C-317/95

IV. Trade names of food products: the Court's case-law and Community legislation ... I - 4697

A. Community names I - 4697

B. Generic names I - 4697

C. Geographical names I - 4701

V. Analysis of the questions submitted I - 4708

A. Application of Article 30 of the Treaty I - 4709

1. T h i s case arises f r o m p r o c e e d i n g s pending ter ' C a n a d a n e ' ) and the G r e e k u n d e r t a k i n g before t h e Simvoulio tis Epikratias (Council Adelfi G . K o u r i A E V E (hereinafter 'Adelfi of State) in w h i c h t h e D a n i s h u n d e r t a k i n g K o u r i ' ) seek t h e a n n u l m e n t of a n u m b e r of C a n a d a n e Cheese Trading A M B A (hereinaf- administrative decisions a d o p t e d b y various G r e e k authorities w h i c h prevented t h e m from marketing in Greece, u n d e r the n a m e 'feta', a c o n s i g n m e n t of cheese i m p o r t e d * Original language: Spanish. from D e n m a r k .

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CANADANE CHEESE TRADING AND KOURI v GREEK MINISTER FOR TRADE AND OTHERS

1. Facts of the main proceedings Ministerial Order N o 2109/1988 of the Min- istries of Finance and Agriculture.

4. Canadane and Adelfi Kouri lodged a complaint concerning the inspection report with the tripartite Committee constituted under Article 17(2) of Presidential Decree 2. By customs declaration N o 53.130 dated N o 40/1977. By decision of 13 September 26 August 1991, the Sixth Customs Office of 1991, the Committee rejected the complaint Piraeus was informed of the importation of and accepted in full the reasoning of the 850 kg of white cheese in metal containers inspection report. bearing the description 'feta cheese from Denmark made from pasteurized cows' milk'. It had been dispatched from Denmark by Canadane to Greece for importation and marketing by Adelfi Kouri.

6. Adelfi Kouri did not agree to the Greek authorities' proposal that the cheese be sold under a different name and appealed against their decision to the Council of State. Although the consignment of cheese imported from Denmark under the descrip- tion 'feta cheese from Denmark made from pasteurized cows' milk' had deteriorated, the Council of State ruled, by resolution 1873/1993, that the applicant undertakings had a particular legitimate interest in con- In order to determine the dispute, the Greek tinuing the proceedings because the authori- Council of State decided that a preliminary ties' refusal, embodied in the contested ruling should be sought from the Court on administrative decision, to authorize the the following questions: import of Danish cheese made from pasteur- ized cows' milk under the name 'feta', pro- posing as a condition for authorizing impor- tation the description ''white cheese in brine made in Denmark from pasteurized cows' milk', affected the possibility of selling the product on the Greek market. The obligation to use a name which Greek consumers were not familiar with and did not appreciate, instead of the traditional name 'feta', made it extremely difficult to sell the Danish feta cheese on the Greek market. ' 1 . Does it follow from an interpretation of Articles 30 and 36 of the EC Treaty that a Member State may refuse to allow the use of a certain commercial name for products pro- duced by and exported from another Com- munity country for circulation within that State where those products are so different from the point of view of their composition and method of manufacture from products 7. In their application for annulment to the which are generally known by that name in Council of State, the appellants contended the Community that they could not be

2. In that situation, should general familiar- ity with the product under a particular name within the Community be assessed and judged in relation to consumers within the 3. If the answer to the previous questions is Member States of the Community, since it is in the affirmative, in view of the information their protection that is sought? Does "prod- set out above contained in Communication ucts generally known under a certain name 9539/W24.2.1994 from the Director Gen- by consumers within the Community" mean eral of the Directorate-General for Agricul- similar products, the general and essential ture of the European Communities and the characteristics of which as regards composi- accompanying report and consequently the tion and method of manufacture are familiar data extracted — first, as regards the propor- to consumers, even though they differ in tionate relationship between total consump- their secondary characteristics — not, how- tion within the Community of cheese under ever, decisively as regards type, but simply in the name "feta" and consumption within the the determination of different national vari- Community of cheese under the same name eties and in that case the majority of those manufactured from sheep's and goats' milk national varieties are lawfully produced and and by the natural straining method; sec- marketed primarily for domestic consump- ondly, as regards the proportionate relation- tion in the Member State of their origin? ship between consumption of feta cheese Further, whenever a product is put on the from sheep's and goats' milk within the market within the Community for sale for Community and consumption of the same consumption exclusively or almost exclus- product in Greece; and thirdly, as regards the ively within one Member State where there proportionate relationship between produc- is a demand on the part of consumers, espe- tion, domestic consumption and export in cially when the product is known under a Denmark, and also in all other Community traditional name, then, even where the prod- countries, of cheese under the name "feta" uct is also produced in another Member made from cows' milk by the ultra-filtration State — not, however, for marketing prima- process — is it possible to accept that white rily for domestic consumption, but with the cheese under the name "feta" may be pro- exclusive, or almost exclusive, intention that duced in the other Community countries, in it will be exported to the Member State particular in Denmark, with the almost where it is consumed — is the general famil- exclusive aim of exporting it, as regards iarity of consumers with the product within intra-Community trade, to Greece which is

almost the only Community country where and the Community rules relating to the cheese is marketed for consumption under trade names of food products in so far as the name "feta"? Furthermore, should general they affect the production and marketing of familiarity within the Community with feta cheese,' cheese known under the commercial name "feta", in particular as regards its general and essential characteristics, be assessed and judged by reference to consumers of feta cheese in Greece, for whom "feta" means white cheese produced from sheep's or goats' milk by the natural straining method, whereas cheese manufactured from cows' milk by the ultra-filtration process is so essentially different from the point of view II. Production and marketing of feta cheese of raw material and method of manufacture in the EC that it is impossible to treat it as a similar product? In consequence, is Article 83 of the Greek Foodstuffs Code, in the version in force when the contested decision was adopted, reserving the use of the name "feta" solely for cheese produced from sheep's and/ or goats' milk by the natural straining method compatible, for the purposes of the case under review, with Articles 30 and 36 of the E C Treaty?' 9. Homer's Odyssey recounts how Polyphe- mus 'sat down to milk his ewes and bleating goats, which he did methodically, putting her young to each mother as he finished. He then curdled half the white milk, gathered it all up, and stored it in wicker baskets ...'. * In this way the Cyclops, Polyphemus, made the cheese which Ulysses and his men found in the cave. It is not surprising that, in using this method of making cheese, which is very similar to that traditionally used in modern Greece, Polyphemus was unaware of the legal problems which the free movement of that product in the European Community was going to cause at the end of the 20th century, not only because he could not have 8. Before examining these questions, I think predicted, 27 centuries in the future, the it necessary to refer to the production and complex stratagems of protected names, but marketing of feta cheese in the EC and to also because of his own nature, as the give an account of the Greek provisions the compatibility of which with the EC Treaty is the issue in the main proceedings. In addi- 1 — Homer, The Odyssey, Book IX, translated by E. V. Rieu, tion, I shall consider the Court's case-law Penguin Books, 1946, p. 145.

