Opinion of Mr Advocate General Mischo

Mr President,

Members of the Council,

I — The background to the request for a preliminary ruling

The request for a preliminary ruling was made by the Amtsgericht [Local Court] Breisach-am-Rhein in connection with criminal proceedings brought by the Public Prosecutor of Freiburg on 9 February 1984 pursuant to the criminal-law provisions of the German Weingesetz [Wine Law] against Franz Keller, a wine producer, inter alia for failing to observe the Community rules on the labelling of table wine.

The provisions in question are Article 2 (2) (h) of Council Regulation No 355/79 of 5 February 1979 laying down general rules for the description and presentation of wines and grape musts (Official Journal 1979, L 54, p. 99) and Article 13 (6) of Commission Regulation No 997/81 of 26 March 1981 laying down detailed implementing rules (Official Journal 1981, L 106, p. 1).

Article 2 (1) of Regulation No 355/79 sets out the information which is required to appear on the labelling of table wine. Article 2 (2) lists information which may also be incorporated in table-wine labelling, including, under Article 2 (2) (h),

details as to: (i) the type of product, (ii) the particular colour of the table wine, in so far as this information is governed by implementing rules or, failing this, by provisions of the Member State concerned...

Article 13 (6) of Regulation No 997/81 lists optional information intended to specify the type of product. It provides as follows:

Pursuant to Articles 2 (2) (h), 12 (2) (k) and 28 (2) (k) of Regulation (EEC) No 355/79 the following terms may be used as appropriate: demi-sec, halbtrocken, medium dry... moelleux, lieblich, medium, medium sweet... doux, süss, sweet ... The terms sec, trocken, ...dry ... may only be used if the wine concerned has a residual sugar content of: 4 g/l maximum, or 9 g/l maximum where the level of the total acidity in g/1 expressed as tartaric acid does not fall more than 2 g/1 below the residual sugar content.

The Public Prosecutor charged Mr Keller with using the term durchgegoren [fully fermented] on the labels of bottles of wine produced by him although that description is not one of the terms listed above. Mr Keller should have used the term trocken [dry] to indicate the low residual sugar content of his wine.

The Amtsgericht Breisach agreed with Mr Keller, that the provisions cited above were incompatible with Article 12 of the Grundgesetz [Basic Law], which guarantees the right freely to choose and pursue one's trade or professional activities and at his request, by order of 2 July 1985, asked the Court to deliver a preliminary ruling on the validity of those provisions in Community law.

In its order requesting a preliminary ruling, the national court mentions that it proposes also to refer the matter to the Bundesverfassungsgericht [Federal Constitutional Court] with a view to obtaining a decision as to the compatibility with the constitution of the provisions in question.

II — Legal assessment

1. In order to replace the issue in its proper context I would point out in the first place that:

2. It is appropriate therefore to consider the objectives of the contested rules and to assess whether the measures embodied in those rules reasonably correspond to the objectives which they pursue.

3. But the real crux of the question is whether the limitation and standardization introduced by the Commission in Article 13 (6) of Regulation No 997/81 completely satisfy the objectives of a single market, consumer protection and effective supervision. In other words, the question is whether the exclusion of the term durch-gegoren jeopardizes the achievement of the objectives of general interest pursued by the rules in question and hence constitutes an unjustified restriction on the free pursuit of the occupation of wine-grower.

In my view, these arguments are convincing.

The Court has stated on several occasions that, where the appraisal of a complex economic situation is involved, the Commission and the Management Committee enjoy a wide measure of discretion; and that in reviewing the legality of the exercise of such discretion, the Court must examine whether it contains a manifest error or consitutes a misuse of power or whether the authority in question did not clearly exceed the bounds of its discretion.

It is clear from the above that that was not the case here.

By stipulating that in order to designate the various residual sugar contents of wines produced in the Community certain terms must be used which, albeit limited in number, are broad enough to cover the main varieties and sufficiently common to be understood throughout the Community, the Community legislature has not unduly or unjustifiably limited wine-growers' freedom to pursue their occupation having regard to the objectives of general interest, of securing a fair standard of living for wine-growers — in particular through the achievement of a single market — consumer protection and effective supervision.

It is therefore not possible to contend, as Mr Keller does in paragraph ec of his observations, that the legislature misused its legislative power for purposes other than the objectives pursued.

Accordingly, the measure is not patently unsuited to the objective which the competent institution seeks to pursue (see judgment of 21 February 1979 In Case 138/78 Stölting v Hauptzollamt Hamburg-Jonas [1979] ECR 713, paragraph 7 at p. 722).

Lastly, Article 13 (6), in its version in force at the time when the criminal proceedings were brought against Mr Keller cannot be considered to be invalidated by the fact that, since then, the Commission has amended Article 13 (6) so as to enable Member States to permit the residual sugar content of wines marketed on their territory to be indicated by a figure or other mark forming part of a graduated scale.

By the same token, if tomorrow authorization were to be given to indicate the exact residual sugar content throughout the Community, that could not be utilized as an argument against the validity of Article 13 (6) in its original version.

The fact that the legislature amends existing rules in the light of experience does not signify that the previous rules were illegal.

It may therefore be concluded that consideration of the question raised has disclosed no factor of such a kind as to affect the validity of either Article 2 (2) (h) of Council Regulation (EEC) No 355/79 of 5 February 1979 or Article 13 (6) of Commission Regulation (EEC) No 997/81 of 26 March 1981.

1 Translated from the French.

2 It should be noted that that article has been amended by Commission Regulation No 1011/84 of 10 April 1984 (OJ 1984, L 101, p. 17) which did not enter into force until 16 April 1984 and therefore docs not apply to this case).

3 Judgment of 17 December 1970 in Case 11/70 Internationale Handelsgesellschaft v Einfuhr und Vorratstelle für Getreide und Futtermittel [1970] ECR 1125, in particular paragraph 3 at p. 1135.

4 Judgment of 13 December 1979 in Case 44/79 Hauer v Land Rheinland Pfalz [1979] ECR 3727, in particular paragraph 14, at p. 3744.

5 Case 4/73 Nold v Commission [1974] ECR 491, in particular paragraph 13 at pp. 507 and 508.

6 The 38th recital in the preamble to the regulation stresses that it should be provided that products of the wine sector circulating within the Community must be furnished with an accompanying document and then goes on lo state that for these products also rules on description and presentation should be adapted.

7 See, in particular, the judgment of 25 January 1979 in Case 98/78 Firma A. Racke v Hauplzollamt Mainz [1979] ECR 69, paragraph 5 at p. 81.

8 Commission Regulation (EEC) No 1011/84, see footnote 1.