C-309/89

O P I N I O N OF M R LENZ — CASE C-309/89

OPINION OF ADVOCATE GENERAL LENZ delivered on 27 October 1992 *

Mr President, references to bottle-fermentation by the Members of the Court, 'traditional' method or 'classical' method may be used only if the product:

'(a) was made by sparkling by a second alcoholic fermentation in the bottle; A — Introduction

(b) stayed without interruption in contact with the lees for at least nine months in the same undertaking from the time when the cuvée was constituted;

1. The present direct action by a Spanish producer of sparkling wine is directed against a provision introduced in 1989 in the organization of the market in the wine sec­ (c) was separated from the lees by disgorg­ tor, namely Article 6(5a)(b) of Regulation ing', N o 3309/85 ' as amended by Regulation N o 2045/89. 2 That provision lays down the conditions on which the term 'crémanť may be applied to quality sparkling wines psr, 3 a term which was not previously regulated in the Community wine law. O n the basis of the contested provision reads: the second subparagraph of Article 6(4) of Regulation N o 3309/85, 4 according to which

4. It claims (the precise wording of the claim may be seen in the Report for the Hearing) However, for five wine-growing years the that the provision should be declared void term "crémant", in French or in translation, and the Council ordered to pay the costs. may be used to describe a sparkling wine which was traditionally thus described on 1 September 1989.'

5. The Council raised an objection of inad- missibility which, pursuant to the Order of the Court of 5 December 1990, will be decided upon in the final judgment. 2. The applicant challenges that provision because it restricts the sale of its production. As a producer of quality sparkling wines psr which bear the name 'cava' (which since 1986 in Spain and now expressly in Community law is to be used to designate a 6. The Council and the Commission, which specified region 5) it has long used the term has intervened in the proceedings in support of the Council, have contended that the action should be dismissed primarily as inad- missible and alternatively as unfounded and 5 — Sec the fourth indent of the second subparagraph of Arti- that the applicant should be ordered to pay cle 15(3) of Regulation N o 823/87 (OJ 1987 L 84, p. 59) as amended by Regulation N o 2043/89 (OJ 1989 L 202, p. 1). the costs.

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7. After completion of the written procedure from the direct, logically compelling, conse- Regulation N o 3309/85, in which the con- quences of the declaration of annulment. On tested provision was inserted, was replaced the contrary it is sufficient that the appli- by Regulation N o 2333/92 6 which adopted cant's legal position improves if the defen- the provision word for word in Article 6(6). dant fulfils his obligations under Article 176 of the Treaty. 7

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The Court stated (paragraphs 27 to 31 of the measure and governing the marketing years judgment): subsequent to that judgment contains no provisions having the same effect as the pro- visions held to be illegal.

'In order to comply with the judgment and to implement it fully, the institution is required to have regard not only to the oper- However, by virtue of the retroactive effect ative part of the judgment but also to the of judgments by which measures are grounds which led to the judgment and con- annulled, the finding of illegality takes effect stitute its essential basis, in so far as they are from the date on which the annulled measure necessary to determine the exact meaning of entered into force. It follows that in the what is stated in the operative part. It is present case the institution concerned is also those grounds which, on the one hand, iden- under an obligation to eliminate from the tify the precise provision held to be illegal regulations already adopted when the annul- and, on the other, indicate the specific rea- ling judgment was delivered and governing sons which underlie the finding of illegality marketing years after 1983/84 any provisions contained in the operative part and which with the same effect as the provision held to the institution concerned must take into be illegal. account when replacing the annulled mea- sure.

because the provision applying-to the previ­ with the case-law cited by the C o u n c i l that ous marketing year had duly.expired, it may can be regarded as an observation not only be said here that the new provision is an on the question of the legal nature of the expression of the original intention to intro­ contested measure but also on the question duce the contested rule for an unlimited whether it is of individual concern to the period. In other words it extends the life of applicant. Furthermore, and I shall immedi­ the old provision and in that respect has ately discuss that briefly, both questions are more than just the 'same content' as the old intimately related so that the Court should provision for the purposes of the Asteris consider the latter condition of a right of judgment. action of its own motion (Article 92(2) of the Rules of Procedure) if it does not regard the action as inadmissible already on other grounds.

12. It follows that the adoption of Regula­ tion N o 2333/92 has neither extinguished the 14. In the following I shall give my views on interest in bringing an action nor settled the both questions and also on the question main issue. whether it is of direct concern to the appli­ cant, which only the Commission disputes.

