C-42/82

composed of: J. Mertens de Wilmars, President, P. Pescatore, A. O'Keeffe and U. Everling (Presidents of Chambers), Lord Mackenzie Stuart, G. Bosco, T. Koopmans, O. Due and K. Bahlmann, Judges,

Advocate General : Sir Gordon Slynn Registrar: P. Heim

gives the following

COMMISSION v FRANCE

JUDGMENT

Facts and Issues The facts of the case, the course of (i) consignment to another Member the procedure and the conclusions, State or export: the name of the submissions and arguments of the parties Member State in whose territory may be summarized as follows: the grapes were harvested and made into wine, provided that both these operations took place I — S t a t e m e n t of t h e facts in the same Member State;

(b) a statement as to whether the wine is Article 3 of Council Regulation (EEC) red, rosé or white; No 359/79 of 5 February 1979 on direct cooperation between the bodies (c) in the case of: designated by Member States to verify

JUDGMENT OF 22. 3. 1983 — CASE 42/82

COMMISSION v FRANCE

statement of the office responsible and for information on the steps taken in the application of its stamp, a statement Italy with regard to the filtering of wine of the person delivering the document, involving the use of asbestos. of the consignor, of the consignee, of the transporter and the means of transport as well as a description of the transported The question whether the Italian auth- products including in particular their orities reacted to those communications description according to the relevant in an appropriate manner and within a provisions, their actual alcoholic reasonable time is the subject of dispute strength, their total alcoholic strength between the parties. density and wine-growing zone. Article 12 (2) of the regulation provides: (b) At the beginning of August 1981 "If products are found to be moving demonstrations took place in the wine- without an accompanying document or growing circles in the Midi in France to without the proper accompanying protest against the situation on the wine document, the competent agency of the market and in particular against the price Member State in which such finding is levels and the volume of imports of wine. made or any other authority responsible On that occasion Italian wine and the for verification shall take the measures ships which transported it were the necessary to regularize and if appropriate subject of acts of violence. penalize such irregular carriage operation."

3. The steps taken in August 1981 2. The background to the measures at issue (a) Towards the middle of August the (a) Between April 1980 and July 1981 Franch authorities began to refuse to the French authorities directed a number release for consumption substantial of communications to the Italian auth- quantities of imported wine originating orities with regard to certain irregu- in Italy on account of defects in the larities or infringements which they had VA 1 forms which accompanied them, in discovered in respect of transports of particular on account of the absence of Italian wine. any reference to "Italy" in those forms.

country of origin in those forms and let subject systematically all consignments of it be known that in his opinion, in wine in bulk imported from Italy to compliance with Article 46 of Regulation analysis. No 355/79, the wine in question could only be sent for distillation or for the (c) As a result of those various manufacture of vinegar and other measures considerable quantities of wine industrial uses by virtue of the originating in Italy were held up at Community rules. various French frontier posts. According By telex messages of 25 and 27 August to the information given by the French 1981 the Italian authorites gave details Government 1 000 hectolitres were concerning those VA 1 forms and released for consumption on 31 August, confirmed that the wine in question was 2 800 hectolitres on 11 September, produced in Italy. Thereupon, by telex 14 600 hectolitres on 17 September and message of 27 August 1981, the French 179 000 hectolitres in the period up to authorities requested them to send the 6 October; the remaining quantities of accompanying documents which had wine presented at the frontier since the followed the goods during their earlier middle of August were still held up there. transportation in Italy between the place of production and the warehouses from which they had been despatched to 4. The commencement of procedures France. relating to failure of a State to fulfil an obligation By letters dates 26 August and 2 and 11 September 1981 the French authorities In view of the aforementioned problems submitted to the Italian authorities the Commission commenced two sets of further requests for thorough inquiries proceedings under Article 169 of the on account of alleged defects in 91 772 Treaty. and 1 374 VA 1 forms accompanying a total quantity of 1 068 000 hectolitres of wine, and insisted on the necessity to (a) The proceedings for failure to fulfil produce in particular the documents an obligation in respect of the which had accompanied the wine during checking of the accompanying its transportation in Italy. documents

(b) The procedure relating to failure to By letter dated 24 September 1981 the fulfil an obligation in respect of the Permanent Representation of France to analyses the European Communities delivered a note to the Commission stating that the wine in question arrived in France under cover of incomplete VA 1 forms, that is to say they gave no indication of origin by use of the expression "Italian wine", In its letter dated 7 September 1981 the often failed to indicate the degree of Commission made its second allegation proof of the wine and contained defects of failure to fulfil an obligation under with regard to the accompanying the Treaty. It contended that the customs numbers and dates of despatch. The clearance operations in respect of Italian Italian authorities were therefore wine were subjected to considerable requested to provide all the necessary delays extending from one month, in information to enable the carriage respect of wines of 13° proof or more, to operations to be regularized. In many four months, in respect of wines of less cases the irregularities found were than 13° proof, which substantially however of a substantial nature involving exceeded the time needed for completing reasonable cause for suspicion within the the required substantive formalities by meaning of Article 3 of Council Regu- reason of the fact that the French auth- lation (EEC) No 359/79. orities systematically carried out qualitative analyses of all Italian wines before they were cleared through customs.

