Criminal Proceedings against Karl Prantl (Case 16/83) Before the Court of Justice of the European Communities ECJ (Presiding, Mertens de Wilmars C.J.; Koopmans and Galmot PP.C.; Pescatore , Lord Mackenzie Stuart, O'Keeffe, Bosco, Due and Everling JJ.) Sir Gordon Slynn Advocate General. 13 March 1984 Reference from the Landgericht München (Regional Court Munich), under Article 177 EEC. Community law and national law. Occupied field. Agriculture. Once rules on the common organisation of an agricultural market may be regarded as forming a complete system, the member-States no longer have legislative competence in that field unless Community law expressly provides otherwise. [13] Community law and national law. Occupied field. Wine. The common organisation of the market in wine forms a complete system and thus excludes independent national legislation on matters covered by it. This does not, however, cover the shape of wine bottles, which remains within the competence of the member-States. [14] & [16] Imports. Packaging. Discrimination. Where national law reserves to national producers from a particular region the use of a certain traditional form of packaging, the fact that other national producers are not allowed to use it does not make the ban non-discriminatory with respect to imports where certain foreign producers also traditionally use it. The need to repackage for that one export market constitutes an indirect protective effect. The ban therefore falls within Article 30 EEC. [24]

Imports. Packaging. Wine. An exclusive right to use a certain type of bottle granted by national law in a member-State may not be used as a bar to imports of wines originating in another member-State put up in bottles of the same or similar shape in accordance with a fair and traditional practice observed in that member-State. [28] Imports. Get-up. *239 Producers who traditionally use a bottle of a specific shape may not successfully rely upon an industrial or commercial property right under Article 36 EEC to prevent imports of wines originating in another member-State which have been bottled in identical or similar bottles in accordance with a fair and traditional practice in that state. [35] The Court interpreted Articles 30 and 36EEC in the context of German legislation restricting the use of the 'Bocksbeutel' shape of wine bottle to wine producers in certain areas of Franconia and Baden and the prosecution of an importer of Italian wines from Bolzano which also traditionally use a similar bottle, to the effect that the German restriction, although not intended to be discriminatory, had a protectionist effect, was covered by Article 30 and not saved under the 'rule of reason' as a form of consumer protection and that it was not saved by Article 36. Representation Dr. H. G. Strohm, of Messrs. Stock, Strohm and Reinelt, for the defendant. Prof. Dr. Rudolf Lukes, full professor of law, for the German Government as amicus curiae. Ivo M. Braguglia, Avvocato dello Stato, for the Italian Government as amicus curiae. Bernhard Jansen, with him in the written proceedings Richard Wainwright, both of the Legal Department of the E.C. Commission, for the Commission as amicus curiae. The following cases were referred to by the Advocate General: 1. Openbaar Ministerie v. Danis (16-20/79), 6 November 1979: [1979] E.C.R. 3327, [1980] 3 C.M.L.R. 492. Gaz:16/79 2. Pigs Marketing Board (Nothern Ireland) v. Redmond (83/78) , 29 November 1978: [1978] E.C.R. 2347, [1978] 1 C.M.L.R. 177. Gaz:83/78 3. Firma A. Weigand v. Schutzverband Deutscher Wein eV (56/80) , 25 February 1981: [1981] E.C.R. 583, [1983] 1 C.M.L.R. 146. Gaz:56/80 4. Walter Rau Lebensmittelwerke v. de Smedt PVBA (261/81) , 10 November 1982: [1982] E.C.R. 3961, [1983] 2 C.M.L.R. 496. Gaz:261/81 5. E.C. Commission v. Ireland: Re Restriction on Importation of Souvenirs

(113/80), 17 June 1981: [1981] E.C.R. 1625, [1982] 1 C.M.L.R. 706. Gaz:113/80 The following further cases were referred to in argument: 6. Bundesgerichtshof, Bocksbeutelflasche (I ZR 115/69), 12 March 1971: [1971] GRUR 313. 7. Bundesgerichtshof, Cantil-Flasche (I ZR 112/78), 26 January 1979: [1979] GRUR 415. TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE *240 Facts The 'Bocksbeutel' bottle The Bocksbeutel bottle at the centre of this case has a characteristic bulbous shape. Quality wine psr (produced in a specified region) from Franconia, BadenFranconia and four municipalities located in central Baden are marketed in Bocksbeutel bottles which have been used in Franconia for centuries. In Italy, too, especially in the Trentino Alto Adige, the Bocksbeutel bottle has a tradition going back more than one hundred years. The traditional Italian Bocksbeutel is rounder and has a shorter neck than the Franconian Bocksbeutel. The German wine legislation for the protection of the use of the Bocksbeutel bottle Section 17 of the [FN1]was adopted after the Bundesgerichtshof (Federal Supreme Court) gave a judgment on 12 March 1971 [FN2] in which it held that a Bocksbeutel bottle was an indirect indication of geographical origin and its use for wine not produced in the region in which the bottle is traditionally used might mislead consumers. FN1 Wein-Verordnung (Wine Regulation) of 15 July 1971[1971] I Bgb1. 926. FN2 [1971] Grur 313 . Section 17 reads as follows: Only quality wine psr from the specific growing area of Franconia, the Taubertal in Baden, the Schüpfergrund and the municipalities of Neuweier, Steinbach, Umweg and Varnhalt may be marketed in Bocksbeutel bottles of the traditional kind. The second subsection of section 23 of the Wein-Verordnung provides that: Pursuant to section 67(5), Point 2, of the Weingesetz (Wine Act) any person who contrary to section 17 hereof markets in Bocksbeutel bottles products other than

