OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 6 July 2023 (1)
Case C‑354/22
Weingut A
v
Land Rheinland-Pfalz
(Request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Germany))
(Reference for a preliminary ruling – Agriculture – Common organisation of the markets – Wines – Designation and presentation of wines – Designations of origin and geographical indications – Delegated Regulation (EU) 2019/33 – Article 54(1) – Labelling – Indication of the holding – Concept of ‘holding’ – Territorial link – Winemaking entirely carried out on the holding – Participation in winemaking by third parties unconnected with the holding – Winepress installation rented for pressing outside the main establishment of the holding that gives its name to the wine)
1. EU law regulates in detail designations of origin, geographical indications and traditional terms in the wine sector, as well as the labelling and presentation of wines.
2. Grapevine products with a protected designation of origin or geographical indication may optionally include in their labelling and presentation certain terms indicating the holding from which they originate. This is stipulated by the second subparagraph of Article 54(1) of Delegated Regulation (EU) 2019/33, (2) Annex VI to which lists those terms for certain Member States.
3. In the dispute giving rise to this reference for a preliminary ruling, a German wine-grower seeks to use the term ‘Weingut’ (estate) in the presentation of his wines, even though the grapes from which those wines are made are grown, harvested and pressed on an estate owned by others, 70 kilometres from the wine-grower’s holding, which he leases.
4. In view of the refusal of the authorities to accept the term ‘Weingut’ in the presentation of these wines, a dispute has arisen in which the issue to be resolved is, in essence:
– whether ‘holding’ is to be understood as a defined physical space, comprising only vineyards and winemaking buildings and premises not separated from the land of the wine producer;
– whether it can be accepted that winemaking has been carried out entirely on the holding when the grapes are pressed in a winepress rented by the producer, outside the area of his or her own estate. If the answer is in the affirmative, the question arises as to what degree of control of the winemaking process the producer is required to have.
I. Legal context
A. European Union law
1. Regulation (EU) No 1308/2013 (3)
5. According to Article 3 (‘Definitions’):
‘…
3. The definitions set out in … Regulation (EU) No 1307/2013 [ (4)] shall apply …’.
6. According to Article 122 (‘Delegated powers’):
‘1. In order to take into account the specific characteristics of the wine sector, the Commission shall be empowered to adopt delegated acts in accordance with Article 227 concerning rules and restrictions on:
…
(c) optional particulars concerning:
…
(iii) terms referring to a holding and the conditions for their use;
…’
2. Regulation No 1307/2013
7. Article 4 (‘Definitions and related provisions’) provides:
‘1. For the purposes of this Regulation, the following definitions shall apply:
…
(b) “holding” means all the units used for agricultural activities and managed by a farmer situated within the territory of the same Member State;
…’
3. Delegated Regulation 2019/33
8. Pursuant to recital 48:
‘The indication of the holding which exploits the vineyards from which the grapevine products come and where all the winemaking processes are carried out, may constitute an added value for producers and a higher quality indication for consumers. It should therefore be permissible for producers to indicate the name of a holding on the labels of grapevine products bearing a protected designation of origin or protected geographical indication.’
9. Article 1 (‘Subject matter’) provides:
‘This Regulation lays down rules supplementing Regulation (EU) No 1308/2013 … as regards:
…
(f) labelling and presentation.’
10. In Chapter IV (‘Labelling and presentation’), Section 2 (‘Optional particulars’), Article 54 (‘Indication of the holding’) provides:
‘1. The terms referring to a holding listed in Annex VI, other than the indication of the name of the bottler, producer or vendor, shall be reserved for grapevine products with protected designations of origin or geographical indications.
Those terms shall only be used if the grapevine product is made exclusively from grapes harvested in vineyards exploited by that holding and the winemaking is entirely carried out on that holding.
…’
11. Article 55 (‘Reference to names of geographical units smaller or larger than the area underlying the protected designation of origin or geographical indication’) provides:
‘1. Pursuant to Article 120(1)(g) of Regulation (EU) No 1308/2013 and without prejudice to Articles 45 and 46, only a grapevine product bearing a protected designation of origin, protected geographical indication or a geographical indication of a third country may have a reference on the label to the name of a geographical unit that is smaller or larger than the area of that designation of origin or geographical indication.
