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URL: http://www.bailii.org/eu/cases/EUECJ/1979/R779.html
Cite as: [1979] EUECJ R-7/79

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61979J0007
Judgment of the Court of 4 July 1979.
Gallet v Ministre de l'agriculture.
Reference for a preliminary ruling: Conseil d'Etat - France.
Method of testing alcoholic strength of a 'Quality wine psr'.
Case 7/79.
European Court reports 1979 Page 02373
Greek special edition 1979:II Page 00163

AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - WINE - COMMUNITY METHODS OF ANALYSIS - NATIONAL MEASURE OF CONTROL - PRESUMPTION IN LAW OF OVER-ALCOHOLIZATION - ACCEPTABILITY - CONDITIONS
( COMMISSION REGULATIONS NOS 1539/71 AND 2984/78 )

IN THE ABSENCE OF COMMUNITY PROVISIONS IN THE MATTER , A MEMBER STATE MAY APPLY AS A NATIONAL MEASURE OF CONTROL , FOR THE PURPOSE OF CHECKING WHETHER THE ISSUE OF A CERTIFICATE OF CONSENT IN RESPECT OF WINES BEARING A RESGISTERED DESIGNATION OF ORIGIN IS JUSTIFIED , A PRESUMPTION IN LAW OF OVER-ALCOHOLIZATION WHICH IS BASED ON THE PROPORTION OF ALCOHOL TO DRY MATTER DETERMINED BY THE 100* METHOD , PROVIDED THAT THAT PRESUMPTION IS CAPABLE OF BEING REBUTTED .

IN CASE 7/79
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FRENCH CONSEIL D ' ETAT FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
GALLET
AND
MINISTER FOR AGRICULTURE

ON THE INTERPRETATION OF THE PROVISIONS OF POINT 3 OF THE ANNEX TO REGULATION ( EEC ) NO 1539/71 OF THE COMMISSION OF 19 JULY 1971 DETERMINING COMMUNITY METHODS FOR THE ANALYSIS OF WINES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 552 ),

1 BY JUDGMENT OF 22 DECEMBER 1978 , WHICH REACHED THE COURT ON 17 JANUARY 1979 , THE FRENCH CONSEIL D ' ETAT , IN PURSUANCE OF ARTICLE 177 OF THE EEC TREATY , INQUIRED WHETHER THE PROVISIONS ANNEXED TO REGULATION NO 1539/71 OF THE COMMISSION OF 19 JULY 1971 DETERMINING COMMUNITY METHODS FOR THE ANALYSIS OF WINES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 552 ) MUST BE UNDERSTOOD AS AUTHORIZING THE MEASUREMENT OF THE DRY EXTRACT ' ' BY DENSIMETRY AND AT 100* ' ' .

2 THIS QUESTION AROSE IN AN ACTION BROUGHT IN 1975 BY A FRENCH VINE GROWER FOR THE ANNULMENT OF AN ORDER OF THE MINISTER FOR AGRICULTURE DATED 20 NOVEMBER 1974 RELATING TO ANALYTICAL AND ORGANOLEPTIC TESTS FOR WINES BEARING A REGISTERED DESIGNATION OF ORIGIN . ARTICLE 3 OF THAT ORDER PROVIDES THAT THE TESTS ARE REQUIRED TO RELATE AT LEAST TO CERTAIN FACTORS AMONGST WHICH IS TO BE FOUND ' ' DRY EXTRACT DETERMINED BY DENSIMETRY AND AT 100* ' ' .

3 REGULATION NO 1539/71 , FOR ITS PART , PROVIDES IN POINT 3 OF THE ANNEX THAT ' ' THE TOTAL DRY EXTRACT SHALL BE MEASURES BY A DENSIMETER AND CALCULATED INDIRECTLY FROM THE SPECIFIC GRAVITY OF THE RESIDUE WITHOUT ALCOHOL ' ' . ACCORDING TO ARTICLE 1 OF THE REGULATION , THE METHODS OF ANALYSIS SET OUT IN THE ANNEX ARE PRESCRIBED FOR THE APPLICATION OF TWO COUNCIL REGULATIONS OF 28 APRIL 1970 , NO 816/70 LAYING DOWN ADDITIONAL PROVISIONS FOR THE COMMON ORGANIZATION OF THE MARKET IN WINE AND NO 817/70 LAYING DOWN SPECIAL PROVISIONS FOR QUALITY WINES PRODUCED IN SPECIFIED REGIONS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), PP . 234 AND 252 ).

