C-326/86

1. The joined cases on which I give my Opinion today are claims for damages against the Commission brought (in Case 326/86) by 20 applicants residing in Belgium, the Netherlands and Italy who are involved with the cultivation and sale of Italian wine (or only with the latter) and (in Case 66/88) by 11 persons resident in Italy who are the personal representatives of four people who died on 2 March, 10 March, 4. It is alleged (I am now proceeding chrono­ 16 March and 5 June 1986 after drinking logically) that as early as 1976 there were Italian wine containing methanol. Italian press reports that artificial wine was being manufactured (Annex 6 to the reply in Case 66/88). The measures subsequently introduced to stabilize the market, in particular the measures financed out of 2. In the first case it is alleged that the Community funds to eliminate wine applicants suffered substantial loss of surpluses (by distillation) were so conceived, turnover and corresponding loss of profits it is said, that they encouraged abuse in the after dangerous additives were discovered in form of the manufacture of synthetic wines the summer of 1985 and spring of 1986 in (because there was no provision for Italian wine. In the second case damages are thorough analysis before distillation and the claimed for the death of close relatives who term 'table wine' was so defined that adul­ died after drinking adulterated Italian wine. teration of wine was not discovered on inspection). In particular it ought to have been apparent (reference was made to a parliamentary report —Annex 1 to the 3. The Commission is alleged to be reply in Case 66/88 — and to a special responsible for that damage because it did report of the Court of Auditors ') first that not by appropriate measures prevent the there was a marked increase in wine distil­ adulteration of wine from occurring or lation in 1984 and secondly that Italian wine because it did not at least ensure that the stocks, which were stated to be 19 million adverse consequences were more limited. hectolitres at the end of August 1984, were

5. When in the summer of 1985 Austrian wine adulterated with glycol was discovered there were reports in the Belgian press, following a press conference given by the Commission on 27 August 1985, that Italian 7. 1. It is important to observe as a matter wine was also similarly adulterated, of principle that according to the structure whereupon two customers of an applicant in of the organization of the wine market as Case 326/86 cancelled their orders at the laid down by the Council it is a matter for beginning of September 1985. In spite of the Member States to ensure compliance being requested to do so the Commission with the Community provisions in the wine did not consider it proper to reveal the sector and for that purpose to designate names of the undertakings involved (which authorities for verifying compliance (Article would have made it possible to limit the 4 64 of Regulation No 337/79 ). That is in damage to the reputation of Italian wines line with the consistent formula to be and prevent further operations by the firms encountered in all agricultural sectors, concerned). It did not, say the applicants, which is based on the obvious consideration think of taking the affected wines off the that the authorities of the Member States market (pursuant to the Council Decision of are closer to the relevant circumstances and 2 2 March 1984 ) and introducing more on a concern not to inflate the Community thorough inspections. Finally it is also administration. For that reason Article 8 of significant that although the first death from Regulation No 729/70 on the financing of drinking wine adulterated with methanol the common agricultural policy provides occurred at the beginning of March 1986 quite generally that the Member States are and accordingly there were considerable to 'prevent and deal with irregularities'. In reductions in the sale of Italian wine, the the same way Article 6 of Regulation No Commission reacted only at the end of 5 283 / 72 provides that where irregularities March 1986 and moreover did not make or negligence have taken place the Member effective use of the available possibilities (in States are to hold an administrative inquiry. particular it did not carry out any direct Article 3 of Regulation No 359/79 on direct inspections pursuant to Article 9 of Regu­ cooperation between the bodies designated 3 lation No 729/70 ). by Member States to verify compliance with

Community and national provisions in the manufactured), it is clear to me that that wine sector provides that the competent report is not sufficient to place the bodies of the Member States are to study in Commission under an obligation to take detail any grounds for suspicion brought to action. Assuming that the Commission was their attention. Similarly Article 1 of the aware of it and that the information Council Decision of 2 March 1984 intro­ concerned matters covered by the ducing a Community system for the rapid Community rules, it was legitimate to exchange of information on dangers arising suppose the national authorities would carry 7 from the use of consumer products out the requisite examinations and do all assumes that the Member States will decide that is possible and necessary to stop an on urgent steps to prevent the marketing of unlawful practice. Since, moreover, it was a product if there is a risk to the health or not apparent that in the ensuing years there safety of consumers. were any grounds for thinking that the national monitoring measures were inadequate (in fact there was talk of adul­ terated wines again only in 1985) the Commission cannot be accused of neglect­ ing to bring an action at the proper time for failure to fulfil obligations, thereby bringing 8. Obviously the Community institutions about an improvement in national are not freed from all responsibility in this inspections and so contributing to the way, at least in so far as it is not a question prevention of the irregularities which are a of areas such as protection of health in the central issue in the present proceedings. wine sector (which, as the Commission rightly stressed, is not subject to Community regulation but is purely a national affair). They are, however, at most responsible for supervising the national authorities, and they have occasion to intervene (by amending Community legislation or bringing proceedings for failure to fulfil 10. I thus conclude that the 1976 press obligations) only if there is clear evidence report provides no evidence (i.e. of a that the (primary) national inspection is wrongful omission) in support of the carried out inadequately and thus there is an applicants' claim. infringement of Community law.