those enumerated in that provision shall be guilty of an offence. Finally, section 67(V) of the Weingesetz (Wine Act) [FN3] provides inter alia that: It shall be an offence punishable by fine or imprisonment not exceeding one year FN3 [1977] I Bgb1. 893. (1) ... *241 (2) to put on the market, import, export or advertise a product in contravention of the prohibition of misrepresentation contained in section 46(I) to (III) hereof or in any regulation adopted under section 46(IV) hereof in so far as such regulation refers to this penal provision for the definition of a specific offence ... After the entry into force of section 17 of the Wine Regulation protection of the Bocksbeutel bottle seems to have been somewhat weakened in the Federal Republic of Germany as a result of another judgment of the Bundesgerichtshof of 26 January 1979 [FN4] in which it held that section 17 had to be construed narrowly and applied only to the original kind of Bocksbeutel bottle and not to bottles of a 'similar' or 'related' kind. FN4 [1979] Grur 415. The charge against Mr. Prantl The charge against Mr. Prantl is that between 3 December 1980 and 10 September 1981 he made improper use of Bocksbeutel bottles by persistently importing into the Federal Republic of Germany and selling and holding in stock for sale there Italian red wine, namely a quality wine produced in a specified region and originating from the Martini cellars in Girlan. In so acting he offended against section 17 of the Wine Regulation and by virtue of section 67(5), Point 2, of the Wine Act 1971 is liable to a fine or imprisonment. The proceedings On 6 July 1982 the Amtsgericht (District Court) Miesbach acquitted Mr. Prantl after reaching the conclusion that, although the bottles used by his company were traditional Bocksbeutel bottles within the meaning of section 17 of the Wine Regulation, that regulation was not applicable by virtue of Articles 30 and 36 of the EEC Treaty. The Public Prosecutor appealed to the Landgericht München II (Regional Court, Munich) claiming that section 17 of the Wine Regulation did not have an effect equivalent to a quantitative restriction on imports and was not therefore contrary to Article 30 of the EEC Treaty. It was also claimed that section 17 was necessary in the interests of consumer protection and fair trading. The Landgericht München II decided that owing to their shape the Bocksbeutel bottles used by Mr. Prantl looked very much like Franconian Bocksbeutel bottles

and that they were traditional Bocksbeutel bottles within the meaning of section 17 of the Wine Regulation. However, it raised the question whether, if section 17 of the Regulation was contrary to Article 30 of the EEC Treaty, it was *242 still valid by virtue of the exception laid down in Article 36of the EEC Treaty. By order dated 12 January 1983 the Tenth Criminal Chamber of the Landgericht München II stayed the proceedings and decided to submit the following two questions to the Court for a preliminary ruling: 1. Does section 17 of the Wein-Verordnung of 15 July 1971 (regulation relating to wine, liqueur wines and wine-based beverages) have an effect equivalent to a quantitative restriction on imports prohibited by Article 30of the EEC Treaty? 2. In the particular circumstances of the present case, can section 17 of the Wein-Verordnung be applied in order to protect the interests mentioned in Article 36 of the EEC Treaty? Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry. However, the Court decided to ask the Commission and the Government of the Federal Republic of Germany to reply before the oral procedure to the following questions: 1. Questions put to the Commission of the European Communities The Commission is asked to submit to the Court the results of its investigations (see page 12 of its written observations) into whether similar measures or customs recognised by national law exist in the other member-States. The Commission is asked to state briefly the work undertaken and the negotiations conducted so far with a view to ensuring protection of the ' Bocksbeutel' and the reasons for the failure of the work and negotiations. 2. Question put to the Government of the Federal Republic of Germany The Government of the Federal Republic of Germany is asked to state the objects of the German association named on page 30 of its written observations and the reasons for which and under which legislation that association registered a collective mark. Replies to questions put by the Court A --Replies of the Commission 1. On the first question relating to the results of the inquiry undertaken by the Commission in order to discover whether comparable measures or practices were recognised by the national law of other member-States, the Commission mentioned, on the one hand, Italian legislation protecting the 'Pulcianella', the 'bottiglia Marsala' and the 'fiasco Toscano', which reserves the use of those bottles or containers to certain wines and, on the other *243 hand, the existence

of French legislation which contains provisions protecting the so-called 'Clavelin' bottle. In reply to Question 2 relating to the work carried out and the negotiations undertaken to date with a view to ensuring protection for the Bocksbeutel bottle, the Commission gave a very full summary of the negotiations and other efforts undertaken between 1974 and 1983 with a view to providing protection for that bottle. It concludes that it may be observed that the failure of negotiations on the protection of the Bocksbeutel bottle in 1976, when the prospects of reaching an agreement were good, is attributable to the position taken at that time by the German Government. The subsequent attempts which were made in order to reach agreement, particularly in 1980, demonstrated that the respective positions of other interested member-States had also hardened, so much so that in the meantime it had not been possible to reach a consensus. B --Replies of the Government of the Federal Republic of Germany 1. On the objective of the 'Frankenwein-Frankenland eV' association The objective of that association is 'to give publicity to the wine of Franconia and of its wine-growing region and the protection of the exclusive right to use the "Bocksbeutel" for the bottling of Franconian wine'. 2. On the reasons for which that association registered a collective mark The use of the Bocksbeutel bottle for a wine of different origin constitutes an infringement of section 3 of the German Act of 7 June 1909 relating to unfair competition. [FN5] Since section 3 of that Act confers no exclusive right and since unfair competition must be proved in each individual case, a collective mark to a certain extent facilitates action against unfair competitors. It was therefore in the hope that in the future the procedure in cases relating to the protection of the trade mark may be organised in a more economical and simple way that the mark was registered. FN5 Gesetz gegen den Unlauteren Wettbewerb (UWG). 3. On the German legal provisions under which the association registered the collective mark A collective mark may be registered by associations which have legal capacity and which pursue industrial or commercial objectives pursuant to section 17 et seq. of the German Trade Marks Act in the version published on 2 January 1968. Subject to any contrary indication contained in sections 17 to 23 of the Unfair Competition Act, the provisions relating to trade marks are applicable to collective marks. Thereafter the collective mark no longer serves to distinguish goods originating from a particular commercial undertaking but to *244 distinguish the goods of all of the members of the association. According to German law that presupposes that the mark constitutes a flat surface, as that law does not provide trade mark protection for three-dimensional figures.

