C-105/94

A — The relevant Community legislation 3. Article 15(4) of the 1987 Regulation pro- vides that the watering down of wine 'shall be prohibited', unless otherwise authorized by the Council. Article 73(1) provides 2. Wine is listed in Annex II to the Treaty 2 as an agricultural product within the mean- 3 — Under Article 38(1) agricultural products arc defined as 'the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products'. * Original language: English. 4 — See Council Regulation (EEC) N o 816/70 of 28 April 1970 1 — G. K. Chesterton, 'Water and Wine', Poems for all Purposes laying down additional provisions for the common organiza- (1913). tion of the market in wine (hereinafter 'the 1970 Regu- lation'); OJ, English Special Edition 1970 (I), p. 234. 2 — The relevant heading in Annex II reads 'Wine of fresh grapes; grape must with fermentation arrested by the addi- 5 — OJ 1987 L 84, p. 1. tion of alcohol*. 6 — OJ 1987 L 184, p. 26.

I - 2974

CELESTINI v SAAR-SEKTKELLEREI FABER

9 — OJ 1978 L 226, p. 11. 7 — OJ 1976 L 135, p. 1. 10 — Reference should now be mide to Article 73 of the 1987 8 — OJ 1977 L 187, p. 10. Regulation.

I - 2975

OPINION OF MR FENNELLY — CASE C-105/94

whether those products have undergone pro- or cesses contrary to authorized oenological practices'. Article 74(2) prescribes the meth- ods of analysis which may be applied in the absence of harmonized Community rules. They are: — if necessary, any other appropriate method of analysis.'

'(a) those recognized by the General Assembly of the International Vine and 6. The first two subparagraphs of Wine Office (IWO) and published by Article 79(1) of the 1987 Regulation provide that Office; or that:

'Member States shall take all necessary mea- (b) where an appropriate method of analy- sures to ensure compliance with Community sis does not appear amongst those provisions in the wine sector. They shall des- referred to in point (a), a method of ignate one or more authorities which shall be analysis complying with the standards responsible for verifying compliance with recommended by the International those provisions. Organization for Standardization (ISO); or

7. On the basis of Article 74 of the 1987 Regulation, the Commission adopted Com- mission Regulation (EEC) N o 2676/90 of 17 September 1990 determining Community methods for the analysis of wines (hereinaf- ter 'the 1990 Commission Regulation'). n Article 1 of the 1990 Commission Regulation provides for a large number of official Com- munity methods of analysis with a view to unmasking impermissible oenological prac- 'The controls in the areas referred to in the tices. These are set out in the voluminous Annex shall be carried out either systemati- Annex to that Regulation. Article 2 sets out cally or by sampling. In the case of sampling, certain rules regarding the concepts of Member States shall ensure by their number, 'repeatability' and 'reproducibility'. Article 3 nature and frequency that controls are repre- permits, subject essentially to the conditions sentative of the whole of their territory and of accuracy, repeatability and reproducibility, correspond to the scale of the wine-sector the use of automated analytical methods but, products marketed or held with a view t o in the event of a dispute, provides that the their marketing.' 13 methods listed in the Annex should prevail. That Annex, however, contains no method for testing whether water has been added to wine.

The first paragraph of Article 13 provides that 'the laboratories designated to carry o u t analyses pursuant to this Regulation shall be 8. Article 3(1) of Council Regulation (EEC) chosen from those referred to [i. e. those N o 2048/89 of 19 June 1989 laying down designated by the Member State] in general rules on controls in the wine sector Article 79(1) [of the 1987 Regulation]'. "» (hereinafter 'the 1989 Regulation') ' 2 obliges The second paragraph provides that 'the Member States to take 'the necessary mea- methods of analysis shall be those referred t o sures to improve control of compliance with in Article 74 of the same Regulation'. the rules in the wine sector notably in the

