C-158/89

OPINION OF MR VAN GERVEN —CASE C-158/89

OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 2 M a y 1 9 9 0 *

Mr President, Regulation No 337/79). The general rules Members of the Court, on (voluntary and compulsory) preventive distillation were taken over by Council Regulation (EEC) No 2179/83. 2 Under that 1. The questions referred to the Court for regulation there are two ways of obtaining a preliminary ruling by the Verwaltungs- aid for the voluntary distillation of wine. gericht (Administrative Court) Frankfurt am Producers can conclude a delivery contract Main relate to the role of the Member with a distiller and submit it to the States in filling lacunae in Community law, competent intervention agency for approval more specifically as regards the provisions (see Article 4 of the regulation). Alter- relating to aid for the distillation of table natively, producers who themselves possess wine. distillation plants or who intend to have their wine distilled on their behalf in the plant of an approved distiller working under The facts contract can submit a declaration of delivery for distillation to the competent intervention agency for approval (see Article 5). The 2. The dispute between the parties to the intervention agency pays the aid for the main proceedings is concerned with the distillation operations in question upon 'the grant of aid for the distillation of table wine submission of proof that the total quantity during the 1983/84 wine-growing year. I of wine mentioned in the contract or shall now briefly summarize the rules of declaration... has been distilled' (see Community law which are relevant to this Article 7(3)). case and the way in which the Bundesamt für Ernährung und Forstwirtschaft (Federal Office for Food and Forestry, hereinafter referred to as 'the Bundesamt') has filled the gaps in those rules.

(see Article 5). As far as the distillation of adopted. This the first of the two lacunae at white table wine, which is at issue in the issue in this case. As the Commission points main proceedings, is concerned, three out in its observations, the representatives of different percentages of aid are granted the Member States on the management depending on whether the wine is white committee had not reached agreement on a table wine of Type A I, A II or A III, the number of Commission proposals whereby it highest percentage being granted for wine was intended to define uniform classifi- of Type A III and the lowest for wine of cation criteria and to adopt lists on the basis Type A I. Those types of table wine are of those criteria. Faced with this lacuna, the defined in Council Regulation (EEC) No Bundesamt itself classified the German table 340/79. 4 Article2 of that regulation defines wines in a 'Bekanntmachung' (notice), the types of white table wine as follows: which was published in the Bundesanzeiger (Official Gazette) of 21 March 1979. Table wines from the vine varieties Auxerrois, '(a) white table wine, other than that weißer Burgunder, weißer Riesling and referred to under (b) and (c), with an Ruländer were classed as Type A III. All actual alcoholic strength by volume of other wine table wines were classed as Type not less than 10% vol which shall be A II; hence, according to the Bekannt- known as "Type A I"; machung there are no German wines of Type A I.

(b) white table wine from vine varieties of the Sylvaner or Müller-Thurgau type, which shall be known as "Type A II";

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OPINION OF MR VAN GERVEN —CASE C-158/89

This therefore resulted in the grant of the highest percentage of aid (see (d) the name of the distiller or of the paragraph 3 above). By decision of distillery; 15 August 1984, aid in the amount of DM 24 379.65 was granted to the wine producer. However, during an inspection it (e) the address of the distillery'. was discovered that the quantity distilled contained a total of 18.35% Kerner and 1.76% Gewiirztraminer. Since it took the These provisions do not expressly stipulate view that those two wines fell under Type that the contract or declaration must specify A II without the proportions used in the the type of table wine for which aid is blend being indicated in the declaration, the

Since table wine of Types A II and A HI (unlike wine of Type A I) is not defined by reference to the wine's actual alcoholic 6. On 15 October 1985, the wine producer strength by volume, the amount of the aid lodged a complaint against that decision for the distillation of such wine cannot be with the Bundesamt in which it claimed that determined unless the type of wine distilled wine from the grape variety Kerner is specified in the contract or declaration. As consisted principally of Riesling and could is clear from the national court's order and therefore be regarded as falling within Type from what the Bundesamt's representative A III. The Bundesamt rejected that said at the hearing, the Bundesamt, in order complaint by decision of 5 June 1986 on the to make good this lacuna, took the initiative ground that the wine distilled did not tally of asking the undertaking seeking the aid to with the description of the wine in the provide it with certain particulars as to the declaration. The wine producer brought an type of the wine. action against that decision in the Verwal- tungsgericht Frankfurt am Main, which

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DIETZ-MATTI

fication of the correct type of wine in Assessment of the Bundesamt's action the distillation declaration a pre-con- dition for entitlement to aid?

