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Mr President, the champagne method') or 'klassische Members of the Court, Flaschengärung — méthode champenoise' ('classical bottle fermentation — méthode champenoise'). I shall subsequently refer to these descriptions simply as 'méthode champenoise'. The effect of the provisions cited above is that Winzersekt will no longer 1. The Verwaltungsgericht (Administrative be able to use those descriptions after Court) Mainz has referred to the Court a 31 August 1994. The association has con- question on the validity of Article 6(5) of tested the legality of those provisions. Council Regulation (EEC) N o 2333/92 of 13 July 1992 laying down general rules for the description and presentation of sparkling wines and aerated sparkling wines. ' The provisions of that article state that the desig- nation 'méthode champenoise' may — after the expiry of a transitional period — be used only for sparkling wines which are entitled 2. The background to and facts of the case to the registered designation 'Champagne'. are as follows. Since the 1920s German spar- The Verwaltungsgericht has doubts as to the kling wines, which could previously be mar- validity of those provisions in the light of the keted under the name 'Champagner', have fundamental right freely to exercise a trade been unable to use that name owing to the or profession and the principle of non- protection accorded to the French designa- discrimination. tion 'Champagne', and were subsequently marketed under, in particular, the designation 'Sekt'. The protection accorded to 'Cham- pagne', however, did not prevent German producers or other French producers from using the description 'méthode champenoise' The dispute before the Verwaltungsgericht is for their own products. between the Land Rheinland-Pfalz and SMW Winzersekt GmbH, an association of wine-growers which produces sparkling wines from wines of the Mosel-Saar-Ruwer region and markets its products as 'Sekt' under the description 'Flaschengärung im Champagnerverfahren' ('bottle-fermented by 3. That designation refers to a specific method of production, the exact parameters * Original language: French. of which are not defined but which, accord- 1 — OJ 1992 L 231, p. 9. ing to the information to hand, may nor-

mally be distinguished from other forms of 5. Winzersekt initially brought proceedings production of sparkling wine by the follow- before the Verwaltungsgericht Mainz for a ing two factors: declaration that the association was entided until 31 August 1994 to use the designation 'méthode champenoise'. By judgment of 2 February 1989 the Verwaltungsgericht held that application to be well founded. Win- zersekt then applied to the authorities of the — the fermentation of the wine with a view Land Rheinland-Pfalz for a 'binding state- to making it sparkling — what is referred ment' on whether that designation could to as the second fermentation — occurs lawfully continue to be used even after in the bottle; and 31 August 1994. By decision of 15 January 1992, the authorities notified Winzersekt that the association would not be entitled to use the designation in question after 31 August 1994. Winzersekt thereupon brought pro- ceedings before the Verwaltungsgericht in — the lees are separated from the cuvée by which it sought a declaration that that deci- disgorging. sion was unlawful and that the association would accordingly still be entitled to use the designation 'méthode champenoise' after that date. Since it took the view that the outcome of the application hinged on the question whether Anicie 6(5) of Regulation N o 2333/92 was lawful, the Verwaltungsgericht referred the following question to the Court 4. In 1985 the Community legislature sought for a preliminary ruling: to regulate the description and presentation of sparkling wines by adopting Regulation N o 3309/85, subsequendy replaced by Reg- ulation N o 2333/92. The provisions of Arti- cle 6(5) of the 1985 regulation were practi- cally identical to those which form the subject-matter of the present case and like- wise had the effect of prohibiting, after a transitional period expiring on 1 September 1994, the use of the designation 'méthode champenoise' for sparkling wines not enti- 'Are the provisions of Article 6(5), second tled to the designation 'Champagne'. A Ger- and third subparagraphs, of Council Regula- man producer, Deutz und Geldermann, tion (EEC) N o 2333/92 of 13 July which was in the same position as Win- 1992 invalid in so far as they provide that zersekt, sought to have those provisions from September 1994, for quality sparkling annulled. In its judgment of 24 February wines produced in specified regions from 1987 in Case 26/86, 2 the Court dismissed wines not entitled to the registered designa- that application as inadmissible. tion of origin "Champagne", reference to the method of production known as "méthode champenoise" together with an equivalent expression relating to that method of pro- 2 — Case 26/86 Deutz und Geldermann v Council [1987] ECR 941. duction is not to be permitted?'