9. Article 71(1) of the 1987 Regulation pro- within the customs territory of the Commu- vides that wine may only be put into circula- nity, and who carry out or have carried out a tion in the Community where it is trans- carriage operation involving a wine product ported with an official accompanying in bulk or small quantity must complete on document. The detailed rules concerning this their own responsibility: document are now set out in Article 3 of Commission Regulation (EEC) N o 2238/93 of 26 July 1993 on the accompanying docu- ments for the carriage of wine products and the relevant records to be.kept (hereinafter — an approved commercial document ...'. 'the 1993 Commission Regulation'), 1 5 which was not in force at the time of the events giv- ing rise to this reference. They are, however, similar to the previous rules contained in Commission Regulation (EEC) N o 986/89 of 10 April 1989 on the accompanying docu- B — Facts and proceedings before the ments for carriage of wine products and the ' national court relevant records to be kept, as amended. 16 Article 3(1) of Regulation N o 986/89 pro- vided that 'All carriage within the customs territory of the Community of unpackaged wine products within the scope of Article 9(2) of the Treaty, in quantities of 10. The order for reference has been made in more than 60 litres, shall be effected under the present case by the Tribunale Civile e cover of the original of ... [from 1 January Penale di Ravenna, Sezione Civile (Civil and 1991] an approved commercial document...'. Criminal District Court, Civil Chamber, Such a document had to be drawn up in Ravenna, hereinafter 'the national court'), accordance with the model and instructions which states that by a writ served on 23 June set out in Annexes I and II and had to con- 1993, the company Angelo Celestini (herein- tain (for carriage in bulk) information, inter after 'the plaintiff') summoned the company alia, regarding 'the actual alcoholic strength' Saar-Sektkellerei Faber (hereinafter 'the of the wine. Moreover, Article 6(1) provided: defendant') to appear before the national court to answer the plaintiff's application that the national court should:

(b) authorize Celestini to disregard the measures adopted by the German administrative authority and allow it to market as table wine, on the basis of the analysis conducted, those batches of the product which did not undergo distilla- 'l) Is Article 30 of the EEC Treaty to be tion, so as to avoid further losses in interpreted as prohibiting a Member addition to those already suffered on State from adopting measures which account of the distillation.' prevent the importation and marketing on its territory of a quantity of wine coming from another Member State, if that wine is accompanied by bona fide certificates of analysis issued by research institutes lawfully authorized in the Member State of origin, stating 11. The national court then refers to the that analysis of the wine confirmed contention of the plaintiff that the magnetic- its full conformity with the relevant resonance method of analysis used by the Community legislation? German authorities in the present case 'is not among those expressly listed in Community legislation (Regulation (EEC) N o 2676/90), from which it follows that the actions of both the authorities mentioned and the defendant company were unlawful'. The national court states that it is important to 2) Does Article 36 of the EEC Treaty allow the importing Member State in a case such as that described in 17 — Article 2043, which appears in Title IX of the Code, is Question 1 to disregard the results of entitled 'Dei fatti illeciti' ('Unlawful Acts') and provides as follows: 'Compensation for unlawful acts. — A n y fraudu- the analyses of the wine conducted in lent, malicious, or negligent act tnat causes an unjustified injury to another obliges the person who has committed the the exporting Member State and to act to pay damages'; sec The Italian Civil Code, translated consider itself entided to meet the into English by Beltramo, Longo and Merryman, Oceana Publications, Inc. (New York, 1969). fundamental requirements of that article

by using a method of analysing wine 13. In January 1991, the plaintiff, a wine based on isotopie tests for oxygen and producer with its registered office at Barbi- specified in Question 3? ano, Italy, entered into a contract to supply 60 000 hl of white table wine and 10 000 hi of red table wine to the defendant, which has its head office in Trier, Germany and which specializes in the production of sparkling wines. This case is concerned only with the red wine. The red wine was supplied in two equal consignments. The supply of the first 3) Does Article 74(2)(c) of Council consignment passed off without incident and Regulation (EEC) N o 822/87 in relation was not, so far as appears from the facts to the provisions of Regulation (EEC) available, subject to any particular controls N o 2676/90 allow to be considered as in Germany. lawful and reliable in terms of being accurate, repeatable and reproducible within the meaning of that article the results of an analysis conducted on a batch of wine in isolation, using the method termed "isotopie test for oxygen 16/18" in cases where: (a) no data bank exists to supply the characteristics of the wine of a given area, systematically compiled over the course of several vintages and suited to serve as a genuine basis for comparison; (b) the only supporting data used are 14. The second consignment was shipped in the analytic values of the magnesium, a sealed tanker. The precise identity of the the ash content etc. which, other certificates of analysis which accompanied considerations apart, seem difficult to this consignment remains unclear. The writ- compare and inconsistent with the ten observations of the plaintiff, which is the results of the analyses performed?' only source of information, speaks of several analyses as having been effected following that carried out by the German authorities in July 1991 (referred to below). One of these, annexed as Document 4 to the plaintiff's observations, was described at the hearing by Italy as a 'classic customs accompanying document'. Document 4 appears to be dated 12. Consideration of the documents trans- (from a barely legible copy) 4 July 1991. It is mitted with the order for reference and of described as Report of Analysis (Relazione the observations which have been submitted di Analisi) N 327/91, signed on behalf of to the Court permits, in my view, the follow- 'Enot. Alvise T O F F O L E T T O ' . Among the ing additional facts and details regarding the listed analytical results are a measurement of main proceedings to be taken into account alcoholic percentage by volume at 9.25% by the Court, subject to the reservation that and, as emphasized by the agent representing the establishment of all issues of fact is ulti- Italy, of ash at 2.32 g/1. The date of Docu- mately within the responsibility of the ment 4 is consistent with its having accom- national court. panied the goods. Before referring to it