Another of Homer's poems, the Iliad, shows the importance of cheese in the Greece of the 8th century B.C_ 4 However, references to 5 — A. de Guevara, Menosprecio de Corte y Alabanza de Aldea, cheese may be found even earlier in the old- Madrid, 1984, p. 177, praises country life in villages and small towns because, he says, their inhabitants 'have kids for est illustration of how milk is obtained and eating, sheep for providing dried and smoked meat [.

10. Cheese forms part of western food and harder if it had been made of mortar' (ibid., Chapter 11, culture. It is often mentioned in the great p. 85). Further on, when Don Quixote asks Sancho Panza what jewel Dulcinea gave him on his departure, as a reward works of literature. It is one of the dishes to taking Don Quixote's message, he explained that 'It is an ancient and time-worn custom among knights errant and their ladies to reward squires, damsels, or dwarfs who bring them news of their ladies or knights with some rich jewel in gratitude for their welcome news'. Sancho replies T h e y must have done that in the olden times, for nowadays the 2 — Ibid., p. 142: 'the Cyclopes, a fierce, uncivilized people .

Finally, guin Books, 1950, p. 214: the lady Hecamede, the 'comely we should remember Don Quixote's protests when w h e y attendant' of Nestor and Patroclus, 'mixed them the pottage from the curds which Sancho put in his helmet flowed d o w n with Pramnian wine . . . grating into it some goat's milk his face and into his beard (Part Two, Chapter 17, p. 571). cheese with a bronze grater .

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although on occasions cheese is described as of his wife's circumstances and ambition, is 'excellent'. 7 higher than his resources permit. 9

11. French literature offers proof that cheese Provence; there are different cattle with their was included in the French diet. It is strange cowsheds and seasonal moves to new pas to find that Rabelais, in the middle of the tures; there are secrets of production handed 16th century, included cheeses in the dessert down over the centuries. This shop is a course of a memorable dinner. 8 Later on, museum: when visiting it, Mr Palomar feels, Proust uses cheese as a counterpoint to the behind every object displayed, the presence excesses of a decadent group of individuals of the civilization which gave it shape, as if who consider themselves refined, and as a he were in the Louvre'. 1 0 The importance of reflection of the true nature of one of them, the name of a cheese is also shown when the M. Verdurin, whose social position, because author writes that 'this shop is a dictionary; the language is the system of cheeses as a whole: a language with a morphology which 7 — Ibid. Cervantes ends the story told by the goatherd Eugenio records declensions and conjugations with of the misfortune suffered by the capricious Leandrą as fol countless variants and a vocabulary inex lows:

E is strength when his wife asks for the cheeses, which are 'si vilains dc ton', to be taken away ( I I I Sodom and Gomorrah, cakes, curdled milk, ices and fruits of all kinds and, of p. 330). course, cheeses (Part Five, Chapter XXIII). 10 — I. Calvino, Palomar, Giulio Einaudi, Turin, 1983, p. 75.

15. The ancestral cheese produced in Greece under the name 'feta' is made from sheep's milk or a mixture of sheep's and goats' milk 13. Consequently there is no doubt as to the by the traditional craft method of natural importance of cheese in Mediterranean civi- straining of the milk, without applying pres- lization, I2 from where it has passed to other sure. Specifically, the stages of production areas, t 3 and the identification of cheese and are as follows: its names with ancestral traditions. This cul- tural context may to some degree be relevant to a case such as that now before the Court because, so far as cheeses are concerned, what matters is the natural element, the rest being mystery and patience: they have more to do with immemorial custom and tradi- — The milk is coagulated with the tradi- tional flavours than with recipes which, like tional rennet or other enzymes of animal the law, can be improvised. , 4 origin which act in a similar way.

— The curds are then put into wooden or Cheese described as 'feta' has been produced metal containers and brine of 7% con- in Denmark since the 1960s and in Germany centration is added. The containers are and the Netherlands since a later date. The placed in maturing rooms under con- type of milk and the production process dif- trolled temperature and humidity condi- fer from those used in Greece. The milk is tions. cows' milk, which is cheaper than that of sheep and goats, and an industrial ultra- filtration process is used, which is more modern and competitive than the traditional method of straining. Feta is also made from cows' milk in France, but at the same time it is made from sheep's milk on the island of — The cheese ripens in two months, the Corsica and some parts of the Massif Cen- first two weeks in the maturing rooms tral, such as Roquefort, where the sheep's and the rest of the time in cold-storage milk which is not used in the production of plant. Roquefort cheese is used to make feta.

16. The main qualities of the resulting cheese are its natural white colour, its characteristic taste and smell (slightly acid, salty and 18. The statistics concerning the production, greasy) and its compact texture. The produc- consumption and sales of the two varieties of tion of feta was not regulated by the Greek feta cheese in the E C are not too accurate authorities until 1988 and consequently dif- owing to the technical difficulties involved in ferent local or regional variants existed the different methods of calculation, fluctua- because it was produced in countless places. tions in stocks held in storage and the exist- ence of thousands of small producers in Greece who meet local or family require- ments.

