C-249/91

I-788

COMMISSION v FRANCE

strategic and ageing stock. For the Decem­ The Community legislation ber 1988 to January 1990 period, however, exceptional arrangements were applied whereby those quantities were also deducted from the marketing credit until such time as the operator produced proof of exportation.

6. The aforementioned decisions of CIVDN are then approved by the competent minis­ 1 — OJ 1987 L 84, p. 1. try, as a result of which they become gener­ 2 — OJ 1987 L 84, p. 59. ally binding. 3 — OJ 1989 L 202, p. 1.

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OPINION OF MR LENZ — CASE C-249/91

8. According to Article 2 of Regulation 9. The first paragraph of Article 18 provides No 823/87, the specific provisions applicable as follows: to quality wines psr are based on the follow­ ing factors:

'(a) demarcation of the area of production; 'Producer Member States may, taking into account fair and traditional practices:

(b) vine varieties;

of liqueur wines produced in the Communi- adoption or maintenance of the French pro­ ty. 4 visions at issue relating to vins doux naturels.

The matters at issue 11. Article 17 of that regulation provides as follows:

14. The Commission takes the view that the unlawful nature of the French rules may be inferred from the system of the Community 'In addition to the provisions provided for in provisions in the field of the wine market. In this Regulation, producer Member States contrast, the French Republic considers that may, taking into account fair and traditional the Community organization of the wine practices, lay down any additional or more market is not exhaustive in this respect and stringent characteristics concerning declara­ that it therefore does not preclude the intro­ tions of activity or conditions concerning duction of measures of the sort provided for production, preparation, ageing and release by the French rules in the sphere of vins to the market for quality liqueur wines psr as doux naturels. referred to in this Title and prepared within their territory.'

Forms of order sought

12. It appears from the second recital in the preamble to Regulation No 4252/88 that quality liqueur wines psr must also comply with the provisions of Regulation 15. The Commission claims that the Court No 823/87. should:

(a) declare that by 13. It is common ground that none of the relevant provisions of Community law con­ tain any express prohibition preventing the

ló. As I have already mentioned, vins doux naturels and quality liqueur wines psr form the French Republic has failed to fulfil its part of the group of quality wines psr within obligations under Community law and in the meaning of Regulation No 823/87. particular under the provisions of Coun­ According to Article 1 (2) of Regulation cil Regulations (EEC) No 822/87 and No 823/87, the expression quality wine psr (EEC) No 823/87 concerning quality covers other products still, such as, for wines psr; and example, sparkling wines produced in speci­ fied regions.

17. The Commission's objections to the (b) order the French Republic to pay the French legislation relate — as can be clearly costs. seen from the application — solely to vins

I-792

COMMISSION v FRANCE

doux naturels, which are the subject, more­ Should the incompatibility of the French leg­ over, of its first three complaints. In contrast, islation with Community law be inferred the fourth complaint is concerned with the from an overall examination of the provi­ exportation of 'quality wines psr' and there­ sions of Community law applicable to vins fore appears at first sight to be broader. This doux naturels, it would have been appropri­ is, however, manifestly an inaccuracy — of ate to refer to all those provisions and hence completely minor importance — which also to Regulation No 4252/88 in the form of raises no doubt about the actual scope of the order sought. proceedings.

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OPINION OF MR LENZ — CASE C-249/91

that opinion from the point of view of Reg­ provisions of Community law applicable to ulation No 4252/88. It is nevertheless curi­ vins doux naturels raised in the application. ous that more than a year and a half after the Moreover, the defendant understood the adoption of that regulation, the competent application in that way. 5At the hearing, the departments did not yet seem to have Commission's representative submitted that become aware of its existence. the heads of claim should be interpreted as covering a declaration that the French legis­ lation was contrary to Community law in the light of Regulation No 4252/88. In view of those circumstances, it seems to me to be justified to understand the form of order sought in the way that both of the parties have understood it. It is not therefore a new claim, but an objective interpretation, conso­ 20. What consequences should be drawn nant with the interests at stake, of the heads from the fact that the form of order sought of claim in the light of the application. 6 by the Commission seeks merely a declara­ tion that Regulations Nos 822/87 and 823/87 have been infringed, but not that Regulation No 4252/88 has been infringed? From a strictly formal point of view, it might be considered that the subject-matter of the proceedings is defined exhaustively by the form of order sought in the application, and that hence the Commission is not entitled to rely on Regulation No 4252/88 in order to argue that the French legislation is contrary to Community law. That would have serious consequences for the Commission's argu­ ment, since, in so far as it refers to the con­ 22. Since the Commission tackled the ques­ text and the common aims of the relevant tion of Regulation No 4252/88 for the first provisions, it would have to refrain from time in the application, the question might taking a substantial part of the said rules into obviously be raised as whether there was no account. due pre-litigation procedure in this respect. As the Court has consistently held, an appli­ cation brought under Article 169 of the EEC

