Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. The questions referred to the Court for a preliminary ruling by the Verwaltungsgericht (Administrative Court) Frankfurt am Main relate to the role of the Member States in filling lacunae in Community law, more specifically as regards the provisions relating to aid for the distillation of table wine.
The facts
2. The dispute between the parties to the main proceedings is concerned with the grant of aid for the distillation of table wine during the 1983/84 wine-growing year. I shall now briefly summarize the rules of Community law which are relevant to this case and the way in which the Bundesamt für Ernährung und Forstwirtschaft (Federal Office for Food and Forestry, hereinafter referred to as the Bundesamt) has filled the gaps in those rules.
3. Detailed implementing rules governing the grant of aid for the distillation of wine in the 1983/84 wine-growing year were set out in Commission Regulation (EEC) No 2373/83. That regulation fixes the amount of aid on the basis of the actual alcoholic strength by volume per hectolitre of the product of distillation. The amount of aid also differs depending on the type of wine used to obtain the product of the distillation (see Article 5). As far as the distillation of white table wine, which is at issue in the main proceedings, is concerned, three different percentages of aid are granted depending on whether the wine is white table wine of Type A I, A II or A III, the highest percentage being granted for wine of Type A III and the lowest for wine of Type A I. Those types of table wine are defined in Council Regulation (EEC) No 340/79. Article 2 of that regulation defines the types of white table wine as follows:
4. The other lacuna at issue in this case is to be found in the rules of Community law concerning the particulars which must be specified in the distillation contracts or declarations of delivery for distillation to which reference has already been made. The combined provisions of Articles 4(2) and 5(2) of Council Regulation No 2179/83 (cited above) provide that the contract or declaration is to specify at least the quantity, the colour and the actual alcoholic strength by volume of the wine. Article 2(2) of Commission Regulation No 2373/83 sets out these particulars in more detail. Under that provision, contracts and declarations are to specify at least (the words at least are omitted from the English version):
5. The facts which led to the main proceedings can be summarized as follows. On 14 January 1984, Weingut Dietz-Matti (which I shall refer to as the wine producer), the plaintiff in the main proceedings, submitted a declaration of delivery of table wine for distillation by an approved distillery. As has already been mentioned, it also was asked to specify in the declaration required by the Bundesamt certain particulars relating to the type of wine submitted for distillation. According to the declaration made by the wine producer, aid was sought for the distillation of 178 hectolitres of table wine of the Type A III Riesling. This therefore resulted in the grant of the highest percentage of aid (see paragraph 3 above). By decision of 15 August 1984, aid in the amount of DM 24379.65 was granted to the wine producer. However, during an inspection it was discovered that the quantity distilled contained a total of 18.35% Kerner and 1.76% Gewiirztraminer. Since it took the view that those two wines fell under Type A II without the proportions used in the blend being indicated in the declaration, the Bundesamt, by decision of 3 October 1985, revoked the decision granting the aid and demanded repayment of the whole of the amount of the aid, on the ground that the wine actually distilled was not as specified in the declaration.
6. On 15 October 1985, the wine producer lodged a complaint against that decision with the Bundesamt in which it claimed that wine from the grape variety Kerner consisted principally of Riesling and could therefore be regarded as falling within Type A III. The Bundesamt rejected that complaint by decision of 5 June 1986 on the ground that the wine distilled did not tally with the description of the wine in the declaration. The wine producer brought an action against that decision in the Verwaltungsgericht Frankfurt am Main, which suspended the proceedings and referred the following questions to the Court for a preliminary ruling:
7. Before getting down to the preliminary questions proper, I would first consider the question of the legality of action taken by an agency in the Member States in order to remedy lacunae in rules on a Community-level market organization.
Assessment of the Bundesamt's action
8. In its judgments the Court has confirmed on several occasions that, where the Community has exercised its powers exhaustively in order to create a common organization of the market in a particular sector, the Member States are no longer entitled to legislate in that sector. Lacunae and imprecise provisions do not as such confer on Member States independent jurisdiction to lay down rules, but must in principle be overcome in the light of the aims of the common organization of the markets in question.
9. Let us now consider how the principles set out in the case-law of the Court are to be applied to the way in which the Bundesamt filled the lacunae in the common organization of the market in wine which I described earlier.
10. Neither does it seem to me to have been unlawful to fill the second lacuna by drawing up a list of vine varieties in accordance with Article 3 of Regulation No 340/79. The Bundesamt's action must be assessed in the light of the fact that no agreement was reached on the management committee as to the actual content of the implementing measures referred to in the said Article 3. However, it was necessary to draw up a list in order to be able to calculate the amount of distillation aid pursuant to Commission Regulation No 2373/83. It must be considered on the basis of the principle set out in the judgments in Pluimveeslachterijen Midden-Nederland and Van Miert and Scheer whether the classification criteria used in the aforesaid Bekanntmachung of the Bundesamt are compatible with the principles of the common organization of the market and compatible with its aims.
