of 18 January 1907, amended on 22 April 1908). Until quite recently it had not been possible to replace that II — Written observations method as the reference tables did not show any concordance with those worked out by use of the densimetric 1. The French Government points out method and it had not been possible to that the action which is at the origin of calculate any satisfactory correlation co­ the question referred to the Court for a efficient to convert the dry extract at preliminary ruling concerns the French 100° into the total dry extract rules relating to analytical and (densimetry).

On the basis of the case-law of the by reason of the absence until recently of Court, in particular the judgment of 9 a method alternative to the 100° method, December 1975 in Case 64/75, Procureur used for the purposes of the presumption General de Lyon v Mommessin [1975] in law of over-chaptalization, that ECR 1599 et seq.) the French presumption would have been rendered Government takes the view that the impracticable if, at the time in question, methods of analysis prescribed by Regu the densimetric method had been lation No 1539/71 have as their purpose compulsory to the exclusion of the 100° only the determination of the value of process. the factors which must be present in a wine before it can receive the designation "quality wine psr"; the Member States Finally the French Government states therefore have the opportunity to apply that Article 1 (4) of Commission Regu lation (EEC) No 2984/78 of 17

The French authorities have used this 100° for the common organization of the market in wine (Official Journal, English method since 18 January 1907. It will Special Edition 1970 (I), p. 234) (as only be on 31 August 1979, in amended), requires the Member States to accordance with the provisions of the take "all appropriate measures" to above-mentioned Regulation No ensure that the provisions relating to 2984/78, that the provisions of the enrichment, acidification and de- ministerial order providing for the acidification of wines are observed. determination of the dry extract at 100° Article 8 of the French Code du Vin will entirely lapse. conforms to that provision by instituting a presumption in law of over- 2. The Commission recalls first of all alcoholization (over-chaptalization); that that the Court has already had to article is not incompatible with the pronounce on the compatibility of the Community rules inasmuch as it 100° method for the determination of institutes only a measure of control the dry extract with Community law; it which comes within national powers in refers to the operative parts of the the absence of Community rules and lays judgments given on. 30 September 1975 down only a rebuttable presumption in in Joined Cases 89/74, 18 and 19/75, law which cannot be considered as

GALLET v MINISTER FOR AGRICULTURE

"A Member State may, in the present The Commission continues that, in the state of Community law, apply as a above-mentioned judgments, the Court national measure of control for the accepted the use of the 100° method purpose of checking whether the issue of only "until more appropriate methods a certificate of consent in respect of

JUDGMENT OF 4. 7. 1979 — CASE 7/79

wines bearing a registered designation of designation of origin. In his opinion, origin is justified, a presumption in law under Article 11 of Regulation No of over-alcoholization which is based on 817/70, which was in force when the the proportion of alcohol to dry matter main action was commenced and on the determined by the 100° method, basis of which Regulation No 1539/71 provided that that presumption is capable was adopted, only the densimetric of being rebutted". method could be used for determining the dry extract. The order of the Minister for Agriculture of 20 November 1974 provided in Article 3 that the dry extract should be determined by "densimetry and at 100°" — an expression which he regarded as III — Oral procedure ambiguous as it did not make it possible to determine with certainty whether the two methods were alternative or cumu­ lative. Consequently he concluded that At the hearing on 7 June 1979, the the said Article 3 was incompatible with appellant in the main action, represented the afore-mentioned Community for the purposes of the oral procedure by Mr Rozier, of the Bordeaux Bar, and the provisions. He then criticized the Commission, represented for the reliability of the 100° method, which he stated was out of date and had been purposes of the oral procedure by its condemned since 1963 by all inter­ Legal Adviser, Mr Séché, acting as national wine experts. Agent, presented oral argument.

GALLET v MINISTER FOR AGRICULTURE

purpose of the issue of certificates of The Commission further developed the consent, the 100° method in addition to arguments put forward in its written the densimetric method unless the observations. purpose of the analysis was determined and unless the findings were capable of The Advocate General delivered his being rebutted. opinion at the hearing on 26 June 1979.

Decision

1 By judgment of 22 December 1978, which reached the Court on 17 January 1979, the French Conseil d'Etat, in pursuance of Article 177 of the EEC Treaty, inquired whether the provisions annexed to Regulation No 1539/71 of the Commission of 19 July 1971 determining Community methods for the analysis of wines (Official Journal, English Special Edition 1971 (II), p. 552) must be understood as authorizing the measurement of the dry extract "by densimetry and at 100°".