Treaty 'can be based only on the arguments No 4252/88 within the framework of the and submissions set forth in the reasoned provisions which it examined in this case, opinion'. 7 The Court may consider that without basing new submissions on that reg­ ground of inadmissibility of its own motion, ulation. Account should also be taken of the without its being necessary for the defendant fact that Regulation No 4252/88 is designed, itself to have entered an objection. However, through the content of its provisions, to in my view, this does not mean that the supplement Regulations Nos 822/87 and Court is bound to consider that question of 823/87. 10 its own motion in every infringement pro­ ceedings. I consider that the ideas expressed by Mr Advocate General Gulmann in Case 8 C-61/90 on this issue are worthy of atten­ tion. In his Opinion, the Advocate General stated that the Court's case-law as to the requirements for the pre-litigation procedure 2. Rules on exports was based on a concern to protect the rights of the Member States, and that the Member States' interests were sufficiently safeguarded by the fact that they may raise an objection 9 of inadmissibility.

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OPINION OF MR LENZ — CASE C-249/91

Member State concerned 'has failed to fulfil contrast, if the infringement was terminated its obligations under the Treaty and that it before that time, an action for failure to fulfil has failed to put an end to that infringement obligations is in principle inadmissible. within the time set by the Commission in its 12 reasoned opinion'. The question whether there has been a failure to fulfil obligations must be examined on the basis of the posi­ tion in which the Member State found itself at the end of the period laid down in the rea­ 13 soned opinion.

16 28. As I have already stated elsewhere, exceptions to that rule must be allowed. Since the pre-litigation procedure inevitably takes some time, it would otherwise be scarcely possible for the Commission to pro­ ceed, for example, against infringements of 26. Since the pre-litigation procedure seeks the Treaty which are limited in terms of to eliminate the infringement of the Treaty time. 17 Of course, the Commission should before court proceedings are commenced, conclude the procedure rapidly in such cases there is in principle no place for an action so as not to stand accused of having caused under Article 169 for a declaration that the delays which cannot be attributed to the par­ Treaty has been infringed, if the infringement ticular circumstances of the case at issue. 18

had already ceased on the expiry of the 14 period laid down in the reasoned opinion. In this case, the application of the rules at issue ceased in January 1992, that is to say, several months before the reasoned opinion was dispatched on 19 June 1990.

COMMISSION v FRANCE

before action of 24 May 1989 (which, admit­ II — The substance tedly, related only to the third complaint), the French Government was given one month to reply. Owing to an oversight, to which I have already adverted, on the part of the French administration, the Commission received no reply to those two letters. Nevertheless, the Commission did not 1. The French rules deliver its reasoned opinion until 19 June 1990, that is to say, just under a year after the expiry of the deadline laid down in the last letter and several months after the contested export system came to an end. The Commission has not put forward any cir­ 32. The first three complaints which should cumstances capable of explaining that delay. be examined in this connection relate to the I therefore consider that the conditions in fixing of prices (first complaint) and to the which an action for failure to fulfil obliga­ marketing quotas for vins doux naturels (sec­ tions might in such cases nevertheless be ond complaint). The rules at issue in the held to be admissible by way of exception third complaint, under which the release of are not fulfilled. wine from producers' cellars is subject to the prior production of a certificate from CIVDN attesting to the fact that the con­ tracts have been registered, serve to imple­ ment and control the system of marketing quotas. They therefore stand and fall with the rules criticized in the second complaint. Accordingly, I shall concentrate on the first two complaints and discuss, for simplicity's 30. The French Republic has not expressly sake, the price rules and the quantitative claimed that the application is inadmissible. mechanism, respectively. The Court may nevertheless verify of its own motion whether the conditions for an application for failure to fulfil obligations 19 under Article 169 were present.