4 THE THIRD RECITAL IN THE PREAMBLE TO REGULATION NO 1539/71 PROVIDES THAT ' ' THESE METHODS SHOULD BE COMPULSORY FOR ALL COMMERCIAL TRANSACTIONS AND ALL VERIFICATION PROCEDURES ' ' AND THEY ARE MANDATORY NOT MERELY WHEN WINE HAS TO BE ANALYSED FOR COMMERCIAL PURPOSES BUT ALSO WHENEVER THE DETERMINATION OF THE ELEMENTS REFERRED TO IS NECESSARY TO ESTABLISH FRAUD OR ADULTERATION .

5 IT MUST FURTHER BE NOTED THAT THE METHODS OF ANALYSIS LAID DOWN IN REGULATION NO 1539/71 SERVE ONLY TO DETERMINE THE CONSTITUENTS OF WINE LISTED IN THE ANNEX TO THE REGULATION . IT FOLLOWS THAT THE REGULATION IS NOT EXHAUSTIVE BUT LEAVES TO THE MEMBER STATES THE CHOICE OF APPLYING OTHER METHODS OF ANALYSIS FOR DETERMINING THE CONSTITUENTS OF WINE WHICH ARE NOT RELEVANT TO THE APPLICATION OF REGULATIONS NOS 816/70 AND 817/70 .
6 THE COURT HAS ALREADY STATED ( IN ITS JUDGMENTS OF 30 SEPTEMBER 1975 IN JOINED CASES 89/74 , 18 AND 19/75 , PROCUREUR GENERAL PRES LA COUR D ' APPEL DE BORDEAUX V ARNAUD , RABY AND GALET (( 1975 ) ECR 1023 ) AND JOINED CASES 10 TO 14/75 , PROCUREUR DE LA REPUBLIQUE PRES LA COUR D ' APPEL D ' AIX-EN-PROVENCE V LAHAILLE AND OTHERS (( 1975 ) ECR 1053 ) AND IN ITS JUDGMENT OF 9 DECEMBER 1975 IN CASE 64/75 , PROCUREUR GENERAL PRES LA COUR D ' APPEL DE LYON V MOMMESSIN AND OTHERS (( 1975 ) ECR 1599 ) THAT THE 100* METHOD MIGHT BE USED IN ORDER TO APPLY A PRESUMPTION IN LAW OF OVER-ALCOHOLIZATION BASED ON THE PROPORTION OF ALCOHOL TO THE REDUCED DRY EXTRACT , SUCH AS THE PRESUMPTION SET OUT IN ARTICLE 8 OF THE FRENCH CODE DU VIN .

7 AS A REASON FOR THAT INTERPRETATION OF THE PROVISIONS IN QUESTION THE COURT REFERRED ON THE ONE HAND TO THE FACT THAT COMMUNITY RULES REQUIRE THE MEMBER STATES TO TAKE ALL APPROPRIATE MEASURES TO ENSURE COMPLIANCE WITH THE PROVISIONS RELATING TO OENOLOGICAL PRACTICES , INCLUDING THE ENRICHMENT OF WINE , AND ON THE OTHER HAND THAT THE PRESUMPTION IN LAW OF OVER-ALCOHOLIZATION BASED ON THE PROPORTION OF ALCOHOL TO THE REDUCED DRY EXTRACT PRESUPPOSES RECOURSE ONLY TO THE 100* METHOD TO EXTRACT THE DRY SUBSTANCES FROM THE WINE . FROM THIS POINT OF VIEW THE COURT NOTED THAT NO COEFFICIENTS EXISTED WHICH WOULD ENABLE THE VALUES OF THE REDUCED DRY EXTRACT OBTAINED BY OTHER METHODS , IN PARTICULAR THE DENSIMETRIC METHOD , TO BE TRANSPOSED INTO THOSE RESULTING FROM THE 100* METHOD . IN THIS RESPECT THE COURT RELIED ON SCIENTIFIC AND TRADE EXPERIENCE AND KNOWLEDGE AT THE TIME , AND GAVE JUDGMENT IN THE SENSE INDICATED , ' ' UNTIL MORE APPROPRIATE METHODS HAVE BEEN WORKED OUT ' ' ( PARAGRAPH 36 OF THE AFORE-MENTIONED JUDGMENT OF 9 DECEMBER 1975 IN CASE 64/75 ).

8 IN CONTRAST TO THE PREVIOUS CASES , THIS CASE IS CONCERNED WITH A METHOD OF CONTROL LAID DOWN BY FRENCH RULES FOR THE ISSUE OF A CERTIFICATE OF CONSENT TO WINES BEARING A REGISTERED DESIGNATION OF ORIGIN . HOWEVER , IN THIS CASE TOO , THE 100* METHOD USED IN THE CONTEXT OF A NATIONAL MEASURE OF CONTROL MAY BE RECOGNIZED AS COMPATIBLE WITH COMMUNITY LAW .

