delivered on 15 May 1986 (*1)

Mr President,

Members of the Court,

1. By an application lodged at the Court Registry on 18 February 1985 the Commission of the European Communities has asked the Court under Articles 169 and 171 of the EEC Treaty to declare that the Federal Republic of Germany has failed to fulfil its obligations with regard to an aspect of the Common Agricultural Policy. In particular, it is asserted that by prohibiting the use of rectified concentrated grape must for the enrichment of local wines [Landwein] and quality wines [Qualitätswein], the Federal Republic of Germany has failed to comply with the rules governing the organization of the market in wine, which permit such a practice.

The prelitigation stage started even before the German measure in question came into force on 1 September 1982. In a telex message of 17 August 1981 the Commission stated that the measure was incompatible with Community law and urged the German authorities not to issue it. In reply to that warning and to subsequent representations from the Commission, however, the German Government stated that the prohibition on the use of rectified concentrated grape must was not in conflict with the Community legislation on wine. Accordingly it also refused to comply with the reasoned opinion issued by the Commission on 23 February 1984.

In the course of the proceedings before the Court, in which the Italian Government has intervened in support of the Commission, the initial dispute between the parties, which, as we shall see, concerns the interpretation of a number of provisions of Community law, developed into a discussion of the technical and economic advantages and disadvantages of the use of rectified concentrated grape must and of alternatives such as non-rectified concentrated grape must and sucrose. Let me say right away that I have no intention of going into the merits of that debate. While it is true that various provisions of the organization of the market in wine show a certain preference for rectified concentrated grape must as a natural grape product and that it is eligible for Community aid, it is equally true that the Council has never given it formal preference over other substances, and the Commission has been instructed to carry out a detailed study of the possible uses of methods for increasing the alcohol strength of wine.

In this Opinion I shall therefore restrict myself to the legal problems raised by the Commission's charges against the defendant Member State.

2. First of all let us consider the German legislation. As amended on 1 September 1982, Paragraph 6 (1) of Title 1 of the Weingesetz [Law on wine production] provides that authorization may be granted for increasing the alcoholic strength of German wine in accordance with Articles 32 and 33 of Council Regulation No 337/79. A number of wines, however, are subject to special rules. Under Article 11 (1) and (2) the designation ‘Qualitätswein b. A.’ [quality wine produced in a specified region] or simply ‘Qualitätswein’ is reserved for wines in respect of which a control number has been issued; the issue of a control number is subject to certain conditions, among them the condition that no rectified concentrated grape must has been added. The rules governing local wine do not differ greatly: under Paragraph 10 (8) of Title 2, the designation ‘Landwein’ may be used only if the wine has been produced from grapes harvested in the prescribed region and has not been enriched with rectified concentrated grape must.

The Commission considers that those prohibitions are incompatible with Articles 32 and 33 of Title IV of the basic EEC regulation, Regulation No 337/79, and, in so far as quality wine is concerned, with Article 8 of Regulation No 338/79 (Official Journal 1979, L 54, p. 1 and p. 48 respectively).

The content of those provisions can be quickly stated. Article 32 provides that ‘where climatic conditions have made it necessary in certain wine growing zones... the Member States concerned may permit the natural alcoholic strength by volume... to be increased’ and that that increase must be effected ‘according to the oenological processes referred to in Article 33’. Article 33 (1), as amended by Regulation No 453/80 of 18 February 1980 (Official Journal 1980, L 57, p. 1), provides that the increase in alcoholic strength may only be effected: (a) in respect of fresh grapes, grape must in fermentation or new wines still in fermentation, by adding sucrose, concentrated grape must or rectified concentrated grape must; (b) in respect of grape must, by adding sucrose or concentrated grape must or rectified concentrated grape must or by partial concentration; (c) in respect of table wine and wine suitable for yielding table wine, by partial concentration through cooling. Article 33 (2) adds that those processes ‘shall be mutually exclusive’.