to irregularities discovered between 15 December 1981 at the latest. The two March and July 1981 in respect of wines governments also agreed that an originating in Italy. approach should be made to the Commission for the release to be accompanied by Community aids for storage contracts and that it was Following that letter, the Commission necessary to maintain close cooperation sent to the French Government on 12 to prevent differences arising in relation October 1981 a reasoned opinion in to wine such as that which occurred in which the Commission considered that the summer of 1981. neither the Community provisions cited by the French Government nor the discovery of a number of irregularities justified such a serious obstacle to the By a letter dated 26 October the free movement of goods as qualitative Commission requested the French analyses, on a systematic basis, of all Government to inform it whether the imported wines. Subjecting Italian table agreement in question contained matters wines to customs clearance operations of other than those referred to above. In its a far greater duration than the time letter of 10 December 1981 the needed for the completion of permissible Commission reminded the French substantive operations and making Government that it had received no clearance subject to a systematic analysis, answer to its question and requested that as a result of a decision designed to the whole text of the Franco-Italian ensure compliance with the measures of agreement in question be communicated self-restraint on the part of importers, to it. constituted a measure having equivalent effect to a quantitative restriction on imports, prohibited by Article 30 of the EEC Treaty, and a failure on the part of By a letter dated 5 January 1982 the the French Republic to fulfil its French Government replied that the obligations under Council Regulation particulars forwarded to the Commission No 337/79. on 16 October 1981 on the results of the Franco-Italian discussions of 13 October 1981 represented the whole content of the agreement. The release of the wine 5. The events occurring subsequent to the amounting to 1 068 000 hectolitres, the reasoned opinions detention of which had been suspended pending the answer from the Italian authorities regarding the incomplete VA 1 forms, had taken place in stages (a) By a note dated 16 October 1981 and the operation had been completed the French Government informed the on 15 December 1981. Commission that the facts on which the reasoned opinion of 2 October con- cerning the checking of accompanying documents had been based had changed. (b) On the other hand, in reply to the A Franco-Italian meeting which had reasoned opinion of 12 October 1981 taken place in Pisa on 13 October 1981 concerning the analyses, the French had resulted in an agreement whereby Government informed the Commission the wines which were then held up at the by letter of 20 October 1981 that it had frontier would be released in stages, an decided to subject imported wines only operation which was to be completed by to random checks the procedures for

which would not be discriminatory and the Commission regarding any agree- that it considered that in that way it ments relating to self-restraint since the could appreciably shorten the time Comité National du Commerce Commu- required for costoms clearance. nautaire des Vins et Spiritueux [the National Committee for Community Trade in Wines and Spirits] had not On 30 October 1981 the Commission informed the public authorities that the requested the French Government to agreements previously made had been inform it of the new checking procedures renewed. for the purpose of analysis and to give an assurance that customs clearance would henceforth take place without delay and (c) During the period following the would not be subject to measures aimed arrangement arrived at on 13 October at ensuring self-restraint on the part of 1981 until the end of 1981 imports of the importers. wine originating in Italy declared at the French frontier slowed down for reasons By a telex message dated 10 November which have not been established. Those 1981 the French Government replied that imports amounted, according to the the checks would henceforth be carried figures given by the French Government, out on a random basis, at the rate of to a total of 539 000 hectolitres in about one case in ten, which would, on November and December 1981 and, the whole, correspond to the percentage according to the Commission's figures, of checks normally carried out by the to 153 000 hectolitres between the customs authorities on importation and beginning of November and 17 this would be done in accordance with December, and to 259 000 hectolitres procedures which were being prepared between 18 and 31 December 1981. and which would apply to all operations as from the middle of December. Until then customs clearance operations in 6. Further difficulties arising at the respect of the wines which were held up beginning of 1982 would take place in conformity with a Franco-Italian agreement made on 13 October 1981. With regard to the self- During January 1982 the volume of restraint on the part of the importers the imports of wine originating in Italy French Government stated that it could increased yet again and reached more in no way be bound by agreements made than 700 000 hectolitres. in the framework of the wine-growing trade. During that month several incidents and violent demonstrations against the import- ation of Italian wines took place in the By letter dated 10 December 1981 the Midi region of France during which Commission requested the French lorries loaded with wine were pillaged by Government inter alia to inform it wine-growers upon entering France. whether measures of self-restraint were then being applied in the French trading circles concerned. At the end of January the French auth- orities once more intensified their checks of imports of wine originating in Italy. The Permanent Representation of France On the one hand they increased the to the European Communities replied by frequency of analyses carried out on a letter dated 5 January 1982 that the consignments of wine arriving at the French Government was not in a frontier to three consignments out of position to give precise information to four. On the other hand fresh requests

