I wrote:Thank you very much for your letter of 14th February, which helpfully details the IVDP’s stance and the reasoning behind it, and even does so in English. Before tackling the substance of your letter† , I happily accede to your request: yes, please do send a copy of my letters (the previous one, and this one†¡) to the Port Wine Shippers Association, and also to the IVDP’s legal advisers.
† At www.theportforum.com/viewtopic.php?p=10360#10360 this correspondence has been discussed by some of my port-loving friends. You are invited to comment in that thread. But, of course, I will keep confidential any reply that you mark as such.
†¡ If it would be easier for you to have this letter in PDF, even if only for clickable links, please email request to [my email address not shown on public bulletin board but available from www.jdawiseman.com/author.html].
Your letter raises four points that are discussed in detail below. In summary:
1. Even if the IVDP’s understanding of 75/106/EEC is correct, the IVDP’s rules should be as unrestrictive as possible.
2. The IVDP’s understanding of 75/106/EEC is incorrect: port actually lies within 1.(a) of 75/106/EEC, and hence allowed bottle sizes are, in litres, 0.10, ¼, 0.187, ⅜, ½, ¾, 1, 1½, 2, 3, 4, 5, 6, 8, 9, and anything ≥10L.
3. Even if my reading of the rules is wrong, it doesn’t matter: Brussels wants the rules to be as liberal as possible (Lisbon Agenda 2000), so will not criticise a more generous reading.
4. Even if that is wrong, there are other loopholes in EU rules, in which case the IVDP should be explicitly permitting the use of those loopholes.
So, on with the details.
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1. The IVDP’s letter describes its understanding of 75/106/EEC (as amended). Even if this reading is correct (which it isn’t), the IVDP’s rules are more restrictive than they need be. The IVDP’s reading of 75/106/EEC is that some bottle sizes up to and including 5L are allowed, but the IVDP prohibits anything larger than a 3L double-magnum. Even if 95% of the port houses would never bottle anything larger than 3L, the IVDP’s should allow those who do—and there are some—to sell those larger bottles.
Your letter also says:
However, we must underline that the use of very large bottles may be dangerous for the protection of this prestigious appellation of origin, as it may allow the practice of frauds.
This claim appears to be nonsensical. Forgeries happen to below-the-radar stuff. If a house bottled only 24 imperials of its 2007, an auctioneer can easily check provenance. And if Château Mouton Rothschild 2000 can be bottled in 5L and 15L sizes (and sold at an eye-watering price in New York), the more restrictive rules clearly aren’t needed “for the protection of this prestigious appellation†.
Summary: the IVDP’s rules about bottle sizes should be as generous as EU rules allow.
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2. Next we come to a more technical reading of the details of the rules.
Wine is divided into various types by 75/106/EEC (as amended)† , of which port, being a non-sparkling non-French wine made from fermented grape, can only fall into 1.(a) or 1.(d). But which?
† Page 13 of eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1975L0106:20040501:EN:PDF[1.] (d) Vermouths and other wines of fresh grapes flavoured with aromatic extracts (CCT headi,g No 22.06); liqueur wines (CCT subheading ex 22.05 C)
Port clearly isn’t a Vermouth as it isn’t “flavoured with aromatic extracts†, so port falls into 1.(d) only if it lies within Common Customs Tariff†¡ paragraph 22.05. This has three sub-paragraphs, (a), (b), and (c), and port does not fall into any of those three, as I now describe.
†¡ Page 165 of eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:286:0001:0894:EN:PDF
[22.05] (a) grape must with fermentation arrested by the addition of alcohol, that is to say, a product:
— having an actual alcoholic strength by volume of not less than 12 % vol but less than 15 % vol, and …
Neither an intermediate product, nor the final port product, has alcohol between 12% and 15%. So port doesn’t fall into 22.05 (a).
[22.05] (b) wine fortified for distillation, that is to say, a product: …
— obtained exclusively by the addition to wine containing no residual sugar …
The port I drink has more than “no residual sugar†, so is not 22.05 (b).
CCT 22.05 (c) is excluded from 75/106/EEC 1.(d), but fails anyway, so, even if a lettering error, doesn’t matter.
