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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Firma A. Weigand v Schutzverband Deutscher Wein e.V.. [1981] EUECJ R-56/80 (25 February 1981)
URL: http://www.bailii.org/eu/cases/EUECJ/1981/R5680.html
Cite as: [1981] EUECJ R-56/80

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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
   

61980J0056
Judgment of the Court of 25 February 1981.
Firma A. Weigand v Schutzverband Deutscher Wein e.V..
Reference for a preliminary ruling: Bundesgerichtshof - Germany.
Description and presentation of wines.
Case 56/80.
European Court reports 1981 Page 00583

 
   








AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - WINE - DESCRIPTION AND PRESENTATION OF WINES - PROHIBITION OF ' ' MISLEADING INFORMATION ' ' - SCOPE
( COUNCIL REGULATION NO 355/79 , ARTS 8 ( C ), 18 ( C ) AND 43 )


THE EXPRESSION ' ' MISLEADING INFORMATION ' ' EMPLOYED IN ARTICLES 8 ( C ) AND 18 ( C ) OF REGULATION NO 355/79 LAYING DOWN GENERAL RULES FOR THE DESCRIPTION AND PRESENTATION OF WINES AND GRAPE MUSTS AND THE EXPRESSIONS ' ' CONFUSION ' ' AND ' ' FALSE IMPRESSION ' ' OCCURRING IN ARTICLE 43 OF THE SAME REGULATION MUST BE INTERPRETED AS COVERING NOT ONLY DESCRIPTIONS WHICH ARE LIABLE TO BE CONFUSED WITH THE DESCRIPTION OF A PARTICULAR SMALL LOCALITY ( ' ' LAGE ' ' ) BUT ALSO ALL DESCRIPTIONS WHICH ARE LIABLE TO INDUCE THE PUBLIC TO BELIEVE THAT THE DESCRIPTION IN QUESTION IS THE NAME , OR PART OF THE NAME , OF A WINE-GROWING LOCAL ADMINISTRATIVE AREA ( ' ' WEINBAUORT ' ' ) WHICH DOES NOT IN FACT EXIST OR THE NAME OF A SMALL LOCALITY ( ' ' LAGE ' ' ) WHICH DOES NOT IN FACT EXIST .


IN CASE 56/80
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESGERICHTSHOF ( FEDERAL COURT OF JUSTICE ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
FIRMA A . WEIGAND , WEINBAU , WEINGROSSKELLEREI ( WINE PRODUCERS AND WHOLESALERS ), BINGEN AM RHEIN ,
AND
SCHUTZVERBAND DEUTSCHER WEIN EV ( ASSOCIATION FOR THE PROTECTION OF GERMAN WINES ), MANNHEIM ,


ON THE INTERPRETATION OF ARTICLES 8 ( C ), 18 ( C ) AND 43 ( 1 ) AND ( 2 ) OF COUNCIL REGULATION ( EEC ) NO 355/79 OF 5 FEBRUARY 1979 , LAYING DOWN GENERAL RULES FOR THE DESCRIPTION AND PRESENTATION OF WINES AND GRAPE MUSTS ( OFFICIAL JOURNAL 1979 , L 54 , P . 99 ),


1 BY AN ORDER OF 19 DECEMBER 1979 , WHICH WAS RECEIVED AT THE COURT ON 13 FEBRUARY 1980 , THE BUNDESGERICHTSHOF ( FEDERAL COURT OF JUSTICE ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS CONCERNING THE INTERPRETATION OF COUNCIL REGULATION ( EEC ) NO 355/79 OF 5 FEBRUARY 1979 LAYING DOWN GENERAL RULES FOR THE DESCRIPTION AND PRESENTATION OF WINES AND GRAPE MUSTS ( OFFICIAL JOURNAL 1979 , L 54 , P . 99 ).

2 THOSE QUESTIONS HAVE BEEN RAISED IN THE COURSE OF PROCEEDINGS BETWEEN FIRMA A . WEIGAND , WHICH DEALS IN WINES , AND THE SCHUTZVERBAND DEUTSCHER WEIN EV , AN ASSOCIATION FOR THE PROTECTION OF GERMAN WINES .

