CJEC, December 4, 1986, No 179-85

The court

1 By application lodged at the court registry on 3 june 1985 the Commission of the European Communities brought an action before the court under article 169 of the eec treaty for a declaration that by prohibiting in paragraph 52 (3) (2) of the weingesetz (law on wine), in conjunction with paragraph 10 (2) of the schaumwein-branntwein-verordnung (order on spirits and sparkling wines), the marketing of beverages such as ' petillant de raisin ' in the presentation in which they are usually manufactured and marketed in their country of origin, the Federal Republic of Germany has failed to fulfil its obligations under article 30 of the eec treaty.

2 Reference is made to the report for the hearing for the provisions of the german legislation and regulations in question, the community regulations on the common organization of the market in wine and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the court.

3 Petillant de raisin ' is a product which has been made in france since 1956 from partially fermented grape juice and has always been marketed in bottles whose shape is similar to that of the traditional champagne-type bottle with a wired mushroom-shaped stopper. It is a partially fermented grape must with an alcoholic strength by volume not exceeding 3% and thus falls within heading 22.04 of the common customs tariff, which, by virtue of article 1 (2) (b) of council regulation (eec) n°337-79 of 5 february 1979 on the common organization of the market in wine and the definition given in annex ii (point 3) to that regulation, is governed by the common organization of the market in wine and in particular by council regulation (eec) n°355-79 of 5 february 1979.

4 It is common ground that the provisions of the german legislation and regulations in question have the effect of prohibiting the marketing of ' petillant de raisin ' on the german market in traditional champagne-type bottles.

5 The commission submits essentially that the legislation and regulations in question are likely to impede, directly or indirectly, actually or potentially, imports from other member states and that consequently they constitute a measure having an effect equivalent to a quantitative restriction on imports which is incompatible with article 30 of the eec treaty. It claims that, although the provisions in question apply to national and imported products alike, they lead to restrictions on intra-community trade which are not necessary in order to meet mandatory requirements relating to consumer protection and fair trading.

6 The government of the Federal Republic of Germany argues essentially that the provisions in question apply to national and imported products alike and that they are necessary for reasons of consumer protection and fair trading.

7 It should be pointed out first of all, as the court held in its judgment of 13 march 1984 in case 16-83 prantl (1984) ecr 1299 and as is still the case in the present state of community law, the community rules on the common organization of the market in wine cannot be regarded as an exhaustive system containing all the necessary provisions regarding the presentation of wines, in particular as regards the shape of bottles and the protection which they may have.

It must therefore be assumed that the rules adopted by the member states on such matters remain in force in so far as they do not infringe article 30 et seq. Of the eec treaty.

8 It must be observed - and this is not denied by the Federal german government - that the legislation and regulations in question may impede intra-community trade. Producers in the exporting member state who wish to market ' petillant de raisin ' in the Federal Republic of Germany would in fact be obliged to bottle that product for that specific market in bottles different from those which they use in the country of origin as well as on the market of other member states. It would thus be more difficult or costly for them to market ' petillant de raisin ' in the Federal republic.

9 It therefore appears that the legislation and regulations in question constitute a measure having an effect equivalent to a quantitative restriction prohibited by article 30 of the eec treaty.

10 However, the court has consistently held that, in the absence of comprehensive community legislation on the packaging of the products in question, obstacles to free trade within the community due to disparities between national rules must be accepted in so far as such rules are applicable to domestic and imported products alike and may be justified as being necessary to satisfy mandatory requirements relating in particular to consumer protection and fair trading.

11 In this regard it must be borne in mind that, as the court held in its judgment in prantl, cited above, the justification for adopting legislation designed to prevent customers from confusing wines and products of different quality and origin cannot in principle be denied. That concern is particularly worthy where traditions and special characteristics play an important role. Nevertheless, it must be observed that in a common market system consumer protection and fair trading as regards the presentation of wines and products governed by the common organization of the market in wine must be guaranteed with regard on all sides for the fair and traditional practices observed in the various member states.

12 As regards the argument of consumer protection put forward by the Federal german government, it must be pointed out that the provisions of community law on the labelling of wines and products governed by that common organization of the market, in particular articles 22 and 23 of regulation n°355-79 concerning the description and labelling of products other than table wines and quality wines produced in a specific region, are exceptionally detailed and thus should prevent the confusion that is feared. From that point of view, the fact that the labels on bottles of ' petillant de raisin ' show the exact nature of the product and state that its alcoholic strength by volume is less than 3% is sufficient to prevent any confusion in the minds of consumers.

13 In reply to the Federal government ' s further argument that the legislation in question accords with a number of community regulations and directives and with international agreements it need only be pointed out that the aim of all those provisions is to prohibit misrepresentation or forms of presentation likely to mislead consumers. They do not permit a member state to disregard the fundamental principle of the free movement of goods and to restrict certain bottle shapes or types of presentation to a limited number of beverages when consumers may be provided with proper information by appropriate labelling.

14 As regards the Federal government ' s argument concerning fair trading, it must be borne in mind, as is clear from the documents and oral arguments submitted to the court, that:

(i) Since production began in 1956, ' petillant de raisin ' has been lawfully and continuously marketed in france and other member states in its original presentation consisting of the traditional champagne-type bottle with its traditional stopper. It cannot therefore be maintained that such a presentation is used on the german market for unfair trading purposes or to exploit the good name of other products;

(ii) In any event, the traditional champagne-type bottle with its traditional stopper has been used for a long time in the member states to bottle not only champagne and sparkling wines but also a number of other beverages such as cider or drinks made from fruit juice without conferring on their manufacturers an exclusive right to use that type of presentation and without affecting fair trading;

(iii) The german legislation itself allows the traditional champagne-type bottle to be used to bottle not only sparkling wines but also sparkling drinks made from fruit or berries.

15 Therefore, the marketing of ' petillant de raisin ' on the german market in the bottle in which it has been continuously and lawfully marketed since it came onto the market 30 years ago must be regarded as satisfying the requirements arising from the need to have regard on all sides for the fair and traditional practices observed in the various member states, and it is not necessary to consider whether the presentation in question is technically or economically necessary for the producer.

16 It follows from all the foregoing that the commission ' s application must be upheld.

Costs

17 Under article 69 (2) of the rules of procedure, the unsuccessful party is to be ordered to pay the costs. Since the Federal Republic of Germany has failed in its submissions, it must be ordered to pay the costs.

On those grounds,

The court

Hereby:

(1) Declares that, by prohibiting in paragraph 52 (3) (2) of the weingesetz in conjunction with paragraph 10 (2) of the schaumwein-branntwein-verordnung the marketing of beverages such as ' petillant de raisin ' in the presentation in which they are usually manufactured and marketed in their country of origin, the Federal Republic of Germany has failed to fulfil its obligations under article 30 of the eec treaty;

(2) Orders the Federal Republic of Germany to pay the costs.