The first question
11. It follows from the foregoing that there is nothing to prevent the Bundesamt from making the grant of aid conditional on specifying the correct type of wine in the declaration. Even if this were not required expressly by a national implementing regulation, it would still be necessary for the correct operation of the system of distillation aid for white table wine. Furthermore, since correct specification of the type of wine in the declaration is essential, it is a genuine condition for the grant of the aid, and not just a element enabling the amount of the aid to be fixed.
The second question
12. The question whether wines of Types A II and A III may come from vine varieties other than those listed in Article 2 of Council Regulation No 340/79 was raised because the wine producer indicated on the declaration form that the wine was A III Riesling whereas the quantity distilled contained some Kerner and Gewürztraminer. According to the Bundesamt, those two wines should fall within Type A II (which, according to the Bekanntmachung, is a residual category for German white table wines). However, the wine producer argued before the national court that wine from the variety Kerner was principally Riesling and that the quantity distilled could therefore be classed as Type A III, having regard in addition to the tolerance which existed in the wine-growing year in question for blended wines (see paragraph 13 below).
The third question
13. In its third question, the national court seeks to establish on the basis of what criteria aid may be granted for the distillation of a blended wine (that is to say a wine obtained from mixing table wines of Types A I, A II and/or A III).
14. Since the German rules on designations cannot provide a valid criterion, rules must be determined for calculating the amount of the aid for the distillation of blended wine.
15. The above considerations directly answer the third limb of the third question. Where the contract or the declaration does not contain the aforementioned particulars it is obvious that the conditions for the grant of the aid have not been fulfilled. In such case, it is not possible to grant an aid on the basis of the percentage applicable to Type A I. Moreover, it must be observed that Type A I is not a residual category of white table wines but the type of white table wine for which the lowest aid may be granted and which must have an actual alcoholic strength by volume of not less than 10% and not more than 12%.
Conclusion
16. In view of the foregoing, I suggest that the Court should answer the questions referred for a preliminary ruling by the Verwaltungsgericht Frankfurt am Main in the following terms:
1 Original language: Dutch.
2 Regulation of 5 February 1979 (OJ 1979, L 54, p. 1). That regulation has since been replaced by Council Regulation (EEC) No 822/87 of 16 March 1987 (OJ 1987, L 84, p. 1).
3 Regulation of 25 July 1983 laying down general rules for distillation operations involving wine and the by-products of wine-making (OJ 1983, L 212, p. 1).
4 Regulation of 22 August 1983 laying down, for the 1983/84 wine-growing year, detailed implementing rules concerning the distillation provided for in Article 11 of Regulation (EEC) No 337/79 (OJ 1983, L 232, p. 5).
5 Regulation of 5 February 1979 determining the types of table wines (OJ 1979, L 54, p. 60). This regulation replaced Council Regulation (EEC) No 945/70 of 26 May 1970 (OJ, English Special Edition 1970 (I), p. 267).
6 This is a management committee procedure. We shall be coming back to this later on.
7 Sec the judgment of 30 January 1974 in Case 159/73 Hannoversche Zueker AG Rethen-Weetzen v Hauptzollamt Hannover [1974] ECR 121, in which the Court held that Member States were not entitled to adopt transitional rules for the entry into force of a regulation establishing a common organization of the market in the sugar sector even though no provision was made in the regulation for such transitional rules.
8 See the judgment of 18 June 1970 in Case 74/69 Hauptzollamt Bremen v Krohn [1979] ECR 451. This case was concerned with an imprecise provision in the Common Customs Tariff as regards the importation of starch.
9 Judgment of 28 March 1984 in Joined Cases 47/83 and 48/83 [1984] ECR 1721.
10 See paragraphs 19 to 28 of the judgment.
11 Judgment of 17 December 1970 in Case 30/70 Otto Scheer v Einfuhr- und Vorratsstelle Jur Getreide und Futtermittel [1970] ECR 1187. In that judgment the Court conceded that during a transitional period the Member States retained jurisdiction pending the adoption by the Commission of implementing rules relating to the common organization in the cereals sector.
12 Moreover, as the representative of the Bundesamt rightly pointed out, this is borne out by Article 7(3) of Council Regulation (EEC) No 2179/83, which provides as a condition for the grant of the aid that proof must be submitted that the total quantity of wine mentioned in the contract or declaration has been distilled, in other nords, there must be proof that the quantity of wine mentioned in the contract or declaration and the quantity of wine actually distilled tally This also shows that the exact specification of the particulars, which is necessary in order to grant the aid, constitutes a condition for the grant of the aid
13 According to information provided by the Bundesamt in its observations, those producers wrongly assumed that the German designation rules were also applicable in order to determine the wine type on the basis of which the aid was to be calculated.
14 According to the Bundesamt's observations, these are the German Weinverordnung, in the version indicated in the Bekanntmachung of 4 August 1983, Bundeigeielzblatt I, p. 1078.
15 This means in practice that at least 85% of the blended wine must have come from the vine variety indicated in the contract or declaration.
16 It is true that it follows from the answer given to the first question (see paragraph 11 above) that, in the case of a blend consisting of wines all of which have an actual alcoholic strength by volume of not less than 10% and not more than 12% (which therefore must be classed as Type A I), it is not necessary to mention the wine type of each of the constituents in the declaration.