for verifications were addressed to the (a) Declare that the French Republic: Italian authorities on grounds of irregu- larities in the acompanying VA 1 forms. The result of those checks was a By subjecting customs clearance of considerable delay in the release for Italian table wines to a delay consumption of imported wines orig- considerably in excess of the time inating in Italy. necessary for the performance of the permissible material operations and by making clearance subject to a systematic It is apparent from the communications analysis; and telex messages sent by the French Government to the Commission that the French Government was concerned by the incidents in the wine sector and that By omitting to commence promptly the is desired an improvement in the way in procedure for regularizing the carriage which the market in question functioned. operations in respect of a number of A telex message dated 2 February 1982 consignments of Italian wine once the contained the following passage : accompanying documents had been presented for customs clearance at its frontier posts; "Great anxiety has arisen in wine- growing circles in the Midi as a result of the great increase in imports of wine By making the regularization of originating in Italy during January 1982 transport of Italian wines held up at at prices appreciably below the market frontier posts subject in numerous cases prices. Consequently the Government to the transmission by the Italian auth- has made the necessary arrangements orities of the documents and papers upon with effect from 30 January in order that which their certificates are based; more numerous qualitative analyses should be carried out by the competent administrative authorities prior to the wine's being put on the market. Contrary By delaying customs clearance even in to what has been said by certain organs cases which have been regularized; of the press imports have not been stopped but slowed down with a view to a return to a normal monthly rate." has failed to fulfil its obligations under the Community rules applicable to the wine sector and to Article 30 of the EEC Treaty; II — W r i t t e n procedure and conclusions (b) Order the French Republic to pay the costs. 1. By application received at the Court Registry on 4 February 1982 the Commission brought an action against the French Republic under Article 169 of 2. By application lodged at the Court the EEC Treaty. on 18 February 1982 the Italian Government asked for leave to intervene in support of the conclusions of the The Commission claims that the Court Commission. Leave to intervene was should: granted by order of 18 February 1982.

(c) The release to the market of 3. The French Republic contends that consignments of wine may not the Court should: be refused on grounds of irregu- larity of the accompanying Dismiss the application of the Com- documents unless the irregu- mission of the European Communities; larities are substantial. and (d) When substantial irregularities Order the Commission and the inter- are found by the French auth- vener to pay the costs. orities they must without delay inform the Italian authorities of 4. By a document lodged on 5 Feb- such irregularities and supply ruary 1982 the Commission submitted, them with the necessary docu- pursuant to Article 186 of the EEC ments. Where the accompanying Treaty and Article 83 of the Rules of document in respect of any Procedure, an application for the consignment has been regu- adoption of interim measures. larized by the Italian authorities that consignment must immediately be released to the On 4 March 1982 the Court, by way of market. an interlocutory decision, made the following order: 2. When the release to the market of " 1 . Pending the judgment in the main quantities of wine from Italy in action the French Republic is excess of 50 000 hectolitres is required to observe the limitations refused for more than 21 days on hereinafter specified regarding the grounds either of analyses or irregu- practices relating to the release to larities in accompanying documents the market in France of wines the French authorities must inform imported from Italy; the Commission of the reasons for such refusal. (a) Apart from special cases in 3. The costs are reserved." which specific evidence may justify a suspicion of fraud the frequency of analyses before the 5. The written procedure followed the release to the market of the normal course. consignments in question must not exceed fifteen per cent of the Upon hearing the views of the Advocate consignments presented at the General, the Court decided to open the frontier; oral procedure without any preparatory inquiry. However, the parties were (b) The duration of analyses made invited to answer certain questions in before the release to the market writing prior to the hearing.

