Contents
In Joined Cases 89/74 and 18 and 19/75Reference to the Court under Article 177 of the EEC Treaty by the Cour d'appel, Bordeaux, for a preliminary ruling in the criminal proceedings pending before that court between:PROCUREUR GÉNÉRAL AT THE COUR D'APPEL BORDEAUXand1. ROBERT JEAN ARNAUD, residing in Teuillac, Gironde, accused,(Case 89/74)2. CLAUDE CAMILLE RABY, residing in Vignonet, Gironde, accusedandINSTITUT NATIONAL DES APPELLATIONS D'ORIGINE, Paris, plaintiff claiming damages,SYNDICAT GIRONDIN DE DÉFENSE CONTRE LA FRAUDE, Bordeaux, plaintiff claiming damages,LIGUE DES VITICULTEURS DE LA GIRONDE, Bordeaux, plaintiff claiming damages,(Case 18/75)3. ROGER GALLET, residing in Capian, Gironde, accused,andTHE DIRECTOR GENERAL OF TAXES, Bordeaux, plaintiff claiming damages,LIGUE DES VITICULTEURS DE LA GIRONDE, Bordeaux, plaintiff claiming damages,(Case 19/75)THE COURTcomposed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mackenzie Stuart, Presidents of Chambers, A. M. Donner, R. Monaco, P. Pescatore, H. Kutscher, M. Sørensen (Rapporteur) and A. O'Keeffe, Judges,Advocate-General: A. TrabucchiRegistrar: A. Van Houttegives the following
Judgment
Issues of fact and of law
The orders for reference and the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community may be summarized as follows:
I —Facts and procedure
II —Written observations submitted to the Court
1.The observations of Messrs Arnaud, Raby and Gallet
Messrs Arnaud, Raby and Gallet claim that Regulations Nos 816/70 and 817/70 do not authorize the retention of Article 8 of the Code du vin.Since all Community regulations have the effect of repealing conflicting provisions of national law and even provisions of national law which are in accordance with them, and since Article 25 of Regulation No 816/70 prohibits the addition of alcohol to wine, there is no doubt that this article repeals the Law of 24 July 1894. However, as the rule of the presumption of over-alcoholization of wine was adopted under that very Law, by the Decree of 1898, it follows that this Decree, which was re-enacted in Article 8 of the Code du vin, is also repealed.They refer to the articles of Regulations Nos 816/70 and 817/70 concerning the chaptalization of wine and to the definitions of ‘wine suitable for yielding table wine’, ‘table wine’ and ‘quality wine produced in a specified region’ (quality wines p.s.r.) and claim that the legality of chaptalization was not made subject to the result of the alcohol/dry extract ratio and that none of the Community Regulations provides that a wine does not answer the definition of ‘wine suitable for yielding table wine’ etc., if its alcohol/dry extract ratio is in excess of 6.5 in respect of white wines and in excess of 4.6 in respect of red wines.The presumption of the addition of alcohol becomes a discriminatory measure with regard to the wines referred to by this regulation if it is applied to them and not to other wines produced in the Community. It may cause wines which are considered good and merchantable in other Member States to be considered in France as adulterated.They conclude from this that the presumption cannot be applied in a single Member State on the basis of a Decree of 1898 when it does not exist in any of the other Member States.In this connexion they recall the difficulties which the application of the presumption raises each time the enrichment is legal and in particular where French wine is blended with wine from another region of the Community which has been legally chaptalized.Moreover, they recall that the French legislation in this sphere has given rise to much criticism from oenological experts particularly because of the development in wine-making conditions and the uncertainty of the results of the method of analysing the dry extract obtained by evaporation at 100o. The French Government must make allowances and even allow an alteration of the maximum ratio, as it did for example by Circular No 424 of 2 March 1965 and by the Circular of 25 March 1974 (the latter relaxing the ratio in respect of Beaujolais wines from the 1973 harvest which were claimed to have been subject to a shortened wine-making process).Finally they recall that experts hope that the 100o method will be replaced by the densimetric method and that the 1954 International Convention for the Unification of Methods for the Analysis and Appraisal of Wines laid down the 70o vacuum method as the reference method and the densimetric method as the customary method and expressly prescribed the 100o method for directly measuring the extract of wines containing sugars.As regards the second question, Messrs Arnaud, Raby and Gallet claim that Regulation No 1539/71 rules out the use of the 100o method and makes the densimetric method compulsory and that the question should therefore be answered in the negative. This is all the more so since the results obtained by one method are not comparable with those obtained by the other. The two methods are totally different. It is impossible to transpose the result of one method into the other. There is no correcting factor or table which enables one result to be converted into the other. Moreover, for several reasons, the results obtained by the 100o method are not reliable. The densimetric method is a more accurate and reliable method.As regards the third question, Messrs Arnaud, Raby and Gallet claim that Article 2 of the Order of 22 January 1974 conflicts with Regulation No 1539/71 since its aim is to retain a method of analysis which has been repealed.
