C-129/97
ECLI:EU:C:1998:107
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CHICIAK AND FOL
OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 12 March 1998 *
1 1. By judgment of 26 February 1997, the Regulation (EEC) No 2081/92 'lays down Tribunal de Grande Instance (Regional rules on the protection of designations of Court), Dijon, referred the following ques origin and geographical indications of agri tions to the Court for a preliminary ruling: cultural products intended for human con 2 sumption'. The protection provided for by that regulation is conditional upon registra tion of the names concerned in the 'Register of protected designations of origin and pro tected geographical indications'. That regis tration must be carried out in accordance with the detailed rules laid down by the '(1) Does Council Regulation No 2081/92 3 regulation itself. The application for regis of 14 July 1992 preclude, as from its tration is sent to the Member State in which entry into force, any residual power on 4 the geographical area is located; that Mem the part of the Member States to alter a ber State checks that the application is justi pre-existing designation of origin? fied, before forwarding it to the Commis sion, which, for its part, carries out a formal investigation in order to establish that the conditions laid down by the regulation for registration are satisfied. If so, the Commis sion publishes the application in the Official
(2) Do the particulars given in the form of footnotes to the annex to Regulation No 1107/96 of 12 June 1996 constitute an exhaustive list of the unprotected parts of names made up of several terms?' 1 — Council Regulation of 14 July 1992 on the protection of geo- graphical indications and designations of origin for agricul- tural products and foodstuffs (OJ 1992 L 208, p. 1). 2 — See Article 1. The terms 'designation of origin' and 'geo- graphical indication' are defined in Article 2(2)(a) and (b). 3 — See Articles 4 to 7. 4 — According to Article 5: '1. Only a group or, subject to certain conditions to be laid down in accordance with the procedure provided for in Article 15, a natural or legal person, shall be entitled to apply for registration. For the purposes of this Article, "Group" 2. Before explaining the background to the means any association, irrespective of its legal form or com- position, of producers and/or processors working with the dispute, a brief overview of the relevant same agricultural product or foodstuff. Other interested par- Community legislation should be given. ties may participate in the group. 2. A group or a natural or legal person may apply for regis- tration only in respect of agricultural products or foodstuffs which it produces or obtains within the meaning of Article 2(2)(a) or (b). 3. The application for registration shall include the product * Original language: Italian. specification referred to in Article 4.'
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Journal of the European Communities. If no developments in scientific and technical objection is raised by persons with any con knowledge or to redefine the geographical flicting interest, the Commission enters the area. The Article 6 procedure shall apply name in the aforementioned register. mutatis mutandis. The Commission may, however, decide, under the procedure laid down in Article 15, not to apply the Article 6 procedure in the case of a minor amend ment'.
Article 4 provides that 'to be eligible to use a protected designation of origin (PDO) or a protected geographical indication (PGI) an agricultural product or foodstuff must com ply with a specification', which must include, The scope of the protection granted to regis in particular, 'the name of the agricultural tered names is described in Article 13, product or foodstuffs, including the designa according to which: tion of origin or the geographical indica 5 tion'.
'1 . Registered names shall be protected A special procedure is then laid down for against: any amendment of the specifications. According to Article 9, 'the Member State concerned may request the amendment of a specification, in particular to take account of
(a) any direct or indirect commercial use of 5 — See Article 4(2)(a). The other particulars which must be a name registered in respect of products included in the specification are as follows: '(b)a description of the agricultural product or foodstuff not covered by the registration in so far including the raw materials, if appropriate, and principal physical, chemical, microbiological and/or organoleptic char- as those products are comparable to the acteristics of the product or the foodstuff, products registered under that name or (c)the definition of the geographical area and, if appropriate, details indicating compliance with the requirements in in so far as using the name exploits the Article 2(4); (d)evidence that the agricultural product or the foodstuff reputation of the protected name; originates in the geographical area, within the meaning of Article 2(2)(a) or (b), whichever is applicable; (e)a description of the method of obtaining the agricultural product or foodstuff and, if appropriate, the authentic and unvarying local methods; (f)the details bearing out the link with the geographical envi- ronment or the geographical origin within the meaning of Article 2(2)(a) or (b), whichever is applicable; (g)details of the inspection structures provided for in Article 10; (b) any misuse, imitation or evocation, even (h)the specific labelling details relating to the indication PDO or PGI, whichever is applicable, or the equivalent tra- if the true origin of the product is indi ditional national indications; cated or if the protected name is trans (i)any requirements laid down by Community and/or national provisions.' lated or accompanied by an expression
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such as "style", "type", "method", "as Article 17 introduces a 'simplified' procedure produced in", "imitation" or similar; for the registration of existing names. That article provides as follows:
(c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the '1 . Within six months of the entry into force inner or outer packaging, advertising of the Regulation, Member States shall material or documents relating to the inform the Commission which of their product concerned, and the packing of legally protected names or, in those Member the product in a container liable to con States where there is no protection system, vey a false impression as to its origin; which of their names established by usage they wish to register pursuant to this Regu lation.
