Report for the Hearing delivered in Case 234/85
I — The relevant regulations and the contested provisions
Article 3 of Council Regulation No 355/79 of 5 February 1979 laying down general rules for the description and presentation of wines and grape musts, as amended by Council Regulation No 3456/80 of 22 December 1980 (Official Journal 1980, L 360, p. 18) and Council Regulation No 3685/81 of 15 December 1981 (Official Journal 1981, L 369, p. 1), provides that:
Articles 13 and 30 of Regulation No 355/79 lay down similar rules as regards respectively quality wine produced in specified regions (quality wine psr) and wine originating in third countries.
Article 2 of Regulation No 355/79 sets out the information which must appear on the labelling of table wine. Article 2 (2) lists supplementary information which may appear on the labelling of such wines, including in particular, 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 ... .
Pursuant to Regulation No 355/79, the Commission adopted Regulation No 997/81 of 26 March 1981 laying down detailed rules for the description and presentation of wines and grape musts. Article 13 (6) of Regulation No 997/81 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:
Commission Regulation No 997/81 was amended by Commission Regulation No 1011/84 of 10 April 1984, which came into force on 16 April 1984 (Official Journal 1984, L 101, p. 17).
II — Facts and procedure
On 9 February 1984 criminal proceedings were brought against Franz Keller by the Staatsanwalt [Public Prosecutor], Freiburg, before the Amtsgericht Breisach-am-Rhein pursuant to the criminal-law provisions of the Weingesetz [Wine Law] in the version of the Fourth Amending Law of 27 August 1982 (Bundesgesetzblatt 1982, Part I, p. 1196 et seq.). Mr Keller was charged with having infringed Commission Regulation No 997/81 by using the term durchgegoren (fully fermented) on the labels of bottles of table wine produced by him whereas the only term authorized to indicate the residual sugar content is trocken (dry).
At Mr Keller's request, the Amtsgericht Breisach-am-Rhein suspended the proceedings and referred the following question to the Court for a preliminary ruling:
The national court considers that those provisions, which require German winegrowers to describe their wine exclusively by means of the terms mentioned therein, constitute a restriction on the exercise of their trade and are incompatible with Article 12 of the Grundgesetz [Basic Law], which guarantees the freedom to choose and pursue a trade or profession.
In the order requesting the preliminary ruling, the Amtsgericht Breisach-am-Rhein states that once it has obtained a preliminary ruling from the Court of Justice it envisages referring the question of the constitutionality of the relevant provisions of Community law to the Bundesverfassungsgericht [Constitutional Court].
The order of the Amtsgericht Breisach-am-Rhein was lodged at the Court Registry on 25 July 1985.
In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by Franz Keller, represented by H. Tröscher, Rechtsanwalt at Freiburg, by the Commission of the European Communities, represented by Peter Karpenstein, Legal Adviser, acting as Agent, and by the Council of the European Communities, represented by Arthur Brautigam, Principal Administrator in the Council's Legal Department, acting as Agent.
Upon 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 enquiry,
By decision of 2 May 1986, the Court decided, under Article 95 (1) and (2) of the Rules of Procedure, to assign the case to the Third Chamber.
III — Summary of the written observations submitted to the Court
Mr Keller considers that the prohibition of terms other than those expressly provided for in the contested rules is invalid for two reasons :
As regards the first point, Mr Keller argues that the aim of the rules on the description of wine is to safeguard consumers and wine-growers. Within the meaning of Article 12 of the Grundgesetz, they are imperative rules relating to the pursuit of the trade of wine-grower in a competitive market. According to the Bundesverfassungsgericht in practice those rules must be interpreted as meaning that the free pursuit of a trade may not be restricted by the legislature except in the public interest as safeguarded by the constitution and in accordance with the principle of proportionality.
Mr Keller contends that the German Weingesetz of 1930 left wine-growers free to describe their wines as they wished provided that they did not use descriptions which might lead to confusion. Under the Community provisions that liberty has been sacrificed in favour of rules which are excessively strict and needlessly detailed. In the view of Mr Keller, who cites, for example, the provisions concerning the size of the lettering to be used on labelling, such rules are bound to create confusion in the minds of both consumers and producers, and are therefore incapable of fulfilling their intended aim, namely securing, on the one hand, consumers' right to information which is accurate and not misleading and, on the other, competitive wine production. As regards the second point, Mr Keller contends, in the first place, that product diversification and specialization, provided that they are adequately defined, cannot but enhance product competitiveness.
Secondly, Mr Keller argues that it has not been proved that the term dry laid down by the Community rules is appropriate for the category of wine involved.