Consequently the Bocksbeutel bottle may not be protected as a bottle but solely as a reproduction presenting a flat surface. Opinion of the Advocate General (Sir Gordon Slynn) Mr. Prantl, an Italian national, is the director of a company carrying on business in the Federal Republic of Germany. He was charged before the Amtsgericht in Miesbach, with selling or holding for sale in Germany, between 3 December 1980 and 10 September 1981, red Italian wine contained in bottles known as Bocksbeutel, contrary to section 17 of the Wein-Verordnung (Wine Regulation) of 1971. This prohibits the marketing of wine in such bottles of the traditional Bocksbeutel kind, other than quality wine psr. from Franconia and other specified wine growing areas. Breach of such prohibition is an offence which may lead to imprisonment or a fine. He was acquitted on the basis that, although the bottles used were Bocksbeutel bottles of the traditional kind, the prohibition was contrary to Article 30 of the EEC Treaty and should not be enforced. The public prosecutor appealed to the Landgericht at Munich. That court found that there existed in Italy, particularly in the South Tyrol, traditional Italian Bocksbeutel bottles which had been used for more than a century, but which were rounder and had a shorter neck than the German bottle. The bottles seized, however, were found to be very similar in shape to the German bottle. On the banderole it was stated that the wine was from the winery, Karl Martini and Sohn, Girlan (which is in Italy). A distinctive label gave the name of the wine, 'Bozner Leiten' (Bolzano Vineyards). It also stated that this was quality wine produced in a specified region, bottled in the area of production. The name of the winery was repeated on the label with the place of origin 'South Tyrol'. The last line of the label read 'Italia' . The Landgericht has referred to the Court, pursuant to Article 177 of the Treaty, two questions. [The Advocate General repeated the questions, and continued:] The German Government contends that the use of the instant bottles ('the Prantl bottles') was a violation of section 17, though a use of the traditional Italian bottle would not be, and that the regulation is either not in conflict with Article 30, alternatively is justified under Article 36. The Italian Government submits that this is a plain case which violates Article 30 and is outside Article 36. The Commission agrees, that if these questions really arise, the result arrived at by the trial court was correct. *245 The Commission submits, however, that there is an overriding question as to the compatibility of the German regulation with the rules relating to the common organisation of the market in wine, which ought to be decided first, even though it is not specifically asked, since it may affect both the relevance of the questions and the content of the answer. In my view this submission should be accepted. (Cases 16-20/79 Danis. [FN6]) FN6 [1979] E.C.R. 3327, [1980] 3 C.M.L.R. 492.

The point taken is that only the Commission can regulate the use of containers intended to be distinctive of the quality and origin of wines, and that since 1976 member-States have not had the power to enact or maintain internal rules not found in or authorised under the regulations relating to the common organisation of the market in wine. This position is said to arise from a combination of Article 40(2)(b) of Council Regulation 355/79, replacing Regulation 2133/74, and Council Regulation 1608/76, which was superseded by Regulation 997/81. The starting point is the regulation setting up the common organisation of the market in wine. This was initially Council Regulation 24/62 as complemented, inter alia, by Regulation 816/70. At the time with which the case is concerned it was Regulation 337/79 which consolidated with amendments the earlier provisions. Since the relevant Articles are substantially the same it is sufficient to refer to the latter. The heading to Title IVof Regulation 337/79 includes 'conditions for release to the market' . No detailed conditions relevant for present purposes are included. Instead Article 54 provides that the Council 'shall adopt, as necessary, the rules relating to the designation and presentation of the products listed in Article 1. Until entry into force of the rules referred to ..., the rules on this matter shall be those adopted by the member-States.' Rules on designation and presentation were included in Regulation 2133/74, which on its repeal, were, so far as relevant, repeated in Regulation 355/79. The title of the latter describes the regulation as 'laying down general rules for the description and presentation of wines'. Title II ' Presentation'is said in Article 39 to lay down 'general rules governing the containers, labelling and packaging'. Article 40 deals with the containers in which wine may be stored or transported, and, though it is not clear from Article 40, it seems from the regulation as a whole that containers include bottles (e.g. Article 2(1)(c) where a reference to containers is followed by a provision where wine is bottled). Article 40(2) provides that 'use of the containers may be subject to certain conditions to be laid down for the purpose of ensuring in particular that ... (b) the quality and origin of the products may be distinguished'. *246 In the general provisions, Title III, Article 43 provides that the description and presentation of wine 'must not be liable to cause confusion as to the nature, origin and composition of the product'. Article 46(1) provides that wine originating in the Community, the description of which does not conform to the provisions of this regulation, may not be held for sale. Finally in Article 47 'transitional provisions shall be laid down in respect of: the placing on the market of products whose description and presentation do not conform to the provisions of this Regulation' . In Regulation 1608/76 the Commission adopted detailed rules for the description and presentation of wine in order to implement Regulation 2133/74 (subsequently Regulation 355/79). That Commission regulation applied until 30 April 1981 (including part of the period covered by the charge) when it was replaced by Regulation 997/81. Article 18 of both Commission regulations contained a specific provision that 'the use of the bottle known as the "flûte d'Alsace" for wines made from grapes harvested on French territory shall be restricted to the following quality wines

