T-114/96
ECLI:EU:T:1999:68
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BISCUITERIE-CONFISERIE LOR AND CONFISERIE DU TECH V COMMISSION
ORDER OF THE COURT OF FIRST INSTANCE (First Chamber) 26 March 1999 *
In Case T-114/96,
Biscuiterie-Confiserie LOR SA, a company incorporated under French law, established in Perpignan, France,
Confiserie du Tech SA, a company incorporated under French law, established in Cabestany, France,
represented by Nicolas Boespflug, of the Paris Bar, 22 Rue Lalo, Paris,
applicants,
v
Commission of the European Communities, represented by José Luis Iglesias Buhigues, Legal Adviser, and Jean-Francis Pasquier, national civil servant on secondment to the Commission, acting as Agents, with an address for service in
* Language of the case: French.
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Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
supported by
Kingdom of Spain, represented by Paloma Plaza García, Abogado del Estado, of its Community Affairs Legal Department, acting as Agent, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais,
intervener,
APPLICATION for annulment of Commission Regulation (EC) No 1107/96 of 12 June 1996 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Council Regulation (EEC) No 2081/92 (OJ 1996 L 148, p. 1) in so far as it registers the names 'Turrón de Jijona' and 'Turrón de Alicante' as protected geographical indications,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),
composed of: B. Vesterdorf, President, J. Pirrung and M. Vilaras, Judges, Registrar: H. Jung, II - 916
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makes the following
Order
Legal framework
1 Article 1 of Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 1992 L 208, p. 1, hereinafter 'Regulation No 2081/92') lays down rules on the protection of designations of origin and geographical indications for which certain agricultural products and foodstuffs may be eligible.
2 Article 2(2)(b) of Regulation No 2081/92 defines 'geographical indication' as the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff originating in that region, specific place or country, and which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and the production and/or processing and/or preparation of which take place in the defined geographical area.
3 Registration as a protected designation of origin (PDO) and as a protected geographical indication (PGI) of the name of an agricultural product or foodstuff, which must fulfil the conditions laid down by Regulation No 2081/92 and, in II - 917
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particular, conform to specifications defined in Article 4 thereof, confers Community protection on the name. In that connection, Article 13 of the Regulation provides:
'1. Registered names shall be protected against:
(a) any direct or indirect commercial use of a name registered in respect of products not covered by the registration in so far as those products are comparable to the products registered under that name or insofar as using the name exploits the reputation of the protected name;
(b) any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated or accompanied by an expression such as "style", "type", "method", "as produced in", "imitation" or similar;
(c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the product concerned, and the packing of the product in a container liable to convey a false impression as to its origin;
(d) any other practice liable to mislead the public as to the true origin of the product.
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4 Regulation No 2081/92 lays down two registration procedures.
5 The 'normal' procedure, provided for in Articles 5 to 7 of the Regulation, enables any group, defined as any association of producers and/or processors working with the same agricultural product or foodstuff, or, in certain circumstances, any natural or legal person, to apply for registration of a protected designation of origin or protected geographical indication in respect of agricultural products or foodstuffs which it produces or obtains, originating in the defined geographical area, to the Member State in which the geographical area is located. The Member State is to check that it is justified and is to forward the application to the Commission which, if it considers that the name qualifies for protection, publishes it in the Official Journal of the European Communities. If no statement of objections is notified to the Commission by any Member State or legitimately concerned natural or legal person within six months of the date of such publication in accordance with Article 7, the name is to be entered in a register kept by the Commission entitled 'Register of protected designations of origin and protected geographical indications'.
6 Article 17 of Regulation No 2081/92 lays down a 'simplified' registration procedure, the purpose of which is registration of names already in existence in the Member States at the date of entry into force of the Regulation. In that regard, it provides:
' 1 . Within six months of the entry into force of the Regulation, Member States shall inform the Commission which of their legally protected names or, in those Member States where there is no protection system, which of their names established by usage they wish to register pursuant to this Regulation.