3 WEIGAND TRADES IN QUALITY WINES PRODUCED IN SPECIFIED REGIONS ( QUALITY WINES PSR ) UNDER , AMONGST OTHERS , THE DESCRIPTIONS ' ' KLOSTERDOKTOR ' ' AND ' ' SCHLOSSDOKTOR ' ' . BOTH DESCRIPTIONS HAVE BEEN REGISTERED AS TRADE-MARKS IN GERMANY SINCE 1930 .
4 WEIGAND USES THE ABOVE-MENTIONED DESCRIPTIONS ON ITS LABELS AND IN ITS ADVERTISING MATERIAL TOGETHER WITH AN INDICATION OF THE PLACE OF ORIGIN AND QUALITY , AS FOR EXAMPLE ' ' BEREICH ( DISTRICT OF ) BINGEN-RHEINHESSEN , QUALITATSWEIN MIT PRADIKAT ' ' ( ' ' SPATLESE ' ' , ' ' AUSLESE ' ' ), ' ' BEREICH MITTELHARDT - DEUTSCHE WEINSTRASSE UND RHEINLAND-PFALZ , QUALITATSWEIN ' ' . THE LABELS ALSO BEAR AN ILLUSTRATION OF A MONK DRINKING WINE ( ' ' KLOSTERDOKTOR ' ' ) OR THE PICTURE OF A ' ' SCHLOSSDOKTOR ' ' IN PERIOD DRESS , SOMETIMES ACCOMPANIED BY THE TEXT OF A DRINKING SONG .

5 THE SCHUTZVERBAND DEUTSCHER WEIN , AN ORGANIZATION CONCERNED WITH THE OBSERVANCE OF FAIR COMPETITION , INSTITUTED PROCEEDINGS AGAINST WEIGAND BEFORE THE LANDGERICHT ( REGIONAL COURT ) MANNHEIM . IT CONTENDED THAT THE DESCRIPTIONS IN QUESTION WERE MISLEADING WITHIN THE MEANING OF BOTH THE GERMAN ' ' WEINGESETZ ' ' ( LAW ON WINE ) AND THE ' ' GESETZ GEGEN DEN UNLAUTEREN WETTBEWERB ' ' ( LAW ON UNFAIR COMPETITION ), HEREINAFTER REFERRED TO AS ' ' THE UWG ' ' , BECAUSE THEY CREATE THE IMPRESSION THAT THEY REFER TO A ' ' SMALL LOCALITY ' ' ( ' ' LAGE ' ' ). ACCORDING TO THE SCHUTZVERBAND , THE NAMES ' ' KLOSTERDOKTOR ' ' AND ' ' SCHLOSSDOKTOR ' ' CALL TO MIND THE DESIGNATION ' ' DOKTOR ' ' WHICH IS KNOWN AS THE NAME OF A SMALL LOCALITY AND WHICH OCCURS QUITE COMMONLY IN GERMAN WINE-PRODUCING REGIONS . WHILST THEY REFER TO BUILDINGS , THE WORDS ' ' SCHLOSS ' ' AND ' ' KLOSTER ' ' ALSO CONSTITUTE GEOGRAPHICAL REFERENCES BECAUSE THEY ARE NAMES OF SMALL LOCALITIES OR BECAUSE THEY APPEAR IN THE NAMES OF MANY SUCH LOCALITIES . THUS DECEPTION IS BEING PRACTISED AS TO THE GEOGRAPHICAL ORIGIN OF THE WINE .

6 ARTICLE 3 OF THE UWG PROVIDES INTER ALIA THAT WHOSOEVER SHALL , IN THE COURSE OF TRADE , FOR REASONS OF COMPETITION , GIVE MISLEADING INFORMATION IN PARTICULAR AS TO THE QUALITY , ORIGIN OR METHOD OF PRODUCTION OF GOODS MAY BE REQUIRED TO TERMINATE THE USE OF SUCH INFORMATION .

