C-136/96

SCOTCH WHISKY ASSOCIATION ν COFEPP AND OTHERS

OPINION OF ADVOCATE GENERAL MISCHO delivered on 19 March 1998 *

1. To what extent may a producer, without keting Gold River under a sales description breaching the rules of Community law, turn including the term 'whisky', whereas Coun- to account the prestige attaching to the term cil Regulation (EEC) N o 1576/89 of 29 May whisky in order to promote the sale of a 1989 laying down general rules on the defini- spirit drink which, although prepared from tion, description and presentation of spirit whisky, he does not dispute is not whisky as drinks 1 ('the Regulation') fixes the minimum defined in the applicable legislation? That is alcoholic strength of whisky at 40%. the essence of the action brought before the Tribunal de Grande Instance (Regional Court), Paris, by The Scotch Whisky Asso­ ciation ('SWA'), a company incorporated under the law of Scotland, with the objects of safeguarding and promoting the interests of the Scotch whisky trade throughout the world and of bringing or defending actions 3. The defendants contend that in using not before the courts to protect those interests, the name whisky, but the sales description against La Martiniquaise LM, now Compag­ 'spiritueux au whisky', for a drink which, nie Financière Européene de Prises de Par- although diluted with water, contains no ticipations ('La Martiniquaise'), a company other alcohol but whisky, they fully comply producing and marketing, under the trade both with the Regulation and with Council mark 'Gold River' and the sales description Directive 79/112/EEC of 18 December 1978 'spiritueux au whisky' (whisky-based spirit), on the approximation of the laws of Member a spirit drink with an alcoholic strength by States relating to the labelling, presentation volume of 30%, prepared by mixing Scotch, and advertising of foodstuffs for sale to the Canadian and American whiskies together ultimate consumer 2 ('the Directive'). with water, and against Centrale d'Achats et de Services Alimentaires, the central purchas- ing agency of the Prisunie stores, and the company Prisunie, whose stores retail that drink.

under Article 5 of the Regulation, the generic ket; whereas this reputation can be attributed term whisky may be included in the sales to the quality of traditional products, description of a spirit drink consisting whereas a certain quality standard should entirely of whisky diluted with water so that therefore be maintained for the products in the alcoholic strength by volume is less than question if this outlet is to be preserved; 40%. whereas the appropriate means of maintain- ing this quality standard is to define the products in question taking into account the traditional practices on which their reputa- tion is based; whereas, moreover, the terms thus defined should be used only for prod- ucts of the same quality as traditional prod- ucts so as to prevent their being devalued; 5. Before proceeding to examine the sub- stantive provisions of the Regulation, I con- sider it useful to review the recitals in its pre- amble which set out the objectives pursued in establishing the names applicable to the various spirit drinks. The first, second and fourth recitals are particularly revealing. They read as follows: Whereas the normal and customary means of informing the consumer is to include certain information on the label; whereas the label- ling of spirit drinks is subject to the general rules laid down in [the Directive]; whereas, in view of the nature of the products in 'Whereas at the moment there are no specific question and so that the consumer may have Community provisions governing spirit fuller information, specific provisions addi- drinks, in particular as concerns the defini- tional to these general rules should be tion of these products and the requirements adopted and whereas, in particular, there relating to their description and presentation; should be incorporated, in the definition of whereas, given the economic importance of products, concepts relating to maturation these products, it is necessary, in order to and minimum alcoholic strength for release assist the functioning of the common market, for human consumption'. to lay down common provisions on this subject;

'a spirit drink produced by the distillation of 'With the exception of juniper-flavoured a mash of cereals spirit drinks ... the minimum alcoholic strength by volume for release for human consumption in the Community under one of the names listed in Article 4(1) ... shall be as follows:

— saccharified by the diastase of the malt contained therein, with or without other natural enzymes,

— 40% whisky'.

— fermented by the action of yeast,

10. Taken together, Article 1(4) and Article 3(1) show unequivocally that, because it has an alcoholic strength of only 30%, Gold — distilled at less than 94.8% vol. so that River is not whisky within the meaning of the distillate has an aroma and the Regulation, despite the fact that it

I - 4575

'Without prejudice to measures adopted pur- 14. For my part, I too find the argument of suant to Article 6, use of the names referred La Martiniquaise difficult to uphold. Were it to in Article 1(4) shall be restricted to the to be founded, there would be legitimate spirit drinks defined therein, account being ground for questioning the suitability of the taken of the requirements laid down in means chosen by the Community legislature Articles 2, 3, 4 and 12. These names must be to attain the objectives set out in the recitals used to describe the said drinks. cited above. What would be the point of prohibiting the misleading term only to allow it to reappear in direct conjunction with the mandatory sales description? Would the reputation of whisky be effectively pro- tected and consumer information truly guar- anteed if the result of prohibiting the use of Spirit drinks which do not meet the specifi- the term 'whisky' for Gold River were, in cations laid down for the products defined in practice, only that the description 'spiritueux Article 1(4) may not bear the names assigned au whisky', which manifestly contains only therein to those products. They must be one evocative term, 'whisky', must be used? described as: "spirit drinks" or "spirits".'