8. In my view, that proposed reply should be rejected, since it is incontrovertible that the provisions at issue are, apart from some minor differences in drafting, identical in the 10. The first two articles of Regulation N o two regulations, and no doubt has been 2333/92 contain definitions, while the rest of expressed, whether by the French Govern- the regulation is divided into three titles. The ment or anyone else, that the Court's reply first title deals with description, the second to the question in the reference will enable with presentation, while the third contains the Verwaltungsgericht to reach a decision in general provisions. The first title covers Arti- the case before it. As to the reality of the dis- cles 3 to 8. Articles 3 to 5 contain provisions pute, I would merely point out that there is on the information which must be given on nothing to cast doubt on Winzersekt's inter- labelling. Article 5(2) provides, inter alia, est in being able to continue to use the des- that the descriptions 'Sekt' and 'Sekt bestim- ignation at issue and that there would mter Anbaugebiete' are reserved for quality accordingly be scarcely any sense in requir- sparkling wines and quality sparkling wines ing the association to await the expiry of the psr respectively. Article 6 concerns optional transitional period in order to be able to information, Article 7 deals with the lan- have the legal position clarified. I therefore take the view that it is appropriate to exam- ine the legality of Article 6(5) of Regulation 3 — OJ 19S7 L 84, p. 1. N o 2333/92. 4 — OJ 1992 L 231, p. 1.

12. The rules forming the framework for Article 6(5) are thus quite detailed and it ought to be pointed out that the designations permitted refer to quite specific factors 11. Article 6(1) deals with the use of geo- enabling them to be of considerable informa- graphical names, Article 6(2) deals with the tive value for interested parties. It should names of vine varieties and Article 6(3) con- also be noted that the designations Cham- cerns use of the expression 'bottle- pagne, Winzersekt and Crémant are specific fermented'. Article 6(4) deals with the in so far as the quality of sparkling wines expressions 'bottle-fermented by the tradi- which may bear those designations is tional method', 'traditional method', 'classi- regarded as being particularly high in view of cal method' and 'classical traditional method' the fact that they must satisfy additional — in what follows I shall refer to these conditions to those governing designation as solely by the expression 'traditional method'. a quality sparkling wine psr. Article 6(5) deals with the use of designa- tions derived from geographical names in conjunction with expressions relating to a method of production and provides that the name 'Champagne' is reserved for wines entitled to use that registered designation, while Article 6(6) deals with the designation 'Winzersekt' — which is reserved for quality sparkling wines psr produced in Germany and satisfying a number of conditions — and 13. Article 6(5) provides as follows: the designation 'crémant', which was reserved for quality sparkling wines psr pro- duced in France or Luxembourg and satisfy- ing a number of conditions laid down by the respective national legislatures. 5 Finally, the

'(a) was made sparkling by a second alco- holic fermentation in the bottle;

Such expressions may be used only to describe a product entitled to one of the geo- graphical ascriptions referred to in the first (b) stayed without interruption in contact subparagraph. with the lees for at least nine months in the same undertaking from the time when the cuvée was constituted;

However, reference to the method of pro- duction known as "méthode champenoise" (c) was separated from the lees by disgorg- may, if such a usage were traditional, be used ing.' together with an equivalent expression relat- ing to that method of production for five wine-growing years from 1 September 1989 for wines not entitled to the registered designation "Champagne". 15. The reference in the final subparagraph of Article 6(5) to the second subparagraph of Article 6(4) indicates that the use of the des- ignation 'méthode champenoise' is subject, during the transitional period, to the same conditions as the use of the designation 'tra- ditional method', that is to say the two des- Furthermore, use of an expression referred ignations refer to one and the same method to in the third subparagraph shall not be per- of production. This is precisely the point mitted unless the conditions referred to in underlying the reasoning of the Verwal-