34. The Court has confirmed that case-law 2 on several occasions. 1According to that case-law, it is necessary to determine the content of the Community legislation and then to ascertain, on that basis, whether the national rules are in conformity with that legislation.

Hence any provisions or national practices which might alter the pattern of imports or exports or influence the formation of market prices by preventing producers from buying and selling freely within the State in which 35. Admittedly, there are forms of words in they are established, or in any other Member the case-law which suggest that certain State, in conditions laid down by Commu­ national measures may be incompatible per nity rules and from taking advantage directly se with the existence of a common organiza­ of intervention measures or any other meas­ tion of the market. In Pigs Marketing Board, ures for regulating the market laid down by the common organization are incompatible with the principles of such organization of 22 the market.' 20 — Judgment in Case 50/76 Amsterdam Bulb v Produktschap voor Siergewassen [1977] ECR 137, paragraph 8. 21 — Cf. the judgments in Case 111/76 Officier van Justitie v Van den Hazel [1977] ECR 901, paragraph 13, in Case 177/78 Pigs and Bacon Commission v McCarren [1979] ECR 2161, paragraph 14, and in Case 237/82 Jongeneel Kaas v Nether- 22 — Judgment in Case 83/78 Pigs Marketing Board v Redmond lands [1984] ECR 483, paragraph 12. [1978] ECR 2347, paragraphs 56, 57 and 58, my emphasis.

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COMMISSION v FRANCE

36. That case-law could be understood as of the Community — in this case that of the meaning that, in the field of each of the com­ free movement of goods — unless they are mon market organizations —• irrespective of justified by reasons recognized by Commun­ 23 their actual form —, the Member States are ity law.' under a duty to refrain from any price-fixing measure.

23 — Judgment in Case 216/84 Commission v France [1988] ECR 793, paragraphs 18 and 19. 24 — Judgment in Case 90/86 Crtmmal proceedings against Zoni [1988] ECR 4285, paragraph 26. See likewise the judgment delivered on the same day in Case 407/85 3 Glocken and Another v USL Centro and Another [1988] ECR 4233, paragraph 26, and the judgment in Case C-86/89 Italy v Commission [1990] ECR I-3891, paragraph 19. In this connection, it must be added that, 25 — It goes without saying that the Member States may act if even if they support a common policy of the and in so far as powers have been conferred on them to that Community, national measures may not con­ end in provisions laying down a common organization of the market in the sector in question (sec the judgment in flict with one of the fundamental principles Case 89/84 Ramel [1985] ECR 1385, paragraph 25).

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OPINION OF MR LENZ — CASE C-249/91

40. The Court's judgments which I have just cited do not, in my view, preclude that inter­ pretation. In its judgment in the Pigs Mar- keting Board case, the Court referred 41. The considerations set out by the Court expressly to 'conditions laid down by Com­ in its judgment of 18 September 1986 in munity rules' and to 'measures for regulating Case 48/85 Commission v Germany are to the market laid down by the common organ­ 26 the same effect; that judgment has particular ization'. Likewise, the wording in relevance to this case, since it is concerned Case 216/84 Commission v France, according with the common organization of the market to which Member States must refrain from in wine. With regard to the powers of the taking any unilateral measure in the sphere Member State, the Court stated as follows: of a common market organization 'which consequently falls within the competence of the Community', may be understood as referring to the powers conferred on the Community by provisions establishing the common organization of the market (and to the mere fact that a common organization of the market has been established). A confir­ 'Their legislative competence can only be mation of the view that it is still necessary to residual; it is limited to situations which are examine the lawfulness of the national rules in the light of their compatibility with the 27 — Judgment cited in footnote 6, at paragraph 21; see also the judgment in Case C-35/88 Commission v Greece [1990] ECR 1-3125, paragraph 29, and the judgment in Case C-61/90 Commission v Greece, cited in footnote 9 above, at 26 — Judgment cited in footnote 22, at paragraph 58. paragraph 22.