16. The plaintiff was informed in writing by the defendant by telefax on 13 August 1991 of the impounding of the wine and was asked to arrange for its repatriation to Italy. 15. The second consignment was subjected The plaintiff had asked a specialist laboratory to controls by German authorities in so far at Faenza in Italy to carry out a new test, as certain samples of the wine were tested by while on 7 October 1991 the defendant sent the Chemisches Untersuchungsamt Trier certain samples of the wine to be tested by (Chemical Examination Office of Trier, here- the German-based Fresenius laboratory. O n inafter, for brevity, 'the CUT'). The circum- 31 July 1991 the Faenza laboratory, without stances which led to this analysis were having applied the magnetic-resonance test, explained to the Court for the first time at found that the wine did not contain any the hearing. The agent representing Germany added water. On 3 January 1992 the Fres- was at pains to point out that the objection enius Institute declared that it did not pos- of the German authorities was not based in sess the experience necessary to verify the the first instance on the test carried out at accuracy of the magnetic-resonance method. the CUT. Rather, he said, the wine had ini- The Fresenius Institute also stated that the tially been tested by traditional methods. At 9.1% (Document 4 says 9.25%) the alcohol content and the contents of magnesium, ash 18 — It appears from the observations of the Commission that and residual extracts were viewed as being the Oxygen 16/18 test turns essentially upon an analysis of the isotopes of oxygen contained in the water molecules too low. In addition, four out of five tasters present in wine. Oxygen atoms occur in three different iso- topie forms, namely O 1 6 which is the most widespread considered the wine to be watery and thin (99.8% of the total), O " (0.04%) and O 1 8 (0.16%). The and rejected it. It was only as a support for mass of oxygen atoms and, consequently, that of the water molecules containing them varies proportionally with their these results that the isotopie method was isotopie composition. The proportion of O 1 / O isotopes varies in accordance with the origin of the water; water of used. The tests that were carried out by the vegetable origin contained in grapes is richer in O than CUT, with the assistance of an institute either rainwater or spring water. The Oxygen 16/18 test permits the level of O isotopes to be measured. Sea water based in Jülich, Germany, included one is taken as a point of reference and divergences from it of the levels contained in water of different origins is based upon a method of analysis which will expressed in terms of 'delta' units. The addition of water to hereinafter for convenience be described as wine effects a decrease in the initial delta-unit value of the wine, which has permitted the application of the Oxygen the 'magnetic-resonance' or 'Oxygen 16/18' 16/18 test to the detection of watering of wine.

17. O n 21 January 1992 the plaintiff wrote to the defendant demanding that it bring proceedings to secure the release of the wine. However, the defendant decided to seek the opinion of two further laboratories, which used the magnetic-resonance method, with the following results: on 12 February 1992 the Landwirtschaftlich-chemische Bundesan­ stalt based in Austria took the view that the wine was not fit to be marketed while, on 13 18. Written observations were submitted by February 1992, the French-based Eurofins the plaintiff, the defendant, the Italian laboratory concluded that the isotopie con­ Republic, the United Kingdom of Great tent of the sample submitted indicated the Britain and Northern Ireland, and the Com­ addition of exogenous water of the order of mission. All of these, except for the United 15%. The defendant then asked the German Kingdom, appeared at the oral hearing. The authorities to proceed with the restitution of Federal Republic of Germany also appeared the wine to Italy. Pursuant to this request, at the oral hearing. N o t having submitted the Ministry of Agriculture of the region of any written observations, it relied largely on Rhineland-Palatinate called upon the plaintiff those of the United Kingdom and the Com­ on 5 March 1992 to provide the name of an mission. Italian distillery to which the wine could be sent for the purposes of distillation. The plaintiff nominated a distillery by letter of 11 19 — The Commission bases this contention on evidence which it May 1992 and, on 9 July 1992, the wine was obtained dūrinį· inspections carried out during an official Commission mission in Italy between 1 and 4 September sent back to Italy by the German authorities. 1992. The declaration sought by the plaintiff in its action However, only a part of the wine was, before the national court implicitly supports the veracity of the Commission's claim.

