C-80/82

J U D G M E N T O F T H E C O U R T (THIRD CHAMBER) 5 M A Y 1983 '

Administration des Impôts v Guy Soler (reference for a preliminary ruling from the Cour de cassation, Paris)

( N e w wine still in fermentation — Definition)

Case 80/82

Agriculture — Common organization of markets — Wine — Wine separated from its lees — Concept (Regulation (EEC) No 816/70 of the Council, Annex 11 paragraph 8, replaced by Regulation (EEC) No 337/79, Annex II, paragraph 9)

A wine containing a percentage of lees Regulation N o 816/70 on the common which is much smaller than the average organization of the market in wine. It is percentage of lees obtained when the for the national court to assess the wine is first racked may be regarded as percentage in question by reference to separated from its lees within the the traditional methods of production of meaning of paragraph 8 of Annex II to the wine concerned.

on the interpretation of the term "new wine still in fermentation" in Annex II to Regulation (EEC) N o 816/70 of the Council of 28 April 1970 laying down additional provisions for the common organization of the market in wine (Official Journal, English Special Edition 1970 (I), p. 234),

T H E C O U R T (Third Chamber)

composed of: U. Everling, President of Chamber, Lord Mackenzie Stuart and Y. Galmot, Judges,

Advocate General: P. Ver Loren van Themaat Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

No 337/79) "new wine still in fermen- whether the national court is empowered tation" is not among those of the to regard as separated from its lees a products falling within heading 22.05 of wine which contains a percentage of lees the Common Customs Tariff which may of between 0.35% and 0.40% on the be offered or disposed of for direct ground that according to expert evidence human consumption within the Com- such a percentage is negligible." munity. By judgment of 4 January 1982 it stayed the proceedings and asked the Court of 3. As a result an order was made for Justice to give a preliminary ruling on the taking of expert evidence. That the above question. evidence was to the effect that the wine "had been separated from its lees since the percentage discovered was quite 5. The judgment making the reference normal . ..". On the basis of that opinion was received at the Court Registry on the Tribunal Correctionnel [Criminal 1 March 1982. Court] acquitted the accused and gave judgment against the civil parties, namely In accordance with Article 20 of the the Fédération Nationale des Pro- Protocol on the Statute of the Court of ducteurs de Vins de Table [National Justice of the EEC written observations Federation of Table Wine Producers] were lodged by the accused in the main and, in respect of the tax offences, the proceedings, Mr Soler, represented by Administration des Impôts. Jean Imbach of the Strasbourg Bar, the French Government, represented by Upon appeal by the civil parties to the Jean-Claude Prevel, Secretary General to Cour d'Appel [Court of Appeal] the Inter-Ministerial Committee for Montpellier, that judgment was con- Questions of European Economic firmed on the ground that according to Cooperation and by the Commission of the experts the percentage of lees, which the European Communities, represented was between 0.35% and 0.40%, was by Jean-Claude Séché, Legal Adviser. negligible and therefore the wine in question could be regarded as having Upon hearing the report of the Judge- been separated from its lees. Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any 4. The French Cour de Cassation, to preparatory inquiry. which appeal was made against that judgment, found: By order of 2 February 1983 made pursuant to Article 95 (1) and (2) of the "Whereas in paragraph 8 of Annex II to Rules of Procedure the Court referred Regulation (EEC) No 816/70 of the the case to the Third Chamber. Council and paragraph 9 of Annex II to Council Regulation (EEC) No 337/79, wine 'in which alcoholic fermentation is not yet complete and which is not yet II — W r i t t e n o b s e r v a t i o n s sub- separated from its lees' is defined as m i t t e d to the C o u r t "new wine still in fermentation"; Whereas in the light of those provisions, A — Mr Sole?; the accused in the main it is necessary, pursuant to Article 177 of proceedings, observes that any table wine the EEC Treaty, to request the Court of fit for consumption may start to ferment Justice of the European Communities for afresh and this causes a deposit of fine a preliminary ruling on the question lees to settle at the bottom of the vats.

