Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. This request for a preliminary ruling calls for an interpretation of certain provisions of Council Regulation No 355/79 of 5 February 1979 which laid down general rules for the description and presentation of wines and grape musts. The first matter to be established is the scope of the prohibition whereby persons who hold such products for sale or place them on the market are forbidden to describe or present them in a manner liable to cause confusion or to give customers a false impression as to their characteristics, in particular with regard to their geographical origin. The next matter to be ascertained is whether xhe relevant Community provisions permit the application of other, and more stringent, national provisions.

2. The German court has thus specifically referred to four provisions of Regulation No 355/79: Article 8 (c), Article 18 (c) and both paragraphs of Article 43. Articles 8 and 18 both concern brand names used for the description of wines and included on the labels of the bottles. Their content is to a large extent identical, the principal difference residing in the fact that Article 8 applies to table wines and Article 18 to quality wines produced in specified regions. Accordingly in this case it is sufficient to have regard to the latter provision only. In any event paragraph (c) of both Article 8 and Article 18 prohibits the use of brand names containing words, parts of words, signs or illustrations which contain false or misleading information, particularly in respect of geographical origin, wine variety, vintage year or superior quality.

3. I shall now consider the interpretations to be placed upon the expressions confusion and misleading information which appear in Article 43 (1), Article 8 (c) and Article 18 (c) respectively of the said Regulation No 355/79 and which the court making the reference regards as distinct from the expression to create a false impression employed in Article 43 (2). The alternatives are as follows: does confusion arise only if there is a risk that the brand name may be mistaken for another specific brand name or specific name of a locality or does it also arise if the brand name leads people to believe that it refers to a wine-producing locality, which in fact does not exist?

4. Turning now to the second group of questions I must first of all point out that, according to the wording of the order, the national court has framed them in case an affirmative answer is given to Question 1 (b). However the Commission and all the other parties talcing part in this case have rightly observed that the German -court has certainly committed an error since there is no point in putting the second group of questions unless a negative reply is given to Question 1 (b) and not the reverse. It is in fact clear that to ask the question — as Question 2 (a) in fact does — may a description and presentation ... which is not objectionable under Article 43 (1) none the less come within the scope of Article 43 (2) entails taking the view that the scope of Article 43 (1) is more limited than that of Article 43 (2) (that is, it would prohibit only confusion with specific brand names or production localities) and that view corresponds to a negative reply to Question 1 (b). For that reason the phrase introducing the second group of questions should be amended by substituting the word negative for the word affirmative.

5. In conclusion I am of the opinion that the Court of Justice should provide the following reply to the questions submitted to it by the Bundesgerichtshof by its order of 19 December 1979:

1 Translated from the Italian.