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In the first of those methods, the fermenta- tion designed to make the wine sparkling takes place in a tank. In the second, like the méthode champenoise, this fermentation takes place in the botde, while, in contrast t o the méthode champenoise, the wine is sepa- rated from the lees through transfer and fil- tration in a tank. 18. According to Winzersekt, it is cannot be argued that 'the "méthode champenoise", as a method of production, refers to Cham- pagne'; the notion of 'méthode champe- noise', it contends, 'has become absolutely and 100% separated from the concept of the geographical area'. The use of a designation 17. Winzersekt has pointed out that in tank which merely refers to the process for the fermentation the production process is much production of sparkling wine and which can- shorter, less onerous and rather more indus- not in any way mislead consumers cannot be trial than the méthode champenoise and that anything other than lawful. The prohibition producers who use the method of closed- of the use of such a designation would for

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those reasons adversely affect the economic However, there appear to be no grounds for freedom of Winzersekt to market and sell its supposing such a risk of confusion to exist in products. 6 the case of the designations "méthode champenoise" and "Champagnerverfahren". They have been used for about a hundred years exclusively to describe a method of production, and they have by now acquired independent significance, so that their use does not imply the suggestion that the spar- 19. The reasons which led the Verwaltungs- kling wine thus described originates from gericht to entertain doubts as to the legality Champagne. ... of the provisions in question in the light of the principle of free exercise of a trade or profession are set out in the following terms in the order for reference:

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vent consumers, when faced with a product but also against designations which include bearing the designation 'méthode champe- delocalizing terms such as 'style', 'type', noise', from being misled as to the origin of 'brand' and 'method'. Designations of this the product, and, in any event, the designa- kind are intended to take advantage of the tion is liable to create the impression that the prestige of a designation of origin or geo- inherent qualities of the product are on a par graphical description. with those of champagne.

22. The Council also points out that, in its 21. The Council and Commission referred judgment in Exportar,7 the Court has in particular, as justification for the provi- already accepted that a policy designed to sions in question, to the thirteenth recital in protect designations of origin and geograph- the preamble to Regulation N o 2333/92, ical descriptions is well founded in Commu- which is worded as follows: nity law.

'..., bearing in mind the international obliga- The Council finally argues that it did not tions of the Community and the Member exceed the bounds of its discretion by adopt- States regarding protection of registered des- ing the rules in question. ignations of origin or geographical descrip- tions of wines, it should be laid down that the use of designations relating to a produc- tion method may not refer to the name of a geographical unit unless the product con- cerned may be designated by that name;'. 23. I consider it appropriate to cite the Court's case-law, according to which

27. Neither the Council nor the Commis- 24. It is clear that the provisions in question sion, however, has been able to point to any do not infringe upon the very substance of multilateral agreement which obliges the the right freely to exercise a trade or profes- Community or the Member States to pro- sion. The question which arises is thus hibit use of the designation 'méthode whether the provisions pursue objectives of champenoise'. The two institutions referred general interest and whether they interfere in particular to a resolution of the General with Winzersekt's position in a dispropor- Assembly of the International Wine Office. 9 tionate manner. The reference is to Resolution N o 7 of the 61st General Assembly of the Office of 7 September 1981, in which the Commission took p a r t . , 0 Although this resolution addresses delocalizing terms, it also provides

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for the possibility of finding 'arrangements cles 2 and 3 of that Agreement provide that to regulate certain individual customary cas- the designations contained in Annexes A and es'. It can scarcely be argued that the resolu- B thereto are reserved exclusively for French tion gives rise to specific and precise obliga- or German products. Article 4 provides that tions, quite apart in any case from the fact the use of those designations otherwise than that, according to the available information, in accordance with Articles 2 and 3 is to be undertakings assumed within the context of prohibited. The two institutions referred to the International Wine Office can hardly be Article 4(2) of the Agreement, which pro- described as international-law obligations. vides that the use of designations containing delocalizing terms is also to be prohibited, and the Commission submits on that basis that the designation 'méthode champenoise' would appear to be at variance with that Agreement. The Commission then goes on to state in its written observations that 'this 28. With regard to bilateral agreements contention is confirmed by Article 5 of the entered into by the Community, these Agreement, in conjunction with Article 3(c) involve general provisions which do not jus- of the annexed protocol, which treats the tify the conclusion that the Community expression "méthode champenoise" as indi- intended to prohibit the designation 'méth- cating the essential characteristics of French ode champenoise' in order to protect con- products alone; here, the prohibition of mis- sumers in the non-member countries con- leading indications refers only to the use of cerned. n such designations on French products, which is the sole authorized use.'

