Re Italian Table Wines: E.C. Commission (Italian Republic intervening) v. France

(Case 42/82)

Before the Court of Justice of the European Communities

ECJ

(The President, Mertens de Wilmars C.J.; Pescatore,

O'Keeffe and Everling PP.C.; Lord Mackenzie Stuart, Bosco , Koopmans, Due

and Bahlmann JJ.) Sir Gordon Slynn, Advocate General.

22 March 1983

Imports. Wine. Procedure. Commission Regulation 1153/75 requires all commercial movement of wine within the EEC to be accompanied by a 'wine passport' (form VA 1). Wine imported from one member-State into another may, therefore, lawfully be checked at the frontier to ensure that it is in fact accompanied by a VA 1 form, properly completed and issued by the authorities of the exporting member-State. Nevertheless, only errors or irregularities in the document which are of a substantial nature and which are consequently capable of destroying its function (as an official document providing essential information about the nature of the product it refers to) may justify objections to the document such as to hinder importation of the accompanying products. Completion of the document in legible lower case handwriting (instead of capital letters or typewriting) and failure to complete the form fully (although all the required information is given indirectly) are not substantial defects which justify objection to the document. On the other hand, failure to state the alcoholic strength or to indicate the issuing authority or to give any information (even indirect) enabling the country of origin to be identified are defects justifying objections to the document, as is illegibility. [24]-[28] Imports. Wine. Procedure. Where an importing member-State finds that the travel documents for wine

imported from another member-State are not in order, its first duty is to regularise them (rather than merely to refuse admission). This it should do in accordance with Regulation 359/79 by requesting the member-State of origin to check the documents and entries in its records and if necessary send any relevant information and evidence where there is 'reasonable cause for suspecting' that the product does not conform to the wine provisions. Such reasonable cause for suspicion must be based on concrete*161 evidence relating to a specific carriage operation. In no case may mere formal errors in the accompanying documents justify a reasonable cause for suspicion. Nor are there grounds for a general suspicion with regard to all wine imports from a given member-State on the basis of a few irregularities or breaches which had been found in particular cases in the past. [30]-[32] Imports. Wine. Procedure. In order to avoid obstacles to trade, the duty of co-operation between member-States which is inherent in the Community system requires that where an importing member-State changes its practice with regard to acceptance of import documents, checking, etc., notice of the new practice must be given to the authorities of the member-States concerned to enable them to prepare for the new practice. [36] Imports. Wine. Health inspections. Quantitative restrictions. OEnological checks of imported wine are likely to make importation more difficult or more costly as a result inter alia of the delays and additional transport costs which may be caused. They are therefore--whether carried out systematically or not--equivalent to quantitative restrictions on imports within the meaning of Article 30 EEC. [50] Imports. Wine. Health inspections. Quantitative restrictions. The import of wine may lawfully be the subject of health inspections under Article 36EEC. In the absence of any reasonable suspicion on the basis of specific evidence in a given case, such inspections, if they take the form of analysis, should however be spot checks and not systematically applied to all or most of the total imports from a particular member-State. Where random analyses are made, detention of the consignment at the frontier until the results of the analysis are known is a disproportionate and discriminatory obstacle to imports if such detention lasts more than a few days. [55]-[61] The Court held, in an action brought by the E.C. Commission against France under Article 169 EEC, that by delaying the release out of French customs of table wines imported in bulk from Italy, by means of querying accompanying documents and systematic analysis of all or three-quarters of the imported wine, the French Government had infringed Article 30 EEC and the EEC wine regulations.

Representation Jean-Claude Seche, Legal Adviser to the E.C. Commission, for the applicant Commission. Arnaldo Squillante and Ivo M. Braguglia , Avvocato dello Stato, for the Italian Government, intervening in support of the Commission. Noel Museux for the respondent Government. *162 The following cases were referred to by the Advocate General: 1. Metro-SB-GroSSMarkte GmbH & Co. KG v. E.C. Commission (26/76R), 23 July 1976: [1976] E.C.R. 1353. 2. De Lacroix v. European Court (91/76R), 15 October 1976: [1976] E.C.R. 1563. 3. Simmenthal v. Italian Minister for Finance (35/76), 15 December 1976: [1976] E.C.R. 1871, [1977] 2 C.M.L.R. 1. 4. Officier Van Justitie v. de Peijper (104/75), 20 May 1976: [1976] E.C.R. 613, [1976] 2 C.M.L.R. 271. 5. Denkavit Futtermittel GmbH v. Minister fur Ernahrung, Landwirtschaft und Forsten des Landes Nordrhein-Westfalen (251/78), 8 November 1979: [1979] E.C.R. 3369, [1980] 3 C.M.L.R. 513. TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Facts 1. The principal provisions of Community law Council Regulation 337/79 of 5 February 1979 on the common organisation of the market in wine contains provisions regarding questions of price, of production, of supervision of the development of vineyards, of certain oenological processes and of the release of wine for consumption. According to Article 64 of that regulation the member-States are under an obligation to take the necessary measures to ensure compliance with the rules of Community law in the wine sector. Article 9 (1) of Council regulation 355/79 of 5 February 1979 laying down general rules for the description and presentation of wines and grape musts provides: 'In the case of table wines, the description in the official documents shall include the following information: (a) the words "table wine"; (b) a statement as to whether the wine is red, rose or white; (c) in the case of: (i) consignment to another member-State or export: the name of the member-State in whose territory the grapes were harvested and made into wine, provided that both these operations took place in the same member-State;

(ii) table wine resulting from a coupage of products originating in more than one member-State: the words "wine from different countries of the European Community"; (iii) table wine which was made into wine in a*163 member-State other than that in which the grapes were harvested: the initials "EEC".' Article 46 (1) of that regulation provides: 'The products referred to in the first subparagraph of Article 1 (1) and the first subparagraph of Article 39 (1) the description or presentation of which does not conform to the provisions of this regulation may not be held for sale, put into circulation in the Community or exported.' and the second subparagraph of that Article provides: 'The bodies appointed by the member-States shall be responsible for ensuring compliance with the provisions of this regulation.' Article 3 of Council Regulation 359/79 of 5 February 1979 on direct co-operation between the bodies designated by member-States to verify compliance with Community and national provisions in the wine sector provides that: 'The competent body of the member-State in whose geographical territory one of the products referred to in Article 1 (2) of Regulation (EEC) 337/79 is found: (a) shall request the competent body of one or more other member-States to provide it with any relevant information concerning the points mentioned in the first to third indents of Article 2 (2), if there is reasonable cause for suspecting that the product does not conform to the wine provisions. The competent body so requested shall study in detail the grounds for suspicion brought to its attention and shall forward to the competent body making the request all information, documents or other which may be relevant for clarifying the issue; (b) may, if there is reasonable cause for suspecting that the product does not conform to the wine provisions, request the competent body of the member-State from whose geographical territory the product comes and, if it does not originate there, the competent body of the member- State of origin: to appoint a qualified expert and ensure that he is present at supervisory operations, to take part in the concerted and rapid examination of one or more batches of the product.' Article 4 (1) of that regulations is worded as follows: 'The competent body of the member-State in whose geographical territory one of the products listed in Article 1 (2) of Regulation (EEC) 337/79 is found shall request: (a) the competent body of the member-State from whose geographical territory the product comes and, if it does not originate there, the competent body of the member-State of origin, to check the documents and the entries in the records, provided for under Article 53 of Regulations (EEC) 337/79, where these are open to doubt; (b) if it deems it necessary, a laboratory as referred to in the second indent of paragraph (3) situated in the geographical territory of the member-State from which the product comes or, if it not originate there, in the geographical territory

of the member-State of origin, to make an analytical and organoleptic examination of a sample of the product which has been sent to it, where there is reasonable cause for suspecting fraud.' *164 Commission Regulation 1153/75 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 provides that all carriage of wine between two places in the Community requires an accompanying document, being a form conforming to the specimens set out on the Annexes thereto, and, in the case of Community products with the exception of quality wines psr and wines fortified for distillation, referred to as form VA 1. The specimen form VA 1 requires in particular a statement of the office responsible and the application of its stamp, a statement of the person delivering the document, of the consignor, of the consignee, of the transporter and the means of transport as well as a description of the transported products including in particular their description according to the relevant provisions, their actual alcoholic strength, their total alcoholic strength density and wine-growing zone. Article 12 (2) of the regulation provides: 'If products are found to be moving without an accompanying document or without the proper accompanying document, the competent agency of the member-State in which such finding is made or any other authority responsible for verification shall take the measures necessary to regularise and if appropriate penalise such irregular carriage operation.' 2. The background to the measures at issue (a) Between April 1980 and July 1981 the French authorities directed a number of communications to the Italian authorities with regard to certain irregularities or infringements which they had discovered in respect of transports of Italian wine. Thus there were two cases in which wine arrived in France in the tanks of ships in a polluted condition, in the one case through hydrocarbons and in the other case through paraffin. In the former case the pollution was caused by the fact that conversion work on a former oil tanker had not been carried out properly. In the latter case an Italian company was suspected of having transported in road tankers alternately wine and additives for lubricating motor vehicles. Furthermore, the communications in question related in particular to irregularities discovered in the VA 1 forms accompanying two consignments of wine and to a request for information on the steps taken in Italy with regard to the filtering of wine involving the use of asbestos. The question whether the Italian authorities reacted to those communications in an appropriate manner and within a reasonable time is the subject of dispute between the parties. (b) At the beginning of August 1981 demonstrations took place in the wine-growing circles in the Midi in France to protest against the situation on the wine market and in particular against the price levels and the volume of imports of wine. On that occasion Italian*165 wine and the ships which transported it were the subject of acts of violence.