15. Informing the consumer can become 12. La Martiniquaise acknowledges, having even more problematical when the producer regard to the wording of these provisions, elects, as does La Martiniquaise, in accord- that since Gold River may not bear the name ance with Article 7(4) of the Regulation, to

18. Even assuming, for a moment, that one shared La Martiniquaise's point of view, the sentence 'they must be described as: "spirit 16. Even assuming that the interpretation of drinks" or "spirits'" would then have to Article 5 cannot be determined only by the mean 'the terms "spirit drink" or "spirit" aims pursued by the Regulation in which it must be included in their sales description', is incorporated, the interpretation put for­ which is quite different from the actual ward by La Martiniquaise would still be pre­ wording of the Regulation. However, it is a cluded for reasons pertaining to the very fundamental principle of statutory interpre­ wording of that article. That wording clearly tation that words which do not require inter­ shows that the producer has no choice. The pretation, because they are perfectly clear, nature alone of the product determines the should not be distorted under pretence of name which must be used. The producer interpretation. must use the description 'spirit' or 'spirit drink' for products which do not satisfy the specifications laid down in the articles listed in the first subparagraph. The reserved name 'whisky' is, conversely, mandatory for prod­ ucts satisfying those specifications. Its use is not a privilege which the producer is at lib­ erty to renounce. 19. For those various reasons, I consider the very wording of Article 5(1) of the Regu­ lation to preclude the use of the sales description 'spiritueux au whisky' for Gold River. That is, moreover, why both La Mar­ tiniquaise and the French Government seek arguments, either in the Resolution itself and in its implementing texts, or in the Directive, capable of reversing the conclusions to 17. Again as a matter of wording, there can which an examination of that article leads. be no doubt that according to the first sub­ There can be no question of denying them paragraph of Article 5(1) of the Regulation that right, particularly as Article 5 contains the term 'whisky' is a name. Consequently, the reservation 'without prejudice to mea­ the second subparagraph, which provides sures adopted pursuant to Article 6'. But that spirit drinks not meeting the specifica­ such arguments can only be accepted if they tions laid down for the products defined in are sufficiently convincing to make Article 5 Article 1(4) 'may not bear the names say what it does not, at first sight, say.

23. According to the interpretation put for- ward, there is no need for a special provision 3. The provisions referred to in paragraphs 1 to govern indications used in addition to the and 2 shall be adopted in accordance with sales description required under Article 5, the procedure laid down in Article 15. They such special provisions only being necessary shall be designed in particular to prevent the where too unrestrained a use is made of the creation of confusion by the names referred authorisation under which additional indica- to in those paragraphs, especially regarding tions may, in principle, be included. How- products in existence when this Regulation ever, that is not exactly how the Court comes into force.' interpreted that article in its judgment of

I - 4578

SCOTCH WHISKY ASSOCIATION ν COFEPP AND OTHERS

24. It is therefore, legitimate to conclude that, far from being admitted in principle, the adding of indications to the sales descrip­ 27. According to that article: tion requires, on the contrary, the prior authorisation of the Commission under the power of derogation conferred on it by Article 6, and that, in the same manner, mix­ tures of spirit drinks, or of spirit drinks with 'The spirit drinks listed below: other drinks, may not, in the absence of any derogation accorded by the Commission, be designated by any other name than 'spirit' or 'spirit drink'.

— whisky and whiskey 25. The second reason lies in the fact that, although Article 6 grants extended powers to

3 — Case C-217/91 Spain ν Commission [1993] ECR I-3923.