7 THE PROCEEDINGS WERE DISMISSED BY THE LANDGERICHT MANNHEIM BUT AN APPEAL WAS ALLOWED BY THE OBERLANDESGERICHT ( HIGHER REGIONAL COURT ) KARLSRUHE WHICH ORDERED WEIGAND TO CEASE MARKETING OR ADVERTISING IN ANY FORM WHATEVER WINE BEARING THE DESCRIPTIONS ' ' KLOSTERDOKTOR ' ' OR ' ' SCHLOSSDOKTOR ' ' .

8 ACCORDING TO THE ORDER MAKING THE REFERENCE , THE BUNDESGERICHTSHOF CONSIDERS THAT ON THE BASIS OF ARTICLE 3 OF THE UWG THE ACTION IS WELL FOUNDED . THE DESCRIPTIONS ARE MISLEADING BECAUSE A NOT INCONSIDERABLE PROPORTION OF PURCHASERS MAY DERIVE FROM THOSE DESCRIPTIONS THE ERRONEOUS IMPRESSION THAT THE WINE ORIGINATES FROM A PARTICULAR SMALL LOCALITY AND THAT MAY INFLUENCE THE DECISION TO BUY SINCE SUCH WINES ARE MORE HIGHLY REGARDED THAN BLENDED WINES . THE IMPRESSION THAT THE WINE IN QUESTION COMES FROM A SMALL LOCALITY ARISES FROM THE FACT THAT THE DESCRIPTIONS ' ' KLOSTERDOKTOR ' ' AND ' ' SCHLOSSDOKTOR ' ' CALL TO MIND THE TERM ' ' DOKTOR ' ' WHICH IS KNOWN AS THE NAME OF SMALL LOCALITIES AND WHICH OCCURS QUITE COMMONLY IN GERMAN WINE-PRODUCING REGIONS AND HAS EVEN BECOME KNOWN THROUGHOUT THE WORLD IN THE FORM OF ' ' BERNKASTELER DOKTOR ' ' .

9 BEFORE THE BUNDESGERICHTSHOF WEIGAND CONTENDED THAT ARTICLE 3 OF THE UWG WAS NOT APPLICABLE IN THE PRESENT CASE BECAUSE THE DESCRIPTIONS SELECTED ARE PERMISSIBLE UNDER THE RULES OF COMMUNITY LAW GOVERNING THE DESCRIPTION OF WINES , IN PARTICULAR ARTICLE 43 ( 1 ) OF COUNCIL REGULATION NO 355/79 , WHICH , IT WAS ARGUED , LAYS DOWN COMPREHENSIVE RULES ON THIS SUBJECT . THE DESCRIPTIONS IN QUESTION , IT WAS SAID , ARE IN FACT PURELY INVENTED NAMES WHICH CANNOT GIVE RISE TO CONFUSION WITH ANY ACTUAL STATEMENT OF ORIGIN .

10 IN ORDER TO BE ABLE TO GIVE A RULING ON THESE ARGUMENTS THE BUNDESGERICHTSHOF REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :
' ' 1 . MUST THE WORD ' CONFUSION ' IN ARTICLE 43 ( 1 ) OF REGULATION ( EEC ) NO 355/79 OF 5 FEBRUARY 1979 ( OFFICIAL JOURNAL L 54 , P . 99 ET SEQ .) AND/OR THE WORDS ' MISLEADING INFORMATION ' IN ARTICLES 8 ( C ) AND 18 ( C ) OF THE REGULATION , AS DISTINCT FROM THE WORDS ' FALSE IMPRESSION ' IN ARTICLE 43 ( 2 ) OF THE REGULATION , BE INTERPRETED AS COVERING ONLY CASES IN WHICH
( A ) PURCHASERS MAY CONFUSE A BRAND WITH ANOTHER SPECIFIC BRAND NAME OR DESCRIPTION ( IN THE PRESENT CASE , A DESCRIPTION OF A SMALL LOCALITY ( ' LAGE ' )) OR
( B)ARE CONFUSING DESCRIPTIONS OR MISLEADING INFORMATION TO BE UNDERSTOOD AS COVERING DESCRIPTIONS OR INFORMATION WHICH INDUCE THE PUBLIC TO BELIEVE THAT WHAT IS BEING REPRESENTED IS THE NAME , OR PART OF THE NAME , OF A WINE-GROWING LOCAL ADMINISTRATIVE AREA ( ' WEINBAUORT ' ), WHICH DOES NOT IN FACT EXIST , OR OF A SMALL WINE-GROWING LOCALITY ( ' WEINBAULAGE ' ), WHICH DOES NOT IN FACT EXIST?

