OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 8 JULY 1975 (*1)

Mr President,

Members of the Court,

1. Nature and art are required to cooperate in creating a product which is part of the history of civilization and is still one of its glories. In the specific appreciation of wine, considerable importance attaches to the rules for identifying the good qualities of the various types which have become classics by their traditional name and presentation; the same applies to the rules which in fact restrict the way in which the artistic fantasies involved mingle with the natural element. Hence the rules laid down by the Community itself in establishing a single market in wine and concerning the designation of origin reserved to wines which have certain specific characteristics; hence the rules controlling both the description of the products and the guarantee of adequate general authenticity. For the purposes of the interpretation which we have been called upon to give of the Community rules, they must be viewed as a whole, even though inter-State trade is not of direct concern in the specific cases in which we have to give an interpretation. The rules of the common market must of necessity aim at a uniform basis on which to ensure the free movement of goods. Consequently, the Community rules also try to establish common standards of control and even of methods of verifying the fulfilment of the conditions prescribed for the right to a description or for a guarantee against infringement of the production rules. Inasmuch as the Community has not yet laid down standard rules and methods of control, it is at least necessary to ensure compliance with certain general requirements.

2. In the rules designed to guarantee the quality of wines, the Community has legislated specifically on the increase in natural alcoholic strength (Articles 18 to 30 of Regulation No 816/70 of the Council); these rules are directly applicable to producers and dealers. They were adopted not only for the sake of the free movement of such products in the Community but also as is expressly made clear by the wording of Tide IV of Regulation No 816/70, with a view to their release to the market, without which the free movement of the products would, in any case, become nothing but an empty statement of principle. However, Community legislation did not at the same time provide for a complete and independent system of control, designed to prevent fraudulent practices, namely, unauthorized interference with the products at the stage of production or sale. There are, nevertheless, rules relating to the keeping of turnover records by traders or which provide for exports of wine to be accompanied by certificates of a public authority in the producing country testifying to the wholesome, genuine and saleable quality of the product. As regards, more particularly, the practices of enriching the alcoholic strength of wines, Article 22 (1) of Regulation No 816/70 imposes the obligation on traders to notify the national authorities of their intention to carry out the process of enriching the alcoholic strength and of the quantities of sugar and concentrated grape must held by them. Although all these provisions may help to prevent evasion or make it easier to detect, they do not claim to represent a comprehensive system of protection in this field. Because of this, the Community authorities have made express reference to the application of the national systems of control and prevention of fraud (see Article 39a of Regulation No 816/70 of the Council, added by Regulation No 2680/72, and Article 9 of Regulation No 1594/70 of the Commission).