2. In accordance with the procedure laid down in Article 15, the Commission shall register the names referred to in paragraph 1 which comply with II - 919
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Articles 2 and 4. Article 7 shall not apply. However, generic names shall not be added.
3. Member States may maintain national protection of the names commu- nicated in accordance with paragraph 1 until such time as a decision on registration has been taken.'
7 Under Article 18, Regulation No 2081/92 entered into force on 25 July 1993.
Facts and procedure
8 By letter of 24 January 1994, the Spanish Government sent the Commission an application for registration in respect of several names pursuant to Article 17 of Regulation No 2081/92, including the names 'Jijona' and 'Turrón de Alicante' as protected geographical indications. In the application, the Spanish Government stated, in particular, that those names were already protected in Spain under national legislation, as well as in other Member States by virtue of several bilateral treaties, including the Franco-Spanish Convention of 27 June 1973 on the protection of designations of origin, indications of provenance and appellations of certain products.
9 On 12 June 1996, the Commission adopted Regulation (EC) No 1107/96, on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Council Regulation (EEC) No 2081/92 (OJ 1996 L 148, p. 1, hereinafter 'Regulation No 1107/96' or 'contested regulation'). In the annex to that regulation there appears, under the heading 'Bread, pastry, cakes, confectionery, biscuits and other baker's wares', 'Spain', the entries 'Turrón de Jijona (PGI)' and 'Turrón de Alicante (PGI)'. II - 920
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10 By a corrigendum published in the Official Journal of the European Communities (OJ 1996 L 290, p. 18), the entry 'Turrón de Jijona (PGI)' was replaced by the entry 'Jijona (PGI)'.
1 1 The French companies Biscuiterie-confiserie LOR and Confiserie du Tech ('the applicants') have been manufacturing and marketing 'tourons' for several years, some with the name 'Jijona' and 'Alicante'.
12 Taking the view that those names are generic in nature and may not therefore be registered as protected geographical indications, the applicants, by application lodged at the Court Registry on 26 July 1996, brought the present action. In support of their action, they submit, first, that by registering the names at issue, the Commission infringed Article 3 of Regulation No 2081/92 and, secondly, that, in view of the disputed nature of the names, recourse to the 'simplified' procedure was not justified, since it does not allow representations from other parties.
1 3 By document lodged at the Registry on 4 December 1996, the Kingdom of Spain applied for leave to intervene in support of the form of order sought by the Commission.
14 By order of 24 February 1997, the Kingdom of Spain was granted leave to intervene.
15 By decision of the Court of 21 September 1998, the Judge-Rapporteur was assigned to the First Chamber, to which the case was accordingly assigned. II - 921
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Forms of orders sought by the parties
16 The applicants claim that the Court should:
— annul Regulation No 1107/96 in so far as it registers as protected geographical indications the names 'Turrón de Jijona' and 'Turrón de Alicante';
— order the Commission to pay the costs.
17 The Commission contends that the Court should:
— declare the application inadmissible;
— in the alternative, dismiss it;
— order the applicants to pay the costs.
18 The intervener contends that the Court should:
— declare the present action inadmissible; II - 922
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— in the alternative, declare it unfounded;
— order the applicants to pay the costs.
Admissibility of the action
Arguments of the parties
19 The applicants maintain, in their application, that the contested regulation is of direct and individual concern to them inasmuch as they have been manufacturing and marketing for many years 'tourons' by the names of 'Jijona' and 'Alicante'. In that connection, they produce sales invoices for those products, dating from 1963 in the case of Biscuiterie-confiserie LOR and from 1974 in the case of Confiserie du Tech. In their reply, they conclude that, contrary to the Commission's contention, they find themselves, as a result, in a situation similar to that of the applicant in the case which gave rise to the judgment of the Court of Justice in Case C-309/89 Codorniu v Council [1994] ECR I-1853.
20 While not formally raising an objection of inadmissibility, the Commission submits that the action is inadmissible on the ground that the conditions laid down in the fourth paragraph of Article 173 of the EC Treaty are not satisfied.
21 First of all, according to the Commission, the contested regulation, like basic Regulation No 2081/92, is an act of general application within the meaning of the second paragraph of Article 189 of the Treaty. It is not addressed to specific operators but to all producers of 'tourons' who are likely to be eligible to register II - 923
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names, as well as to all those who, although having used those names, do not meet the conditions laid down by the Community legislation. Since what is concerned is a legislative measure, the action is therefore inadmissible, in accordance with settled case-law (Case 307/81 Alusuisse v Council and Commission [1982] ECR 3463 and Joined Cases 250/86 and 11/87 RAR v Council and Commission [1989] ECR 2045, summary publication).
22 Secondly, the approach adopted by the Court in its judgment in Codorniu, cited above, cannot be applied to the facts in the present case. In Codorniu, the Court took the view that the applicant company was individually concerned by the provision at issue, contained in a regulation, because that provision had the effect of preventing it from using the graphic trade mark which it had registered in accordance with national law and which it had been using both before and after such registration. In the present case, on the other hand, the applicants are not in such a distinctive situation; they rely merely on the fact that they have been using for several years the names 'Jijona' and 'Alicante' for the 'tourons' they manufacture. That is not at all sufficient, in itself, to show that they are individually concerned by the contested regulation. In that connection, the Commission points out that Regulation No 1107/96 provides protection for registered names by reserving use of them to producers from the area which such names describe and by excluding all other producers. The applicants are thus concerned to the same extent as every other economic operator who is, actually or potentially, in the same situation as theirs.
23 The Spanish Government also contends that the action is inadmissible. In its submission the contested regulation is of a legislative nature and, in any event, the applicants are not individually concerned in the sense defined by the Court of Justice in its judgment in Codorniu, cited above, in that they are not, and have never been, holders of any registration conferring on them the right to use the names 'Jijona' or 'Alicante'. II - 924
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Findings of the Court
24 Under Article 113 of the Rules of Procedure, the Court, giving its decision in accordance with Article 114(3) and (4), may at any time, of its own motion, consider whether there exists any absolute bar to proceeding with an action, including, according to settled case-law, the conditions governing the admissi- bility of an action which are laid down in Article 173 of the Treaty (judgments of the Court of Justice in Case 169/84 Co faz v Commission [1986] ECR 391, paragraph 2, and Case C-313/90 CIRFS and Others v Commission [1993] ECR I-1125, paragraph 23; judgment of the Court of First Instance in Case T-239/94 EISA v Commission [1997] ECR 11-1839, paragraph 26, and order of the Court of First Instance in Case T-100/94 Michailidis and Others v Commission [1998] ECR 11-3115, paragraph 49).
25 In the present case, the Court finds that it has sufficient information from the documents on the file to enable it to rule on the admissibility of the action without opening the oral procedure.
26 Under the fourth paragraph of Article 173 of the Treaty, the admissibility of an action brought by a natural or legal person for annulment of a regulation is subject to the condition that the regulation at issue be in reality a decision which is of direct and individual concern to the applicant. According to settled case-law, the criterion for distinguishing between a regulation and a decision must be sought in the general application or otherwise of the act in question (orders of the Court of Justice in Case C-10/95 P Asocarne v Council [1995] ECR 1-4149, paragraph 28, and in Case C-87/95 P CNPAAP v Council [1996] ECR 1-2003, paragraph 33). A measure is of general application if it applies to objectively determined situations and produces its legal effects with respect to categories of persons envisaged in the abstract (see, for example, Case T-482/93 Weber v Commission [1996] ECR 11-609, paragraph 55).