19. The Commission, supported at the hear- ing by Germany, questions the admissibility 21. Article 177 of the Treaty refers only to of the reference made by the national court. the jurisdiction of the Court to give prelimi- It advances four supporting arguments: (i) nary rulings. The division of functions that the referring court lacks jurisdiction; (ii) between the Court and the national courts that the national court's description of the and tribunals which may (and in some cases, factual and legal situation underlying the ref- must) make references to it under Article 177 erence is too imprecise and incomplete; (iii) does not, in my opinion, permit the Court to that the proceedings before the national question whether a national court, which has court appear to be artificial; (iv) that the decided to make a reference under questions referred do not appear to be rel- Article 177, should, in law, have declined evant having regard to the dispute giving rise jurisdiction. The jurisdiction of national to the main proceedings. courts to entertain and adjudicate upon dis- putes submitted to them is, in accordance with the division of functions between such courts and this Court, a matter to be deter- mined by national courts in accordance with rules of national law. This Court cannot question the jurisdiction of national courts in

20 — Convention of 27 September 1968 on Jurisdiction and the 20. In relation to the jurisdiction of the Enforcement of Judgments in Civil and Commercial nut- national judge, the Commission refers to the ters, as amended by the Convention of 9 October 1978 on the accession of tbc Kingdom of Denmark, Ireland and the 'extra-contractual' nature of the proceedings United Kingdom of Great Britain and Northern Ireland, OJ 1978 L 304, p. 77, by the Convention of 25 October and argues that it is the German courts 1982 on the accession oí the Hellenic Republic, OJ 1982 L 388, p.l, and by the Convention of 26 May 1989 on the which, pursuant to Article 2 of the Brussels accession of the Kingdom of Spain and the Portuguese Convention, are competent as the courts of Republic, OJ 1989 L 285, p. 1.

22. The next submission of the Commission is that the action underlying the reference in this case is wholly artificial. It advances three reasons to support its contention that the Moreover, the Court stated in Bosman that principle established by the Court in Foglia v 'where the questions submitted by the Novello I ought to be applied in this case. 24 national court concern the interpretation of Firstly, it refers to the large degree of 'iden- Community law, the Court of Justice is, in tity of view' between the parties as to both principle, bound to give a preliminary rul- the issues in dispute and the decision to refer ing'. 23 However, it may be, as, indeed, is questions to the Court. Secondly, it claims contended by the Commission and Germany that the real object of the main litigation is in this case, that an apparently extremely not the demand of the plaintiff to be com- pensated by the defendant but, rather, to question the legality of the German decision finding the wine 'unfit for human consump- 21 — See Opinion of Advocate General Jacobs and the judgment tion'. Thirdly, the minutes of the oral hearing of the Court in Case C-39/94 Syndicat Français de l'Express International (SFEĪ) and Others v La Poste and Others before the national court on 15 October [1996] E C R 1-3547; paragraph 30 of the Opinion and para­ graph 24 of the judgment. 1993 demonstrate, at least according to the 22 — Case C-10/92 [1993] E C R 1-5105, paragraphs 16 and 17 of the judgment, 23 — Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] E C R 1-4921, paragraph 59 of the judgment. 24 — Case 104/79 [1980] ECR 745.

Commission, the existence of agreement courts in the Community with the infor- between the parties on the desirability of mation on the interpretation of Community referring questions to the Court. law which is necessary to enable them to setde genuine disputes which are brought before them'. 28 The Court thus ruled that it had 'no jurisdiction to give a ruling on the questions asked by the national court'. The national court thereupon made another pre- liminary reference to the Court. 2 9 The Court held in the second case that, while it is primarily for national courts to determine the need for a preliminary ruling, their 'power of appraisal' is not unlimited. 30 In particular, the Court stressed that 'the duty assigned to the Court by Article 177 is not

However, the contract was made subject, ab initio, to a clause whereby the purchaser would not have to pay any duties claimed by either the Italian or French authorities that were 'con- 'It accordingly does not have jurisdiction to trary to the free movement of goods between reply to questions of interpretation which the two countries or at all events not due.' 26 were submitted to it within the framework Certain taxes were levied on the importation of procedural devices arranged by the parties of the wine into France which Novello, rely- in order to induce the Court to give its views ing principally on Article 95 of the Treaty, on certain problems of Community law subsequently refused to pay. This led to an which do not correspond to an objective action in Italy by Foglia and ultimately a ref- requirement inherent in the resolution of a erence to the Court. The Court stated that dispute.' 31 the parties had inserted the clause 'in order to induce the Italian court to give a ruling on the point'. 2 7 Referring to 'the artificial 28 — Sec paragraph 11 of the judgment, emphasis added. nature of this expedient', the Court held that 29 — Sec Foglia v Novello 11, loc. cit., footnote 25 above.

