Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. By an application lodged at the Court Registry on 18 February 1985 the Commission of the European Communities has asked the Court under Articles 169 and 171 of the EEC Treaty to declare that the Federal Republic of Germany has failed to fulfil its obligations with regard to an aspect of the Common Agricultural Policy. In particular, it is asserted that by prohibiting the use of rectified concentrated grape must for the enrichment of local wines [Landwein] and quality wines [Qualitätswein], the Federal Republic of Germany has failed to comply with the rules governing the organization of the market in wine, which permit such a practice.

2. First of all let us consider the German legislation. As amended on 1 September 1982, Paragraph 6 (1) of Title 1 of the Weingesetz [Law on wine production] provides that authorization may be granted for increasing the alcoholic strength of German wine in accordance with Articles 32 and 33 of Council Regulation No 337/79. A number of wines, however, are subject to special rules. Under Article 11 (1) and (2) the designation Qualitätswein b. A. [quality wine produced in a specified region] or simply Qualitätswein is reserved for wines in respect of which a control number has been issued; the issue of a control number is subject to certain conditions, among them the condition that no rectified concentrated grape must has been added. The rules governing local wine do not differ greatly: under Paragraph 10 (8) of Title 2, the designation Landwein may be used only if the wine has been produced from grapes harvested in the prescribed region and has not been enriched with rectified concentrated grape must.

3. The German Government's defence is less straightforward; in the course of the proceedings it put forward three different and to some extent contradictory arguments. I shall start with the third, which was put forward for the first time at the hearing. Turning around the Commission's reasoning, the German Government asserts that under Articles 32 and 33 the Member States may not only authorize enrichment but also prescribe the method to be used, which must, however, be one of the processes set out in Article 33. It submits that the proof of that lies in the very fact that Article 33 lists a number of methods.

4. We now come to the argument which the German Government has maintained since the prelitigation stage, and puts forward as its main one. The power to enact national measures prohibiting the use of rectified concentrated must, it asserts, is based, in so far as quality wines are concerned, on Article 19 of Regulation No 338/79, and in so far as local wine is concerned, on the second paragraph of Article 2 (3) (i) of Regulation No 355/79 of 5 February 1979 (Official Journal 1979, L 54, p. 99). Article 19 of Regulation No 338/79 provides that: In addition to the provisions laid down in this regulation, producer Member States may, taking into account fair and traditional practices, lay down any additional or more stringent characteristics or conditions of production and movement in respect of the quality wines produced in specified regions within their territory. Under Article 2 of Regulation No 355/79, the terms Landwein, vin de pays and vino tipico may be used in the labelling of table wine only in so far as national rules reserve them for table wines meeting certain production requirements, particularly as regards vine varieties, minimum natural alcoholic strength by volume and organoleptic characteristics.

5. On the basis of the foregoing considerations I propose that the Court allow the application brought on 18 February 1985 by the Commission of the European Communities against the Federal Republic of Germany and declare that by refusing to permit the addition of rectified concentrated grape must to increase the natural alcoholic strength by volume of local wines and quality wines produced in specified regions the Federal Republic of Germany has failed to fulfil its obligations under the common organization of the market in wine, and in particular Articles 32 and 33 of Regulation No 337/79 and Article 8 of Regulation No 338/79.

1 Translated from the Italian.