Report for the Hearing delivered in Case C-158/89

I — Facts and procedure

1. Article 11 of Council Regulation (EEC) No 337/79 of 5 February 1979 on the common organization of the market in wine (Official Journal L 54, p. 1) provides for preventive distillation of table wine in return for a payment of aid.

2. Article 4(1) of Council Regulation (EEC) No 2179/83 of 25 July 1983 laying down general rules for distillation operations involving wine and the by-products of wine-making (Official Journal L 212, p. 1) provides that any producer intending to deliver wine of his own production for distillation is to conclude a delivery contract with a distiller and submit it to the competent intervention agency for approval.

3. Article 2(2) of Commission Regulation (EEC) No 2373/83 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 No 337/79 (Official Journal L 232, p. 5) provides that the contracts and declarations are to specify at least the quantity, colour and actual alcoholic strength by volume of the wine to be distilled, stating whether it is table wine or wine suitable for yielding table wine.

4. Article 2 of Council Regulation (EEC) No 340/79 of 5 February 1979 determining the types of table wines (Official Journal L 54, p. 60) distinguishes, in regard to types of white table wine, between wine from vine varieties of the Riesling type, known as Type A III, wine from vine varieties of the Sylvaner or Müller-Thurgau type, known as Type A II, and white wine other than that referred to above with an actual alcoholic strength by volume of not less than 10% vol and not more than 12% vol, known as Type A I.

5. In the absence of a Community regulation of that nature, the Federal Republic of Germany, in the Bekanntmachung über die Zuordnung der Rebsorten zu den Tafelweinarten (Notice concerning the relationship of vine varieties to types of table wine) of 15 March 1979 (Bundesanzeiger No 56, of 21.3.1979), classified German table wines from vine varieties of the Auxerrois, Weißer Burgunder, Weißer Riesling and Ruländer types in Type A III and all other German white table wines in Type A II.

6. The Weinverordnung (Wine Regulation), in the version which appeared in the notice of 4 August 1983 (Bundesgesetzblatt I, p. 1078), permits, by way of derogation from Council Regulation (EEC) No 355/79 of 5 February 1979 laying down general rules for the description and presentation of wines and grape must (Official Journal L 54, p. 99), the marketing of wine of domestic origin on which only one vine variety is indicated if at least 85% of the wine is from that vine variety. The composition of the remaining 15% does not have to be indicated.

7. On 14 January 1984, Weingut Dietz-Matti submitted to the German intervention agency a declaration of delivery for distillation of table wine by an approved distillery in respect of 178 hectolitres of table wine of Type A III (Riesling). By notice of 15 August 1984, the intervention agency granted aid in the amount of DM 24379.65.

8. After discovering during an inspection that the wine distilled contained a total of 18.35% Kerner and 1.76% Gewürztraminer, and since it considered that the abovementioned wines fell under Type A II without the proportions used in the blend being indicated in the declaration, the intervention agency, by notice of 3 October 1985, revoked the notice granting aid and demanded repayment. By a decision of 5 June 1986, an objection was dismissed on the grounds that the wine declared was not identical to the wine distilled and that since the proportion of wine added was about 20%, the limit laid down in the national rules, which is in the order of 15%, had not even been complied with, whereupon Weingut Dietz-Matti brought an action before the Verwaltungsgericht Frankfurt am Main.

9. Since it considered that the dispute involved an interpretation of the relevant Community rules, the Verwaltungsgericht Frankfurt am Main, by an order of 30 March 1989, stayed the proceedings until the Court of Justice has given a preliminary ruling under Article 177 of the EEC Treaty on the following questions:

10. The order made by the Verwaltungsgericht Frankfurt am Main was received at the Court of Justice on 3 May 1989.

11. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted, on 27 July 1989, by the Commission of the European Communities, represented by Klaus-Dieter Borchardt, a member of its Legal Department, assisted by Michel Vilaras, a judge of the Greek Council of State seconded to the Commission's Legal Department in the context of an exchange programme, and, on 3 August 1989, by the Bundesamt für Ernährung und Forstwirtschaft, represented by Ursula Holzhauser, Rechtsreferentin.

12. 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 inquiry.

13. By a decision of 6 December 1989 adopted under Article 95(1) and (2) of the Rules of Procedure, the Court assigned the case to the Second Chamber.

II — Written observations submitted to the Court

1. The intervention agency, representing the defendant in the main proceedings, points out that the matters set out in Article 2(2) of Regulation No 2373/83, cited above, namely the quantity, colour and actual alcoholic strength by volume of the wine and whether it is table wine or suitable for yielding table wine, merely constitute the minimum which must be specified and further information may be added. It follows from Article 7 of Regulation No 2179/83, cited above, that, in order to attract aid, the wine mentioned in the contract and the wine actually delivered must be identical. That cannot be determined solely on the basis of the information mentioned in Article 2(2) of Regulation No 2373/83, cited above. It is also necessary to specify the type of table wine so that the intervention agencies and the Commission can manage the distillation programme in the context of the common organization of the market in wine, and in particular, fix the minimum buying-in price and the level of aid. Furthermore, the implementing provisions concerning preventive distillation for the marketing year at issue, namely 1983/84, also speak of specifying the type of table wine.

2. The Commission points out that aid may be granted only if the producer submits the delivery contract concluded with the distillery and a delivery declaration to the competent intervention agency for approval and provides proof that the total quantity of wine appearing in the contract or declaration has actually been distilled. It is true that Article 2(2) of Regulation No 2373/83, cited above, does not expressly require that the type of wine delivered for distillation should be indicated. However, the fact that the type of wine is used to determine the amount of the aid (Article 5 of Regulation No 2373/83, cited above) and thus determines the scope of the rights involved does not prevent that information also being subject to the approval procedure and thereby being a pre-condition for entitlement to aid. The intervention agency cannot carry out the necessary checks if it does not have all the information needed to identify the wines, among which are the items set out in Article 2(2) of Regulation No 2373/83, cited above, and also the type of wine, which is essential in fixing the amount of the aid. The failure to indicate the type of wine in Article 2(2) of Regulation No 2373/83, cited above, may be explained by the fact that the Community legislature considered that, having regard to the importance of the type of wine in fixing the amount of the aid, the intervention agency would clearly require it to be specified.

1 Language of the case: German.