Foglia v Novello li [1981] ECR 3045. 2k — Ibid., Foglia v Novello I, paragraph 3 of the judgment. 30 — Foglia v NoveUo 11, paragraphs 15 and 16 of the judgment. 27 — Sec paragraph 10 of the judgment. 31 — Sec paragraph 18 of the judgment.

32 — Sec paragraphs 83 and 84 of the Opinion. To support this interpretation, he refers, in particular, to paragraph 23 of the judgment in Case C-231/89 Gmurzynska-Bscher [1990] ECR 1-4003, where the Court ruled that the autonomy of 25. There is a distinction between a refer- national courts to decide on the need for a preliminary rul- ing should be qualified 'where cither it appears that the ence by way of a test case arising out of a procedure has been misused and been resorted to, in fact, in order to elicit a ruling from the Court by means of a spuri- genuine legal dispute and an artificially ous dispute or if it is obvious that the provisions of Com- induced reference. I am satisfied that this munity law submitted for the interpretation of the Court cannot apply'. This interpretation is also consistent with the case falls into the former category. In this view articulated by Advocate General Sir Gordon Slynn in his Opinion in Foglia v Novello lì where he stated that the respect, I would regard as crucial the fact Court had refused jurisdiction in Foglia v Novello I 'on the basis that it was satisfied that as between the parties there that while in the Foglia v Novello cases it was no real issue as to Community law. The proceedings in was clear that the parties had consciously the Italian court, indeed maybe the whole transaction, had been set up in order to obtain a ruling on a matter as to created an artificial dispute by means of con- which the parties agreed. Since there was no question between them, the Court was neither obliged nor empow- tractual provisions designed to induce the ered to rule on the matter'; [1981] ECR 3045, p. 3069. Italian court to make the desired reference,

27. While I would not disagree with the statement made at the hearing by the plaintiff that the order for reference in this case 'is not of exemplary clarity', I do not think that 26. It is next necessary to consider whether it is so devoid of information as to make it the national court has provided enough impossible for the Court to ascertain the rea- information in its order for reference to sons underlying it. It has proved possible, enable the Court to provide a meaningful with the aid of the observations of the par- answer to the questions referred. The Com- ties and consultation of the file accompany- mission submits that the statement of facts ing the order for reference, to ascertain the and the summary of the legal issues and pro- underlying facts in sufficient detail so as t o cedure made by the national court in its ref- give guidance to the national court. As the erence are laconic and fail to establish the Court stated in Foglia v Novello II, under precise legal context which led the national Article 177 of the Treaty 'the spirit of coop- court to make its reference. Referring, inter eration which must govern the performance alia, to the judgments of the Court in of the duties assigned to the national courts Lourenço Dias, Meilicke and Telemarsica- on the one hand and the Court of Justice o n bruzzo, 33 the Commission contends that the the other requires the latter to have regard to reference in the present case does not estab- the national court's proper responsibili- lish the need to provide an interpretation of ties'. 3S In Bosman, Advocate General Lenz Community law which will be useful to the stated that 'the national court is best able to national court. As they are closely linked, I assess whether a preliminary ruling from the shall deal with this issue together with the national court is required' and that 'the Commission's fourth argument on admissi- Court should depart from that assessment bility, i. e. that the questions referred do not only in well-founded exceptional cases'. 36 appear to have any connection with the dis- What is required, in my view, is an assess- pute in the main action. 34 The Commission ment of whether sufficient details have been provided so as to enable meaningful answers to be given by the Court. 33 — Sec respectively Case C-343/90 [1992] ECR1-4673, Case C-83/91 [1992] 1-4871 and Joined Cases C-320/90, C-321/90 and 322/90 [1993] ECR 1-393. 34 — In this respect the Commission refers, in particular, to the judgment in Case 126/80 Salonia v Poidomtmi and Ciglio 35 — See paragraph 20 of the judgment. [1981] ECR 1563. 36 — See paragraph 101 of the Opinion.