II — Observations on admissibility 15. (b) The scope of this analysis will include an examination of the legal nature and effects of the contested measure which presupposes that its precise content is clear.

13. 1. (a) The objections which the Council makes as to admissibility relate primarily to the requirement in the second paragraph of 16. In that respect it may be observed that in Article 173 that the contested measure must the operative part of its application the appli­ be a 'decision'. It is true that in its arguments cant challenges the whole Article 6(5a)(b) of in relation thereto the Council also observes Regulation N o 3309/85. O n the other hand that the applicant is affected by the measure only in its capacity as a producer who uses the term 'crémant' just like every other pro­ ducer who is in the same position. As 10 — See Joined Cases 250/86 and U/87 RAR v Council and Commission [1989] E C R 2045 (cf. headnote and para­ appears from a comparison of that argument graph 11 of the full judgment).

19. 2. (a) First, as regards the legal nature of the contested measure, there can be no doubt that, if the applicant's position is disre­ garded, it is not a decision but a measure of a legislative nature. The test for distinguishing between those two kinds of legal acts is that a decision is binding only on those 'to whom it is addressed' whereas a legislative act (in the present case it can, as a subdivision of that category, only be a measure in the nature of a regulation) has general applica­ 17. Since the condition objected to can be tion. 1 4 removed from the contested provision with­ out robbing it altogether of its substance 1 1 the Court can, if it upholds the applicant's 13 — See paragraph 12 of the case cited in the previous footnote claims, restrict the declaration of annulment as well as, for examples of the practice of the Court, to that condition. 1 2 It would also have to do Case 192/83 Greece v Commission [1985] ECR 2791 and Joined Cases 56 and 58/64 Consten and Grundig v Com- that in this case in order not to exceed the mission [1966] ECR 299. 14 — Consistent case-law on the distinction between a regulation and a decision: see for example Case 26/86 Deutz und Gel- dermann v Commission [1987] ECR 941, paragraph 7; Joined Cases 97, 193, 199 and 215/86 [1988] E C R 2181, paragraph 13; the terms used, which refer generally to mea- 11 — Only the transitional system of the final subparagraph sures of a 'legislative nature', derive írom the Order would, partially, cease to be justified. of 13 July 1988 in Case 160/88 R Fédération Européenne de 12 — See Case 37/71 ¡amet v Commission [1972] ECR 483, para- la Santé Animale and Others v Commission [1988] graphs 9 to 11. ECR 4121, paragraph 27.

— It must be considered whether although the measure is generally in the nature of a regulation, nevertheless vis-à-vis the applicant it proves to be a decision.

21. Although the Deutz und Geldermann 19 — See the pertinent examination of the claim which Advocate case, on which it was sought to rely in the General Mischo made in his Opinion at pp. 945, 946). From that point of view it would be relevant for the 'numerus clausus' clause whether, as the applicant thinks, the con- tested condition applied only to producers who had tradi- tionally used the term 'méthode champenoise'. 15 — See paragraph 7 of the judgment in Deutz und Geldermann See in that respect von Winterfeld's criticism in Möglich- (previous footnote). keiten der Verbesserung des individuellen Rechtsschutzes im europäischen Gemeinschaftsrecht, Neue Juristische Wochen- 16 — See paragraph 15 of the judgment in the Asiens case (foot- schrift 1989, p. 1409. It is, however, in no way established note 8). that meeting that criterion is sufficient to classify a measure 17 — See Joined Cases 16 and 16/72 Confédération Nationale des as a decision; see the extensive observations of Advocate Producteurs de Fruits et Légumes v Council [1962] General Tesauro in his Opinion of 26 September 1989 in E C R 471, at p. 479 (the end of the first paragraph of Sec- Usines Coopératives de Déshydratation du Vexin v Com- tion 3). mission [1989] ECR 3811, at pp. 3819, 3821. See also mv observations below on the question whether it is of individ- 18 — Joined Cases 41 to 44/70 International Fruit Company v ual concern to the applicant (paragraph 40 et seq.). Commission [1971] E C R 411, paragraphs 16 to 22.

