JUDGMENT OF 4. 7. 1979 — CASE 7/79 GALLET v MINISTER FOR AGRICULTURE

In Case 7/79 REFERENCE to the Court under Article 177 of the EEC Treaty by the French Conseil d'État for a preliminary ruling in the proceedings pending before that court between

THE COURT composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco, A. Touffait and T. Koopmans, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the procedure and the observations submitted in pursuance of Article 20 of the Statute of the Court of Justice of the European Communities may be summarized as follows:

I — Facts and procedure

Mr Gallet, residing at Château Plaisance, Capian en Gironde, applied to the French Conseil d'État for annulment of the order relating to analytical and organoleptic tests for wines bearing a registered designation of origin (Journal Officiel de la République Française of 22 November 1974, p. 11712) and in particular of Article 3 thereof inasmuch as it lays down a minimum requirement that the analytical test shall relate to certain factors amongst which is to be found ‘the dry extract measured by densimetry and at 100o’.

In support of his claim Mr Gallet maintains that the latter provision infringes those of Regulation No 1539/71 of the Commission of 19 July 1971 determining Community methods for the analysis of wines (Official Journal, English Special Edition 1971 (II), p. 552), inasmuch as Point 3 of the Annex to the Community regulation in question provides that ‘the total dry extract shall be measured by a densimeter and calculated indirectly from the specific gravity of the residue without alcohol’.

By a judgment of 22 December 1978 the French Conseil d'Etat took the view that the solution of the dispute before it depended on whether the Community provisions were to be understood as authorizing the measurement of the dry extract ‘by densimetry and at 100o’. It therefore decided to stay the proceedings and referred the question to the Court of Justice.

The judgment containing the reference was lodged at the Court Registry on 17 January 1979.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community, written observations were lodged by the French Government, represented for that purpose by M. Dandelot, an official of the Interdepartmental Committee for Matters of European Economic Co-operation, and by the Commission of the European Communities, represented for that purpose by its Legal Adviser, J. C. Séché, acting as Agent, assisted by G. Berardis, a member of the Commission's Legal Department.

On hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

II — Written observations

1. The French Government points out that the action which is at the origin of the question referred to the Court for a preliminary ruling concerns the French rules relating to analytical and organoleptic tests prescribed by Decree No 74/871 of 19 October 1974 and by the ministerial order of 20 November 1974. Those provisions were adopted in application of Regulation No 817/70 (Official Journal, English Special Edition 1970 (I), p. 252) for which, as regards the methods of analysis to be used in proceeding to the analytical test prescribed by Article 11, the provisions of the Annex to Regulation No 1539/71 apply. The French Government points out that when the ministerial order of 20 November 1974 was adopted it appeared desirable to the French administration to permit testing of the total dry extract not only by the densimetric method which is expressly referred to in the Annex to Regulation No 1539/71, but also by evaporation according to the so-called 100o process. It continues that these two methods of determination of the proportion of alcohol by weight to dry extract serve different purposes. The analytical and organoleptic test necessary for the grant of a designation of origin is conducted, under Decree No 74-871, according to the densimetric method within the framework of Community legislation on quality wines produced in specified regions (‘quality wines psr’) (Article 11 of Regulation No 817/70). On the other hand the detection of fraud in the context of the presumption in law of over-chaptalization (Article 8 of the Code du Vin [wine code]) is carried out according to the ‘100o’ method, which has been traditional in France since 1907 (Order of 18 January 1907, amended on 22 April 1908). Until quite recently it had not been possible to replace that method as the reference tables did not show any concordance with those worked out by use of the densimetric method and it had not been possible to calculate any satisfactory correlation coefficient to convert the dry extract at 100o into the total dry extract (densimetry). On the basis of the case-law of the Court, in particular the judgment of 9 December 1975 in Case 64/75, Procureur General de Lyon v Mommessin [1975] ECR 1599et seq.) the French Government takes the view that the methods of analysis prescribed by Regulation No 1539/71 have as their purpose only the determination of the value of the factors which must be present in a wine before it can receive the designation ‘quality wine psr’; the Member States therefore have the opportunity to apply other methods of analysis to determine the factors which do not enter into consideration for the application of Regulation No 817/70, which deals with rules peculiar to ‘quality wines psr’. Furthermore the French Government remarks that Article 39a of Regulation No 816/70 of the Council of 28 April 1970 laying down additional provisions for the common organization of the market in wine (Official Journal, English Special Edition 1970 (I), p. 234) (as amended), requires the Member States to take ‘all appropriate measures’ to ensure that the provisions relating to enrichment, acidification and de-acidification of wines are observed. Article 8 of the French Code du Vin conforms to that provision by instituting a presumption in law of over-alcoholization (over-chaptalization); that article is not incompatible with the Community rules inasmuch as it institutes only a measure of control which comes within national powers in the absence of Community rules and lays down only a rebuttable presumption in law which cannot be considered as discriminatory with regard to wines produced in other Member States. The French Government recognizes that theoretically this organoleptic control connected with the suppression of fraud might have been carried out according to the densimetric method but it adds that by reason of the absence until recently of a method alternative to the 100o method, used for the purposes of the presumption in law of over-chaptalization, that presumption would have been rendered impracticable if, at the time in question, the densimetric method had been compulsory to the exclusion of the 100o process. Finally the French Government states that Article 1 (4) of Commission Regulation (EEC) No 2984/78 of 17 November 1978 determining Community methods for the analysis of wines and repealing Regulation (EEC) No. 1539/71 (Official Journal L 360 of 17 November 1978, p. 1) provides that, until 31 August 1979, Member States may, in the context of checking the proportion of alcohol to dry matter determine the reduced dry matter by the method which they used before 19 July 1971. The French authorities have used this 100o method since 18 January 1907. It will only be on 31 August 1979, in accordance with the provisions of the above-mentioned Regulation No 2984/78, that the provisions of the ministerial order providing for the determination of the dry extract at 100o will entirely lapse.