3. The steps taken in August 1981 (a) Towards the middle of August the French authorities began to refuse to release for consumption substantial quantities of imported wine originating in Italy on account of defects in the VA 1 forms which accompanied them, in particular on account of the absence of any reference to 'Italy' in those forms. On 14 August 1981, by a telex message addressed to the Italian authorities, the French authorities requested the information needed to determine the origin of wine which had arrived at Sete on the previous day on board various ships. They considered the 35 VA 1 forms which accompanied the 21,167 hectolitres of wine in question to be defective, in particular by virtue of the absence of any identification of the country of origin. On the same day the French Minister of Agriculture informed the Commission by telex message of the absence of any identification of the country of origin on those forms and let it be known that in his opinion, in compliance with Article 46 of Regulation 355/79, the wine in question could only be sent for distillation or for the manufacture of vinegar and other industrial uses by virtue of the Community rules. By telex messages of 25 and 27 August 1981 the Italian authorities gave details concerning those VA 1 forms and confirmed that the wine in question was produced in Italy. Thereupon, by telex message of 27 August 1981, the French authorities requested them to send the accompanying documents which had followed the goods during their earlier transportation in Italy between the place of production and the warehouses from which they had been despatched to France. By letters dated 26 August and 2 and 11 September 1981 the French authorities submitted to the Italian authorities further requests for thorough inquiries on account of alleged defects in 91, 772 and 1,374 VA 1 forms accompanying a total quantity of 1,068,000 hectolitres of wine, and insisted on the necessity to produce in particular the documents which had accompanied the wine during its transportation in Italy. By letter dated 9 September 1981 addressed to the Director General of Customs and Indirect Taxes in Paris, the Italian Minister of Agriculture expressed his surprise that the VA 1 forms in respect of which verifications had been requested largely related to operations which had taken place some months previously and that the wine had been retained by the customs authorities for a prolonged period. In addition the letter contained replies to the requests for verifications made by the French authorities in their letters of 26 August and 2 September. *166 (b) At the same time during August 1981 the French authorities began to subject systematically all consignments of wine in bulk imported from Italy to analysis. (c) As a result of those various measures considerable quantities of wine originating in Italy were held up at various French frontier posts. According to the information given by the French Government 1,000 hectolitres were released for consumption on 31 August, 2,800 hectolitres on 11 September, 14,600 hectolitres on 17 September and 179,000 hectolitres in the period up to 6 October; the remaining quantities of wine presented at the frontier since the

middle of August were still held up there. 4. The commencement of procedures relating to failure of a State to fulfil an obligation In view of the aforementioned problems the Commission commenced two sets of proceedings under Article 169 of the Treaty. (a) The proceedings for failure to fulfil an obligation in respect of the checking of the accompanying documents In its letter dated 9 September 1981 the Commission contended that the action of the French authorities in applying Article 46 of Regulation 355/79 in cases where the member-State in which the product originated was not specified amounted to a failure to fulfil an obligation under the Treaty. In the Commission's opinion the absence of any specification in the accompanying document of the member-State in which the product originated is a formal defect and the French authorities are under a duty to take the necessary steps as soon as possible to regularise such carriage operations. In the event of the Italian authorities certifying that the wine in question originated in Italy there is no longer any reason to delay the customs clearance of the wine. By letter dated 24 September 1981 the Permanent Representation of France to the European Communities delivered a note to the Commission stating that the wine in question arrived in France under cover of incomplete VA 1 forms, that is to say they gave no indication of origin by use of the expression 'Italian wine,'often failed to indicate the degree of proof of the wine and contained defects with regard to the accompanying numbers and dates of despatch. The Italian authorities were therefore requested to provide all the necessary information to enable the carriage operations to be regularised. In many cases the irregularities found were however of a substantial nature involving reasonable cause for suspicion within the meaning of Article 3 of Council Regulation 359/79. By letter dated 2 October 1981 the Commission sent a reasoned opinion to the French Government. It contended that the French Republic had failed to fulfil its obligations under the Community regulations applicable to the wine sector and under Article 30 of the*167 Treaty by failing in certain cases to initiate speedily the procedure for regularising the carriage operations, by making in many cases such regularisation subject to the transmission by the Italian authorities of the documents and other evidence on which they based their certificates and by delaying customs clearance even in those cases where the operations had been regularised. (b) The procedure relating to failure to fulfil an obligation in respect of the analyses In its letter dated 7 September 1981 the Commission made its second allegation of failure to fulfil an obligation under the Treaty. It contended that the customs

clearance operations in respect of Italian wine were subjected to considerable delays extending from one month, in respect of wines of 13 << degrees>> proof or more, to four months, in respect of wines of less than 13 << degrees>> proof, which substantially exceeded the time needed for completing the required substantive formalities by reason of the fact that the French authorities systematically carried out qualitative analyses of all Italian wines before they were cleared through customs. In a note dated 21 September and delivered to the Commission on 2 October 1981, the French authorities affirmed that systematic checks of all imported wines were justified. These necessary checks involved a certain extension of the time required for customs clearance. The need to maintain this practice was strengthened by the discovery of serious irregularities and by the delay on the part of the Italian authorities in the matter of mutual co-operation in cases of fraud. In that respect the French Government referred to irregularities discovered between March and July 1981 in respect of wines originating in Italy. Following that letter, the Commission sent to the French Government on 12 October 1981 a reasoned opinion in which the Commission considered that neither the Community provisions cited by the French Government nor the discovery of a number of irregularities justified such a serious obstacle to the free movement of goods as qualitative analyses, on a systematic basis, of all imported wines. Subjecting Italian table wines to customs clearance operations of a far greater duration than the time needed for the completion of permissible substantive operations and making clearance subject to a systematic analysis, as a result of a decision designed to ensure compliance with the measures of self-restraint on the part of importers, constituted a measure having equivalent effect to a quantitative restriction on imports, prohibited by Article 30 of the EEC Treaty, and a failure on the part of the French Repuclic to fulfil its obligations under Council Regulation 337/79. 5. The events occurring subsequent to the reasoned opinions (a) By a note dated 16 October 1981 the French Government informed the Commission that the facts on which the reasoned*168 opinion of 2 October concerning the checking of accompanying documents had been based had changed. A Franco-Italian meeting which had taken place in Pisa on 13 October 1981 had resulted in an agreement whereby the wines which were then held up at the frontier would be released in stages, an operation which was to be completed by 15 December 1981 at the latest. The two governments also agreed that an approach should be made to the Commission for the release to be accompanied by Community aids for storage contracts and that it was necessary to maintain close co-operation to prevent differences arising in relation to wine such as that which occurred in the summer of 1981. By a letter dated 26 October the Commission requested the French Government to inform it whether the agreement in question contained matters other than those referred to above. In its letter of 10 December 1981 the Commission reminded the French Government that it had received no answer to its question

and requested that the whole text of the Franco-Italian agreement in question be communicated to it. By a letter dated 5 January 1982 the French Government replied that the particulars forwarded to the Commission on 16 October 1981 on the results of the Franco-Italian discussions of 13 October 1981 represented the whole content of the agreement. The release of the wine amounting to 1,068,000 hectolitres, the detention of which had been suspended pending the answer from the Italian authorities regarding the incomplete VA1 forms, had taken place in stages and the operation had been completed on 15 December 1981. (b) On the other hand, in reply to the reasoned opinion of 12 October 1981 concerning the analyses, the French Government informed the Commission by letter of 20 October 1981 that it had decided to subject imported wines only to random checks the procedures for which would not be discriminatory and that it considered that in that way it could appreciably shorten the time required for customs clearance. On 30 October 1981 the Commission requested the French Government to inform it of the new checking procedures for the purpose of analysis and to give an assurance that customs clearance would henceforth take place without delay and would not be subject to measures aimed at ensuring self-restraint on the part of the importers. By a telex message dated 10 November 1981 the French Government replied that the checks would henceforth be carried out on a random basis, at the rate of about one case in ten, which would, on the whole, correspond to the percentage of checks normally carried out by the customs authorities on importation and this would be done in accordance with procedures which were being prepared and which would apply to all operations as from the middle of December. Until then customs clearance operations in respect of the wines*169 which were held up would take place in conformity with a Franco-Italian agreement made on 13 October 1981. With regard to the self-restraint on the part of the importers the French Government stated that it could in no way be bound by agreements made in the framework of the wine-growing trade. By letter dated 10 December 1981 the Commission requested the French Government inter alia to inform it whether measures of self-restraint were then being applied in the French trading circles concerned. The Permanent Representation of France to the European Communities replied by a letter dated 5 January 1982 that the French Government was not in a position to give precise information to the Commission regarding any agreements relating to self-restraint since the Comite National du Commerce Communautaire des Vins et Spiritueux (the National Committee for Community Trade in Wines and Spirits) had not informed the public authorities that the agreements previously made had been renewed. (c) During the period following the arrangement arrived at on 13 October 1981 until the end of 1981 imports of wine originating in Italy declared at the French frontier slowed down for reasons which have not been established. Those imports amounted, according to the figures given by the French Government, to a total of 539,000 hectolitres in November and December 1981 and, according to

the Commission's figures, to 153,000 hectolitres between the beginning of November and 17 December, and to 259,000 hectolitres between 18 and 31 December 1981. 6. Further difficulties arising at the beginning of 1982 During January 1982 the volume of imports of wine originating in Italy increased yet again and reached more than 700,000 hectolitres. During that month several incidents and violent demonstrations against the importation of Italian wines took place in the Midi region of France during which lorries loaded with wine were pillaged by wine-growers upon entering France. At the end of January the French authorities once more intensified their checks of imports of wine originating in Italy. On the one hand they increased the frequency of analyses carried out on consignments of wine arriving at the frontier to three consignments out of four. On the other hand fresh requests for verifications were addressed to the Italian authorities on grounds of irregularities in the accompanying VA 1 forms. The result of those checks was a considerable delay in the release for consumption of imported wines originating in Italy. It is apparent from the communications and telex messages sent by the French Government to the Commission that the French Government was concerned by the incidents in the wine sector and that it desired an improvement in the way in which the market in*170 question functioned. A telex message dated 2 February 1982 contained the following passage: 'Great anxiety has arisen in wine-growing circles in the Midi as a result of the great increase in imports of wine originating in Italy during January 1982 at prices appreciably below the market prices. Consequently the Government has made the necessary arrangements with effect from 30 January in order that more numerous qualitative analyses should be carried out by the competent administrative authorities prior to the wine's being put on the market. Contrary to what has been said by certain organs of the press imports have not been stopped but slowed down with a view to a return to a normal monthly rate.' Written procedure By application received at the Court Registry on 4 February 1982 the Commission brought an action against the French Republic under Article 169 of the EEC Treaty. The Commission claims that the Court should declare that the French Republic: By subjecting customs clearance of Italian table wines to a delay considerably in excess of the time necessary for the performance of the permissible substantive formalities and by making clearance subject to a systematic analysis; By omitting to commence promptly the procedure for regularisation of transport of a number of consignments of Italian wine as soon as the accompanying documents have been presented for clearance at its frontier posts; By making the regularisation of transport of Italian wines held up at frontier posts subject in numerous cases to the transmission by the Italian authorities of the