3. In its first question the French court asks whether Article 8 of the socalled ‘Wine Code’ which incorporates the Decree of 18 April 1898, which in turn was based on the Law of 24 July 1894, can still be regarded as fully applicable in the light of Community Regulations Nos 816 and 817/70 concerning the common organization of the market in wine and the provisions for their implementation. It must, of course, be recognized that the object of this question is not so much to obtain any ruling whether a national rule is or is not compatible with Community law but an interpretation of that law in view of the need for the national court to know the scope of its application in relation to the specific rules of national law. The court needs in particular to establish whether the Community rules enable a Member State to continue to exercise supervision and to prevent offences in connexion with the addition of alcohol to wine on the basis of a presumption which depends on the outcome of a method of analysis for the measurement of dry extract which differs from the method prescribed for the same purpose under Community regulations. Under the provision, referred to above, of the French Wine Code, red wines with an alcohol/reduced dry extract ratio greater than 4.6 and white wines with an alcohol/reduced dry extract ratio of more than 6.5 are presumed to be over-alcoholized. However, this presumption may be rebutted if comparison or the various constituents of the wines, the conditions in which they have been manufactured, their place of origin or other factors make it possible to establish that they were produced exclusively by the fermentation of fresh grapes. The national court's doubts on the question whether such a rule is consistent with the relevant Community regulations arise from the fact that the Community rules lay down a different method from that provided for under the above-mentioned Article 8 for measurement of the dry extract. That method is mandatory and, as stated in the third recital of the preamble to Regulation (EEC) No 1539/71 of the Commission of 19 July 1971, it applies to ‘all commercial transactions and all verification procedures’. This might result in making inapplicable national methods for measuring the same constituent or group of constituents of wine, in order to comply with the requirement laid down in the aforesaid regulation of the Commission that uniform methods of analysis must be introduced to ensure that accurate and comparable information is obtained. In these circumstances, the first question referred to this Court is closely connected with the second question, which concerns the compatibility of the method of analysis of the dry extract by evaporation at a temperature of 100° used for the purposes of Article 8, with the prohibition, laid down under Regulation No 1539/71, of the use of methods of analysis different from those provided for in the annex to the regulation. In paragraph 3 of the annex it is laid down that the total dry extract shall be measured by a densimeter and calculated indirectly from the specific gravity of the residue without alcohol. The decree promulgated by the French Minister of Agriculture on 22 January 1974 listed, in Article 1, the laboratories authorized by the department for the prevention of fraud and for quality control to carry out the analyses provided for under Article 5 of Decree No 73-1067 of 23 November 1973, which lays down the conditions under which wine must be produced. The decree further provides, in Article 2, that such analyses shall be carried out in accordance with the methods prescribed by Regulation No 1539/71 of the Commission, with the sole exception that measurement of the dry extract shall continue to be carried out at 100° Centigrade in order to determine the alcohol/reduced extract ratio referred to in Article 8 of the Wine Code. In its third question, the French court asks whether Article 2 of the Decree is not in conflict with Regulation No 1539/71. This question, which must in any case be considered solely from the standpoint of interpretation of the Community regulation, does not appear to raise any new matters beyond those which fall for consideration under the first two questions. In order to answer them, I must pay particular attention to two kinds of problem to which the two parts of my Opinion are devoted:

(a) the first question concerns the effect of the evidence adduced under French national legislation, with special reference to the possibility of providing evidence to rebut the purportedly positive indications of over-alcoholization;

(b) the second point concerns the applicability in this case of the method of analysis provided for under French legislation where, especially on the subject of verification, Community legislation does not appear to be yet complete.

(a) the national rules for a sector which is subsequently governed by a Community regulation automatically cease to be applicable as and when common provisions, capable of replacing them, enter into force;

(b) the States continue to exercise residual and subordinate powers in areas left uncovered by common legislation to the extent to which the adoption or maintenance of rules on the part of the States in such sectors is necessary for proper implementation of the Community rules or is, in any case, compatible with them;

(c) it is, moreover, impossible to apply national rules which, although they have not been automatically replaced by Community rules are, because of the way in which they are capable of being applied, nevertheless such as to obstruct the proper working of the common organization of the market and the principles on which it is base.

4. Title IV of Regulation No 816 lays down rules concerning oenological processes and conditions for release to the market The effect of Article 18 and of subsequent articles is that an increase in the natural alcoholic strength of fresh grapes, grape must and wines is authorized only on the basis of clearly defined limits, conditions and procedures. The addition of sucrose or of concentrated grape must is minutely controlled and is permitted only in respect of wines in specified zones and of clearly identified types, whilst the addition of alcohol in order to increase the alcoholic strength is prohibited except in the case of two products clearly designated in Article 25. The responsibility for ensuring that these rules are observed was expressly assigned at least for the time being to the States, principally by Article 9 of Regulation (EEC) No 1594/70 of the Commission on the notification, carrying out and control of the processes of enriching wine. The article lays down that, pending the adoption of Community provisions in this matter, Member States shall take all necessary measures to ensure that the provisions relating to enriching, acidifying and re-acidifying are observed. Article 39a of Regulation No 816/70, subsequently added under Regulation (EEC) No 2680/72 of the Council, further, and in more general terms, provides that ‘Member States shall take all appropriate measures to ensure compliance with this regulation’. Paragraph (2) of Article 39a also provides for adoption of Community measures designed to ensure uniform application of Regulation No 816/70 especially as regards verification. It accordingly follows from these provisions that although, as already stated, certain measures provided for under Regulation No 816/70 may also cover the question of verification, the Community legislature regarded the common rules on this point as anything but exhaustive.

