Report for the Hearing delivered in Case 265/86

I — The applicable legislation, the facts and the course of the procedure in the action before the national court

A — The applicable legishtion

1. The rules concerning the planting and classification of vine varieties and quality wines produced in specified regions (‘quality wines psr’) are contained in a series of Council regulations.

Provisions concerning the phntation and classification of vine varieties

2. Pursuant to Article 31 of Council Regulation No 337/79 of 5 February 1979 on the common organization of the market in wine (Official Journal 1979, L 54, p. 1), as amended by Council Regulation No 454/80 of 18 February 1980 (Official Journal 1980, L 57, p. 7),

‘1. The Council, acting by a qualified majority on a proposal from the Commission, shall adopt general rules for the classification of vine varieties. These rules shall in particular provide for: a classification of such vine varieties, by administrative unit or part thereof, into recommended varieties, authorized varieties and temporarily authorized varieties, the possibility for a Member State to derogate from the provisions of paragraph 2 with a view to investigating the suitability of a vine variety for cultivation, to undertaking scientific research, selective crossing and hybridization, or the production of material for the vegetative progagation of the vine which is intended for export.

2. Without prejudice to any more restrictive Community provisions, only recommended varieties and authorized vine varieties may be used for new planting, replanting or grafting in the Community.’

3. That article is supplemented by Article 49 (1) of the same regulation, according to which both table wines and quality wines must be produced only from recommended or authorized vine varieties as referred to in Article 31 unless otherwise decided by the Council.

4. On the basis of the authority given by Article 31 (1), the Council adopted Regulation No 347/79 of 5 February 1979 on general rules for the classification of vine varieties (Official Journal 1979, L 54, p. 75), which thus succeeded Regulation No 1388/70 of 13 July 1970 (Official Journal, English Special Edition 1970 (II), p. 420).

5. Article 1 of the regulation in question provides that: ‘The classification of vine varieties shall include all vine varieties of the genus Vttis, including those derived from inter-specific crossings, which are authorized for cultivation in the Community and intended for the production of grapes or of vegetative vine propagating material’.

6. Article 6 et seq. lay down the criteria for the classification of vine varieties in one of the following three categories: ‘recommended’, ‘authorized’ and ‘temporarily authorized’. Article 6 provides as follows:

‘1. With regard to wine grape varieties: (a) recommended vine varieties shall include the varieties which : are already cultivated in the Community and which belong to the species Vitis vinifera L, or are obtained from interspecific crossings the cultivation suitability of which is recognized, after 19 July 1970, as being satisfactory in accordance with Article 12, and which normally provide wines recognized to be of good quality; (b) authorized vine varieties shall include the varieties which normally provide sound and marketable wine of a quality which, while of an acceptable standard, is lower than that of the wine referred to under (a); (c) temporarily authorized vine varieties shall include the varieties : which do not meet the criteria stated under (a) and (b) but which nevertheless are of some economic importance to the administrative unit or part thereof concerned or, which present certain shortcomings in cultivation.’

7. Regulation No 347/79 gives no guidance concerning the suitability or otherwise of the abovementioned vine varieties for the production of quality wines psr.

8. Article 13 of that regulation is worded as follows :

‘1. Planting, even for the purpose of replacing failures, or field grafting and double-grafting: of vine varieties not listed in the classification, or of temporarily authorized vine varieties, shall be prohibited.

2. Member States may, however, permit derogations from the provisions of the first indent of paragraph 1 for the following purposes: cultivation suitability trials of a vine variety which is not listed in the classification for the administrative unit or part thereof concerned or for the Community as a whole, scientific research, selection or crossing experiments,

...’.

9. Thus, according to that article (adopted under the authorizations provided for in Articles 31 (1) and 49 (1) of Regulation No 337/79), the Member States may permit derogations from the prohibition of planting or grafting contained in paragraph 1; in such cases, they must inform the Commission and, pursuant to paragraph 3, carry out a systematic inspection of the planted areas at the end of the cultivation trials.

10. Paragraph 4 of that article, in particular, raises a question of interpretation: it is worded as follows:

‘Products derived from a vine variety undergoing cultivation suitability trials, scientific research or selection or crossing experiments as referred to in paragraph 2, shall be treated as products obtained from authorized vine varieties.’

11. It should be noted finally that on the basis of Article 31 (4) of Regulation No 337/79, the classification of vine varieties into recommended and authorized varieties is carried out by the Commission in accordance with the Management Committee procedure. The current classification for the administrative units of the Member States is contained in the Annex to Commission Regulation No 3800/81 of 16 December 1981 (Official Journal 1981, L 381, p. 1).

Provisions concerning quality wines produced in specified regions

12. Quality wines psr are covered by Council Regulation No 338/79 of 5 February 1979 (Official Journal 1979, L 54, p. 48).