documents and papers upon which their certificates are based; By delaying clearance even in cases which have been regularised;has failed to fulfil its obligations under the Community rules applicable to the wine sector and under Article 30of the EEC Treaty. By application lodged at the Court on 18 February 1982 the Italian Government asked for leave to intervene in support of the conclusions of the Commission. Leave to intervene was granted by order of 18 February 1982. By a document lodged on 5 February 1982 the Commission submitted, pursuant to Article 186 of the EEC Treaty and Article 83 of the Rules of Procedure, an application for the adoption of interim measures. On 4 March 1982 the Court, by way of an interlocutory decision, made the following order: 1.'Pending the judgment in the main action the French Republic is required to observe the limitations hereinafter specified regarding the practices relating to the release to the market in France of wines imported from Italy; (a) Apart from special cases in which specific evidence may justify a suspicion of fraud the frequency of analyses before the release to*171 the market of the consignments in question must not exceed fifteen per cent. of the consignments presented at the frontier; (b) The duration of analyses made before the release to the market of the consignments in question must not exceed twenty-one days from presentation of the consignments and the documents at the frontier unless there are special grounds which justify specific analyses in exceptional cases; (c) The release to the market of consignments of wine may not be refused on grounds of irregularity of the accompanying documents unless the irregularities are substantial. (d) When substantial irregularities are found by the French authorities they must without delay inform the Italian authorities of such irregularities and supply them with the necessary documents. Where the accompanying document in respect of any consignment has been regularised by the Italian authorities that consignment must immediately be released to the market. 2.When the release to the market of quantities of wine from Italy in excess of 50,000 hectolitres is refused for more than 21 days on grounds either of analyses or irregularities in accompanying documents the French authorities must inform the Commission of the reasons for such refusal. 3.The costs are reserved.' The written procedure followed the normal course. Upon hearing the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. However, the parties were invited to answer certain questions in writing prior to the hearing. Replies to the questions put to the parties 1. Invited to submit to the Court, by way of example, the originals, if possible, of allegedly irregular VA 1 documents and of all the accompanying documents referred to in the telex messages sent by the French authorities on 14 August

1981, the French Government replied that the originals of the documents referred to were at that time in the hands of private traders and that it was not possible to collect them within the period specified Copies of all VA 1 forms for the period in question were held by the Commission. The French Government did, however, send copies of a few of the documents at issue together with the telex messages of the French authorities referring to those documents. 2. In response to the Court's request to produce further details of those cases referred to in the documents annexed to the Commission's reply in which the verifications of the accompanying VA 1 forms requested by the French authorities related to operations which had taken place at least several weeks previously, the French Government states that the information in question is not sufficiently detailed to enable the French authorities to identify with precision, within the period specified and having regard to the documents which they still have in their possession, the operations to which those annexes relate. *172 On that subject the Italian Government explains that the documents in question show that certain requests for verification made as from 14 August 1981 related to VA 1 forms completed in January, March, April, May and June 1981. By way of example the Italian Government produces copies of four VA 1 forms to which the request for verification made on 26 August 1981 referred and which concern consignments of wine which were presented to the French customs authorities together with those documents two or three months previously. It also produces copies of seven other documents relating to shipments presented to the French customs authorities in the period between the beginning of May and the beginning of July 1981 and to which the request for verification made on 2 September 1981 referred. 3. In response to the question whether, in appropriate cases, and with what result the matters in dispute were raised, as provided for by Article 8 of Council Regulation 359/79 of 5 February 1979, within the Managament Committee for Wine set up by Article 6 of Regulation 337/79 or, as appropriate, in response to the request to explain why this was not done, the French Government and the Commission state that those matters were raised by the Commission during meetings with representatives from the two member-States in question but not in the Management Committee. The Italian Governmentstates that the first signs of what was subsequently to be called the 'wine war' manifested themselves at the Council session of 20 and 21 July 1981 when the request of the Italian Government, supported by the Commission, for the application of a minimum price as provided for by Article 15A of Regulation 337/79 was refused. Subsequently certain measures were contemplated to meet French concerns with regard to imports of Italian table wine into France and it was decided to set up a France-Italian working party to prepare common proposals for submission to the Community institutions. However, events moved fast in August 1981. During a meeting of the Management Committee on Wine on 26 August 1981 the French delegation rejected a proposal for the storage of products presented to the customs authorities, a proposal which was intended gradually to eliminate the blocking of

imports. It then became clear that the problems were not of a technical but of a political nature and the Italian authorities made approaches to the Commission with a view to having the matter brought before the Court of Justice and made repeated protests to the Council. Only in October 1981 did an understanding between the two governments concerned become possible. 4. In response to a request to indicate how much wine of Italian origin imported in bulk was released for consumption in France per month during the years 1979 to 1982, the French Government submits the following figures (in hectoliters): TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

First Opinion of the Advocate General (Sir Gordon Slynn) On 4 February 1982 the Commission lodged at the Court an Application under Article 169of the EEC Treaty for a declaration that France had failed to fulfil its obligations under the Treaty by subjecting imports of Italian wines, into France, to delays which exceeded by a considerable margin those necessary for the purpose of checking whether the wine should be admitted into France. Last evening the Court heard representations on an application by the Commission that the Court should grant interim measures of relief pursuant to Article 186 of the EEC Treaty and Article 83 of the Rules of Procedure pending determination of the main action. That application for interim measures is supported by the Government of Italy and resisted by the Republic of France. In view of the nature of the application it seemed right that I should give my opinion at once. The interim relief sought is for an order requiring France to suspend the systematic examination of Italian wines at the point of entry whilst permitting spot checks, including analyses of wines, on condition that such checks are completed within fifteen days and secondly, an order requiring France to clear through customs, immediately, consignments currently detained, provided that the requisite documents are in order. If the documents are not in order it is asked that importations should only be delayed for such period as is strictly necessary to allow the documents to be put right unless freud or some other defect in the wines is alleged. The case is economically and politically an important one. The Court has been told of the importance of the case, from the Italian point of view, for allowing wines to be admitted into France without restrictions which are unjustified under Community rules, and, from the French side, for preventing wines from coming in which may not be what they claim to be or which are not imported in compliance with the relevant rules. *174 Two things seem clear and to be accepted by all those concerned. Firstly, substantial quantities of Italian wine have been imported into France and there has been an increase, in such importations, put by France at 8 per cent. in a year as at January 1982. Secondly, in the last few months controls have been exercised by the French authorities which have led to delays in the importation of Italian wine in bulk into France. The delays have at times been substantial--in some cases as much as four months. The quantities of wine involved are also

substantial. The French authorities justify the controls on two grounds. Firstly they say that it is important to prevent contaminated wines, which may be injurious to health, from being imported; and secondly they say that to prevent fraud, or to prevent defective wines being imported, it is right to check that the documents covering the importation are in due form. There is a sharp dispute as to whether these controls are necessary and justified; as to why they are being applied; as to what is their effect on the free movement of goods in the Community and in particular on the importation of Italian wines into France. It is plain, as the French Government submits, that these disputes are not to be resolved at this stage on an application for interim relief. Nothing which I say is intended to indicate a concluded view as to the ultimate merits of the dispute. Nonetheless the claim made by the Commission, and supported by the Italian Government, has to be examined to see whether any case of an infringement of Community rules is put forward which would justify the Court in granting interim measures of any kind. The Commission's case is that France is imposing restrictions on imports which violate Article 30 of the Treaty. In addition to the delays on the release of Italian wine into France which have in fact occurred, the Commission has referred to three documents. The first is the minutes of a meeting of 10 July 1980 of the Comite National du Commerce Communautaire des Vins et Spiritueux. Those minutes refer to the problem being caused in France by the imports of Italian wine of a strength of less than 13 degrees proof. They propose measures of self-restraint to keep quantities down and they record a formal guarantee purported to be given by public authorities that such wines, if imported by traders other than members of the Comite, will not be admitted until after a delay of four months. The second and third documents are circulars purporting to constitute evidence of transactions between the Comite and the French Government in the summer of 1981. One of these (annex XV to the main application) records that the Comite, on the basis of six years' experience of operating measures of self-restraint in the imports of Italian wine, proposed a monthly limit of 425,000 hectolitres for the coming season and relied on public authorities in return to ensure that bodies not represented on the Comite should not undermine the effect of the self-limitation. The other circular (annex XVI to*175 the main application) informed members of the Ministers' decision to release wines blocked at the border at the rate of 120,000 hectolitres per week between 19 October and 13 December 1981, in return for an agreement by the Comite that there would be a total ban on imports from 25 October 1981 until dates in November or December 1981, such dates to depend on the date of arrival of the goods in France. It is not accepted by Counsel for the French Government that there was any bargain to this effect but, on the basis of the documents and the delays which occurred, to which I have referred, the Commission initiated two separate proceedings. Firstly, by letter dated 7 September 1981, the Commission claimed that imports of Italian wines into France were subject to delays of one month, in cases where

the wine was 13 degrees proof or more, to four months, where wine was less than 13 degrees proof, and that this was done by the French authorities in order to penalise importers who were not practising self-restraint pursuant to the policy set out in the Circular of the Comite National. The French Government's reply was that these measures were justified in the interests of public health and in order to guard against fraud. The Government referrred, in its reply, to serious incidents involving attempts to import contaminated wine in March and July 1981. The Commission however delivered a reasoned opinion confirming its view. The French Government's reply was that it had decided to operate a system of spot checks which in November 1981 was said to be conducted on the basis of one check per ten imports or thereabouts. The Court has not seen real evidence that this was done; rather in its observations in this case the French Government has referred to the fact that spot checks have not been made of more than three out of four consignments. The second complaint related to the contention that the French authorities had denied the admission of Italian wine on the basis that documentary requirements were not being satisfied, pursuant to Commission Regulation 1153/75 of 30 April 1975, Council Regulation 355/79 of 5 February 1979 and Council Regulation 359/79 of 5 February 1979; whereas the Commission contended that the defects which were alleged by the French authorities were not such as in law to warrant the exclusion of Italian wines from France. Following a reasoned opinion from the Commission, the French Government informed the Commission that an agreement was reached in Pisa on 13 October 1981 between the French and Italian authorities to the effect that 1,068,000 hectolitres of wine, blocked because of alleged inadequate documentation, would be released within two months, i.e. by 15 December 1981. There were apparently at the same time difficulties on the ground. Press reports referred to damage being inflicted on consignments of Italian wine arriving in France. The Commission asked the French*176 authorities what they were doing about the limitation. The French Government in reply wanted to know what the Commission was doing to change the Community price mechanism which it was said failed to give French producers adequate protection. On 2 February 1982, the French authorities sent to the Commission a telex which reads in part as follows: 'Serious disquiet has developed in the wine-producing area of the Midi following the steep rise in imports of Italian wines during the month of January 1982 at prices substantially lower than those of the market. Consequently, on 30 January the government took the necessary measures to ensure that the competent administrative authorities will conduct more numerous analyses of quality ...' In support of its application for interim measures of relief, the Commission contends as follows: (i) that its main application stands a reasonable chance of succeeding, (ii) that the conduct of the French authorities is likely to cause serious and incontestable damage which will be irreparable in the absence of interim relief, and (iii) that the case calls for urgent action in view of the risk of irremediable loss.