With regard to those agreements the Commission submitted in an annex to its 1. The arguments submitted in support of application various circulars emanating the application from the National Committee for Community Trade in Wines and Spirits in which mention is made of commitments to self-restraint as regards quantity and quality decided upon by that committee in the previous six years in return for a formal assurance on the The Commission considers that the part of the public authorities that the events which occurred following the release for consumption of Italian wine delivery of the two reasoned opinions of less than 13 % degrees proof or of show that the French Government has wine imported by persons who were not not complied with them. The release in members of the Committee would not stages until 15 December 1981 provided take place until the expiry of a penalty for in the agreement of 13 October 1981 period of four months. According to made between the French and Italian those circulars contacts were made and authorities with regard to the customs consultations took place during the clearance of wine which had been summer of 1981 between the Committee presented at the frontier up to and and the French Minister for Agriculture including 15 August 1981 constitutes an in the course of which the Committee obstacle to trade within the meaning of proposed in particular to pursue the the reasoned opinion. The fulfilment practice of limiting the imports of Italian by a Member State of its Community wines in return for a guarantee to be obligations cannot depend on an given by the public authorities to adopt agreement concluded with another certain measures. In the proposals which Member State. The Commission did not it submitted to the Minister for Agri- take part in the negotiation of that culture the Committee considered it agreement. No Italian wine was exported reasonable to fix for the coming to France in November and December marketing year a level of imports of 1981. In addition the French Govern- Italian wines on the basis of about ment did notify the Commission of the 425 000 hectolitres per month. In a new procedures for supervision by means circular dated 20 October 1981 the of random checks which were to replace Committee informed its members of the the systematic checks, in any case, Minister's decision to release the wines continue to be carried out. Contrary to which had been held up between 19 the statements made by the French October and 13 December at the rate of Government a large quantity of Italian some 120 000 hectolitres per week and wine was held up at the French frontier of one eighth of the wines imported on 30 January 1981. The steps taken by weekly by each importer. In return the France to hold up or delay customs Committee decided to put a complete clearance were taken, inter alia, as a stop to loadings in Italy between complement to self-restraint agreements 25 October and 30 November or

2. The defence submitted by the French By virtue of Article 64 (1) of Regulation Government No 337/79 and Article 46 of Regulation No 355/79 the Member States must adopt all the measures needed to ensure compliance with the Community provisions and verification of such First the French Government recalls that compliance. The Member States are the Community regulations concerning required, pursuant to those rules, to wine contain strict rules with regard to check carefully and rigorously all the supervision of production potential, accompanying documents which are of oenological processes and practices presented to them and which must be in and of the presentation and description good order to warrant the presumption of products. In order to make such that the product complies with the supervision possible traders must keep provisions concerning wine, and to insist detailed records and preserve them for that the documents include all the pre- five years. Wines which do not comply scribed information such as mention of with those regulations may be marketed origin, the type of product, the alcoholic only for the purposes of distillation or strength and, where appropriate, manufacture into vinegar and only oenological processes, as well as, in a products which do comply with the clear and legible manner, the name and Community regulations and which are stamp of the competent authority which sound, genuine and of merchantable issued the documents. It may also be quality may be in circulation in the noted that Article 3 (2) of Regulation Community and be offered or disposed N o 1153/75 states that the documents of for direct human consumption in are to be completed in typescript or by conformity with Article 51 (1) of Regu- hand, legibly, in ink and using block lation No 337/79 and Article 46 (1) of capitals. Regulation No 355/79, and, by virtue of Article 53 (1) of Regulation No 337/79, only if accompanied by a document which has been officially checked and which enables the product and the trans- In the event of non-compliance with portation to be identified. these requirements, restrictions on free movement may ensue from the very implementation of the provisions relating to compliance with the Community rules and to verifications. The French auth- The formalism on which the common orities were faced with an accumulation organization of the market is based and of facts giving rise to suspicion and with which extends throughout the economic cases where the Community regulations

had not been complied with by the supplied answers only in respect of Italian authorities. That situation forced 308 000 hectolitres, without however them to react vigorously. giving any answer in regard to the authority, whose identity was unknown, which issued the documents in question. In that connection the French Government refers to the cases of irregu- larities notified to the Italian authorities The Community regulations do not referred to above. In all those cases the define what kind of irregularity in an Italian authorities either did not react or accompanying document must be did not reply to the French authorities in regarded as substantial.

The larization procedure in respect of the Commission itself, in a telex message wines which were presented or in which it sent to the French Government completing that procedure. What is on 25 August 1981, stated that where the more, the Italian authorities did not accompanying document failed to facilitate their task. Thus in relation to mention the origin of the wine the more than one million hectolitres of wine competent Italian authorities must prove in respect of which the accompanying that the wine was of Italian origin.

COMMISSION v FRANCE

The question of the wine analyses must The Italian Government considers that also be examined in the context of the the arguments put forward by the discovery of serious irregularities and of defendant are intended to justify a

JUDGMENT OF 22. 3. 1983 — CASE 42/82

August 1981. Almost all of that wine was Italian authorities responsible for checks gradually released as from the middle of either do not function at all or function October 1981 by virtue of a political badly. decision, which would be scarcely credible if there was a real risk to the health of consumers. Similarly, the French authorities felt able in the autumn of 1981 to resume checks by means of analyses in respect of no more than 10% As regards the irregularities in the VA 1 of the consignments. In addition no forms, they were used as a pretext for doubt or suspicion was raised in respect the complete blocking of imports in of imports made between November August 1981.