2.IF QUESTION 1 ( B ) IS ANSWERED IN THE AFFIRMATIVE :
( A)MAY A DESCRIPTION AND PRESENTATION ( IN THIS CASE , LABELLING ) WHICH IS NOT OBJECTIONABLE UNDER ARTICLE 3 ( 1 ) NONE THE LESS COME WITHIN THE SCOPE OF ARTICLE 43 ( 2 ), OR DOES ARTICLE 43 ( 1 ) PROVIDE COMPREHENSIVE RULES FOR THE DESCRIPTION OF PRODUCTS?

( B)DOES ARTICLE 43 OF THE REGULATION PERMIT THE APPLICATION OF NATIONAL LEGISLATION HAVING WIDER SCOPE , FOR EXAMPLE , ARTICLE 3 UWG ( GESETZ GEGEN DEN UNLAUTEREN WETTBEWERB ( LAW AGAINST UNFAIR COMPETITION )), IN A CASE WHERE CONSUMERS MAY BE MISLED BY A DESCRIPTION WHICH , WHILST IT CANNOT BE CONFUSED WITH THE NAME OF AN ACTUALLY EXISTING SMALL LOCALITY , MAY GIVE THE IMPRESSION OF BEING THE NAME OF A SMALL LOCALITY?
' ' .

11 ARTICLE 54 ( 1 ) OF COUNCIL REGULATION NO 337/79 OF 5 FEBRUARY 1979 ON THE COMMON ORGANIZATION OF THE MARKET IN WINE ( OFFICIAL JOURNAL 1979 , L 54 , P . 1 ) REQUIRES THE COUNCIL TO ADOPT ' ' RULES RELATING TO THE DESIGNATION AND PRESENTATION OF THE PRODUCTS LISTED IN ARTICLE 1 ' ' . THOSE RULES FORM THE SUBJECT-MATTER OF REGULATION NO 355/79 , THE INTERPRETATION OF WHICH IS AT ISSUE BEFORE THE BUNDESGERICHTSHOF .

12 ARTICLES 8 , 18 AND 43 OF THE LATTER REGULATION , WHICH FORM THE SUBJECT-MATTER OF THE QUESTIONS OF THE BUNDESGERICHTSHOF , MUST BE INTERPRETED WITHIN THE FRAMEWORK OF THE RULES ON THE COMMON ORGANIZATION OF THE MARKET IN WINE OF WHICH THEY FORM PART . THE PURPOSE OF THAT ORGANIZATION IS TO ENSURE THAT WINE PRODUCTS MAY CIRCULATE FREELY THROUGHOUT THE COMMUNITY AS A WHOLE AND AT THE SAME TIME TO ESTABLISH THE EQUILIBRIUM OF THE MARKET WITHIN THE FRAMEWORK OF A POLICY WHICH IS INTENDED TO MAINTAIN AND IMPROVE THE QUALITY OF WINE PLACED ON THE MARKET . IN THAT CONTEXT REGULATION NO 355/79 , HAS THE PARTICULAR PURPOSE , WITH REGARD TO THE DESCRIPTION AND PRESENTATION OF WINES , OF ENSURING , IN THE INTERESTS OF CONSUMERS IN ALL THE MEMBER STATES , THE TRANSPARENCY OF THE MARKET AND OF ENABLING APPROPRIATE SUPERVISION TO BE CARRIED OUT .