13. Article 1 of that regulation provides that ‘“quality wines produced in specified regions” (hereinafter called “quality wines psr”) means wines which satisfy the provisions of this regulation and those national rules adopted pursuant thereto’.

14. Article 4 of the regulation requires the Member States to draw up a list of vine varieties suitable for producing quality wines psr. Those vine varieties may be only of the species Vitis vinifera and must belong to the recommended or authorized categories referred to in Regulation No 337/79.

15. Article 6 (1) (a) prescribes that ‘quality wines psr may be obtained only from grapes of vine varieties which appear on the list provided for in Article 4 (1) and are harvested within the specified region’.

The German rules

16. Adopted pursuant to Article 13 (2) of Regulation No 347/79, Paragraph 55 (2) of the German Law on Wines (BGBl., 1982 I, p. 1196) provides that ‘wine deriving from vine variety tests ... may be classified as quality wine ... on presentation of a certificate from the authority responsible for inspecting the trials to the effect that the procedures for the trials were complied with’.

B — The facts of the case, the procedure before the national court and the question submitted

17. During 1972 and 1973, the Ministry of Agriculture, Winegrowing and the Environment of Rheinland-Pfalz approved growing contracts of the plaintiff in the main proceedings for tests for the cultivation of a vine variety called ‘Aris’, on the basis of Article 11 (2) of Regulation No 1388/70 (now Article 13 (2) of Regulation No 347/79). That variety is an interspecific crossing; it is obtained from crossings with vine varieties of the genus Vitis riparia, which differs from the genus Vitis vinifera which, according to Article 6 (1) (a) of Regulation No 338/79, is the only one which may be used for the production of quality wines psr.

18. Until 1984, wines which contained, within the authorized blending limits, the variety ‘Aris’ were recognized in Rheinland-Pfalz as quality wines psr.

19. In December 1985, the plaintiff in the main proceedings reapplied in respect of a type of wine including 10% of the ‘Aris’ variety for the issue of an official control number recognizing it as a quality wine psr. The Landwirtschaftskammer (Chamber of Agriculture) of Rheinland-Pfalz rejected the application on that occasion on the ground that, according to instructions from the Ministry, wines from interspecific vine varieties could no longer be given an official control number as quality wines psr as from the 1985 harvest.

20. The plaintiff in the main proceedings lodged a complaint, which produced no result, and then brought an action before the Verwaltungsgericht (Administrative Court), Trier, relying upon Paragraph 55 (2) of the German Law on Wines and Article 13 (4) of Regulation No 347/79.

21. As is apparent from the request for a preliminary ruling made by the national court, the plaintiff in the main proceedings claims that although, according to Articles 4 (1) and 6 (1) (a) of Regulation No 338/79, there is an established principle that the lists of vine varieties permitted for the production of quality wines psr may contain only varieties of the genus Vitis vinifera, it is nevertheless apparent from the combined provisions of Articles 49 (1) and 31 (2) of Regulation No 337/79 and Article 13 (1) of Regulation No 347/79 that the Council reserved the possibility of making exceptions to that principle and of adopting special rules concerning cultivation trials for vine varieties from new crossings. Officially authorized cultivation trials are not therefore covered by Articles 4 (1) and 6 (1) (a) of Regulation No 338/79 but only by Article 13 (4) of Regulation No 347/79, according to which vine varieties undergoing trials are treated as equivalent to authorized varieties. Consequently, they are permitted for the production of quality wines psr.

22. The plaintiff in the main proceedings also argued that Article 13 (4) of Regulation No 347/79 was a more recent provision than Articles 4 and 6 of Regulation No 338/79, since Regulation No 1388/70, superseded by Regulation No 347/79, was more recent than Regulation No 817/70 (Official Journal, English Special Edition 1970 (I), p. 252) which was superseded by Regulation No 338/79; Article 13 (4) also replaces Articles 4 and 6 as a special rule, in view of the fact that Regulation No 337/79 also applies to quality wines psr and, consequently, the system of varieties undergoing trials created by the combined provisions of Article 31 of that regulation and Article 13 of Regulation No 347/79 applies also to Regulation No 338/79.

23. Finally, the plaintiff in the main proceedings refers to a statement made by the German delegation in the negotiations for the adoption of rules on the the common organization of the market in wine in April 1970 showing that that delegation considered that vine variety trials involving new crops were not affected by Article 3 of Regulation No 817/70 (which superseded Regulation No 338/79).

24. As is also apparent from the request for the preliminary ruling, the Landwirtschaftskammer of Rheinland-Pfalz, the defendant in the main proceedings, contended before the national court that it was doubtful whether the German Law on Wines was compatible with the Community rules. Wine from vine varieties undergoing trials, and therefore not classified, could not be given a better classification than would be available if the variety in question had been classified. Even if some contradiction might be apparent between Article 13 of Regulation No 347/79 and Articles 4 and 6 of Regulation No 338/79, the latter two articles preclude the classification of a wine as a quality wine psr if it comes from a variety not belonging to the species Vitis vinifera.

