C-46/94

In the criminal proceedings before the Tribu- nal de Police, Bordeaux, the accused con- tended that the Community law rules related solely to the labelling of wine. The pictures of towns and so forth, which were carried as prints or moulding on the 'Bouteilles en fête' bottles marketed by her, did not constitute 2. The question arose in criminal proceed- part of the labelling but part of the bottle's ings in which Michèle Voisine was charged decoration. with having infringed Article 11 of the Law of 1 August 1905 on fraud and falsification relating to products or services inasmuch as, in her capacity as manager of SARL 'Bouteilles en fête', she was alleged to have fraudulently misled consumers by selling, in breach of Community law rules, 1 425 bot- The order for reference tles of Bordeaux wine and 60 bottles of champagne in Vendôme, Romorantin, Blois and Azay le Rideau in bottles carrying pho- tographs of the towns in which the bottles were on sale, together with a short text con- cerning the town's history. 3. The Tribunal de Police was in doubt as to whether the definition of 'labelling' in the Community rules set out below should be * Original language: Danish. understood as covering only the information

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OPINION OF MR ELMER — CASE C-46/94

describing the product or all information on rules are effective, it should also be laid the bottle, and requested the Court of Justice down as a principle that only the details to answer the following question: specified in the rules in question or in the relevant implementing rules are permitted for the description of wines and grape musts'.

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VOISINE

Article 11(2) lays down rules concerning the — refer to the manufacturer or to the vol- information which may supplement the ume of the container and are inscribed description on the labelling; such infor- directly and indelibly thereon, mation is listed in detail and includes '(c) a brand name, in accordance with the condi- tions laid down in Article 40'.

—• are used for the purpose of bottling checks and are indicated in detailed rules to be laid down, Article 12(1) states that only the information specified in Article 11 is to be allowed for the description on the label of a quality wine psr, subject to a list of exceptions which are not relevant as far as the reply to the ques- tion referred to the Court is concerned. — are used to identify the product by means of a figure code and/or of a mechanical scanning symbol,

Article 38(1) defines 'labelling' as 'all descriptions and other references, signs, designs or brand names which distinguish — refer to the price of the product con- the product and which appear on the same cerned, container, including its sealing device, or the tag attached to the container'.

— are laid down by the legislation of the The article continues: Member States on quantity and quality control of products subject to systematic official examination'.

'2. Where the description, presentation and advertising of the products referred to in this Regulation are supplemented by brand Moreover, the labelling used for the descrip- names, such brand names may not contain tion of a table wine, a quality wine psr or an any words, parts of words, signs or illustra- imported wine may not bear brand names tions which: containing words, parts of words, signs or illustrations which:

(a) are likely to cause confusion or mislead the persons to whom they are addressed within the meaning of paragraph 1;

or

(b) ... contain false information, particularly with regard to geographical origin, vine variety, vintage year or a reference to a (b) are: superior quality;

— liable to be confused by the persons to whom they are addressed with all ....'

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OPINION OF MR ELMER — CASE C-46/94

9. The French Government submits that 40 of the regulation acts as a sort of filter for there is no distinction between labelling and that information to prevent consumers being the other ways in which the bottle is pre- misled or confused. sented. The expression 'labelling' in the Community rules on the matter, which are also reflected in Commission Regulation No 3201/90, refers not only to labelling in the old-fashioned sense but also to other forms of marking bottles, for example marking in the form of prints or moulding of the glass. In the Commission's view the present case is The detailed list of the elements that make a good demonstration of why it is necessary up 'labelling' in Articles 11 and 12 of Regu- to protect consumers against being misled. lation No 2392/89 is exhaustive, but does The charge is that inter alia bottles of Bor- not, on the other hand, prevent a bottle car- deaux wine were marketed carrying the rying decoration or other information name of the town Romorantin. That town is unconnected with the wine itself, provided in Loir et Cher, but not, however, in the the requirements concerning brand names in Bordeaux area. Romorantin is also the name Article 40 of the regulation are satisfied. It of a vine variety used in the manufacture of follows that a brand name should not be lia- wine in the Loire, but it is not permitted to ble to mislead the consumer, which could be use that vine variety in the manufacture of the case if the geographical information on Bordeaux wine. the decoration does not tally with the area from which the wine originates.

wine of all practices which are of such a 12. In my opinion the Community rules nature as to create false appearances, irre- cited do not provide a basis for differentiat- spective of whether such practices give rise ing between the labelling on a bottle on the in the minds of those engaged in the trade or one hand and decoration on the other. They of consumers to confusion with existing were clearly intended to prevent any possi- products or the erroneous impression of an bility of confusion or mistake by specifying origin or of characteristics which in reality exhaustively what information may appear do not exist.' 5 on wine bottles and so forth, subject solely to the exceptions expressly listed in Article 38(1). I would refer in that connection to the very broad wording of that provision '... of all descriptions and other references, signs, designs or brand names which distinguish the product and which appear on the same container, including its sealing device, or the In Case 16/83 Prantl 6 , the Court stated (at tag attached to the container'. para. 29):

'... the provisions of Community law on the labelling of wines ... are particularly compre- It is difficult to read any limitation into the hensive and enable the feared confusion to words 'which distinguish the product' since be avoided.' every piece of information on the container distinguishes the product and differentiates it from other products. When Ms Voisine puts pictures and so forth on her 'Bouteilles en fête' it is precisely in order to distinguish the product in a way that sets it apart from other products.

Accordingly it is only possible to put deco- 14. I agree that, as mentioned by the Com- ration on wine containers in so far as the mission, the information 'Romorantin' is an information on that decoration is permitted example of a case where it is likely to mis- under Articles 11 to 12 of Regulation No lead the consumer and cause confusion. On 2392/89. What is of relevance for the answer the other hand, it is just as clear that cases to the question referred to the Court is spe- may be imagined where the brand name is cifically the possibility afforded by Article not misleading, for instance, on the occasion 11(2) of adding a brand name under the con- of a silver wedding, bottles might be sold ditions laid down in Article 40(2). marked with a picture of the silver wedding couple, their name and details of the relevant dates of the marriage and silver wedding. It must be pointed out, however, that it is extremely difficult to lay down general guidelines as to what information might be misleading or give rise to confusion and what would not. In the final event this must hinge on a factual assessment of the circum- stances of the individual case. For instance, if the silver wedding couple in question was 13. The purpose of the rules on brand names publicly known as the owner of a particular in Article 40(2) is to prevent consumers vineyard, the information could, even in the being misled by information on the labelling case of a silver wedding, be regarded as mis- as to origin and characteristics or otherwise leading if the wine did not originate there. be induced into confusion by the description of geographical origin. Thus, at the heart of the Community provisions lies the consum- er's requirement to be protected against information that could cause confusion or otherwise mislead the persons to whom it is directed. It should be pointed out that the risk of confusion or the possibility of being misled does not arise because some descrip- tions — in this specific case, for example, Romorantin — are in fact quite unrelated to 15. It is for the national court in each indi- the wine itself. The problem is rather that the vidual instance to assess whether the label- consumer might be led to believe that there ling satisfies the said requirements.

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