The Gazette 1975

force at the relevant time; and (2) a declaration that

they were entitled to use the expression "champagne

perry" on and in relation to perry, provided that such

use was not contrary to any government regulation in

force at the relevant time. A statement of claim and an

amended statement of claim were served in November

1970 and July 1971. By their original defence and

counterclaim the defendants denied that the plaintiffs

were entitled to the declarations asked for, claiming

that in the United Kingdom "champagne" meant the

naturally sparkling wine produced in the Champagne

district of France by the defendants and those whom

they represented, and no other wine; and that the use of

the word "champagne" in connection with any beverage

other than champagne was likely to lead to the belief

that such beverage was a substitute for or had the

character of champagne; and they claimed injunctions

restraining the plaintiffs from using in the course of

trade the word "champagne" in connection with any

beverage not being a wine produced in the Champagne

district of France in such manner as to be likely to lead

to the belief that such beverage was connected with

champagne.

On 26 March 1973 after the United Kingdom had

become a member of the European Economic Commu-

nity and, under the European Communities Act, 1972,

which came into force on 1 January 1973, the Treaty

establishing the European Economic Community

(known as the Treaty of Rome) became part of English

law, the defendants amended their defence to add by

paragraph 9a the claim :

"following the adherence of the United Kingdom to

the European Economic Community the use of the

word 'champagne' in connection with any beverage

other than champagne will contravene European

Community law"

and stated that they would rely on the provisions of

European Community law viz. (i) Regulation (EEC)

No. 816/70 (dated 28 April 1970) of the Council of

European Communities—Article 30; and (ii) Regulation

(EEC) No. 817/70 (dated 28 April 1970) of the Council

of European Communities—Articles 12 and 13. By a

further amendment they counterclaimed for a declar-

ation that the use by the plaintiffs of the expressions

"champagne cider" and "champagne perry" in relation

to beverages other than wine produced in the Cham-

pagne district of France was contrary to Community

law.

In November 1973 the defendants gave notice of

motion in the Chancery Division asking for an order

that the question (a):

"Whether upon the true interpretation of the regula-

tions particularised or any other relevant provisions of

European Community law the use of the word 'cham-

pagne' in connection with any beverage other than

champagne is a contravention of the said regulations

or other provisions of European community law

should be referred for a preliminary ruling in accord-

ance with Article 177 of the Treaty establishing the

European Economic Community to the Court of Justice

of the European Communities at Luxembourg and that

all further proceedings in the action be stayed until the

Court of Justice had given its ruling on the question

or until further order; and by a further notice of

motion then asked that question (b) :

"Whether on the true interpretation of Article 177 of

the Treaty a national Court of a Member State

should, where there is no earlier decision of the Court

of Justice of the European Communities, refer to the

Court of Justice such a question as has been raised

herein, even though the national Court is not com-

pelled to do so under the said article"

should also be referred.

Whitford J. on 14 December 1973 declined to refer

question (a) at the then stage of the proceedings, being

unconvinced that it was a question which could only

be answered in the light of a ruling given by the

European Court; and so far as question (b) was con-

cerned the judge did not consider it necessary to refer

the question at all for the purpose of enabling him to

give a judgment.

The defendants appealed on the grounds that the

Judge had misdirected himself in the exercise of his

discretion under Article 177 of the Treaty and R.S.C.,

Ord. 114, and that such part of his judgment was

wrong and ought to be set aside.

Judgment was delivered in the Court of Appeal on

22 May, 1974 — (1974) 2 All ER 276.

THE HALF-YEARLY

MEETING

OF THE LAW SOCIETY

will be held in

WESTPORT, CO. MAYO

from

9th-11th May,

1975

Programme of Lectures will

be anounced subsequently.