13 THAT OBJECTIVE IS EMPHASIZED BY BOTH THE 45TH RECITAL IN THE PREAMBLE TO REGULATION NO 337/79 , WHICH STATES THAT ' ' FRAUD AND MISREPRESENTATION MUST BE PUNISHED EFFECTIVELY AND SPEEDILY ' ' , AND BY THE SECOND RECITAL IN THE PREAMBLE TO REGULATION NO 355/79 , IN WHICH IT IS STATED THAT ' ' THE PURPOSE OF ANY DESCRIPTION AND PRESENTATION SHOULD BE TO SUPPLY POTENTIAL BUYERS AND PUBLIC BODIES RESPONSIBLE FOR ORGANIZING AND SUPERVISING THE MARKETING OF THE PRODUCTS CONCERNED WITH INFORMATION WHICH IS SUFFICIENTLY CLEAR AND ACCURATE TO ENABLE THEM TO FORM AN OPINION OF THE PRODUCTS ' ' .

14 TO THAT END AND IN REGARD TO THE DESCRIPTION OF THE WINES AND ADVERTISING , REGULATION NO 355/79 APPLIES SYSTEMATICALLY TO ALL PRACTICES CAPABLE OF AFFECTING FAIR TRADING .

15 THAT IS THE SUBJECT-MATTER OF ARTICLE 8 ( C ) AND ARTICLE 18 ( C ) WHICH PROHIBIT , IN THE DESCRIPTION OF TABLE WINES AND QUALITY WINES PSR RESPECTIVELY , THE USE ON LABELS OF WORDS , SIGNS AND ILLUSTRATIONS WHICH CONTAIN ' ' FALSE OR MISLEADING INFORMATION , PARTICULARLY IN RESPECT OF GEOGRAPHICAL ORIGIN , VINE VARIETY , VINTAGE YEAR OR SUPERIOR QUALITY ' ' .

16 EQUIVALENT TERMS ARE ALSO EMPLOYED IN THE GENERAL PROVISIONS CONTAINED IN ARTICLE 43 ( 1 ) WHICH PROHIBITS IN THE DESCRIPTION AND PRESENTATION OF WINES ANY INFORMATION ' ' LIABLE TO CAUSE CONFUSION AS TO THE NATURE , ORIGIN AND COMPOSITION OF THE PRODUCT ' ' . IN ADDITION , THAT ARTICLE MAKES REFERENCE , IN THE CASE OF COMMUNITY WINES , TO THE DETAILED REQUIREMENTS OF ARTICLES 2 AND 12 , WHICH DEAL IN PARTICULAR WITH INFORMATION CONCERNING THE CLASSIFICATION , ORIGIN , BOTTLING AND CHARACTERISTICS OF THE PRODUCTS .

17 ARTICLE 43 ( 2 ) PROHIBITS ALL PRACTICES WHICH , BY MEANS OF THE DESCRIPTION AND PRESENTATION IN ADVERTISING MATERIAL , ARE LIABLE TO CREATE ' ' A FALSE IMPRESSION ' ' OF THE PRODUCTS IN QUESTION , THAT IS TO SAY TO GIVE A DECEPTIVE APPEARANCE . SINCE THE DESCRIPTION AND PRESENTATION MENTIONED IN ARTICLES 8 , 18 AND 43 ( 1 ) FORM AN INTEGRAL PART OF ANY ADVERTISING MATERIAL REFERRED TO IN ARTICLE 43 ( 2 ), THE EXPRESSIONS CONTAINED IN THOSE PROVISIONS MAY NOT BE GIVEN DIFFERING INTERPRETATIONS .

18 THOSE PROVISIONS SERVE THE SAME PURPOSE , NAMELY THE PREVENTION IN THE MARKETING OF WINE OF ALL PRACTICES WHICH ARE OF SUCH A NATURE AS TO CREATE FALSE APPEARANCES , IRRESPECTIVE OF WHETHER SUCH PRACTICES GIVE RISE IN THE MINDS OF THOSE ENGAGED IN THE TRADE OR OF CONSUMERS TO CONFUSION WITH EXISTING PRODUCTS OR THE ERRONEOUS IMPRESSION OF AN ORIGIN OR OF CHARACTERISTICS WHICH IN REALITY DO NOT EXIST .

