Report of the Judge-Rapporteur in Case C-283/91
I — Facts and procedure
1. Relevant legislation
The first subparagraph of Article 1(1) of Regulation (EEC) No 1153/75 of the Commission of 30 April 1975 prescribing the form of the accompanying documents for wine products and specifying the obligations of wine producers and traders other than retailers (OJ 1977 L 113, p. 1, hereinafter the Regulation), which was in force at the material time, reads as follows:
Article 9 of the Regulation provides as follows:
Entry of these particulars shall not be compulsory.
2. Background to the main proceedings
On 24 April 1986, the Prefetto di Ravenna imposed an administrative sanction on Attilio Contarini for failing to fill out column 14 of two accompanying documents dated 13 October 1983 for 100 and 20 hectolitres respectively of new wine still in fermentation contrary to Article 9 of the Regulation.
Mr Contarini successfully appealed against that penalty to the Pretore di Lugo (Magistrate, Lugo), who held that it was not compulsory to fill out column 14 of the accompanying documents in question.
Consequently, the Prefetto di Ravenna appealed on a point of law to the Corte Suprema di Cassazione, arguing that the contested judgment erroneously interpreted Article 9 of the Regulation, in so far as the Pretore had considered that Article 9(3) meant that it was not compulsory to fill out column 14 of the accompanying documents for all the products mentioned in Article 9 and not solely for those mentioned in paragraph 3 of that article.
The Corte Suprema di Cassazione considered that the dispute raised a question relating to the interpretation of the Community regulation at issue and therefore decided, by order of 21 February 1991, to suspend the proceedings and refer the following question to the Court of Justice for a preliminary ruling pursuant to Article 177 of the EEC Treaty:
3. Procedure before the Court
The order for reference was received at the Court Registry on 7 November 1991.
Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were lodged on 12 March 1992 by the Commission of the European Communities, represented by Eugenio de March, Legal Adviser, acting as Agent, on 23 March 1992 by the Italian Government, represented by Ivo M. Braguglia, Avvocato di Stato, and on 25 March 1992 by the respondent in the main proceedings.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided not to open the oral procedure and to refer the case to the first chamber without holding a preliminary inquiry.
II — Written observations submitted to the Court
The respondent in the main proceedings did not submit detailed observations, but merely stated that the last paragraph of Article 9 of the Regulation clearly provided that entry of these particulars shall not be compulsory and referred to everything stipulated by that article.
The Italian Government observes that in accompanying document V. A.l, the one in question in the main proceedings, column 14 is for special entries. Such special entries are covered by Article 9 of the Regulation. It takes the view that, if a literal approach is taken, the sentence entry of these particulars shall not be compulsory relates only to products other than those specified in the first subparagraph of Article 9(1). Consequently, it is compulsory to make the entries indicated for grape must, grape must in fermentation and new wine still in fermentation.
According to the Italian Government, the result of that interpretation is confirmed by the rationale of Article 9(3). That provision makes it not compulsory for those entries to be made only in respect of products, such as wines and marcs, which are already stabilized and, by reason of their nature, are not subjected to other processing. In contrast, Article 9 makes the aforementioned entries compulsory for musts and new wine still in fermentation, that is to say, for products which are not yet stabilized and for which it is necessary to know whether they have been subjected to particular processing and whether they may be so subjected.
The Italian Government therefore suggests that the Court should answer the national court's question in the following terms:
The Commission calls to mind the structure of Article 9 of the Regulation, which sets out figures corresponding to quite specific particulars which are to be entered in column 14 of the accompanying document. Paragraph 1 relates to figures 0 to 4 for grape must, partially fermented grape must and new wine still in fermentation, paragraph 2 to the figure 5 for table wine and paragraph 3 to the figures 6 to 9 for products other than those specified in the first subparagraph of paragraph 1.
In the Commission's view, it is clear beyond a shadow of a doubt from the structure of the provision that the second subparagraph of paragraph 3, which provides that entry of these particulars shall not be compulsory, refers solely to the entries covered by the first subparagraph of paragraph 3, namely the particulars corresponding to figures 6 to 9. If the legislator had sought to make the entries corresponding to figures 0 to 5 optional, and not just those corresponding to figures 6 to 9, it would have specified this in a new, separate paragraph and not within paragraph 3.
According to the Commission, the difference in treatment in question can be readily explained in the light of the aims of the provision. The entries set out in Article 9 are designed essentially to ensure that products do not undergo the same processing twice over. That risk is especially great in the case of the non-finished products listed in paragraph 1, which are more likely to undergo processing at a later marketing stage than finished products. That is the reason for which, at the material time, entries relating to processing were compulsory for non-finished products but optional for finished products. The Commission further observes that the legislation at present in force [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), as most recently amended by Commission Regulation (EEC) No 592/91 of 12 March 1991 (OJ 1991 L 66, p. 13)] now makes it compulsory to indicate for all products which processing has taken place and which processing has not.
The Commission therefore proposes that Court's answer to the question referred by the Corte Suprema di Cassazione should be that the second subparagraph of Article 9(3) of Regulation (EEC) No 1153/75 relates solely to the entries set out in the first subparagraph of Article 9(3) for products other than those specified in Article 9(1).
1 Language of the case: Italian.