2. Where reference is made to names of geographical units which are smaller than the area underlying the designation of origin or geographical indication, the area of the geographical unit in question shall be well defined by the applicant in the product specification and the single document. Member States may establish rules concerning the use of these geographical units.
…’
12. Annex VI (‘Terms referred to in Article 54(1)’) has the following terms for Germany: ‘Burg, Domäne, Kloster, Schloss, Stift, Weinbau, Weingärtner, Weingut, Winzer’.
B. German law. Weinverordnung (Wine Regulation) (5)
13. Paragraph 38(1) provides for the acceptance of an indication of the holding for Federweißer, Landwein (country wines), Qualitätswein (quality wines), Prädikatswein (premium wines), Sekt (sparkling wines), Qualitätsperlwein (quality sparkling wines) or Qualitätslikörwein (quality liqueur wines) only in accordance with Article 54(1) of Delegated Regulation 2019/33, in conjunction with Annex VI thereto. In paragraphs 3 and 5 it refers to the indication ‘Gutsabfüllung’.
II. Facts, dispute and questions referred for a preliminary ruling
14. The proprietor (‘wine-grower A’) of a holding in Zell, in the German Moselle region, produces wine not only from the grapes of the vineyards that he owns, but also from other vineyards that he leases.
15. One of these leased vineyards, covering 2.15 hectares, is located some 70 kilometres from Zell on a holding belonging to wine-grower B.
16. The two wine-growers have concluded a contract under which wine-grower B cultivates their vines according to A’s instructions and, in addition, rents a winepress installation to A each year, on an exclusive basis, for a period of 24 hours after the harvest of the leased area.
17. Pressing is carried out on the holding of wine-grower B in accordance with the oenological practices of wine-grower A. The wine thus obtained is poured into vats which are transported to the main establishment of wine-grower A by his staff.
18. Wine-grower A seeks to use the terms ‘Weingut’ and ‘Gutsabfüllung’ for the wine pressed in the winepress which he rents from wine-grower B.
19. The Land Rheinland-Pfalz (Federal State of Rhineland-Palatinate, Germany; ‘the Land’) takes the view that, in those circumstances, wine-grower A may not use those two terms.
20. The dispute was brought before the Verwaltungsgericht Trier (Administrative Court, Trier, Germany), which, in its judgment of 16 May 2019, upheld the appeal brought by wine-grower A and ruled that he was entitled to use the terms ‘Weingut’ and ‘Gutsabfüllung’. That court took the view that the relevant point was that the actual direction, continuous supervision and exclusive responsibility for winemaking lay with wine-grower A.
21. The Land appealed to the Oberverwaltungsgericht Rheinland-Pfalz (Higher Administrative Court, Rhineland-Palatinate, Germany), which, in its judgment of 12 August 2020, reversed the judgment at first instance and dismissed the claim of wine-grower A.
22. The court of appeal based its judgment, in essence, on the following arguments:
– Pursuant to Article 54(1), in conjunction with Annex VI to Delegated Regulation 2019/33, the indication ‘Weingut’ requires that winemaking take place on a holding, understood not as an organisational unit but as an operational unit with a permanent establishment which is permanently used by its owner for wine production and on which staff are employed under his or her management. A separation of the stages of winemaking, such as the pressing stage, is at odds with the idea that ‘everything should remain in the same hands’.
– The contract for the rental of the winepress does not guarantee that all stages of wine production are carried out under the direction and responsibility of the same person. On the contrary, the contract allows for pressing to be carried out both in the presence of the producer and in the presence of a winepress operator in the service of its owner, which does not guarantee the continuous direction and responsibility of wine-grower A.
23. Wine-grower A has challenged the judgment on appeal before the Bundesverwaltungsgericht (Federal Administrative Court, Germany), which refers the following questions to the Court of Justice for a preliminary ruling:
‘(1) Can winemaking have been entirely carried out on the eponymous wine-growing holding within the meaning of the second subparagraph of Article 54(1) of Delegated Regulation [2019/33] if the pressing takes place in a winepress installation which has been rented from another wine-growing holding for 24 hours and is exclusively at the disposal of the eponymous wine-growing holding during that period?