25. The national court stayed the proceedings and requested a preliminary ruling on the following question:

‘On the basis of the provision in Article 13 (4) of Regulation (EEC) No 347/79, may wine from vine varieties undergoing cultivation suitability trials, scientific research or selection or crossing experiments be recognized as quality wine produced in a specified region or would that be contrary to the first sentence of Article 6 (1) (a) in conjunction with the first sentence of Article 4 (1) of Regulation (EEC) No 338/79?’

26. The order for reference was received at the Court Registry on 24 October 1986.

II — Written procedure

1. Only the Commission of the European Communities, represented by its Legal Adviser, Peter Karpenstein, submitted written observations to the Court, on 15 January 1987, pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

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

Written observations submitted to the Court

3. The Commission observes in the first place that the question submitted is formulated too broadly: the question arising is not whether, in general, wine from varieties undergoing cultivation trials can be qualified as quality wines psr, but simply whether wine may be classified as quality wine psr if a vine variety not belonging to the species Vitis vinifera has been used. The Commission confines its observations to that question.

4. The Commission distinguishes between two groups of rules: general rules on the classification of vine varieties and special rules on quality wines psr. Only thus can the scope of the various provisions involved be determined.

5. The general rules include Regulations Nos 337/79 and 347/79.

6. In the Commission's opinion, the answer to the question arising is not governed by Regulation No 337/79 or, more particularly, by Article 49 thereof.

7. That article provides in general that both table wines and quality wines must, in principle, be produced only from varieties recommended or authorized (under Article 31 of the same regulation). That principle, from which the Council may in fact derogate, applies logically also to the rules on planting.

8. The meaning of the provision in question is therefore that wine may not in general be produced from vine varieties which do not belong to one of the three available categories (recommended, authorized or temporarily authorized).

9. Nor can the answer to the question arising be governed by Regulation No 347/79, including Article 13 (4), mentioned above.

10. According to that regulation, which relates in general to the classification of vine varieties, such classification must include all varieties of the species Vitis, including therefore interspecific crossings.

11. That regulation gives no indication whatsoever as to the possible suitability of vine varieties for the production of a quality wine psr and it contains no provisions on the objective requirements to be fulfilled by a quality wine psr; it is not therefore concerned with the specific conditions for the production of quality wines psr.

12. As regards Article 13 (4), it provides that the products obtained from a vine variety undergoing cultivation suitability trials and other trials are to be treated as products obtained from other vines only as regards the condition that the variety in question must be an ‘authorized vine variety’. Therefore, the fact that varieties which are undergoing cultivation trials and which therefore are not classified are assimilated to ‘authorized’ varieties is merely an exception to the general condition for classification laid down by Article 49 of Regulation No 337/79.

13. Article 13 (4) therefore covers only one of the conditions for a vine to be classifiable as a quality wine psr and is intended exclusively to ensure that there are outlets for products obtained from vine varieties planted under derogations from the general rules on planting.

14. In conclusion, Regulations Nos 337/79 and 347/79 are in principle applicable to all vine varieties of the Vitis species and are designed to orient Community wine growers in the long term towards improved production, by guiding them in their vine stock selection.

15. The question at issue is therefore covered exclusively by Regulation No 338/79, which is the lex specialis, and in particular by Articles 4 (1) and 6 (1) (a). By contrast with Article 49 (1) of Regulation No 337/79, which imposes as a precondition for the production of any wine the requirement that the grapes used must come from a recommended or authorized variety, the abovementioned provisions laid down, for the production of quality wines psr, two additional conditions: the vine variety used must be of the species Vitis vinifera and it must appear on a special list prepared by the State in question.

16. The Commission does not deny that Article 13 of Regulation No 347/79 is a more recent provision and, from the substantive point of view, constitutes a special rule by comparison with Regulations Nos. 337/79 and 338/79, but it considers that, as a derogating provision, it should be interpreted restrictively.

17. The statement made by the German delegation, mentioned above, is irrelevant since it was never published and simply indicated that trials with new crops were not affected by Article 3 of Regulation No 817/70 (which was then in force).

18. The fact that the proportion of grapes of a species other than Vitis vinifera used in this case was minimal is of no importance.

19. The Commission proposes that the reply to the question submitted should be that on the basis of the combined provisions of Article 13 (4) of Regulation No 347/79 and Articles 4 (1) and 6 (1) (a) of Regulation No 338/79 wines from vine varieties undergoing cultivation trials or crossing experiments ‘may be classified as quality wines psr only to the extent to which the vine varieties used are exclusively of the species Vitis vinifera.

C. Kakouris

Judge-Rapporteur

1 Language of the Case: German.