Those documents contain the irregularities complained of, such as a failure to indicate the country of origin in box 11, an illegible stamp of the issuing authority or omissions concerning the carrier, the alcoholic Furthermore, the Italian Government strength and other matters. Both the challenges the contention that there was French and the Italian authorities always a lack of cooperation on the part of the gave customs clearance without any Italian authorities. It produces the replies difficulty to consignments accompanied given by those authorities to the by such documents until August 1981. questions and communications concern- ing the cases of irregularity which the French authorities had addressed to them and stresses that some of the cases relied on by the French Government were never notified to the Italian authorities. As regards the illegible stamps account It states that the practices complained of must also be taken of the fact that such are all forbidden in Italy. The Italian stamps, in particular those applied bodies responsible for carrying out without liquid, often cannot be checks receive reminders and confir- reproduced on copies even if they were mations of those prohibitions. Without on the original document and thereby claiming to rule out the possibility that authenticated it. Furthermore, there is no cases of fraud and adulteration may requirement in the wording of the VA 1

Moreover, after the agreement made at Pisa on 13 October 1981 the French 4. The Commission's reply authorities no longer regarded the alleged documentary irregularities as actually constituting irregularities. The Commission considers that the holding up of wine at the frontier cannot The Italian authorities made every effort be justified simply on the ground that to satisfy all the requests for there were doubts about the operations investigation made by the French auth- in question. orities despite the fallacious nature of those requests and despite the failure to An alleged failure to act on the part of indicate any doubt or suspicion in the Italian authorities can in no way be relation to specific consignments. considered in the present proceedings Nevertheless it was clear that the number and cannot justify the alleged failure by of requests relating to approximately France to fulfil its obligations. Besides, 2 240 documents and the complexity of with regard to the elimination of frauds the investigations requested were bound it is perfectly possible to have recourse to to cause delays. Yet by the end of individual procedures. September 1981 requests relating to approximately 700 VA 1 forms and covering approximately 300 000 hecto- As regards the checking of the litres of wine had been examined. accompanying documents which only Similarly, the Italian authorities replied takes a few minutes the Commission to the requests by the French authorities does not dispute that such checks may be in relation to the alleged documentary systematic but it does make the following irregularities after the renewed blocking criticisms : of imports in January. The French auth- orities cannot therefore complain of a lack of cooperation on the part of the The French authorities failed to Italian authorities. commence the procedure for regu- larizing the carriage of consignments of wine quickly once the accompanying In addition the defendant may not cite document had been presented. The the checks to which it subjects national accompanying documents returned to

IV — R e p l i e s to the q u e s t i o n s put to the parties The release of the wine in stages as a result of the agreement made at Pisa on 13 October 1981, when the wine should have been released immediately, 1. Invited to submit to the Court, by amounted to a continuance of the failure way of example, the originals, if possible, to fulfil the Treaty obligations. of allegedly irregular VA 1 documents Moreover, the Commission points out and of all the accompanying documents that the gradual release to the market, as referred to in the telex messages sent by from 19 October 1981, of the wines the French authorities on 14 August which had been held up was linked to 1981, the French Government replied that self-restraint in respect of imports during the originals of the documents referred the period in which the Pisa agreement to were at that time in the hands of was in force. private traders and that it was not possible to collect them within the period specified. Copies of all VA 1 forms for the period in question were held by the As regards the self-restraint agreements Commission. the question is not whether the Government was bound by the agreements but whether there was a link between those agreements and the The French Government did, however, measures taken by the French auth- send copies of a few of the documents at

COMMISSION v FRANCE

issue together with the telex messages of the request for verification made on the French authorities referring to those 2 September 1981 referred. documents.

JUDGMENT OF 22. 3. 1983 — CASE 42/82

authorities made approaches to the 4. In response to a request to indicate Commission with a view to having the how much wine of Italian origin matter brought before the Court of imported in bulk was released for Justice and made repeated protests to the consumption in France per month during Council. Only in October 1981 did an the years 1979 to 1982, the French understanding between the two Government submits the following governments concerned become possible. figures (in hectolitres):

1979 1980 1981 1982

January 673 516 486 073 699 999 875 507 February 547 784 385 735 838 281 428 645 March 767 589 452 699 809 733 717 440 April 760 785 353 295 574 855 655 781 May 883 713 386 743 627 886 530 220 June 625 204 473 555 811948 662 987 July 712 024 549 105 708 977 651194 August 645 816 439 199 425 433 September 659 496 566 207 466 564 October 437 323 564 119 424 058 November 334 219 430 917 136 771 December 173 267 621 290 392 304

V — Oral procedure French Government, represented by its Agent, Noël Museux, presented oral At the sitting on 8 December 1982 the argument. Commission, represented by its Legal Adviser, Jean Clause Séché, the Italian The Advocate General delivered his Government represented by Ivo M. opinion at the sitting on 26 January Braguglia, Avvocato dello Stato, and the 1983.