(2) If that question is answered in the affirmative, is it necessary that the pressing be carried out or at least supervised on-site by employees of the eponymous wine-growing holding, or can the pressing also be carried out by employees of the wine-growing holding renting out the winepress installation in accordance with the instructions of the eponymous wine-growing holding?
(3) If the pressing can also be carried out by employees of the wine-growing holding renting out the winepress installation, can they be given the authorisation to intervene in the pressing on the basis of an individual decision in the event of unexpected problems?
(4) Is attribution of the winemaking to the eponymous wine-growing holding precluded if the wine-growing holding which rents out the winepress installation and carries out the winepressing has an interest of its own in the manner in which the winepressing is carried out, because a yield- and quality-dependent supplement per hectolitre of Kabinett/Spätlese/Auslese wine on top of the area-based exploitation fee is agreed in the vineyard exploitation agreement which has also been concluded with that holding?’
III. Proceedings before the Court of Justice
24. The request for a preliminary ruling was received at the Court on 1 June 2022.
25. Written observations were lodged by wine-grower A and the European Commission. Both of them, as well as the Land, took part in the hearing held on 3 May 2023.
IV. Analysis
A. The first question
26. The referring court seeks to ascertain, in essence, whether winemaking may be regarded as having been entirely carried out on the holding which gives its name to the wine where the pressing takes place in a press rented for 24 hours by another holding. (6)
27. According to the referring court:
– The way the law has developed shows that the wording of Article 57(1)(b) of Regulation (EC) No 607/2009 (7) entails a restriction, since winemaking must be carried out ‘entirely’ on the holding.
– The sense and purpose of the regulation seem to be to protect the identification of holdings that cultivate the vineyards themselves and carry out winemaking from start to finish, associated with an expectation on the part of consumers of superior wine quality.
– However, this assertion is not entirely watertight. If the leasing of vineyards located at a considerable distance from the holding’s principal place of business has no impact on the indication, then logically the renting of a winepress to press the grapes on the spot and avoid transporting the grapes will have no impact either. In fact, the joint use of operating facilities is common in wine production and is commercially sensible.
28. Delegated Regulation 2019/33 was issued by the Commission pursuant to the powers conferred on it by Article 122 of Regulation No 1308/2013. (8) Among the aspects which delegated acts may cover are ‘terms referring to a holding and the conditions for their use’ (Article 122(1)(c)(iii) of Regulation No 1308/2013).
29. Pursuant to that, Article 54 of Delegated Regulation 2019/33 sets out the conditions for using the ‘indication of the holding’. It refers to Annex VI as regards the list of admissible terms (9) on the labelling or presentation of the product that refer to a holding.
30. It follows from Article 54 of the delegated regulation that those terms:
– must be different from the indication of the name of the bottler;
– are reserved for grapevine products with protected designations of origin or geographical indications;
– may ‘only be used if the grapevine product is made exclusively from grapes harvested in vineyards exploited by that holding and the winemaking is entirely carried out on that holding’.
31. It is the latter requirement that has given rise to the justified doubts of the referring court and that has resulted in divergent, but also well-founded, interpretations by the courts of first instance and of appeal. There is no debate about the other two requirements, which no party disputes in this case.
32. My answer to this question will deal with the concept of a holding and the requirement that the winemaking process be carried out entirely on that holding.
1. Holding
33. At first sight, the second subparagraph of Article 54(1) of Delegated Regulation 2019/33 appears to link the term ‘holding’ with the physical area on which the wine-grower who aspires to use the term (here, ‘Weingut’) cultivates his or her own vines and carries out the winemaking process.
34. The provision requires, as stated above, that the grapes must have been harvested in vineyards exploited by that holding and that the winemaking must have been carried out entirely on that holding. (10) Recital 48 of Delegated Regulation 2019/33 confirms this by referring to the ‘holding which exploits the vineyards from which the grapevine products come and where all the winemaking processes are carried out’. (11)
35. According to the first interpretation of the provision, the term ‘holding’ would mean the estate, encompassing the areas under vines and the buildings and premises in which the winemaking process is carried out on the grapes (harvested there). That is the position of the court of appeal.