psr.', including Alsace wines and Cassis. Regulation 1608/76 in addition provided in Article 21 that until 31 August 1977 'wine ... may be presented in ways that do not conform to the said regulation but which comply with the provisions of the member-States'. There is no similar provision in Regulation 997/81, only a provision that wine bottled in accordance with either of the two Commission regulations at a time when they were in force could continue to be sold even if the regulations were amended, so that the wine no longer complied. There is, thus, no provision dealing with the Bocksbeutel. Attempts were made to reach an agreement to include it as a protected bottle for uses including wines from the South Tyrol (on which Germany agreed), but they foundered on a disagreement about the inclusion of wines from almost all regions of Portugal. The Commission relies heavily on the Court's judgments in Case 83/78 Pigs Marketing Board v. Redmond [FN7] and Case 56/80 Weigand v. Schutzverband Deutscher Wein. [FN8] In the former case the Court ruled that once the Community has legislated for the establishment of the common organisation of the market in a given sector, member-States are under an obligation to refrain from taking any measure which might undermine or create exceptions to it. A common organisation of the market is based on the concept of the open market to which every producer has access and the functioning of which is regulated solely by the instruments provided for by those organisations. National provisions or practices which might alter the pattern of imports or exports or influence the formation of market prices by preventing producers from buying and selling *247 freely in member-States 'in conditions laid down by Community rules and from taking advantage directly of ... any other measures for regulating the market laid down by the common organisation are incompatible with the principles of such organisation'. In the latter of the two cases it was said that with the objective of ensuring the transparency and supervision of the market and in regard to the presentation of wines and advertising ' Regulation 355/79 applies systematically to all practices capable of affecting fair trading'. Article 43 serves 'the same purpose, namely the prevention in the marketing of wine of all practices which are of such a nature as to create false appearances'. FN7 [1978] E.C.R. 2347, [1979] 1 C.M.L.R. 177. FN8 [1981] E.C.R. 583, [1983] 1 C.M.L.R. 146. There is, thus, no doubt that, once the Community has made clear regulations in a particular area, member-States may not make or retain legislation which conflicts with Community provisions or which undermines the essential objectives of the common organisation of the market. The question is whether that is the position in this case. The Commission argues that, at the latest when Regulation 1608/76 came into force, the member-States could no longer maintain their own legislation in respect of the shape of wine bottles. Rules were established; the Community system was exclusive. Article 54 of Regulation 377/79 no longer applied. The question of presentation was conclusively settled even if only one bottle was

dealt with. There are factors in the Commission's favour. Rules were to be made and both general rules and detailed rules were made. It may be possible to make a Community exception for only one bottle and to exclude national rules as to the rest. The fact that only one wine bottle was protected, the flûte d'Alsace, does not mean that the system is incomplete. Protection can in any event be given subsequently by amendment on a Community basis, national rules having gone. The transitional provisions until August 1977 and the particular arrangements to cover amendment in Regulation 997/81 suggest that a final scheme had been adopted. Article 46(1) of Regulation 355/79 prohibits the sale of wine, the description of which does not conform to the regulations, and Article 39 indicates that the general rules laid down in regard to presentation are exclusive. It can also be said that Article 43 of Regulation 355/79 is providing a general rule for the Community, prohibiting presentation which may cause confusion as to the nature, origin and composition of the wine, and that this replaces national rules. I would not accept the Commission's arguments. They read too much into the regulations and into the Court's judgments. In my view, by virtue of Article 54 of Regulation 337/79, and its predecessors, national provisions apply until ' rules relating to the description and presentation of wine have been made'. Article 40(2) of Regulation 2133/74 and Regulation 355/79 does not adopt such rules. It does no more than provide that the use of containers *248 may be subject to conditions to be laid down. The power must be exercised before a rule is adopted. The rule actually made in Article 18 of Regulation 1608/76 and Regulation 997/81 is not, in my opinion, to be construed as a rule meaning 'this bottle is protected; no others are protected under Community rules', as a consequence of which under Article 54 other national rules than those relating to the flûte cease to apply. On its proper construction this was a rule dealing only with the flûte d'Alsace. Subject to any subsequent arguments as to its validity, national rules in respect of the bottling of specified wines made, but made only, from grapes harvested in France ceased to apply. Other national rules continued to apply. I do not consider that the transitional provisions undermine this result, even if they show that the Commission thought it had set up a complete system. If that is the position, the objective was not achieved by sufficiently clear language. Not do I consider that the general provision of Article 43, prohibiting confusion as to origin in method of presentation, is a rule within the meaning of Article 54, which of itself replaces all relevant national provisions. That is an important general protection, but Article 40(2) made it clear that conditions on the use of containers to ensure that origin was distinguished are to be made. It is the rules making those conditions which might displace national provisions. In my view none of these conclusions conflicts with anything said by the Court in Pigs Marketing Board or Weigand. The particular matter in issue has not been dealt with by the rules of the common organisation of the market; the retention of existing rules pending Community rules does not undermine the objectives of the market in the light of Article 54(1). On this basis the questions referred remain to be answered.

