Question 1

How do you ship wine cheaply?

Accepted Answer

There are basically a number of logistics service providers available for shipping wine. The most common parcel services in Germany are UPS, Hermes, DHL, GLS and DPD.

wein.plus has been working very successfully with UPS for many years. The framework agreement offers Business Premium members of wein.plus price discounts of up to 70 per cent compared to the regular rates for national and international parcel shipping. In addition, the fuel surcharge is included for shipments within Germany. Details can be found in the wein.plus benefits world for members: Parcel shipping with UPS

With UPS, compliance with the Youth Protection Act, which prohibits the distribution of alcohol to persons under 16 years of age, is also uncomplicated. With the "UPS proof of delivery - signature of an adult required", wine shippers can easily avoid legal problems.

When sending wine, it is important to use only certified shipping boxes, as only then are the goods insured. Exclusively for its members, wein.plus provides certified shipping boxes, which are very reasonably priced due to the high purchase volume of the community. Details can be found in the wein.plus world of benefits for members: shipping packaging

Furthermore, the Packaging Act will come into force in Germany on 1 January 2019, replacing the previous Packaging Ordinance. According to the new law, wine suppliers must have their import and sales packaging taken back and recycled via a waste separation system. This affects, for example, shipping cartons, adhesive tape, filling material, air cushions, glass and bottle caps. Wine shippers must register with the Central Packaging Register Foundation (ZSVR), participate in a dual system and license their packaging; otherwise they face sales bans and fines of up to 200,000 euros. The environmental service provider Interseroh offers a convenient and low-cost solution for packaging licensing with "Lizenzero" - Business Premium members of wein.plus receive a price advantage of 12 per cent here. Details can be found in the wein.plus world of benefits for members: Packaging licensing with Interseroh

Question 2

What effects will the new packaging law have for wine merchants in Germany from 1 January 2019?

Accepted Answer

The German Packaging Act (VerpackG) came into force in Germany on 1 January 2019 and replaces the Packaging Ordinance valid until 31 December 2018. The aim of the law is, firstly, to recycle certain packaging materials to a greater extent than before and, secondly, to generally reduce the volume of waste. To this end, the regulations on waste separation, disposal, reuse and recycling will be tightened.

Licensing obligation for packaging

All mail order companies and thus also all wine merchants in Germany who ship wine to their customers are affected by the new regulations. The law obliges every consignor of goods to license all packaging that he puts into circulation commercially for the first time. According to § 3 VerpackG, packaging is "products manufactured from any material for the reception, protection, handling, delivery or presentation of goods, which may range from raw materials to processed products, which are passed on from the manufacturer to the distributor or final consumer". In the wine trade this applies to shipping cartons as well as to adhesive tape, filling material, air cushions, bottle sleeves and all other packaging material.

The law refers to the shipping and product packaging. In the case of wine, it is usually the producer (i.e. the winemaker) who must license the product packaging (bottles, caps, etc.), as he is the one who puts them into circulation commercially for the first time. He must also license all packaging materials that are used for shipping from the winery to the wine merchant. The wine merchant must then license the packaging materials used for shipping to the customer. Winemakers who themselves ship wines to their customers must fully license both the product and the necessary shipping packaging.

Obligation to participate in a dual system

§ Section 7(1) of the Packaging Act obliges all traders who put sales packaging or secondary packaging filled with goods (in this case wine) into circulation for the first time on a commercial basis to participate with this packaging in at least one waste separation system. Those who do not participate in such a dual system may not use any shipping packaging commercially.

Obligation to register in the packaging register

According to § 9 VerpackG, every mail order company (distributor) must register with the Stiftung Zentrale Stelle Verpackungsregister (ZSVR) - www.verpackungsregister.org. Without this registration, it is prohibited as of 1 January 2019 to put sales or repackaging filled with goods that accumulate at the private end customer commercially into circulation. Those who do so without prior registration risk a fine of up to 200,000 euros. Registration is a prerequisite for participation in a dual system and therefore had to be completed before the law came into force. The register is public, so that every market participant (competitor, supplier, buyer and the competent authorities) can check whether a wine trader is properly registered or not.

Obligation to indicate one-way and returnable packaging

In addition, mail-order companies must inform their customers whether the packaging materials can be reused after return or not. A corresponding information - "one-way packaging" or "reusable packaging" - must be provided by the wine merchant, for example, already in the online shop.

Packaging licensing with "Lizenzero

The environmental service provider Interseroh, which is recognised as a dual system, offers a convenient and cost-effective complete solution for packaging licensing with "Lizenzero". Wine retailers can obtain detailed information about the new packaging law at www.lizenzero.de and, as soon as they are entered in the packaging register, license their packaging - Business Premium members of wein.plus receive a price advantage of 12 percent here. Details can be found in the wein.plus World of Benefits for Members: Packaging licensing with Interseroh

Question 3

How do wine merchants and winemakers avoid warning letters?