36. However, ‘holding’ may be understood to mean all the elements, material and human, organised for the purposes of production. In that sense, it would be associated more with the notion of ‘undertaking’ and less with its geographical location. The fact that a wine is linked to a holding does not necessarily mean that it comes from the vineyards located on the latter’s growing plots.
37. The different semantic connotation of the term ‘holding’ leads to different results:
– If the holding is equivalent to the estate in a geographical sense, neither the vineyards nor a winepress located outside the holding would fulfil the conditions of Article 54 of Delegated Regulation 2019/33.
– On the other hand, if the holding is understood as an undertaking, the physical location of the vineyards or the winepress would not be decisive (provided that the control requirements referred to below were complied with).
38. The linguistic approach is far from definitive, because Delegated Regulation 2019/33, although it uses it, does not define the term ‘holding’. Nor does Regulation No 1308/2013 directly define the term, referring, however, in Article 3(3) thereof, to the definitions contained, inter alia, in Regulation No 1307/2013. (12)
39. Pursuant to Article 4(1)(b) of Regulation No 1307/2013, ‘holding’ means ‘all the units used for agricultural activities and managed by a farmer situated within the territory of the same Member State’.
40. This chain of references is important because if the definition of the term ‘holding’ in Regulation No 1307/2013 is valid for Regulation No 1308/2013, it will also be valid for Delegated Regulation 2019/33, which derives from it. The term is the same and it must therefore be interpreted uniformly. (13)
41. The focus in terms of agricultural aid is not unrelated to the regulation of wine: as agricultural products, grapevine products fall within the scope of Regulation No 1308/2013 pursuant to Article 1 thereof, in conjunction with Part XII of Annex I thereto.
42. In short, everything seems to indicate that, also with regard to Delegated Regulation 2019/33, the term ‘holding’ does not necessarily identify a single agricultural area.
2. Case-law of the Court of Justice on the concept of ‘holding’
43. The referring court rightly maintains that, in the absence of a definition of ‘holding’ in Delegated Regulation 2019/33, it is reasonable to have recourse to the case-law interpreting that term in the field of agricultural production.
44. The Bundesverwaltungsgericht (Federal Administrative Court) has a thorough knowledge of the case-law of the Court of Justice. In its order, it states that that case-law ‘has clarified the circumstances under which a production unit that is only leased is to be attributed to a holding and is managed by the farmer’. (14)
45. It adds, citing the relevant judgments, that, according to the Court of Justice:
– The decisive factor is, in particular, whether the farmer enjoys a degree of autonomy sufficient for the carrying-out of his or her agricultural activity. (15)
– It is not necessary for the farmer to have unlimited power, but he or she must have a certain amount of discretion in the conduct of his or her agricultural activities. (16)
– The parallel pursuit of a non-agricultural activity must not, by reason of its intensity, nature, duration and timing, significantly hamper the farmer’s activity which determines the allocation. (17) Only in such a case may the farmer be regarded as independently operating the leased premises. (18)
46. Indeed, the Court of Justice has ruled on the linking of agricultural land to a holding, and has come up with criteria relating to its management, in relation to provisions that used the term ‘holding’ in a similar way to Regulation No 1307/2013 (to which Regulation No 1308/2013 and, by extension, Delegated Regulation 2019/33 refer).
47. This case-law pays particular attention to the element ‘units’ (or ‘production units’), as constituent parts of a ‘holding’, in connection with its management or administration.
48. In the judgment in Landkreis Bad Dürkheim, the Court of Justice held that, in order to deem the use of an agricultural area to be part of the production units managed by a farmer, the nature of the legal relationship on the basis of which the area was used was not relevant. (19) It emphasised that ‘an area is allocated to a farmer’s holding where he has the power to manage that holding for the purposes of an agricultural activity [in respect of which] the farmer must enjoy a degree of autonomy … sufficient for the carrying-out of his agricultural activity’. (20)
49. The lack of geographical proximity of the production units is more pronounced in the judgment in Agrargenossenschaft Alkersleben. In that case, a producer whose holding was located in one Land of Germany transferred the essential part of his production to another Land. In the view of the Court of Justice, the change in the production units exploited was not relevant: the producer has the freedom to choose the place of production. However, he or she is required to manage a set of production units (even if he or she does not own them) located within the geographical territory of a Member State. (21)
50. The judgment in Avio Lucos interpreted the notion of ‘holding’, referred to in Regulation No 1307/2013, underlining, once again, the link between production units and their management (and not necessarily their ownership) by the farmer. (22)
51. The line of reasoning which emerges from those judgments favours a reading of the term ‘holding’ that does not restrict it to land owned by the producer, but allows it to be extended to leased land (which is thus situated on agricultural areas other than those belonging to the producer).
