C-289/96

OPINION OF MR LA PERGOLA —JOINED CASES C-289/96, C-293/96 AND C-299/96

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 15 September 1998 "

1. In the present action, the Kingdom of which make it possible to protect these des- Denmark (Case C-289/96), the Federal ignations and indications throughout the Republic of Germany (Case C-293/96) and Member States. the French Republic (Case C-299/96) seek the annulment of Commission Regulation (EC) N o 1107/96 of 12 June 1996 on the reg- istration of geographical indications and des- ignations of origin under the procedure laid down in Article 17 of Council Regulation The concepts of 'designation of origin' and (EEC) N o 2081/92 1 in so far as it provides 'geographical indication', for the purposes of for the registration of the word 'feta' as a applying the regulation, are set out in Article protected designation of origin. More specifi- 2(2), which provides: cally, the applicants argue that the conditions laid down by Regulation N o 2081/92, 2 which would enable feta to benefit from the protec- tion afforded by that regulation, have not been satisfied.

'(a) designation of origin: means the name of a region, a specific place or, in excep- tional cases, a country, used to describe an agricultural product or a foodstuff: Legislative and factual background

— originating in that region, specific place or country, and 2. In order to reduce the obstacles to the free movement of goods posed by the coexistence of differing national systems for the protec- tion of designations of origin and geographical indications, Regulation N o 2081/92 intro- duced a set of uniform Community rules — the quality or characteristics of which are essentially or exclusively due to a particular geographical environment * Original language: Italian. with its inherent natural and human 1 — OJ 1996 L 148, p. 1. 2 — Council Reguládon (EEC) No 2081/92 of 14 July 1992 on the factors, and the production, pro- protection of geographical indications and designations of cessing and preparation of which take origin for agricultural products and foodstuffs (OJ 1992 L 208, p. 1). place in the defined geographical area;

'Certain traditional geographical or non- geographical names designating an agricul- (c) any other false or misleading indication tural product or a foodstuff originating in a as to the provenance, origin, nature or region or a specific place, which fulfil the essential qualities of the product, on the conditions referred to in the second indent of inner or outer packaging, advertising paragraph 2(a) shall also be considered as des- material or documents relating to the ignations of origin'. product concerned, and the packing of

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the product in a container liable to convey common name of an agricultural product or a false impression as to its origin; a foodstuff.

(d) any other practice liable to mislead the public as to the true origin of the product.

To establish whether or not a name has become generic, account shall be taken of all factors, in particular:

2. A name may not be registered as a desig- protected names or, in those Member States nation of origin or a geographical indication where there is no protection system, which of where it conflicts with the name of a plant their names established by usage they wish to variety or an animal breed and as a result is register pursuant to this Regulation. likely to mislead the public as to the true origin of the product.

2, In accordance with the procedure laid 3. Before the entry into force of this Regula- down in Article 15, the Commission shall tion, the Council, acting by a qualified register the names referred to in paragraph 1 majority on a proposal from the Commis- which comply with Articles 2 and 4. Article sion, shall draw up and publish in the Official 7 shall not apply. However, generic names Journal of the European Communities a non- shall not be added. exhaustive, indicative list of the names of agricultural products or foodstuffs which are within the scope of this Regulation and are regarded under the terms of paragraph 1 as being generic and thus not able to be regis- tered under this Regulation.' 3. Member States may maintain national pro- tection of the names communicated in accor- dance with paragraph 1 until such time as a decision on registration has been taken,'

4. As stated, regulation in Greece of the con- ditions under which feta is produced and marketed began in 1988 6 and culminated in the adoption of a decree in 1994, 7 under Until 1988, there was no regulation of the which the denomination of origin 'feta' was production of feta in Greece. The cheese is established at national level. produced in numerous locations and there are therefore several local and regional variants of the product. Moreover, given the absence of technical specifications at an international level, other methods of producing feta are to be found in various other Member States of the Community and also in non-member By letter dated 21 January 1994, the Greek countries, which are none the less quite dis- Government requested registration of the tinct from the methods used in Greece. The word 'feta' as a P D O under the abridged difference lies in the use of cow's milk, rather procedure laid down by Article 17 of Regula- than the sheep's milk and/or goat's milk that tion N o 2081/92. O n 19 January 1996, in is used in Greece, and in the use of an indus- accordance with Article 15 of the regulation, trial method of production called ultrafiltra- the Commission submitted to the committee tion, which is more modern and more eco- provided for by that article a list of the names nomical than natural straining. Outside of which registration had been requested.