Thirdly, Mr Keller considers that the term dry is not compatible with accurate consumer information in so far as, under Article 13 (6) of Regulation No 997/81, it corresponds to a residual sugar content in the wine which may vary within a stated range, which has been increased further by Commission Regulation No 1011/84. Mr Keller refers to the annex to his written observations and points out that the description durchgegoren (fully fermented) clearly indicates that the wine in question contains no added sugar. As a result, the use of the term durchgegoren to supplement the term dry would provide full and unambiguous information which, by promoting transparency of commercial dealings, would better fulfil the objectives of the rules on the description of wine.
Mr Keller considers that, although it is within the discretionary powers of the Community legislature, the prohibition of terms other than those expressly provided for in the aforementioned rules is an instance of administrative dirigisme and improper in so far as it encroaches on the free pursuit of a trade without being justified by the interests of consumers or of the general public.
The Commission refers to paragraph 3 of the judgment of 17 December 1970 in Case 11/70 {Internationale Handelsgesellscbafi mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125) and to paragraph 14 of the judgment of 13 December 1979 in Case 44/79 {Hauer v Land Rheinland Pfalz [1979] ECR 3727) and stresses that the validity of provisions of Community law cannot be assessed in the light of the constitutional law of a particular Member State.
The Commission asserts, moreover, that even if Community law could be so assessed the Community rules at issue would not infringe Article 12 of the Grundgesetz. That article distinguishes between the freedom to choose one's trade or profession, which is not at issue in this case, and the pursuit of that trade or profession; pursuant to the second sentence of Article 12 (1) itself, the legislature may make the pursuit of a trade or profession subject to many kinds of restriction in the public interest.
As regards the criteria of conformity with Community law, the Commission states, on the basis in particular of the judgment of 14 May 1974 in Case 4/73 (J. Nold v Commission [1974] ECR 491), that whereas the Community institutions are bound to observe fundamental rights, including the right freely to pursue one's trade or profession, those rights are not unfettered prerogatives but may be subject to certain limitations justified, inter alia, by the public interest or the general objectives pursued by the Community.
The Commission states that, according to the third recital in the preamble to Regulation No 997/81, the Community rules on the description of wines are based on the requirements of a single market, which, under Article 38 of the EEC Treaty, relate in particular to trade in agricultural products. It is clear from Chapter 22 of Annex II to the Treaty that agricultural products include wine. Only by means of uniform rules covering the innumerable national rules and practices could barriers to trade be eliminated and trade encouraged by ensuring that consumers find on bottles of wine from other Member States descriptions and expressions similar to those used on the labelling of bottles of wine produced in their own countries,
The Commission also points out that the standardization of the particulars which may appear on wine-bottle labelling considerably facilitates the supervision of wine circulating within the Community. The supervision which is provided for in Article 64 of the basic regulation on wine, Council Regulation No 337/79 of 5 February 1979 (Official Journal 1979, L 54, p. 1), and implemented by Council Regulation No 359/79 of 5 February 1979 (Official Journal 1979, L 54, p. 136), sets out to protect the interests of consumers, as the third recital in the preamble to Regulation No 997/81 makes clear.
With regard to the actual question put by the national court, the Commission maintains that it is possible to challenge only the validity of Article 13 (6) of Commission Regulation No 997/81, as amended by Regulation No 1011/84, since Article 2 (2) (h) of Council Regulation No 355/79 merely empowers the Commission or in some cases the Member States to adopt the necessary rules on wine descriptions.
In the Commission's view the validity of its regulations cannot be contested. It points out that Article 13 (6) of Regulation No 997/81 specifies four variants that wine produers may use to describe the nature of their wine; they cover the whole range of tastes and hence allow very precise information indeed to be provided. Unlike the term durchgegoren, which is understood and in general usage only in Germany, the term dry in! its various language versions has come to be used throughout the Member States to designate a wine's residual sugar content.
The Commission further points out that the term durchgegoren is not factually correct in so far as in practice no wine is fully fermented; that expression means that all the sugar particles contained in the grape must have been transformed into alcohol yet some sugars, such as arabinose and rhamnose, which are contained in grapes, cannot be so transformed.
The Commission proposes that the question submitted by the national court should be answered in the following terms:
The Council submits comments similar to those of the Commission and stresses that the rules in question do not seek to restrict access to the trade of wine merchant but merely lay down rules for the pursuit of that trade with a view to safeguarding two legitimate public interests, that is to say, on the one hand, protecting the consumer by means of comprehensive and precise labelling so as to avoid any confusion and, on the other hand, ensuring effective supervision of the veracity of the permitted indications. That aim can be attained only by limiting the number of terms which may be used on labelling.
The Council proposes the same answer to the Amtsgericht's question as that proposed by the Commission, on the grounds that the contested provisions satisfy the legitimate public interest of the Community and are fully in accordance with the principles of proportionality and equality of conditions of competition.
1 Language of the Case: German.