Accepted Answer

Time and again, wine merchants and winegrowers are sent warnings. Wine sales via the internet in particular harbour many problem areas that competitors, competition associations and consumer protection associations exploit to send warning letters.

A warning letter is a letter in which the recipient is accused of having violated competition laws. The recipient is requested to sign a so-called cease-and-desist declaration - which is enclosed with the letter - and thus to promise to cease and desist from the illegal conduct of which he is accused in the future. The cease-and-desist declaration is enclosed with the letter. In the event that he then violates this cease-and-desist declaration, i.e. once again violates the competition laws mentioned therein, the warned party is threatened with a high contractual penalty. The warning letter itself is also "invoiced" at several hundred euros.

A warning letter is therefore always a very annoying and expensive matter. German wine merchants and winegrowers can be warned off, for example, if they sell organic wines over the internet and do not have organic certification or if they sell wines online and in doing so do not implement the Packaging Act, which has been in force since 1 January 2019, by being entered in the packaging register and registered with a dual system. Compliance with the General Data Protection Regulation (DSGVO), which has been in force since 25 May 2018, is also extremely important and subject to warning. Other frequently occurring reasons for issuing warnings are, for example, violations of the Food Information Regulation (LMIV), the Price Indication Regulation (PAngV) as well as missing or inadmissible formulations in the General Terms and Conditions (GTC), for example regarding the cancellation policy.

Anyone who receives a warning letter should by no means ignore it, but take it seriously and seek legal advice immediately. A lawyer will check to what extent the warning letter is justified at all and write an appropriate reply to the sender. Legal correspondence should definitely be left to professionals. The lawyer can assess and explain the consequences of the alleged (warning) infringement and also of signing the cease-and-desist declaration with a penalty clause. Further hints and advice can be found in the following magazine article: Correct behaviour in the event of a competition law warning letter

It is best not to give any reason for warning letters in the first place by designing your own online shop and by your own entrepreneurial behaviour. Business Premium members of wein.plus, for example, can use simple and inexpensive solutions to organic certification and to Packaging Act implement this.

For comprehensive legal advice, wein.plus cooperates with the lawyer and internet expert Hans-Peter Kröger, who specialises in the wine trade and grants wein.plus Premium members preferential conditions for certain services. Details can be found in the wein.plus world of benefits for members: Competent legal advice

RA Kröger offers Business Premium members of wein.plus a free initial consultation after receiving a warning letter: To the initial consultation

Question 4

Do wine merchants need organic certification?

Accepted Answer

Every wine merchant in Germany who sells organic wines over the internet needs organic certification.

According to Art. 28 (1) of the EU Organic Regulation (officially: EC Organic Basic Regulation No. 834/2007), every entrepreneur who produces, prepares, stores, imports from a non-EU country or places on the market products from organic production is "obliged, before placing them on the market [...] to notify his activity to the competent authorities of the Member State in which this activity is carried out" and to participate in an organic control system, i.e. to have his enterprise certified as organic. This therefore also applies to organic wine.

According to Art. 28 (2), retailers can only be exempted from the inspection obligation if they "sell products directly to final consumers or users" and "do not produce the products themselves, prepare them or store them in a place other than in connection with the point of sale or import such products from a third country or have such activities carried out by third parties". This means: Wine merchants are only exempt from organic certification if they sell their wines to end consumers exclusively in direct customer contact, i.e. exclusively in a real point of sale, i.e. a retail shop.

When selling via the internet, there is no direct customer contact in the sense of the regulation - an online shop is not a real, but a virtual point of sale. Therefore, the exemption does not apply here, so that wine merchants in Germany who operate online and mail-order businesses and have organic wines in their assortment need organic certification in any case; otherwise, there is a risk of costly warning letters. Further information can be found in the following magazine article: warning letters - Lack of organic certification of online wine merchants

Business Premium members of wein.plus have the opportunity to get organic certification unbureaucratically and at low cost through the cooperation partner ÖkoP. Details can be found in the wein.plus world of benefits for members: Facilitating organic certification

Question 5

Are cork defects covered by the warranty?

Accepted Answer

A note in advance: This answer does not constitute legal advice and does not replace such advice. Nevertheless, the question can be answered unambiguously:

A cork defect - i.e. the musty, musty smell and/or dull, bitter taste of a wine due to a defective cork - constitutes a defect that falls under the warranty obligation. Responsible for this so-called cork taint is the chemical substance trichloroanisole(TCA), which is formed by microorganisms such as moulds. If the cork is contaminated with TCA, the wine sealed with it becomes undrinkable over time.