9 IN FACT IT APPEARS IMPOSSIBLE , IN THE CONTEXT OF AN ANALYSIS INTENDED TO CHECK WHETHER THE ISSUE OF A CERTIFICATE OF REGISTERED DESIGNATION OF ORIGIN IS JUSTIFIED , TO DISREGARD THE CONTROL RELATING TO THE PRESUMPTION OF OVER-ALCOHOLIZATION . COMMUNITY RULES DETERMINE THE CONDITIONS IN WHICH THE NATURAL ALCOHOLIC STRENGTH BY VOLUME OF ' ' QUALITY WINES PRODUCED IN SPECIFIED REGIONS ' ' ( ' ' QUALITY WINES PSR ' ' ) MAY BE INCREASED . IT FOLLOWS THAT A ' ' QUALITY WINE PSR ' ' CANNOT RECEIVE SUCH A DESIGNATION IF IT HAS BEEN UNLAWFULLY ENRICHED . THE TEST FOR OVER-ALCOHOLIZATION IS THUS INSEPARABLE FROM THE ANALYTICAL EXAMINATION . THE USE OF THE 100* METHOD IS THEREFORE COMPATIBLE WITH COMMUNITY LAW EVEN IF USED IN THE CONTEXT OF THE RULES ON DESIGNATIONS OF ORIGIN .

10 IT MUST FURTHER BE STATED THAT THE COMMISSION , BY A NEW REGULATION , NO 2984/78 OF 17 NOVEMBER 1978 ( OFFICIAL JOURNAL L 360 , P . 1 ), REPEALING REGULATION ( EEC ) NO 1539/71 , DETERMINED COMMUNITY METHODS FOR THE ANALYSIS OF WINES . THAT REGULATION , WHICH CAME INTO FORCE ON 1 JANUARY 1979 , MAKES PROVISION IN POINT 3 OF THE ANNEX FOR THE DENSIMETRIC METHOD ALONE FOR DETERMINING THE TOTAL DRY EXTRACT . HOWEVER , ARTICLE 1 ( 4 ) AUTHORIZES MEMBER STATES , IN ORDER TO ASSESS WHETHER A PRODUCT HAS BEEN SUBJECTED TO TREATMENTS OR PRACTICES WHICH ARE NOT IN ACCORDANCE WITH COMMUNITY PROVISIONS , TO DETERMINE UNTIL 31 AUGUST 1979 AT THE LATEST THE REDUCED DRY MATTER BY THE METHOD WHICH THEY USED BEFORE 19 JULY 1971 ONLY IN THE CONTEXT OF CHECKING THE PROPORTION OF ALCOHOL TO DRY MATTER . THE REDUCED EXTRACT , DEFINED IN POINT 3 OF THE ANNEX TO THE REGULATION AS THE TOTAL DRY EXTRACT LESS CERTAIN SUBSTANCES , HAS BEEN TRADITIONALLY CALCULATED , AS THE COURT RECALLED IN ITS JUDGMENT OF 30 SEPTEMBER 1975 , BY RECOURSE TO THE 100* METHOD ALONE .

11 THE ANSWER TO BE GIVEN TO THE QUESTION REFERRED TO THE COURT SHOULD THEREFORE BE THAT A MEMBER STATE MAY IN THE PRESENT STATE OF COMMUNITY LAW APPLY AS A NATIONAL MEASURE OF CONTROL , FOR THE PURPOSE OF CHECKING WHETHER THE ISSUE OF A CERTIFICATE OF CONSENT IN RESPECT OF WINES BEARING A REGISTERED DESIGNATION OF ORIGIN IS JUSTIFIED , A PRESUMPTION IN LAW OF OVER-ALCOHOLIZATION WHICH IS BASED ON THE PROPORTION OF ALCOHOL TO DRY MATTER DETERMINED BY THE 100* METHOD , PROVIDED THAT THAT PRESUMPTION IS CAPABLE OF BEING REBUTTED .

COSTS
12 THE COSTS INCURRED BY THE GOVERNMENT OF THE FRENCH REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE ; SINCE THE PROCEEDINGS ARE , SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE FRENCH CONSEIL D ' ETAT BY JUDGMENT OF 22 DECEMBER 1978 , HEREBY RULES AS FOLLOWS :
A MEMBER STATE MAY IN THE PRESENT STATE OF COMMUNITY LAW APPLY AS A NATIONAL MEASURE OF CONTROL , FOR THE PURPOSE OF CHECKING WHETHER THE ISSUE OF A CERTIFICATE OF CONSENT IN RESPECT OF WINES BEARING A REGISTERED DESIGNATION OF ORIGIN IS JUSTIFIED , A PRESUMPTION IN LAW OF OVER- ALCOHOLIZATION WHICH IS BASED ON THE PROPORTION OF ALCOHOL TO DRY MATTER DETERMINED BY THE 100* METHOD , PROVIDED THAT THAT PRESUMPTION IS CAPABLE OF BEING REBUTTED .