2 This question arose in an action brought in 1975 by a French vine grower for the annulment of an order of the Minister for Agriculture dated 20 November 1974 relating to analytical and organoleptic tests for wines bearing a registered designation of origin. Article 3 of that order provides that the tests are required to relate at least to certain factors amongst which is to be found "dry extract determined by densimetry and at 100°".

3 Regulation No 1539/71, for its part, provides in Point 3 of the annex that "the total dry extract shall be measures by a densimeter and calculated indirectly from the specific gravity of the residue without alcohol". According to Article 1 of the regulation, the methods of analysis set out in the annex are prescribed for the application of two Council regulations of 28 April 1970, No 816/70 laying down additional provisions for the common organization of the market in wine and No 817/70 laying down special

7 As a reason for that interpretation of the provisions in question the Court referred on the one hand to the fact that Community rules require the Member States to take all appropriate measures to ensure compliance with the provisions relating to oenological practices, including the enrichment of wine, and on the other hand that the presumption in law of over- alcoholization based on the proportion of alcohol to the reduced dry extract presupposes recourse only to the 100° method to extract the dry substances from the wine. From this point of view the Court noted that no coefficients

GALLET v MINISTER FOR AGRICULTURE

existed which would enable the values of the reduced dry extract obtained by other methods, in particular the densimetric method, to be transposed into those resulting from the 100° method. In this respect the Court relied on scientific and trade experience and knowledge at the time, and gave judgment in the sense indicated, "until more appropriate methods have been worked out" (paragraph 36 of the afore-mentioned judgment of 9 December 1975 in Case 64/75).

8 In contrast to the previous cases, this case is concerned with a method of control laid down by French rules for the issue of a certificate of consent to wines bearing a registered designation of origin. However, in this case too, the 100° method used in the context of a national measure of control may be recognized as compatible with Community law.

9 In fact it appears impossible, in the context of an analysis intended to check whether the issue of a certificate of registered designation of origin is justified, to disregard the control relating to the presumption of over- alcoholization. Community rules determine the conditions in which the natural alcoholic strength by volume of "quality wines produced in specified regions" ("quality wines psr") may be increased. It follows that a "quality wine psr" cannot receive such a designation if it has been unlawfully enriched. The test for over-alcoholization is thus inseparable from the analytical examination. The use of the 100° method is therefore compatible with Community law even if used in the context of the rules on designations of origin.

Costs

12 The costs incurred by the Government of the French Republic and by the Commission of the European Communities, which have submitted obser­ vations to the Court, are not recoverable; 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, the decision as to costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the question submitted to it by the French Conseil d'État by judgment of 22 December 1978, hereby rules as follows:

A Member State may in the present state of Community law apply as a national measure of control, for the purpose of checking whether the issue of a certificate of consent in respect of wines bearing a registered designation of origin is justified, a presumption in law of over-

Registrar President

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 26 JUNE 1979 <apnote>1</apnote>

Mr. President special provisions relating to quality Members of the Court, wines produced in specified regions (Official Journal, English Special Edition 1970 (I), p. 252) provides that producers Article 39a of Regulation (EEC) No are obliged to submit wines which are 816/70 of 28 April 1970 laying down likely to be designated "quality wine additional provisions for the common psr" to an analytical test and to an organization of the market in wine organoleptic test. For this purpose Article (Official Journal, English Special Edition 1 of Regulation (EEC) No 1539/71 of 1970 (I), p. 234), which was created by the Commission of 19 July 1971 Regulation (EEC) No 2680/72 of 12 determining Community methods for the December 1972 (Official Journal, analysis of wines (Official Journal, English Special Edition 1972 (9 to 28 English Special Edition 1971 (II), p. 552) December), p. 30), provides that provided that the methods of analysis for Member States must take all appropriate the application of Regulations (EEC) Nos 816/70 and 817/70 are those set out measures to ensure compliance with that regulation and must designate one or in the annex to that regulation. Points 3 more bodies which are instructed to of that annex provides as follows: verify compliance with that regulation. Article 11 of Regulation (EEC) No "The total dry extract shall be measured 817/70 of 28 April 1970 laying down by a densimeter and calculated indirectly

1 — Translated from the German.