C-74/86
ECLI:EU:C:1988:35
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COMMISSION v GERMANY
OPINION OF MR ADVOCATE GENERAL MISCHO delivered o n 27 J a n u a r y 1988 *
Mr President, French Republic [1974] ECR 359, paragraph Members of the Court, 47), the judgment of 25 October 1979 (in Case 159/78 Commission v Italian Republic [1979] ECR 3247, paragraph 22) and the judgment of 15 October 1986 (in Case 1. The action brought by the Commission 168/85 Commission v Italian Republic against the Federal Republic of Germany on [1986] ECR 2945, paragraph 11) that: account of the provision added by the Law of 27 August 1982 to paragraph 6 (2) of the Weingesetz (Wine Law) does not raise any major difficulties. Concurring entirely with the Commission's position, I am therefore 'if a provision of national law that is incom- able to give my Opinion at once. patible with a.provision of the Treaty, even one directly applicable in the legal order of the Member States, is retained unchanged, this creates an ambiguous state of affairs by keeping the persons concerned in a state of 2. In its defence and at the hearing today uncertainty as to the possibility of relying the Federal Republic stated in any event on Community law and . . . maintaining that it did not dispute and had never such a provision in force therefore amounts disputed that the Commission's complaint to a failure by the State in question to was well founded. comply with its obligations under the Treaty'.
3. It pointed out, however, that the provisions of Community law concerning the increase in the alcoholic strength by This must apply a fortiori to the intro- volume of wine were strictly applied in duction into the national legislation of a practice, so that there was no legal uncer- Member State of a new provision which is tainty in the Federal Republic of Germany. incompatible with Community law.
4. Unfortunately, I am unable to share that 5. In paragraph 13 of the same judgment of view. When the letter of the law and admin- 15 October 1986 the Court also pointed out istrative practice do not coincide, this is that it has consistently held that: likely to cause uncertainty, at least amongst some wine growers, as to what is allowed and what is not. The article appearing in a specialist publication just cited by the agent for the Commission confirms this. 'mere administrative practices, which by Moreover, it is clear from the case-law of their nature are alterable at will by the auth- the Court, in particular the judgment of 4 orities and are not given the appropriate April 1974 (in Case 167/73 Commission v publicity, cannot be regarded as constituting
* Translated from the French.
OPINION OF MR MISCHO —CASE 74/86
the proper fulfilment of obligations under paragraph 6 (2) of the Weingesetz stands at the Treaty*. present, German courts are in a position to apply the criminal provisions of that law where an individual is prosecuted for having 6. Finally, I share the Commission's opinion enriched wine beyond the 'standard rate' of that it is extremely doubtful that, as 3.5% vol.
Conclusion
7. For all those reasons I can only propose that the Court should grant the Commission's application and declare that, by introducing a rule into the Weingesetz providing that, in respect of certain wine varieties in certain localities of the Mosel-Saar-Ruwer, Mittelrhein and Ahr wine-growing areas, alcoholic strength by volume may be increased to 4.5%, the Federal Republic of Germany has infringed the rules of the. common organization of the market in wine, in particular Article 32 of Council Regulation N o 337/79, which in the mean time has become Article 18 of Regulation No 822/87, and Articles 5 and 189 of the EEC Treaty.
8. The defendant should accordingly be ordered to pay the costs.