C-311/87
ECLI:EU:C:1988:375
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GOLDENES RHEINHESSEN v LAND RHEINLAND-PFALZ
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 6 July 1988 *
Mr President, (i) either at the vineyard where the grapes Members of the Court, used were harvested and made into wine,
1. Erzeugergemeinschaft Goldenes Rhein (ii) or by a group of vineyards, hessen w. V. is a group of wine-growers recognized by the State. It has laid down rules relating to production and quality which its members must observe when making their grapes into wine, which they (iii) or in an undertaking situated in the do in their own vineyards. The association specified region indicated or in the collects its members' wines, carries out immediate vicinity of that region, with fining and sweetening in its own cellars and which the vineyards where the grapes then arranges for their transportation to a used were harvested are connected as 'Weinkellerei' for bottling. members of a group of vineyards, and which made wine from the said grapes.
4. Article 17 (1) (a) of Commission Regu 2. The dispute in the main proceedings lation (EEC) No 997/81 of 26 March 1981 concerns the question whether such an asso laying down detailed rules for the ciation may use, when labelling its wines, description and presentation of wines and the description 'Erzeugerabfüllung' (liter grape musts 2 provides that for German ally: bottled by the producer) although the wines and wines from the province of wine has been neither made nor bottled in Bolzano the term to be used in each the facilities of the producers' group. of the three abovementioned cases is 'Erzeugerabfüllung'.
3. Under Article 12 (2) (q) of Council 5. The Oberverwaltungsgericht Rheinland- Regulation (EEC) No 355/79 of 5 February Pfalz, before which an action was brought 1979 laying down general rules for the by Erzeugergemeinschaft Goldenes Rhein description and presentation of wines and hessen for a declaration that it was entitled grape musts 1 the description on the to use the description 'Erzeugerabfüllung' in labelling may be supplemented by a the circumstances set out in paragraph 2 statement that the wines were bottled: above, put the following question to the Court: * Translated from the French. 1 — OJ L 54, 5.3.1979, p. 99. 2 — OJ L106, 16.4.198!, p. 1.
OPINION OF MR MISCHO — CASE 311/87
by a group of vineyards' ('von einem 'Is the second indent of Article 12 (2) (q) Erzeugerzusammenschluß', 'da parte di of Council Regulation (EEC) No 355/79 of un'associazione di aziende viticole', 'par un 5 February 1979 laying down general rules groupement d'exploitations viticoles', etc.) for the description and presentation of means that bottling must take place in such grape musts (Official Journal 1979, L 54, a manner as to ensure that the group can be p. 99) to be interpreted as meaning that the considered truly responsible for the bottling right of a group of vineyards to describe its operation. That operation must therefore wines as "Erzeugerabfüllung" does not take place under the actual direction and depend on the undertaking in which the continuous supervision of the group and at bottling took place and the grapes were its sole responsibility. made into wine, or as meaning that the bottling and wine-making or one of those two operations must have taken place in the facilities of the producers' group?'
9. Secondly, we must examine the scope of the terms used in Article 17 of Commission Regulation No 997/81, referred to above. We have seen that the regulation provides 6. The whole problem obviously derives only for the indication 'Erzeugerabfüllung' from the fact that the second indent of for German wines and wines from the Article 12 (2) (q) of Council Regulation province of Bolzano. As the Commission No 355/79 uses the expression '(bottled) by has made no distinction between the three A group of vineyards' and thus refers only to cases provided for in Council Regulation the person responsible for the bottling, No 355/79, the use of the term while the first and third indents stress the 'Erzeugerabfüllung' must correspond to an place where the bottling and wine-making essentially identical factual situation in each are to have taken place, that is to say the of these three cases. Were that not so, individual vineyard or the undertaking as purchasers might be misled. defined in the third indent.