19 ACCORDINGLY THE TERMS EMPLOYED IN ARTICLES 8 , 18 AND 43 ( 1 ) MAY NOT RECEIVE A NARROWER CONSTRUCTION THAN THAT GIVEN TO THE EXPRESSION EMPLOYED IN ARTICLE 43 ( 2 ). ALL THOSE EXPRESSIONS MUST BE UNDERSTOOD AS EQUIVALENT AND AS BEING DIRECTED , THROUGH THEIR COMMON OBJECTIVE , TOWARDS THE PREVENTION OF THE OCCURRENCE IN THE MARKET IN WINE OF NOT ONLY ANY CONFUSION , IN THE NARROW SENSE OF THE WORD , BUT ALSO THE USE OF ALL DECEPTIVE INFORMATION , IRRESPECTIVE OF WHETHER THE PRESENTATION OF THE PRODUCTS THEMSELVES OR ADVERTISING MATERIAL IS INVOLVED .

20 THE REPLY TO THE FIRST QUESTION SHOULD ACCORDINGLY BE THAT THE EXPRESSION ' ' MISLEADING INFORMATION ' ' EMPLOYED IN ARTICLES 8 ( C ) AND 18 ( C ) OF REGULATION NO 355/79 AND THE EXPRESSIONS ' ' CONFUSION ' ' AND ' ' FALSE IMPRESSION ' ' OCCURRING IN ARTICLE 43 OF THE SAME REGULATION MUST BE INTERPRETED AS COVERING NOT ONLY DESCRIPTIONS WHICH ARE LIABLE TO BE CONFUSED WITH THE DESCRIPTION OF A PARTICULAR SMALL LOCALITY ( ' ' LAGE ' ' ) BUT ALSO ALL DESCRIPTIONS WHICH ARE LIABLE TO INDUCE THE PUBLIC TO BELIEVE THAT THE DESCRIPTION IN QUESTION IS THE NAME , OR PART OF THE NAME , OF A WINE-GROWING LOCAL ADMINISTRATIVE AREA ( ' ' WEINBAUORT ' ' ) WHICH DOES NOT IN FACT EXIST OR THE NAME OF A SMALL LOCALITY ( ' ' LAGE ' ' ) WHICH DOES NOT IN FACT EXIST .

21 IN VIEW OF THE REPLY TO THE FIRST QUESTION IT IS UNNECESSARY TO ANSWER THE SECOND QUESTION .


22 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , THE GOVERNMENT OF THE FRENCH REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .


ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESGERICHTSHOF BY ORDER OF 19 DECEMBER 1979 , HEREBY RULES :
THE EXPRESSION ' ' MISLEADING INFORMATION ' ' EMPLOYED IN ARTICLES 8 ( C ) AND 18 ( C ) OF REGULATION NO 355/79 AND THE EXPRESSIONS ' ' CONFUSION ' ' AND ' ' FALSE IMPRESSION ' ' OCCURRING IN ARTICLE 43 OF THE SAME REGULATION MUST BE INTERPRETED AS COVERING NOT ONLY DESCRIPTIONS WHICH ARE LIABLE TO BE CONFUSED WITH THE DESCRIPTION OF A PARTICULAR SMALL LOCALITY ( ' ' LAGE ' ' ) BUT ALSO ALL DESCRIPTIONS WHICH ARE LIABLE TO INDUCE THE PUBLIC TO BELIEVE THAT THE DESCRIPTION IN QUESTION IS THE NAME , OR PART OF THE NAME , OF A WINE-GROWING LOCAL ADMINISTRATIVE AREA ( ' ' WEINBAUORT ' ' ) WHICH DOES NOT IN FACT EXIST OR THE NAME OF A SMALL LOCALITY ( ' ' LAGE ' ' ) WHICH DOES NOT IN FACT EXIST .

  
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