Opinion of Mr Advocate General Reischl

Mr. President

Members of the Court,

Article 39a of Regulation (EEC) No 816/70 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), which was created by Regulation (EEC) No 2680/72 of 12 December 1972 (Official Journal, English Special Edition 1972 (9 to 28 December), p. 30), provides that Member States must take all appropriate measures to ensure compliance with that regulation and must designate one or more bodies which are instructed to verify compliance with that regulation. Article 11 of Regulation (EEC) No 817/70 of 28 April 1970 laying down special provisions relating to quality wines produced in specified regions (Official Journal, English Special Edition 1970 (I), p. 252) provides that producers are obliged to submit wines which are likely to be designated quality wine psr to an analytical test and to an organoleptic test. For this purpose Article 1 of Regulation (EEC) 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) provided that the methods of analysis for the application of Regulations (EEC) Nos 816/70 and 817/70 are those set out in the annex to that regulation. Points 3 of that annex provides as follows:

In France wines bearing the designation appellation d'origine contrôlée (registered designation of origin) are among the quality wines produced in specified regions within the meaning of Regulation No 817/70. In respect of those wines Decree No 74-71 of 17 October 1974 provided that wines which claim such a designation may only be put into circulation with an official certificate and after a test as provided by Article 11 of Regulation No 817/70 has been carried out (Article 1). Under Article 2 of that decree the above-mentioned test includes an analysis and the procedural rules for the test and the issue of certificates are laid down in an order of the Minister for Agriculture. Moreover, Articles 3 and 4 of the decree lay down provisions relating to the costs of the examination and settle the question to what wines the decree applies directly. Article 3 of an order of the Minister for Agriculture of 20 November 1974 on the analytical and organoleptic tests on wines bearing the designation appellation d'origine contrôlée issued under Article 2 of the decree provides that the test covers at least the dry extract which is determined by densimetry and at 100o.

These French provisions were contested inter alia by Roger Gallet, a wine producer, by bringing legal proceedings before the French Conseil d'État. The Conseil d'État accepted that the criticisms expressed in relation to Articles 3 and 4 of the above-mentioned decree, in which the costs of examination are laid down and it is provided to what extent the provisions are to be applied directly to specific wines, were justified. However in the view of the Conseil d'État there is no objection to the requirement of an official certificate issued on the basis of a test or to the fact that procedural rules must be laid down in an order of the Minister for Agriculture. The Conseil d'Etat is not however certain whether Article 3 of the order of the Minister for Agriculture (determination of the dry extract not only by densimetry but also by heating to 100o) is compatible with point 3 of the annex to Regulation No 1539/71 of the Commission, which refers only to the determination of the total dry extract by measurement of the specific gravity of the residue without alcohol.

For that reason it ordered in a decision of 22 December 1978, in addition to the annulment of Articles 3 and 4 of the above-mentioned order and the dismissal of the other complaints, that the proceedings were stayed and that the following question was referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

I adopt the following viewpoint with regard to this question:

1 Translated from the German.