8. In its judgments the Court has confirmed (2) Can vine varieties other than those on several occasions that, where the mentioned in Article 2 of Council Community has exercised its powers Regulation (EEC) No 340/79 be exhaustively in order to create a common classified under Type A II or Type organization of the market in a particular A III wine? According to what criteria sector, the Member States are no longer must that classification be made? entitled to legislate in that sector. Lacunae 6 and imprecise provisions 7 do not as such confer on Member States independent juris- diction to lay down rules, but must in (3) (a) Can a blend which under German principle be overcome in the light of the designation rules may be marketed aims of the common organization of the with the mention of only one vine markets in question. variety be classified under the type of wine which corresponds to that vine variety?

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OPINION OF MR VAN GERVEN — CASE C-158/89

340/79. The Bundesamt's action must be assessed in the light of the fact that no agreement was reached on the management 9. Let us now consider how the principles committee as to the actual content of the set out in the case-law of the Court are to implementing measures referred to in the be applied to the way in which the said Article 3. However, it was necessary to Bundesamt filled the lacunae in the common draw up a list in order to be able to organization of the market in wine which I calculate the amount of distillation aid described earlier. pursuant to Commission Regulation No

As is checked in the absence of particulars stated in the preamble to the regulation, the extent to which a table wine is represen- 10 — Judgment of 17 December 1970 in Case 30/70 Otto Scheer tative can be assessed on the basis either of v Einfuhr- und Vorratsstelle Jur Getreide und Futtermittel its actual alcoholic strength by volume [1970] ECR 1187. In that judgment the Court conceded that during a transitional period the Member States (which is the case with Type A I) or of its retained jurisdiction pending the adoption by the 'characteristics'. In the case of Types A I Commission of implementing rules relating to the common organization in the cereals sector. and A II, those 'characteristics' consist of a

reference to the grape variety or varieties The first question from which they are made. As the Commission stated at the hearing, those references are not, however, of a 'biological' nature and the list is not exhaustive. On the 11. It follows from the foregoing that there contrary, the references are in the nature of is nothing to prevent the Bundesamt from examples and qualitative: they seek to making the grant of aid conditional on provide an example of varieties which, in specifying the correct type of wine in the view of their quality, are eligible for aid in declaration. Even if this were not required the upper or intermediate category. expressly by a national implementing regu- lation, it would still be necessary for the correct operation of the system of distil- lation aid for white table wine. Furthermore, since correct specification of the type of wine in the declaration is In its Bekanntmachung the Bundesamt essential, it is a genuine condition for the classed varieties not mentioned by name in grant of the aid, and not just a element Article 2 of Council Regulation No 340/79 enabling the amount of the aid to be fixed. 11 in Type A II or A III. It did this on the basis of the characteristics of the wine made from those varieties, characteristics which determine the price. The Commission In practice, therefore, in order for aid for approved this method of classification: it is the distillation of white table wine of Types based on an objective criterion — quality A II and A III to be able to be granted, the and price — which is consistent with the contract or declaration must specify the type aim of the regulation in question, namely of wine to be distilled or the grape variety the fixing of a guide price (and of the from which the wine was made. As regards amount of distillation aid) for table wine. In white table wine of Type A I, which Article view of the further fact that, as the 2 of Regulation No 340/79 defines only on Commission stressed at the hearing, it is the basis of its actual alcoholic strength per difficult to define classification criteria volume, it can be inferred from the which are generally acceptable given that Community rules in force that the the way in which varieties are assessed requirements are somewhat less strict, in so varies very greatly from one Member State far as it is sufficient in that regard if the to another, it can be considered that, declaration does not specify the type of pending uniform Community rules on the wine that it should specify the actual matter, the classification criteria employed alcoholic strength by volume and that it in the B u n d e s a m t ' sBekanntmachung are should be possible to infer from the not incompatible with the aims of the alcoholic strength that the wine is a wine of common organization of the market. Type A I, that is to say a wine whose strength is not less than 10% or more than 12%.