2. The Commission recalls first of all that the Court has already had to pronounce on the compatibility of the 100o method for the determination of the dry extract with Community law; it refers to the operative parts of the judgments given on. 30 September 1975 in Joined Cases 89/74, 18 and 19/75, Procureur General at the Cour d'Appel, Bordeaux, v Arnaud ([1975] ECR 1023) and on 9 December 1975 in Case 64/75, Procureur General at the Cour d'Appel, Lyon, v Mommessin [1975] ECR 1599). It points out that those judgments were delivered in proceedings relating to the French provisions concerning the presumption of over-alcoholization of wines whilst the present case concerns a method of control laid down by French rules for the issue of a certificate of consent in respect of wines bearing a registered designation of origin. The Commission takes the view that the 100o method is compatible with Regulation No 1539/71, which was adopted on the basis of Regulation No 816/70 (which has since been replaced by a consolidating regulation, Council Regulation No 337/79 of 5 February 1979 on the common organization of the market in wine, Official Journal L 54 of 5 March 1979, p. 1) and on the basis of Regulation No 817/70 (replaced by a consolidating regulation, Council Regulation (EEC) No 338/79 of 5 February 1979 laying down special provisions relating to quality wines produced in specified regions, Official Journal L 54 of 5 March 1979, p. 48). In fact in the course of the analytical test intended to check whether the issue of a certificate of registered designation of origin is justified it is impossible to disregard the control relating to the presumption of over-alcoholization. Community rules (Article 7 (2) of Regulation No 817/70 and Article 8 (2) of Regulation No 338/79) lay down the conditions in which the natural alcoholic strength by volume of ‘quality wine produced in specified regions’ (‘quality wine psr’) may be increased. This designation consequently cannot be granted in the event of an unlawful enrichment and the check on over-alcoholization is inseparable from the analytical test. The Commission continues that, in the above-mentioned judgments, the Court accepted the use of the 100o method only ‘until more appropriate methods have been worked out’ (paragraph 36 of the decision in Case 64/75 referred to above). With this in view the Commission adopted on 17 November 1978 Regulation No 2984/78 determining Community methods for the analysis of wines and repealing Regulation (EEC) No 1539/71. As was the case with Regulation No 1539/71, the annex to this new regulation does not mention the 100o method. However, Article 1 (4) provides for transitional measures concerning dry extract. Until Community provisions are adopted on the levels of the constituents which indicate that certain oenological practices have been employed and on tables making possible a comparison of the analysis data, it authorizes Member States, in order to assess whether a product has been subjected to treatment or practices which are not in accordance with Community provisions, to determine the reduced dry matter by the method which they used before 19 July 1971 only in the context of checking the proportion of alcohol to dry matter. These new rules, which permit France to continue using the 100o method until 31 August 1979 correspond, according to the Commission, to the interpretation of Regulation No 1539/71 which it suggests in the light of the case-law of the Court. In conclusion the Commission, on the basis of the answer given by the Court in the above-mentioned judgments, takes the view that the answer to be given to the question put by the court of reference should be as follows:

‘A Member State may, in the present state of Community law, apply as a national measure of control for the purpose of checking whether the issue of a certificate of consent in respect of wines bearing a registered designation of origin is justified, a presumption in law of over-alcoholization which is based on the proportion of alcohol to dry matter determined by the 100o method, provided that that presumption is capable of being rebutted’.