Since the cork defect, as already mentioned, constitutes a material defect (regulated in Germany in § 434 BGB), the seller (i.e. the winegrower or retailer) is liable under the warranty. The exclusion of a warranty for cork defects in the general terms and conditions (AGB) is legally ineffective and can be warned. Instead, the customer has a right to subsequent performance (delivery of a defect-free wine) or he can withdraw from the contract, reduce the purchase price or demand compensation for his damage or expenses (regulated in Germany in § 437 BGB).

These regulations apply uniformly to stationary trade as well as to online and mail-order trade: Just as with a purchase in a retail shop, an online wine merchant must offer a two-year warranty for new items; for used items (which, however, only applies theoretically to wine), the warranty can be reduced to one year.

Question 6

Why is the mail order regulation (§ 3c UStG) important for wine merchants with regard to value added tax?

Accepted Answer

The so-called mail order regulation in Germany according to § 3c UStG states that a mail order company has to pay VAT on the goods it ships to private individuals within the EU in the country where the recipient is located.

This is based on the so-called destination country principle. This is usually implemented in such a way that, in the case of cross-border sales to private individuals within the EU, the consignor (seller) is exempted from VAT in his country for the transaction in question and instead the recipient (buyer) pays tax on an "intra-Community acquisition" in his country. However, this simplified procedure is not permitted for goods subject to excise duty, which also include alcoholic beverages and thus wine.

Therefore, every wine supplier in Germany who delivers to customers in other EU member states is subject to VAT in the respective country of destination. This means that they must first register with the relevant tax authorities in each country to which they intend to ship. He will then receive a separate tax number for the country in question, under which the VAT must be registered and a tax return must also be prepared.

Summarized once again: When selling and shipping to private individuals in other EU countries, the seller is exempt from VAT in Germany according to the destination country principle. Up to a certain delivery threshold (value of goods plus shipping and ancillary costs), the buyer then pays tax on an "intra-Community acquisition" in his country. However, this rule does not apply to wine (because as an alcoholic beverage it is subject to excise duty), so the wine supplier must register for VAT in each EU country to which he wishes to deliver and must also submit a VAT return in each country.

Question 7

What changes will the new wine labelling regulation bring in 2019?

Accepted Answer

The sale of wine in the member states of the European Union is generally subject to the EU's Food Information Regulation (LMIV). This regulates the information that food suppliers must provide to their customers prior to purchase. Online traders must implement these information obligations in their shop; for wine, the mandatory information includes, among other things, the filling quantity, the alcohol content, the price per litre and the bottler (or, in the case of sparkling wine, the producer and, in the case of wines from non-EU countries, the importer, if applicable).

In this context, new regulations for the labelling of wine came into force on 14 January 2019. These allow for greater conceptual diversity:

The alcohol content, which must always be indicated in percent by volume, may now also be indicated with the abbreviation "Alk." - in addition to the terms "actual alcoholic strength" or "actual alcohol" or the abbreviation "alc.".

The following labelling regulations apply to wines that contain substances that could possibly trigger an allergic reaction(allergens):

In the case of wines from non-EU countries for whose import a company based in an EU country is responsible, the new regulations now also allow the indications "importer" or "imported by" in addition to the indications "importer" or "imported from".

Violations of the LMIV are often subject to warnings. For comprehensive legal advice on protection against warning letters, wein.plus works together with the lawyer and internet expert Hans-Peter Kröger, who specialises in the wine trade and grants wein.plus Business Premium members preferential conditions for certain services. Details can be found in the wein.plus world of benefits for members: Competent legal advice

RA Kröger offers Business Premium members of wein.plus a free initial consultation after receiving a warning letter: To the initial consultation

Question 8

Who is allowed to sell wine?

Accepted Answer

The essential requirement for being allowed to sell wine in Germany is the registration of a trade at the local trade office. In this context, knowledge of the Youth Protection Act must be demonstrated, as the sale of alcoholic beverages to persons under the age of 16 is prohibited.

Only wine producers who exclusively sell their own, i.e. self-produced wine from their own grapes, are exempt from the obligation to register a trade, as viticulture counts as so-called primary production.

In addition, the regulations of food law (e.g. Food Information Ordinance), trade and tax law (e.g. Price Indication Ordinance, General Terms and Conditions Act, Value Added Tax Act), competition law, consumer protection law as well as corresponding other relevant laws apply, for example when trading with organic wines or selling wine on the internet (e.g. Distance Selling Act).

Since the legal framework is very complex and contains numerous pitfalls, detailed legal advice is strongly recommended before starting a wine sale. For comprehensive legal advice - including protection from warning letters - wein.plus works with the lawyer and internet expert Hans-Peter Kröger, who specialises in the wine trade and grants wein.plus Business Premium members preferential conditions for certain services. Details can be found in the wein.plus World of benefits for members: Competent legal advice
RA Kröger offers Business Premium members of wein.plus a free initial consultation after receiving an warning letter: To the initial consultation

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