The French Government contends, on the other hand, that the first of these arguments is erroneous or irrelevant, since it entails prejudging the main action. It is well established that the Court will not, in an application for interim measures of relief, prejudge the issues in the main action (I refer to Case 26/76R Metro-SB-GroSSMarkte v. E.C. Commission [FN1] and Case 91/76R Joelle de Lacroix v. European Court [FN2]). Those were cases against an institution of the Community but the principle must apply with equal force where a claim is made against a member-State. The fact, however, that the Court enquires as to whether the case put forward in the main action is prima facie sound, or arguable or even strongly arguable, and is so satisfied, does not mean that it has prejudged the ultimate decision. That the Court considers even that the case is strongly arguable at the stage of an application for interim measures is not incompatible with an ultimate finding that the case which is put forward fails. Such an interim conclusion does not in any way prejudge the merits of the issues in the main action. FN1 [1976] E.C.R. 1353. FN2 [1976] E.C.R. 1563. In my opinion, in this case, the Commission has established an arguable or prima facie case that Article 30 of the Treaty has been violated. That case is not destroyed for the purposes of the present proceedings by a reference to Article 36 of the Treaty. The Commission does not contend that there cannot be checks for the protection of health. What it says is that such checks cannot lawfully be such as to cause greater delay than is required for the protection*177 of health and that here the delays which result from the checks are greater than are reasonably justified. They spring essentially from a desire to control the rate of imports. No evidence has been produced to show that at the end of 1981 and in early 1982 there were real risks to health which justified the increasingly detailed enquiries; and the Court has been told that in 1980, the previous year, the quantity of rejected wine was 30,000 hectolitres out of a total of something like 4,500,000 hectolitres of wine. This claim, on the basis of the protection of health, may be made out at the final hearing: it has not, to my mind, been made out at the present time so as to undermine the prima facieclaim. Nor, in my opinion, has the claim that documentary requirements were unsatisfied dislodged the Commission's prima facie case. A principal point made was that the member-State of origin was not specified in the accompanying form. That, however is not specifically required on the particular form used (VA 1) in contradistinction to the form required to be used for importations from non-member countries (form VA 4). Even assuming, as I do, that the French Government is right that there were defects in the forms supplied (in that, for example, the necessary stamp did not appear clearly or at all in the relevant section of the form), the Commission can still validly argue that the irregularities alleged do not warrant the kind of delays which have occurred. Has the Commission shown that serious and irreparable damage will be caused

if interim relief is not granted? In my opinion it has. There is more here than an interference with the free movement of goods, serious though that is in the context of Community trade. The quantities involved are substantial and the effect of detention of the goods on exporters and importers as individuals is potentially capable of serious effects. I am not satisfied by the argument that some importers may leave their wine in bond for a long time. What is important here is the inhibition on their ability to take their wine, on arrival, or within a reasonably short time of its arrival in France. If it had been shown that financial loss, resulting from the delays, was recoverable under Community law or under French law, it might be doubted whether such loss was 'irreparable.' It has not been so shown. There is clearly a possible loss, either for exporter or for importer, of interest on capital, on profit if margins fall, even the chance of selling the wine at all. Such losses are capable of arising, are difficult to quantify and are not shown to be likely to be covered by a claim under either Community or French law. I consider that the loss which has been referred to is both serious and irreparable for the purposes of this kind of application. I am also satisfied that the possibility of loss calls for urgent action--the third point taken by the Commission. Stocks were released by the end of 1981; and in November and December for whatever reason, no new stocks were tendered for import, or*178 detained. Substantial quantities of wine are, however, once again blocked. If the Court had been told that there was any real possibility of an agreement to release the goods within the foreseeable future relief should perhaps be refused. It has not been so told. The indications appear to be to the contrary. There remains the other side of the coin. Has it been shown that the continuation of the present restrictions is justified to prevent damage in France which ought to be prevented? I am not aware of any substantial evidence of a risk to health which would be run if the wine were released after a reasonable period of time and after a reasonable number of checks in accordance with the earlier practice. There had been reference to the importation of wine which was contaminated because it was carried in a vehicle which had previously carried kerosene, and to other similar incidents. These are not, however, of recent origin, nor were they such as to prompt the French authorities to require more than one test in ten, as recently as November 1981. Moreover it has to be remembered that the Commission is not saying that there should be no spot checks. It is a question of fact and degree as to how many are justified. I do not consider that the delays which have occurred have been shown to be justified by the risk to health which is alleged. At the end of the day I am influenced by the fact that in 1980 Italian wine could go through the French customs on average in two weeks, allowing for the time needed to examine documents and to analyse the wine so far as was considered necessary. There may have been cases where initial tests prompted further inquiry so that more time was needed, but basically the Court is told that the average was fifteen days. I am not satisfied that new factors have been shown which justify the change in policy causing the delay which is now complained of.

On the face of it, at this stage, the only real reason which has been shown was a desire to keep out Italian wine for economic or perhaps political reasons. This is not a reason which can be justified under the Treaty. Whilst accepting, and indeed asserting, that France may at the hearing justify what was done, it seems to me that the Court ought, in this case, to exercise its jurisdiction to grant interim measures. Such measures must, however, be sufficiently precise so that all concerned know what is required. It is not right that vague criteria should be indicated as to how imports should be dealt with. Indications as to 'reasonable conduct' may lead only to debate; general suggestions, whether made expressly or implicitly, that improper reasons for delay should be avoided can only tend to prejudice the issue at the trial and inflame the situation meanwhile. I would, moreover accept that it is for the French authorities and not for the Court to decide what percentage of consignments should be tested and how the tests should be carried out. I would not on the evidence before the Court, make an order conditional on any percentage*179 number of tests of inspection. In my opinion where the documents are accepted by the French authorities to be in order, the Court can best assist the attainment of the objectives of the Treaty by indicating, in the context of all the facts in the case, the period within which the goods must be dealt with before they are cleared for release, including such tests as are thought to be necessary. I do not accept that the analyses which have to be made require a four-month delay or anything like that period. Nor is the suggestion of one month for all cases fully made out. On the other hand, it would be unreasonable not to take into account that there is a backlog and that some tests are justified. Accordingly, I consider that where the documents are in order, the matter ought to be dealt with (including the taking of any necessary analyses or tests) within a period of 21 days. I would include in that 21-day order the goods which are presently held. Where it is alleged that the documentation is defective, in other words, that the appropriate accompanying form had not been duly completed under Article 1 of Regulation 1153/75, different considerations arise. It is clearly not intended in the legislation that documentary requirements, particularly in relation to minor matters, should be used as an excuse for delays really based on other motives. On the other hand, clearly the Court should not order a member-State to admit goods where the documents do not comply with the regulations. Although I am not satisfied that Form VA 1 for inter-Community trade requires the country of origin to be stated, I do not think that the Court should order by interim measures that 'substantial' or 'effective' or ' important' matters should be sufficiently stated and that other requirements should be ignored before goods are admitted. It is implied in the requirements as to correct formalities in the documentation that an importer should know within a reasonable time if objection is taken so that he can deal with it. In the interim period pending the judgment of the Court in this case and balancing the interests of both member-States, I consider that such objection should be communicated to the importer or his agent within three days of the date of lodgment of the documents and that, if objection is taken, the documents which need to be regularised should in that period be supplied to the importer or

his agent. If there is a defect it can then be put right. If the importer fails to procure the correction of the defect he cannot complain of the subsequent delay. Accordingly I would make an order on the following lines: Until the judgment in this case or further order, the Republic of France shall admit consignments of wine which have been or which are hereafter presented for import from Italy into France within twenty-one days of such presentation, unless satisfied within that period that there exists reason to justify the prohibition or restriction of such importation in accordance with Commission Regulation*180 1153/75 of 30 April 1975 or Article 36 of the EEC Treaty: in the event that objection is taken that the accompanying document referred to in Article 1 of such regulation (or any other document) has not been duly completed, notification of such alleged defects shall be communicated to the importer or his agent within three days of the presentation of the document, and the defective document shall be supplied within the like period. The costs of this application should in my opinion be reserved until the final judgment in the case.

Second Opinion of the Advocate General (Sir Gordon Slynn) In these proceedings, which were instituted under Article 169 of the EEC Treaty, the Commission seeks a declaration that the French Government has failed to fulfil its obligations under Community rules applicable to the wine sector, and under Article 30 of the EEC Treaty, (i) by subjecting the customs clearance of Italian table wines to a delay considerably in excess of the time necessary for the performance of the requisite formalities and by making clearance subject to systematic analysis; (ii) by omitting to commence promptly the procedure for regularising the transport of a number of consignments of Italian wine as soon as the accompanying documents were presented for clearance at the frontier posts; (iii) by making the regularisation of transport of Italian wines held up at frontier posts subject in numerous cases to the transmission by the Italian authorities of the documents and papers upon which they are based; and (iv) by delaying clearance even in cases which have been regularised. The facts giving rise to the dispute are in outline as follows. For some years there has been a substantial trade in the importation to France of Italian table wines in bulk. According to figures presented to the Court by the French Government, during each of the first nine months of 1980 the level of imports was considerably lower than in the corresponding months of the previous year. From October 1980, however, the level of imports rose so as to exceed by a considerable margin those of the previous year. This situation continued broadly until July 1981. Between April 1980 and July 1981, the French authorities sent to their Italian counterparts a number of complaints about alleged breaches of the documentary requirements and the rules relating to hygiene for the transport of wine in bulk. The latter complaints were of a serious nature in that they involved claims that containers used to carry wine had also been used to carry other substances and that asbestos substances had been used in the filtering of the wine, practices which were either potentially harmful to consumers, or at the least