States in this case, lead to the following Denmark is the second Community pro- conclusions: ducer, with around 40% of Community production. Its feta made from cows' milk is intended basically for export to other Member States of the EC and, to a greater degree, to non-member coun- tries. Germany, France and the Nether- lands account for the rest of production, with feta made from cows' milk clearly predominating and a large percentage of exports to other EC States and non- (a) In the period 1988-92 the annual con- member countries. The volume of cows' sumption of feta made from sheep's and/ milk feta exported to Greece from Den- or goats' milk in the EC varied between mark and other Community producer 125 000 and 150 000 tonnes, and that of countries is quite small, although in the feta made from cows' milk was between period in question the restrictive Greek 10 000 and 25 000 tonnes. There is a sig- legislation was already having an effect. nificant concentration of consumption in Greece, as that country accounts for between 70% and 85% of the EC total, which gives a total of about 10 kg per inhabitant per year. In the case of feta made from sheep's and/or goats' milk, the figure is more than 90%. In the other Member States very little or no feta is consumed, and that which is consumed is almost exclusively cows' milk feta. In percentage terms, Germany is the second consumer country because of a large population of Turkish origin, and in Denmark consumption is very limited.

19. Feta is also produced and consumed out- side the EC. Although there are no global statistics, studies carried out on behalf of the U N Food and Agriculture Organization ('FAO') and the World Health Organization (b) Community production of feta between ('WHO') concerning the possibility of draw- 1988 and 1992 was around 240 000 ing up an international standard for feta tonnes. Greece is the main Community show that relatively large volumes are pro- producer of feta cheese, almost 50% of duced and consumed in countries such as which is made from sheep's and goats' Iran and Saudi Arabia, where feta made from milk. Virtually the whole of Greek pro- sheep's and/or goats' milk predominates, and duction is for domestic consumption. New Zealand and the United States, where

3. Definition: Feta cheese is a product made from sheep's milk or a mixture of sheep's and goats' milk which is matured and preserved in brine until it reaches the consumer, and which meets the fol- 21. Although a first restrictive measure was lowing requirements: adopted earlier, 15 the abovementioned pro- cess began with Ministerial Order N o 2109/1988 , 6 of the Ministries of Finance and Agriculture and continued with two other Ministerial Orders of the same departments, N o s 688/1989 , 7 and 565/1991, , s which 4. Raw materials: amended Article 83 of the Foodstuffs Code.

15 — Ministerial Order No 15294/1987 of the Ministries of Finance and Agriculture, FEK B 347. 4.1 Milk: sheep's or a mixture of sheep's 16 — FEK B 892. 17 — FEK B 663. and goats' milk produced in the 18 — FEK B 667. abovementioned geographical areas.

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CANADANE CHEESE TRADING AND KOURI v GREEK MINISTER FOR TRADE AND OTHERS

5. Permitted additives and processing aids: 6. Principal characteristics of the mature cheese:

5.1 Essential:

a) calcium chloride, up to 20 g per 100 kg of milk;

6.1.4 Weight: variable.

b) preservatives: not permitted;

c) colouring matter: not permitted. 6.2 Rind: none.

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OPINION OF MR RUIZ-JARABO COLOMER — CASE C-317/95

6.5 Minimum fat content: 4 3 % (calcu- lated on the basis of dry matter). 7.2.2 Heat treatment of curds: none.

6.6 Maximum moisture content: 56%. 7.3 Fermentation process: acidification.

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C A N A D A N E CHEESE T R A D I N G A N D K O U R I v GREEK MINISTER F O R T R A D E A N D O T H E R S

7.4 Maturing process: in wooden barrels 23. Finally, Article 83 of the Foodstuffs or metal containers in brine for at Code was amended by Ministerial Order N o least two months. 313025/1994 of the Ministry of Agriculture of 11 January 1994 concerning the recogni­ tion of the designation of origin 'feta'. Ώ That Order defines 'feta', specifies the area of production and the requirements relating to the milk which may be used in its produc­ tion, describes the method of production of 7.5 Other traditional characteristics: the cheese, lists its characteristics, specifies straining of the curds in perforated the particulars to be shown on the product moulds, without pressure. Salted on and generally prohibits the production, surface when dry.' import, export and marketing of cheese bear­ ing the name 'feta' which does not meet the requirements of the Order.

the Director General of the Directorate- which did not affect the efficacy of the new General of Agriculture informed the Greek Greek rules. authorities that, after careful examination of the methods of production and marketing of feta, he considered that the Greek legislation was compatible with Community law. The Commission maintained that view in response to complaints by the national fed- erations of producers of milk products in various Member States since, according to the Commission, the Cassis de Dijon judg- ment 24 concerning the mutual recognition of goods lawfully produced and marketed in a Member State •was not applicable, owing to 25. Subsequently the Commission initiated the fundamental differences between the feta proceedings against Greece under Article 169 made in Greece (sheep's and/or goats' milk of the Treaty for failure to fulfil its obliga- and the natural straining method) and that tions, because of the restrictive consequences produced in other Member States from of the Greek measures arising from the geo- cows' milk by the ultra-filtration process. graphical limitation on the production of feta and other traditional Greek cheeses. O n 18 May 1992 the Commission sent the Greek Government a reasoned opinion in which it stated that the measures in question were contrary to Article 30 of the Treaty because they restricted the use of the name 'feta', which is a generic term, to cheese produced in certain parts of Greece.

The Commission discovered — and notified Greece — that a fairly substantial quantity of feta was being produced in that country with the addition of cows' milk, which could affect the legality of the Greek measures. The Commission did not bring an action After the introduction of stricter controls by before the Court of Justice because the ques- the Greek authorities, the Commission con- tion was connected with procedures under cluded that the addition of cows' milk to way for the recognition by the Community 5.9% of feta production was a deception of geographical indications and designations of origin of food products, as provided for by Regulation N o 2081/92, concerning the protection of geographical names at Com- 24 — See the judgment in Case 120/78 Rewe-Zentrale AC [1979] ECR 649, 'Cassis de Dijon'. munity level.