— It must be determined, without dwelling 26. In the two last solutions the legal protec- any longer on the characteristics of a tion is based solely on the individual posi- 'decision', whether the measure is of indi- tion of the applicant. That is right, in my vidual concern to the applicant. opinion. From two points of view that approach corresponds to the aim of the sec- ond paragraph of Article 173. First, in so far as the right of action of an individual is based on that provision it is a guarantee of the legal protection of the individual. For that reason the second paragraph of Arti- cle 173 gives a right of action for annulment of decisions which are of individual (and direct) concern to the applicant without it 24. In my opinion in view of the position being possible to object that they are not reached in the case-law the last-named altern- addressed to him. It is difficult to understand ative should be adopted. why in the case of a challenge to a measure which vis-à-vis persons other than the appli- cant produces the effects of a legislative mea- sure another criterion should be adopted and that factor held against the applicant. That observation seems to me all the more impor- tant since many Community rules on closer examination reveal themselves to be very complex and have quite different effects vis- 25. In that connection attention should first à-vis the different groups of persons affected. be drawn to the fundamental difference between the first-mentioned solution on the one hand and the latter two on the other. The first solution may result in the appli- cant's being denied legal protection, although his legal position in relation to the contested rule corresponds to that of a person to whom a decision is addressed (he is distin- guished 'individually just as in the case of the person addressed' 20). That restriction on 27. Secondly, in so far as the second para- legal protection would follow if that solution graph of Article 173 limits the right of action were adopted simply because other persons of the individual by the requirement of a contemplated by the rule have no such par- decision, it must be observed that that crite- ticular position (that is to say, they are rion relates to the substance. As is already affected only in their 'objective capacity' as apparent from the wording of the provision, traders in the particular sector concerned 'in the Community legislature cannot exclude just the same way as any other producer or the right of action simply by adopting the trader in the same position' 21 ). form of a regulation. 22 If, however, in rela- tion to the applicant a measure appears as a

'if a measure entitled by its author a regula- tion contains provisions which are capable of being not only of direct but also of individ- ual concern to certain natural or legal per- sons, it must be admitted, without prejudice to the question whether that measure consid- ered in its entirety can be correctly called a regulation, that in any case those provisions do not have the character of a regulation and 'although in the light of the criteria set out may therefore be impugned by those persons in the second paragraph of Article 173 of the under the terms of the second paragraph of Treaty regulations imposing anti-dumping Article 173.' 2 3 duties are in fact, as regards their nature and their scope, of a legislative character, their provisions may none the less be of individual concern to certain traders (...)'.

30. It was at first, however, uncertain how 24 — See the discussion by Advocate General Jacobs in his Opin- the Court would decide the case where one ion of 21 March 1991 in Case 358/89 Extramet Industrie v Council [1991] ECR. 1-2501 at p. 2507, paragraphs 40 to 48. 25 — Joined Cases 239/82 and 275/82 Allied Corporation v Com- mission [1984] ECR 1005, paragraph 11. 26 — Case 53/83 Allied Corporation v Council [1985] ECR 1621, 23 — Joined Cases 16 and 17/62 Producteurs de Fruits et Légumes paragraph 4. v Council [1962] ECR 471, at p. 479. 27 — (Footnote 24) paragraph 13 et seq.

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32. The Court continued: 34. The two solutions should nevertheless not lead to different results, for a measure which is of individual concern to one person and therefore affects him as the addressee of a decision is necessarily, from the point of view of the dual nature model, a decision in relation to him. 29 Furthermore the Court has shown that in practice it considers both 'It follows that measures imposing anti- characteristics according to the same crite- dumping duties may, without losing their ria. 3° character as regulations, be of individual concern in certain circumstances to certain traders who therefore have standing to bring an action for their annulment.'

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in the field of common agricultural policy. them as inadmissible, especially in the case of Secondly, a provision which prescribes the independent importers. 37 form of a regulation for a measure may merely be based on considerations of practi- cality. Advocate General Gulmann had to consider such a measure in his Opinion in the Buckl case, 3 3 in which he rightly observed that in view of the case-law of the 37. For all those reasons I am of the opinion Court it would 'not be right to reject the that the general classification of the con- application on that ground'. 3 4 35 tested provision as a measure in the nature of a regulation is not sufficient for the action to be dismissed as inadmissible. On the con- trary, it must be considered whether the applicant is individually concerned by it.