3. The common organization of the market in 44. However, the French Government cor­ wine rectly points out that those cases were con­ cerned with the rules applicable to table wines, whereas vins doux naturels are quality wines. It is therefore doubful whether it is possible to infer from those judgments that the Court also intended to rule therein on the rules applicable to quality wines. The judgment of 18 September 1986 in (a) Case-law of the Court Case 48/85 Commission v Germany, cited 31 above, is particularly interesting in that regard. Those infringement proceedings were concerned with German rules not permitting the addition of rectified concentrated grape must in the production of local wines and quality wines psr. The Commission argued 43. In its judgment in Frantl, the Court held that this constituted an infringement of the 32 that the Community legislation on the com­ provisions of Regulation No 337/79 (the mon organization of the market in wine immediate predecessor of Regulation could be regarded as forming a 'complete No 822/87) and of one provision of system', 'especially as regards prices and intervention, trade with non-member coun­ tries, rules on production and oenological 29 — Judgment in Case 16/83 Frantl [1984] ECR 1299, paragraph practices and as regards requirements relat­ 14. ing to the designation of wines and 30 — Judgment cited in footnote 25, at paragraph 25. Cf. also in this connection the judgment in Case 48/85, cited in foot­ note 28, at paragraph 11. 31 — Cited in footnote 28. 32 — Council Regulation (EEC) No 337/79 of 5 February 1979 28 — Judgment in Case 48/85 Commission v Germany [1986] on the common organization of the market in wine, ECR 2549, paragraph 12. OJ1979 L 54, p. 1.

(b) Interpretation of the Community provi­ sions

'It may be inferred from those consider­ ations that the absence of measures concern­ ing the withdrawal, where necessary, of products from the market does not stem 46. None of the Community rules which should now be considered expressly deal

35 — Judgment in Jongeneel Kaas v Netherlands, cited in foot­ note 21, at paragraph 13; judgment in Case 148/85 Direction Générale aes Impôts v Forest [1986] ECR 3449, paragraph 33 — Council Regulation (EEC) No 338/79 of 5 February 1979 14. laying down special provisions relating to quality wines 36 — Judgment in Amsterdam Bulb, cited in footnote 20, at para­ produced in specified regions, OJ 1979 L 54, p. 48. graph 9. 34 — Cited in footnote 28, at paragraph 11. 37 — Judgment cited in footnote 21, at paragraphs 14, 15 and 16.

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COMMISSION v FRANCE

from an omission or from an intention to No 823/87 submitted to the Council on 17 leave measures of this nature to the appraisal December 1987, the Commission even stated of the Member States but is rather the con­ that Regulation No 823/87 included provi­ sequence of a considered choice of economic sions the purpose of which was to 'guide' policy of relying essentially on market forces Member States in drawing up national rules 39 to attain the desired balance.' on quality wines psr. It would therefore seem that overly wide conclusions cannot be drawn from a comparison between the con­ tent of Article 1 of Regulation No 822/87 and that of Title III of that regulation.

38 — Sec in this connection the third recital in the preamble to Regulation No 823/87 and the Opinion of Mr Advocate General Gulmann in Case C-47/90 Delhaize et Le Lion [1992] ECR I-3687, at 3694. 39 — COM (87) 642 final, OJ 1988 C 14, p. 8. at p. 9.

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OPINION OF MR LENZ — CASE C-249/91

Article 39 of the Treaty and, in particular in especially in wine growing is bound to con­ the wine sector, to stabilize markets and tribute to the improvement of conditions on ensure a fair standard of living for the agri­ the market and, as (a) result, to an increase in 41 cultural community concerned; whereas outlets'. these objectives may be attained by adjusting resources to needs, in particular through the pursuit of a policy of quality.'

52. If those recitals are considered together, 50. That aim is cast in more concrete form it appears that the Community legislator by the preamble to Regulation No 823/87, in intended that the Community should be so far as the provisions of that regulation are empowered to intervene in the wine sector designed in order to attain its aims by 'adjusting resources to needs'. It is also clear that a quality of promoting quality was to consti­ tute the starting point.