August 1984 to 40 million hectolitres at the amendments to the rules on distillation; in beginning of the following wine-marketing December 1985 it proposed the introduction year) are indeed remarkable. of a register of land under vine cultivation (which was adopted by the Council in July 1986); and in March 1985 it participated in a joint declaration of the European Parliament, the Council and the Commission in which inter alia the necessity for increased controls in the wine market

14. 4. With regard to the applicants' view gations by a group of experts which were that the Community rules on wine distil commissioned in May 1984 produced lation were so conceived and applied that nothing and it must also be admitted that they encouraged the manufacture of the explanation cannot be lightly dismissed synthetic wine, I must agree right away with that the abundance of the previous harvest, the Commission's observation that there is mistakes in the estimate of consumption and no evidence that the wine adulterated with errors in reports of stocks all played a role. glycol in 1985 and the wine adulterated with methanol in 1986 at issue in the present proceedings are connected with distillation. As the Commission stated without being contradicted, those wines were discovered in bottles intended for human consumption, and it is significant that even the applicants argued at the

9 have recourse to other sources; it obtained 15. Nor is it possible to accept the 8 — Sec the resolution of the European Parliament, OJ 1987, C applicants' submission that the rules on 190, p. 149, point 8, fourth indent (' — what links there are with the synthetic production of wine'). distillation were so attractive that they 9 — See Regulation No 2102/84 on harvest production and encouraged the delivery of too much wine stock declarations relating to wine-sector products, OJ 1984, L 194, p. 1; Regulation No 2396/84 laying down detailed rules for drawing up the forward estimate in the 10 — Regulation No 2687/84 of 18 September 1984, OJ 1984, wine sector, OJ 1984, L 224, p. 14. L 255, p. 1.

and therefore synthetic wine had to be the wine into the distillery, which would of manufactured for the market. The necessity result in the detection of synthetic Commission rightly countered that this wine, cannot be accepted. It must indeed be appears unlikely in view of the wine admitted in that respect that Article 22 of surpluses which continued to exist in spite Regulation No 2179/83, relating to the of distillation. checking of products when they enter the distillery, mentions expressly only quantity, colour and alcoholic strength, but it is clear from the use of the expression 'in particular' that that list is not exhaustive, and Article 22 also provides that Member States may 16. It is, moreover, also significant in this carry out checks by sampling. In my opinion connection that, in accordance with what they may be regarded as adequate rules for was previously the general position as the Member States, which, in view of the regards the organization of the wine provisions of agricultural policy as a whole, market, the Community rules are so must be conscious of their responsibility for structured that inspection is a matter for the the correct application of the rules, and Member States ," that is to say, they are would certainly have allowed the Italian primarily responsible for preventing abuses. authorities responsible for inspection (their There is, however, no evidence that the attention must have been awakened already national inspections were negligent and by the 1976 press reports) to look out for inadequate at a time when it might have abuse of the intervention rules by the been possible for the Commission (perhaps production of synthetic wine, should any by means of an action for failure to fulfil abuse have been attempted. obligations under Article 169 of the EEC Treaty) to bring about a change and thus prevent events such as those of 1985 and 1986. Criticism of national inspections is expressed only in a letter of 25 May 1986 from Mr Ripa di Meana, a Member of the Commission (Annex 12 to the application in Case 66/88 — he complains of the lack of a public inspection system in Italy), in the 1987 parliamentary report which has already been mentioned and in the report of the Court of Auditors, also from 1987, which relates to inspections carried out in Italy in 1985 and 1986 (another report of 18. 5. With regard to the events of the the Court of Auditors dated January 1985 summer of 1985·—-the appearance of and relating to 1984 criticizes only French Austrian wine adulterated with glycol and measures of inspection). the discovery of glycol also in certain Italian wines — it is important first of all to observe that in the Commission's statement of 27 August 1985 (Annex 1 to the defence in Case 326/86) no areas of origin or firms are mentioned (which means that such 17. Finally, the applicants' view that the particulars in the Belgian press of 28 August distillation rules are defective since they do 1985 — Annex 1 to the reply in Case not provide for any analysis on the entry of 326/86 — and the resulting damage arc not the Commission's responsibility). It is also II — Sec Amele 27 of Regulation No 2179/83. OJ 1983. I 212. significant that the Commission expressly P 1