10. Furthermore, the term 'Erzeuger abfullung' in itself implies that the 7. Should it be concluded, reasoning a 'Erzeuger' (producer) and the 'Abfüller' contrario, that a group of vineyards is not (bottler) are one and the same. bound by strict rules in this regard? In an attempt to find an answer to this question, I shall examine in turn the literal meanings of the expressions used in the relevant legis lation and its general scheme and purpose. 11. In respect of wines produced in other Member States, various expressions may be used depending on whether the wine is bottled at an individual vineyard or by a producers' association. In the latter case, the forms to be used for French and Italian wines are 'mis en bouteilles par les 8. It should first of all be noted that there producteurs réunis' and 'imbottigliato dai can be no doubt that the expression 'bottled
GOLDENES RHEINHESSEN v LAND RHEINLAND-PFALZ
produttori riuniti' (bottled by the associated (1) The description and presentation of the producers). The Greek formula would products referred to in Article 1 (3), appear to be translatable as 'bottled by a including any form of advertising, must producers' group'. For the wines of Spain, not be liable to cause any confusion as Italy and Luxembourg, reference to a to the nature, origin and composition of cooperative is also allowed: 'embottellado the product; this shall apply to the por la cooperativa' in Spanish, 'imbottigliato information referred to in Articles 2, 12, dalla cantina sociale' in Italian (bottled by 27, 28 and 29. the cooperative), but 'mis en bouteille à la coopérative' (bottled at the cooperative) for Luxembourg wines. This latter formulation, in which the cooperative is stated to be the place of bottling, might be interpreted as (2) The description and presentation in meaning, a contrario, that bottling by a advertising material must be such as not cooperative need not necessarily in all cases to create a false impression of the imply bottling at the cooperative — for product in question, particularly as otherwise would not a single expression regards : have been used? The fact remains, however, that the descriptions provided for in the other languages all refer, as do the German formulation and the second indent of Article 12 (2) (q) of Regulation No 355/79, to the producers' group or to the cooperative as the entity responsible for bottling.
— the identity or status of the natural or legal persons or group of persons 12. Linguistic analysis, therefore, will not involved in the production or distri provide a definitive answer to the problem, bution of the product in question. but rather prompts us to consider whether it can be compatible with the scheme and purpose of the regulations to regard a group of vineyards as responsible for bottling even when it is not performed in the group's own facilities. 15. The concern with ensuring that the consumer is protected and objectively informed runs like a thread throughout the preamble to Commission Regulation No 997/81 laying down detailed rules for the 13. The purpose of the rules on the use of a implementation of Council Regulation No statement regarding bottling is clearly to 355/79. The third recital in the preamble is ensure that consumers are protected and worded as follows: properly informed.
14. This concern is expressed in particular 'Whereas. . . when drawing up these in Article43 of Regulation No 355/79, detailed rules . . . further criteria should be which provides, inter alia, as follows: the desire to avoid any confusion in the use
OPINION OF MR MISCHO — CASE 311/87
of expressions employed in labelling and to whole process taken place at the vineyard of ensure that the information on the label is an individual wine-grower. as clear and complete as possible for the consumer;'
19. The recital also confirms that the statement regarding bottling is indeed intended to convey the idea that a single 16. The sixth recital says, with regard to natural or legal person has been responsible certain terms and details which have a for the whole process, referred to in the commercial value or can contribute to the specialized German literature by the prestige of the product offered for sale expression 'alles in einer Hand'. It does, without being absolutely necessary, that the however, seem to me that an exception use of such terms should be permitted should be made with regard to the culti provided that they are justified and are not vation and harvesting of the grapes, which it misleading as regards the quality of the would be difficult for the group as such to product. The ninth, 11th, 13th, 14th, 15th, carry out. 22nd, 27th and 28th Recitals in the preamble to Regulation No 997/81 may also be cited in this regard.
20. Finally, the passage explicitly states that the intended aim is to create a feeling of confidence on the part of the consumer, in 17. The 27th Recital is particularly order no doubt to induce him to pay a instructive. It reads as follows: 'Whereas the higher price. information that a wine has been bottled at the wine-growing holding where the grapes from which it was made were harvested and turned into wine, or under equivalent conditions, expresses the idea that all the 21. If, therefore, it were considered that the stages of production have been carried out second indent of Article 12 (2) (q) of under the supervision and responsibility of Regulation No 355/79 authorized the use the same natural or legal person, thereby of the term 'Erzeugerabfüllung' by a group enhancing the prestige of the wine thus of vineyards which has not bottled the wine obtained in the estimation of some under conditions essentially equivalent to purchasers; whereas the terms which may be those prevailing at an individual vineyard used to convey such information should (we shall deal with the question of the therefore be specified'. making of the wine at a later stage), that would give such a group a commercial advantage, with no objective justification, over individual vineyards and over the undertakings referred to in the third indent. Such an interpretation would be contrary to 18. This wording is eloquent in several the principle embodied in Article 40 of the respects. It proves first of all that in the view EEC Treaty prohibiting any discrimination of the Commission, its author, a wine between agricultural producers. It would bottled by a group of vineyards must, if it is also go against the rule that when the to be entitled to use the description, have wording of secondary Community law is been bottled under conditions equivalent to open to more than one interpretation pref- those which would have prevailed had the
GOLDENES RHEINHESSEN v LAND RHEINLAND-PFALZ
erence should be given to the interpretation 26. It was not disputed, during the oral which renders the provision consistent with proceedings before the Court, that the the Treaty. 3 description 'Erzeugerabfüllung' may be used when the producer of the wine bottles it at his own vineyard using mobile equipment brought in. Conversely, I think it also 22. Finally, one cannot but share Koch's possible to transport the wine to a bottling opinion 4 that the right of a group of facility situated elsewhere provided that vineyards to use the indication guarantees substantially identical to those 'Erzeugerabfüllung' derives from the indi offered by bottling at an individual vineyard vidual rights of its members. We are are present. It is above all important to aven therefore entitled to suppose that the group any possibility that the wines of the indi must comply with the same rules as its vidual producer or the group may be mixed members. Any other conclusion would mean with wines of other origins. giving the group a better position on the market than each of its individual members.