28. Generic names are common names used to designate agricultural or food products. They form part of the general cultural and gastronomic stock and may, in principle, be In the light of the Community law relating used by any producer. The Court's case-law to this subject and the relevant case-law of does not define what is meant by 'generic the Court, the following types of selling names of food products may be distin- 26 — Council Directive 74/409/EEC of 22 July 1974 on the har- monization of the laws of the Member States relating to honey (OJ 1974 L 221, p. 10). 25 — Council Directive 79/112/EEC of 18 December 1978 on the 27 — Council Directive 73/241/EEC of 24 July 1973 on the approximation of the laws of the Member States relating to approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for cocoa and chocolate products intended for human con- sale to the ultimate consumer (OJ 1979 L 33, p. 1). sumption (OJ 1973 L 228, p. 23).

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name', but the following have, inter alia, different Member States. For the free move- been held to be generic names: vinegar, 2S ment of goods in the Community, the prob- geneva, 29 beer, 30 pasta, 31 yoghurt, 32 Edam lem arises when a product is marketed under cheese, 33 cheeses, 34 meat products ('Fleisch- a generic name used in one State after being waren'), 35 and bread. 36 imported from another State where it is law- fully produced and marketed under the same name, but with characteristics which differ in some respects. 37

28 — See the judgment in Case 193/80 Commission v Italy (the 'Vinegar· cise) [1981] ECR 3019. 29 — See the judgment in Case 182/84 Miro [1985] ECR 3731. 30. With regard to the possible justification 30 — See the judgment in Case 178/84 Commission v Germany of restrictions arising from differences (the •Beer' case) [1987] ECR 1227. 31 — See the judgments in Case 407/85 J Glocken and Another v between national laws on the use of generic USL Centro Sud and Another [1988] ECR 4233, and Case names, the grounds put forward as essential 90/86 Criminal proceeding against Zoni [1988] ECR 4285. 32 — Sec the judgment in Case 298/87 Smanor [1988] ECR 4489. requirements have been, basically, the pro- 33 — See the judgment in Case 286/86 Déserhais [1988] E C R tection of consumers and fair trading and, to 4907, paragraph 12. 34 — See the judgments in Case C-210/89 Commission v Italy [1990] ECR 1-3697, paragraph 12, and Case C-196/89 Nespoli and Grippa [1990] ECR 1-3647. 35 — See the judgment in Case C-269/89 Bonfait [1990] E C R 37 — Sec the Nespoli and Grippa judgment, cited above, para- 1-4169, paragraph 13. graph 13. 36 — See the judgments in Case 130/80 Kelderman [1981] ECR 38 — See the judgments in Commission v Italy, the 'Vinegar' 527, Case C-17/93 Van der Veldt [1994] ECR 1-3537, and case, paragraph 27, and Miro, paragraph 22, both cited Case C-358/95 Morellato [1997] ECR 1-1431. above.

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CANADANE CHEESE TRADING AND KOURI v GREEK MINISTER FOR TRADE AND OTHERS

a lesser extent, the protection of public and Italian consumers and to permit them to health provided for by Article 36 of the be sold under the generic names 'beer' and Treaty. The case-law on the subject shows 'pasta'. that the Court has applied two principles in these situations.

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OPINION OF MR RUIZ-JARABO COLOMER — CASE C-317/95

•when buying a product with the generic substantial differences have not been prop- name 'yoghurt'. The Smanor judgment leaves erly clarified. 41 The Smanor judgment men- to the national court the task of determining tions consumer expectations in the State of whether the different characteristics of deep- destination, the provisions of the F A O / frozen yoghurt in relation to the require- W H O Codex Alimentarius and the national ments of national law for fresh yoghurt are law of the State of destination, while the so significant as to justify a different name. 3 9 Déserbais judgment refers only to the pro- duction and composition of the products. Furthermore, no order of priority is laid down for those criteria and, if they are applied to a particular product, they may lead to conflicting conclusions. N o r is any indication given of the degree of difference which must exist between the imported In the Déserbais judgment, delivered shortly product and national products sold under afterwards, the Court considered that the generic name for it to be considered that hypothesis in an obiter dictum, *° but ruled there is a substantial difference between them that an Italian provision which prevented the which will not be discovered by consumers marketing, under the name 'Edam', of cheese even where there is adequate labelling. with a fat content below 40% did not fall within that category.

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C A N A D A N E CHEESE TRADING A N D KOURI v GREEK MINISTER FOR TRADE A N D OTHERS

name, without regard to characteristics of consumption, the situation in other Mem- known only to consumers in the importing ber States and the relevant national or Com- country. This test must be carried out in each munity laws. Under the first subparagraph of case on the basis not only of consumer Article 3(1), names which have become expectations but also of objective factors generic cannot be registered and do not such as the definitions in the F A O / W H O enjoy Community protection, and the third Codex Alimentarias, the rules and regula- subparagraph provides that the Commission tions of Member States, the composition or will publish in the Official Journal of the method of manufacture of the products, and European Communities a guide list of names references in Community acts, including the of agricultural products and foodstuffs which tariff nomenclature used in implementing the are considered generic. Common Customs Tariff. In the Commis- sion's opinion, only a substantial difference in one of those respects from national prod- ucts would permit the importing State to prevent the marketing of the imported prod- uct under the generic name. Likewise the Commission does not lay down the degree of difference necessary for the difference between products to be regarded as substan- tial, nor does it give an order of priority of C. Geographical names the criteria to be used for making the comparison. It offers only three examples of the use of generic names: vinegar, yoghurt and caviar.

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O P I N I O N O F MR RUIZ-JARABO C O L O M E R — CASE C-317/95

indirect, if the name does not include a — They impart a good reputation to prod- place-name (tetilla cheese, reblouchon, ucts amongst consumers because the geo- grappa, ouzo, cava). Geographical names graphical name guarantees the specific have the following characteristics: 44 provenance, the type and the prescribed quality of the product. 47

— They guarantee the geographical origin of — The legal protection of geographical the product and, to a greater or lesser names safeguards producers' interests degree, its type: in other words, that it against unfair competition and protects has specific qualities and characteristics consumers against information which arising from its geographical origin. 45 may mislead them. 4S

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C A N A D A N E CHEESE T R A D I N G A N D K O U R I v GREEK MINISTER F O R T R A D E A N D O T H E R S

36. The national laws of the Member States, judgment, 51 such protection of geographical based on existing international agreements, 5° names is governed by the principle of terri- distinguish various types of geographical toriality, whereby the law of the country of name and differ significantly with regard to importation, the factual circumstances and the degree of protection for such names. the current conceptions in that country are applicable to those names. 52 The grant of protection is independent of the law of the country of origin because a name may be generic in the country of origin and a pro- tected geographical name in the importing country.