28. With regard to the relevance of the litigation of any such possible incompa- questions referred for the resolution of the tibility. dispute in the main proceeding, especially in so far as the second head of relief is concerned, I share some of the Commis- sion's doubts as to their admissibility. Even if, on the basis of answers provided by the Court to the questions referred, the national court were to find that the German authori- ties had acted in contravention of Commu- nity law in subjecting the wine supplied t o the magnetic-resonance test, the national court has not explained exactly how that would assist the claim brought against the defendant. All that the national court has said is that, if the answers provided by the Court were to the effect that the test applied was compatible with Community law, the entire action of the plaintiff would have to be dismissed. In its claim for damages the plaintiff cites the allegedly wrongful failure 29. The duty of cooperation which governs of the defendant to bring proceedings in the relationship between national courts and Germany against the German adminis- the Court in Article 177 proceedings obliges trative authorities. In his Opinion in Foglia v Novello I, Advocate General Warner saw the Court, in my opinion, to refuse to no reason to exclude the possibility of a answer questions referred, only in circum- question being raised in proceedings between stances where it is very clear that no genu- private persons, before a court of one inely useful answer can reasonably be given. Member State, regarding the compatibility Viewed in this light and subject always to the with Community law of the laws of another qualification that in Article 177 references Member State. Indeed he thought that the 'the Court can neither apply the Treaty to a national court would be 'bound to address particular case nor give a judgment on the itself to the question'. Of course, as he validity of a measure of national law with pointed out, 'its judgment, however, [would] regard to it, as it is required to do under constitute res judicata only as between the Articles 169 or 170', 38 I am satisfied that the parties to the litigation' and could not present reference is not so 'vague as to the 'bind the Member State whose laws have legal and factual situations envisaged by the been impugned'. 37 It is a matter for the national court' that 'the Court is unable to national judge, in the light of this expla- provide an interpretation of Community nation of the limits of his powers, to appreci- law'. 39 I do not therefore think that the ref- ate the consequences for the parties to the erence is manifestly inadmissible and, accordingly, I recommend to the Court that it answer the questions thereby referred.

30. I agree with the submission of the Com- mission that the three questions referred by the national court raise essentially two sepa- rate Community-law issues. Firstly, is the condemnation as improper for human con- sumption, based on a test carried out by one Member State, of a consignment of wine, delivered with the appropriate accompanying document required by Community law and originating in another Member State, com- 32. The plaintiff also claims that the actions patible with Article 30 of the Treaty and, if of the German authorities cannot be justified not, can it be justified by reference to by reference to Article 36 of the Treaty, o n Article 36? Secondly, is the use by a Member the supposed ground of protecting human State of the magnetic-resonance test in order health or life, because they were carried out to determine the fitness of wine for human in circumstances where no valid justification consumption compatible with Community was given for refusing to accept the result of law? the tests carried out in the country of expor- tation. Both the plaintiff and Italy maintain that the tests carried out in Italy on the wine in question established, at least, a presump- tion that it was in conformity with Commu- nity regulations, which, they contend, could not have been invalidated by a test carried (i) The relationship between wine controls out in Germany according to a method not and the free movement of goods recognized by those regulations.

31. The plaintiff, supported by Italy, submits that the failure of the German authorities, in this case, to respect the controls carried out in Italy constitutes a violation of the general principle of mutual recognition of national 33. The plaintiff accepts that, where doubts controls flowing from Article 30 of the arise as to the results of a first test, an Treaty. This, it submits, is particularly the importing Member State is permitted to case where, as here, the samples tested were carry out further tests but, it submits, those transported from Italy in sealed containers. tests should only be based on official Furthermore, the plaintiff alleges, though methods of analysis. At the hearing, Italy

34. The United Kingdom, which has sub- mitted thorough and detailed written obser- vations, points out that the production and marketing of wine is subject to the rules of a very detailed common organization of the market, one of whose objectives is prevent- ing wines which are either a danger to the health of consumers or which are of a poor quality from being marketed. From the 1987 and 1989 Regulations it is clear that wine 35. The United Kingdom does not, however, which has been subject to an unauthorized contend that a certificate issued by appropri- oenological practice is unfit for human con- ate authorities in a Member State of produc- sumption and, furthermore, that the addition tion is so devoid of value that it may be of water to wine constitutes such an unau- ignored by an importing Member State. O n thorized practice. Where such practices the contrary, it contends that full account occur, the appropriate authorities of each ought normally to be taken of any such cer- Member State must, according to the United tificate but that there will still be cases which Kingdom, ensure that the adulterated wine justify a second analysis. It lists four does not reach the consumer. It contends examples: (i) where there is reasonable suspi- that the 1989 Regulation imposes this obliga- cion that the wine has been subject to an tion not only on the Member State of pro- unauthorized oenological practice; (ii) where duction but, also, on each Member State the second analysis is carried out as part of a where the wine is for the time being located. systematic or random control exercise; (iii) Moreover, the Community regulations do where the importing Member State wishes to not oblige the Member State of production carry out tests additional to those carried out to furnish any particular certificates of analy- in the Member State of production; (iv) sis for its wine; nor do they oblige the Mem- where, in conformity with Community ber State of importation to accept, as proof rules, a Member State wishes to employ a of the conformity with such regulations, any more sophisticated or reliable method of certificate which has in fact been issued in analysis. The United Kingdom observes that, the Member State of origin. According to the on the basis of information contained in the United Kingdom, the only document which, order for reference, it is apparent that no test

