C-75/90
ECLI:EU:C:1991:15
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GUITARD
O P I N I O N O F M R ADVOCATE GENERAL VAN G E R V E N delivered on 15 January 1991 *
Mr President, presented to the public as having had all Members of the Court, alcohol removed (the label stating '0° vin sans l'alcool') and that this indication of the degree to which alcohol had been removed was not the subject of criminal proceedings. 1. Proceedings were brought against Roger I can therefore restrict my examination to Guitard, in his capacity as President of the question whether or not wine, within l'Union des Caves Coopératives de l'Ouest the meaning of the Community legislation, Audois et du Razès (Union of Cooperative must contain alcohol, without having to Wineries in Western Aude and Razès), in specify, if the answer to that question is in the Tribunal Correctionnel (Criminal the affirmative, the minimum degree of Court), Carcassonne, for the offences of alcoholic strength which renders a beverage misrepresentation and conducting wine within the meaning of that legislation. misleading advertising in marketing, from November 1988 under the name 'alcohol-free wine', a beverage based on wine from which the alcohol had been removed. Secondly, I would observe that the main proceedings are concerned with the description of a French product marketed in France. There is therefore no need to The national court considered that in order consider the aspects of Community law to establish whether the facts of the case which govern the marketing in France of constituted a criminal offence, it was products originating in other Member States necessary first to obtain an interpretation of under the description 'alcohol-free wine'. the Community definition of wine. It therefore requested a preliminary ruling from the Court on the following question:
3. In Point 8 of Annex II to Council Regu- ' D o the EEC regulations require that wine, lation N o 337/79 of 5 February 1979 on the defined in point 8 of Annex II to Regulation common organization of the market in N o 337/79 and in point 10 of Annex I to wine, ' to which the national court first Regulation No 822/87, must, when refers in its question, the following defi- supplied, have a minimum degree of nition of wine appeared: alcoholic strength?'
2. At the outset, I would make two obser- '8. Wine, the product obtained exclusively vations. First, it appears from the documents from the total or partial alcoholic fermen- before the Court and the parties' arguments tation of fresh grapes, whether or not at the hearing that the beverage at issue was crushed, or of grape musts.'
* Original language: French. 1 — OJ 1979 L 54, p. 1.
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Regulation N o 337/79 was repealed by grape musts, 5 it follows that the product Council Regulation (EEC) N o 822/87 of 16 defined therein must necessarily have a March 1987 on the common organization certain degree of alcoholic strength. of the market in wine 2 with effect from 1 April 1987. Point 10 of Annex I to Regu- lation N o 822/87 gives a definition of wine which is identical in every w o r d 3 to that which appears in point 8 of Annex II to the repealed Regulation No 337/79. The 5. Admittedly, the Community definition of conduct which is the subject of the main wine does not expressly prescribe a proceedings (the marketing of 'alcohol-free minimum alcoholic strength, which is, wine' from November 1988) occurred at a however, required in the case of certain time when Regulation N o 822/27 was types of wine, in particular 'wine suitable already in force. I shall therefore refer to for yielding table wine', 6 'table w i n e ' 7 and the definition in Regulation N o 822/87 'quality wines'. 8 The absence of any indi- only, it being understood that its substance cation of alcoholic strength in the definition has not been changed in relation to the defi- of wine in general does not, however, nition which appears in Regulation enable it to be assumed that an alcohol-free N o 337/79. beverage made from grapes would be covered by that definition. As I have already indicated, one of the essential characteristics of wine is its alcohol content.
4. According to that definition, wine is a product obtained from the alcoholic fermentation of fresh grapes or grape musts. According to 'Robert', 4 the word 'fermen- 6. It is also true that 'alcohol-free wine', tation' means 'the molecular chemical trans- which is the subject of the main formation of a substance of organic origin proceedings, is a beverage obtained from which occurs under the influence of leaven wine from which the alcohol has been which does not appear to undergo any removed by means of a specific process. I change itself'. The term 'alcoholic fermen- consider, however, that the product which tation' is defined in that dictionary as the remains after the alcohol has been removed process 'whereby alcohol is produced from from wine, that is to say after the wine has sugar'. lost one of its essential characteristics, can no longer be classified as wine within the meaning of the Community rules, especially since the process of removing alcohol from wine is not a permitted oenological practice Since point 10 of Annex I to Regulation No within the meaning of Title II of Regulation 822/87 refers exclusively to the process of N o 822/87. A wine from which the alcohol alcoholic fermentation in order to designate has been removed must therefore be the product obtained from fresh grapes or 5 — Point 2 of Annex I to Regulation N o 822/87 allows the 2 — OJ 1987 L 84, p. 1. grape musts to have an alcoholic strength of not more than 1%, by volume. 3 — I would, however, point out a difference in the French text in which the word 'foulée' (crushed) gramatically does not 6 — Point 12 of Annex I to Regulation N o 822/87. relate to fresh grapes as in Regulation N o 337/79 but to 7 — Point 13 of Annex I to Regulation N o 822/87. alcoholic fermentation. Given the other versions and the 8 — Article 7 of Council Reguládon (EEC) N o 823/87 of 16 context, this is manifestly an error. March 1987 laying down special provisions relating to 4 — Robert, P.: Dictionnaire alphabétique et analogique de la quality wines produced in specified regions (OJ 1987 L 84, langue française, 1975. p. 59).