2.Observations of the Procureur général at the Cour d'appel, Bordeaux
The Procureur général examines the relevant French legislation and claims that all these provisions show the obvious desire of the Minister of Agriculture to retain in force the presumption of the over-alcoholization of wine which is based on the 100o method in order to measure the dry extract.In his opinion, this is in accordance with Regulations Nos 816/70 and 817/70 which impose upon Member States the obligation to control vine products. Therefore it would be difficult to conceive that the objective of these regulations was to make it impossible for the Member States actually to exercise such control. Measurement of the alcohol/dry extract ratio is, moreover, the only means at the disposal of the supervising authorities, in respect of imported wines, of investigating adulteration due to over-alcoholization.The Procureur général also refers to the fact that Regulation No 1539/71 was adopted in application of Articles 20 and 39 of Regulation No 816/70 and in application of Article 11 (4) of Regulation No 817/70. He claims that all these articles concern the identification of table wines or quality wines p.s.r. and that the sole objective of Regulation No 1539/71 is to lay down the methods of analysis whereby this identification can be established.He adds that it is impossible to transpose with sufficient accuracy the value of the alcohol/dry extract ratio obtained by the densimetric method into the alcohol/dry extract ratio obtained by the 100o method since the two techniques are very different in their principles and their results. There can be no constant relationship between these two methods of measurement.
3.The observations of the French Government
The French Government first of all points out that ‘the proportion of alcohol by weight to the reduced extract’ is not a rule for the analysis of wine but the expression of an oenological principle the results of which enable over-alcoholization of wine in a given case to be determined, by comparison with constants which have been established by experiment.It is obvious that to apply such a rule it is necessary to refer to the elements expressly stated by these constants and to the quantities which they adoptIn connexion with the dry extract, the confusion which may arise by reason of the existence of similar descriptions which however apply to different groups of constituents must be avoided. Until the Order of 24 June 1963 defined the total dry extract, French regulations only recognized the dry extract obtained on the basis of measurement at 100o. This extract differs from the total dry extract because some of the dry substances are burned away when the wine is boiled at 100o. This dry extract is generally called ‘dry extract at 100o’. In some cases it corresponds to the reduced extract referred to in Article 8 of the Code du vin (where there are no sugars in excess of 1 gramme per litre and there is no potassium sulphate present), but it can never be considered as the total dry extract.In other respects, analyists agree that it is impossible to find a transposition coefficient which enables the total dry extract to be converted into the dry extract When measurements are taken according to the French concept of the dry extract at 100o, most of the dextrans and pectic derivatives and some of the glycerine are not taken into account; therefore, for the same wine the number expressing the value of the extract given by the 100o method is smaller than that obtained by the densimetric method. It is just this great veriability in the quantity of the substances of the types mentioned above in different wines which makes it impossible in practice to transpose the results of one method into the other.Then the French Government claims that there has been no Community provision defining the method of measuring the dry extract or the reduced extract Consequently, a provision of national law which is neither contrary to nor concurrent with a provision of Community law cannot be considered as repealed.As regards the other two questions, the French Government claims that if the answer given is that the provisions of Article 8 of the Code du vin remain in force this necessarily involves giving an answer to the same effect in respect of Article 2 of the Order of 22 January 1974.In the opinion of the French Government, it must first be emphasized that no Community provision has been made on the investigation of fraudulent practices and adulteration except to call upon the Member States to take all appropriate measures to ensure compliance with the Community rules. In this connexion, it quotes in particular Article 39a of Regulation No 816/70 introduced by Regulation (EEC) No 2680/72 of the Council of 12 December 1972 (OJ, English Special Edition 1972 (9-28 December) p. 30) which provides that Member States shall take all appropriate measures to verify compliance with the provisions of that Regulation.With regard to the provisions of Regulation No 1539/71, the French Government observes that in the title thereof refers to ‘methods for analysis’ (‘des méthodes d'analyse’) and therefore does not lay down all the methods of analysis. The French Government maintains that the scope of Regulation No 1539/71 must be considered as limited to the identification and characterization of wines and is not at all concerned with the investigation of fraudulent practices and adulteration. Therefore, it appears that the provisions of the Decree of 19 April 1898 (Article 8 of the Code du vin) are not contrary to Community law or in conflict with it. Finally, the French Government claims that it would be paradoxical to make Member States responsible for adopting checks appropriate to implement these regulations and at the same time to deprive them of the means of carrying out such checks.