Decision

2 It is the contention of the Commission, supported by the Italian Government as intervener, that because of those practices considerable delays occurred in releasing for consumption the table wine originating in Italy and imported in bulk into France as from August 1981 and again as from January 1982 and that substantial quantities of Italian table wine, at times in excess of one million hectolitres, were held up for several weeks and even for several months at various frontier posts in France. The practices in question are said to have been adopted by the French authorities in order to impede the imports in bulk of table wine originating in Italy and to reduce the volume of such imports which was considered to be too high in relation to the needs of the market. The measures in question were therefore equivalent to quantitative restrictions on imports prohibited by Article 30 of the EEC Treaty.

3 The French Government disagrees that the practices in dispute were intended to reduce the volume of imports and contends that their purpose was to ensure compliance with the Community rules in the wine sector and to

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protect consumers and the health and life of humans from fraudulent operations and prohibited and unhygienic practices.

1. T h e b a c k g r o u n d to and development of the practices in dispute

4 Before examining the practices in dispute in greater detail it is necessary to recall the circumstances which surrounded their adoption.

COMMISSION v FRANCE

9 From the middle of August 1981 the French authorities intensified the measures they took to check the imports of Italian table wines. On the one hand, they refused to accept a large number of the accompanying documents which related to the transportation of the wines in question and, on the other hand, they systematically subjected the wine to health and oenological checks by means of analysis before releasing the consignments in question for consumption. The consequence of those practices was that considerable quantities of table wines were held up at the frontier.

10 In view of those practices the Commission commenced two sets of proceedings for failure by a State to fulfil its obligations under the EEC Treaty, in the course of which it sent two reasoned opinions to the French Government.

n In the first reasoned opinion of 2 October 1981 the Commission claimed that the French Republic had failed to fulfil its obligations under the Community rules applicable to the wine sector and under Article 30 of the Treaty by having failed to initiate speedily the process of regularizing carriage operations relating to a certain number of consignments by subjecting, in many cases, regularization to the transmission by the Italian authorities of the documents and other evidence on which they based their certificates, and by delaying customs clearance even in those cases where the operations had been regularized.

i2 In the second reasoned opinion of 9 October 1981 the Commission claimed that subjecting Italian table wines to customs clearance operations of a far greater duration than the time needed for the completion of permissible material operations and making release to the market subject to a systematic analysis constituted a measure having an effect equivalent to a quantitative restriction on imports, prohibited by Article 30 of the EEC Treaty, and a failure by the French Republic to fulfil its obligations under Council Regu- lation No 337/79.

i6 At the beginning of February the French authorities once more intensified their checks of imported table wine of Italian origin, refusing to accept accompanying documents on the ground of irregularities and carrying out analyses on three consignments out of four. A telex message on the subject of those intensified checks sent by the French Government to the Commission on 2 February 1982 contained, inter alia, the following passage: "Great anxiety has arisen in wine-growing circles in the Midi as a result of the great increase in imports of wine originating in Italy during January 1982 at prices appreciably below the market price. Consequently the Government has made the necessary arrangements with effect from 30 January in order that more numerous qualitative analyses should be carried out by the competent administrative authorities prior to the wine's being put on the market. Contrary to what has been said by certain organs of the press imports have not been stopped but slowed down with a view to a return to a normal monthly rate". Considerable quantities of table wine of Italian origin were once again held up at the frontier as a result of those intensified control measures.

i7 On 4 March 1982 the Court, by way of an interlocutory decision on an application made by the Commission, ordered as follows:

COMMISSION v FRANCE

is After that order no particular difficulties were experienced in relation to the importation of Italian wine into France.

2. T h e s u b j e c t - m a t t e r of the p r o c e e d i n g s r e l a t i n g t o a f a i l u r e of S t a t e t o fulfil an o b l i g a t i o n

i9 By the four complaints formulated in its application, the Commission essentially seeks to obtain a finding that the French authorities limited the quantities of table wine of Italian origin imported in bulk by delaying the release on to the market of such consignments by the two sets of practices

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which were the subject of the reasoned opinions of 2 and 9 October 1981, that is to say the rejection of the accompanying documents covering the carriage of Italian wine, on the one hand, and the subjection of the imported wines to inspection in the form of systematic analyses on the other hand.