3. Application of those criteria to the case at issue
(a) ‘Grapes harvested in vineyards exploited by the holding’
52. On the basis of that line of reasoning, there would be no objection to the product which the producer wishes to present under the term ‘Weingut’ being made from grapes harvested in vineyards which, although not physically belonging to the holding which gives the wine its name, are situated on land leased by the producer. (23) The functional, rather than merely spatial, significance of the term ‘holding’ would allow this.
53. All parties at the hearing, including the Land, were unanimous in taking such a view. The position taken by the Land is particularly relevant, since it accepts that the holding the indication of which will be displayed in the presentation of the wine may include other, possibly remote, vineyards that the operator of that holding does not own.
54. As I have already argued, (24) the referring court seems to draw the same conclusion: the leasing of vineyards located at a considerable distance from the principal place of business of the wine-grower should not, in principle, have any bearing on the use of terms that refer to the holding. (25)
55. Unlike Article 5 of Regulation (EEC) No 997/81, (26) the first subparagraph of Article 54(1) of Delegated Regulation 2019/33 reserves the terms at issue here ‘for grapevine products with protected designations of origin or geographical indications’. (27)
56. That explains why, in the present dispute, the fact that the rented vineyards are situated approximately 70 kilometres from Zell, the producer’s principal place of business, does not pose any problem, since they belong to the same region covered by a protected geographical indication. (28)
57. The regulatory framework also specifically provides for the possibility of linking quality and smaller territorial units of wine production. Article 120(1)(g) of Regulation No 1308/2013, supplemented by Article 55 of Delegated Regulation 2019/33, permits the labelling or presentation of wines to contain, as an optional indication, ‘the name of a geographical unit that is smaller or larger than the area of that designation of origin or geographical indication’.
58. The use of the term ‘geographical unit’ to refer to such smaller areas, and the corresponding absence of that term to designate the agricultural holding that is to give its name to the wine, demonstrates that the latter does not necessarily have to be characterised by land within the same perimeter belonging to the producer. By contrast, the holding which gives its name to the wine may include land owned by another person, leased or rented to the producer, who carries on his or her agricultural activity on that land.
59. The referring court has highlighted an objection that may be advanced against the above: (29) if the incorporation (in the labelling or presentation of wine) of terms referring to the holding is intended to ‘better inform the consumer about the place where the grapevine product was produced, in particular where such places are well known by consumers’, (30) are consumers not misled by interpreting the concept of ‘holding’ in the sense referred to above?
60. The objection is serious, but not insurmountable. The consumer will rely on wine of high quality presented under the term that gives its name to the holding and is entitled to be sure that the relationship between the wine and the holding has not been nullified. However, in order for that to be the case, it is not essential for the wine to come precisely from land which the producer owns; it is sufficient for the wine to be produced under his or her direction, responsibility and supervision, as the operator of the holding in the functional sense of the term highlighted above.
(b) Pressing, as part of the winemaking process
61. The second subparagraph of Article 54(1) of Delegated Regulation 2019/33 distinguishes between grape harvesting on the one hand and winemaking on the other. The winemaking process comprises several stages, including pressing.
62. It must therefore be determined whether the concept of ‘holding’ used hitherto (31) is valid where, under that provision, winemaking is to be carried out entirely on the holding which gives the wine its name. (32)
63. I take the view that the considerations relating to a flexible and functional understanding of the concept of ‘holding’ (not connected with the geographical area, but rather with the management, administration and responsibility of the producer for the units used for production) can be applied not only to the growing and harvesting of the grapes but also to pressing, as part of the winemaking process.