It was found as a fact by the referring court that the traditional Italian ' Bocksbeutel' is in the respects mentioned different from the German Bocksbeutel; it is not said that there are any other differences. The Prantl bottle is very similar to the German bottle. From the description given and bottles produced to the Court, it is clear that all three, for want of a better description, squat and chubby, are on a superficial examination similar. The Italian bottle is acceptable to the German authorities, so is the Bocksbeutel type of bottle which contains Portuguese 'Mateus' wine. No complaint has been made of the use of a comparable though not entirely similar shaped bottle used for armagnac. The Prantl bottle is apparently used for selling this red wine in Italy. It is not suggested that the bottles, although bought in Germany and Austria, were bought exclusively for the German market; if they were the possibility of a wish to pass off or mislead might fall for consideration. It was also found as a fact that the wine in the *249 Prantl bottles was red. It is agreed that the great majority of Franconian wine in the German Bocksbeutel is white. The German regulation forbids the use of the bottle both for wines made in other parts of Germany and abroad. It is argued by the German Government that the regulation does not restrict quantitatively the import of wine because the wine can always be sold in other bottles. The object is only to protect an indirect designation of origin and quality, and to protect the consumer, thereby ensuring fair competition in the Community. The limitation is reasonable and necessary. It is not a measure which affects trade, so it cannot be a measure having an effect equivalent to a quantitative restriction. Moreover there is no restriction arising out of higher costs because the Italian producers can use local bottles and avoid the expense of buying in Germany and Austria. In my view, a provision such as Article 17 does constitute an actual or potential, direct or indirect restriction on imports which amounts to a measure of equivalent effect to a quantitative restriction. Italian wine can be and is sold in the Prantl bottles in Italy. To sell the same wine in Germany it must either be bottled in different containers for the German market or be rebottled. In Case 261/81 Rau v. de Smedt, [FN9] the Court held that a requirement that a product be sold in a container of a particular shape can constitute a measure of equivalent effect for the purposes of Article 30. The same must apply to a prohibition on the use of a container. FN9 [1982] E.C.R. 3961, [1983] 2 C.M.L.R. 496. This restriction has not been shown to be justified in the interests of consumer protection. In the Rau case it was held that a requirement that margarine be sold in cubic containers was not justified in order to ensure that the consumer did not confuse it with butter, since that objective could readily be achieved by other less restrictive means such as labelling. It is true, as the German Government argues, that a cubic container does not necessarily indicate origin, whereas the bottle is alleged to do so. Nonetheless, this shape of bottle is already accepted to indicate more than one place of origin. Moreover it is open to question whether a consumer can claim to be justified in assuming that wine is of a particular origin

merely by the shape of the container, without paying any regard to the label or other features, any more than in Case 113/80 E.C. Commission v. Ireland, [FN10] the Court was prepared to accept that a souvenir of Ireland held itself out as being manufactured in that country merely because it depicted something typically Irish. Labelling here seems to me to be a perfectly acceptable way of indicating origin and other characteristics, not least, if common experience can be relied, when bottles of red and white wine look different in all but very opaque bottles, which these are not suggested to be. Although it is a matter for the national court as to *250 whether the labelling was sufficient to prevent confusion, it seems to me that the label used in this case made it abundantly plain to even the casual shopper where the wine came from. FN10 [1981] E.C.R. 1625, [1982] 1 C.M.L.R. 706. The claim based on the prevention of unfair competition stands or falls with the claim based on consumer protection, since the unfairness is said to result from consumer confusion. Equally here labelling is an adequate protection. It is also claimed that Article 36 takes the German regulation out of the provisions of Article 30. The first grounds relied on are the maintenance of fair competition and the protection of the consumer. As held in Case 113/80, these are not grounds falling within Article 36. Then it is said that the fact that a breach of Article 17 is a criminal offence justifies the derogation on the grounds of public policy. That fact in itself cannot be sufficient, or any restriction could be exempted by its being made a criminal offence. There is nothing to indicate that it could otherwise be justified here on the grounds of public policy. Finally it is argued that this regulation is justified for the protection of industrial and commercial property, on the basis that these bottles, without more, are an indirect indication of origin. I do not consider that in themselves they are so distinctive as to be an indication of origin, and it is of some significance that in the trade mark registered by the Franconian producers the picture of the bottle includes the distinctive label. Other wines than Franconian wines--those which have acquired rights to use this shape of bottle through long use--may be found on the shelves beside the German Bocksbeutel, even if there are some minor differences between them. It is accordingly unnecessary to decide whether an indirect indication of origin can constitute 'industrial and commercial property'. Even, however, if the bottle is such an indication, and does constitute such property, the present restriction does not seem to me to be justified. Confusion can be sufficiently avoided by means of adequate labelling. The restriction sought as I see it in any event is capable of constituting a disguised restriction on trade between member-States. For these reasons I conclude that the questions referred should be answered on the following lines: 1. The application of a measure adopted by a member-State, which prohibits the use of bottles of a specified shape for wine other than that from a defined growing area in that member-State, for imports of wine lawfully marketed in similar bottles in another member-State, constitutes a measure having an effect

