Question 1

How do you ship wine cheaply?

Accepted Answer

There are 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 and DPD and other logistics service providers for many years. The framework agreements offer Business Premium members of wein.plus discounts of up to 70 per cent compared to the regular rates for national and international parcel shipping. Details can be found in the wein.plus world of benefits for members:

UPS also makes it easy to comply with the Youth Protection Act, which prohibits the supply of alcohol to persons under the age of 16. With the "UPS proof of delivery - signature of an adult required", for example, wine senders can easily avoid legal problems.

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

Question 2

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

Accepted Answer

The Packaging Act (VerpackG) came into force in Germany on 1 January 2019 and replaces the Packaging Ordinance, which was valid until 31 December 2018. The aim of the law is, firstly, to recycle certain packaging materials more than before and, secondly, to reduce the volume of waste in general. To this end, the regulations on waste separation, disposal, reuse and recycling are being tightened.

Licensing requirement for packaging

The new regulations affect all mail order companies and therefore all wine merchants in Germany who ship wine to their customers. The law obliges all senders of goods to licence all packaging that they place on the market commercially for the first time. According to § 3 VerpackG, packaging is "products made of any material for the containment, protection, handling, delivery or presentation of goods, which may range from raw materials to processed products, passed on by the manufacturer to the distributor or end consumer". In the wine trade, this applies to shipping cartons as well as adhesive tape, filling material, bubble wrap, bottle sleeves and all other packaging materials.

The law applies to both shipping and product packaging. In the case of wine, it is usually the producer (i.e. the winemaker) who must licence the product packaging (bottles, closures, etc.), as he is the one who places it on the market commercially for the first time. He must also licence all packaging materials used for shipping from the winery to the wine merchant. The wine merchant must then licence the packaging materials used for shipping to the customer. Winegrowers who ship wines to their customers themselves must fully licence both the product packaging and the necessary shipping packaging.

Obligation to participate in a dual system

§ Section 7 (1) VerpackG obliges all retailers who place sales or secondary packaging filled with goods (in this case: wine) on the market for the first time on a commercial basis to participate in at least one waste separation system with this packaging. Anyone who does not participate in such a dual system may not use any shipping packaging commercially.

Obligation to register in the packaging register

In accordance with Section 9 VerpackG, every mail order company (distributor) must register with the Stiftung Zentrale Stelle Verpackungsregister (ZSVR) - www.verpackungsregister.org. Without this registration, it will be prohibited from 1 January 2019 to commercially place on the market sales or repackaging filled with goods that accumulate with private end customers. Anyone who does this without prior registration risks a fine of up to 200,000 euros. Registration is a prerequisite for participation in a dual system and therefore had to take place before the law came into force. The register is public so that every market participant (competitors, suppliers, customers and the competent authorities) can check whether a wine merchant is properly registered or not.

Obligation to indicate disposable and reusable packaging

In addition, mail order companies must inform their customers whether or not the packaging can be reused after being returned. For example, wine retailers must provide the relevant information - "disposable packaging" or "reusable packaging" - in the online shop.

Packaging licensing with the Landbell Group's "EASyShop"

With "EASyShop", the environmental services provider Landbell Group, which is authorised as a dual system, offers a convenient and cost-effective complete solution for packaging licensing. Distributors of packaging, e.g. wine merchants and wineries, can obtain information in the "EASyShop" and licence their packaging after registration - Business Premium members of wein.plus receive favourable conditions. Details can be found in the wein.plus world of benefits for members: Packaging licensing with Landbell

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 requires organic certification.

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

Retailers can only be exempted from the inspection obligation in accordance with Art. 28 Para. 2 if they "sell products directly to final consumers or users" and "do not themselves produce, prepare or store the products 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 that wine merchants are only exempt from organic certification if they sell their wines to end consumers exclusively through direct customer contact, i.e. exclusively in a real point of sale, i.e. a shop.

When selling via the internet, there is no direct customer contact within the meaning of the regulation - an online shop is not a real point of sale, but a virtual one. The exemption therefore does not apply here, meaning that wine merchants in Germany who sell online and by mail order and have organic wines in their range must have organic certification in any case; otherwise there is a risk of costly penalties warning letters. Further information can be found in the following magazine article: warning letters - Lack of organic certification for online wine merchants

Business Premium members of wein.plus have the opportunity to obtain organic certification unbureaucratically and inexpensively through our co-operation partner GfRS. Details can be found in the wein.plus world of benefits for members: Making organic certification easier

Question 5

Are cork defects covered by the warranty?

Accepted Answer

The chemical substance trichloroanisole(TCA), which is produced by microorganisms such as moulds, is responsible for the so-called cork taint. If the cork is contaminated with TCA, the wine sealed with it develops a musty, mouldy smell and/or a dull, bitter taste. Over time, this makes it undrinkable.

Such a cork defect - i.e. the sensory impairment of a wine due to a damaged cork - constitutes a quality defect that falls under the warranty obligation. In Germany, material defects of this kind are regulated in Section 434 of the German Civil Code (BGB), and in such a case the seller (i.e. the winegrower or retailer) is liable under warranty.

The legal situation is clear: in the event of a cork taint, the customer is entitled to subsequent fulfilment (delivery of a defect-free wine) or he can withdraw from the contract, reduce the purchase price or demand compensation for his damages or expenses (regulated in Germany in §§ 434 ff. BGB). This means that a wine with a cork defect can either be replaced with a new bottle or the money refunded.

These regulations apply uniformly to bricks-and-mortar retailers as well as to online and mail-order retailers. However, it is much more difficult for the customer to prove the defect in online and mail order sales. In a shop - especially at the customer's place of residence - the customer can return a faulty wine and the retailer can see the cork taint for himself (it does not disappear, but usually becomes even stronger with contact with the air ). In online or mail order sales, the customer would have to return the faulty wine (i.e. an opened bottle) in order to assert a claim. How to proceed in individual cases can be clarified in direct correspondence with the shop operator (be it a retailer or winegrower) by telephone or e-mail.

In the catering trade, the warranty also applies to wines with cork defects - with the advantage for the customer that they can notice and complain about the cork taint before paying.

Cork defects can occur again and again despite the great progress made by the manufacturing industry. Even if the seller himself is not responsible for this, he is obliged to honour the warranty.

Further information can be found in the following article in wein.plus magazine:
Legal tip: When wine corks

Note: Neither this answer nor the linked magazine article constitute legal advice and are no substitute for such advice.

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 Food Information Regulation (FIR). This regulates the information that food suppliers must provide to their customers prior to purchase. Online retailers must implement these information requirements in their shop; the mandatory information for wine includes the quantity, alcohol content, price per litre and bottler (or, in the case of sparkling wine, the producer and, in the case of wines from non-EU countries, the importer).

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

The alcohol content, which must always be indicated in per cent by volume, may now also be referred to using the abbreviation "alc." - in addition to the terms "actual alcohol content" or "actual alcohol" or the abbreviation "alc.".

The following labelling regulations apply to wines containing substances that may trigger an allergic reaction(allergens):

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

Infringements of the FIR are frequently the subject of 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 offers wein.plus Business Premium members preferential conditions for certain services. Details can be found in the wein.plus world of benefits for members: Expert legal advice

RA Kröger offers Business Premium members of wein.plus a free initial consultation after receiving an 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

Wine and business

warning letters, organic certification, packaging law and wine shipping - legal certainty and cost advantages for wine merchants and wine producers

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Wine and business

warning letters, organic certification, packaging law and wine shipping - legal certainty and cost advantages for wine merchants and wine producers

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EVENTS NEAR YOU