Report for the Hearing delivered in Case 26/86

I — Summary of the facts

Regulation No 3309/85 (Official Journal 1985, L 320, p. 9) lays down inter alia information which may, subject to certain requirements, be provided on bottles of sparkling wine. That information includes information relating to the method of production. Article 6 distinguishes between the expression ‘bottle-fermented’ (paragraph (3)) and the expression ‘bottle-fermented by the traditional method’ or ‘traditional method’ (paragraph (4)). According to the second subparagraph of paragraph (4), the last expression may only be used ‘if the product:

a) was made sparkling by a second alcoholic fermentation in the bottle;

b) stayed without interruption in contact with the lees for at least nine months in the same undertaking from the time when the cuvée was constituted;

c) was separated from the lees by disgorging’.

Article 6 (5) provides that:

‘An expression relating to a method of production which includes the name of a specified region or of another geographical unit, or a term derived from either of these’ (first subparagraph) ... ‘may be used only to describe a product entitled to one of the geographical ascriptions... ’ (second subparagraph).

The third subparagraph of Article 6 (5) contains a temporary derogation from that rule:

‘However, reference to the method of production known as “méthode champenoise” may, if such a usage were traditional, be used together with an equivalent expression relating to that method of production for eight winegrowing years for wines not entitled to the registered designation “Champagne”.’

The fourth subparagraph of Article 6 (5) makes the use of the expression ‘méthode champenoise’ subject to the abovementioned conditions laid down by the second subparagraph of Article 6 (4) for the use of the expressions ‘bottle-fermented by the traditional method’ or ‘traditional method’.

The regulation took effect on 1 September 1986 (Article 18).

II — Written procedure and conclusions of the parties

1. The application made by Deutz und Geldermann was lodged at the Court Registry on 31 January 1986.

2. By an order of 4 June 1986, the Court granted leave to the Commission to intervene in support of the Council's conclusions.

3. The applicant claims that the Court should: 1. Declare that Council Regulation No 3309/85 of 18 November 1985 laying down general rules for the description and presentation of sparkling wines and aerated sparkling wines is void in so far as Article 6 (5) provides that reference to the method of production known as ‘méthode champenoise’ may be used, if such a usage was traditional, only for eight more winegrowing years; 2. Order the Council to pay the costs.

4. By an application on a procedural issue made pursuant to Article 91 of the Rules of Procedure, the Council raised an objection of inadmissibility. It contends that the Court should: 1. Declare the application for a declaration that Regulation No 3309/85 is void inadmissible without examining the substance of the application; 2. Order the applicant to pay the costs.

5. The Commission, an intervener, claims that the Court should: 1. Dismiss the application as inadmissible; 2. Alternatively, declare it unfounded; 3. Order the applicant to pay the costs, including those of the intervener.

6. The written procedure followed the normal course.

7. Upon 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 solely on the question of admissibility alone, without examining the substance, and, pursuant to Article 95 (1) of the Rules of Procedure, assigned the case to the Sixth Chamber.

III — Submissions and arguments on the objection of inadmissibility

1. The Council and the Commission take the view that Article 6 (5) is of a legislative nature, applies to objectively determined factual situations and produces legal effects with regard to categories of persons described generally and in the abstract. Both the prohibition of indeterminate duration laid down in the second subparagraph of Article 6 (5) and the temporary derogation from that prohibition contained in the third subparagraph are applicable to all present and future traders in sparkling wines which are produced in the Community or imported. In the view of the Council and the Commission, the condition relating to traditional usage does not affect the issue. Any trader established in a Member State in which the use of the reference to the ‘méthode champenoise’ is traditional may still use that reference during the entire transitional period, irrespective of whether he was using that reference when the regulation was adopted. The Commission adds that the number of producers using the ‘méthode champenoise’ in the Community is considerably higher than the applicant suggests, although that fact is not decisive in view of the legislative nature of the provision in question.

2. The applicant objects to the reference made by the Council in its objection of inadmissibility to ‘sparkling-wine merchants’. The expression ‘méthode champenoise’ designates solely a method of production and therefore can be used only by producers and not by merchants. The applicant proposes that an expert's report be obtained with regard to that point. In the applicant's view, all producers who, like the applicant, have traditionally used the ‘méthode champenoise’, are directly and individually concerned by the contested provision as if a decision with the same content were addressed to them because the number of such producers is very limited and easily ascertainable. An increase in their number is virtually ruled out because the building of production facilities for producing one million bottles a year by the ‘méthode champenoise’ (which would be relatively little) would require an investment of DM 2 million. The applicant proposes that an expert's report be drawn up to confirm this point. In support of its submission that the application is admissible, the applicant relies on the Court's judgments in Case 62/70 Bock v Commission [1971] ECR 897, Case 101/76 Scbolten-Honig v Council and Commission [1977] ECR 797 and Case 100/74 Société C. A. M. SA v Commission [1975] ECR 1393 and the Advocate General's Opinion in Case 6/68 Zuckerfabrik Watenstedt v Council [1968] ECR 409. In general the applicant is of the view that, in order to ensure complete and effective legal protection, the provisions of the Treaty relating to the right to sue should not be interpreted restrictively.

G. C. Rodríguez Iglesias

Judge-Rapporteur

1 Language of the Case: German.