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Judgment of the Court (Second Chamber) of 17 May 1990.

Weingut Dietz-Matti v Federal Republic of Germany.

Reference for a preliminary ruling: Verwaltungsgericht Frankfurt am Main - Germany.

Agriculture - Aid for the distillation of wine - Types of wine - Specification - Definition.

Case C-158/89.

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Judgment of 17 May 1990, Weingut Dietz-Matti / Bundesamt für Ernährung und Forstwirtschaft (C-158/89, ECR 1990 p. I-2013) ECLI:EU:C:1990:215

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Weingut Dietz-Matti v Federal Republic of Germany.

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Keywords

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1 . Agriculture - Common organization of the markets - Implementing measures - Failure of the Community legislature to adopt measures - Interim powers of the Member States - Basis - Limits

( EEC Treaty, Art . 5 )

2 . Agriculture - Common organization of the markets - Wine - Aid for the preventive distillation of table wines - Conditions for granting - Exact specification of the type of wine offered for distillation - Absence of Community classification of vine varieties corresponding to the types of wine eligible - Powers of the Member States to adopt a national classification of vine varieties - Limits

( Council Regulations Nos 337/79, Art . 11, and 340/79, Arts 2 and 3; Commission Regulation No 2373/83, Art . 2(2 ) )

3 . Agriculture - Common organization of the markets - Wine - Classification of types of table wine - Blended wines - National rules requiring designation of a single vine variety - Irrelevant as regards the classification for Community purposes of wines on the basis of the vine varieties used

( Council Regulation No 340/79 )

4 . Agriculture - Common organization of the markets - Wine - Aid for the preventive distillation of table wines - Blended wines - Grant of aid on the basis of the constituents - Conditions

( Council Regulation No 340/79, Art . 2; Commission Regulation No 2373/83, Arts 2(2 ) and 5 )

Summary

1 . In the absence of measures adopted by the Community legislature, the retention or introduction by a Member State of national measures designed to achieve in its own territory the aims of a common organization of the market cannot, in principle, be objected to . However, such measures must not be regarded as involving the exercise of the Member States' own powers, but as the fulfilment of the duty to cooperate in achieving the aims of the common organization of the market which Article 5 of the Treaty imposes on them where the Community legislature has failed to act . Consequently, the measures adopted by the Member States may only be temporary and provisional in nature and they must cease to be applied as soon as Community measures are introduced .

2 . Regulation No 2373/83 fixes the amount of aid for the preventive distillation of certain table wines provided for in Article 11 of Regulation No 337/79 on the basis of the type of wine offered for distillation . Consequently, an exact indication in the distillation declaration referred to in Article 2(2 ) of Regulation No 2373/83 of the type of wine is necessary for the proper functioning of the rules on distillation and is a pre-condition for entitlement to aid even if the Community rules do not expressly require it .

For the same reasons it is essential in order to achieve the aims of the distillation rules to determine the relationship between vine varieties and the various table wine types listed in Article 2 of Regulation No 340/79 . As that was not done by the Commission, as envisaged by Article 3 of that regulation, a Member State was entitled to adopt for its own territory national rules classifying vine varieties, taking into account the characteristics of the vine varieties and the aims of the common organization of the relevant market .

3 . National rules governing designations of wine, which are designed essentially to protect the consumer, are not relevant to the classification of vine varieties under the types of table wine provided for in Regulation No 340/79 . Consequently, a blended wine which under such rules may be marketed only with the mention of a single vine variety may not, for that reason, in the light of the abovementioned regulation, be classified under the type of wine which corresponds to that vine variety .

4 . In the case of a mixture of table wines of Types A II and A III, as described in Regulation No 340/79, aid varying in accordance with the proportions of the constituent types of wine may be granted only if the contract or declaration of distillation specifies, with regard to the constituent wines, the quantity, the actual alcoholic strength by volume, and the type of wine . If that is not done, so that aid must be refused, it will also not be possible to grant aid in respect of wine of Type A I under that regulation .

Parties

In Case C-158/89

REFERENCE to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht ( Administrative Court ) Frankfurt am Main for a preliminary ruling in the proceedings pending before that court between

Weingut Dietz-Matti, of Deidesheim ( Federal Republic of Germany )

and

Federal Republic of Germany, represented by the Bundesamt fuer Ernaehrung und Forstwirtschaft ( Federal Office for Food and Forestry ),

on the interpretation of Council Regulation ( EEC ) No 340/79 of 5 February 1979 determining the types of table wines ( Official Journal 1979, L 54, p . 60 ) and 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 ( EEC ) No 337/79 ( Official Journal 1983, L 232, p . 5 ),

THE COURT ( Second Chamber )

composed of : F . A . Schockweiler, President of Chamber, G . F . Mancini and T . F . O' Higgins, Judges,

Advocate General : W . Van Gerven

Registrar : H . A . Ruehl, Principal Adminstrator

after considering the written observations submitted on behalf of

the Bundesamt fuer Ernaehrung und Forstwirtschaft, by Ursula Holzhauser, Rechtsreferentin, acting as Agent,

the Commission, by Klaus-Dieter Borchardt, a member of its Legal Department, acting as Agent, assisted by Michel Vilaras, Judge of the Greek State Council seconded to the Commission' s Legal Department under the exchange programme, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the Bundesamt fuer Ernaehrung und Forstwirtschaft, represented by Hannelore Lausch, acting as Agent, and of the Commission, represented by Dierk Booss and Reinhard Priebe, acting as Agents, at the hearing on 8 March 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 2 May 1990,

gives the following

Judgment

Grounds

1 By an order of 30 March 1989 which was received at the Court on 3 May 1989 the Verwaltungsgericht ( Administrative Court ) Frankfurt am Main referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions concerning the interpretation of Council Regulation No 340/79 of 5 February 1979 determining the types of table wines ( Official Journal L 54, p . 60 ) and Commission Regulation 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 ).

2 The questions were raised in the course of proceedings between Weingut Dietz-Matti, a wine producer, and the Bundesamt fuer Ernaehrung und Forstwirtschaft, the national intervention agency, concerning the grant of aid for the distillation of table wine .

3 Article 11 of Council Regulation No 337/79 of 5 February 1979 on the common organization of the market in wine ( Official Journal L 54, p . 1 ) provides that aid may be paid for preventive distillation of certain table wines . The general rules governing the distillation of wine and the by-products of wine-making are set out in Council Regulation ( EEC ) No 2179/83 of 25 July 1983 ( Official Journal L 212, p . 1 ). Article 5 of Regulation No 2373/83 fixes the amount of aid on the basis of the actual alcoholic strength by volume of the product of the distillation and the type of wine distilled .

4 As regards types of table wine, Regulation No 340/79 distinguishes in the case of white wine between white table wine from vine varieties of the Riesling type, known as Type A III, white table wine from vine varieties of the Sylvaner or Mueller-Thurgau type, known as Type A II and white table wine from other varieties with an actual alcoholic strength by volume of not less than 10% and not more than 12% vol, known as Type A I .

5 Articles 4(2 ) and 5(2 ) of Regulation No 2179/83 require the producer to mention in the contract or the declaration of distillation submitted to the intervention agency for approval at least the quantity, the colour and the actual alcoholic strength by volume of the wine to be distilled . Article 2(2 ) of Regulation No 2373/83 also requires there to be specified in the contracts and declarations at least, inter alia, the quantity, colour and actual alcoholic strength by volume of the wine to be distilled .

6 In the absence of lists of the vine varieties corresponding to wine Types A II and A III drawn up by the Community authorities as provided for in Article 3 of Regulation No 340/79, the Federal Republic of Germany proceeded to classify German table wines in the Bekanntmachung ueber die Zuordnung der Rebsorten zu den Tafelweinarten ( Notice on the relationship of vine varieties to types of table wine ) of 15 March 1979 ( Bundesanzeiger No 56 ) of 21 March 1979 (" the Notice "), classifying the vine varieties Auxerrois, Weisser Burgunder, Weisser Riesling and Rulaender as Type A III and all the other German white table wines as Type A II .

7 The German intervention agency requires details concerning the type of wine offered for distillation to be entered on the distillation declaration .