5. It must, however, be recognized that the States nevertheless have power to apply their own verification methods which are calculated to prevent or detect breaches of the Community rules on wine products. In particular, the application of a presumption of an increase in natural alcoholic strength, based on the alcohol/dry-extract ratio is not, in principle, repugnant to any Community rule. But the presumption is allowable only on condition that it is not liable to lead to discrimination between the products of the various Member States, and on the further condition that it represents nothing more than a monitor of the extent to which products comply with the relevant Community rules and that it is not liable to constitute a substantive amendment of those rules, as would be the case if those concerned were not afforded adequate opportunity to supply conflicting evidence for the purpose of rebutting a result which, in the event, did not correspond with the facts.

It is clear from the experts' reports which were quoted during the proceedings and from certain statements by the French authorities themselves that the application of the verification method concerned cannot in every case ensure that the result is accurate; this is because, depending upon the zone, the year, the prophylactic substances used on the wine, the method of production and other factors peculiar to the various wines, the result of the analysis might be such as to indicate over-alcoholization in cases where it was not present. It is, therefore, important that there should be valid opportunities of supplying evidence in rebuttal and that, in this connexion, there should be no discrimination, in law or in fact, between the products of the various zones of the Community.

If, in the case of wines complying with the Community rules, it were to prove unduly difficult to adduce evidence in rebuttal of the presumption of over-alcoholization, this would be liable to convert the national rule on the subject of detection of fraudulent practices de facto into a rule making substantive amendments to the definition of the product which appears in Annex II to Regulation No 816/70 of the Council.

But all this is taken for granted and applied under a method which takes into full account the practical requirements for the vitality of the market and the need for efficient monitoring.

The importer of a wine produced in another Member State will, generally speaking, have greater difficulty in rebutting the presumption than a French producer or than when he is himself handling wine produced on the territory of his own country. From this point of view, therefore, traders in foreign wines suffer actual disadvantage compared with those dealing in home-produced wines. It should furthermore be noted that in the appraisal of evidence rebutting the presumption the administrative authorities are undoubtedly allowed some discretion. In the judgment in Case 39/70 (Fleischkontor, Rec. 1971, page 58) the Court held that where an excessive margin of discretion left to the State in adopting measures designed to prevent breaches of Community legislative provisions may lead to malpractices and discrimination based on nationality, it must be considered incompatible with Community law. This principle was laid down in respect of national provisions which, in view of the system of proof provided for under the Community rules applicable in the case under consideration, did not appear essential to enable the common organization of the market to work and is certainly not directly or, I would almost say, automatically, applicable to national laws designed to prevent fraudulent practices in the wine sector and which continue to be necessary so long as there are no effective Community rules on the subject of verification. The precedents established by this Court are at least a reminder, however, that the national bodies are required to be particularly careful in using their discretion in the exercise of powers which, even though they are not formally concerned with the movement of the product but only with its release for consumption, have a substantial effect on the free movement of the product between Member States.

The serious and specific difficulties which importers of wine from other Member States may encounter with regard to evidence in rebuttal might lead to a situation which is incompatible with the Community system, apart from any alteration which they might de facto produce in the substantive provisions of Regulation No 816/70, not to mention infringement of the general prohibition of discrimination on grounds of nationality (or of the origin of the product, which is the same thing) or of the prohibition of measures having effect equivalent to a quantitative restriction on imports.

As a case in point, we have learned during these proceedings that, in the circular of 25 March 1974, the French authorities were at pains to alter the ratios prescribed under Article 8 of the Wine Code in order to allow for the particular climatic conditions of the 1973 harvest in the Beaujolais and Mâcon vineyards. It would be difficult for a national authority to be in possession of the information necessary to react so promptly in this manner for the benefit of foreign wines when similar conditions were found to affect the harvest in other countries or, more generally, when particular conditions associated with climatic factors, affecting cultivation of processing, were such as to make it impossible to place much reliance on the result of applying the abovementioned method.

