Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. By order of 30 August 1984 the Fourth Criminal Senate of the Bayerisches Oberstes Landesgericht [Bavarian Supreme Regional Court] requested the Court to give a preliminary ruling on the interpretation of the first sentence of the first subparagraph of Article 36 (1) of Council Regulation (EEC) No 337/79 of 5 February 1979 on the common organization of the market in wine (Official Journal 1979, L 54, p. 1).

2. Mr Hans Röser, a German national, owns a number of wine cellars in Kitzingen which, for the purposes of Article 32 of Regulation No 337/79, is situated in winegrowing zone A. In September 1982, he enriched in his wine cellars 1659 litres of must in fermentation obtained from grapes harvested in Italy (winegrowing zone C II) and marketed it as Federweißer. That beverage, which is sold in unsealed containers in the weeks following harvesting, is intended to be consumed immediately. If the process of fermentation were allowed to continue, the product would turn into wine and, if derived from certain vine varieties, into wine suitable for yielding table wine.

3. The Commission of the European Communities acknowledges that the purpose of Article 36 is to permit effective supervision of enrichment processes, which may in principle be carried out only in the zone in which the grapes have been harvested. In fact, it recognizes that if that limitation did not also apply to intermediate products of wine making, it would be extremely easy to carry out fraudulent operations. If charged by an inspector with enriching the product, any wine grower could reply no offence has been committed, the product is Federweißer and is not intended for being turned into table wine.

4. The Commission's argument cannot be accepted. The premise on which it is based, namely that Article 36 is defective inasmuch as it makes no provision for processes resulting in the manufacture of a product other than wine suitable for yielding table wine, is, as I intend to show, erroneous. Clearly then, the consequence following from that premise, namely that substances suitable for yielding table wine may undergo unsupervised — albeit temporary — enrichment simply because they are intended for direct consumption as intermediate products, is unacceptable. Finally, the legislative amendment proposed by the Commission is contrary to the purpose for which the Community legislature allows the alcoholic strength to be increased, namely to ensure that the varieties of grapes classified in Regulation No 337/79 yield a quality wine, suitable for consumption as a table wine, and not just another drink consumed on a seasonal basis.

5. Having clarified those points, I now turn to the question submitted by the national court. As I recalled in paragraph 2, the Oberstes Landesgericht wishes to ascertain whether, for the purposes of Article 36, the increase in the alcoholic strength of grape must in fermentation may take place only in the zone in which the grapes are harvested, even if such must is not intended to be turned into wine but is intended for sale in that state as Federweisser.

6. That conclusion is decisive for the purposes of this case, although it is insufficient to dispel all uncertainty concerning the proper application of Article 36. I am referring to the alleged omission complained of by the Commission which lies at the root of the question submitted to the Court. If problems of a territorial nature are left aside, the question could read as follows: Is the first subparagraph of Article 36 (1) to be interpreted as meaning that the alcoholic strength of must in fermentation derived from the vine varieties referred to in Article 49 may be increased even if the must is not used for making wine suitable for yielding table wine? In more general terms, may the products which, according to Regulation No 337/79, are suitable for yielding table wine be enriched, in accordance with the detailed rules laid down by that regulation, even if they are intended for sale as beverages other than table wine? In my view, that question must be answered in the negative.

7. In the light of all the foregoing considerations, I suggest that the Court should answer the questions submitted by the Bayerisches Oberstes Landesgericht, by order of 30 August 1984 in criminal proceedings against Mr Hans Röser, in the following manner:

1 Translated from the Italian.