Opinion of Mr Advocate General Lenz delivered on 2 February 1991

1 Original language: German.

2 OJ 1987 L 84, p. 1.

3 OJ 1987 L 84, p. 59.

4 OJ 1989 L 202, p. 1.

5 OJ 1988 L 373, p. 59.

6 In its defence (p. 3), the defendant summarized the subject-matter of the proceedings as follows: The Commission of the European Communities questions the compatibility with the common organization of the market in wine, as laid down by Council Regulations (EEC) Nos 822/87, 823/87 and 4252/88, of certain aspects of the French legislation on natural sweet wines.

7 This case can be distinguished in this respect from the facts of, for example, the judgment in Case C-110/89 Commission v Greece [1991] ECR I-2659. In that case, the Commission had, it is true, criticized the defendant's conduct, but had at no time intimated that it wished the Court to make a declaration to that effect (cf. in that connection my Opinion in that case, [1991] ECR I-2675, at I-2676).

8 See. for example, the judgment in Case C-347/8S Commission v Greece [1990] ECR I-4747, paragraph 16.

9 Opinion in Case C-61/90 Commission v Greece [1992] ECR I-2426, at 2428 et scq.

10 Nevertheless, in its judgment in that case, the Court did not follow that Opinion, but confirmed its consistent case-law cited above (judgment in Case C-61/90 Commission v Greece [1992] ECR I-2407, paragraph 29).

11 Cf. the second recital in the preamble to Regulation No 4252/88 which, referring to Regulation No 822/87, states as follows: those rules should be supplemented by adopting corresponding provisions for all liqueur wines produced in the Community (my emphasis).

12 In its letter of 29 October 1992, the French Republic stated that the exceptional rules had been in force since 14 December 1988. However, it appears from the minutes of the plenary assembly of the CIVDN of 16 December 1988, appended to that letter as Annex 3, that those rules had been applied since as long ago as 2 December 1988 (... à compter du 2 décembre).

13 Judgment in Case C-347/88 Commission v Greece (cited in footnote 7), at paragraph 40.

14 Judgment in Case C-200/88 Commission v Greece [1990] ECR I-4299, paragraph 13.

15 Cf. my Opinion in Case C-362/90 Commission v Italy [1992] ECR I-2359, at I-2361.

16 Cf., for example, the judgment in Case C-29/90 Commission v Greece [1992] ECR I-1971, paragraph 12.

17 See my Opinions in Case 362/90 Commission v Italy, cited in footnote 14, and in Case 240/86 Commission v Greece [1988] ECR 1843, at 1844.

18 See the facts in Case C-110/89 Commission v Greece, cited in footnote 6.

19 See the judgment in Case C-362/90 Commission v Italy [1992] ECR I-2353, paragraph 12: It should be stated, moreover, that the Commission did not act in good time in order to prevent, by means of procedures available to it, the infringement complained of from producing effects and did not even invoke the existence of circumstances preventing it from concluding the pre-litigation procedure laid down in Article 169 of the Treaty before the infringement ceased to exist.

20 Sec the judgment in Case C-362/90 Commission v Italy (cited in footnote 18), at paragraph 8.

21 Judgment in Case 50/76 Amsterdam Bulb v Produktschap voor Siergewassen [1977] ECR 137, paragraph 8.

22 Cf. the judgments in Case 111/76 Officier van Justitie v Van den Hazel [1977] ECR 901, paragraph 13, in Case 177/78 Pigs and Bacon Commission v McCarren [1979] ECR 2161, paragraph 14, and in Case 237/82 Jongeneel Kaas v Netherlands [1984] ECR 483, paragraph 12.

23 Judgment in Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347, paragraphs 56, 57 and 58, my emphasis.

24 Judgment in Case 216/84 Commission v France [1988] ECR 793, paragraphs 18 and 19.

25 Judgment in Case 90/86 Crtmmal proceedings against Zoni [1988] ECR 4285, paragraph 26. See likewise the judgment delivered on the same day in Case 407/85 3 Glocken and Another v USL Centro and Another [1988] ECR 4233, paragraph 26, and the judgment in Case C-86/89 Italy v Commission [1990] ECR I-3891, paragraph 19.

26 It goes without saying that the Member States may act if and in so far as powers have been conferred on them to that end in provisions laying down a common organization of the market in the sector in question (sec the judgment in Case 89/84 Ramel [1985] ECR 1385, paragraph 25).

27 Judgment cited in footnote 22, at paragraph 58.

28 Judgment cited in footnote 6, at paragraph 21; see also the judgment in Case C-35/88 Commission v Greece [1990] ECR I-3125, paragraph 29, and the judgment in Case C-61/90 Commission v Greece, cited in footnote 9 above, at paragraph 22.

29 Judgment in Case 48/85 Commission v Germany [1986] ECR 2549, paragraph 12.

30 Judgment in Case 16/83 Frantl [1984] ECR 1299, paragraph 14.

31 Judgment cited in footnote 25, at paragraph 25. Cf. also in this connection the judgment in Case 48/85, cited in footnote 28, at paragraph 11.

32 Cited in footnote 28.

33 Council Regulation (EEC) No 337/79 of 5 February 1979 on the common organization of the market in wine, OJ 1979 L 54, p. 1.

34 Council Regulation (EEC) No 338/79 of 5 February 1979 laying down special provisions relating to quality wines produced in specified regions, OJ 1979 L 54, p. 48.