He says that the lees are separated from It is not for the Community court to rule the wine by racking, an operation which on the significance of a percentage of leaves the lees at the bottom of the fine lees which, moreover, the expert has container. The interpretation of the deduced to be negligible, and the administration on the contrary amounts percentage of lees may be taken into to saying that, if unforeseen re-fermen- account only in relation to ascertaining tation, however negligible, takes place whether the wine has been separated after the separation of the wine from the from its lees after fermentation or lees, the product which was a wine whether on the other hand such would no longer be so and would have separation by racking has not yet been become again a "new wine in fermen- carried out, in which case the only tation". description to which the product is entitled is that provided in paragraph 8 of Annex II." It would then be a wine which could no longer be consumed in its existing state and could not be the subject of trade, including intra-Community trade. B •— The French Government states first of all that a regional director of the Comptoir Agricole Français (of which It is therefore for the oenological experts Mr Soler is a director) declared that of the country of origin to determine the 1 545 hectolitres of red wine had been importance of the percentage of lees sent from Corsica to Séte by sea in order which there may be. to free the wine cellars of the Comptoir Agricole Français at Borgho and thus enable it to continue buying grapes of That has been confirmed by a judgment the current vintage. He admitted that of the French Court of Cassation of 11 upon their arrival in Séte two out of five January 1982 to the effect that it is vats in the ship were in fermentation. exclusively for the court of trial, and it alone, to determine on the basis of the experts' reports whether a product fits The expert's opinion is that the wine in the Community definition. question had undergone partial alcoholic fermentation but that it was separated from its lees. According to that report The accused therefore proposes that the the samples analysed had a potential Court should answer the question as alcoholic strength of 3°73 and 3°75 follows : respectively. However, oenologists consider that a wine has not finished fermenting so long as its potential "The separation of the wine from its lees alcohol content is not less than 0.5°. means the operation of racking, which is Moreover, in stating that the wine had carried out only when fermentation is undergone partial alcoholic fermentation complete and the product may then be the experts themselves recognized that it described as wine. had not finished fermenting.

The French Government would thus like place. Wine which has not yet been to say that according to its definition subject to racking must be regarded as "new wine still in fermentation" displays not separated from its lees. two concurrent characteristics: The Commission cites a report prepared The product has not finished fermenting; by Professor Cantarelli from which it appears that wine which is not racked It is not yet separated from its lees. may contain a percentage of lees varying between 0.5% and 6%, the average being about 4%. That wide margin is In the opinion of the French due mainly to biological factors such as Government that definition is sufficiently variety of vine, state of maturity and clear for it to be said that a wine in climate. fermentation at the time of inspection and containing 0.35% of lees may not be regarded as coming within the category In this case the percentage of 0.35%- of table wines. 0.40% of lees is below the minimum of 0.5% liquid lees obtained when wine is first racked; this constitutes grounds for C — The Commission observes in this justifying the experts' description of that respect that the product in question may percentage. be subject to the prohibition of offer or disposal for direct human consumption Even if the percentage of 0.35-0.40 were within the Community only if the two expressed in diy (and not liquid) matter conditions of the definition are satisfied. the percentage of liquid lees would According to the Commission the first increase to 0.70%-0.80% which would condition, namely that the wine must still still be veiy much less than the averaec be in fermentation, was regarded as of 4%. fulfilled by the Cour de Cassation. The only question is therefore whether the second condition with regard to the Moreover, the wines in question were separation of the wine from its lees was still young and therefore in view of the also satisfied. material in suspension which they contained could have given rise to a fresh formation of lees when fermen- As to the second condition it is tation recommenced. Partial fermen- impossible for wine to be completely tation was found upon the reception of separated from its lees. That is the cargo after the transhipment which demonstrated when a bottle of old wine followed the transport by sea. The is decanted. If the percentage is experts moreover stated that it was "negligible" it is therefore possible to possible that the wines were not still accept that separation has taken place. fermenting when they left the port of embarkation. To determine whether or not a percentage is "negligible" it is In conclusion the Commission considers nevertheless necessary to determine the that it is for the court of trial to percentage which is normally in a wine determine in each particular case which has not yet been separated from whether the separation of the lees has in its lees. The only workable method in fact been carried out in proper that respect is to compare the quantity of conditions. In that respect with the help lees (0.35%-0.40% in this case) with the of expert evidence it may base its amount left when racking has taken determination on a number of