The margin of error cannot be eliminated in a system which, like the one in question, is based on presumption and which, for technical reasons, may work to the disadvantage of foreign, as compared with national, products whose characteristics were used as the basis for determining the ratio between alcohol and dry extract and for the presumption of over-alcoholization. Because of this, the fundamental principle of equality of treatment for traders and products requires that the principle of equality, must also be, in essence, observed in respect of any additional burden which, through application of the verification system, may be placed on traders complying with the law.

It is for the national court to determine whether, despite the fact that the system of verification may provide every opportunity for the production of evidence in rebuttal, the presumption results, in general terms, or even simply in a given case, in an undue burden on certain categories of the product concerned, because there is a grave risk that it would place them in a particularly unfavourable position compared to the products of their competitors. If this were to be the case, it would indicate a situation which was incompatible with the common legislation for the sector and would, accordingly, require that application of that verification method should cease, at least in the individual case.

Any such behaviour of the administrative bodies might assume importance only when considered as a whole and, on this basis, would as a rule not be amenable to direct review by the court: this might occur where free circulation was restricted as a result of an over-zealous use of the methods of verification in the case of wines of other States in such a way as to discourage their importation. In the circumstances, it would be primarily for the Commission, after a comprehensive assessment of such conduct, to adopt the measures necessary to stop the abuse.

As, in the absence of Community rules laying down a practical common system for the identification of fraudulent practices, it is therefore clearly open to the States to work, within the limits and subject to the conditions. I have described, on the basis of a presumption of the kind under consideration, it remains to be seen whether the national authorities may use different methods where there exist mandatory Community methods of analysis expressly laid down for the purpose of identifying certain elements and characteristics of wines. This is the specific subject of the second question referred by the Bordeaux court.

In order to answer it, the first thing to be done is to establish what is, in general terms, the effect of the Community definition of the methods of analysing wine promulgated by the Commission in Regulation No 1539/70.

We have seen that Regulation No 816/70 governs the processes involved in increasing the alcoholic strength of wine by the addition of sucrose or grape must or by concentration and allows such processes within certain limits, under specified conditions and in respect of wines of certain regions; and that, moreover, it prohibits for example any increase of strength by the addition of alcohol. Paragraph 10 of Annex II to Regulation No 816/70 of the Council contains a definition of table wine which lays down a lower and upper limit of alcoholic strength and refers to the provisions of Article 19 of the regulation under which, subject to the conditions laid down in the article, the natural alcoholic strength may be increased.

There seems to me to be no doubt that the measures adopted by the national authorities in order to verify any increase of alcoholic strength are concerned with the implementation of Regulation No 816/70. What is involved, therefore, is an executive activity in the wider meaning of the term.

The provisions, referred to above, of Article 39a of Regulation No 816/70 and of Article 9 of Regulation No 1594/70, under which the Member States are assigned the task of taking all appropriate measures to ensure compliance with the Community rules on wine, do in fact refer to the subsidiary work of implementation and enforcement which, as such, is subject to the Community rules to which it relates.

Article 39 of the regulation provides that the detailed rules necessary for implementing the provisions of Annexes I and II, and in particular, methods of analysis, shall be adopted in accordance with the so-called ‘management committee’ procedure laid down in Article 7 of Regulation No 24 of the Council of 4 April 1962. Pursuant to this provision the Commission, in the annex to Regulation No 1539/71, laid down ‘the methods of analysis for the application of Regulations (EEC) Nos 816/70 and 817/70’.

Whereas, as will be seen from Article 11 (1) (a) and from the annex to Regulation No 817/70 of the Council, that regulation prescribes the method of establishing the dry extract obtained by densimetry for the purpose of verifying the presence of minimum quantities of the characteristic constituents of quality wine produced in specified regions, Article 1 of the subsequent Regulation (No 1539/71) of the Commission provides that the methods of analysis set out in the annex to that regulation shall in general apply for the application of Regulations Nos 816/70 and 817/70.

As we know, paragraph 3 of that annex provides that the total dry extract shall be measured by a densimeter and calculated indirectly from the specific gravity of the residue without alcohol.