36. Referring to Commission v France, 40 the United Kingdom submits that, while Mem- ber States could operate ostensibly permis- sible controls on wine in a manner which, in fact, contravenes Article 30 of the Treaty, the mere fact that testing is carried out on a sys- tematic basis does not justify such a conclu- sion. It argues that what the Court found objectionable in Commission v France was not the application per se of systematic test- ing of Italian wines by the French authorities but, rather, the subjection of those wines to a comprehensive and intensive programme of systematic analysis 'in the absence of any 38. The Commission points to the difficulty concrete facts which might justify a suspi- of discussing, in the absence of any details, cion of fraud or irregularities' and in circum- whether the particular German rules govern- stances where no testing of comparable fre- ing the testing of wine are in conformity quency was applied to French wines with Article 30 of the Treaty. It also refers to transported within France. 41 the Community legislation governing the wine sector and contends that controls by the German authorities may be justified by Community rules even if a hindrance to trade arises from their application. In par- ticular, it states that those rules authorize the application of systematic controls of the quality of wine. The Commission submits 37. At the hearing, in the event of the Court therefore that Articles 30 and 36 of the deciding that the questions referred by the Treaty are not directly applicable to the con- national court were admissible, Germany trols at issue, whose validity should be associated itself with the observations of the assessed by reference to the relevant Com- United Kingdom and the Commission munity rules. Importing Member States are, it maintains, entitled, on the basis of appro- priate controls yielding proof that imported wine has been watered down, to impound 40 — Case 42/82 [1983) ECR 1013. 41 — Ibid., paragraphs 55 and 56 of the judgment. the wine and prevent its marketing.

39. It is firstly necessary to assess the rel ("CAP") must, in any event as from the end evance of Articles 30 and 36 of the Treaty. of the transitional period, be exercised from The status of wine as an agricultural product the perspective of the unity of the market to does not preclude the application of the rules the exclusion of any measure compromising on free movement of goods contained in the the abolition between Member States of cus Treaty. Article 38(2) of the Treaty provides toms duties and quantitative restrictions or that 'Save as otherwise provided in charges or measures having equivalent Articles 39 to 46, the rules laid down for t h e effeď. 4 6 establishment of the common market shall apply to agricultural products'.

Italian wines. The Court held that CAP, through the establishment of common Articles 39 to 46 contain no provision allow organizations of agricultural markets, 4 7 ing the introduction of charges having there may, as Advocate General Capotorti equivalent effect to customs duties in intra- has put it, be a need, when establishing such Community trade and that 'it is clear from common rules, to adopt 'special arrange all these provisions and their relationship ments which depart from the strict applica inter se that the extensive powers, in particu tion of the general rules of the common mar lar of a sectoral and regional nature, granted ket'. 4 8 In the present case, however, it is to the Community institutions in the con important to emphasize that no doubts have duct of the Common Agricultural Policy been raised, either in the questions referred by the national court or in the observations presented to the Court, regarding the compatibility with the Treaty of any of the 42 — Case 48/74 Charmasson v Minister for Economic Affairs and Finance [1974] E C R 1383. 43 — Ibid., paragraph 8 of the judgment; see also Case 68/76 Commission v France [1977] ECR 515, paragraph 20.

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various potentially relevant provisions of the wine-producers. It is therefore hardly sur- Community wine legislation. I think that it prising that Article 15(4) of the 1987 Regu- is necessary, in order to provide criteria of lation states unambiguously that the addition interpretation which will be of assistance to of water to wine 'shall be prohibited' 51 and the national court, firstly to interpret the rel- that the watering-down of wine is an unau- evant provisions of that legislation before, thorized oenological practice within the secondly, assessing the relevance of meaning of Article 73. Under Article 1 of the Articles 30 and 36 of the Treaty. 1978 Commission Regulation, such wine must either be destroyed or used only for distillation. The duty of Member States is to ensure the destruction or industrial use of such wine as provided in Article 79 of the 1987 Regulation.