4.Observations of the Government of the Italian Republic
The Italian Government examines the French rules in the field in question and points out that the presumption of over-alcoholization is a measure for checking the existence of certain material properties which wine must possess. It is thus not concerned with specifying these conditions but checking that they exist.In its opinion, an examination of the provisions of Community law reveals that the task of checking that the material properties of the wine are present is left to Member States, with some exceptions. In this connexion, it refers to Article 39a of Regulation No 816/70 and to Article 9 of Regulation No 1594/70 (OJ, English Special Edition 1970 (II), p. 558).Therefore the Italian Government claims that Member States are still free to undertake checks intended to ensure that the Community rules are observed, so that where the national court considers that the presumption of over-alcoholization constitutes a similar check, it is compatible with the system of Community law to keep it in force.The Italian Government claims that the answer to the second question follows from Regulation No 1539/71 determining Community methods for the analysis of wines. Some of the grounds upon which Regulation No 1539/71 is based, and especially the third recital in the preamble thereto (‘… consequently, these methods should be compulsory for all commercial transactions and all verification procedures’) make it necessary for the regulation to be considered as also applicable to the methods of analysis which are required to verify the existence of the material properties which are required by the Community rules in respect of the product in. question. This view is supported by the provisions of Article 1 of the regulation itself, since Regulation No 816/70 includes Article 39a which imposes upon Member States the obligation to take all appropriate measures to verify compliance with the provisions of Community law. Moreover, if a different view were taken, the aim of the common organization of the market would be jeopardized since a product which was regarded in one country and according to a certain method of analysis as a table wine fulfilling the required conditions might not be regarded as such in another country which had adopted a different method of analysis.Since amongst the Community methods of analysis there is one method, that is, the densimetric method, the aim of which is to carry out the same verification procedure as that which the national method of dry extract as 100o aims to do, the Italian Government concludes that the Community method of analysis must be applied.
5.The observations of the Commission
The Commission recalls that the Court only has jurisdiction to interpret Community law within the context of the procedure referred to in Article 177 of the EEC Treaty and taking into consideration the fact that the second and third questions raise the same problem as regards the interpretation of Community law, it considers that the questions should be worded thus:1. Do Regulations Nos 816/70 and 817/70 and the implementing regulations made thereunder authorize Member States to apply a presumption of over-alcoholization to wines which is based upon the alcohol/reduced extract ratio?2. If the first question is answered in the affirmative, does Regulation No 1539/71 authorize Member States to prescribe the 100o method of analysis for measurement of the dry extract which is necessary to determine the alcohol/reduced extract ratio?’In the Commission's opinion, the first question poses the problem to what extent the Member States may apply provisions of national law to verify and enforce compliance with the Community provisions concerning oenological processes.The Commission's conclusion is that Member States not only may but must take all appropriate measures to ensure that the provisions of Community law are observed. In this connexion, it refers in particular to Article 9 of Regulation No 1594/70 and Article 13 of Regulation No 817/70. The Commission observes that the provisions of Community law on the harmonization of verification procedures which have been adopted up to the present are not exhaustive and that none of the provisions of the Community rules prevents the application of the presumption of over-alcoholization which is based on the alcohol/dry extract ratio.However it adds that the action of the Member States conflicts with the limit which the prohibition on measures having an effect equivalent to quantitative restrictions on imports constitutes. If the controls imposed by a Member State on the products of other Member States were carried out more rigorously than on home-manufactured products, this would be such a measure.In the Commission's opinion, it is impossible to raise the objection to this answer that the presumption in question causes the Community rules on the enrichment of wine to be replaced by the mere conformity of the results of the chemical analysis with the values laid down by national legislation. This objection would only be well-founded if the presumption were irrebuttable. On the other hand, although it is fully possible to give evidence in rebuttal, the presumption in question must be considered as a true method of verification.Moreover, a distinction must be made between the question of the permissibility of the presumption in question in the abstract and the permissibility of the determination in concreto of the values which give rise to the presumption. To fix values for the alcohol/extract ratio which are valid for all Community wines and which penalize wines from other Member States by contrast with home-produced wines is, for example, a measure having an effect equivalent to a quantitative restriction on imports. Although the Commission cannot within the context of these proceedings, commit itself as to whether the values laid down in French law are fair in respect of all Community wines, there is nothing in its opinion to make it believe a priori that these values penalize wines from other Member States.Then the Commission dismisses another objection which may be made to the conclusion set