equivalent to a quantitative restriction prohibited by Article 30 of the Treaty where the consumer may be protected and informed and fairness in commercial transactions secured by means which hinder the free movement of goods to a lesser degree. *251 2. In the particular circumstances of the present case nothing has been shown to establish that a measure of the kind in question is justified on any of the grounds set out in Article 36 of the Treaty. Mr. Prantl's costs of the reference fall to be dealt with as a step in the proceedings in the national court. No order should be made as to the costs of the parties intervening in reference. JUDGMENT [1] By an order dated 12 January 1983, which was received at the Court on 28 January 1983, the Landgericht München II (Regional Court, Munich) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Articles 30 and 36 of the EEC Treaty to enable it to decide whether section 17 of the Verordnung über Wein, Likörwein und Weinhaltige Getränke (regulation on wine, liqueur-wine and wine-based beverages) of 15 July 1971 [FN11]--hereinafter referred to as 'the Wine Regulation'--is compatible with Community law. FN11 [1971] I Bgb1. 926. [2] Those questions were raised in criminal proceedings brought against an Italian national, Karl Prantl, a dealer in beverages, who was charged with making improper use of 'Bocksbeutel' bottles by persistently importing into the Federal Republic of Germany and selling and holding in stock for sale there between 3 December 1980 and 10 September 1981 Italian red wine originating from the Martini cellars in Girlan (Province of Bolzano--Trentino Alto Adige). [3] The Bocksbeutel bottle has a characteristic bulbous shape and quality wine psr produced in Franconia, Baden-Franconia and four municipalities located in central Baden is marketed in Bocksbeutel bottles. In Franconia Bocksbeutel bottles have been used for several centuries. [4] In Italy, in the province of Bolzano, the use of the Bocksbeutel bottle has a tradition going back more than one hundred years. The traditional Italian Bocksbeutel bottle is somewhat rounder and has a shorter neck than the Franconian Bocksbeutel bottle. [5] In the version applicable to the facts which are the subject of the main proceedings, section 17 of the Wine Regulation provides as follows: Only quality wine psr from the specific growing area of Franconia, the Taubertal in Baden, the Schüpfergrund and the municipalities of Neuweier, Steinbach, Umweg and Varnhalt may be marketed in Bocksbeutel bottles of the traditional kind. The second subsection of section 23 provides that: *252 Pursuant to section 67(5), Point 2, of the Weingesetz (Wine Act) any person who

contrary to section 17 hereof markets in Bocksbeutel bottles products other than those enumerated in that provision shall be guilty of an offence. [6] On 6 July 1982 the Amtsgericht (District Court) Miesbach acquitted Mr. Prantl. It was of the opinion that, although the bottles used by Mr. Prantl were traditional Bocksbeutel bottles within the meaning of section 17 of the Wine Regulation, that provision was not applicable by virtue of Articles 30 and 36 of the EEC Treaty. [7] The Public Prosecutor appealed against that decision to the Landgericht München II arguing, on the one hand, that section 17 of the Wine Regulation did not constitute a quantitative restriction on imports contrary to Article 30 of the Treaty and, on the other hand, that the provision was justified in the interests of consumer protection and fair trading. [8] The Landgericht considers that owing to their shape the Bocksbeutel bottles used by Mr. Prantl's company 'looked very much like Franconian Bocksbeutel bottles' and is inclined to think that they are traditional Bocksbeutel bottles within the meaning of section 17 of the Wine Regulation. However, it wonders whether in the case of imports of wine from another member-State section 17 is compatible with Articles 30and 36 of the Treaty. [9] The Landgericht München II therefore decided that before it delivered judgment in the criminal proceedings it must obtain from the Court of Justice a preliminary ruling on the following questions: 1. Does section 17 of the Wein-Verordnung of 15 July 1971 have an effect equivalent to a quantitative restriction on imports prohibited by Article 30of the EEC Treaty? 2. In the particular circumstances of the present case, can section 17 of the Wein-Verordnung be applied in order to protect the interests mentioned in Article 36 of the EEC Treaty? [10] As the Government of the Federal Republic of Germany has correctly pointed out, the Court cannot, in the context of Article 177 of the EEC Treaty, give a ruling on the interpretation and validity of provisions of national laws or regulations. However, the Court may, as it has held on many occasions, provide the national court with the criteria for the interpretation of Community law which will enable it to decide for itself the issue before it. [11] Understood in that sense the questions submitted ask in effect whether Articles 30 and 36 of the Treaty must be interpreted as prohibiting provisions of the kind enacted in the national legislation in question. The application of the Community rules on the common organisation of the market in wine [12] It is first necessary to consider the main submission of the Commission to the effect that in the common organisation of the *253 market in wine there are exhaustive Community rules containing all the necessary provisions regarding the presentation of wines and use of certain containers for the purpose of distinguishing between wines according to their quality and origin. The Commission accordingly concludes that there are now overriding provisions of Community law and that since the entry into force of the aforesaid rules the