In conjunction with Article 36, those provisions lay down fairly detailed rules for (a) the minimum alcoholic strengths which must be attained in winegrowing zones A, B and C before enrichment operations may be carried out; (b) the maximum permitted increases in alcoholic strength; (c) conditions regarding the place where and time when such operations may be carried out and the way in which that may be done. Finally, Article 36 provides that ‘each of the processes ... must be notified [by the persons concerned] to the competent [national] authorities. The same shall apply in respect of the quantities of sucrose or concentrated grape must or rectified concentrated grape must held in the exercise of their profession by natural or legal persons ... ’.

Similar rules apply to the enrichment of quality wines psr. According to the fourth subparagraph of Article 8 (2) of Regulation No 338/79, ‘The increase [of alcoholic strength] may be effected only according to the methods and conditions mentioned in Article 33 of Regulation (EEC) No 337/79 ... ’. Article 10 provides that: ‘Each of the enrichment... operations ... shall be authorized only if carried out under the conditions laid down in Article 36 of Regulation (EEC) No 337/79’.

On the basis of that legislation the Commission has put forward an undeniably clear argument. Article 32, it says, gives Member States the power to decide whether, in certain years, it is necessary to authorize the increase of the alcoholic strength of wine. It does not, however, permit them to prescribe which of the methods referred to in Article 33 must be used for that purpose or to exclude one while permitting the others. That is to say, Article 32 does not state that the increase must be carried out according to one of the processes referred to in Article 33, but expressly provides that clearly states that it ‘shall be effected according to the oenological processes’ there referred to. The prohibition laid down by Articles 10 and 11 of the Weingesetz is therefore, in the Commission's view, clearly illegal. That does not of course mean that the Federal Republic of Germany is obliged to prescribe the use of rectified concentrated grape must. The object of the application is to permit German wine growers to use the product concerned in the same way as the others which are expressly authorized by Community law.

3. The German Government's defence is less straightforward; in the course of the proceedings it put forward three different and to some extent contradictory arguments. I shall start with the third, which was put forward for the first time at the hearing. Turning around the Commission's reasoning, the German Government asserts that under Articles 32 and 33 the Member States may not only authorize enrichment but also prescribe the method to be used, which must, however, be one of the processes set out in Article 33. It submits that the proof of that lies in the very fact that Article 33 lists a number of methods.

That argument cannot be accepted, both because it is contrary to the wording of Article 32 and because it disregards or ascribes too little importance to the exceptional and thus imperative nature of Article 33. That article is not simply a general list of a number of processes which may be used to increase alcoholic strength; for each product referred to (fresh grapes, grape must, wine), it specifies the appropriate enrichment methods. Among the processes envisaged is the addition of sucrose, but it is clear that a Member State cannot require or authorize the use of that process to increase the alcoholic strength of table wine, since for table wine the only permitted process is partial concentration through cooling. For the same reason, where Article 33 authorizes a choice between different processes — for example, in the case of fresh grapes and must, between the addition of sucrose or concentrated grape must or rectified concentrated grape must — no national provision may restrict that free choice. It is a matter for the wine growers concerned. Under Article 36 they must, however, notify the operation to the competent national authority and declare the quantities of sucrose or rectified concentrated grape must held by them for that purpose.

The German Government's second argument is based on the fact that nothing in Community law prohibits Member States from adopting national provisions excluding the use of rectified concentrated must; the Community provisions, it asserts, indicate the methods of enrichment which may lawfully be used, but do not specify which of those must be used. That argument must be rejected, again on the basis of Article 33, which, as I have just pointed out, authorizes only certain practices for increasing alcoholic strength, and in the case of table wine permits only partial concentration through cooling. Indeed, that was well understood in the recent judgment of 27 February 1986 in Case 238/84, Röser[1986] ECR 795: ‘authorization to increase the alcoholic strength by volume may be given only if all the conditions laid down by Articles 32, 33 and 36 of Regulation No 337/79 are satisfied and ..., consequently, if one of those conditions is not satisfied, the prohibition on increasing the alcoholic strength prevails’ (paragraph 18, my italics).