64. From that perspective, winemaking will take place entirely on the holding that gives its name to the wine, even if part of that process takes place in a facility located outside the perimeter of the land belonging to the producer, if the winepress is part of that holding (the one that gives its name to the wine) in the functional sense indicated above.
65. Having recognised that the tasks of cultivating and harvesting the vineyards, which are essential for the final outcome, do not require a territorial connection with the land owned by the wine-grower (since he or she may lease other land which will form part of his or her holding), the same reasoning is a fortiori applicable to the pressing of the wine. (33)
66. Again, the participants at the hearing, including the Land, concurred in that assessment. The physical location of the winepress is not the relevant fact. It is, however, essential for the wine-grower who owns the holding which gives its name to the wine to exercise sufficient control over the pressing, which is the subject of the other questions referred for a preliminary ruling.
67. That solution does not conflict with the case-law of the Court of Justice on the conduct of winemaking processes, from which no unambiguous solutions can be drawn, as it has focused on the particularities of each case. That is rightly emphasised by the referring court, when it states that:
– It is not possible to infer from the judgment of 18 October 1988, Erzeugergemeinschaft Goldenes Rheinhessen, (34) any lessons applicable to the present case, since that dispute concerned bottling and not winemaking. Furthermore, the rules interpreted at the time differed from those governing the present case.
– Nor do the considerations in the judgment of 29 June 1994, Baux, (35) provide much more clarity. Although it was stated that the applicable legislation did not require wine-growers to own the winemaking premises, that statement referred to the difference between wine-growers owning premises and a cooperative, which itself acted as a ‘holding’, owning premises. That cooperative grew grapes in its own vineyards and produced wine on its own premises.
68. Of the situations referred to in those two judgments, the judgment in Baux (36) has a certain similarity with the present case, since the use of the term ‘château’ to indicate the name of a holding was at issue. The Court of Justice took the view (37) that the rules applicable to the dispute:
– On the one hand, guaranteed ‘to consumers who [purchased] wine bearing a prestigious name, such as “château”, that the main stages involved in the process of making that wine, namely those between harvesting and wine production, [were] carried out under the actual direction, close and continuous supervision and exclusive responsibility of a wine-grower with whom the quality of the product [could] be associated’. (38)
– On the other hand, it was necessary ‘that all the grapes [be] harvested in vineyards forming part of that undertaking and that reliable procedures [be] introduced to ensure that the grapes harvested on land belonging to the original estate of the château [be] made into wine separately’. (39)
69. The judgment in Baux displays a certain ambivalence, stemming from the particularities of that case. Although it is in line with the essential idea of actual direction of the holding and the responsibility of the producer to whom the quality of the wine is attributed, it nevertheless introduces some ambiguity as to the territorial link with the grapes produced on the land of the ‘château’.
70. The Court of Justice states that the rules do not ‘require wine to be made on premises situated on an estate comprising a château’ (nor that wine-growers must themselves be the owners of the winemaking premises). However, it then seems to advocate a territorial link between winemaking and the specific land on which the vines are cultivated.
71. In the light of all those factors, I consider that the pressing of grapes may be regarded as having been carried out on the holding which gives its name to the wine when it is carried out in a winepress rented out for the exclusive use of the operator of that holding.
72. Thus, and in view of the potentially high costs of pressing facilities, (40) it is easier for small producers to enter the market on equal terms. (41) If the use of quality terms referring to a holding were limited to wine-growers who have all the production units on their own land, opportunities to use such terms would be limited to large companies, to the detriment of competitiveness and to the detriment of small producers. (42)
73. As the referring court points out, that solution has prevailed in another Member State (Austria) (43) which authorises the outsourcing, under contract, of wine processing, production, pressing or filtering operations. Austria does not appear to require a strict link between the permanent establishment and the holding which gives its name to the wine. (44)
74. An affirmative answer to the first question opens the door to the analysis of the subsequent questions.
B. Second and third questions referred
75. These two questions, which can be dealt with together, must be considered following an affirmative answer to the first question. That being so, the referring court refers to the involvement of the holding’s own or other workers in the pressing of the grapes in the leased installation.
76. Specifically, its questions are as follows:
– ‘Is it necessary that the pressing be carried out or at least supervised on-site by employees of the eponymous wine-growing holding, or can the pressing also be carried out by employees of the wine-growing holding renting out the winepress installation in accordance with the instructions of the eponymous wine-growing holding?’