III — Oral procedure

At the hearing on 7 June 1979, the appellant in the main action, represented for the purposes of the oral procedure by Mr Rozier, of the Bordeaux Bar, and the Commission, represented for the purposes of the oral procedure by its Legal Adviser, Mr Séché, acting as Agent, presented oral argument.

After recalling the legal difficulties with which the appellant in the main action had been, and was still being, confronted, his representative pointed out in particular that the judgments of the Court of 30 September 1975 in Joined Cases 89/74, 18 and 19/75, Arnaud, and of 9 December 1975 in Case 64/75, Mommessin, could not be relied on as precedents in this case. In his view the point was not to assess the compatibility with Community law of a measure of control based on a mere presumption, capable of rebuttal and applied to a given case, to detect fraud in the matter of over-alcoholization of table wines; on the contrary, what was at issue in this case was a measure of analysis implying prior tests with a mandatory bearing on certain specific factors, carried out in connexion with formalities for the issue of a certificate of consent for wines bearing a registered designation of origin. In his opinion, under Article 11 of Regulation No 817/70, which was in force when the main action was commenced and on the basis of which Regulation No 1539/71 was adopted, only the densimetric method could be used for determining the dry extract. The order of the Minister for Agriculture of 20 November 1974 provided in Article 3 that the dry extract should be determined by ‘densimetry and at 100o’ — an expression which he regarded as ambiguous as it did not make it possible to determine with certainty whether the two methods were alternative or cumulative. Consequently he concluded that the said Article 3 was incompatible with the afore-mentioned Community provisions. He then criticized the reliability of the 100o method, which he stated was out of date and had been condemned since 1963 by all international wine experts.

The appellant's representative also claimed that Council, Regulation No 2984/78 of 17 November 1978, repealing Regulation No 1539/71, was only an emergency provision which could not have the effect of legalizing from 1974 to 31 December 1978 what was manifestly contrary to Community law. At the most it could legalize such a situation only for a very limited period, namely from 1 January to 31 August 1979 and then only in the context of a check on the proportion of alcohol to dry matter.

He recommended the Court to reply to the question of the Conseil d'Etat to the effect that the provisions of Regulation No 1539/71, now repealed but in force at the time the main action was commenced, did not make it possible to use, for the analysis of wines bearing a registered designation of origin for the purpose of the issue of certificates of consent, the 100o method in addition to the densimetric method unless the purpose of the analysis was determined and unless the findings were capable of being rebutted.

The Commission further developed the arguments put forward in its written observations.

The Advocate General delivered his opinion at the hearing on 26 June 1979.

Decision

1. By judgment of 22 December 1978, which reached the Court on 17 January 1979, the French Conseil d'Etat, in pursuance of Article 177 of the EEC Treaty, inquired whether the provisions annexed to Regulation No 1539/71 of the Commission of 19 July 1971 determining Community methods for the analysis of wines (Official Journal, English Special Edition 1971 (II), p. 552) must be understood as authorizing the measurement of the dry extract ‘by densimetry and at 100o’.

2. This question arose in an action brought in 1975 by a French vine grower for the annulment of an order of the Minister for Agriculture dated 20 November 1974 relating to analytical and organoleptic tests for wines bearing a registered designation of origin. Article 3 of that order provides that the tests are required to relate at least to certain factors amongst which is to be found ‘dry extract determined by densimetry and at 100o’.

3. Regulation No 1539/71, for its part, provides in Point 3 of the annex that ‘the total dry extract shall be measures by a densimeter and calculated indirectly from the specific gravity of the residue without alcohol’. According to Article 1 of the regulation, the methods of analysis set out in the annex are prescribed for the application of two Council regulations of 28 April 1970, No 816/70 laying down additional provisions for the common organization of the market in wine and No 817/70 laying down special provisions for quality wines produced in specified regions (Official Journal, English Special Edition 1970 (I), pp. 234 and 252).