f —The milk is coagulated either with the traditional rennet or other enzymes or animal origin which act in a similar way. — The curds are then turned into perforated moulds where 5 — In France, in addition to feta produced from cow's milk, natural straining takes place without pressure. As the whey there is also a method which uses sheep's milk. The regions is strained, the curd solidifies and salt is added to the sur- concerned arc Corsica and other areas in the Massif Central, face leading to the formation of microflora which assist such as Roquefort. As regards non-member countries, feta is the process of maturing. produced and consumed in Iran and Saudi Arabia, where it is — The curds are then put into wooden or metal containers principally manufactured using sheep's and/or goat's milk, and brine of 7% concentration is added. The containers and in N e w Zealand and the United States of America, where arc placed in maturing rooms under controlled tempera- feta made from cow's milk predominates. ture and humidity conditions. — The cheese ripens in two months, the first two weeks in 6 — Ministerial Decree N o 2109/88 of 5 December 1988. the maturing rooms and the rest of the time in cold- 7 — Decree of the Deputy Ministcrfor Agriculture No313025/94 storage plant' (section 15). of 11 January 1994.

8 — Sec part A of the Annex, under lhe heading 'Cheeses — Greece'. 9 — The three cases were joined by order of the President of the Court of 27 November 1997. It should also be mentioned that, at the same time, certain undertakings producing fcta in Denmark, Germany and France brought three actions before the Court of First Instance with a view to obtaining the annulment of the contested regulation by that court (Case T-139/96, Case T-140/96 and Case T-141/96). By three orders However, the Commission, supported by the of 20 February 1997, the Court of First Instance declined jurisdiction in favour of the Court of Justice, which, in turn, Greek Government, contests this view. It referred the cases to the Court of First Instance by order of 29 May 1998. Again on die matter of the problem of the maintains that the geographical region of name 'fcta', the Opinion of Advocate General Ruiz-Jarabo provenance of fcta does not extend to the Colomcr in the Canadenc Cheese Trading case cited above at footnote 4 should be borne in mind, although the subject- whole of Greece in that is docs not include matter of those actions was different from the questions the archipelagoes of the Cicladcs and the referred in the present case. The Advocate General empha- sised that 'it might be possible for the name "fcta", although Sporadcs or the Island of Crete, even though not fulfilling the conditions laid down by Regulation N o 2081/92 for a P D O at Community level, to meet the criteria a cheese in brine similar to fcta is tradition- laid down by Community case-law relating to geographical ally produced in those areas. The region of names and therefore to be justified under Article 36 of the Treaty' (section 44). origin of fcta is therefore mainland Greece

and the Department of Lesbos. Moreover, the environment with its inherent natural and area thus defined is characterised by homog- human factors, and the production, processing enous climatic conditions and vegetation, and preparation [must] take place in the which give the feta produced in this area dis- defined geographical area'. Next, it is signifi- tinctive qualities. cant that, with the type of name in issue here, that is, a traditional non-geographical name, the regulation precludes the geographical region under consideration from being co-extensive with the whole of a country, whereas it does allow this in the case of names 7. In my view, the argument put forward by of other types. 1 1 the applicant governments must be upheld. First, it should be noted that the parties have correctly classified the name in question as a 'traditional non-geographical name' under Article 2(3). The word 'feta' is derived from the Latin and means a slice. It does not, therefore, designate 'the name of a region, a specific place or [...] a country', as Article 2(2)(a) requires in the case of geographical names. It therefore falls to be determined whether the requirements laid down by Article 2(3) for giving feta a non-geographical name have been fulfilled. The wording just cited reflects a fundamental requirement in the matter of protected names: the product bearing the name must have a special relationship with a defined area. There are two aspects to this requirement. First and foremost, the product must originate in a specific, defined area. Secondly, the origin of In my opinion, the answer must be that they the product must confer on it particular char- have not, for the reasons set out below. acteristics in terms of quality and reputation. This is what the regulation requires 12 when it provides that the quality and reputation should be 'essentially or exclusively due to [the] [...] geographical environment' in point. I would add that the relationship between First, under Regulation N o 2081/92, only a product and territory must be exclusive, in product Originating in a region or a specific the sense that the product must have been place'10 may avail itself of a protective name. The product must also, 'fulfil the conditions referred to in the second indent of paragraph 11 — The possibility of registering a name which designates a 2(a)', that is to say the quality or character- product originating in the entire territory of a country is provided for — albeit 'in exceptional cases' — only by the istics of the product must be 'essentially or first indent of Article 2(2)(a). However, the provision con- exclusively due to a particular geographical cerned here, namely Article 2(3), only refers to the second indent, which docs not allow for such a case, and not to the first. Article 2(3) refers to 'traditional geographical or non- geographical names designating an agricultural product or a foodstuff originating in a region or a specificpùce', but not in an entire country. (My italics.) 10 — See Article 2(3). (My italics.) 12 — See the second indent of Article 2(2)(a).