polluted the*181 wine. It is, however, right to add that these complaints were limited in number, referred to specific occasions rather then a general practice and were said by the Italian authorities to be contrary to Italian regulations. On 10 July 1981 there were two meetings of the Comite National du Commerce Communautaire des Vins et Spiritueux, a French trade association. According to the minutes of those meetings, presented to the Court by the Commission, there was a discussion at the first meeting of the problem caused in France by the importation in excessive quantities of Italian wines having a strength of less than 13 <<degrees>> proof; it was proposed that members would practise a policy of self-restraint until the end of August 1980 on the understanding that the French public authorities would give a formal guarantee, before 15 July 1980, that imports of Italian wines would be subjected to a delay of four months in all cases in which their strength was below 13 <<degrees>> proof and in all other cases when they were imported by traders not belonging to the association. On 20 July 1981 the Comite adopted a resolution recording a meeting between its president and the French Minister of Agriculture, following which the Comite proposed a monthly limit of about 425,000 hectolitres of Italian red and rose wine, having a strength in excess of 13 <<degrees>> proof and indicated that the Comite was prepared to reduce by half the deposit of permits for wine to be taken out of customs charge during the month of August; in return the Comite called upon the French public authorities to take steps to ensure that the policy of self-restraint should not be undermined by traders not belonging to that association. In August 1981 there were demonstrations involving physical interference with the wine and the vessels which carried it in the wine-producing areas of the South of France against both the price levels and the quantities of imports of Italian wine. From the middle of that month the French authorities began to subject all bulk imports of wine from Italy to systematic oenological analysis (which entailed substantial delays) and to refuse customs clearance to quantities of Italian wine on the ground of documentary irregularities, in particular, the omission of the word 'Italy' from the accompanying Form VA 1, though, in addition complaints were made that the official stamp was not present or not legible on the document accompanying the wine and that e.g. the alcoholic strength and the name of the carrier were not stated in that document. On 14 August 1981, for example, the French authorities sent a telex to their Italian counterparts requiring the latter to send information about the origin of some 21,167 hectolitres of wine, described in 35 forms. On 25 and 27 August 1981 the Italian authorities replied by telex, sending information about that wine including confirmation of its Italian origin. The French authorities, however, responded on 27 August 1981, asking for the accompanying documents. On 26 August, 2 and*182 11 September 1981, the French authorities sent letters to their Italian counterparts seeking detailed information about a further 2,237 forms relating to 1,068,000 hectolitres of wine and asking for the documents which had accompanied the wine in carriage from Italy to be sent to them. It is clear that the Italian authorities were unable to supply at short notice all the information required of them. In the meantime the wine was detained at the frontier. On 7 September 1981 the Commission addressed to the French Republic a letter

expressing the view that the policy of the French authorities, in subjecting imports to systematic analysis, entailed a breach of its obligations under Council Regulation 337/79 of 5 February 1979 on the Common Organisation of the Market in Wine. On 9 September 1981 the Commission addressed to the French Republic a further letter expressing the view that its practice on the verification of documents accompanying bulk imports of wine from Italy entailed a breach of Article 30 of the EEC Treaty and of Community legislation including Council Regulation 355/79 of 5 February 1979, laying down General Rules on the Description and Presentation of Wines and Grape Musts. On the same day, the Italian Minister for Agriculture replied to the enquiries contained in the letters from the French authorities dated 26 August and 2 September 1981, but expressed his astonishment at the fact that the enquiries related to the greater part of Italy's bulk exports of wine to France over a period of several months, and that most of the wine remained detained at the frontier, apart from some which had been released and where the questions raised did not seem to be useful. By letters dated 21 and 24 September 1981, France replied to the Commission's communications of 7 and 9 September respectively, maintaining in each case that the maintenance of French policy was justified. It contended that the errors or omissions in the documents VA 1 were substantial, that they gave rise to reasonable cause for suspecting that the wine did not conform to the wine provisions laid down in the Community so that they were entitled to take the steps provided for in Article 3 of Regulation 359/79 and that the Italian authorities had not replied to some of the questions raised for over six months. On 2 October 1981 the Commission gave a reasoned Opinion, concluding that the French authorities' practice with respect to documentary requirements entailed a breach of Community law and on 12 October 1981 the Commission gave a reasoned Opinion to the same effect, with respect to the systematic analysis of imports. On 13 October 1981 the French and Italian authorities reached an agreement at Pisa providing for the release by 15 December 1981 of 1,068,000 hectolitres of Italian wine detained at the frontier. On 20 October 1981 the French Republic informed the Commission that it had decided to subject imports of Italian wine to spot checks later said to be on a one-in-ten basis, rather than overall analysis. On the*183 same date the Comite National du Commerce Communautaire des Vins et Spiritueux sent a circular to its members stating that the French authorities had decided to release the wine detained at the border at the rate of 120,000 hectolitres per week between 19 October and 13 December 1981 and in return the Comite had decided to ban all bulk imports of Italian wine from 25 October until either 30 November or 7 December, depending upon the port of importation. The French Republic says that there was no agreement to this effect between itself and the Comite. There followed a period of relative calm. In November 1981, when there was to have been a ban on imports by members of the Comite National, the level of Italian wine actually released into France was in fact much lower than at any

other time for which figures have been supplied to the Court. Thereafter, the level of imports rose, and by January 1982 they approach the highest level since May 1979. On 2 February 1982 the French authorities reported to the Commission that serious disquiet had developed in the wine-producing area of the south of France, in the face of the rise in Italian imports in January, at prices below those prevailing in the market. Consequently the French Government had decided to conduct more numerous analyses of the quality of wine imported from Italy. The Court has now been informed that the French authorities subjected about three out of four Italian wine imports in bulk to analysis in that period. In a second telex of the same date, to the Vice-President of the Commission, the French authorities referred to the renewed risks of violent demonstrations and stressed again the low prices of Italian wine. Such were the circumstances in which the Commission, on 5 February 1982, initiated the present proceedings. On 4 March 1982 the Court made an order for interim relief; which of course does not prejudge the ultimate decision on the merits. In accordance with Article 36 of the EEC Treaty, the French Government retains the power to impose restrictions on the import of wines from Italy, by means of oenological tests or otherwise, when such restrictions are justified in order to protect human life and when they do not constitute a means of arbitrary discrimination or a disguised restriction on trade. As the Court observed in Case 35/76, Simmenthal v. Italian Minister for Finance [FN3] however, Article 36 is not designed to reserve the stated matters to the exclusive jurisdiction of member-States but permits national laws to derogate from the principle of the free movement of goods to the extent to which such derogation is and continues to be justified for the attainment of the objectives referred to therein. Thus, national authorities do not have an unqualified power of appreciation to determine whether a particular restriction is justified or constitutes a means of arbitrary discrimination. Rather, the law of the Communities,*184 as interpreted by the Court, determines whether a particular restriction is capable of being justified or is discriminatory. The Court has held that a restriction is not justified under Article 36 if it is not 'necessary for the effective protection of health and life of humans,'in particular if 'the health and life of humans can as effectively [be] protected by measures which do not restrict intra-Community trade as such': Case 104/75, De Peijper [FN4] and Case 251/78, Denkavit [FN5]. It has, furthermore, envisaged the possibility that even when occasional inspections of an imported product are permitted, in the interests of health, such inspections may be incompatible with Article 36 if they are 'increased to such an extent as to constitute a disguised restriction on trade between member-States' : Case 35/76, Simmenthal. [FN6] FN3 [1976] E.C.R. 1871at 1886, [1977] 2 C.M.L.R. 1 at 15. FN4 [1976] E.C.R. 613 at 636, [1976] 2 C.M.L.R. 271at 304. FN5 [1979] E.C.R. 3369 at 3391, [1980] 3 C.M.L.R. 513at 539.

FN6 At p.1888 (E.C.R.) at p.16 (C.M.L.R.) . The French authorities cannot, as I see it, on the evidence before the Court, contend in the present case that there was at the material time a widespread and serious risk to human health arising from imports of Italian wine, and Counsel for the French Government accepted expressly at the oral hearing that his and the Italian government agreed that transport of Italian wines in polluted containers occurred only exceptionally in the instances to which I have referred. The arguments that what was done was in the interest of consumer health and protection are not convincing when it is seen that overall analysis was replaced by one in ten analysis without any ill-effects being suggested. The sudden increase in analysis to three out of four loads is not shown in any way to be related to incidents of defective wine. Nor is it suggested that the sampling of not more than 15 per cent. of the loads presented at the frontier, ordered by the Court's interim measures, led to any complaints of defective wine. Moreover, it was established at the hearing on the application for interim relief that wine produced in France is not subject to systematic checking of its oenological properties once it has been placed in vehicles for transport. There are spot checks upon transporters, designed to guard against the conveyance of the wine in polluted containers; but such checks are not conducted in each and every case, and the vehicle on which a check is made is not detained, together with its cargo, pending the analysis of the sample. Moreover, although substantial checks are carried out for quality on French wine, they are very much less proportionally than those carried out in respect of Italian wines during the periods of which complaint is made. It follows that producers of Italian wines were placed at a disadvantage relative to their French competitors, when the former were liable to suffer the delays occasioned by the systematic universal or even very extensive examination of their*185 produce. The fact that in 1979, loads subject to sample analysis could be cleared in 14 days, whereas, under the measures taken, wine of under 13 << degrees>> strength was subject to 4 months' delay, and wine over 13 <<degrees>> strength was subject to 1 month's delay speaks for itself. Such discrimination is precluded by the second sentence of Article 36 of the EEC Treaty. The percentage of checks whether of all loads, or of three loads in four, is disproportionate to the steps required by the fact that on a relatively small number of occasions the containers, or the process of filtering adopted, had been found to be defective. It was contended on behalf of the French Government that it was entitled to detain or exclude substantial quantities of Italian wine by reason of breaches of the documentary requirements imposed by Community law. In particular, the French Government relied on the importers' failure to specify on the accompanying forms the member-State of origin of the wine. The form of accompanying documents for wine products transported between member-States is prescribed by Commission Regulation 1153/75 of 30 April 1975, as amended by Commission regulation 2617/77 of 28 November 1977. Form VA 1, which is contained in the annex to the 1975 Regulation, contains a