20 It must be observed that part of the delays complained of, that is to say the gradual and decelerating release of the quantities held up at the frontier as a result of the arrangement arrived at by the French and Italian Governments on 13 October 1981, the resumption of the contested practices at the beginning of February and the continuation of them until March 1982, took place after the reasoned opinions were given. Nevertheless it is common ground that these are practices which had already been condemned in the reasoned opinions and which were continued subsequently or are practices which occurred after the opinions had been given but were of the same kind as those to which the opinions referred and constituted the same conduct.

25 It follows from those rules that the French authorities were entitled to check that all carriage in bulk of wine of Italian origin presented at the frontier was in fact accompanied by a VA 1 form which had been properly completed and issued by the competent Italian authorities.

26 Nevertheless the provisions cited above must be interpreted in the light of the second recital in the preamble to Regulation No 1153/75 according to which the obligation to have an accompanying document should not amount to an impediment to trade or to the marketing of products in the wine sector. It follows from that recital that only errors or irregularities in a document which are of a substantial nature and which are consequently capable of rendering it useless for the fulfilment of its function, as an official document, of providing essential information about the nature of the product, may justify objections to a document and, consequently, obstacles to imports.

27 It is clear from the file that the irregularities relied upon by the French auth- orities varied in nature and importance from case to case. Thus, in contravention of Regulation N o 1153/75, in certain cases the documents do not seem to have been completed in typescript or in block capitals, although they were legible, or to have been completed fully, although containing indirectly all the required information. Such irregularities cannot, however, be regarded as substantial and cannot justify objections to a document.

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28 In other cases, however, as was admitted by the Commission and the Italian Government at the hearing, the lack of the required information in a number of VA 1 forms was such as to render the documents useless for the fulfilment of their function as described above. Thus in certain cases the document failed to state the alcoholic strength or to indicate the Italian authority which had issued it, in others that statement was illegible and in yet others the document did not give any information, even indirectly, enabling the country of origin to be identified. Such irregularities must be regarded as substantial and justify objections to a document.

COMMISSION v FRANCE

"reasonable cause for suspecting" that the product does not conform to the wine provisions.

32 A reasonable cause for suspicion, in the sense of Article 3, cited above, which justifies the making of a request for detailed investigations and for the forwarding of documentary evidence, must be based on concrete evidence relating to a specific carriage operation. Contrary to the argument put forward by the French Government, there are no grounds for entertaining a general suspicion with regard to all imports of Italian wine on the basis of a few irregularities or breaches which had been found in particular cases in the past. In no case may mere formal errors in the accompanying documents justify a reasonable cause for suspicion. In the absence of a reasonable cause for suspicion in a specific case the French authorities were therefore entitled to require nothing more than simple checks and confirmations on the part of the Italian authorities for the purpose of regularizing the carriage operation in question.

33 It is clear from various communications by which the French Government addressed requests to the Italian authorities in relation to irregular VA 1 forms, that the purpose of those requests was systematically to obtain, without alleging any reasonable cause for suspicion, detailed investigations and in particular to obtain the accompanying documents covering the goods during their preliminary carriage in Italy between the place of production and the warehouses from which they were sent to France, since the French authorities refused to recognize as adequate simple confirmation by telex from the Italian authorities, after verification, that the VA 1 documents were in order.

37 Moreover, the procedure laid d o w n in Article 8 of, Regulation N o 3 5 9 / 7 9 , cited above, according to which representatives of the Member States are to meet at regular intervals within the M a n a g e m e n t Committee for Wine in order t o discuss the problems raised by the application of the regulation and any other problem relating to the uniform supervision of C o m m u n i t y provisions in the wine sector, should have been used in the present case. T h a t procedure is intended to avoid the difficulties which m a y arise from unilateral measures or the absence of uniformity in the application of the C o m m u n i t y rules and to avoid the obstacles to the free movement of goods resulting therefrom.

38 It follows that, by suddenly altering the established practice, the French authorities committed a breach of an obligation imposed on them by C o m m u n i t y law.

39 T h e Commission and the Italian Government also claimed that the requests sent by the French authorities to the Italian authorities with regard to irregu-

COMMISSION v FRANCE

krities in VA 1 forms related in part to operations which had taken place several months or several weeks previously.

40 When an irregularity in accompanying documents is found Article 12 (2) of Regulation No 1153/75 imposes an obligation on the national authorities in question to adopt without delay the measures needed to regularize any irregular carriage operation so as to avoid unjustified delays in the release of the wine in question for consumption.

rules concerning wine. They also constitute an infringement of Article 30 of the EEC Treaty which prohibits quantitative restrictions on imports and all measures having equivalent effect.