Quite apart from this last point, there is, in any event, a preliminary and quite compre- hensive reason for which, in my opinion, feta 8. These conditions are not fulfilled in the cannot be regarded as originating in Greece present case. The applicant governments have for the purposes of the regulation on PDOs. correctly pointed out that, in the present case, It is true that feta is a traditional Greek the relationship between the product and a product. However, I do not believe that it can well-defined area is lacking, given that the be defined as originating in any particular geographical area covered by the name 'feta' region of Greece in the sense that the product extends to substantially the whole of the was developed and established exclusively in Greek national territory. I am in agreement that region, with particular characteristics spe- with this observation. As the Commission cifically attributable to its place of origin. It observed, it is true that the term 'region', as is not disputed that feta originates in the it appears in the regulation, should not be Balkan region and that it therefore has its ori- construed in the administrative sense. There gins in a territorial area much larger than that may therefore be 'regions' within the meaning of any specific region or even of an entire of the regulation which cover one or more country. It is, therefore, a product which administrative regions. Nevertheless, the geo- derives its origin from a regional area com- graphical area in question must be character- prised of several countries and which is there- ised throughout by climatic and morpho- fore larger than that envisaged by the regula- logical conditions which guarantee the tion. The special, close relationship between uniform quality of the product. In other product and region which, under the system words, the particular conditions which affect provided for in the regulation, justifies the the characteristics of the product must be grant of a P D O , is therefore absent. present throughout the whole of the geo- graphical area concerned. Clearly, the likeli- hood of this being the case diminishes in pro- portion to the size of the area to which the name relates, and all the more so when the area in question covers almost all of the national territory. It is not by accident that the regulation in issue limits to 'exceptional cases' I 3 (and to cases, moreover, other than those of non-geographical names such as the By saying this I do not wish to deny that feta is closely linked with traditional Greek gas- tronomy. But the function of the P D O , within the system established by the regulation, is 13 — Sec Article 2(2)(a). not to protect culinary and gastronomic

9. In my opinion, the observations set out above provide justification for the annulment of the contested regulation in so far as it pro­ vides for registration of the word feta as a P D O . The product designated by the name does not originate in any particular geo­ graphical region of Greece to which it owes its qualities or characteristics. N o r can it be A point to be noted, to begin with, is the fact said, on the other hand, that the product that, in the provision just mentioned, the originates in Greece as a whole, to the exclu­ problem of generic nature is viewed in a sion of other countries, given that, since time dynamic perspective. The Community legis­ immemorial, it has been a part of traditional lature actually refers to 'names which have cheese-making throughout the whole of the become generic' with the passage of time, even Balkan region. It therefore fails to satisfy the requirement which Article 2(2) of Regulation N o 2081/92 lays down as an essential condi­ 14 — In the Canadene Cheese Trading case cited above, Advocate tion for the registration of a P D O , namely General Ruiz-Jarabo Colomcr reviewed the case-law on that the product should have a special rela­ generic names, which are defined as being those 'names which form part of the general cultural and gastronomic tionship with a specific geographical region, stock and may, in principle, be used by any producer' (sec­ tion 28). The Advocate General added that 'the Court's both in the sense that it originates exclusively case-law does not define what is meant by "generic name"'. in that region and that its particular qualities For present purposes, it is helpful to point out that this approach in the case-law was, for the greater part, estab­ and characteristics are 'essentially or exclu­ lished prior to Regulation N o 2081/92 and that the examina­ tion in the present case should be conducted by reference to sively due to [the] particular geographical the criteria set out in Article 3 of that regulation, which, in environment' in question. any event, arc substantially the same as those developed in the earlier case-law.

connected with a specific place or region. precisely this kind of global assessment, which Then in any event, in my opinion, the criteria for holding that it later became generic within the meaning of Article 3 arc satisfied. According to that provision, account must be 15 — Section 77 of the Opinion in īhc Calcitene Cheese Trňiiing cise, cited above.