box (no. 11) headed 'Description according to the relevant provisions.' It is not readily apparent from that heading that what is required is the name of the member-State of origin, particularly as there is another box (no. 15) entitled 'Wine-growing zone.' It is, therefore, perhaps not surprising that in very many of the VA 1 documents supplied to the Court the Italian exporter or his agent had written in Box 11 some such phrase as 'Vino rosato da Tavola.' Nor, equally, is it surprising that in the case of exports of French wine to Italy, Box 11 was very often completed by some generic description of the wine or by the name of the region in which it was produced without the country of origin being stated. The fact that the wine-growing zone may cover regions in more then one member-State is not self-evident. It is, however, clear, and is accepted on all sides, that the 'relevant provisions' mentioned in the heading to box 11 are the provisions of regulation 355/79, which provides in Article 9(1)(c)(i) that the description of the official documents (including the accompanying documents by virtue of Article 1(2)(b) of the same regulation) in respect of wine consigned from one member-State to another shall include the name of the member-State in whose territory the grapes were harvested and made into wine. Accordingly, the word 'Italy' ought to have appeared in Box no. 11 on the VA 1 forms accompanying wine exported from Italy to France. It does not, in my opinion, follow that the French authorities were entitled in the circumstances of this case to rely upon failures to complete Box no. 11, so as to detain large quantities of Italian wine at the frontier. Nor was it justified in the circumstances to ask for all*186 the supporting documents which were required by the French authorities. It is plain from the copies of form VA 1 provided to the Court that in the period immediately preceding the events giving rise to this litigation, as well as in earlier years, it was very common for the member-State of origin to be omitted from Box no. 11, both in the case of exports from France into Italy and from Italy into France and that this practice was condoned by the authorities at the ports of entry in both member-States. No doubt in practice the customs authorities were content to look at the form as a whole, and to accept pragmatically even though not so as to satisfy a strict burden of proof, that, if the form was written in the Italian language, gave the name of an Italian consignor and carrier, stated the wine-growing zone which included Italy and the competent agency as being the Italian Minister of Agriculture in Rome, and the customs office of departure as being in an Italian town, and there were no indications to the contrary, it was wine made in Italy, and vice versa for France. There was no real evidence anywhere to suggest that any of the wine was not of Italian origin so as to give rise to reasonable suspicion that it was not. A member-State wishing to alter this state of affairs could have made use of the machinery established by Regulation 337/79, which provides in Article 65 that member-States and the Commission shall communicate to each other the information necessary for implimenting that regulation and establishes in Article 66 a Management Committee for Wine, competent to examine questions raised at the request of the representative of a member-State. These provisions are supplemented by Council Regulation 359/79, of 5 February 1979, on direct co-operation between the bodies designated by member-States, which provides in

Article 8 that representatives of the member-States shall meet at regular intervals within the Management Committee for Wine to discuss any problem relating to the uniform supervision of Community provisions in the wine sector. The purpose of this machinery is to ensure the uniform application of Community provisions in the wine sector, and thereby prevent dislocation in trade, such as was the predictable consequence of the action taken by the French authorities. More easily, if the French customs authorities wished to change what seems to have been a long-standing practice, they should have given warning to the Italian authorities that, after a period sufficient to put exporters on notice, they would insist upon strict compliance with the requirements of the regulations, and that otherwise consignments of wine in bulk would not be released into France. Moreover, although the Italian authorities were strictly wrong in their argument that if the actual alcoholic strength (Box 12) is completed, the total alcoholic strength density (Box 13) is the same for dry wines so that to complete Box 13 is an act of supererogation, it is understandable why Box 13 was not completed. Equally,*187 although both the copy and the original should bear the official stamp, there really is no ground for suspicion if the Italian authorities can briefly confirm that the original is properly stamped. The requests put by the French to the Italian authorities for information about consignments of wine arriving in France are not themselves in my view to be justified in this case by reference to Article 3 of Regulation 359/79, nor by reference to Commission Regulation 1714/81 of 26 June 1981. The first of those regulations provides for direct co-operation between national authorities in certain cases, notably when there is 'reasonable cause for suspecting that the product does not conform to the wine provisions' or when documents or entries in records 'are open to doubt.' The second provides in particular for speedy means of communication between national authorities in order to prevent or uncover infringements and to penalise fraud. The French authorities sought to rely on these two regulations in a telex dated 14 August 1981, in which they requested the Italian authorities to supply all the information necessary to determine the origin of wine that arrived at the port of Sete on four vessels on the previous day. Neither that telex, nor any representation made to the Court, indicates that there existed reasonable cause for suspecting that the product failed to comply with Community provisions relating to wine, or that the accompanying documents were 'open to doubt'or that there was reason to suspect an infringement or fraud. The telex does not state that the exporter had failed to complete properly Box 11 of Form VA 1; but if that were so, that failure would, in my view, not warrant the conclusion that the documents or records were open to doubt, in view of the particular circumstances of this case, including the French and Italian authorities' history of condoning identical failures in the past. A member-State which seeks to use the machinery created by Regulation 359/79 is, it seems to me, under an obligation to act with reasonable promptitude. It is not entitled to detain wine at the port of arrival for a protracted period before initiating enquiries in accordance with Article 3 of that regulation. In the present case, however, it is established that the requests sent by the French to the Italian authorities, in August and September 1981, for verification of more than 2,200

VA 1 forms, related to wine which had arrived at French ports over a period of several months. Some, so it appears, had arrived in January; other consignments in May, June and July. Counsel for the French Government contended that some of these requests for information, although made ex post facto, 'quite possibly' related to consignments of wine which had been, at least in part, cleared by the French customs. Nevertheless, it is clear that there were also cases when the wine was detained at the port for substantial periods before the making of any request for information. Counsel for the French Government did not seriously deny that this*188 was the case. The replies of the Italian authorities to the Court's questions establish it. Moreover, although in some cases the Italian authorities took time to reply, a complaint can hardly be made of this in view of the very large number of queries which were sent through about bulk consignments of wine. Equally, once verification of the documents has been completed, and they are found to be in good order, the authorities of the State of importation are under a duty to clear the wine through the customs promptly. In this case, however, there were instances when the wine was not cleared when this was established. For example, by a telex dated 20 August 1981 the French authorities sought specific information about certain consignments of wine. The Italian authorities replied, giving that information, by telexes dated 25 and 27 August. The wine in question was not, however, released until a date in October, after the agreement reached at Pisa. Finally, it is to be emphasised that Regulation 359/79, which sets out the rules governing co-operation between national authorities to verify compliance with Community and national provisions in the wine sector, is based on Article 64(2) of Regulation 337/79, which authorises the Council to adopt 'measures to ensure uniform application of Community provisions.' The provisions contained in Regulation 359/79 are, therefore, designed to be used for that specific purpose and not for the purpose of controlling the rate of importation of wine, even when a member-State considers that the rate is excessive. The fact that in the months of August, September and October 1981 Italian wine transported in bulk was cleared through the French customs at a rate corresponding to that proposed by the Comite National in its resolution of 20 July 1981 cannot realistically be ignored. As counsel for the Commission demonstrated at the oral hearing, the quantities cleared in those months corresponded, more or less, with the accumulated backlog. Nor can the fact that in its telex to the Commission dated 2 February 1982 the French Government stated that the measures which it had then taken were the consequence of the disquiet that had arisen in the South following the steep rise in imports of Italian wines in January be ignored. Those measures had the effect, according to figures given by the French Government, of reducing the volume of Italian wine cleared through the French customs, again, approximately to the level proposed by the Comite National. Accordingly, although I would accept that there were substantial grounds for the containers of certain limited consignments to be investigated in the first half of 1981, and although the exporters did not strictly comply with the regulations, I do not consider that the French authorities have made out their case that these justify

the steps which they took or that, despite delays in replying to some of the queries they posed, the Italian authorities have failed to co-operate, or that there was real evidence of fraud or suspicion that the wine was not of the quality*189 or type or origin which it was supposed to be. The co-incidence of the French authorities' problems with wine growers in the South and the terms of the telexes of 2 February 1982, inter alia, seem to me to raise the inescapable inference that, however understandably, the French authorities were delaying or blocking substantial quantities of Italian wine in order to deal with these problems. The steps they took were disproportionate so far as the Treaty was concerned and amounted to a breach of Article 30. The difficulties faced by wine-producers in the South in economic circumstances such as existed in the early months of 1981 and in January 1982 have to be recognised, yet as the French Government itself acknowledged, in its telex to the Vice-President of the Commission dated 2 February 1982, the solution of those problems must be reached at the Community level, given the existence of a common organisation of the market in wine. For these reasons I am of the opinion that the Commission is entitled to the declaration that it has sought and the French Government should be ordered to pay the costs of the proceedings. JUDGMENT [1] By application lodged at the Court Registry on 4 February 1982, the Commission of the European Communities brought an action under Article 169of the EEC Treaty for a declaration that the French Republic had failed to fulfil its obligations under the Community rules applicable to the wine sector and under Article 30 of the EEC Treaty by subjecting customs clearance of Italian table wines to a delay considerably in excess of the time necessary for the performance of the permissible substantive formalities and by making clearance subject to a systematic analysis; by omitting to commence promptly the procedure for regularisation of transport of a number of consignments of Italian wine as soon as the accompanying documents have been presented for clearance at its frontier posts; by making the regularisation of transport of Italian wines held up at frontier posts subject in numerous cases to the transmission by the Italian authorities of the documents and papers upon which their certificates are based; by delaying clearance even in cases which have been regularised. [2] It is the contention of the Commission, supported by the Italian Government as intervener, that because of those practices considerable delays occurred in releasing for consumption the table wine originating in Italy and imported in bulk into France as from August 1981 and again as from January 1982 and that substantial quantities of Italian table wine, at times in excess of one million hectolitres, were held up for several weeks and even for several months at various frontier posts in France. The practices in question*190 are said to have been adopted by the French authorities in order to impede the imports in bulk of table wine originating in Italy and to reduce the volume of such imports which

was considered to be too high in relation to the needs of the market. The measures in question were therefore equivalent to quantitative restrictions on imports prohibited by Article 30of the EEC Treaty. [3] The French Government disagrees that the practices in dispute were intended to reduce the volume of imports and contends that their purpose was to ensure complicance with the Community rules in the wine sector and to protect consumers and the health and life of humans from fraudulent operations and prohibited and unhygienic practices. 1. The background to and development of the practices in dispute [4] Before examining the practices in dispute in greater detail it is necessary to recall the circumstance which surrounded their adoption. [5] For many years no particular difficulties arose with regard to the formalities to be completed prior to the release for consumption of wines of Italian origin imported into France. [6] During the period between April 1980 and the beginning of 1981 the French authorities sent a number of communications to the Italian authorities with regard to irregularities or breaches which they had discovered in relation to the transportation of Italian wines and in particular with regard to the use of inappropriate means of transport resulting in the pollution of the wine being transported. The question whether the Italian authorities reacted to those communications in an appropriate manner and in good time is the subject of dispute between the parties. [7] In the summer of 1981 the wine market in France was characterised by a large increase in imports of table wine of Italian origin. That increase had the effect of reducing prices on that market. Violent demonstrations took place among the wine growers in the Midi in France by way of protest against that situation. [8] It is clear from documents produced to the Court by the Commission that during July 1981 the Comite National du Commerce Communautaire des Vins et Spiritueux (The National Committee for Community Trade in Wines and Spirits), continuing a practice which had already been followed for several years, proposed to limit, by means of self-restraint agreements, the imports of table wines from Italy to a volume which it considered to be acceptable and which was assessed at 425,000 hectolitres per month. The question whether and if so to what extent the French Minister of Agriculture took part in and gave his support to such proposals remains the subject of dispute between the parties. [9] From the middle of August 1981 the French authorities intensified the measures they took to check the imports of Italian table*191 wines. On the one hand, they refused to accept a large number of the accompanying documents which related to the transportation of the wines in question and, on the other hand, they systematically subjected the wine to health and oenological checks by means of analysis before releasing the consignments in question for consumption. The consequence of those practices was that considerable quantities of table wines were held up at the frontier.