In other words, Member States may derogate from the general rule prohibiting the increase of alcoholic strength only in accordance with the detailed and comprehensive — or, better, exclusive — set of rules laid down for that purpose by the Community legislature. As for rectified concentrated grape must, there is no apparent reason why it should be necessary for the basic regulation and related measures expressly to state that Member States may not prohibit its use. In the context of the common organization of the wine market that product is not prohibited; on the contrary, it is one of the three substances authorized for the purposes of enrichment.

4. We now come to the argument which the German Government has maintained since the prelitigation stage, and puts forward as its main one. The power to enact national measures prohibiting the use of rectified concentrated must, it asserts, is based, in so far as quality wines are concerned, on Article 19 of Regulation No 338/79, and in so far as local wine is concerned, on the second paragraph of Article 2 (3) (i) of Regulation No 355/79 of 5 February 1979 (Official Journal 1979, L 54, p. 99). Article 19 of Regulation No 338/79 provides that: ‘In addition to the provisions laid down in this regulation, producer Member States may, taking into account fair and traditional practices, lay down any additional or more stringent characteristics or conditions of production and movement in respect of the quality wines produced in specified regions within their territory.’ Under Article 2 of Regulation No 355/79, the terms ‘Landwein’, ‘vin de pays’ and ‘vino tipico’ may be used in the labelling of table wine only in so far as national rules reserve them for ‘table wines meeting certain production requirements, particularly as regards vine varieties, minimum natural alcoholic strength by volume and organoleptic characteristics’.

The object of those provisions, according to the German Government, is to permit each Member State to take due account of the conditions of production and traditional requirements applying to its better wines, whether quality wines or local wines. The common rules on winegrowing therefore constitute minimum criteria and for that very reason the Member States may apply stricter rules without breaching their own obligations under Community law. That is precisely what has been done in the case of rectified concentrated grape must, the use of which is open to abuse and also raises microbiological problems, is not one of the production methods of German wine growers and is foreign to their traditions.

Let me say right away that that argument is also unfounded. The German Government fails to establish that subsequent national provisions can derogate from the Community rules on the increase of alcoholic strength and in particular that such a derogation is authorized by Article 19 of Regulation No 338/79 and Article 2 of Regulation No 355/79. That is not all. Even supposing such a derogation to be lawful, the argument put forward by the German Government does not explain:

(a) what objective criteria justify the greater strictness of the national rules in comparison with the conditions laid down in the basic regulations;

(b) in what manner the use of rectified concentrated grape must may harm the quality of the wine;

(c) how a provision regarding a designation which may be included in the labelling of table wine justifies an absolute prohibition such as that laid down in Articles 10 and 11 of the Weingesetz.

Let us deal with these issues one by one. As appears from the 21st recital in the preamble to Regulation No 337/79, the Community legislature accepted that in certain years ‘it may be necessary to permit the enrichment of products suitable for yielding table wine’; it considered it necessary, however, ‘in the interests alike of the quality and of the market, that such enrichment be subject to certain conditions and limits ... ’ (my italics). Article 1 of that regulation thus provides that: ‘The common organization of the market in wine shall comprise ... rules concerning production ... and rules concerning oenological processes.’ The practices concerned, in particular those regarding enrichment, are the only ones authorized with regard to table wines and quality wines (see Article 46 of Regulation No 337/79 and Articles 8 and 10 of Regulation No 338/79). The Court has thus correctly held that ‘the general rule ... is that increases in alcoholic strength are prohibited’ and that consequently Articles 32, 33 and 36 of the basic regulation represent ‘a body of rules which strictly regulate practices involving enrichment’ (paragraphs 17 and 22 of the Röser judgment; my italics).

Where do those remarks lead us? The reply, I think, is easy. When the Community establishes a market organization and, in order to safeguard the quality of a product, lays down specific and detailed rules governing certain practices, the well known principle of ‘preemption’ applies: the Member States must refrain from taking any measures which might undermine or create exceptions to those rules (see, most recently, the judgment of 7 February 1984 in Case 237/82, Jongeneel Kaas v Netherlands, [1984] ECR 483. In this case therefore, the Federal Republic of Germany could not enact measures regarding enrichment methods for which detailed rules had already been laid down under the common organization of the market in wine. Or rather, it could have enacted such measures — but, as we know, it did not — only in accordance with the procedure provided for in Article 67 of the basic regulation, that is to say, in the context of a management committee composed of representatives of the Commission and of the Member States.

