Opinion of Advocate General Gulmann delivered on 16 January 1992

1 Original language: Danish.

2 According to the Commission's observations a statutory obligation was thus introduced in France in 1972 to bottle vin d'origine contrôlé from Alsace within the département where it was produced. In Italy there is an obligation to bottle Marsala within the winegrowing area. Also in Italy a draft law has been submitted providing for rules to be adopted by presidential decree on the bottling of wine of designated origin within certain regions. In Luxembourg rules apply, subject to certain exceptions, under which the marque nańonale may only be used for wine that is sold ready bottled. In Germany rules apply whereby wine may not be described as quality wine produced in a specified region before it has been given a Kontrolnummer which is only assigned to wine that has been bottled. At the hearing it was further stated that with effect from 1992 Spain intends to introduce similar rules concerning the place of bottling as regards wine produced in the Jerez district and that Portugal has introduced analogous rules.

3 According to the Spanish Government's written observations, the background to that transitional rule was as follows: That rule was laid down taking account of the fact that although the zones applying for recognition as denominación de origen calificada (Rioja and Jerez) were progressively increasing the proportions of the protected wines tncy marketed that were bottled in the wineries of origin, they still kept up a residual trade in bulk for export (in 1988 the proportion of Rioja exports in bulk was 21% of the total destined for foreign marketj).

4 From Delhaize le Lion's written observations it is apparent that in 1989 it sold around 23.4 million bottles of table wine and quality wine, 85% of which, or some 20 million bottles, were of wine it horded itself.

5 Immediately before this agreement the two parties had effected a deal for a quantity of 250 hectolitres of Rioja wine. After the first order had been dispatched by Promalvin on the terms agreed with Delhaize le Lion for supply by A. G. E. Bodegas, Delhaize le Lion gave Promalvin a second order, which is at issue in this case, for 3000 hectolitres.

6 United National Treaty series, Vol. 720-11, No 10346.

7 In its written observations the Belgian Government stated that a general obligation to bottle quality wine within the area of its production would mean the loss of 300 jobs in the Belgian bottling industry and 600 jobs in associated undertakings; the economic loss is estimated to be BFR 1120 million.

8 In addition it will become more difficult for the importing countries to administer their existing rules on reuse of botdes.

9 Case 15/79 Groenveld v Produktschap voor Vee en Vlees [1979] ECR 3409.

10 OJ 1987 L 84, p. 1.

11 OJ 1987 L 84, p. 59, as amended by Council Regulation (EEC) No 2043/89 of 19 June 1989 (OJ 1989 L 202, p. 1) and Council Regulation (EEC) No 3577/90 of 17 December 1990 (OJ 1990 L 383, p. 23).

12 That is apparent inter alia from the following provisions of the regulation: Article 5 provides that Each Member State concerned shall lay down the provisions regarding winegrowing methods which are required in order to ensure the best possible quality for quality wines psr. Article 8 provides that the specific winemaking ana preparation methods used for obtaining quality wines psr and quality sparkling wines psr shall be laid down for each of those wines by each producer Member Sute concerned. Article 11(1) provides that a yield per hectare expressed in quantities of grapes, of grape must or of wine shall be fixed for each quality wine psr by the Member State concerned.

13 As set out in Council Regulation (EEC) No 2043/89 of 19 July 1989 amending Regulation No 823/87 (OJ 1989 L 202, p. 1). Article 18 in its original version provided: 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. It should be noteci that it was the original version that applied at the material time for the resolution of the dispute before the Tribunal de Commerce de Bruxelles. However I do not consider that the amendments, which were presumably primarily made for reasons of legislative technique, are of any significance for the questions to be answered by the Court of Justice.

14 OJ 1989 L 106, p. 1.

15 OJ 1989 L 232, p. 13. See Article ll(l)(d) under which special labelling requirements apply for containers of quality wine with a nominal volume or over 60 litres and Article ll(2)(r) envisaging the option of supplementing the information on the labelling by information in respect of bottling in a specified region.

16 See Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347, paragraph 53 et seq.

17 See the judgment in Redmond cited in the preceding footnote, paragraphs 57-58. In a number of judgments concerning national rules restricting production of goods covered by organizations of the market the Court has held that the relevant organization of the market excludes any national system of regulations which could impede directly or indirecdy, actually or potentially, trade within the Community, see Case 190/73 Officier van Justitie v Van Haaster [1974] ECR 1123, paragraph 16. Similarly see Case 111/76 Officier van Justitie v Van den Haze! [1977] ECR 901.