33 — Opinion of 8 July 1992 in Joined Cases C-15/91 and 39. In view of the interpretation of the sec- C-108/91 Bucki and Others v Commission [1992] ECR 1-6061, 1-6074. ond paragraph of Article 173 3 S proposed 34 — i.e. because the contested measure could only be adopted here one of the applicant's main arguments in the form of a regulation. 35 — That case was an action for annulment which Advocate General Gulmann nevertheless considered on the basis of the criterion that the third paragraph of Article 175 of the Treaty must in principle be interpreted in harmony with the second paragraph of Article 173 (paragraph 19 at the foot of 37 — Case 307/81 Alusuisse v Council and Commission [1982] the Opinion). ECR 3463; Joined Cases 239 and 275/82 Allied Corporation v Commission [1984] ECR 1005; Orders in Case 279/86 36 — See the observations in the Opinion of Advocate General Sermes v Commission [1987] ECR 3109 and in Case 301/86 Jacobs, ibid, paragraphs 23 to 29 as well as the judgments in Frimodt Pedersen v Commission [1987] ECR 3123 and in Joined Cases C-133/87 and C-150/87 Nashua v Commis- Case 205/87 Nuova Ceam v Commission [1987] ECR 4427. sion [1990] E C R 1-719 and Case C-156/87 Gestetner v Commission [1990] ECR 1-781. 38 — See paragraph 22 et seq., in particular paragraph 34, above.

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may be understood and summarized as 41. The conditions laid down in the tradi- meaning that by reason of belonging to that tional case-law determining whether an closed category it is to be regarded as indi- applicant is individually affected are there- vidually affected. As, however, the Deutz fore not fulfilled. und Geldermann case shows, having regard to the connection between the characteristics 'decision' and 'of individual concern', that is not sufficient to support a right of action in a particular case. 39 There must be a specific connection between the applicant's situation 42. However, I shall now have to discuss the (in the broadest sense) and the contested legal development which occurred after the measure. Deutz und Geldermann judgment in order to determine whether the applicant can be regarded as individually affected for other reasons.

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had challenged an anti-dumping regulation 46. The first question which arises in that which applied to a certain raw material (cal- connection is whether the principles thus cium metal). The Court stated (paragraph 17 laid down can be transferred to cases of the of the judgment): present kind. As in the case of the question already considered in relation to the inter- pretation of the second paragraph of Arti- cle 173, 44 it is necessary here to determine as a preliminary whether those principles depend on the particular features of the anti- dumping sector. The answer to that is not obvious. It is true that paragraph 16 of the judgment refers to the case of an 'action for 'The applicant has established the existence annulment of an anti-dumping regulation' of a set of factors constituting such a situa- but the following considerations are not tion which is peculiar to the applicant and thereby expressly restricted to that case. which differentiates it, as regards the mea- sure in question, from all other traders. The applicant is the largest importer of the prod- uct forming the subject-matter of the anti- dumping measure and, at the same time, the end-user of the product. In addition, its business activities depend to a very large 47. Other evidence of the scope of the judg- extent on those imports and are seriously ment could be provided by the nature of the affected by the contested regulation in view criteria. In that respect it may be observed of the limited number of manufacturers of that they refer essentially to the applicant's the product concerned and of the difficulties position on the Community market and the which it encounters in obtaining supplies seriousness of the consequences which the from the sole Community producer, which, contested measure has for its business. A moreover, is its main competitor for the pro- special feature may be observed vis-à-vis the cessed product.' traditional case-law: the Extramet judgment is distinguished by the fact that on account of the requisite special relationship between the applicant's situation and the contested measure, for the first time the economic effects are the sole criterion.

49. Although that means that the purely for- mal classification of the case in anti-dumping law did not determine the ratio decidendi of the judgment, objections to its application to other cases might arise from another special feature. The effects considered in the said 51. In that situation the Community legisla­ judgment consisted in a direct intervention ture's decision to regulate the use of the con­ in the competitive position of the applicant tested term and in particular to make it undertaking (in relation to Péchiney) just depend on certain qualities of the product like the effects which State aid produces vis- has a dual effect upon competition: it à-vis an undertaking which is competing strengthens the market position of the prod­ with the undertaking receiving the aid. That ucts entitled to use the term and weakens observation in any event justifies talking of that of products which lose that right. Since an actual extension of the Extramet princi- the applicant is one of the producers whose ples if they were to be applied to a case products fall into the last-mentioned cate­ which is obviously of a different nature. gory, the contested measure alters to its dis­ advantage its relationship to the competing producers of France and Luxembourg who may use the term. In those circumstances the 'criterion of impact' used in paragraph 17 of the Extramet judgment should also apply in the present case.