[10] In view of those practices the Commission commenced two sets of proceedings for failure by a State to fulfil its obligations under the EEC Treaty, in the course of which it sent two reasoned opinions to the French Government. [11] In the first reasoned opinion of 2 October 1981 the Commission claimed that the French Republic had failed to fulfil its obligations under the Community rules applicable to the wine sector and under Article 30of the Treaty by having failed to initiate speedily the process of regularising carriage operations relating to a certain number of consignments by subjecting, in many cases, regularisation to the transmission by the Italian authorities of the documents and other evidence on which they based their certificates, and by delaying customs clearance even in those cases where the operations had been regularised. [12] In the second reasoned opinion of 9 October 1981 the Commission claimed that subjecting Italian table wines to customs clearance operations of a far greater duration than the time needed for the completion of permissible substantive operations and making clearance subject to a systematic analysis constituted a measure having an effect equivalent to a quantitative restriction on imports, prohibited by Article 30 of the EEC Treaty, and a failure by the French Republic to fulfil its obligations under Council Regulation 337/79. [13] The consignments which had been held up were only released gradually, up to the end of the year, by the French authorities under an arrangement made at Pisa on 13 October 1981 with the Italian Government. That arrangement provided, amongst other things, for the release, within two months, of the detained wine and for an approach by the two governments concerned to the Commission for the release to be accompanied by Community aids for storage contracts. Parallel to that release, according to the documents produced by the Commission, the Members of the National Committee for Community trade in Wines and Spirits applied a complete standstill to the loading of wine in Italy under a self-restraint agreement. [14] At the same time the French Government informed the Commission with regard to the analyses, which had until that time been carried out systematically on all consignments of imported wine, that the French authorities would henceforth be satisfied with random analyses carried out on one in ten consignments. *192 [15] During January 1982 the quantity of imported table wine of Italian origin released for consumption reached a high level once more, that is to say more than 875,507 hectolitres. At the end of January further violent demonstrations against those imports took place among wine growers in the Midi region of France. [16] At the beginning of February the French authorities once more intensified their checks of imported table wine of Italian origin, refusing to accept accompanying documents on the ground of irregularities and carrying out analyses on three consignments out of four. A telex message on the subject of those intensified checks sent by the French Government to the Commission on 2 February 1982 contained, inter alia, the following passage: 'Great anxiety has arisen in wine-growing circles in the Midi as a result of the great increase in imports of wine originating in Italy during January 1982 at prices

appreciably below the market price. Consequently the Government has made the necessary arrangements with effect from 30 January in order that more numerous qualitative analyses should be carried out by the competent administrative authorities prior to the wine's being put on the market. Contrary to what has been said by certain organs of the press imports have not been stopped but slowed down with a view to a return to a normal monthly rate.' Considerable quantities of table wine of Italian origin were once again held up at the frontier as a result of those intensified control measures. [17] On 4 March 1982 the Court, by way of an interlocutory decision on an application made by the Commission, ordered as follows: 1. 'Pending the judgment in the main action the French Republic is required to observe the limitations hereinafter specified regarding the practices relating to the release to the market in France of wines imported from Italy; (a) Apart from special cases in which specific evidence may justify a suspicion of fraud the frequency of analyses before the release to the market of the consignments in question must not exceed fifteen per cent. of the consignments presented at the frontier; (b) The duration of analyses made before the release to the market of the consignments in question must not exceed twenty-one days from presentation of the consignments and the documents at the frontier unless there are special grounds which justify specific analyses in exceptional cases; (c) The release to the market of consignments of wine may not be refused on grounds of irregularity of the accompanying documents unless the irregularities are substantial. (d) When substantial irregularities are found by the French authorities they must without delay inform the Italian authorities of such irregularities and supply them with the necessary documents. Where the accompanying document in respect of any consignment has been regularised by the Italian authorities that consignment must immediately be released to the market. 2. When the release to the market of quantities of wine from Italy in excess of 50,000 hectolitres is refused for more than twenty-one days on grounds either of analyses or irregularities in accompanying documents,*193 the French authorities must inform the Commission of the reasons for such refusal.' [18] After that order no particular difficulties were experienced in relation to the importation of Italian wine into France. 2. The subject-matter of the proceedings relating to a failure of State to fulfil an obligation [19] By the four complaints formulated in its application, the Commission essentially seeks to obtain a finding that the French authorities limited the quantities of table wine of Italian origin imported in bulk by delaying the release on to the market of such consignments by the two sets of practices which were the subject of the reasoned opinions of 2 and 9 October 1981, that is to say the rejection of the accompanying documents covering the carriage of Italian wine, on the one hand, and the subjection of the imported wines to inspection in the

form of systematic analyses on the other hand. [20] It must be observed that part of the delays complained of, that is to say the gradual and decelerating release of the quantities held up at the frontier as a result of the arrangement arrived at by the French and Italian Governments on 13 October 1981, the resumption of the contested practices at the beginning of February and the continuation of them until March 1982, took place after the reasoned opinions were given. Nevertheless it is not disputed that these are practices which had already been condemned in the reasoned opinions and which were continued subsequently or are practices which occurred after the opinions had been given but were of the same kind as those to which the opinions referred and constituted the same conduct. 3. The refusal to accept the accompanying documents [21] It is appropriate to examine first the delays arising from the practices of the French authorities in relation to the accompanying documents and the procedure for their regularisation. [22] The Commission, supported by the Italian Government, claims that the accompanying documents which the French authorities refused to accept as from the middle of August 1981 did not in fact contain substantial irregularities which justified such a refusal under the relevant Community rules. [23] The French Government asserts that the documents were irregular and that it was therefore authorised to refuse them. Moreover the onus is on the Commission to prove that the documents which were rejected were in order and the Commission had not discharged that burden. [24] According to Commission Regulation (EEC) 1153/75 of 30 April 1975 prescribing the form of the accompanying documents for wine products and specifying the obligations of wine producers and*194 traders other than retailers all carriage of wine within the Community requires an accompanying wine document of the type annexed to that regulation. In the case of Community products, with the exception of quality wines psr and wines fortified for distillation, the relevant document is form VA 1. The accompanying documents and any requisite copies thereof are to be completed by the competent agency or agencies of the member-State in which carriage begins or by the authority empowered for that purpose, according to the information supplied by and on the responsibility of the consignor and in the manner laid down by the strict rules of the regulation. [25] It follows from those rules that the French authorities were entitled to check that all carriage in bulk of wine of Italian origin presented at the frontier was in fact accompanied by a VA 1 form which had been properly completed and issued by the competent Italian authorities. [26] Nevertheless the provisions cited above must be interpreted in the light of the second recital in the preamble to Regulation 1153/75 according to which the obligation to have an accompanying document should not amount to an impediment to trade or to the marketing of products in the wine sector. It follows from that recital that only errors or irregularities in a document which are of a

substantial nature and which are consequently capable of rendering it useless for the fulfilment of its function, as an official document, of providing essential information about the nature of the product, may justify objections to a document and, consequently, obstacles to imports. [27] It is clear from the file that the irregularities relied upon by the French authorities varied in nature and importance from case to case. Thus, in contravention of Regulation 1153/75, in certain cases the documents do not seem to have been completed in typescript or in block capitals, although they were legible, or to have been completed fully, although containing indirectly all the required information. Such irregularities cannot, however, be regarded as substantial and cannot justify objections to a document. [28] In other cases, however, as was admitted by the Commission and the Italian Government at the hearing, the lack of the required information in a number of VA 1 forms was such as to render the documents useless for the fulfilment of their function as described above. Thus in certain cases the document failed to state the alcoholic strength or to indicate the Italian authority which had issued it, in others that statement was illegible and in yet others the document did not give any information, even indirectly, enabling the country of origin to be identified. Such irregularities must be regarded as substantial and justify objections to a document. [29] In the present case it has not been possible to establish whether or not all the documents in question were irregular and whether or not those irregularities were of a substantial nature since*195 both the Commission and the French Government have stated that they are not in a position to produce the documents. It is nevertheless possible to accept that at least some of the documents contained irregularities of such a nature as to make it possible, in principle, to raise objections to them. [30] Article 12(2) of Regulation 1153/75 provides that 'if products are found to be moving without an accompanying document or without the proper accompanying document, the competent agency of the member-State in which such finding is made or any other authority responsible for verification shall take the measures necessary to regularise and if appropriate penalise such irregular carriage operation.' It follows from that provision that the authorities finding irregularities must in the first place take steps to regularise them if those authorities are not to impede trade unjustifiably. [31] Such regularisation must be undertaken in pursuance of Council Regulation (EEC) 359/79 of 5 February 1979 on direct cooperation between the bodies designated by member-States to verify compliance with Community and national provisions in the wine sector. Article 4 of that regulation provides that, in cases of doubt, the competent body is to request the competent body of the member-State of origin to check the documents and entries in the records. According to Article 3 the competent body may request any relevant information and in particular the forwarding of documents and other evidence where there is 'reasonable cause for suspecting' that the product does not conform to the wine provisions. [32] A reasonable cause for suspicion, in the sense of Article 3, cited above,