'to maintain a minimum quality standard for quality wines psr, to avoid an uncontrollable extension of the production of such wines and to harmonize the provisions of the Member States so as to establish conditions 40 of fair competition in the Community'. 53. The Community provisions applicable to quality wines psr and to liqueur wines put that approach into effect. Those provisions aim at promoting the quality of the products which they cover. The factors to be taken into consideration in that respect are set out 51. In the next recital, it is further stated that in Article 2 of Regulation No 823/87 and 42 specified in that regulation. In the case of quality liqueur wines psr, account should also be taken of the specific provisions of Regulation No 4252/88. Manifestly, the pol­ icy on the promotion of quality pursued by

56. This shows that the legislator was not 54. The wording of the fourth recital in the exercised simply by a concern to promote preamble to Regulation No 823/87, which quality, but that it intended at the same time refers to 'contributing' to the policy of pro­ to make a means of regulating the market moting quality with a view to attaining the available. objectives of the regulation, suggests that the Community has still other means available to it. That is in fact the case. According to Art­ icle 11 of Regulation No 823/87, Member States have to fix a maximum yield per hect­ are for each quality wine psr. In the case of vins doux naturels, this is supplemented by 57. Likewise, the provisions governing the the second indent of Article 13 (2) of Regu­ fixing of the maximum yield per hectare lation No 4252/88, which provides that the leave a broad discretion to the Member 47 description 'vin doux naturel' is to be States. According to the third subpara­ reserved for quality liqueur wines psr graph of Article 11 (1) of Regulation obtained within the limit of a yield per hect­ No 823/87, the yield per hectare may be are of 40 hectolitres of grape must. fixed at different levels for the same quality wine psr depending on the sub-region, local administrative area, or part thereof, and the vine variety or varieties from which the 43 — See the fourth recital in the preamble to Regulation No 823/87. grapes are derived. In addition, the maxi­ 44 — Sec the third recital in the preamble to Regulation mum yield per hectare may be adjusted by No 823/87 ('in order to maintain a minimum quality stan­ dard for quality wines psr ...') and the fifth recital in the preamble to Regulation No 4252/88 ('provision should accordingly be made for their minimum characteristics'). 45 — Apart from manifold individual provisions, reference should be made in this context simply to Article 18 of 46 — My emphasis. Regulation No 823/87 and to Article 17 of Regulation 47 — Those provisions are the subject of a request for a prelimi­ No 4252/88, which autho..zethe Member States to lay nary ruling in Case 289/91 Kuhn, in which Mr Advocate down additional or more stringent 'production' conditions. General Gulmann is shortly to deliver an Opinion.

58. In view of that situation and of the pos­ 61. Neither can the French rules be based on sibilities conferred on the Member States by Article 17 of Regulation No 4252/88. Admit­ Regulations Nos 823/87 and 4252/88, I con­ tedly, the French Government has argued sider that the Member States are not entitled that what was involved in this case was rules to introduce in this sphere in addition price on 'ageing' within the meaning of that provi­ rules and a quantitative mechanism of the sion. However, the Commission has rightly type at issue, if they have not been expressly observed that producers may at any time sell empowered to do so by the Community leg­ quantities in 'strategic and ageing stocks', islator. provided that they have a commensurate marketing credit (which does not depend on the age of the wine). In addition, those quan­ tities may be sold abroad at any time. It is therefore clearly not a condition relating to the ageing of the products concerned.