I - 4579

OPINION OF MR MISCHO — CASE C-136/96

I - 4580

SCOTCH WHISKY ASSOCIATION ν COFEPP AND OTHERS

32. There is no doubt that Article 8 does not 34. La Martiniquaise submits that its inter­ in itself prohibit a sales description such as pretation of Article 5 of the Regulation and 'spiritueux au whisky', used by Gold River, its right to use the sales description at issue and that it cannot be taken as the basis for are supported in all respects by the definition ascertaining whether that description is per­ of the term 'sales description' in Article 5 of missible. Nevertheless, Article 8 is not, I the Directive. According to Article 5(1) 'the believe, entirely without relevance in that, name under which a foodstuff is sold shall be like the other provisions examined above, it the name laid down by whatever laws, regu­ evidences the clear intent of the Community lations or administrative provisions apply to legislature to ban all terms which are the foodstuff in question or, in the absence of ambiguous and thus such as to permit pro­ any such name, the name customary in the ducers to derive an unjustified advantage Member State where the product is sold to from the reputation attaching to traditional the ultimate consumer, or a description of drinks and to mislead the consumer. In fact, the foodstuff and, if necessary, of its use, that 'spiritueux au whisky' might well create the is sufficiently precise to inform the purchaser same type of confusion as 'whisky-style'. of its true nature and to enable it to be dis­ tinguished from products with which it could be confused'.

36. The argument based on Article 7(1) of 38. However, while on the subject of Article the Directive seems to me equally uncon- 7(1), I consider it necessary to settle one vincing. Under that provision: point with regard to one of SWA's argu- ments. SWA maintains, and alone argued at the hearing, that the term whisky should not appear at all, in any form whatsoever, on the Gold River label, even in a list of ingredients. This seems to me quite excessive. A the hear- ing, the Commission referred to the answer 'Where the labelling of a foodstuff places given by Commissioner Fischler to a Parlia- emphasis on the presence or low content of mentary question concerning diluted whisky. one or more ingredients which are essential He stated that, although the rules envisaged to the specific properties of the foodstuff, or by Article 6(3) of the Directive had not yet where the description of the foodstuff has been laid down, the exact composition of the same effect, the minimum or maximum Gold River, and consequently its 75% percentage, as the case may be, used in the whisky content, should be allowed to appear manufacture thereof shall be stated. on the label, even immediately next to the trade name, in accordance with Article 7(1) of the Directive, provided that it did not cre- ate confusion.

This information shall appear either immedi- ately next to the name under which the foodstuff is sold or in the list of ingredients in connection with the ingredient in ques- tion. 39. That seems to be elementary common sense, because the consumer must be able to know if he is buying a spirit drink made from gin, rum or whisky, in that it may be assumed that he is seeking a given flavour rather than just a given alcoholic strength. ...'

42. La Martiniquaise argues, once again a contrario, that it may be deduced from Article 7b that Gold River is fully entitled to bear the sales description 'spiritueux au whisky' as it contains no alcohol other than whisky.

'Where a spirit drink listed in Article 9 of Regulation (EEC) N o 1576/89 is mixed with:

43. That provision might raise some doubt were it to apply in the case at hand. But, in fact, it does not. Even assuming, as was sug­ gested at the hearing, that it does not apply — one or more spirit drinks, whether or not exclusively to liqueurs, contrary to what the defined in Article 1(4) of Regulation (EEC) N o 1576/89,

4 — OJ 1990 L 105, p. 9. 5 — OJ 1991 L 160, p. 5. 6 — OJ 1994 L 285, p. 5.

I - 4583

OPINION OF MR MISCHO — CASE C-136/96

48. Lastly, I have one further point to add. Throughout my reasoning, I have sought only to establish whether or not the descrip- tion 'spiritueux au whisky' complies with Community legislation. I could also have 45. That provision concerns spirit drinks considered, and it would have been easy as which bear no relation to a mixture of they constitute far more blatant infringe- whisky and water, and clarifies, sometimes in ments of that legislation, other indications considerable detail, what is permissible and included on the Gold River label, in particu- what is not permissible in their labelling, but lar the terms 'assemblage de whisky ayant in all events its purpose remains, as indicated vieilli plus de 8 ans en fût de chêne' ('blend in the preamble to Regulation N o 2675/94, of whisky aged over eight years in oak that of ensuring fair competition between casks'), subsequently replaced by 'assem- protected traditional spirit drinks and other blage de whisky ayant vieilli plus de 8 ans en drinks and of avoiding confusion for the fût de chêne et d'eau' ('blend of whisky, aged consumer. over eight years in oak casks, and water') and, in English, 'Blend of whisky aged in oak casks', which are manifestly misrepre- sentations in regard to the definition of blending provided under Article 1(3)(d) of the Regulation. It would also be interesting 46. That rules out, as I have already indi- to examine the overall presentation of Gold cated in respect of other provisions relied River in regard to the requirements laid upon by La Martiniquaise, taking that provi- down in Article 2 of the Directive on label- sion as a basis for an a contrario reasoning ling. But we are bound to remain within the which, by opening a breach in the simple and limits of the question referred by the coherent structure of Article 5 of Regulation national court.