50. There is, however, no such extension in the present case because it is very similar in that respect to Extramet. It may be observed that in competition among the producers of sparkling wine the term 'crémanť obviously serves to attribute to the particular product qualities which distinguish it from the gen­ eral category of sparkling wines. That could, however, be regarded by the Community 52. It is therefore necessary to consider now legislature as a source of difficulties. O n the whether as a result of the applicant's special one hand, the term does not show clearly the market position and the effects of the con­ characteristics to which it refers, so that it tested measure on its undertaking the appli­ could be used for sparkling wines of very cant is affected by it in the same way as an different qualities, which apparendy is what addressee.

54. There is no dispute that within the cate­ 56. Finally, it may be observed that gory of Community producers so defined between 1986 and 1989 more than two- the applicant has the largest production. The thirds of all the Cava quality sparkling wines some 11 million bottles (0.75 1) of 'Gran Cre- psr which bore the term 'Gran Cremant' mant' which it produces annually mainly for were marketed by the applicant. 4 7 sale on the Spanish market 4 5 may be com­ pared with the 12 million or so bottles pro­ duced in the three regions of Burgundy, Alsace and the Loire as 'crémant de...' in 1988, the year the contested measure was adopted. According to the parties' statements they were the only French sparkling wines 57. I think those findings suffice to show which might be marketed in France with the that the applicant has a clearly distinguished term 'crémant'. Although Law N o 75/577 position on the market in quality sparkling of 4 July 1975 46 is confined to prohibiting wines psr which bear the contested term. the use of the term 'crémant' as a description of semi-sparkling, sparkling and other wines which have no right to a designation of ori­ gin, its purpose, as shown by the history of its adoption, was to reserve the term for

58. As far as concerns the effects on the applicant's undertaking, such effects, as was 45 — See the particulars about the Spanish market in quality spark­ ling wines psr and the applicant's share thereof (annex 5 to the applicant's observations to the objection to admissibil­ ity, p. 4). 46 — Journal Officiel de la Republique Française of 5 July 1975, 47 — See annexes 4 and 6 to the applicant's defence to the Coun­ p. 6813. cil's objection.

2. as regards the production process, that it satisfies the conditions of the second sub- paragraph of Article 6(4) of Regulation are to be discerned, if at all, only with diffi- N o 3309/85; culty. That applies to the second of the two criteria. Whereas in the case of anti-dumping duty the effects on an importer's business may be calculated very precisely (the duties depend on the import price and are intended 3. as regards recognition of the product by to increase it) it is not possible to calculate to the Member State of production, the same extent the effect of prohibiting the use of a term; that is all the more so since in the present case a transitional period is pro- vided for in which the producers can prepare their customers by appropriate publicity for — that the Member State has assigned the forthcoming alterations. Nevertheless I the term 'crémant' to the product in take the view that having regard to the combination with the name of a par- effects of the measure the applicant is suffi- ticular region in which the wine was ciently distinguished from the category of made (the first subsubparagraph of other producers who fall within the mea- the provision); sure's scope for the measure to be regarded as of individual concern to the applicant.

— that the wines were produced in accordance with the special rules laid down for their manufacture by the 59. In that respect we must first discuss the Member State (second subsubpara- conditions on which Article 6(5a)(b) makes graph of the provision);

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65. In those circumstances I do not think it necessary to discuss the applicant's argument in relation to the denial of legal protection and consider what significance it has that the applicant has no right of action before the national courts against the contested mea- 62. Apart from the condition at (4) the sures since the prohibition resulting from the applicant's product satisfies all the require- geographical restriction does not require a ments which the Community rule specifies national measure for its implementation. before a product may use the designated term. In competition with producers who likewise satisfy the conditions of quality and in addition the contested geographical condi- tion, it would have the special advantage that it had used the term for its product for a 66. (d) As regards the question whether it is long time (at least more than 65 years). That of direct concern to the applicant, which the circumstance is significant for the Spanish Commission denies, I can immediately fol- market, to which the main part of the appli- low on from what I have previously said. cant's sales go. As far as that market is con- The Commission bases its view on the fact cerned it must also be borne in mind that in that there is nothing to show that Spain using that term the applicant has since 1924 would have attributed to the applicant the used a trade mark and thus ensured that the use of the term on the conditions laid down consumer is particularly aware of the rela- in the first subsubparagraph of the relevant tionship between that term and its product. provision if the Community legislature had