18 There are perhaps more recent judgments showing that the Court does not consider that it is appropriate to interpret Article 34 differently according to whether or not it is to apply to a sector covered by an organization of the market. Such a view is possibly expressed in Case 118/86 Openbaar Ministeńe v Nertsvoederfabriek [1987] ECR 3883 concerning Netherlands rules on the compulsory collection of poultry offal; in paragraph 9 the Court referred to provisions in two organizations of the market and stated: Since those provisions reproduce the prohibitions laid down by Articles 30 and 34 of the Treaty, the rules described by the national court must be appraised exclusively in the light of those articles, which prohibit quantitative restrictions on imports and exports and any measures having equivalent effect, and which are regarded as forming an integral part of the common organization of the markets. It is also possible that the same view is expressed in the judgment in Case 148/85 Direction Générale des Impôts v Forest [1986] ECR 3449 concerning French rules on quotas for the milling of wheat in which the Court considered the questions of the meaning of Article 30 and Article 34 independently of the existing organization of the market. A more restrictive approach to the question of the significance of an organization of the market for the application of the EEC Treaty rules on the free movement of goods may also possibly be found in Case 237/82 Jongeneel Kaas v Netherlands State [1984] ECR 483 concerning Netherlands rules in the cheese sector. It is in my view also an open question whether within a sector covered by an organization of the market but without any particular indications in the market organization itself there are grounds for giving better protection to the free movement of goods than is given to the movement of goods in sectors not covered by market organizations. It is however not sufficiendy certain that the old case-law which in itself is clear has been abandoned and I shall therefore base my opinion on that case-law.

19 See for example Case 155/80 Oehel [1981] ECR 1993, Joined Cases 141, 142 and 143/81 Holdijk [1982] ECR 1299, Case 286/81 Oostboek's Uitgeversmaatschappij [1982] ECR 4575 and Case 237/82 /ongeneel Kaas v Netherhnds [1984] ECR 483. Its most recent judgment is that of 28 February 1991 in Case C-332/89 André Marchandise [1991] ECR I-1027.

20 Case C-21/88 [1990] ECR I— 1889, see p. 920.

21 Sec Case 172/82 Fabricants Rafţineurs d'Huile de Graissage v Inter-Huiles [1983] ECR 555, Case 173/83 Commission v France [1985] ECR 491 and Case 118/86 Openbaar Ministerie v Nertsvoederfabriek Nederland [1987] ECR 3883. The first two cases concerned the lawfulness of French rules concerning the disposal of waste oils and the last case concerned Netherlands rules on the disposal of offal.

22 The present case has led me to wonder whether the interpretation of Article 34 which has been laid down by the Court of Justice may prove to be too narrow. The basis for my view that Article 34 is applicable to the Spanish botding requirement is, as mentioned above, that wine may continue to be sold in bulk within the area of production in question. Such a basis could not be used in respect of national rules requiring wine to be botded by the wine producers themselves. Nor could that basis be used in other situations where national rules might require further processing of an otherwise saleable product to be carried out in the undertaking where it is first processed. It may well occur that a State finds it appropriate to lay down rules obliging undertakings which hitherto had produced semifinished products wnich they had sold to undertakings in other States to produce the final finished product themselves. Such national rules, which according to the Court's interpretation would hardly be covered by Article 34, could well in my view constitute unlawful obstacles to the free movement of goods.

23 See in this connection inter alia the judgment in Du Pont de Nemours Italiana referred to in footnote 19.

24 I may point out in this connection that the approach I have taken is not without precedent. In a case in which it was also claimed that designations of origin were covered by Article 36 the Court of Justice refrained from taking a position on that question holding that the national rules in äuesüon could not be held to be justified simply because ley failed to satisfy the other conditions for Article 36 to apply. See Case 16/83 Franti [1984] ECR 1299, paragraph 35.

25 See Commission Regulation (EEC) No 986/89 of 10 April 1989 on the accompanying documents for carriage of wine products and the relevant records to be kept (OJ 1989 L 106, p. 1). The regulation contains special rules on the accompanying documents for the transport of unpackaged products. Moreover, under Council Regulation (EEC) No 2392/89 of 24 July 1989 laying down general rules for the description and presentation of wines and grape musts (OJ 1989 L 232, p. 13) wine producers are under an obligation to state on the labelling where the wine is produced.

26 See inter alia Case 311/85 Vereniging van Vlaamse Reisbureaus [1987] ECR 3801.

27 See inter alia Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347.

28 Case 262/81 Walter Rau Lebensmittelwerke v De Smeät [1982] ECR 3961.

29 That is confirmed by the Court's judgment in Case 172/82 Inter-Huiles [1983] ECR 555, in which Article 34 had been relied on in a dispute between individuals in connection with the question of the lawfulness of the French rules on waste oils referred to above.