which justifies the making of a request for detailed investigations and for the forwarding of documentary evidence, must be based on concrete evidence relating to a specific carriage operation. Contrary to the argument put forward by the French Government, there are no grounds for entertaining a general suspicion with regard to all imports of Italian wine on the basis of a few irregularities or breaches which had been found in particular cases in the past. In no case may mere formal errors in the accompanying documents justify a reasonable cause for suspicion. In the absence of a reasonable cause for suspicion in a specific case the French authorities were therefore entitled to require nothing more than simple checks and confirmations on the part of the Italian authorities for the purpose of regularising the carriage operation in question. [33] It is clear from various communications by which the French Government addressed requests to the Italian authorities in relation to irregular VA 1 forms, that the purpose of requests was systematically to obtain, without alleging any reasonable cause for suspicion, detailed investigations and in particular to obtain the accompanying documents covering the goods during their preliminary carriage in Italy between the place of production and the warehouses from which they were sent to France, since the French*196 authorities refused to recognise as adequate simple confirmation by telex from the Italian authorities, after verification, that the VA 1 documents were in order. [34] It follows that the French authorities laid down requirements for the purposes of regularising irregular documents, which were not covered by the relevant Community rules. [35] In addition, the Italian Government contended that in accordance with a practice established between the French and Italian authorities, which had existed for several years, irregularities such as those found as from the middle of August 1981 in the VA 1 forms, which occurred frequently, were accepted by the authorities of both member-States. The French authorities suddenly and without notice changed that practice relating to the verification of documents. In support of that contention the Italian Government produced to the Court a number of VA 1 forms which had been completed prior to the period at issue, some by the French authorities and some by the Italian authorities, and which, despite irregularities of the type referred to above, were accepted by the authorities of both countries without any objection being taken to them. The French Government has not presented any argument putting in doubt the existence of such a practice. [36] In order to avoid obstacles to trade the duty of co-operation between member-States which is inherent in the Community system requires that in such a case of a change in practice notice of the new practice must be given to the authorities of the member-States concerned so that it is not made impossible for that State to make preparations for the new practice and to take it into account in completing the VA 1 documents. [37] Moreover, the procedure laid down in Article 8 of Regulation 359/79, cited above, according to which representatives of the member-States are to meet at regular intervals within the Management Committee for Wine in order to discuss

the problems relating to the uniform supervision of Community provisions in the wine sector, should have been used in the present case. That procedure is intended to avoid the difficulties which may arise from unilateral measures or the absence of uniformity in the application of the Community rules and to avoid the obstacles to the free movement of goods resulting therefrom. [38] It follows that, by suddenly altering the established practice, the French authorities committed a breach of an obligation imposed on them by Community law. [39] The Commission and the Italian Government also claimed that the requests sent by the French authorities to the Italian authorities with regard to irregularities in VA 1 forms related in part to operations which had taken place several months or several weeks previously. *197 [40] When an irregularity in accompanying documents is found Article 12(2) of Regulation 1153/75 imposes an obligation on the national authorities in question to adopt without delay the measures needed to regularise any irregular carriage operation so as to avoid unjustified delays in the release of the wine in question for consumption. [41] In the present case the French Government has not disputed the detailed allegations made by the Italian government in relation to the substantial delays in the requests addressed to the Italian authorities in certain cases. It should therefore be accepted that, again in regard to this aspect, the practice of the French authorities in relation to the checking of the accompanying documents did not conform in all cases to the Community rules. [42] Finally, the Commission and the Italian Government have contended that the French authorities did not release for consumption the quantities of wine which were held up even in cases which had been regularised. [43] In that connection it should be noted that the release of the consignments which had been held up as from August 1981 was carried out, regardless of any regularisation of the documents, in accordance with the procedures under the political arrangement made at Pisa on 13 October 1981 between the French and Italian Governments. [44] Thus in that respect, too, the French authorities have also failed to fulfil the obligation imposed on them by the Community rules on wine to regularise the carriage operations in respect of wines accompanied by irregular documents. [45] It follows from the above considerations that the practices of the French authorities in relation to the verification of documents were contrary to the rules concerning wine. They also constitute an infringement of Article 30 of the EEC Treaty which prohibits quantitative restrictions on imports and all measures having equivalent effect. 4. OEenological checks by means of systematic analyses [46] In the second place it is necessary to examine the delays in the release for consumption caused by the practice of the French authorities of systematically subjecting consignments of Italian wine to analyses prior to such release. [47] According to the Commission and the Italian Government the French

authorities carried out systematic analyses prior to release for consumption in order to delay the release and to limit the volume of imports. They contend that in any event it is not necessary to hold up considerable quantities of wine at the frontiers for the purpose of oenological checks and that the duration of the analyses, which covered several weeks, exceeded by far the acceptable period of a few days. *198 [48] The French Government maintains that the purpose of the analyses was to ensure compliance with the Community regulations on wine, to protect consumers and the health and life of humans. The delay caused by that process was inherent in the nature of such analyses. [49] It is an established fact that the French authorities systematically subjected table wine imported in bulk from Italy to analyses and did so, during the first period in question, in the case of all consignments of Italian wine and, after the beginning of February 1982, in the case of three consignments out of four, that they made the release for consumption of those consignments dependent on the results of the analyses and that those results were not known for several weeks because of the delays involved in the procedure which was employed. [50] In that connection it must be stated first that such oenological checks are likely to make importation more difficult or more costly as a result in particular of the delays and the additional transport costs which the importer may incur thereby. It follows that such operations--whether carried out systematically or not--constitute measures having an effect equivalent to quantitative restrictions within the meaning of Article 30of the EEC Treaty, which are prohibited by that provision, subject to the exceptions laid down by Community law and in particular by Article 36 of the Treaty. [51] By virtue of Article 36 of the Treaty, Article 30 does not preclude restrictions on imports justified in particular on grounds of the protection of health and life of humans. Nevertheless, since such restrictions derogate from the fundamental principle of the free movement of goods, they are in comformity with the Treaty only in so far as they are necessary for the attainment of those very objectives and do not constitute either a means of arbitrary discrimination or a disguised restriction of trade between member-States. [52] It cannot be excluded that in certain cases health checks by means of analyses may be an appropriate means of preventing the dangers resulting, for example, from prohibited oenological practices or the use of unhygienic means of transport and may ensure the protection of health and life of humans. [53] It is appropriate to add that various provisions of the Community rules on wine, such as Article 64 of Council Regulation (EEC) 337/79 of 5 February 1979 on the common organisation of the market in wine and Article 46(2) of Council Regulation (EEC) 355/79 of 5 February 1979 laying down general rules for the description and presentation of wines and grape musts confer on the national authorities the responsibility for ensuring compliance with the Community rules. Checks by means of analyses may, in that context too, be a useful means of discovering infringements of the rules in question. *199 [54] Nevertheless the measures of verification carried out must be necessary for attainment of the desired objectives and must not create obstacles

to trade which are disproportionate to those objectives. [55] As regards the question of the permissible frequency of the analyses, it must be remarked that it was the subject of great fluctuation during the period in question. Whereas in August 1981 all consignments of wine were subject to analyses, after the arrangements upon which agreement was reached in Pisa in October 1981 random checks in 10 per cent. of cases were considered sufficient. At the end of January 1982 that frequency was increased once more to a check of three consignments out of four. The French Government was unable to provide any justification for those variations which therefore do not seem to bear any relation to the overriding requirements resulting from the aforementioned objectives. The analyses were carried out in the absence of any concrete facts which might justify a suspicion of fraud or irregularities in a given case. [56] The frequency of the analyses was distinctly higher than the occasional checks carried out on the transportation of French wine within France. It is an established fact that checks are also carried out by the Italian authorities in order to ensure that wine produced in Italy complies with the Community rules and that consumers and the health and life of humans are protected. The French authorities were under a duty to take into account the existence of those checks carried out in the country of origin of the wine. Adulteration or irregularities discovered in particular cases prior to the period in question certainly cannot justify a general suspicion in relation to all imports of Italian wine or the carrying out of systemetic analyses when no similar practice exists in relation to French wine. [57] It follows that the French authorities had no right to carry out systematic checks by means of analyses and, in the absence of any reasonable suspicion on the basis of specific evidence in a given case, ought to have confined themselves to random checks. [58] The French Government itself had declared following the reasoned opinion that analyses in one case out of ten would be sufficient. In view of that assessment the systematic analyses carried out by the French authorities on all consignments or on three consignments out of four exceeds the permissible frequency of checks by means of analyses and constitutes discriminatory treatment in comparison to the checks to which wine produced in France is subjected. [59] With regard to the period of some weeks during which analyses were carried out, it must be ovserved that the time necessarily taken by such analyses of wine may vary according to the circumstances of the case, in particular according to the kind of analyses to be undertaken. In the present case the Court does not have sufficient information with regard to the conduct of the analyses*200 in specific cases to be able to consider whether the period between the taking of samples for the purpose of analyses and the notification of the results was longer than was necessary. [60] Nevertheless it must be stated that where samples of French wine are taken for the purpose of analyses that does not entail the automatic detention of the wine in question until the results of the analyses are known because the provisions of Community law in respect of the keeping of records of

accompanying documents normally enable a consignment of wine to be located and identified once the results of the analyses are known. [61] In the case of random analyses of imported consignments of wine the detention of the consignment in question at the frontier until the results of the analysis are known constitutes a disproportionate and discriminatory obstacle to imports where such analyses involve substantial periods of time in excess of a few days and in view of the possibility of locating and identifying a consignment of wine. The situation would be different only if the analyses were carried out in an individual case on the basis of a reasonable suspicion of freud or irregularity regarding the product concerned. The French Government had not pleaded any actual cases where there was such a suspicion. [62] Furthermore, it must be remarked that it is clear from the aforementioned telex message of 2 February 1982 and from all the circumstances that the making of analyses was intended to delay the release for consumption of the consignments in question and thereby to limit the quantity of imports of wine of Italian origin. [63] It follows that, both by reason of the frequency of the analyses and by reason of the fact that the consignments checked in that manner were detained at the frontier in all cases, the practice of the French authorities with regard to systematic inspection by means of analyses was contrary to the requirements of Articles 30 and 36of the EEC Treaty. [64] It follows from the foregoing that it is necessary to declare that by delaying the release for consumption of table wines imported in bulk from Italy by means of checks and regularisation of accompanying VA 1 documents and of systematic checks by means of analyses, and by thereby restricting imports of such table wines between August 1981 and March 1982, the French Republic failed to fulfil its obligations under Article 30 of the EEC Treaty and under the Community regulations of wine. Costs [65] Article 69(2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. As the defendant has been unsuccessful it must be ordered to pay the costs, including those of the party intervening in support of the applicant and those*201 arising from the application for the adoption of interim measures which were reserved by order of the Court of 4 March 1982. Order On those grounds, THE COURT hereby: 1. Declares that by delaying the release for consumption of table wines imported in bulk from Italy by means of checks and regularisation of accompanying VA 1 documents and of systematic checks by means of analyses, and by thereby restricting imports of such table wines between August 1981 and March 1982, the French Republic failed to fulfil its obligations under Article 30 of the EEC

Treaty and under the Community regulations on wine. 2. Orders the defendant to pay the costs, including those of the party intervening and those arising from the application for the adoption of interim measures.

(c) Sweet & Maxwell Limited [1984] 1 C.M.L.R. 160 END OF DOCUMENT