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GUITARD
considered as no longer falling within the 2. Without prejudice to the provisions for scope of Regulation N o 822/87. :he harmonization of laws, the possibility for the Member States to allow:
— the use of the word "wine" accom- 7. The Community legislation contains panied by the name of a fruit and in the none the less some provisions relating to the form of a composite name to describe use of the name 'wine' which, in order to products obtained by the fermentation avoid confusion in the mind of the of fruit other than grapes, consumer, 9 also apply to beverages other than wine within the meaning of the Community definition. Although the national court does not refer to those provisions in the Order for reference, it would seem appropriate, given the facts of — other composite names including the the case and in order to give the the word "wine", national court all the elements of Community law which might be of use in resolving it, to examine the implications of those provisions as well. shall not, however, be affected by the provisions of paragraph 1.
8. Article 45(l)(a) of Council Regulation (EEC) N o 355/79 of 5 February 1979 In the event of use of the composite names laying down general rules for the referred to in the previous subparagraph, description and presentation of wines and any confusion with the products referred to grape musts, 10 which was applicable at the in paragraph 1 must be avoided.' material time, 11 restricts use of the appel- lation 'wine' to products conforming to the definition in point 8 of Annex II to Regu- lation 337/79 and therefore, at the material time, in point 10 of Annex I to Regulation 9. The scope of Article 45(2) of Regulation N o 822/87. Article 45(2) of Regulation No No 355/79 was specified by Article 20 of 355/79 provides, however, for the following Commission Regulation (EEC) N o 997/81 relaxation : of 21 March 1981 laying down detailed rules for the description and presentation of 9 — Sec the judgment in Case 56/80 Firma A. Weigand v Schutzverband Deutscher Wein fK[1981] ECR 583. wines and grape musts. 12 According to 10 — OJ 1979 L 54, p. 99. Article 20(l)(b), Member States may 11 — Regulation No 355/79 was repealed by Council Regu- authorize, to describe beverages from their lation (EEC) N o 2392/89 of 24 July 1989 laying down general rules for the description and presentation of wines own production or beverages which and grape musts (OJ 1989 L 232, p. 13), which came into force on 4 September 1989, thus after the events which are the subject of the main proceedings. The provision which 12 — OJ 1981 L 106, p. 1. Article 20 of Regulation N o 997/81 corresponds to Article 45 of Regufation N o 355/79 is now remained applicarne after the coming into force of Regu- to be found in Article 43 of Regulation N o 2392/89. lation N o 2392/89 repealing Regulation N o 355/79.
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originate in other Member States o r which order to avoid any confusion in the mind of have been imported, the use of the word the consumer. 'wine' in composite names such as 'British wine' or 'Irish wine'. Article 20(2) contains, moreover, the following provision:
It is therefore for the national court to ascertain whether the French legislation '2. To avoid confusion between the terms authorizes the use of the words referred to in paragraph 1 above and the 'alcohol-free wine' to describe a product words "wine" and "table wine", Member other than wine within the meaning of the States shall ensure that: Community rules. However, in this connection, the French Government has indicated in the observations which it submitted to the Court that the French legislature has not used that option. — the word "wine" is used only in a composite name and in no circumstances on its own, and
11. It remains for me to examine a final — the composite names referred t o in the point relating to the defence mentioned in first indent are shown on the label in the Order for reference, to the effect that lettering of the same type and of the French winegrowers would be discriminated same colour and of such a height that against if a beverage obtained by removing they are clearly distinguishable from the alcohol from wine could be marketed other information.' under the name 'alcohol-free wine' in other Member States. In that connection it should be noted that the special situation of French wine growers arises from the fact that the Community legislation empowers but does not require Member States to authorize the 10. At the hearing, the Commission stated, use of the word 'wine' for products other without being contradicted by the other than wine. It follows that by refraining from parties, that the words 'alcohol-free wine' taking advantage of that possibility a constitute a composite name. Accordingly, Member State may make the marketing on the appellation 'alcohol-free wine' can be its territory of beverages originating there used to describe a beverage obtained by subject to conditions which are stricter than removing the alcohol from wine, in so far as those in force in other Member States. 13 As the Member State has availed itself of the the Court has consistently held, M option provided for in Article 45 of Regu- Community law does not preclude such a lation N o 355/79 (repealed), which is now difference in treatment. Article 43 of Regulation N o 2392/89. When they avail themselves of that option Member States must ensure that the word 'wine' is 13 — As mentioned in paragraph 2, the facts of the case do not justify a review of the provisions of Community law used in accordance with the conditions laid governing intra-Community trade in products marketed under the appellation alcohol-free wine. down by the abovementioned provision and 14 — See in particular the judgment in Case C-350/88 Delacn by Article 20 of Regulation N o 997/81 in and Others v Commission [1990] ECR 1-395.
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Conclusion
12. I propose that the Court should give the following reply to the question submitted by the national court:
'Point 10 of Annex I to Council Regulation No 822/87 (EEC) of 16 March 1987 on the common organization of the market in wine is to be interpreted as meaning that wine, as defined in that provision, must contain a certain degree of alcohol. However, although Article 45(l)(a) of Council Regulation (EEC) No 355/79 of 5 February 1979, laying down general rules for the description and presentation of wines and grape musts, restricts the appellation "wine" to products conforming to the definition in the said point 10, paragraph 2 of that article enables Member States to authorize the use of the composite appellation "alcohol-free wine" to describe wine-based products from which all alcohol has been removed.'
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