It is clear from the preamble to the regulation that, in laying down the methods of analysis to be applied, the Commission was aiming at the creation of an effective control of the products in question in connexion with their ‘release to the market’ and the need to ensure compliance with the Community ‘provisions relating to oenological processes and conditions’. The regulation also emphasizes that ‘the uniform application of such control and the verification of documentary particulars of products call for the introduction of uniform methods of analysis to ensure that accurate and comparable information is obtained’ and that ‘consequently, these methods should be compulsory for all commercial transactions and all verification procedures’.

The French Government contends, however, that these methods are at present laid down only for verification of the actual qualities of wines and cannot be applied for verifying manufacturing methods.

Although it is a fraudulent practice to increase the alcoholic strength other than in the circumstances expressly permitted by Community law governing this sector, it is undoubtedly necessary that, when the States exercise the executive power assigned to them in making their own verification, they should, in order to ensure uniform treatment of Community traders, do so on the basis of criteria which are as far as possible uniform.

In view of the recitals in the preamble to the regulation of the Commission with which we are concerned, it seems hardly possible to dismiss in principle the applicability of the Community methods of analysis in connexion with the prevention by the States of breaches of the provisions of Regulation No 816/70 governing the enrichment of natural alcoholic strength.

When the Community legislature laid down a uniform method for the analysis of dry extract, it certainly did not intend to produce a result which would make it more difficult for the national authorities entrusted with the taking of the necessary steps for ensuring compliance with the Community rules to prevent breaches of the said rules.

So long as there is no possibility of preparing a new and immediately operative ratio between the alcoholic strength of wine and the dry extract obtained by the Community method of analysis, thus enabling the present ratio, based on the dry extract obtained by evaporation at a temperature of 100o, to be effectively replaced, the effect of applying the Community method of analysis for determining the dry extract would be to destroy the effectiveness of the machinery for prevention of fraudulent practices covered by Article 8 of the French Wine Code. This would conflict with the relevant Community legislation which, as we have seen, makes the States responsible for introducing methods of control for ensuring that the relevant common rules are observed.

The Commission appears to believe that it would be possible, without great difficulty, to work out a new coefficient adapted to the Community method and which would make it possible for the presumption in the national provisions mentioned to be applied. If this is true, the Commission must exercise vigilance to prevent any delay which can possibly be avoided in working out the new ratio. Meanwhile, so long as it is not possible for it to be determined and confirmed in the light of experience, and in the absence of the establishment at Community level of a workable system designed to detect fraudulent practices, it does not seem to me to accord with the objects of the Community rules or with the working of the system itself to allow a temporary lacuna in the national system to arise.

Though, of course, Community law must prevail, national legislation ceases to be applicable only in cases covered by the common rules. Even then, the relationship of the two remains one of assimilation, but with due regard for the precedence of the common rules. I cannot refrain from observing that in the history of the law, this approach corresponds, inversely, with the rule applied by the Schools during the period when the fabric of the old common law was crumbling. It was then said that ‘ubi cessat statutum locum habet ius civile’. Today, we can for our part say that, where there is no effective provision under Community law, national law remains in force.

I therefore recommend that the reply to the questions put by the French court should be to the effect that, while it is recognized that, in principle, the Community method of analysis applies also in connexion with the prevention of fraudulent practices, nevertheless whenever its direct application within the framework of a specific national system, designed to enforce Community rules, is such as to endanger its effectiveness and there are no effective Community rules covering the investigation of fraudulent practices, the requirement in Regulation No 1539/71 of the Commission must be interpreted as meaning that the substitution of the Community method of analysis for the national method is held in abeyance until the necessary technical adjustments have been made to the national verification system.

Furthermore, while the national authorities are recognized as being entitled to use a method based on presumption to prevent breaches of Community requirements in respect of the over-alcoholization of wine, its application would nevertheless be incompatible with Community law in cases where insufficient opportunity was provided to supply evidence in rebuttal or in cases where the outcome of its application would be to place certain categories of traders or of Community products in a peculiarly unfavourable position, especially if this were connected with their place of origin.

*

Translated from the Italian.