Opinion of Advocate General Gulmann delivered on 16 February 1993

1 Original language: Danish.

2 It cannot be denied that restricting the quantity of wine produced per hectare is of crucial importance for the quality of the wine. That point was stressed by the British wine critic Hugh Johnson in an interview published in Time Magazine, No 3, 1993, p. 42. Johnson was asked to clarify the comment: The integrity of Germany's viticulture is threatened. He replied: What went wrong with German wines, basically, was overproduction. Nineteenth century German wines were dry, but they were wines produced at low yield levels. They had lots of body and flavour, and they had the great virtue of ageing practically forever. But when you suddenly start producing 200 hectolitres per hectare, then you wonder why the wine tastes of water — well, it is water — and why it doesn't last — because it doesn't have any structure ...

3 OJ 1987 L 84, p. 59.

4 It appears from the documents in the main proceedings that the relevant yields per hectare for the purpose of those proceedings were as follows: quality wine mil Pradikat (first quality wine) 80 hl quality wine 105 hl table wine 140 hl.

5 Mr Kuhn had recognized wine growing land of 82445 m2 and had already obtained a control number for the following quantities: quality wine mit Pradikat 23850 l = 29813 m2 quality wine 27011 l = 25725 m2 tabic wine 37538 l = 26813 m2 82351 m2 There were left, therefore, 94 m2 (824452 82351 m2). These proceedings concern an application for a control num ber for 1500 additional litres. Mr Kuhn received a control number for only 75 litres of quality wine mit Pradikatcor responding to the permitted yield per hectare for the remain ing 94 m2.

6 Case 106/77 [1978] ECR 629.

7 Simmenthal, paragraph 18.

8 Simmenthal, paragraph 21.

9 Simmenthal, paragraph 17.

10 Case 26/62 [1963] ECR 1.

11 Case 43/71 Pohts,[1971] ECR 1039. paragraph 9.

12 Sec the judgment of the Court in Case 31/78 Bussone [1978] ECR 2429 where it was established, in paragraph 30, that the direct applicability of a regulation requires that its entry into force and its application in favour of or against those subject to it must be independent of any measure of reception into national law. See also the opinion of Advocate General Warner in Case 74/76 Iannelli [1977] ECR 557 stating: The fact that a provision in a regulation is directly applicable (by virtue of Article 189) does not necessarily mean that it has direct effect: it can do so only in so far as it satisfies the familiar tests of being clear and unconditional and of requiring no further legislative action for its implementation.

13 Case 148/78 [1979] LCR 1629.

14 In Cases C-46/90 Lagauche, C-69/91 Decoster, C-92/91 Taillandier and C-93/91 Evrard, the Court is called upon to give judgment on a question which is similar, to some extent, to the one at issue in this case. As wc know, the background to the cases is that prosecutions were brought in Belgium and France in a series of cases against persons alleged to have been in possession of various items of telecommunications equipment which had not been authorized by the authorities as required under domestic law. The Court has previously determined that domestic rules on the authorization of such equipment arc not in themselves incompatible with Community law but that the rules applying in the four cases conflict with Community law to the extent to which they provide that authorization is to be granted by a body which itself competes as an economic operator on the market. In those cases, one question is whether the incompatibility of the Belgian and French rules with Community law on these grounds and as thus defined may be relied upon by the defendants in order to establish the unlawfulness of the domestic rules on which prosecution is based. Certain statements by Advocate General Lenz in his Opinions in Cases C-46/90 Lagauche and C-93/91 Evrard, delivered on 2 December 1992, may, I think, be interpreted, to some extent, as saying that the defendants, who have not requested authorization, do not have an interest protected by Community law enabling them to rely upon the Community rules at issue in order to establish that the Belgian requirement of authorization as such did not apply to them as such (see paragraphs 44 and 45 of the Opinion in Lagauche and paragraphs 17 and 18 in the Opinion in Evrard).