49 — Joined Cases 89/74, 18/75 and 19/75 Procureur Général, 51 — Emphasis added. Bordeaux v Arnaud [1975] ECR 1023, p. 1040. 52 — The first paragraph of Article 189 sutes that 'A regulation 50 — See the 26th, 84th, 85th and 89th recitals in the preamble to shall have general application. It shall be binding in its the 1987 Regulation. entirety anddircctly applicable in all Member Sutes'.

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more detail below, that there is any basis in example, either by way of a random test or Community law for contesting the right of pursuant to a reasonable suspicion of fraud national authorities to carry out the sort of or irregularity, have been entitled, in per- controls effected in the present case. This, of forming their obligations under the Commu- course, does not resolve the question nity regulations, to carry out a second test; whether the controls actually applied were they would have been obliged, under compatible with Community law. That is a Article 30 of the Treaty, in those circum- matter which touches upon the application of stances to presume the fitness for human Community law and, in the context of a pre- consumption of the wine, unless and until liminary reference, it is only the national probative evidence to the contrary had court, which can make the necessary findings emerged. Close cooperation between the rel- of fact, that can decide that question. evant national authorities would be of par- ticular importance in such circumstances and the carrying out of independent tests would probably be indispensable.

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61 — Case 7/79 GalUt v Minister for Agriculture [1979] 57 — See paragraph 54 of the judgment. E C R 2373. 58 — See paragraph 55 of the judgment. 62 — Ibid., paragraph 5 of the judgment. 59 — Sec paragraph 56 of the judgment. 63 — Loc. cit., footnote 49 above, paragraph 13 of the judgment 60 — See paragraph 57 of the judgment. 64 — Ibid., paragraph 14 of the judgment.

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or on behalf of the producer of the wine in 50. It seems likely that Germany subjects the Member State of origin. It follows that domestic and imported wines to random such authorities must be prepared to con- controls. However, even if the particular sider that evidence before reaching their con- tests at issue in the main proceedings were clusion. In other words, they must follow not part of such normal controls, it appears fair procedures. However, if, having done so, that there was a reasonable basis, as already they remain convinced that the wine has described (see paragraph 15 above), for sus- been subjected to illegal oenological practices pecting the quality of the second batch of the so as to be unfit for human consumption, wine at issue in the present case. A Member they must, subject to judicial control, proceed State which, on reasonable grounds, subjects to condemn it. a consignment of wine, whether imported or not, to further controls does not act in con- travention of Community law. Even if such controls constitute formally a barrier to free movement, it is a barrier which in my view is clearly 'necessary for attainment of the desired objectives of the Community wine legislation'. 66

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67 — The definition of such authorities is set out in Article 2(b) 54. It was accepted in all of the observations of the 1989 Regulation, which is quoted in footnote 53 above. submitted in this case that, to date, the 68 — Sec Article 15 of the 1989 Regulation. magnetic-resonance test has not been

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recognized as an official test either at Com- the Commission that no one test can be munity or international level. 69 It is reason- regarded as conclusive. However, where the able to assume, since the test was employed results of a series of tests all point towards by the C U T and, according to Germany, has the same conclusion, I do not consider that a already been approved by one German competent authority in a Member State is court, that its propriety has been accepted in precluded from presuming that water has that Member State. In these circumstances, if been added merely because one of the tests the test meets the criteria of accuracy, repeat- used was the Oxygen 16/18 method. A pre- ability and reproducibility required by sumption is, of course, always rebuttable. If, Article 74(2) of the 1987 Regulation, it is in an individual case, the undertaking whose compatible with Community law. It is, how- wine is presumed to have been adulterated ever, for the national court as the fact-finding on the basis of the results of an Oxygen tribunal to make this determination. 16/18 test, presents probative evidence to the relevant testing authorities to the effect that the basis upon which they carried out that test was flawed, then, subject of course to the individual circumstances of the case and, particularly, the accuracy, repeatability and reproducibility of the other tests that were used by such authorities, the presumption of adulteration should be reversed.

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IV — Conclusion

57. I propose that the Court reply as follows to the questions referred by the Tri- bunale Civile e Penale di Ravenna:

(1) Articles 30 to 36 of the E C Treaty d o not prevent a Member State from testing wine produced in another Member State, even when accompanied by bona fide certificates of analysis issued by research institutes duly authorized in the Member State of origin, provided testing methods and procedures are applied in a non-discriminatory way and, in particular, are the same both in law and in fact as those applied to wine produced in the first Member State;