JUDGMENT OF 16. 2. 1982 — CASE 204/80 PROCUREUR DE LA RÉPUBLIQUE v VEDEL
In Case 204/80 REFERENCE to the Court under Article 177 of the EEC Treaty by the Third Chamber of the Tribunal Correctionnel [division of the Regional Court having jurisdiction in criminal cases], Montpellier, for a preliminary ruling in the proceedings pending before that court between
THE COURT composed of: J. Mertens de Wilmars, President, G. Bosco, A. Touffait, O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges, Advocate General: S. Rozè Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
I — Facts and written procedure
II — Written observations submitted to the Court under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
Question 1
Question 1
Question 2
Question 3
Question 1
Question 1
Question 2
Question 3
III — Answers of the French Government and the Commission to the questions asked by the Court.
IV — Oral procedure
Decision
Question 1
Question 2
Question 3
Costs
I —. Facts and written procedure
1. French legislation on wine-based aperitifs provides that:
2. Guy and Jacques Vedel and Henri Lejeune were prosecuted for fraud for offering for sale under the appellation of wine-based aperitif an aperitif, St-Raphaël, which had not been made in accordance with the requirements of Article 5 of the Decree of 31 January 1930. They were summoned before the Tribunal Correctionnel, Montpellier, charged with the following offences:
3. As the file on the case shows, the product at issue was made in three successive stages:
4. Without denying the facts alleged against them, the accused submitted that the 1930 Decree is no longer applicable because it is incompatible with the relevant provisions of Community law. They claim that the minimum alcoholic strength required by the Community regulations is only 8.5o and not 10o and that the proportion of 80 % of wine required by the French decree is not a valid requirement either because, since the same Community regulations allow wines of 8.5o to be used to make products falling within heading 22.06 of the Common Customs Tariff, they have rendered Article 5 of the Decree of 31 January 1930 entirely inapplicable.
5. Faced with a question of Community law the Tribunal Correctionnel, Montpellier, stayed the proceedings and by order of 29 September 1980 registered at the Court of Justice on 20 October 1980 submitted the following questions under Article 177 of the EEC Treaty:
6. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community observations were lodged on 18 December 1980 by André Lénárd for Guy and Jacques Vedel and on 19 December 1980 by the Commission of the European Communities, represented by its Legal Adviser, Jean-Claude Séché.
7. 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. It did however ask the French Government to reply in writing to two questions on the reason for the maintenance of the rule in the French decree in question requiring a minimum alcoholic strength of 10o and the Commission to submit two documents cited in the observations of the parties. The requests were complied with within the time allowed. The Court also expressed its wish that the French Government be represented at the hearing and that its representative be accompanied by a specialist in wines.
II —. Written observations submitted to the Court under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
1. (c) (ii) Tables wines ... intended for the preparation of product's falling within heading No 22.06 of the Common Customs Tariff.
III —. Answers of the French Government and the Commission to the questions asked by the Court.
1. In its answer to the questions asked by the Court, the French Government basically argues that the national legislation on wine-based aperitifs remains valid in the absence of relevant Community regulations.
2. At the Court's request the Commission produced a draft proposal of 16 February 1981 for a Council regulation laying down general rules on the definition, description and presentation of spirituous beverages and of vermouths and of other wines of fresh grapes flavoured with aromatic extracts. The Commission stated however that the draft has not yet been examined by all its departments and that it covers spirituous beverages and aromatized wines in the same regulation. According to the draft, the term aromatized wine means a beverage ... consisting of wine or must, with or without added ethyl alcohol of agricultural origin. The draft regulation also provides that aromatized wines must have a minimum total alcoholic strength of 10 % by volume and wine or must present in a proportion of not less than 75 %.
IV —. Oral procedure
1. By order of 29 September 1980 which was received at the Court on 20 October 1980 the Tribunal Correctionnel (division of the Regional Court having jurisdiction in criminal cases], Montpellier, referred three questions to the Court for a preliminary ruling under Article 177 of the EEC Treaty to enable the Tribunal Correctionnel to decide whether provisions of French legislation laying down minimum requirements as to the percentage and alcoholic strength of wine contained in products called wine-based aperitifs falling within tariff heading 22.06 are compatible with the common organization of the market in wine.
2. Those questions were raised in the context of criminal proceedings brought against the managing director and the warehouse managers of a company for making and selling under the description of wine-based aperitif an aperitif, St-Raphaël, which was not made in accordance with the quality requirements contained in Article 5 of the French Decree of 31 January 1930.
3. That article provides that it shall be prohibited to sell or offer for sale, to be in possession of or transport with a view to sale under the description vermouth or any other description commonly reserved for wine-based aperitifs, beverages with an alcoholic strength exceeding 23o or containing less than 80 % of liqueur wine, grape must or genuine ordinary wine of merchantable quality and having an alcoholic strength of not less than 10o.
4. The accused were prosecuted for making and marketing during 1975 and until 31 May 1978 under the description of wine-based aperitif at least 221327.34 hectolitres of aperitif not containing the minimum percentage of 80 % of wine and of which moreover 218715.67 hectolitres had been made using wine with a strength of less than 10o.
5. The accused claimed that the French Decree of 31 January 1930 was not applicable on the ground that it was incompatible with Community law because the minimum alcohol content which the Community regulations require table wine contained in wine-based aperitifs to have is 8.5o instead of 10o as required by the French legislation.
6. They claim that Article 5 of the Decree of 31 January 1930 has therefore become inapplicable in its entirety because the fact that the rule which it contains on the alcoholic strength of table wine used in wine-based aperitifs is incompatible with Community regulations makes the rule as to the minimum percentage of 80% incompatible as well.