I therefore suggest that the Court's answer Gewürztraminer should not be classed as to the first question should be that, in the Type A III but as Type A II. In the event case of wines of Types A II and A III, that the first part of this question is specification of the correct type of wine in answered in the affirmative and second part the distillation declaration referred to in in the negative, it might be that the Article 2(2) of Regulation No 2373/83 is a declaration of the wine producer does not condition for the grant of the aid. In the contain incorrect statements. case of wines of Type A I, correct specifi- cation of the actual alcoholic strength by volume is sufficient. As regards the first part of this question, it appears from the general considerations set out above that the varieties referred to in The second question Article 2(b) and (c) of Regulation No 340/79 were mentioned as examples and that other varieties could also be included by means of lists to be drawn up pursuant to 12. The question whether wines of Types Article 3 of that regulation. It appears also A II and A III may come from vine from the foregoing that until such time as varieties other than those listed in Article 2 those lists were issued the Bundesamt was of Council Regulation No 340/79 was right to base itself on the classification raised because the wine producer indicated indicated in the Bekanntmachung. on the declaration form that the wine was 'A III Riesling' whereas the quantity distilled contained some Kerner and Gewürztraminer. According to the As regards the second part of this question, Bundesamt, those two wines should fall I take the view that the problems connected within Type A II (which, according to the with the application of the classification Bekanntmachung, is a residual category for contained in the Bekanntmachung to a German white table wines). However, the given vine variety must be determined by wine producer argued before the national the national court in the light of the aims of court that wine from the variety Kerner was the existing organization of the market. principally Riesling and that the quantity Consequently, the national court must distilled could therefore be classed as Type determine whether in the Bekanntmachung A III, having regard in addition to the wine from Kerner and Gewürztraminer tolerance which existed in the wine-growing varieties must be classed as Type A II or year in question for blended wines (see A III. paragraph 13 below).

This state of affairs is not affected by the fact that the Commission agreed, as regards the 1983/84 wine-growing year, not to ask Let us consider, first of all, the second limb wine producers who had indicated in their of the third question. The system of rules of declarations only one wine type (or variety) Community law which we examined earlier where the distillation of a blended wine was according to which the amount of the distil- involved 12 to reimburse the aid paid under lation aid is to be fixed on the basis of the Regulation No 2373/83, at least provided actual alcoholic strength per volume and that the wines in question were blended depends on the type of wine (see paragraph wines which, under the national rules on 3 above) means that the amount of aid for a designations, 13 could be marketed under the blended wine must be calculated on the designation of the wine type indicated in the basis of the proportion of each contract or declaration. 14 variety — unless, of course, all the consti- tuents of a blended wine can be classed as being of the same wine type. However, it is not possible to calculate the amount of the aid on a proportional basis unless the That concession on the part of the contract or declaration shows, separately for Commission related to applications for the each constituent, the quantity, the actual reimbursement of amounts of aid and is alcoholic strength per volume and the probably explicable in terms of consider- type. 15 Indeed, without these particulars it is ations relating to legitimate expectations. It impossible to verify the correctness of the cannot affect the conditions for the grant of declaration. the aid. Moreover, it does not appear relevant to the wine producer in the main proceedings: the national court observes

from an inspection that the wine is a blend claiming aid for the type of wine used in the and that fact is not mentioned in the blend which was mentioned in the contract or the declaration. In the same way declaration. as the details of the actual alcoholic strength per volume and the proportion of each type of wine used in the blended wine, the 15. The above considerations directly provision of details of the type (or types) of answer the third limb of the third question. wine is a condition for the grant of aid. On Where the contract or the declaration does this view, neither may aid be granted solely not contain the aforementioned particulars on the basis of the proportion of the type of it is obvious that the conditions for the wine which was stated in the declaration. If grant of the aid have not been fulfilled. In that were allowed it would encourage fraud : such case, it is not possible to grant an aid as the Commission and the Bundesamt on the basis of the percentage applicable to rightly observe, that might encourage wine Type A I. Moreover, it must be observed producers to submit applications for aid in that Type A I is not a residual category of respect of blended wine while indicating in white table wines but the type of white table the contract or declaration only one wine wine for which the lowest aid may be type (the type qualifying for the highest rate granted and which must have an actual of aid) without that disqualifying them, in alcoholic strength by volume of not less the event of a subsequent check, from still than 10% and not more than 12%.

(3) (a) A blended wine may not be classed as one of the types of wine referred to in Article 2 of Council Regulation (EEC) No 340/79 on the basis of national rules on designations.

(b) In the case of a blend of wines of Type A II and A III, distillation aid may be granted on the basis of the proportions of the wine types used in the blend, provided that the contract or declaration indicates, for all the constituents of the blended wine, the quantity, the actual alcoholic strength by volume and the type of wine and that the quantity actually distilled tallies with those particulars. Otherwise, no aid may be granted, not even to the extent of the type of wine used in the blend which is indicated in the declaration or on the basis of the wine's classification as Type A I.'

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