4. O e n o l o g i c a l c h e c k s by m e a n s of s y s t e m a t i c a n a l y s e s

46 In the second place it is necessary to examine the delays in the release for consumption caused by the practice of the French authorities of systematically subjecting consignments of Italian wine to analyses prior to such release.

47 According to the Commission and Italian Government the French authorities carried out systematic analyses prior to release for consumption in order to delay the release and to limit the volume of imports. They contend that in any event it is not necessary to hold up considerable quantities of wine at the frontiers for the purpose of oenological checks and that the duration of the analyses, which covered several weeks, exceeded by far the acceptable period of a few days.

48 The French Government maintains that the purpose of the analyses was to ensure compliance with the Community regulations on wine, to protect consumers and the health and life of humans. The delay caused by that process was inherent in the nature of such analyses.

49 It is an established fact that the French authorities systematically subjected table wine imported in bulk from Italy t o analyses and did so, during the first period in question, in the case of all consignments of Italian wine and, after the beginning of February 1982, in the case of three consignments o u t of four, that they m a d e the release for consumption of those consignments d e p e n d e n t on the results of the analyses and that those results w e r e n o t k n o w n for several weeks because of the delays involved in the p r o c e d u r e which was employed.

54 Nevertheless the measures of verification carried out must be necessary for attainment of the desired objectives and must not create obstacles to trade which are disproportionate to those objectives.

JUDGMENT OF 22. 3. 1983 — CASE 42/82

55 As regards the question of the permissible frequency of the analyses, it must be remarked that it was the subject of great fluctuation during the period in question. Whereas in August 1981 all consignments of wine were subject to analyses, after the arrangements upon which agreement was reached in Pisa in October 1981 random checks in 10% of cases was considered sufficient. At the end of January 1982 that frequency was increased once more to a check of three consignments out of four. The French Government was unable to provide any justification for those variations which therefore do not seem to bear any relation to the overriding requirements resulting from the aforementioned objectives. The analyses were carried out in the absence of any concrete facts which might justify a suspicion of fraud or irregularities in a given case.

56 The frequency of the analyses was distinctly higher than the occasional checks carried out on the transportation of French wine within France. It is an established fact that checks are also carried out by the Italian authorities in order to ensure that wine produced in Italy complies with the Community rules and that consumers and the health and life of humans are protected. The French authorities were under a duty to take into account the existence of those checks carried out in the country of origin of the wine. Adulteration or irregularities discovered in particular cases prior to the period in question can by no means justify a general suspicion in relation to all imports of Italian wine or the carrying out of systematic analyses when no similar practice exists in relation to French wine.

6i In the case of random analyses of consignments of imported wine the detention of the consignment in question at the frontier until the results of the analysis are known constitutes a disproportionate and discriminatory obstacle to imports where such analyses involve substantial periods of time in excess of a few days and in view of the possibility of relocating and identifying a consignment of wine. The situation would be different only if the analyses were carried out in an individual case on the basis of a reasonable suspicion of fraud or irregularity regarding the product concerned. The French Government has not pleaded any actual cases where there was such a suspicion.

62 Furthermore, it must be r e m a r k e d that it is clear from the aforementioned telex message of 2 F e b r u a r y 1982 and from all the circumstances t h a t the making of analyses was intended to delay the release to the m a r k e t of the consignments in question and thereby to limit the quantity of imports of wine of Italian origin.

63 It follows that, both by reason of the frequency of the analyses and by reason of the fact that the consignments checked in that manner were

JUDGMENT OF 22. 3. 1983 — CASE 42/82

detained at the frontier in all cases, the practice of the French authorities with regard to checks by means of systematic analyses was contrary to the requirements of Articles 30 and 36 of the EEC Treaty.

64 It follows from the foregoing that it is necessary to declare that by delaying the release for consumption of table wines imported in bulk from Italy by means of the verification and regularization of accompanying VA 1 documents and of systematic checks by means of analyses, and by thereby restricting imports of such table wines between August 1981 and March 1982, the French Republic failed to fulfil its obligations under Article 30 of the EEC Treaty and under the Community regulations of wine.

COMMISSION v FRANCE

2. Order the defendant to pay the costs, including those of the party intervening and those arising from the application for the adoption of interim measures.

Mertens de Wilmars Pescatore O'Keeffe Everling

M a c k e n z i e Stuart Bosco Koopmans Due Bahlmann

Delivered in open court in L u x e m b o u r g on 22 M a r c h 1983.

P. Heim J. M e r t e n s de Wilmars Registrar President