– ‘If the pressing can also be carried out by employees of the wine-growing holding renting out the winepress installation, can they be given the authorisation to intervene in the pressing on the basis of an individual decision in the event of unexpected problems?’
77. At the hearing, the parties’ and the Commission’s comments focused precisely on aspects relating to the workers involved in the pressing. The Land expressed concerns about the mechanisms for controlling the direction, supervision and responsibility of the producer, where the latter has rented technical installations and used external service providers.
78. It follows from the case-law cited above that the producer must in any event ensure that the winemaking carried out in facilities that are rented but that form part of his or her holding (in the functional sense described above) follows the same techniques or practices as those employed on the holding of which he or she is the owner.
79. A wine-grower who carries out the pressing of the grapes in a rented press must, in doing so, therefore assume ‘the actual direction, close and continuous supervision and exclusive responsibility’ (45) for this (and other) stages of the winemaking process.
80. Subject to that condition, there is nothing to prevent the pressing from being carried out by the workers who normally operate the winepress (46) and not by those of the holding which gives its name to the wine. However, in order for the process to be attributable to the operator of such a holding, the wine-grower who rents the winepress must ensure (either in person or by means of staff employed by him or her or under a contract for the provision of services) that the pressing complies with his or her requirements.
81. I do not believe that it is sufficient for general instructions to be given to the holding that rents out the winepress installation, as it is not out of the question that unforeseen events may arise during the pressing operation which require immediate decisions to be taken. Such decisions may be taken only by the producer or his or her staff, without delegation to third parties, since only the producer or his or her staff are fully aware of the specific characteristics of his or her winemaking method.
82. I do not believe that the Court of Justice should do more than state this criterion. It is for the administrative authorities (possibly the regulatory councils of the protected designation of origin or geographical indication) to translate the criterion into more precise rules.
83. Ultimately, it is for the referring court to determine whether the degree of intervention by the producer in the pressing operations carried out in the winepress which he or she rents meets those requirements. The contract signed for the rental of the facilities will be a relevant element (although not the only one) in defining the limits of each party’s activities.
C. Fourth question referred
84. The referring court wishes to know the extent to which the fact that the holding which rents out the winepress installation where the pressing takes place has an economic interest of its own in the manner in which the pressing is carried out may have an influence. Such an interest may derive from the fact that the contract has provided for a price supplement, linked to yield and quality.
85. It is for the court responsible, in each specific case, for settling a dispute on this matter to determine whether a contractual clause gives rise to an economic risk that could conflict with the exclusive liability of the operator of the holding which gives its name to the wine.
86. However, I am of the opinion that the agreed remuneration and incentives need not hinder the producer’s actual capacity to take decisions and supervise the pressing operations. As the person responsible for the winemaking process, it is also in his or her own interest that, without detracting from the application of the techniques or practices that determine the oenological characteristics of his or her wines, pressing should result in higher yields while maintaining the product’s quality.
V. Conclusion
87. In the light of the foregoing, I suggest that the Court of Justice’s answer to the Bundesverwaltungsgericht (Federal Administrative Court, Germany) should be as follows:
The second subparagraph of Article 54(1) of Commission Delegated Regulation (EU) 2019/33 of 17 October 2018 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council as regards applications for protection of designations of origin, geographical indications and traditional terms in the wine sector, the objection procedure, restrictions of use, amendments to product specifications, cancellation of protection, labelling and presentation
must be interpreted as meaning that:
(1) It may be accepted that winemaking has been carried out entirely on the holding which gives its name to the wine when the grapes have been pressed in a winepress installation which has been rented from another holding for 24 hours and is exclusively at the disposal of the eponymous wine-growing holding during that period, provided that the operator of that holding assumes actual direction, close and continuous supervision and responsibility for the operation.
(2) Under the same conditions of actual direction, close and continuous supervision and responsibility on the part of the operator of the holding which gives its name to the wine, there is nothing to prevent the workers of the agricultural holding which rents out the winepress from being involved in the pressing of the grapes, or to prevent the rental contract from including clauses providing for a price supplement linked to the yield and quality per hectolitre of wine.