[22.05] (c) liqueur wine, that is to say, a product: …
— obtained from grape must or wine, which must come from vine varieties approved in the third country of origin for the production of liqueur wine and have a minimum natural alcoholic strength by volume of 12 % vol, …
- — by the addition during or after fermentation:
- — of a product derived from the distillation of wine, or …
However, certain quality liqueur wines appearing on a list to be adopted may be obtained from unfermented fresh grape must which does not need to have a minimum natural alcoholic strength by volume of 12 % vol.[/i]
The wine to which the alcohol is added does not “have a minimum natural alcoholic strength by volume of 12 % vol† (see definition in Additional notes:
‘natural alcoholic strength by volume’ means the total alcoholic strength by volume of a product before any enrichment). And the “third country† part is puzzling: this might be describing something horrible made from imported grapes, like British Sherry. Even the last clause of 22.05 (c) fails to be port, as the alcohol is not added to something “unfermented†.
Just for emphasis, CCT 22.08 makes very clear that 22.05 isn’t port:
[22.08] Only vermouth and other wine of fresh grapes flavoured with plants or aromatic substances having an actual alcoholic strength by volume of not less than 7 % vol shall be regarded as products of heading 2205.
No flavouring with “plants†? No flavouring with “aromatic substances†? Not the ports I drink. Hence, in the Common Customs Tariff, port really isn’t 22.05. Hence in 75/106/EEC port is not 1.(d); port is 1.(a). Hence EU rules allow port to be bottled 0.10L, 0.25L, 0.375L, 0.50L, 0.75L, 1L, 1.5L, 2L, 3L, 5L, 6L, 9L, 10L, 0.187L, 4L, and 8L (in the order given in 75/106/EEC (as amended)).
Please, the IVDP should explicitly and clearly permit all these sizes, for new bottlings and for old.
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3. It doesn’t matter if I am wrong.
Lets say that the IVDP’s lawyers discover that, though port isn’t 75/106/EEC 1.(d) in English, perhaps it might be in Finnish or Hungarian or Irish. It doesn’t matter. Brussels understands that rules can help markets function, but that excessive rules just get in the way (Lisbon Agenda 2000). Hence if there is any reading of the rules that allows a 6L bottle, even if it is an unreasonable reading that is obviously wrong (not my reading!), you will be allowed to get away with it until the rules are ‘clarified’, that is, changed to be less restrictive. It is a political decision, and Brussels wants Italy to stop such needless regulation of everything.
Please, instruct your lawyers to be non-paranoid. The IVDP really can allow all bottle sizes permitted under 75/106/EEC 1.(a), including 6L.
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4. Even if your lawyers are unnecessarily paranoid, there are other loopholes.
75/106/EEC (as amended) doesn’t actually regulate bottle sizes, though it might look like it does. It regulates labels, saying that they can have only certain values, and that the value must not be larger than the actual volume (with some small statistical inaccuracy). So it would be perfectly legal to put a 500cl label on a 600cl bottle, and add to the back label words such as:
- This bottle, before being filled with port, was able to hold 600cl of liquid. EU regulations (75/106/EEC, including amendments up to 89/676/EEC) do not allow a bottle of port to be labelled as containing 600cl; hence the inaccurate “500cl† written on the front label. But we are confident that customers understand: before being filled with port this bottle could hold 600cl of liquid.
Nothing in 75/106/EEC prevents the labelling and sale of such a ‘pseudo-Imperial’. And, in the Eurosceptic British market, such a wording would please many customers. The IVDP’s website should blatantly describe this practice as a “necessary circumvention of silly bureaucratic rules†.
In short, if the IVDP’s lawyers insist that port is 75/106/EEC 1.(d), the IVDP should then explicitly allow and facilitate such pseudo-labelling.
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This letter contains an interpretation of a Brussels Directive. I’m not a lawyer—otherwise I would be charging you thousands of euro for this letter. Instead it is free. But if you act on it, as you should, please encourage the port houses to believe that they have a moral obligation to sell me some interesting bottles at a price somewhere between fair and generous. UK delivery, despite the US postal address. Thank you.
Yours sincerely,
Julian D. A. Wiseman
PS: You mention “IVDP Regulation n.° 23/2006 (published in the Portuguese Official Journal, II, 12 of April of 2006)†, which I have been unable to locate. Is it similar to Regulation n.° 48/2006?
FTLOP newsletter, 