37. In the Exportur judgment concerning 50 — The most important multilateral treaties in this field arc: the Lisbon Agreement for the Protection of Appellations of geographical names, the Court distinguishes Origin and their International Registration, 31 October 1858, revised at Stockholm 14 July 1967, U. N . Treaty Scries Vol. 923, N o . 13172, p. 205; the Paris Convention for the Protection of Industrial Property, 20 March 1883, revised at Stockholm 14 July 1967, U. N . Treaty Series Vol. 828, N o . 11851, p. 305; the Madrid Agreement for the 51 — Sec the judgment in Case C-3/91, cited above, paragraph repression of false or deceptive indications of source on 12. goods, 14 April 1891, revised at Stockholm 14 July 1967, 52 — See the comments of L. A. Fuentes Núñcz, 'La protección U. N. Treaty Series Vol. 828, No. 11848, p. 163, and the de las denominaciones de origen en el derecho comuni- Agreement establishing the World Trade Organization tario', Boletín de la Gaceta Jurídica de la C. E. y de Lx Agreement on Trade-related Aspects of Intellectual Prop- Competencia, B-101 February/March 1995, p. 31. erty Rights, cited above (footnote 43). 53 — See the judgment in Case C-3/91 cited above, paragraph 25.

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So far as indications of provenance are con- cerned, in the Exporter judgment the Court observed that their purpose was 'to inform the consumer that the product bearing that 38. In the area of Community lav/, measures indication comes from a particular place, have recently been adopted for protecting region or country. A more or less consider- geographical names. For example, rules have able reputation may attach to that geographi- been adopted specifically for wines and alco- cal provenance [...] Indications of provenance holic beverages, which are not relevant to the are protected by the operation of rules present subject, and general rules have been designed to suppress misleading advertising, laid down on the use of names for agricul- or indeed the abusive exploitation of anoth- tural products and foodstuffs in Regulation er's reputation'. 55 The Exportur judgment did not follow the judgment in the 'Sekt'

56 — Ibid., paragraphs 27 and 28. 57 — See the 'Sekt' case, cited above, paragraphs 3 and 4. 54 — See Case C-3/91, cited above, paragraph 11, and Case 58 — See Case 16/83 Pronti [1984] ECR 1299, paragraph 35, and C-47/90, cited above, paragraphs 17 and 18. Exportur, cited above, paragraph 34. 55 — See Case C-3/91, cited above, paragraph 11. 59 — See the Exportur judgment, cited above.

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CANADANE CHEESE TRADING AND KOURI v GREEK MINISTER FOR TRADE AND OTHERS

N o 2081/92, further implemented by Regu- tional cases, a country, used to describe lation N o 2037/93. 6° Regulation N o 2081/92 an agricultural product or a foodstuff: sets up a Community system of names which permits their protection in all the Member States, with the object of reducing the problems affecting the free movement of goods which arise from the coexistence of different national systems of protection.

OPINION OF MR RUIZ-ÎARABO COLOMER — CASE C-317/95

and designations of origin. 'Navarra Asparagus', 'Sobrasada de Mallorca' and 'Scottish Beef' are deemed to be geographical indications.

— which possesses a specific quality, reputation or other characteristics attributable to that geographical ori- gin and the production and/or pro- cessing and/or preparation of which take place in the defined geographi- cal area.'

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C A N A D A N E CHEESE TRADING A N D KOURI v GREEK MINISTER FOR TRADE A N D OTHERS

43. Articles 4 to 11 of Regulation N o 17(2) expressly excludes the registration of 2081/92 govern the procedure for registering generic names. a P D O or a PGI. Associations and natural or legal persons must submit applications for registration to the Member State where the geographical area is situated, conforming with specifications which must include details of all the characteristics of the prod- uct, as laid down in Article 4(2). If the appli- 44. The Commission initiated the procedure cation is justified, the Member State will for- laid down by Article 17 to facilitate registra- ward it to the Commission, which will tion of existing names and, after examining within six months verify, by means of a for- the applications, agreed to register the PDOs mal investigation, whether the conditions and PGIs included in the annexes to Regula- required in the Regulation are fulfilled. If the tions (EC) Nos 1107/96,« 1263/96 63 and result of the examination is positive, an 123/97. M announcement giving the details of the appli- cation will be published in the Official Jour- nal of the European Communities and, if there is no objection on the part of a Mem- ber State or a legitimately concerned natural or legal person, the Commission will enter In the paragraph relating to cheeses in the the P D O or PGI in the 'Register of Pro- Annex to Regulation N o 1107/96 the name tected Designations of Origin and Protected 'feta' is recognized as a P D O in favour of Geographical Indications', with subsequent Greece. This means that, after the expiry of publication of such entries and any amend- the transitional period laid down in Article ments in the Official Journal of the European 13(2) of Regulation N o 2081/92, cheese with Communities. the name 'feta' may be produced in the E C only in Greece and only in accordance with the Greek rules. The five-year transitional period ended on 25 July 1997, but was extended by Regulation (EC) No 535/97, 65 which provided that the five-year period

45. The Greek Council of State has referred to the Court three questions concerning the compatibility of the Greek legislation on feta cheese with Articles 30 and 36 of the EC Treaty. The first question is asked in the Three Member States where feta cheese is abstract and refers to the compatibility with produced have brought actions for the those Community rules of national measures annulment of Regulation N o 1107/96. The which prevent the marketing, under a par- cases in question are C-2 89/96 Denmark v ticular name, of a product different from the Commission, C-293/96 Germany v Commis- products normally sold under that name in sion, and C-299/96 France v Commission, the Community. The second question seeks now pending before the Court of Justice. At clarification as to whether the products the same time, undertakings producing feta which can be sold in the Community under in France, Germany and Denmark have a particular name must be ascertained having brought three similar actions before the regard to consumers in all the Member Court of First Instance (Cases T-139/96, States, those of the importing State or those T-140/96 and T-141/96) which, by three of the State of origin. The third question orders of 20 February 1997, declined juris- relates to the differences between Danish feta diction in favour of the Court of Justice. and Greek feta and to the possible greater weight of the viewpoint of Greek consumers for assessing the matter, given the character- istics of the production and consumption of feta in the Community.