64. However, in my view it is the aim pur­ sued by the Community provisions in authorizing Member States to adopt addi­ tional or more stringent rules which is decisive. It is clear from the preambles to Regulation No 823/87 and Regulation No 4252/88 that that aim is to preserve the 63. The Commission's argument that the special qualitative features of the products in provisions at issue are not rules on 'circula­ question: tion' (namely, movement) but marketing ('commercialisation') provisions does not appear particularly cogent to me. There is, admittedly, a temptation to assume that the legislator had in mind provisions of the sort set out in Title V of Regulation No 822/87 ('Rules concerning free circulation and release to the market'), such as for example provisions on accompanying documents nec­ essary in order for the products in question 'Whereas, in order to preserve the special to be released to the market (cf. Article 71 of qualitative features of quality liqueur wines Regulation No 822/87) and not, for instance, psr, Member States should be allowed to price rules or a quantitative mechanism. apply additional or more stringent rules gov­ Consideration of the wording of the various erning the production, preparation, ageing language versions of the provisions shows, and circulation of quality liqueur wines psr, however, that in some cases very different forms of words have been used and, in addi­ tion, that Article 1 of Regulation No 4252/88 50 — In the French version — as has ¡ust been indicated itself states that that regulation lays down — Article 1 of Regulation No 4252/88 refers to 'commer­ cialisation', whereas the fourteenth recital in the preamble states that the Member States may adopt rules governing 'circulation' and Article 17 accordingly also refers to rules on 'circulation'. This is also true of the Dutch version, where the words used arc 'afzet' (Article 1) and 'verkeer' 49 — In its judgment in Case C-47/90 Delhaize et Le Lion [1992] (fourteenth recital and Article 17), and of the Italian ver­ ECR I-3669, paragraph 26, the Court had to consider sion, which uses the term 'commercializzazione' in Arti­ whether the rules at issue (which stipulated that wine had cle 1, but employs 'circolazione' in the fourteenth recital to be bottled in the region of production) could be based and in Article 17. The English version differs, in that the on Article 18 of Regulation No 823/87. It held as follows: word 'marketing' is used in Article 1, the word 'circulation' 'Toutefois, l'article 18 du règlement no 823/87 ne saurait in the fourteenth recital and the expression 'release to the être interprété come autorisant les États membres à imposer market' in Anicie 17. As for the German version, it is par­ des conditions qui seraient contraires aux règles du traité ticularly unclear, since the word 'Vermarktung' is used both relatives à la circulation de marchandises (However, in Article 1 and in the fourteenth recital, whereas Article 17 Article 18 of Regulation No 823/87 cannot be interpreted as refers to 'Inverkehrbringen'. Examination of the corre­ authorizing Member States to impose conditions contrary sponding provisions of Regulation No 823/87 yields a sim­ to the Treaty rules on the movement of goods). ilar result.

account being taking of traditional practic­ Regulation No 823/87 and the relevant es'. national implementing measures. At the same time, the price rules affect producers' right freely to negotiate prices for their products. The French rules are therefore contrary to the principle of an open market — which also applies in the sphere of the common organization of the market in wine — 'to which every producer has free access and the 65. The French rules are intended to stabi­ functioning of which is regulated solely by lize the markets by seeking to obviate a the instruments provided for by that organi­ 52 sharp fall in prices during the marketing zation'. year. As the French Government has stated, in the final analysis those rules are calculated to protect the existing structure of the pro­ duction of vins doux naturels. It appears to me that these are completely legitimate con­ cerns, which fall within the aims of the com­ mon agricultural policy set out in Article 39 of the Treaty. Nevertheless, it is also clear that the French rules are not requirements designed to preserve the quality of the prod­ ucts concerned. Consequently, the French rules cannot be based on Article 17 of Regu­ lation No 4252/88. 67. The objections which the French Gov­ ernment bases on the nature of the price rules and quantitative mechanism which it has introduced do not affect that conclusion. Thus, the Government argues that the price rules should not be regarded as systematic market intervention, since producers and 66. The Commission has rightly observed traders are free to agree prices below the that the price rules and quantitative mecha­ minimum price or above the maximum price. nism at issue result, or may result, in its In addition, the French Government main­ being impossible to market products pre­ tains that contracts concluded at the begin­ pared within the limits of the maximum ning of the marketing year account for a yield per hectare laid down in Article 11 of considerable fraction of the marketing credit for that year. Those circumstances do not alter the fact that producers may initially uti­ lize only the first part of their marketing 51 — Fourteenth recital in the preamble to Regulation No 4252/88. The German version erroneously refers to quality wines psr, whereas, regard being had to the context and to the wording of the other language versions, it should of course refer to quality liqueur wines psr. The same wording appears with regard to the same point in the 52 — See the Court's judgment in Pigs Marketing Board v Red- (French and German versions of) the twenty-second recital mond, cited in footnote 22, at paragraphs 56 and 57, and the in the preamble to Regulation No 823/87 ('afin de con­ Opinion of Mr Advocate General Gulmann in Case server le caractère qualitatif particulier ...'/'zur Erhaltung C-47/90, cited in footnote 36 above, at 3696 et seq. Cf. also des besonderen qualitativen Charakters...', rendered in the the third recital in the preamble to Regulation No 4252/88, English version as 'in order to preserve the particular qual­ according to which that regulation is intended to enable ity characteristics ...'). 'free circulation of such products to be facilitated'.