out above. The presumption of over-alcoholization is not in conflict with the opportunities of enriching wine legally because simple mathematical operations are sufficient for the person concerned to show that the enrichment is legal, if such is really the case.Finally the Commission points out that the effect which Community law has of repealing contrary provisions of national law consists essentially in rendering inapplicable provisions of national law to the extent to which their contents are contrary to the contents of the provisions of Community law. Indeed, a Member State may and sometimes must go further than this and formally repeal provisions of national law. But repealing provisions in this way is then the action of the Member State. In this case, although it is true that Article 25 of Regulation No 816/70 by its wording precludes the applicability in a Member State of a rule the content of which is similar to that of Article 2 of the Law of 24 July 1894, this article, on the other hand, has no effect on the presumption of over-alcoholization unless it is proved that a contradiction exists between these two rules.As regards the second question, the Commission first points out that the answer that the 100o method must be replaced by the densimetric method would require a modification of the values of the alcohol/dry extract ratio. But there are no formulae for converting the values of the extract obtained by the different methods. Besides, the science of oenology does not appear to have developed an alcohol/extract ratio based on the extract obtained by the densimetric method. Therefore an answer to this effect would have the result of making the task of the Services de répression des fraudes more difficult.The Commission claims moreover that by adopting Regulation No 1539/71 the Community legislature was essentially aiming at defining some methods of analysis to measure the substances contained in wine expressly mentioned in the Community regulations.Apart from that, however, the regulation appears to be wider in scope. In fact it lays down the methods of analysis ‘for the application of Regulations (EEC) Nos 816/70 and 817/70’. In order to be able to conclude that Regulation No 1539/71 is not applicable to the methods of verification which come within the discretionary power of Member States, the phrase for the application of Regulations (EEC) Nos 816/70 and 817/70 must be interpreted as relating solely to cases where the two regulations expressly mention the substances for which a method of analysis is laid down. This restrictive interpretation, which is in general difficult to support, seems all the more unjustified since, according to Article 39a of Regulation No 816/70 and Article 9 of Regulation No 1594/70, national measures of control are expressly adopted in application of Regulations Nos 816/70 and 817/70.Nor is a restrictive interpretation lent support by the reasons which appear in the preamble to Regulation No 1539/71. In this connexion the Commission refers in particular to the third recital. It is true that the articles expressly mentioned as being the legal basis of the regulation militate in favour of a restrictive interpretation. But this fact cannot in the Commission's opinion prevail over the unequivocal statements in the operative part of the regulation and the statement of reasons.Because of these considerations, the Commission believes that the second question submitted by the Cour d'appel, Bordeaux, must be answered in the negative.At the oral proceedings on 11 June 1975, Messrs Arnaud, Raby and Gallet, represented by Mr J. Rozier, the French Government represented by Mr R. Tinlot, Chief Inspector in the Service de la répression des fraudes, and the Commission, represented by its Legal Adviser, Mr G. Marenco, presented oral argument.During this hearing, the parties adduced new arguments which are summarized below:According to the French Government, Regulation No 1539/71 cannot be referring to methods of investigating fraudulent practices and adulteration because such methods do not exist internationally since the International Office for Vines and Wine has only established methods of analysis for determining the constituents of wine.The French Government denies in addition that it had let the rule of presumption fall into disuse and claims that from 1965 to 1974, 54 cases of offences concerning over-alcoholization were brought before the courts, 45 of these cases relating to French wines, 8 to Italian wines and 1 to Spanish wine. Of these 54 cases, 18 were brought before 1970.Messrs Arnaud, Raby and Gallet emphasize in particular that the rule of presumption is a rule which affects the very composition of the product; therefore it does not merely constitute a verification measure but rather the definition of a novel and additional feature which has been superimposed on Community regulations. They recall the difficulties raised for those concerned by the need to supply evidence in rebuttal and claim that for traders and in particular importers of wine it is sometimes even impossible to adduce such evidence.The Commission claims that the 100o method is not the only method by which a ratio showing over-alcoholization may be determined. It is true that the present ratio in France is determined on the basis of the 100o method, and it is true that at present there is no alcohol/dry extract ratio based on another method. But, in the Commission's opinion, it is certain that on the basis of experiments based only on the densimetric method a new alcohol/dry extract ratio could be formulated.The French Government replies that it might be possible to create a new rule of presumption based on the alcohol/total reduced dry extract ratio, the total dry extract being calculated by densimeter and making the reduction in proportion to this total dry extract calculated by densimeter. But to work out such a rule requires a great deal of effort and time. Several years at least would be needed to obtain enough experience.The Advocate-General delivered his opinion at the hearing on 8 July 1975.
Law
Costs
Operative part
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.