member-States may no longer maintain in force or enact measures of domestic law in this field. [13] It is true that, once rules on the common organisation of the market may be regarded as forming a complete system, the member-States no longer have competence in that field unless Community law expressly provides otherwise. [14] It is also true that at the time of the events which the national court must consider, the provisions of Community law on the common organisation of the market in wine (in particular Council Regulation 337/79 of 5 February 1979 on the common organisation of the market in wine; Council Regulation 355/79 of 5 February 1979 laying down general rules for the description and presentation of wines and grape musts; Commission Regulation 2164/80 of 8 August 1980 amending for the seventh time Regulation 1608/76 laying down detailed rules for the description of wines and grape musts; and Commission Regulation 997/81 laying down detailed rules for the description and presentation of wines and grape musts) could be regarded as forming a complete system, especially as regards prices and intervention, trade with non-member countries, rules on production and oenological practices and as regards requirements relating to the designation of wines and labelling. [15] However, it must be observed that Article 54(1) of Regulation 337/79 expressly provides that: 'The Council, acting by a qualified majority on a proposal from the Commission, shall adopt, as necessary, the rules relating to the designation and presentation of the products listed in Article 1. Until entry into force of the rules referred to in the first subparagraph, the rules on this matter shall be those adopted by the member-States'. Regulation 355/79 merely provides that use of the containers may be subject to certain conditions to be laid down for the purpose of ensuring in particular that the quality and origin of the products may be distinguished (Article 40) and that the designation and presentation of wines must not be liable to cause confusion as to the nature, origin and composition of the product (Article 43). On the question of the protection to be given to certain shapes of bottle Article 18 of Regulation 997/81 merely protects the use of the bottle known as the ' l3ute d'Alsace'. [16] As regards the question of bottle shapes and the protection which they may possibly enjoy, which is of secondary importance in relation to the fundamental principles of a common organisation *254 of the market, it is not possible to deduce from the provisions regarding the protection of the ' l3ute d'Alsace' that the Community legislation has exhausted its competence under Article 54, mentioned above. In this regard it may also be noted that negotiations have been conducted at the Community level for several years with the aim of introducing rules for protecting the Bocksbeutel bottle and that to that end several draft regulations have been prepared but without success. It thus appears that the Community legislation protecting the 'l3ute d'Alsace'is not exclusive. Therefore Article 54(1)of Regulation 337/79 allows the rules adopted by the member-States to be maintained in this field provided that they do not contravene Article 30 et seq. of the EEC Treaty. [17] In those circumstances the Commission's main argument must be rejected and the questions of the national court on the interpretation of Articles 30and 36

of the Treaty must therefore be answered. Article 30 of the EEC Treaty (first question) [18] By this question the national court asks in substance whether Article 30 of the EEC Treaty must be interpreted as meaning that the application by a member-State to imports of wine originating in another member-State of legislation allowing a specific shape of bottle to be used only by certain national producers and making it an offence for any other supplier to use a similar bottle constitutes a measure having an effect equivalent to a quantitative restriction. [19] The Government of the Federal Republic of Germany has argued that the contested provision of the Wein-Verordnung does not come within the scope of Article 30 of the EEC Treaty as it: does not constitute a national measure capable of having an appreciable effect on intra-Community trade; applies to national and imported products alike; makes only the use of traditional Bocksbeutel bottles an offence and normally does not therefore affect importers using similar bottles if these are only slightly different from traditional bottles; and is justified on the grounds of consumer protection and fair trading, as the traditional Bocksbeutel must be regarded as an indirect designation of geographical origin. [20] It must be borne in mind in the first place that Article 30of the EEC Treaty prohibits all measures having an effect equivalent to a quantitative restriction in trade between member-States. For there to be a breach of that prohibition it is sufficient that the measures in question are liable to impede, directly or indirectly, actually or potentially, trade between the member-States. It is not necessary that they should have an appreciable effect on intra-Community trade. *255 [21] Secondly, it should be pointed out that, as the Court has already held on many occasions, even national legislation on the marketing of a product which applies to national and imported products alike falls under the prohibition laid down in Article 30 of the EEC Treaty if in practice it produces protective effects by favouring typical national products and, by the same token, operating to the detriment certain types of products from other member-States. [22] A provision such as section 17 of the Wine Regulation, allowing a specific shape of bottle to be used only by certain producers of domestic wine, has protective effects inasmuch as it favours those producers compared to producers in other member-States who traditionally bottle their wine in bottles of identical or very similar shape. [23] If producers in the exporting member-State wish to market their wine in the member-State in which the legislation at issue in the main proceedings was enacted, they must bottle their wine destined for that specific market in bottles different from those which they traditionally use in the country of origin as well as on the markets of the other member-States. The marketing of that wine would thus be made more difficult or costly owing in particular to the additional costs

entailed by the need to bottle those products in a specific way in order to make them comply with the requirements of the market for which they were intended. Moreover, those producers would be deprived of the commercial advantages which they may derive from using on the market in which the legislation in question applies the bottle traditionally used in the country or region of origin. [24] It thus appears that, although such legislation applies to national and imported products alike, in practice it has protective effects. It therefore comes within the scope of the prohibition laid down by Article 30of the EEC Treaty. [25] Thirdly, it is true, as the Court had held many times, that in the absence of comprehensive Community legislation on the bottling of the products in question, obstacles to free trade within the Community owing to disparities between national rules must be accepted in so far as such rules, applicable to domestic and imported products alike, may be justified on the ground that it is necessary to satisfy mandatory requirements relating in particular to consumer protection and fair trading. [26] In principle, the justification for adopting legislation designed to prevent customers from confusing wines of different quality and origin cannot be denied. That concern is particularly worthy in the case of wines, for traditions and peculiarities play an important rôle in this field. Moreover, the second recital in the preamble to Regulation 355/79 states in this regard that: '... the purpose of any description and presentation should be to supply potential *256 buyers and public bodies responsible for organising and supervising the marketing of the products concerned with information which is sufficiently clear and accurate to enable them to form an opinion of the products; ... rules should therefore be drawn up to ensure that this purpose is served' the third recital in the preamble to the regulation then states that: '... steps should be taken to ensure that the information provided is as complete as possible and that it takes account of the different customs and traditional practices in the member-States and in third countries and complies with Community law.' [27] Where, however, it is a matter of determining whether the legislation of a member-State may, in order to protect an indirect designation of geographical origin in the interests of consumers, prohibit the marketing of wines imported in a certain type of bottle, it must be observed that in the system of the Common Market consumer protection and fair trading as regards the presentation of wines must be guaranteed with regard on all sides for the fair and traditional practices observed in the various member-States. [28] In this regard the arguments advanced before the Court have revealed that bottles which are identical in shape to the Bocksbeutel bottle or differ from it only in ways imperceptible to the consumer are traditionally used to market wines originating in certain regions of Italy. An exclusive right to use a certain type of bottle granted by national legislation in a member-State may not therefore be used as a bar to imports of wines originating in another member-State put up in bottles of the same or similar shape in accordance with a fair and traditional practice observed in that member-State. [29] The Government of the Federal Republic of Germany maintains that consumers might be misled if wines from different regions were marketed in the