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ode champenoise' was that contained in Article 13 of Regulation N o 2333/92, which Article 161 of the French Wine Code, which, is worded as follows: to justify use of the designation, required merely that the wines had been 'made spar- kling by natural fermentation in the bottle', and since for that reason the designation was also widely used by French producers out- side the Champagne region, I am inclined to take the view — like the Verwaltungsgericht '1. The description and presentation of the Mainz in its above judgment of 2 February products referred to in Article 1(1) and any 1989 — that German producers who form of advertising for such products must employed that production method and des- not be incorrect or likely to cause confusion ignation cannot be accused of having used or to mislead the persons to whom they are false or misleading indications within the addressed, particularly as regards: meaning of Article 5 of the Agreement.

— the information laid down in Articles 3 and 6; this shall also apply if the infor- mation is used in translation or with a reference to the actual provenance or with additions such as "type", "style", "method", "imitation", "brand" or simi- lar,

cle 13 in the regulation in question is rather 35. O n the other hand, there does not an argument against the views espoused by appear to be any clear ground on which to the Council and Commission. If the designa- dismiss the argument that the designation tion 'méthode champenoise' had been under- 'methode champenoise' may mislead con- stood as referring to something other than a sumers as to the characteristics of the prod- method of production, the designation uct in question, just as it is also not possible would have been more likely to be covered to state that this designation does not take by the general prohibition laid down in Arti- undue advantage of the reputation of cham- cle 13 and there would have been no need pagne. Although prudent consumers will be for the specific provisions of Article 6(5). aware that the designation refers only to a method of production, there is a real risk that less well-informed consumers will believe, by reason of the designation, that the sparkling wine is of the same standard as champagne, quite irrespective of its actual quality. In this connection, significance should also be attached to the fact that the 33. The need to suppress the designation regulation in question establishes a strict 'méthode champenoise' is thus not derived scheme of permitted designations and condi- from either international obligations or other tions under which they may be used, and Community provisions. What we have here, that the designation 'méthode champenoise' rather, is a 'new' prohibition introduced b y may be regarded as misleading in view of the the Council with a view to reinforcing the fact that the production method used in the protection hitherto accorded to champagne Champagne region includes several other and eliminating all risk of misleading con- factors (which probably even have a decisive sumers with regard to the qualities of spar- bearing on the production of champagne) in kling wine; the question thus remains as to addition to those covered by the designation whether it is disproportionate to suppress, in question. on those grounds, a designation which has been the subject of traditional usage.

40. The judgment in Codomiu cannot affect 37. O n that basis I take the view that the this assessment. 16 That case concerned a des- effort to strike such a balance has not ignation which had been reserved for a par- resulted in a disproportionate interference ticular group among all the producers who with the position of Winzersekt. traditionally used it and the Community leg- islature was unable to explain satisfactorily why other traditional users had been prohib- ited from using it. In the present case, no tra- ditional user of the designation 'méthode champenoise' will in future be able to use it. 38. It remains to consider whether the pro- visions in question infringe the principle of non-discrimination.

39. The Court has consistendy held that this Furthermore, the fact that some types of principle requires that similar situations cognac will still be able to bear designations should not be treated differently unless such including the word 'Champagne', such as differentiation is objectively justified. 15 'Fine Champagne', 'Petite Champagne' and so forth, cannot affect the outcome.

15 — See, inter alia, the judgment in Joined Cases 124/76 and 20/77 Moulins Pont-à-Mousson v Office Interprofessionnel 16 — Judgment in Case C-309/89 Codomiu v Council [1994] des Céréales [1977] ECR 1795, paragraph 17. ECR 1-1853.

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41. I therefore propose that the Court should reply as follows to the question referred to it by the Verwaltungsgericht Mainz: