C-321/94

OPINION OF MR JACOBS — JOINED CASES C-321/94, C-322/94, C-323/94 AND C-324/94

OPINION OF ADVOCATE GENERAL JACOBS delivered on 24 October 1996 *

1. The present cases concern the prosecution and French products. The French Govern­ of four individuals in France in respect of the ment confirms that the four appellants in the marketing of various products which were main proceedings — Mr Pistre, Mr Milhau, made from pork meat and bore references to Mr Oberti, and Mrs Barthes — are all the word 'mountain' or to the mountains of French nationals; that they manage compa­ Lacaune. The French authorities objected nies established in Lacaune in France; and that the accused had not obtained the autho­ that the products in question are manufac­ rizations required under French law for the tured by those companies in France and mar­ use of such references. The French Court of keted only on French territory. Cassation, Criminal Division, wishes to know whether the requirement of such authorizations constitutes a breach of Coun­ cil Regulation (EEC) No 2081/92 on the protection of geographical indications and designations of origin for agricultural 1 products and foodstuffs (referred to hereaf­ 3. The products in question are cooked ter as 'the Origin Regulation', or simply meats. They are marketed under various dif­ 'the Regulation'), or Article 30 of the ferent denominations, all of which make ref­ EC Treaty. No questions have been raised erence, in one way or another, to the word in relation to Council Directive 89/189/EEC 'mountain' or to a mountain region: for concerning the notification of technical example, 'saucisson de montagne pur porc standards and regulations 2 or Council (...) séché à la montagne', and 'saucisson Directive 79/112/EEC concerning the label­ Monts de Lacaune'. Each of the four appel­ ling, presentation and advertising of food­ lants was prosecuted by the French authori­ stuffs. 3 ties for having marketed the products in 1991 without the authorization required by French law for the use of such denomina­ tions. The facts and legislative background

8. Article 34 provided, in summary, that indications of mountain origin and specific geographical references to mountain areas were protected. It further provided that such indications and references could only be 6. Law No 85-30 and Decree No 88-194 used, for all products placed on the market, established an authorization system for under the conditions laid down by decree. products bearing references to mountain ori­ That decree was to determine in particular gin. Article 3 of Law No 85-30 defined the the manufacturing methods, place of manu­ meaning of a mountain area. In essence, facture, and the origin of raw materials. Article 3 stated that mountain areas were characterized by significant disadvantages resulting from very difficult climatic condi­ tions and/or the fact that the existence of steep slopes made it more difficult to work

9. Decree No 88-194 was adopted in imple­ mentation of Law No 85-30. Article 2 of that 5 — Official Journal of the French Republic, 21 December 1984, Decree provided that, as a general rule, the p. 3925. 6 — Official Journal of the French Republic, 10 January 1985, various stages of production had to occur in p. 320. the mountain areas and the raw materials had 7 — Official Journal of the French Republic, 27 February 1988, p. 2747. to come from those areas. However,

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OPINION OF MR JACOBS — JOINED CASES C-321/94, C-322/94, C-323/94 AND C-324/94

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PISTRE AND OTHERS

13. The appellants accordingly appealed to The Origin Regulation the Court of Cassation. The Court of Cassa­ tion considered that the Court of Appeal had erred in finding that Article 30 was not infringed because (a) it had reasoned that the aim of the French rules was to safeguard the interest of producers against unfair compe­ tition and to safeguard consumers against designations likely to mislead them, without considering whether that aim might not be 15. The Origin Regulation, which is based attained by an examination of the truthful­ on Article 43 of the Treaty, seeks, according ness of the labelling; and (b) the Treaty pro­ to its preamble, to lay down special rules in hibited Member States from discriminating relation to Directive 79/112 which concerns against imported products and the Court of the labelling, presentation and advertising of 9 Appeal had expressly admitted that the rules foodstuffs. That directive harmonizes label­ in question introduced such discrimination. ling requirements to facilitate the free move­ The Court of Cassation also noted that the ment of foodstuffs between Member States. Origin Regulation, which had entered into Member States may not prohibit trade in force on 26 July 1993, established a special products complying with the directive, sub­ procedure for Community authorization of ject to certain exceptions including protec­ existing geographical indications and desig­ tion of indications of provenance and regis­ nations of origin. It questioned the compat­ tered designations of origin (Article 15). The ibility of Law No 85-30 and Decree Member States are nevertheless required by No 88-194 with that Regulation, considering the directive to lay down rules preventing that the pre-conditions for protection under misleading information, including infor­ the Regulation appeared to be more restric­ mation as to origin or provenance (Article 2). tive than those required for the grant of a Designations of origin and indications of French authorization. provenance were not, prior to the Origin Regulation, governed by Community legisla­ tion, and imports could be excluded on the basis of protection of such designations or indications subject only to Articles 30 and 36 of the Treaty.

— originating in that region, specific place or country, and

18. Article 5(1) specifies who may apply for registration: — the quality or characteristics of which are essentially or exclusively due to a particular geographical envi­ ronment with its inherent natural and human factors, and the produc­ tion, processing and preparation of which take place in the defined geo­ graphical area; Only a group, or, subject to certain condi­ tions to be laid down in accordance with the procedure provided for in Article 15, a natu­ 10 — Compare the account of indications of provenance and des- ral or legal person, shall be entitled to apply ignations of origin in Case C-3/91 Exporter [1992] ECR I-5529, paragraph 11 of the judgment. for registration.

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For the purposes of this Article, " Group " govern the procedure to be followed after means any association, irrespective of its receipt of a statement of objection. legal form or composition, of producers and/ or processors working with the same agricul­ tural product or foodstuff. Other interested parties may participate in the group.'

21. By virtue of Article 8 of the Origin Regulation, 'The indications PDO [protected designation of origin], PGI [protected geo­ graphical indication] or equivalent traditional national indications may appear only on agricultural products and foodstuffs that 19. Article 1 of the Commission's imple­ comply with [the] Regulation.' menting regulation, 11however, provides that applications may be made by a natural or legal person 'in exceptional, duly substanti­ ated cases where the person concerned is the only producer in the geographical area defined at the time the application is submit­ ted'. 22. The nature of the protection afforded by registration made pursuant to the Regulation is set out in Article 13(1). This provides, inter alia, that:

(c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the 24. The Regulation entered into force on inner or outer packaging, advertising material or documents relating to the 26 July 1993. product concerned, and the packing of the product in a container liable to con­ vey a false impression as to its origin;

25. There are three possible reasons why the (d) any other practice liable to mislead the Regulation might not preclude the applica­ public as to the true origin of the prod­ tion of the provisions of French law in ques­ uct. tion:

— first, because the Regulation did not come into force until 26 July 1993, after the alleged offences had been committed;

23. Pursuant to Article 17(1) of the Regu­ lation, Member States were obliged 'within — secondly, if, as the Italian Government six months of the entry into force of the argues, the Regulation provides merely Regulation, [to] inform the Commission for an optional additional system of pro­ which of their legally protected names or, in tection at Community level, so that a those Member States where there is no pro­ Member State is not precluded from tection system, which of their names estab­ adopting, or maintaining in force, lished by usage they wish to register pursu­ national measures;

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27. As to the second point, concerning the 28. I do not, however, consider it necessary alleged right to maintain national protection, to decide that issue for the purpose of the present cases, save in so far as to say that in my view the effect of the Regulation is not to render automatically invalid any type of geo­ 16 — It quoted judgments of the Court of Cassation, Criminal Division, dated 25 January 1988, 8 February 1988, 10 Octo- graphical designation which does not fall ber 1988, 13 February 1989 and 8 March 1993. within the Regulation's definitions of 'desig- 17 — The fact that a provision of Community law may thus be given retroactive effect by virtue of national law docs not preclude the Court from answering a question on the meaning of that provision; the Court is not thereby required to interpret the provision out of its appropriate context in the way discussed at paragraphs 32 to 42 below. 18 — Communication to enterprises which use designations of That the Court does have jurisdiction in the present situa- origin and geographical indications for agricultural prod- tion is confirmed by Joined Cases C-358/93 and C-416/93 ucts and foodstuffs on the simplified registration procedure Bordessa and Others [1995] ECR I-361, at paragraphs 8 to provided for in Article 17 of Regulation (EEC) 10 of the judgment and Joined Cases C-163/94, C-165/94 No 2081/92, OJ 1993 C 273, p. 4. and C-250/94 Sanz de Lera and Others [1995] ECR I-4821, 19 — Beier and Knaak, The Protection of Direct and Indirect at paragraphs 13 to 15. See also Case C-341/94 Auoin, judg- Geographical indications of source in Germany and the ment of 26 September 1996, paragraphs 9 to 13. European Community', IIC, Vol. 25, No 1/1994.

30. As the Commission and France suggest, the French legislation appears to be more in the nature of a quality control measure than a measure relating to origin in the traditional 29. The term 'mountain' or 'mountain ori­ sense. Admittedly, the name 'Monts de gin' is of an entirely general character. It can­ Lacaune' is the name of a specific mountain not therefore be assimilated to a particular area and could accordingly be the subject of area (in the words of the Regulation, a registration under the Regulation were the 'a region, a specific place or, in exceptional links between the characteristics of a particu­ cases, a country'). Moreover the term lar product and that area to fulfil the require­ 21 'mountain' or 'mountain origin' is envisaged ments of the Regulation. However, it by the French legislation as capable of appears that such links were not necessary extending to agricultural products and food­ prerequisites to the grant of an authorization stuffs of all relevant kinds. Decree No for such a name under the French legislation. 88-194 encompasses meat products of all Indeed it seems that the name 'Monts de kinds; dairy products of all kinds; alcoholic Lacaune' is not protected in itself, but only beverages; fruits, vegetables and plants; and in so far as it suggests mountain origin. honey. It is true that authorizations will be granted under the legislation for specific products, but the designation 'mountain' or 'mountain origin' remains general. It is thus a designation of a kind far removed from what is contemplated by the Origin Regu­ lation, as can be seen by referring to the first list of names registered under the Origin 20 Regulation. All are highly specific, includ­ ing, on a random selection, Orkney beef (UK), jambon d'Ardennes (Belgium), Roquefort cheese (France) and Jersey Royal 31. I conclude, therefore, that the Origin Regulation has no application to the present cases.

33. It should be noted at the outset, how­ ever, that the facts of the present cases appear to be confined wholly to the national terri­ tory. In each of the four cases a French national is being prosecuted for failing to 34. Since in the present cases we are con­ obtain the requisite authorization in relation cerned solely with national products, it is to products produced in France and mar­ necessary to consider whether the Court keted solely on French territory. As the should answer the question relating to French Government observed at the hearing, Article 30 as regards its application to there is no evidence to suggest that any of imports. Clearly the Court can and should the ingredients are imported from other rule that Article 30 has no application to Member States. It is well established that situations which are purely internal in the Article 30 is not infringed in purely internal sense that they concern only domestic prod­ 22 situations. In Waterkeyn, for example, the ucts marketed on national territory. How­ Court ruled that its earlier ruling in Com- ever, the question put by the national court 23 mission v France, to the effect that a is in general terms and is not limited French law infringed Article 30, applied only expressly to the particular circumstances of in so far as that law applied to imports and the present cases. It would be open to the that Article 30 did not affect the law in so far Court, therefore, to answer the question

22 — Joined Cases 314/81 to 316/81 and 83/82 [1982] ECR 4337. 24 — Case 286/81 [1982] ECR 4575. 23 — Case 152/78 [1980] ECR 2299. 25 — Paragraph 9 of the judgment

along the same lines as its rulings in Water- ence is silent as to the basis of the reverse keyn and Oosthoek's Uitgeversmaatschappij: discrimination argument, it appears that the i.e. to consider the application of Article 30 principle results from an earlier case decided in relation to both domestic products and by the Criminal Division of the Court of 27 imports. However, in contrast to the factual Cassation itself. The question then arises situation in those cases, none of the products whether the Court should exercise jurisdic­ in the present cases is imported. The ques­ tion where the Treaty provision can only tion in the present cases appears to be apply indirectly and the matter is purely prompted by the need for the national court internal. to assess the appellants' argument on reverse discrimination: i. e. their argument that if the national law is unenforceable vis-à-vis imports by virtue of being in breach of Article 30 it should also be rendered unen­ forceable vis-à-vis domestic products since domestic products would otherwise be in a less favourable situation than imports. 28 36. In the case of Smanor the Court did accept jurisdiction to rule on the application of Article 30 to imports in circumstances similar to those of the present cases. As the Court recognized at paragraph 7 of its judg­ ment, the French Government had argued that the situation from which the main pro­ ceedings originated did not fall within Article 30 of the Treaty and that there was accordingly no need to reply to the question on Article 30. The Court noted that that argument was based on the grounds that the 35. It is clear that such reverse discrimi­ case involved the application of French law nation is not prohibited by Community law. to a French company manufacturing and As the Court stated in Ministère public v marketing deep-frozen yoghurt on French Mathot, 26 'treatment which works to the territory. However, the Court found that the detriment of national products as compared possibility could not be ruled out that such with imported products and which is put products might be imported into France and into effect by a Member State in a sector that the French legislation would apply to 29 which is not subject to Community rules or them. It reasoned that 'as to whether in relation to which there has been no har­ Smanor may validly plead before the monization of national law does not come national court a barrier to imports of deep- within the scope of Community law'. The frozen yoghurt created by the French regula­ appellants' argument before the national tions, it should be pointed out that the Court court might, however, be based on a prin­ has consistently held that it is for the ciple of national law prohibiting reverse dis­ crimination. Although the order for refer­ 27 — See the report in RJDA 1/95 No 96, annexed to Mr Pistre's observations. 28 — Case 298/87 [1988] ECR 4489. 26 — Case 98/86 [1987] ECR 809, paragraph 9 of the judgment. 29 — Paragraph 8 of the judgment.

37. It seems that the Court has tended to decline to address questions relating to Article 30 on the grounds that a situation is purely internal only where the domestic pro­ vision concerns domestic products exclus­ ively and would have no application in any circumstances to imported products. 31 39. I appreciate that, as Advocate General Elmer pointed out in his Opinion in CIA 34 Security v Signalson and Securitel, a prod­ uct is often very much a compound and its different components may accordingly have come from a number of different Member States even if its assembly occurred in the Member State in question. In some cases it may not be clear from the order for refer­ 38. In my view, however, the Court should ence whether the goods are produced nation­ decline to rule on the application of ally or imported, let alone from where their Article 30 to imports when it is clear from component parts originate. However, when, the facts that a situation is wholly confined as in the present cases, it is not suggested to national territory. As Advocate General that Article 30 is infringed in relation to the Cosmas suggested in his Opinion in Belga- products directly in issue or their component 32 pom, it can be argued that 'the connecting parts, but only that it might be infringed in factor bringing a given situation within the so far as the national measures are or might ambit of Article 30 of the Treaty should be be applied to other, imported products, I consider that the Court should regard that

30 — Paragraph 9 of the judgment. 31 — Sec the Opinion of Advocate General Cosmas in Case C-63/94 Belgapom v ITM and Vocarex [1995] ECR I-2467 33 — Paragraph 14 of the Opinion (emphasis in original). at paragraph 13. 34 — Case C-194/94, delivered on 24 October 1995, at paragraph 32 — Cited in note 31. 28.

40. Furthermore, that seems to me to be the correct approach even when the relevance of (2) whether, if so, the effect of the Regu­ the question referred is clear, for example lation might be to preclude reliance on because the referring court explains that a Article 36 of the Treaty; national provision prohibits reverse discrimi­ nation. In my view, it is important that the Court should rule under Article 177 of the Treaty in the appropriate factual context, as I have argued in my Opinion in Leur-Bloem (3) whether in any event reliance on Article 3 and Giloy. 5I appreciate that in some 36 could be justified on the facts of the instances it may seem easy for the Court to case. give a ruling on a Community point which, albeit relevant for reasons of national law, does not arise directly from the facts of a particular case: for example in cases such as those presently before the Court where the legislation may seem manifestly contrary to It is plain in my view that such issues can Article 30 in so far as it applies to products and should only be addressed in a factual imported from other Member States. It may context which genuinely raises them. even seem unnecessarily uncooperative of the Court not to assist the national court in such cases. However, for the reasons set out in my Opinion in Leur-Bloem and Giloy, it will often be hazardous to address a Com­ munity law question out of context. It is 41. It is important that the Court should easy to see that, even in cases of the present adopt a consistent approach when deciding kind, complex issues could arise. Suppose for whether to exercise jurisdiction. In my view, example that a Member State contended that the most coherent approach is to decline to a particular indication of provenance ought rule on a question of Community law in all to be protected against imports from other cases in which the relevance of the question Member States. arises from the fact that national law has transposed Community rules into a purely domestic context in which they do not apply 35 — Case C-28/95 Leur-Bloem v Inspecteur der Belastingdienst/ as a matter of Community law. Whether that Ondemineen Amsterdam 2 and Case C-130/95 Giloy v transposition arises by means of specific Hauptzollamt Frankfurt am Main-Ost [1996] ECR I-4161, I-4165. national legislation mirroring or extending

(2) Article 30 of the Treaty has no application to a national law in so far as that law applies to national products .

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