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takes into account the whole of the Commu- ing). But, as Advocate General Ruiz-Jarabo nity territory, that is dictated by Article 3. It Colomer pointed out in the Canadene Cheese is clear from that provision that an investiga- Trading case, l s despite these differences, 'there tion aimed at establishing whether a name has is no substantial difference between sheep's undergone an irreversible process of generali- and/or goat's milk feta and feta made from sation must be carried out taking into cow's milk. The situation in international law, account-as Article 3 provides - 'all factors', 16 the references in Community legislation and and not only, therefore, the situation existing the domestic legislation of all the Member within Greece, but also that which distin- States, except Greece, and the expectations of guishes the other Member States, 17 consumers in all the Member States show that feta may be made from sheep's, goat's, or cow's milk without giving rise to differences in the individual varieties of feta'.

16 — Which puts into context the conclusive weight which the Commission attaches to a survey carried out among con- 18 — Cited above, paragraph 67. sumers in 1994, which is said to show that the majority of 19 — The relevant regulations are Commission Regulation (EEC) those interviewed associate the word feta with a cheese, and N o 3266/75 of 15 December 1975 (OJ 1975 L 324, p. 12) a substantial proportion of them associate it with a Greek and Commission Regulation (EEC) N o 3322/75 of 19 cheese. December 1975 (OJ 1975 L 328, p. 40), which fix repay- 17 — Moreover, this criterion seems to me to be the only one ments in the milk and milk-based products sector and which which is compatible with the case-law of the Court according grant refunds on the export of feta without distinguishing to which consumer habits arc likely to vary from one country between the types of milk used in the preparation of the to another, and may even vary within a single country. Indeed cheese. What is more, whilst Commission Regulation (EEC) these variations are one of the consequences of the establish- N o 3167 of 16 October 1986 (OJ 1986 L 294, p. 28) does ment of the internal market. This is w h y the Court has held distinguish between feta produced solely from sheep's milk that the legislation of one Member State must not 'crystal- and goat's milk and that prepared using other ingredients, it lize given consumer habits so as to consolidate an advantage granted the benefit of rerunas to both types of product. To acquired by national industries concerned to comply with this effect, see also Commission Regulation (EEC) N o 3846 them': see Case 170/78 Commission v United Kingdom of 17 December 1987, which establishes the nomenclature of [1980] ECR 417 and Case 178/84 Commission v Germany agricultural products for the purposes of export refunds (OT [1987] ECR 1227, at paragraph 32. 1987 L 366, p.l).

The Danish Government, for its part, com- plains of a breach of the principle of propor- tionality. 22 In its submission, protection of Accordingly, I consider that the claim of the Greek feta could (and should) have been applicant governments must be allowed also assured by the use of compound names, that on the issue of generic nature. is, by adding to the generic name 'feta' the

20 — In a communication dated 1991 (Interpretative communica- tion on tlic names under which foodstuffs arc sold, OJ 1991 C 270, p.2), the Commission suggested that, among the cri- 21 — Case C-3/91 [1992] ECR 1-5529, at paragraph 29. teria for identifying the 'characteristics of a product' which 22 — Apart from tile breach of the principle of proportionality, might render it unsuitable for sale under a generic name in the Danish^ Government complains of a failure to comply the Member State of destination, account might be taken of with the principle of non-discrimination. Teta', it argues, is 'references in any Community acts, including the tariff a generic name and should therefore have been treated in the nomenclature used in implementing the Common Customs same way as other generic names, such as 'brie' for example, Tariff, (My italics.) for which registration was refused.

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area of traditional manufacture, giving, for co-operation, in that it disregarded the objec- example 'Macedonian feta', 'Thracian feta' tions expressed by numerous Member States and so on. at the time when feta was registered as a P D O .