Since it is thus established that in general the increase of alcoholic strength is forbidden and that Member States may not enact legislation with regard to the processes permitted in exceptional circumstances by Regulation No 337/79, it must be determined whether they have such a power under other provisions of Community law. In particular, can it be said that the two provisions — Article 19 of Regulation No 338/79 and Article 2 of Regulation No 355/79 — relied on by the German Government have that effect? Article 19, as I have pointed out, allows Member States to lay down more stringent characteristics or conditions concerning the production and movement of quality wines. No mention is made of enrichment, however, and it is clear that silence on that point cannot be understood as implied authorization to modify the specific rules governing those processes which are moreover exceptional in nature. Si lex tacuit, voluit is a Latin tag of dubious reliability; in any event, I think that the silence in question was entirely intentional.

It will be recalled that under Article 46 (1) of the basic regulation ‘only those oenological practices and processes referred to in this regulation ... shall be authorized’ and that they ‘may only be applied for the purpose of ensuring proper vinification’. Article 46 (2) provides that by way of derogation ‘Member States may, in respect of the oenological practices and processes referred to in Annex HI, impose stricter conditions to ensure the preservation of the essential characteristics of quality wines psr and table wine.’ There we have a derogation with regard to which there can be no doubt. But the German Government has not referred to it. Why? The reason is clear: it concerns only the practices and processes referred to in a part of the regulation— Annex III — which does not mention operations for the increase of alcoholic strength. If, therefore, those practices are excluded from the scope of Article 46 (2), a fortiori they cannot be regarded as implicitly included, with regard to quality wines and table wines, in the provisions of Article 19 of Regulation No 338/79 and Article 2 of Regulation No 355/79.

The keystone of the German Government's argument is therefore without substance. Let us suppose, however, that it is possible to make derogations. In that case, in comparison with the conditions laid down in Article 32 and confirmed in Article 33, the prohibition on the use of rectified concentrated grape must does indeed constitute a stricter measure, but at the price of conflicting with those articles and, what is worse, without being justified by any objective criterion. The German Government has sought to justify it by referring to factors such as impurities in rectified concentrated grape must, the abuses to which its use might give rise, German wine growers' lack of familiarity with it, or, conversely, the neutral nature and lower cost of sugar. At the hearing, however, it acknowledged that rectified concentrated grape must is a type of sugar free of wine particles and equivalent in quality to sucrose. It may well be true that German wine growers are unfamiliar with its use, but to prohibit it for such a reason seems to me to be frankly absurd.

Let me add a few words, finally, on Article 2, which the German Government relies on in order to justify its prohibition on the use of rectified concentrated grape must in local wine. I do not consider that article to be relevant. Far from envisaging derogations or stricter conditions regarding the increase of alcoholic strength, it merely provides for the inclusion of additional information in labelling, in the context of a regulation (Regulation No 355/79) whose main object is the protection of commercial transactions and consumers.

I conclude, therefore, that neither Article 19 of Regulation No 338/79 nor Article 2 of Regulation No 355/79 gives the Member States any power to prohibit the use of rectified concentrated grape must to increase the alcoholic strength of vinous products.

5. On the basis of the foregoing considerations I propose that the Court allow the application brought on 18 February 1985 by the Commission of the European Communities against the Federal Republic of Germany and declare that by refusing to permit the addition of rectified concentrated grape must to increase the natural alcoholic strength by volume of local wines and quality wines produced in specified regions the Federal Republic of Germany has failed to fulfil its obligations under the common organization of the market in wine, and in particular Articles 32 and 33 of Regulation No 337/79 and Article 8 of Regulation No 338/79.

The Federal Republic of Germany should be ordered to pay the costs, in accordance with Article 69 (2) of the Rules of Procedure.

(*) Translated from the Italian.