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OPINION OF MR LENZ — CASE C-249/91

72. The fact that provision is made for inter­ details are set out in the Report for the Hear­ vention measures for those products to the ing. To my mind, it appears from the Com­ necessary extent on the market in table mission's description that the legislator wines, whereas no comparable power is pro­ deliberately refrained (apart from the excep­ vided for in case such intervention should tion set out in Article 51 of Regulation prove necessary to support the market in No 822/87) from laying down a price or quality wines psr themselves, in itself sug­ intervention system for quality wines psr. gests that, in the legislator's intention, inter­ The fact that the version of Article 55 of vention measures should be permitted only Regulation No 822/87 currently applicable exceptionally in the field of quality wines provides merely for intervention measures psr. The Commission has rightly observed in (and not for a price or trading system) is this connection that that provision originates probably attributable to the idea that, for the in Article 19 of the proposal for a regulation purposes of Article 51 — maintaining bal­ on the common organization of the market ance on the market in table wine —, the pos­ in wine, submitted by the Commission to sibility of taking intervention measures in 53 the Council on 24 June 1967. That provi­ the sector of quality wines psr is enough. sion reads as follows:

76. I would add, however, that it has not been easy for me to reach this conclusion. Among other things, I was perplexed by the fact that the rules at issue were in force for — it seems neither possible nor opportune to many years without prompting the Commis­ consider a formal organization of the sion to contest them. Moreover, one might market in quality wines psr, and have expected that the Commission — at least in connection with the travaux préparatoires for Regulation No 4252/88 — would have become aware of those rules and that that question would have been dealt with in the regulation itself. Neither is it — there is a certain saturation of the market, possible to ignore that, in the final analysis, the rules on the conditions needed to the French rules pursue objectives which encourage the production of original and might be regarded as being compatible with quality wines should be tightened up.' 55 the aims of the common agricultural policy set out in Article 39 of the Treaty. Likewise, to my mind, some weight should be given to the French Government's reference to the importance of the rules at issue to the pro­ ducers (generally relatively small holdings) and to the region concerned.

4. Conclusion

77. However, the French Government has not shown that it was essential to retain the 75. In view of the foregoing considerations, rules at issue in order to attain those objec­ I take the view that the French price rules tives. Account should be taken in that con­ and quantitative mechanism are incompatible nection of the fact that, according to the actual submission of the French Government at the hearing, the rules at issue at present 55 — OJ 1988 C 208, p. 18 (my emphasis). apply to only two of the ten most important

81. However, in my view the decisive point 79. It might be possible in particular to con­ is that the rules in question do not put sider the possibility of an infringement of

57 — Cf. the judgment in Pigs Marketing Board v Redmond, cited in footnote 22, at paragraph 55. 56 — However, according to the particulars provided by the 58 — Judgment in Jongeneel Kaas v Netherlands, cited in foot­ French Government's agent, those two 'appellations' are the note 21, at paragraph 22; judgment in Case C-47/9D Del- most important ones from the quantitative point of view. baize et le Lion [1992] ECR 1-3669, at paragraph 12.

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COMMISSION v FRANCE

exports at a disadvantage vis-à-vis domestic sions should suffer the same fate. As I have sales. On the contrary, they merely have the already held that the price rules and the effect of applying to exports the rules apply­ quantitative mechanism are not compatible ing to marketing on the domestic market. with Community law, this is also true of the 60 Consequently, those rules do not constitute export rules. in my view a measure having effect equi­ valent to a quantitative restriction on exports 59 within the meaning of Article 34.

III — Costs

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OPINION OF MR LENZ — CASE C-249/91

— fixing a marketing quota for vins doux naturels beyond which a producer may not market wines produced within the limits of the statutory yield per hectare but must allocate them to a strategic and ageing stock,

— making withdrawals of wines from producers' cellars conditional upon prior production of a document issued by the CIVDN certifying that the contract has been registered, thus making it impossible to dispose of any quantities outside the marketing credit system,

the French Republic has failed to fulfil its obligations under Community law and in particular under the provisions of Council Regulations Nos 822/87 and 823/87 concerning quality wines produced in specified regions;

(2) Dismiss the remainder of the application as inadmissible;