stressed that only 'very slight traces' of that teered the names of the firms involved, I substance had been found in nine Italian think it is clear that the reason for its wines, which indicated that there was no negative attitude was the fact that it was risk to health which might cause consumers aware only of very slight, that is to say not to stop drinking Italian wine (the injurious, traces in nine Italian wines. In Commission itself says that that fact such circumstances it was certainly mitigated the damage). reasonable, in order to avoid the risk of claims by the firms concerned, for the Commission to display some reticence and, pending completion of the investigations by the Italian authorities, avoid negative publicity. That is so not least because even if the names of certain undertakings had been disclosed it was not to be excluded that there might be a general mistrust of Italian wine, with corresponding effects on sales. 19. Furthermore, it must be made clear that the Commission was not asked at the press briefing for the names of the firms involved and that there was no such request to the Commission afterwards. The telex message of 29 August 1985 to which the applicants refer in that respect (of which only a copy was forwarded to the 'Service de santé de la 21. However, in reply to this submission of CEE') was addressed to the editor of the the applicants the Commission could rely newspaper Le Soir and simply contained a above all on the Community information request to that newspaper to reveal the system, which leaves it to the national auth­ names of the three companies mentioned in orities to pass on information — entirely the newspaper article of 28 August 1985. It reasonably, since the competent national was only in a letter of 25 March 1986 that authorities are closer to the circumstances to the Commission itself was requested to be investigated. Article 64 of Regulation No specify the firms involved (that is to say, at 337/79 on the common organization of the a time when the scandal of Italian wine market in wine is also relevant; it requires adulterated with methanol had already the national authorities to maintain contact occurred and thus could no longer be with one another so that, through the prevented by revealing the names), and that exchange of information, infringements may request contained an incorrect reference to be prevented or detected. Article 2 of Regu­ the contents of the press announcement in lation No 359/79, furthermore, proceeds on August 1985. the basis that in the event of irregularities in the wine sector the competent national authorities will exchange information (and Article 7 states that such exchange of infor­ mation is to be covered by professional secrecy). Mention should also be made of the Council Decision of 2 March 1984 introducing a Community system for the rapid exchange of information on dangers arising from the use of consumer 12 products, Article 1 of which provides that 20. With regard, moreover, to the question whether the Commission should have volun­ 12 — OJ 1984, L 70, p. 16.

national agencies which take measures to most be claimed that had those authorities guard against risks to the health of acted in good time against two firms which consumers are to inform the Commission, supplied wine contaminated with glycol and so that it can pass on the information to the were later involved in the methanol wine competent authorities of the other Member scandal, the latter might at least in part have States (Article 6 provides that in justified been avoided). Secondly, it should be said cases information may be treated as that simply on the basis of the appearance confidential). On that basis, as the of relatively innocuous wines in the summer Commission mentioned in its defence in of 1985 and without further specific Case 66/88, there was an agreement evidence the Commission hardly had cause between the Member States and the to take special measures to check the Italian Commission, to the effect that if necessary monitoring measures (in so far as that is at the national authorities should publish all a matter for the Community).

Accordingly the Commission could certainly assume that the letter from Mr Ripa di Meana, a the national authorities would inform Member of the Commission, of 25 May consumers if necessary and, contrary to the 1986, from which it appears that in applicants' view, did not need in any way to February the Commission had announced a feel obliged to act in their place. proposal for the establishment of a special inspection service, and the answer of Mr Andriessen to a parliamentary question of

OPINION OF MR LENZ — JOINED CASES 326/86 AND 66/88

l6 Community monitoring system ) and a 26. It is also relevant that in Italy certain proposal was submitted to that effect by the measures were immediately taken. u Commission on 29 December 1987, the Reference may be made to the decree implementation of which, as is well known mentioned in the defence in Case 326/86, (I refer once again to Mr Ripa di Meana's which required a certificate of analysis for letter), encountered considerable objections the export of wine; to the aforementioned of principle. letter from Mr Ripa di Meana, which mentions a decree of 11 April 1986 for preventing and punishing the adulteration of food; and to the fact that on page 5 of the defence in Case 66/88 it is stated (and this point was not contradicted) that the publi­ cation of an article in the magazine Vigne e Viti of 6 March 1986 contributed to a rapid reorganization of the national inspection service. 24. 6. In the light of the foregoing there is not much left to be said on the remaining issue, namely the Commission's conduct after the discovery of the Italian methanol wine scandal.

one under Article 9 of Regulation pursuant to Article 9 of Regulation No No 729/70 (which refers to inspections on 729/70). the spot by the Commission), it must be borne in mind (quite apart from the fact 29. Accordingly it must be concluded (not that the Commission's inspectorate is not of least because it is clear that the bringing of sufficient size for such an extensive lengthy proceedings for failure to fulfil obli­ inspection) that the inspections under Regu­ gations would hardly have helped the lation No 729/70 are concerned with the interests of the applicants) that the financing of the common agricultural policy Commission's conduct after the discovery of and relate to documents, that is to say not the Italian wine scandal in the spring of the sale of wine on the market. It is also 1986 can not be regarded as constituting a relevant that Article 6 of Regulation No wrongful act or omission. 283/72 provides for the possibility of Commmission employees taking part in the inquiry into irregularities, and that this was 30. 7. It is not necessary to discuss any the intention of the Commission (as is further issues in relation to an alleged apparent from the aforementioned letter of wrongful act or omission (causation, 13 June 1986, in which, moreover, it is damage, if necessary proof of special stated that the Commission reserves the damage) beyond what has already been right to conduct special investigations mentioned in other contexts.

C — Proposal

31 . 8. In conclusion it should thus be held that the applicants' claims that the Commission has in various respects failed to fulfil its obligations are unfounded .