'Those rules [in relation to the application of the name of a particular wine-growing 69. First, such justification might be found area] also provide that the name of a speci­ in the general scheme of Regulation fied region may be combined with details concerning the method of manufacture o r the type of product; ... in order to protect such traditional descriptions which are used 48 — See Case C-236/90 Maier v Freistaat Bayern [1992] ECR I-M83, paragraph 25. for other types of products of spedfic origin,

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the term "crémant" should be reserved for 'as regards indications of origin ... the geo- certain quality sparkling wines psr manufac- graphical area of origin of a product must tured in France and Luxembourg.' confer on it a specific quality and specific characteristics of such a nature as to distin- guish it from all other products.' M

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75. The Court continued: 78. We do not need to dwell long on the Commission's argument that 'crémanť is a French word. In the judgment in the 'Sekt' case the Court stated:

'Moreover, the method of production of a vine product constitutes a criterion which is 'An area of origin which is defined on the all the less capable of being used by itself to basis ... of ... a linguistic criterion cannot identify origin as, to the extent to which it is constitute a geographical area ... capable of not linked with the use of a specific type of justifying an indication of origin ...'. grape, the method in question may be employed in other geographical areas.'

77. It is therefore not surprising that the arguments which the Council and Commis­ sion put forward in support of the opposite 80. Next it is necessary to deal with an argu­ view do not stand up to scrutiny. ment upon which the Commission laid much

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emphasis. The Commission is of the view down before the adoption of the contested that.the term 'cremam' has gradually become provision the term 'crémant' was necessarily in the consumer's mind a term referring to a combined with the three named areas of particular geographical origin. To that extent wine. cultivation. The provision in question regard should be had to certain permanent also allows producers from other areas of practices which had a long tradition and France as well as Luxembourg producers to ought to be protected. use the term 'crémant' (on the conditions which are there set out).

82. Against that argument it may be 84. Contrary to the Commission's view, observed that the said French provisions protection of the consumer against informa­ were not even intended to make an indica­ tion which for linguistic reasons he cannot tion of origin out of a term referring t o a understand can also not be regarded as justi­ method of production. O n the evidence of fication for the measure. As the applicant's the background to the adoption of example shows, the term 'crémant' has been Law 75/577 the said system was to be intro­ used for a long time by Spanish producers duced first into Burgundy, Alsace and the for the purposes of the Spanish market in Loire without, however, later being confined order to facilitate a distinction from other to those areas. Moreover, it was not even sparkling wines. What the term now implies capable of producing such an effect since on the basis of the contested provision can producers from other Member States, be clarified by the descriptions which can be namely the applicant, lawfully continued to used pursuant to the first subparagraph of describe their products as 'crémant'. Finally Article 6(4) of Regulation N o 3309/85 in the Council can also not rely on the fact that combination with the term 'crémant'. Fur­ in the French provisions which were laid thermore it is also not the aim of the mea-

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sure to restrict the use of the last-mentioned 86. Against that it may be observed that term in Member States where possibly it is protection of traditions as such is neither the not understood (the provision in no way declared aim of the measure nor a ground precludes the expon of French and Luxem­ which can justify the differing treatment of bourg products to any other Member States) traders. but to make it depend on conditions relating to the quality — and the origin — of the product.

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90. The first problem arising from those cir- Cremant' on the same label without creating cumstances and connected with the origi- the risk of misleading the consumer. In that nally very general nature of the term 'cava', respect it is sufficient to observe that even if namely that it cannot be associated with the the Council rightly feared that the consumer term 'crémant' in the same way as the names might be misled in that connection it was at of the French wine-growing areas, could be the most entitled to provide for restrictions solved by a very simple special rule, which in respect of the use of the two terms. As could provide that for descriptions of 'cava' regards the term 'cava' I take the view, more- sparkling wines only the names of small ter- over, that the consumer would in no way be ritorial units within the 'cava' area may be misled by its use in addition to the descrip- associated with the term 'crémant' (for tion 'crémant de ...'. example 'Cremant de Rioja').

92. For all those reasons I am of the opinion 91. The second problem for the Community that the contested measure infringes the pro- legislature is whether a Spanish producer hibition of discrimination in Article 40(3) of may use, in addition to the term 'crémant' the EEC Treaty and must therefore be used in that way, also the general description declared void without it being necessary to 'cava' and/or the trade description 'Gran consider the other grounds of the action.

C — Conclusions

93. Since as I have explained I consider the action in this case t o be admissible and well f o u n d e d I p r o p o s e that t h e C o u r t :