4. The third recital in the preamble to Regulation No 1539/71 provides that ‘these methods should be compulsory for all commercial transactions and all verification procedures’ and they are mandatory not merely when wine has to be analysed for commercial purposes but also whenever the determination of the elements referred to is necessary to establish fraud or adulteration.

5. It must further be noted that the methods of analysis laid down in Regulation No 1539/71 serve only to determine the constituents of wine listed in the annex to the regulation. It follows that the regulation is not exhaustive but leaves to the Member States the choice of applying other methods of analysis for determining the constituents of wine which are not relevant to the application of Regulations Nos 816/70 and 817/70.

6. The Court has already stated (in its judgments of 30 September 1975 in Joined Cases 89/74, 18 and 19/75, Procureur Général pres la Cour d'Appel de Bordeaux v Arnaud, Raby and Galet ([1975] ECR 1023) and Joined Cases 10 to 14/75, Procureur de la République près la Cour d'Appel d'Aix- en-Provence v Lahaille and Others ([1975] ECR 1053) and in its judgment of 9 December 1975 in Case 64/75, Procureur Général près la Cour d'Appel de Lyon v Mommessin and Others ([1975] ECR 1599) that the 100o method might be used in order to apply a presumption in law of over-alcoholization based on the proportion of alcohol to the reduced dry extract, such as the presumption set out in Article 8 of the French Code du Vin.

7. As a reason for that interpretation of the provisions in question the Court referred on the one hand to the fact that Community rules require the Member States to take all appropriate measures to ensure compliance with the provisions relating to oenological practices, including the enrichment of wine, and on the other hand that the presumption in law of over-alcoholization based on the proportion of alcohol to the reduced dry extract presupposes recourse only to the 100o method to extract the dry substances from the wine. From this point of view the Court noted that no coefficients existed which would enable the values of the reduced dry extract obtained by other methods, in particular the densimetric method, to be transposed into those resulting from the 100o method. In this respect the Court relied on scientific and trade experience and knowledge at the time, and gave judgment in the sense indicated, ‘until more appropriate methods have been worked out’ (paragraph 36 of the afore-mentioned judgment of 9 December 1975 in Case 64/75).

8. In contrast to the previous cases, this case is concerned with a method of control laid down by French rules for the issue of a certificate of consent to wines bearing a registered designation of origin. However, in this case too, the 100o method used in the context of a national measure of control may be recognized as compatible with Community law.

9. In fact it appears impossible, in the context of an analysis intended to check whether the issue of a certificate of registered designation of origin is justified, to disregard the control relating to the presumption of over-alcoholization. Community rules determine the conditions in which the natural alcoholic strength by volume of ‘quality wines produced in specified regions’ (‘quality wines psr’) may be increased. It follows that a ‘quality wine psr’ cannot receive such a designation if it has been unlawfully enriched. The test for over-alcoholization is thus inseparable from the analytical examination. The use of the 100o method is therefore compatible with Community law even if used in the context of the rules on designations of origin.

10. It must further be stated that the Commission, by a new regulation, No 2984/78 of 17 November 1978 (Official Journal L 360, p. 1), repealing Regulation (EEC) No 1539/71, determined Community methods for the analysis of wines. That regulation, which came into force on 1 January 1979, makes provision in Point 3 of the Annex for the densimetric method alone for determining the total dry extract. However, Article 1 (4) authorizes Member States, in order to assess whether a product has been subjected to treatments or. practices which are not in accordance with Community provisions, to determine until 31 August 1979 at the latest the reduced dry matter by the method which they used before 19 July 1971 only in the context of checking the proportion of alcohol to dry matter. The reduced extract, defined in Point 3 of the Annex to the regulation as the total dry extract less certain substances, has been traditionally calculated, as the Court recalled in its judgment of 30 September 1975, by recourse to the 100o method alone.

11. The answer to be given to the question referred to the Court should therefore be that a Member State may in the present state of Community law apply as a national measure of control, for the purpose of checking whether the issue of a certificate of consent in respect of wines bearing a registered designation of origin is justified, a presumption in law of over-alcoholization which is based on the proportion of alcohol to dry matter determined by the 100o method, provided that that presumption is capable of being rebutted.

Costs

12. The costs incurred by the Government of the French Republic and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable; since the proceedings are, so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision as to costs is a matter for that court.

On those grounds, THE COURT, in answer to the question submitted to it by the French Conseil d'État by judgment of 22 December 1978, hereby rules as follows: