Avis juridique important

Judgment of the Court (First Chamber) of 25 July 1991. - Criminal proceedings against Roger Guitard. - Reference for a preliminary ruling: Tribunal correctionnel de Carcassonne - France. - Common organization of the market in wine - Minimum alcoholic strength of wine - Marketing of an alcohol-free wine. - Case C-75/90. European Court reports 1991 Page I-04205

Summary Parties Grounds Decision on costs Operative part

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Agriculture - Common organization of markets - Wine - Name and presentation of wines - Definition of "wine" - Requirement of a minimum degree of alcoholic strength

(Council Regulations No 337/79, Annex II, point 8, No 355/79 Art. 45(1)(a) and No 822/87, Annex I, point 10)

It is clear from the definition in point 8 of Annex II to Regulation No 337/79, re-enacted in point 10 of Annex I to Regulation No 822/87 on the common organization of the market in wine, to which Article 45(1)(a) of Regulation No 355/79 laying down general rules for the description and presentation of wines refers, that wine must be the product of total or partial alcoholic fermentation, that such fermentation must be the only production process, and that a product obtained from grapes by any process other than alcoholic fermentation is not wine. It follows that those provisions require that wine, when supplied, must have a minimum degree of alcoholic strength.

In Case C-75/90,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal Correctionnel (Criminal Court), Carcassonne (France), for a preliminary ruling in the criminal proceedings pending before that court against

Roger Guitard, in his capacity as President of the Union des Caves Coopératives de Ouest Audois et du Razès (Union of Cooperative Wineries in Western Aude and Razès),

on the interpretation of point 8 of Annex II to Council Regulation (EEC) No 337/79 of 5 February 1979 and of point 10 of Annex I to Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organization of the market in wine (Official Journal 1987 L 84, p. 1)

THE COURT (First Chamber),

composed of: G.C. Rodríguez Iglesias, President of the Chamber, Sir Gordon Slynn and R. Joliet, Judges,

Advocate General: W. Van Gerven,

Registrar: D. Louterman, Principal Administrator,

after considering the written observations submitted on behalf of:

- the French Government, by Philippe Pouzoulet, Deputy Director in the Legal Affairs Directorate of the Ministry of Foreign Affairs, acting as Agent, and by Géraud de Bergues, Principal Deputy Secretary in that ministry, acting as Deputy Agent,

- the Commission, by Patrick Hetsch, a member of the Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Roger Guitard, represented by Jean-Claude Fourgoux, of the Paris Bar, the French Government and the Commission at the hearing on 12 December 1990,

after hearing the Opinion of the Advocate General at the sitting on 15 January 1991,

gives the following

Judgment

1 By judgment of 7 February 1990, which was received at the Court on 21 March 1990, the Tribunal Correctionnel (Criminal Court), Carcassonne, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of point 8 of Annex II to Council Regulation (EEC) No 337/79 of 5 February 1979 (Official Journal 1979 L 54, p. 1) and of point 10 of Annex I to Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organization of the market in wine (Official Journal 1987 L 84, p. 1).

2 According to point 8 of Annex II to Regulation No 337/79, re-enacted in point 10 of Annex I to Regulation No 822/87 cited above, wine is "the product obtained exclusively from the total or partial alcoholic fermentation of fresh grapes, whether or not crushed, or of grape must".

3 The question referred for a preliminary ruling was raised during criminal proceedings brought against Roger Guitard, in his capacity as President of the Union des Caves Coopératives de l' Ouest Audois et du Razès (Union of Cooperative Wineries in Western Aude and Razès), for the offences of misrepresenting the nature of goods and conducting misleading advertising following marketing, from 1988, under the name "alcohol-free wine" of a beverage based on wine from which the alcohol had been removed .

4 It appears from the order for reference that the Direction Départmentale de la Concurrence, de la Consommation et des Fraudes (Departmental office for Competition, Consumer Affairs and Fraudulent Practices), which instigated the proceedings, considers that the removal of alcohol from wine does not constitute an oenological practice which is either defined or authorized by the Community legislation, especially since concentrated musts are added in order to make the product in question. In its defence, the wineries union concerned argues that it markets a wine meeting the definition laid down in the regulations from which the alcohol has subsequently been removed by a method yielding a product which satisfies laboratory controls and the consumer' s taste.

5 The Tribunal Correctionnel therefore considered that its ruling depended on the interpretation of the definition of wine set out above and stayed the proceedings until the Court has given a preliminary ruling on the following question:

"Do the EEC regulations require that wine, defined in point 8 of Annex II to Regulation No 337/79 and in point 10 of Annex I to Regulation No 822/87, must, when supplied have a minimum degree of alcoholic strength?"

6 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, 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.

7 It appears from the documents before the Court that the product in question is made by distilling wine in a vacuum at low temperature and adjusting the product' s organoleptic characteristics by adding concentrated musts.

8 The national court' s question is therefore to be understood as asking whether it is in accordance with Community law for a product made by such a process to be sold under the name "alcohol-free wine".

9 Regulations Nos 337/79 and 822/87 contain rules relating, on the one hand, to the production, monitoring of the development of wine-growing potential, and oenological practices and treatments, and, on the other hand, to the movement of wine and its release to the market. Annex II to Regulation No 337/79 and Annex I to Regulation No 822/87, which define the products covered by the common organization of the market, include the definition of wine given above.

10 Under Article 45(1)(a) of Council Regulation (EEC) No 355/79 of 5 February 1979 laying down general rules for the description and presentation of wines and grape musts (Official Journal 1979 L 54, p. 99), the appellation "wine" is restricted to products conforming to the definition set out in point 8 of Annex II to Regulation (EEC) No 337/79. That provision, which is applicable to the facts of the main proceedings, was re-enacted in Article 43 of Council Regulation (EEC) No 2392/89 of 24 July 1989 (Official Journal 1989 L 232, p. 13), which repealed Regulation No 355/79 and substituted a reference to point 10 of Annex I to Regulation No 822/87 for the reference to point 8 of Annex II to Regulation No 337/79.

11 It is clear from the definition in point 8 that total or partial alcoholic fermentation is necessary in order for a product to be wine. Furthermore, that alcoholic fermentation must be the only process by which the wine is obtained. A product obtained from grapes by any process other than alcoholic fermentation is not wine. It clearly follows from that definition that the product obtained after fermentation must contain alcohol in order to be lawfully described as "wine".

12 Although that definition of wine does not expressly prescribe any minimum degree of alcoholic strength under the Community legislation and a minimum degree of strength is required only for certain sorts of wine such as table wine or quality wines (point 13 of Annex I to Regulation No 822/87, Article 7 of Council Regulation (EEC) No 823/87 of 16 March 1987 laying down special provisions relating to quality wines produced in specified regions, Official Journal 1987 L 84, p. 59), it must be concluded that the presence of a certain degree of alcohol is the essential characteristic of any wine.

13 It has been argued that the product from which the "alcohol-free wine" was made was itself wine. That fact is, however, irrelevant to the requirement, under the Community legislation, that the final product thus described must contain alcohol in order to be lawfully described as wine. That interpretation is confirmed by the fact that the process of removing alcohol from wine is not a recognized oenological practice recognized within the meaning of Title II of Regulation No 822/87.

14 However, it should be noted that Article 45(2) of Regulation No 355/79, re-enacted in Article 43 of Council Regulation No 2392/89, and Article 20 of Commission Regulation (EEC) No 997/81 of 26 March 1981 laying down detailed rules for the description and presentation of wines and grape musts (Official Journal 1981 L 106, p. 1) allows Member States to permit the use of the word "wine" if it is accompanied by the name of a fruit and provided that the beverage in question was obtained by alcoholic fermentation of that fruit, or other composite names including the word "wine".

15 It is therefore for the national court to ascertain whether the words "alcohol-free wine" constitute a composite name which is authorized by the domestic legislation in question as a description of a product other than wine, within the meaning of the Community rules.

16 The reply to the question referred by the national court must therefore be that point 8 of Annex II to Regulation No 337/79, re-enacted in point 10 of Annex I to Regulation No 822/87, requires that wine, when supplied, must have a minimum degree of alcoholic strength.

Costs

17 The costs incurred by the French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

in answer to the question referred to it by judgment of 7 February 1990, by the Tribunal Correctionnel, Carcassonne, hereby rules:

Point 8 of Annex II to Council Regulation No 337/79 of 5 February 1979, re-enacted in point 10 of Annex I to Council Regulation No 822/87 of 16 March 1987 on the common organization of the market in wine, requires that wine, when supplied, must have a minimum degree of alcoholic strength.