same type of bottle. In answer to that point it must be observed, however, that the provisions of Community law on the labelling of wines, particularly Articles 12 to 18 of Regulation 355/79 concerning the labelling of quality wines psr, are particularly comprehensive and enable the feared confusion to be avoided. [30] The answer to the first question must therefore be that Article 30 of the EEC Treaty must be interpreted as meaning that the application by a member-State to imports of wine originating in another member-State of national legislation allowing only certain national producers to use a specific shape of bottle when the use of that shape or a similar shape of bottle accords with a fair and traditional practice in the State of origin constitutes a measure having an effect equivalent to a quantitative restriction. Articles 36 of the EEC Treaty (second question) [31] This question of the national court is in substance whether one of the exceptions laid down in Article 36 of the EEC Treaty to *257 the fundamental principle of the free movement of goods may justify the application of a provision allowing only one group of national producers to use a specific shape of bottle. [32] In this connection the Government of the Federal Republic of Germany has submitted first of all that section 17 of the Wine Regulation is justified on grounds of public policy within the meaning of Article 36 of the EEC Treaty since it carries penal sanctions. [33] It should be noted that the mere fact that a rule carries penal sanctions does not suffice to bring it within the concept of public policy, in the meaning of Article 36 of the Treaty. [FN12] FN12 This paragraph was accidentally omitted from the English translation supplied by the Court. It has therefore been translated by us.--Ed. [34] The Government of the Federal Republic of Germany has secondly argued that the presentation of Franconian wine and Baden wine in the 'traditional Bocksbeutel bottle' is an indirect indication of geographical origin and therefore constitutes an industrial or commercial property right which belongs to the wine producers in the specific region and which the rules at issue may legitimately protect. [35] In this regard it need merely be observed, without its being necessary to resolve the questions of law raised by that argument, that producers who traditionally use a bottle of a specific shape may not in any event successfully rely upon an industrial or commercial property right in order to prevent imports of wines originating in another member-State which have been bottled in identical or similar bottles in accordance with a fair and traditional practice in that State. [36] Lastly, the Government of the Federal Republic of Germany has pointed out that on 4 June 1978 a German association called 'Frankenwein--Frankenland eV', whose object is inter alia to protect the right of exclusive use of the Bocksbeutel for bottling Franconian wine, registered a collective mark consisting of a picture of a traditional Bocksbeutel bottle bearing an illustrated label. It

concludes from that fact that the association is the owner of an industrial or commercial property right and that the value of the registered mark would be impaired if it were permissible to use the ' traditional Bocksbeutel' for wines from other regions. [37] The fact that an association of producers has registered a mark depicting a specific shape of bottle bearing an illustrated label and the protection which such registration provides are, however, irrelevant as regards the question whether national legislation allowing only wine producers in certain regions to use a bottle of the same shape is justified under Article 36 of the EEC Treaty. [38] The answer to the second question of the national court must therefore be that Article 36 of the EEC Treaty must be interpreted as meaning that measures having an effect equivalent *258 to quantitative restrictions on imports arising from the fact that national legislation permits a specific shape of wine-bottle to be used only by certain national producers or dealers cannot be justified on grounds of public policy, whether or not the legislation carries penal sanctions; nor can they be justified by the protection of industrial and commercial property on the ground that such a bottle is traditionally used by national producers if identical or similar bottles are used in another member-State in accordance with a fair and traditional practice for marketing wines produced in that State. Costs [39] The costs incurred by the Government of the Federal Republic of Germany, the Government of the Italian Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court. Order On those grounds, THE COURT in answer to the questions submitted to it by the Landgericht München II by order of 28 January 1983, HEREBY RULES: 1. Article 30 of the EEC Treaty must be interpreted as meaning that the application by a member-State to imports of wine originating in another memberState of legislation allowing only certain national producers to use a specific shape of bottle when the use of that shape or a similar shape of bottle accords with a fair and traditional practice in the State of origin constitutes a measure having an effect equivalent to a quantitative restriction. 2. Article 36 of the EEC Treaty must be interpreted as meaning that measures having an effect equivalent to quantitative restrictions on imports arising from the fact that national legislation permits a specific shape of wine-bottle to be used only by certain national producers or dealers cannot be justified on grounds of public policy, whether or not the legislation carries penal sanctions; nor can they be justified by the protection of industrial and commercial property on the ground

that such a bottle is traditionally used by national producers if identical or similar bottles are used in another member-State in accordance with a fair and traditional practice for marketing wines produced in that State. (c) Sweet & Maxwell Limited [1985] 2 C.M.L.R. 238 END OF DOCUMENT