7. In order to be able to decide whether the national provisions are compatible with Community law the national court referred the following three questions to the Court:
8. It must be observed that Regulation (EEC) No 816/70 of the Council of 28 April 1970 laving down additional provisions for the common organization of the market in wine, which was cited before the national court and is incorporated in Council Regulation (EEC) No 337/79 of 5 February 1979 on the common organization of the market in wine, does not mention the products set out in heading 22.06 of the Common Customs Tariff within which wine-based aperitifs fall. As a result the products in question are not defined in Annex II referred to in Article 1 (4) (b) of Regulation No 337/79.
9. Nor is such a definition to be read into the Community regulations because of the fact that at the time of the events in question products falling within heading 22.06 of the Common Customs Tariff were referred to in Article 1 (3) of Regulation (EEC) No 1876/74 of the Council of 15 July 1974 concerning the addition of alcohol to products in the wine sector, as amended by Regulation (EEC) No 680/75 of the Council of 4 March 1975. At the present time this is also the case under Article 1 (3) of Council Regulation (EEC) No 351/79 of 5 February 1979 concerning the addition of alcohol to products in the wine sector. The aim of that regulation is to make derogations from Article 42 (1) of Council Regulation (EEC) No 337/79 and thus to allow the addition of alcohol to certain products to be used to make products falling within tariff heading 22.06 which include table wine.
10. It follows that wine-based aperitifs are not at present governed by Community regulations. This has been accepted by all the interested parties who have submitted observations to the Court and is moreover shown by the draft proposal for a Council regulation drawn up by the Commission on 16 February 1981 laying down general rules on the definition, description and presentation of spirituous beverages and of vermouths and of other wines of fresh grapes flavoured with aromatic extracts.
11. The fact that wine-based aperitifs belong to heading 22.06 of the Common Customs Tariff can be no substitute for such regulations. The purpose of the Common Customs Tariff is to classify goods so that customs duties can be collected and not to regulate the methods by which the products which it taxes are made.
12. The answer to the first question put to the Court must therefore be that the appellation wine-based aperitifs is not at present governed by Community regulations which exclude the application of the national legislation of the Member States.
13. The accused contend that in so far as they exist the Community regulations allow table wine of an alcoholic strength of 8.5o to be used to make wine-based aperitifs, table wine being defined in Annex II to Regulation (EEC) No 816/70 of the Council and now by Annex II to Regulation No 337/79 as wine which has an alcoholic strength of not less than 8.5o and not more than 15o or 17o. They claim that this has the effect of rendering inapplicable Article 5 of the Decree of 31 January 1930 prohibiting the use of a wine of an alcoholic strength of less than 10o for making wine-based aperitifs.
14. According to the French Government, the fact that wine-based aperitifs are not regulated at Community level means that Article 5 of the French Decree of 31 January 1930 on the making of wine-based aperitifs, which is intended to maintain the necessary quality standards for national products continues to apply. The French Government has explained that the minimum proportion of alcohol in base wines was fixed at 10o in order to ensure that since it is enriched with distilled alcohol the product sold as wine-based aperitif should contain a sufficiently representative proportion of alcohol derived from the natural fermentation of grapes.
15. The Commission submits that the addition of alcohol within the meaning of Regulation No 351/79 to products governed by the common organization may take place only in compliance with the Community definitions of those products and, in the case of table wine, with the definition given at point 11 of Annex II Regulation No 337/79 which allows a minimum alcoholic strength of 8.5o and a maximum of 15o or 17o, as the case may be. According to the Commission, it follows if a rule of national law relating to table wine used to make wine-based aperitifs requires wine of an alcoholic strength of less than 8.5o or more than 15o or 17o to be used, that rule is not compatible with Community law.
16. Since there are no applicable Community regulations the Member States continue to have the power to define the standards applicable to the manufacture and marketing of national products called wine-based aperitifs. Therefore a Member State may not be prevented from subjecting the manufacturer of wine-based aperitifs to special quality rules, depending on the characteristics of that kind of beverage. If a requirement of a minimum proportion of alcohol like that contained in Article 5 of the French Decree of 31 January 1930 is within the Community limits, it meets that criterion of quality.
17. It does not appear that the power which Member States therefore have is restricted by the provisions of Community law governing the marketing of products used to make wine-based aperitifs and, in this case, table wine.
18. Point 10 of Annex II to Regulation No 816/70 of the Council and now point 11 of Council Regulation No 337/79 limit the alcoholic strength of table wine to between 8.5o at the minimum and 15o or 17o at the maximum, as the case may be; however, that provision deals only with wines intended for direct consumption in their present state which may therefore be imported and may circulate freely in the Community, although under the relevant national legislation they may not be used to make wine-based aperitifs if their alcoholic strength is not that fixed by that legislation.
19. The answer to the second question must therefore be that Regulation No 816/70 does not preclude national legislation on the preparation of wine-based aperitifs from containing a provision such as that referred to by the national court.
20. In view of the answers given to Questions 1 and 2 consideration of Question 3 is no longer necessary for the national court to be able to decide the case before it.
21. The costs incurred by the French Government and the Commission of the European Communities which have submitted observations to the Court are not recoverable. As these proceedings are, in 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 on costs is a matter for that court.
On those grounds, THE COURT, in answer to the questions submitted to it by the Tribunal Correctionnel, Montpellier, by order dated 29 September 1980 hereby rules:
1 The appellation wine-based aperitifs is not at present governed by Community regulations which exclude the application of the national legislation of the Member States.
2 Regulation No 816/70 of the Council of 28 April 1970 laying down additional provisions for the common organization of the market in wine does not preclude national legislation on the preparation of wine-based aperitifs from containing a provision such as that referred to by the national court.