27 In the present case, the contested regulation protects the names 'Jijona' a n d 'Turrón de Alicante', among others, as geographical indications as provided for by Regulation No 2081/92, 'geographical indication' being defined in Arti- II - 925
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cle 2(2)(b) thereof as the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff originating in that region, specific place or country, and which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and the production and/or processing and/or preparation of which take place in the defined geographical area. As the Commission rightly points out, far from being addressed to specific economic operators, such as the applicants, the contested regulation confers on any undertaking whose products fulfil the prescribed geographical and qualitative requirements the right to market them under one of the aforementioned names, and denies that right to any undertaking whose products do not fulfil those conditions, which are identical for all producers.
28 That regulation therefore clearly constitutes a measure of general application within the meaning of the second paragraph of Article 189 of the Treaty. It applies to objectively determined situations and produces its legal effects with respect to categories of persons envisaged in the abstract, namely any undertaking which manufactures a product having objectively defined characteristics.
29 Accordingly, Regulation No 1107/96 is, by nature and by virtue of its sphere of application, of a legislative nature and does not constitute a decision within the meaning of the fourth paragraph of Article 189 of the Treaty, a point which the applicants do not in any event dispute.
30 None the less, it is conceivable that a provision which is, by nature and by virtue of its sphere of application, of a legislative nature could be of individual concern to natural or legal persons where it affects them by reason of certain attributes which are peculiar to them or by reason of factual circumstances which differentiate them from all other persons and by virtue of these factors distinguishes them individually just as in the case of the addressee of a decision (Codorniu v Council, cited above, paragraphs 19 and 20, and Weber v Commission, cited above, paragraph 56).
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31 In that connection, the applicants claim that they have been using the names 'Jijona' and 'Alicante' in France for many years when marketing the 'tourons' they manufacture, and that they are therefore in a situation similar to that of the applicant in Codorniu, cited above.
32 However, it should be borne in mind that, in Codorniu, the applicant undertaking was prevented by a legislative provision regulating the use of a designation from using the graphic trade mark which it had registered and used a long time before the adoption of the regulation at issue, so that it was distinguished from any other trader. It follows from that judgment, as interpreted by the Court of Justice and the Court of First Instance, that a legislative provision may be of individual concern to an economic operator in so far as it adversely affects that operator's specific rights (orders of the Court of Justice in Asocarne v Council, cited above, paragraph 43, and CNPΑΑΡ v Council, cited above, paragraph 36; judgment of the Court of First Instance in Weber v Commission, cited above, paragraph 67, and order in Michailidis v Commission, cited above, paragraph 66).
33 However, in the present case, the applicants have neither shown nor indeed claimed that the use of the geographical names in respect of which they claim rights stems from a similar specific right which they acquired at national or Community level before the adoption of the contested regulation and which has been adversely affected by that regulation in the sense defined in the case-law cited above.
34 The Court observes, moreover, that, as the applicants themselves pointed out in their pleadings, many other major manufacturers of 'tourons' used the names 'Jijona' and 'Alicante' for products which also did not originate in the geographical areas which those names indicate. Accordingly, the mere fact that they used the geographical names in question cannot, a fortiori, suffice to distinguish them from all the other economic operators affected by the contested regulation.
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35 It follows from the foregoing considerations that the contested regulation is not of individual concern to the applicants within the meaning of the fourth paragraph of Article 173 of the Treaty and that, accordingly, the application must be dismissed as inadmissible.
Costs
Under Article 87(2), the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicants have been unsuccessful and the Commission asked for costs, the applicants must be ordered to bear their own costs and to pay those incurred by the Commission.
36 Under Article 87(4) of the Rules of Procedure, the Kingdom of Spain, as intervener, is to bear its own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (First Chamber)
hereby orders:
1. The application is dismissed as inadmissible.
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2. The applicants shall bear their own costs and pay those incurred by the Commission. The intervener shall bear its own costs.
Luxembourg, 26 March 1999.
H. Jung B. Vesterdorf Registrar President
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