27. First, the wine should be transported either by the owner of the wine himself or 23. There is however, no reason to do so. under his very close supervision, and at his On the contrary, it is the individual wine expense. grower, if anyone, who deserves preferential treatment, as he is far less able to afford the purchase of bottling equipment than is a group of several wine-growers. 28. During bottling the owner of the bottling equipment should, as the Commission stresses, be in a position of complete dependence in relation to the 24. This leads me to the conclusion that a owner of the wine ('Bestand eines absoluten group of vineyards cannot be entitled to bottle Herrschaftsverhältnisses'). The whole its wines outside its own facilities unless an operation should take place under the individual wine-grower can also do so under latter's sole responsibility, direction and the same conditions. continuous supervision, and should be carried out with the help of his own staff.
25. It is striking to note that neither the legal literature 5 nor the Commission rule out in principle the possibility that such a 29. Nor should there be any intermediate practice may be allowed provided that storage of the wine at the rented facility certain very stringent conditions are ('Zwischenlagerung'), and the wine should fulfilled. be returned after bottling, under the super vision of one of the group's senior staff, to 3 — See for example the Court's judgment of 4 December 1986 its own cellars for storage and sale. In no in Case 206/84 Commission v Ireland [Wib] ECR 3817, at case may bottling take place in an under paragraph 15. 4 — Dr Hans-Jörg Koch: Weinrecht, Kommentar, under taking which has been granted an exclusive 'Abfüllen' No 3.3.2.2. and under 'Erzeuger', No 5.2., third right to purchase and market the wines in edition (updated to September 1987), Deutscher Fachverlag GmbH, Frankfun am Main. question. Only under such conditions can 5 — See Koch, op. cit., p. 11. the wine still be said to have been bottled by
OPINION OF MR MISCHO — CASE 311/87
the group. If any one of those conditions is 32. We cannot, however, completely not fulfilled, the situation is one of bottling dismiss the view that by omitting to mention on a contract basis and, under the third (in the second indent of Article 12 (2) (q)) subparagraph of Article 4 (5) of Regulation the place where the wine is to be made and No 997 / 81 , only the description 'bottled bottled, the Council may have wished to for ... by ... ' may be used. cover both the case where the wine is made in the group's facilities and that where the wine is made by the individual wine-growers and the group is responsible only for bottling — as, for example, where several wine-growers form a group for the sole purpose of jointly using the bottling equipment belonging to one of them.
30. Let us now address the second problem raised by the Oberverwaltungsgericht of the Land Rheinland-Pfalz. The German court also asks whether or not the grapes must have been made into wine in the facilities of the producers' group. The question here is thus not whether operations such as those 33. An argument in support of that inter performed in the facilities of Erzeugerge pretation might be derived from the formu meinschaft Goldenes Rheinhessen still form lation used in the French and Italian part of the wine-making process or versions of Regulation No 997/81, that is to not — and indeed the information in the say 'mise en bouteille par les producteurs case file would be insufficient to enable us réunis', as in this context the term to reach a decision on that point. However, 'producers' obviously refers to wine even in the form in which it is put, the producers and not to grape producers. question where the wine is to be made raises problems which are difficult to settle in a reference for a preliminary ruling.
34. As it has not been possible to examine such a hypothesis in depth in this case, I feel bound to refrain from stating an opinion as to where the wine is to be made. That 31. It is true that both the Land attitude should cause no problem in so far Rheinland-Pfalz and the Commission have as the answer I would propose to give to the presented powerful arguments in support of Oberverwaltungsgericht's question should, if the view that the wine must necessarily be substantially adopted by the Court, enable made in the facilities of the group of the national court to settle the dispute vineyards. before it.
GOLDENES RHEINHESSEN v LAND RHEINLAND-PFALZ
35. The answer proposed is as follows:
'The second indent of Article 12 (2) (q) of Council Regulation No 355/79 is to be interpreted as meaning that the description "Erzeugerabfüllung" may not be used by a group of vineyards which has bottled its wine in an undertaking other than its own unless the entire operation was conducted under the sole responsi bility, continuous direction and strict supervision of that group and by its own staff, there has been no intermediate storage, the bottled wine has been brought back to the group's cellars for storage and sale to persons other than the owner of the bottling equipment and the wine has been transported in both directions under the group's supervision and at its expense.'