Furthermore, the percentage of lees in In the absence of the latter information wine cannot be expressed as a fixed and taking account of an average of 4 % , figure in so far as the lees vary in volume a percentage of 0.36%-0.40% found by according to the various environmental the experts may, because it is neglible, factors. give rise to a presumption on which the court of trial may reasonably rely in order to consider the wine as having been separated from its lees. B — In answer to the questions put by the Court the Commission states inter alia: The Commission accordingly proposes that the Court should answer the question as follows: The main alcoholic fermentation which converts grape must into wine gives rise to a substantial quantity of lees. "Wine which contains a percentage of lees of between 0.35% and 0.40% may be regarded as separated from its lees Fermentation of table wine may arise within the meaning of paragraph 8 of when it contains sugar and in that event Annex II to Regulation N o 816/70 it is always accompanied by the (paragraph 9 of Annex II to Regulation formation of lees. No 337) on the common organization of the market in wine. Even without fermentation lees may still form in table wine. The position would not be different unless it was shown that such percentage is the same as that contained in the wine The Community regulations require that in question at the outset." wine should be separated from its lees because fermentation of table wine can never be excluded and in the absence of this requirement the distinction between new wine in fermentation and table wine I l l — Answers to questions put could not be made. by t h e C o u r t

2 That question was raised in criminal proceedings initiated for possession for the purpose of sale as wine of a product displaying the features of a "new wine still in fermentation". By virtue of Article 27 (2) of Regulation No 816/70 (replaced by Article 48 (2) of Regulation No 337/79) "new wine still in fermentation" is not included amongst the products which may be offered or disposed of for direct human consumption within the Community.

3 According to both Regulation No 816/70 of the Council and Regulation No 337/79, "new wine still in fermentation" is a wine "in which alcoholic fermentation is not yet complete and which is not yet separated from its lees". In the opinion of the Cour de Cassation, the sole question to be resolved is whether the wine in question may be regarded as "separated from its lees".

JUDGMENT OF 5. 5. 1983 — CASE 80/82

4 Seeking an interpretation of that definition, the Cour de Cassation has requested the Court of Justice to give a preliminary ruling on the question "whether the national court is empowered to regard as separated from its lees a wine which contains a percentage of lees of between 0.35% and 0.40% on the ground that according to expert evidence such a percentage is negligible."

5 That question seeks in substance to ascertain whether a wine containing a negligible percentage of lees may be regarded as separated from its lees within the meaning of paragraph 8 of Annex II to Regulation No 816/80 (replaced by paragraph 9 of Annex II to Regulation N o 337/79) on the common organization of the market in wine.

ADMINISTRATION DES IMPÔTS v SOLER

or dry lees are concerned) to the minimum quantity obtained from the first racking.

9 Accordingly, the answer to the question submitted by the Cour de Cassation must be that a wine containing a percentage of lees which is much smaller than the average percentage of lees obtained when the wine is first racked may be regarded as separated from its lees within the meaning of paragraph 8 of Annex II to Regulation No 816/70 (replaced by paragraph 9 to Annex II to Regulation No 337/79) on the common organization of the market in wine. It is for the national court to assess the percentage in question by reference to the traditional methods of production of the wine concerned.

Costs

io The costs incurred by the Commission of the European Communities and the Government of the French Republic, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

Delivered in o p e n court in L u x e m b o u r g o n 5 M a y 1983.

For the Registrar H. A. Rühi U . Everling Principal Administrator President of the Third Chamber

OPINION OF MR ADVOCATE GENERAL VERLOREN VAN THEMAAT D E L I V E R E D O N 21 A P R I L 1983 l

Mr President, 0.40% on the ground that according to Members of the Court, expert evidence such a percentage is negligible."

1. T h e q u e s t i o n s u b m i t t e d for a 2. T h e relevant provisions of preliminary ruling C o m m u n i t y law a n d t h e c o u r s e of t h e n a t i o n a l p r o c e e d i n g s

In the present case, the French Cour de The question arose because Soler was in Cassation [Court of Cassation] has possession, for the purpose of sale, of requested the Court of Justice to give a wine which, according to the French preliminary ruling on the question : supervisory authorities, was unfit for human consumption since it was not "Whether the national court is table wine but a product which had to be empowered to regard as separated from regarded as "new wine still in fermen- its lees a wine which contains a tation". That product is defined in percentage of lees of between 0.35% and paragraph 8 of Annex II to Regulation