8 When an inspection of the wine offered for distillation by Weingut Dietz-Matti which had been declared as being of Type A III, Riesling, revealed the presence of a certain percentage of wine belonging, under the German rules, to Type A II, the intervention agency revoked the decision granting aid and demanded repayment .

9 It was in the course of proceedings on an action brought by Weingut Dietz-Matti challenging that decision that the Verwaltungsgericht Frankfurt am Main referred the following questions to the Court of Justice :

"( 1 ) Under Article 2(2 ) of Commission Regulation ( EEC ) No 2373/83 is specification of the correct type of wine in the distillation declaration a pre-condition for entitlement to aid?

( 2 ) Can vine varieties other than those mentioned in Article 2 of Council Regulation ( EEC ) No 340/79 be classified under Type A II or Type A III wine? According to what criteria must that classification be made?

( 3 ) ( a ) Can a blend which under German designation rules may be marketed with the mention of only one vine variety be classified under the type of wine which corresponds to that vine variety?

If not :

( b ) In the case of another mixture of wine of Types A II and A III before distillation, can aid be granted in accordance with the proportions of the types of wine?

If not :

( c ) As a fall-back provision, can aid be granted in such circumstances as for wine of Type A I?"

10 Reference is made to the Report for the Hearing for a fuller account of the facts in the main proceedings, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

11 In order to reply to the first two questions referred by the national court it is necessary to consider whether the Federal Republic of Germany was entitled, in the absence of Community rules, to adopt national provisions governing the relationship between vine varieties and types of table wine and to require details of the type of wine offered for distillation to be given in the distillation declaration .

12 In that regard it should be remembered that in the absence of measures adopted by the Community legislature, the retention or introduction by a Member State of national measures designed to achieve in its own territory the aims of the common organization of the market cannot, in principle, be objected to ( see the judgments of 5 May 1981 in Case 804/79 Commission v United Kingdom (( 1981 )) ECR 1045 and of 28 March 1984 in Joined Cases 47 and 48/83 Van Miert (( 1984 )) ECR 1721 ).

13 However, the Court has stated that such measures must not be regarded as involving the exercise of the Member States' own powers, but as the fulfilment of the duty to cooperate in achieving the aims of the common organization of the market which Article 5 of the Treaty imposes on them where the Community legislature has failed to act . Consequently, the measures adopted by the Member States may only be temporary and provisional in nature and they must cease to be applied as soon as Community measures are introduced ( see the judgment of 28 March 1984 in Van Miert, cited above, paragraph 23 ).

14 As regards the obligation to indicate the exact type of wine in the contract or the declaration of distillation, which is the subject of the first question, it should be noted that Regulation No 2373/83 fixes the amount of aid on the basis of the type of wine offered for distillation . Consequently, an indication in the distillation declaration of the type of wine or the vine variety from which the wine to be distilled has been obtained is not merely a formality to be complied with but is necessary for the proper functioning of the common organization of the market and to achieve the aims of the rules on distillation .

15 That conclusion is not altered by the fact that the Community rules do not expressly require the type of wine to be stated, since those rules merely lay down certain minimum requirements regarding the information to be supplied without excluding the Member States' right to require other information necessary for the proper functioning of the distillation rules .

16 The reply to the first question must accordingly be that specification of the correct type of wine in the distillation declaration referred to in Article 2(2 ) of Regulation No 2373/83, cited above, is a pre-condition for entitlement to aid .

17 As regards the classification of vine varieties which is the subject of the second question, it should be recalled that as far as Type A II and Type A III wines are concerned, Article 2(b ) and ( c ) of Regulation No 340/79, cited above, merely refers to certain vine varieties by way of example whilst Article 3 provides expressly that the lists of vine varieties corresponding to Type A II and Type A III wines are to be adopted by a Commission regulation under the management committee procedure .

18 Since the grant of aid depends on the type of wine to be distilled, it is essential in order to achieve the aims of the distillation rules to determine the relationship between vine varieties and table wine types .

19 As a result, the Federal Republic of Germany was entitled, in the absence of the adoption by the Commission of a regulation determining which vine varieties corresponded to the various types of wine, to adopt for its own territory national rules classifying vine varieties .