35 Cited in footnote 28, at paragraph 11.

36 Judgment in Jongeneel Kaas v Netherlands, cited in foot-note 21, at paragraph 13; judgment in Case 148/85 Direction Générale aes Impôts v Forest [1986] ECR 3449, paragraph 14.

37 Judgment in Amsterdam Bulb, cited in footnote 20, at paragraph 9.

38 Judgment cited in footnote 21, at paragraphs 14, 15 and 16.

39 Sec in this connection the third recital in the preamble to Regulation No 823/87 and the Opinion of Mr Advocate General Gulmann in Case C-47/90 Delhaize et Le Lion [1992] ECR I-3687, at 3694.

40 COM (87) 642 final, OJ 1988 C 14, p. 8. at p. 9.

41 Third recital in the preamble to Regulation No 823/87.

42 Fourth recital in the preamble to Regulation No 823/87.

43 In this Opinion it is unnecessary to go into the other pro-visions of that regulation, which seek only indirectly to protect the quality of those wines, in particular the provisions on authorized designations for the products in question.

44 See the fourth recital in the preamble to Regulation No 823/87.

45 Sec the third recital in the preamble to Regulation No 823/87 (in order to maintain a minimum quality standard for quality wines psr ...) and the fifth recital in the preamble to Regulation No 4252/88 (provision should accordingly be made for their minimum characteristics).

46 Apart from manifold individual provisions, reference should be made in this context simply to Article 18 of Regulation No 823/87 and to Article 17 of Regulation No 4252/88, which autho..ze the Member States to lay down additional or more stringent production conditions.

47 My emphasis.

48 Those provisions are the subject of a request for a preliminary ruling in Case 289/91 Kuhn, in which Mr Advocate General Gulmann is shortly to deliver an Opinion.

49 According to the fifth indent of the second subparagraph of Article 1 (1) of Regulation No 823/87 (as amended By Regulation No 2043/89), the second indent of the first paragraph of Article 18 does not apply to quality liqueur wines psr (and other categories of quality wines) for which specific Community provisions exist. However, it should be observed that the second indent of the first paragraph of Article 18 of Regulation No 823/87 and Article 17 of Regulation No 4252/88 are very similar.

50 In its judgment in Case C-47/90 Delhaize et Le Lion [1992] ECR I-3669, paragraph 26, the Court had to consider whether the rules at issue (which stipulated that wine had to be bottled in the region of production) could be based on Article 18 of Regulation No 823/87. It held as follows: Toutefois, l'article 18 du règlement no 823/87 ne saurait être interprété come autorisant les États membres à imposer des conditions qui seraient contraires aux règles du traité relatives à la circulation de marchandises (However, Article 18 of Regulation No 823/87 cannot be interpreted as authorizing Member States to impose conditions contrary to the Treaty rules on the movement of goods).

51 In the French version — as has just been indicated — Article 1 of Regulation No 4252/88 refers to commercialisation, whereas the fourteenth recital in the preamble states that the Member States may adopt rules governing circulation and Article 17 accordingly also refers to rules on circulation. This is also true of the Dutch version, where the words used arc afzet (Article 1) and verkeer (fourteenth recital and Article 17), and of the Italian version, which uses the term commercializzazione in Article 1, but employs circolazione in the fourteenth recital and in Article 17. The English version differs, in that the word marketing is used in Article 1, the word circulation in the fourteenth recital and the expression release to the market in Article 17. As for the German version, it is particularly unclear, since the word Vermarktung is used both in Article 1 and in the fourteenth recital, whereas Article 17 refers to Inverkehrbringen. Examination of the corresponding provisions of Regulation No 823/87 yields a similar result.

52 Fourteenth recital in the preamble to Regulation No 4252/88. The German version erroneously refers to quality wines psr, whereas, regard being had to the context and to the wording of the other language versions, it should of course refer to quality liqueur wines psr. The same wording appears with regard to the same point in the (French and German versions of) the twenty-second recital in the preamble to Regulation No 823/87 (afin de conserver le caractère qualitatif particulier .../zur Erhaltung des besonderen qualitativen Charakters..., rendered in the English version as in order to preserve the particular quality characteristics ...).

53 See the Court's judgment in Pigs Marketing Board v Redmond, cited in footnote 22, at paragraphs 56 and 57, and the Opinion of Mr Advocate General Gulmann in Case C-47/90, cited in footnote 36 above, at 3696 et seq. Cf. also the third recital in the preamble to Regulation No 4252/88, according to which that regulation is intended to enable free circulation of such products to be facilitated.

54 Journal Officiel No 201 of 21 August 1967, p. 13.

55 This proposal resulted in Regulation No 2043/83 amending Regulation No 823/87 (see footnote 3).

56 OJ 1988 C 208, p. 18 (my emphasis).

57 However, according to the particulars provided by the French Government's agent, those two appellations are the most important ones from the quantitative point of view.

58 Cf. the judgment in Pigs Marketing Board v Redmond, cited in footnote 22, at paragraph 55.

59 Judgment in Jongeneel Kaas v Netherlands, cited in foot-note 21, at paragraph 22; judgment in Case C-47/9D Del-baize et le Lion [1992] ECR I-3669, at paragraph 12.

60 The same is true, as far as exports to non-member countries are concerned, of a possible infringement of Article 60 (2) (b) of Regulation No 822/87.

61 In any event, those rules cannot be justified by the need to ensure fair trade. In so far as the French Government states that it was a question of checking transactions whereby quantities exported were reimported into France by way of customs fraud, it is sufficient to observe that it is easy to deal with such abuses by adjusting the customs rules in an appropriate manner.