The subject-matter of those actions is not the same as that of the questions referred in the 46. The need to give a reply which is condu- present case since it might be possible for the cive to determination of the main proceed- name 'feta,' although not fulfilling the condi- ings means that the questions must be tions laid down by Regulation N o 2081/92 reworded. In my opinion, the questions for a P D O at Community level, to meet the referred by the Greek Council of State seek criteria laid down by Community case-law from the Court a ruling as to whether relating to geographical names and therefore national legislation which prevents the mar- to be justified under Article 36 of the Treaty. keting in a Member State, under the name

A. Application of Article 30 of the Treaty 48. However, the Member States' power to regulate the production and marketing of feta must be exercised within the limits laid down by the Treaty rules on the free move- ment of goods, particularly Article 30, which prohibits measures having equivalent effect to quantitative restrictions on imports. According to the famous wording of the 47. At the time when this dispute arose, there were no common or harmonized rules in Community law in relation to the produc- 66 — The judgment in Case 237/82 Jongcneel Kaas [1984] ECR tion and marketing of feta cheese. Directive 483, paragraph 13, observes that, 'in the absence of any rule of Community law on the quality of cheese products, the 79/112 refers only to the labelling and pre- Member States retain the power to apply rules of that kind sentation of foodstuffs for sale to the ulti- to cheese producers established within their territory. That power extends not only to rules considered necessary for mate consumer and Regulation N o 1898/87 the protection of the consumer or public health, but also to rules which a Member state may wish to enact for the pur- restricts the name 'cheese' to milk products, pose of promoting the quality of domestic production. Such rules cannot however discriminate against imported although relying basically on national rules. cheeses or hinder the importation of products from other Therefore, each Member State was entitled to Member States.'

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O P I N I O N OF MR RUIZ-JARABO COLOMER — CASE C-317/95

Dassonville judgment, all trading rules distinction to all products unless their appli- enacted by Member States which are capable cation can be justified by a public-interest of hindering, directly or indirectly, actually objective taking precedence over the free or potentially, intra-Community trade are to movement of goods.' 70 be considered as measures having equivalent effect to quantitative restrictions. 67

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C A N A D A N E CHEESE TRADING A N D KOURI v GREEK MINISTER FOR TRADE A N D OTHERS

they regulate its composition, method of make the product more difficult to market production and area of production. The and, consequendy, create obstacles to trade application of those rules has a clearly between Member States. I therefore con­ restrictive effect on intra-Community trade sider that provisions such as those at issue in in that product because they impede the the main proceedings constitute measures marketing in Greece, under the name 'feta', having equivalent effect within the meaning of cheese lawfully produced and marketed of Article 30 of the Treaty. under that name in other Member States.

B. Justification of the measure

73 — See the Smanor judgment, cited above, paragraphs 12 to 14, which found that a provision whereby the French authori­ ties only permitted the marketing of an imported product 74 — See the 'Sekt' judgment, cited above, the judgment in Case under the name 'deep-frozen fermented milk' instead of 27/80 Fietįe [1980] ECR 3839, and the Miro and Exportar 'deep-frozen yoghurt' was a measure having equivalent judgments, cited above. effecL 75 — Sec Nespoli and Crippa, cited above, paragraph 14.

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O P I N I O N O F MR RUIZ-JARABO C O L O M E R — CASE C-317/95

(a) Main argument This means that the legislation in question also prevents the marketing in Greece, under the name 'feta', of cheese made from the same raw materials (sheep's and/or goats' milk) and by the same process (natural straining) in any other Member State and in any part of Greece other than those specified by law. For example, feta made from sheep's milk in Corsica and the French Massif 52. Consumer protection and fair trading are regarded by the Court's settled case-law as essential requirements capable of justifying domestic legislation which constitutes a 76 — According to the Court's settled case-law, domestic legisla- tion of that kind, since it is discriminatory in character, may measure having equivalent effect. Essential be justified only on one of the grounds mentioned in requirements may be relied upon only to Article 36 of the Treaty. See the judgments in Case 113/80 Commission v Ireland [1981] ECR 1625, paragraphs 8 and justify measures applying without distinction 11, and in Pistre and Others, cited above, paragraph 52.

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CANADANE CHEESE TRADING AND KOURI v GREEK MINISTER FOR TRADE AND OTHERS

Central, which is similar to traditional Greek relating to composition and production for feta, could not be marketed under the name the use of the name 'feta', would the rules be 'feta' in Greece. justified on the grounds of consumer protec- tion and fair trading? In that case, clearly, 'feta' would be a generic name.

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O P I N I O N O F MR RUIZ-JARABO COLOMER — CASE C-317/95

the risk of confusion and to uphold fair could make the marketing of the product 7S trading. In their opinion, this option is sup­ subject to the use of a different name. Nei­ ported by the Déserbais and the Smanor ther of those judgments sets out clearly the judgments. principles for determining whether there is a substantial difference between two products marketed under the same generic name in different Member States. The Smąnor judg­ ment mentions the expectations of consum­ ers in the recipient State, the F A O / W H O Codex Alimentarius and the law of the recipient State, whilst the Déserbais judg­ 57. In my view, those arguments must be ment refers to the composition and the dismissed. manufacture of the products.

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CANADANE CHEESE TRADING AND KOURI v GREEK MINISTER FOR TRADE AND OTHERS

60. In accordance with the foregoing reason- white only by the use of chemical ing, the similarity or substantial difference substances. between Greek feta and Danish feta must, in view of the Smanor and Déserbais judg- ments, be determined by reference to the fol- lowing criteria:

— Sheep's milk feta has an oily, salt, slightly acid taste and a strong aroma, whereas — Composition and method of production cows' milk feta has less aroma and a sweeter taste.

61. Greek feta is made from sheep's milk or a mixture of sheep's and goats' milk, which are the predominant types of milk in Greece. — Cows' milk feta has fewer holes than that The raw material used in Denmark for mak- made from sheep's milk because the ing feta is also milk, but cows' milk, which is effect of the brine is different. the type mainly produced in that country.

Sheep's and goats' milk, which are very simi- lar to each other, have different chemical and organoleptic characteristics from cows' milk, as demonstrated by the Greek Government, 62. With regard to the production method, Canadane and Adelfi Kouri in their respec- Danish feta is made by the industrial ultra- tive observations. Those differences are filtration process, while Greek feta is made manifested in feta in the following ways: by the traditional method of natural strain- ing without pressure. The cheese matures faster with ultra-filtration because the whey is removed before the curds are formed. However, it does not appear that ultra- filtration has a very different effect on feta — Feta made from sheep's milk is pure from that produced by the natural straining white, whereas that from cows' milk is a process, apart from the retention of the pro- yellowish white, which can be made pure teins in the whey.

65. Greece is the only Member State of the E C which has restrictive national legislation concerning the production and marketing of feta. There are provisions relating to this type of cheese in Denmark, Germany and the Netherlands which permit it to be made 64. In 1987 the Greek Government adopted from cows' milk, sheep's and/or goats' milk, restrictive measures relating to feta, permit- or a mixture of these by means of ultra- ting the marketing only of feta made from filtration or straining, but those rules have sheep's milk or a mixture of sheep's and not created restrictions on the sale of feta produced in other Member States. France merely requires the type of milk used to be 79 — Sec the report adopted at the 22nd session of the Joint specified. In the other Member States there is FAO/WHO Committee of Government Experts on the no specific legislation and no restrictions Code of Principles concerning Milk and Milk Products, held in Rome from 5 to 9 November 1990. apply to the sale of feta, whichever type of

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C A N A D A N E CHEESE TRADING A N D KOURI v GREEK MINISTER FOR TRADE A N D OTHERS

milk is used. Therefore consumers in all the 67. The application of most of the criteria Member States of the EC, except Greece, leads to the conclusion that there is no sub- regard feta as being made with cows' milk or stantial difference between sheep's and/or sheep's and/or goats' milk. goats' milk feta and feta made from cows' milk. The situation in international law, the references in Community legislation and the domestic legislation of all the Member States, except Greece, and the expectations of con- sumers in all the Member States show that feta may be made from sheep's, goats' or cows' milk without giving rise to differences in the individual varieties of feta which would be so substantial that they could not be brought to consumers' attention by means of adequate labelling.

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O P I N I O N O F MR RUIZ-JARABO C O L O M E R — CASE C-317/95

the factors in that development being the mentioned in the list of ingredients, the establishment of the Common Market. Thus, Court observed that 'consumers, whose pur- the Court has observed that, 'the legislation chasing decisions depend on the composition of a Member State must not crystallize given of the products in question, will first read consumer habits so as to consolidate an the list of ingredients [...]. Even though con- advantage acquired by national industries sumers may sometimes be misled, that risk concerned to comply with them'. 82 remains minimal and cannot therefore justify the hindrance to the free movement of goods created by the requirements at issue'. 83 In addition, it is open to Greek producers to include on the labelling of feta made from sheep's and/or goats' milk the details neces- sary to draw the attention of Greek consum- ers to the quality of their product with the object of neutralizing the competitive advan- 68. The legislation in issue in the main pro- tage of imported feta, owing to the lower ceedings restricts the use of the name 'feta' price of cows' milk and the use of the ultra- to cheese made in accordance with the rules filtration process. 84 in force in the importing Member State. The protection of consumers against the risk of confusion and the upholding of fair trading do not justify such a restriction, according to the Court's case-law, because adequate label- ling permits those objectives to be attained in a way which has less effect on intra- Community trade.

— The only issue in the present case is whether the sales description 'feta' in the framework of the domestic law of a Member State, Greece in this case, is generic or geographical in character. The registration of the sales description 'feta' 70. Having made these points, I find that, as a P D O in favour of Greece, as laid with the exception of Greece, the Member down by Regulation N o 1107/96, and the States which have submitted observations, resulting monopoly, in favour of Greek and the undertakings Canadane and Adelfi producers, of that name throughout the Kouri, consider that the name 'feta' has Community are the subject of dispute in become a generic term which designates the a number of actions pending before the white cheese in brine made from sheep's, Court. 85 goats' and/or cows' milk. Therefore they take the view that the Greek provisions at issue in the main proceedings unlawfully reserve use of the generic term 'feta' for national producers and therefore constitute a measure contrary to Article 30 that is not justified on grounds of the protection of industrial and commercial property.

72. It seems to me that the name 'feta', as it appears to be regulated by the Greek legisla- tion, fulfils the conditions laid down by Community case-law for a trade name of a food product to be regarded as a geographi- In reply to a written question from the cal name. 88 Since the Exportur judgment, I Court, the Greek Government, for its part, consider that a name is geographical if it contended that the legislation in question indicates directly or indirectly the origin of restricts feta production to a particular geo- the product, if the product has special char- graphical part of Greek territory, the charac- acteristics or a quality and reputation pecu- teristics of which determine the properties of liar to it, if the use of the name is protected that type of cheese, from which it follows by law and if the name has not suffered an that 'feta' is a geographical indication. irreversible process of generalization. In the present case, the use of the name 'feta' in Greece meets those conditions.

71. The Court has consistently held that the protection of industrial and commercial property provided for by Article 36 of the 73. Firstly, the name 'feta' indicates indi- Treaty may justify restrictions on the free rectly the geographical origin of the cheese movement of goods, deriving from national marketed in Greece under that name. In the rules protecting geographical names, pro- same way that the names 'grappa', 'ouzo' vided that those rules are intended to safe- and 'cava' allude indirectly to the Italian, guard rights which constitute the specific Greek and Spanish origins of those products subject-matter of such names. 87 made in specific regions, although none of them is a place name, the name 'feta' is

90 — In the Sekt judgment, cited above, paragraph 8, the Court took the view that the area of origin of a geographical name 'must show homogeneous natural features wnich distin- The size of the area where feta is produced guish it in contrast to adjacent areas, so that an area of ori- does not preclude classifying it as a geo- gin which is defined on the basis either of the extent of national territory or a linguistic criterion cannot justify an graphical name because the restrictive indication of origin'. This was found to apply to the names 'Sekt' and 'Weinbrand', deemed by the German legislation approach originally taken by the Court in to be indirect indications of origin which designate prod- ucts originating from the whole of the Federal German Republic or from countries where German is an official lan- guage. 91 — See the Exportur judgment, cited above, paragraph 11. 89 — Article 2(3) of Regulation N o 2081/92 permits the protec- Article 2(2) of Regulauon N o 2081/92 also accepts that a tion of indirect geographical names by providing that 'cer- designation of origin or a geographical indication may, in tain traditional geographical or non-geographical names exceptional cases, cover the whole territory of a Sute. designating an agricultural product or a foodstuff originat- For the significance of this change in the case-law, see ing in a region or specific place, which fulfil the conditions O. W Brouwer, 'Annoution of Case C-3/91 Exportur SA v referred to in the second indent of paragraph 2(a), shall also LOR SA and Confiserie du Tech', Common Market Law be considered as designations of origin'. Review, 1993, p. 1209 ff.

— the milk used for making feta, obtained which it could not be shown that their fla- from sheep and goats in the area of pro- vour, qualities and characteristics were duction, reared and fed by traditional attributable to the geographical location of methods; the place of production, but that they may enjoy a high reputation amongst consumers and constitute, for producers established in the places to which such names refer, an essential means of attracting custom. 93 This clarification of Community case-law seems — the method of producing feta, which still to me entirely correct because the require- uses the traditional system of natural ment of an express link between the product straining without pressure, and is applied and the 'terroir' would preclude protection by experienced producers. for many geographical names because mod- ern production techniques enable almost any product to be made anywhere. It would be perfectly possible to make 'Turrón de Jijona' in Perpignan or Stockholm, but that is a tra- ditional name successfully used by the pro- ducers of a particular region and it is there- fore a geographical name which may be 75. In their observations, the undertakings protected by law, in accordance with the Canadane and Adelfi Kouri, and the Ger- Exportur judgment. The situation is rather man, Austrian and Danish Governments similar with regard to the name 'feta'. consider that the Greek rules relating to feta Although it is open to debate whether Greek conflict with the Court's case-law in the feta has specific characteristics attributable to Sekt judgment, because Greek feta does not its place of production and whether cheese possess characteristics and qualities originat- of that kind can be produced only in certain ing from the geographical location of the parts of Greece, it seems to me beyond place of production. 92 They contend that its doubt that in Greece the name 'feta' has a geographical origin does not endow it with high reputation among consumers and specific characteristics which permit feta to enables the cheese producers who have been be distinguished as a typical product of the using it for a long time to keep a great many Greek regions indicated in the contested leg- customers. islation.

adopted in 1987 laid down technical condi- In their observations, Canadane, Adelfi tions for the production and marketing of Kouri and the German, Austrian and Danish feta in Greece and compliance with them Governments submit that 'feta' has become a was subject to administrative supervision. generic name, even in Greece itself. In their Those measures safeguarded producers' opinion, the legislation in question artifi- interests against unfair competition and pro- cially converted 'feta' into a geographical tected consumers against the use of names name with the object of favouring national which might have misled them. producers; before that time, it was used genetically in Greece to refer to the various types of white cheese in brine made through- out Greece from sheep's, goats' or cows' milk. The name 'feta' was also used for mar- keting various types of cheese imported from other Member States. The plaintiffs in the main proceedings consider that the Greek State had allowed use of the name 'feta' t o become generalized and that it was too late to adopt measures to protect the geographi- At the material time, the Greek legislation cal character of the name, which had become protecting the name 'feta' regarded it as a generic. traditional name and, subsequently, Presi- dential Decree 81/1993 protected it expressly as a designation of origin. In view of the considerable diversity of the terminology relating to the different kinds of geographical name, 1 take the view that the Greek mea- sures in force at the material time protected the name 'feta' as an indirect indication of provenance, in accordance with the terminol- ogy used in the Court's case-law. 94

— In 1987 Greece began to enact legislation designed to protect the name 'feta' as a geographical name. Furthermore, Regu­ lation N o 1107/96 lays down the same criterion and confers the status of P D O on 'feta' at Community level in favour of Greece, although several actions are pending before the Court for the annul­ ment of the regulation on that ground. O n e of the factors taken into account b y — Greece is the principal feta producer in the Commission in drafting Regulation the E C (almost 50%), although produc­ N o 1107/96 was a Community consumer survey in 1994. That survey 9 5 shows that tion is intended mainly for domestic con­ most Greek consumers consider 'feta' t o sumption. The last three decades have be a geographical name designating a seen the development of large-volume cheese originating from Greece. In addi­ production of feta made from cows' milk tion, surveys in all the Member States in other Member States, particularly aware of the existence of feta, except Denmark (approximately 40% of Com­ Denmark, show that most people think munity production), most of which is that it is a cheese of Greek origin. exported to non-member countries and has not generated any appreciable domes­ tic consumption in the Member States concerned. Producers in Denmark and the other Member States cannot contend that their feta production constitutes an existing, long-standing, fair and tradi­ tional practice within the meaning of the Franti judgment, 9 6 which must be respected by Greece, because in those — The consumption of feta in the EC is countries 'feta' was not an indirect geo­ overwhelmingly concentrated in Greece, graphical name. 9 7

(1) Legislation of a M e m b e r State w h i c h prevents the m a r k e t i n g , u n d e r t h e sales description 'feta', of a cheese lawfully p r o d u c e d and m a r k e t e d u n d e r t h a t n a m e in a n o t h e r M e m b e r State is a measure having equivalent effect t o a q u a n - titative restriction, c o n t r a r y t o Article 30 of t h e E C Treaty.

(2) Legislation of a M e m b e r State w h i c h restricts t o national p r o d u c t s the use o f the n a m e 'feta' is n o t justified o n the g r o u n d s of c o n s u m e r p r o t e c t i o n o r fair trading.

(3) Legislation of a M e m b e r State i n t e n d e d t o p r o t e c t the rights w h i c h are t h e specific subject-matter of a geographical n a m e , such as the n a m e 'feta', is justi- fied o n t h e g r o u n d of p r o t e c t i o n of industrial and c o m m e r c i a l p r o p e r t y referred t o in Article 36 of t h e E C Treaty.

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