20 As far as the criteria governing that classification are concerned, it may be said that where the Community institutions have failed to act, it is for the national authorities to determine those criteria in the light of the characteristics of the vine varieties and the aims of the common organization of the market . In that respect the classification made in the Notice on the basis of the qualitative characteristics of the vine varieties which determine price levels is not open to objection .

21 Accordingly, the reply to the second question must be that in the absence of a Commission regulation laying down the lists of vine varieties corresponding to wines of Types A II and A III, the German intervention agency was entitled to classify under Types A II or A III, on the basis of criteria such as those contained in the Notice, vine varieties others than those listed in Article 2 of Regulation No 340/79, cited above .

22 In the third question, concerning the grant of distillation aid for a blended wine, the national court asks whether a blended wine may be classified on the basis of the German rules governing designations .

23 As the Commission and the German intervention agency have rightly observed in that regard, national rules governing designations, which are designed essentially to protect the consumer, are not relevant to the classification of vine varieties under the types of table wine listed in Regulation No 340/79, cited above .

24 As regards the possibility of providing aid for blended wine on the basis of the proportions of wine types it contains, which is the subject of the second part of the third question, it must be emphasized that calculating aid on a proportional basis is only feasible if the contract or the declaration of distillation indicates for each of the components the quantity, the actual alcoholic strength by volume and the type of the wine .

25 To allow aid to be calculated in accordance with the proportions of the various wines in the blend, if the various types of wine used in it and their respective proportions were not mentioned in the contract or in the declaration of distillation, would encourage fraud by producers who would be led to make false declarations in order to obtain more aid .

26 To grant aid for blended wine on the basis of Type A I wine, as suggested in the third part of the third question, cannot be permitted . As indicated above, if the contract or the declaration do not contain the requisite information, aid cannot be granted .

27 Accordingly, the reply to the third question must be that a blend of wines which under German designation rules may be marketed with the mention of only one vine variety may not for that reason, in the light of the abovementioned Regulation No 340/79, be classified under the type of wine which corresponds to that vine variety . In the case of a mixture of wines of Types A II and A III, aid varying in accordance with the proportions of the constituent types of wine may be granted only if the contract or declaration of distillation specified for the constituent wines the quantity, the actual alcoholic strength by volume, and the type of wine . If that is not the case, it will also not be possible to grant aid in respect of Type A I .

Decision on costs

Costs

28 The costs incurred by the Commission of the European Communities, which submitted observations to the Court, are not recoverable . As these proceedings are, in so far as the parties to the main action are concerned, a step in the proceedings pending before the national court, the decision as to costs is a matter for that court .

Operative part

On those grounds,

THE COURT ( Second Chamber ),

in answer to the questions submitted to it by the Verwaltungsgericht Frankfurt am Main, by an order of 30 March 1989, hereby rules :

( 1 ) Specification of the correct type of wine in the distillation declaration referred to in 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 ( EEC ) No 337/79 is a pre-condition for entitlement to aid .

( 2 ) In the absence of a Commission regulation laying down the lists of vine varieties corresponding to wines of Types A II and A III, the German intervention agency was entitled to classify under Types A II or A III, on the basis of criteria such as those contained in the Bekanntmachung ueber die Zuordnung der Rebsorten zu den Tafelweinarten ( Notice concerning the relationship of vine varieties to types of table wine ) of 15 March 1979, vine varieties other than those listed in Article 2 of Council Regulation ( EEC ) No 340/79 of 5 February 1979 determining the types of table wines .

( 3 ) A blend of wines which under German designation rules may be marketed with the mention of only one vine variety may not for that reason, in the light of the abovementioned Regulation ( EEC ) No 340/79, be classified under the type of wine which corresponds to that vine variety . In the case of a mixture of wines of Types A II and A III, aid varying in accordance with the proportions of the constituent types of wine may be granted only if the contract or declaration of distillation specifies, with regard to the constituent wines, the quantity, actual alcoholic strength by volume, and type of wine . If that is not the case, it will also not be possible to grant aid in respect of Type A I .

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