(d) any other practice liable to mislead the public as to the true origin of the prod uct. 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 Articles 2 and 4. Article 7 shall not apply. However, generic names shall not be added.
Where a registered name contains within it the name of an agricultural product or food stuff which is considered generic, the use of that generic name on the appropriate agricul 3. Member States may maintain national tural product or foodstuff shall not be con protection of the names communicated in sidered to be contrary to (a) or (b) in the accordance with paragraph 1 until such time first subparagraph.' as a decision on registration has been taken.'
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Regulation No 2081/92 entered into force on by the 1995 decree for use of that designa 26 July 1993 and was subsequently amended tion. Before the national court, the defen in part by Regulation (EC) No 535/97. dants claimed that the aforementioned decree of 1995 was unlawful. In their submission, since Regulation No 2081/92 entered into force, the Member States no longer have power to alter a name registered pursuant to that regulation; power to do so rests exclus ively with the Commission. They consider 3. The national provisions relevant to this that the French Government was therefore case can be summarised as follows. By decree not entitled to alter the name 'Èpoisses de of 14 May 1991, the French authorities intro Bourgogne' introduced by the 1991 decree duced the designation 'Èpoisses de Bour and registered at Community level, in order gogne' and defined the specific characteris to change it into 'Èpoisses', the name pre tics of products eligible to use that scribed by the 1995 decree. designation. The French Government applied for registration of the designation 'Èpoisses de Bourgogne' using the simplified procedure under Article 17 of Regulation No 2081/92; the Commission proceeded to register it within the framework of Regu lation (EC) No 1107/96. 7By decree of 14 April 1995, however, the French authorities amended the earlier decree of 1991; accord ing to the national legislation, the protected designation is no longer 'Èpoisses de Bour The national court considers an interpreta gogne,' but 'Èpoisses'. tion of certain elements of the aforemen tioned Community legislation to be neces sary for the resolution of the dispute and therefore referred the questions on which the Court is requested to give a preliminary ruling.
The facts of the dispute in the main proceed ings are set against that legal background. Yvon Chiciak and Jean-Pierre Fol are French cheese makers who were prosecuted for hav ing affixed labels bearing the designation 'Èpoisses' to products which they subse quently marketed, when those products did not comply with the requirements imposed
4. By the first question, the national court essentially asks the Court whether or not a 6 — Council Regulation of 17 March 1997 amending Regulation Member State has power to alter a designa No 2081/92 (OJ 1997 L 83, p. 3). 7 — Commission Regulation of 12 June 1996 on the registration tion of origin in respect of which that Mem of geographical indications and designations of origin under ber State has requested and obtained regis the procedure laid down in Article 17 of Regulation No 2081/92 (OJ 1996 L 148, p. 1). tration pursuant to Regulation No 2081/92.
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The French Government submits that such a agricultural product or foodstuffs, including power exists. However, I would say at once the designation of origin or the geographical that I do not share that view. In my opinion, indication'. The chosen name is therefore the essential elements for resolving the issue included in the product specification. Should have been provided by the national court it be necessary to alter the product specifica itself in the order for reference. The system tion in any way and, consequently, the name, introduced by the regulation confers on the Article 9 of the regulation provides that the Commission a central role in the procedure procedure specifically laid down for that 9 leading to registration, whilst Member States purpose in Article 6 is to be applied. are, so to speak, relegated to the role of mere applicants: that is to say, they have to collect the applications submitted by the persons concerned in order to assess them from the point of view of compliance with the requirements laid down by the Community legislation for the purposes of registration, and forward the application to the Commis sion. It is for the latter to make the entry in the appropriate register; the protection guar anteed by the regulation stems from that reg istration. In that respect, it should be borne In my opinion, the aforementioned provi in mind here that the whole point of the sion supplies a good answer to the question Community rules in question is to ensure referred to the Court by the national court. uniform protection, that is to say protection In the present case, contrary to what the which applies throughout the Community, governments which submitted written obser for names which comply with the require vations appear to think, the question is not ments of the regulation. That uniform pro whether it is possible to envisage a separate tection results, precisely, from registration sphere of national protection of designations carried out on the basis of the rules specifi of origin which exists, as it were, on a plane cally laid down by the regulation, which parallel to and separate from that of the obviously include those which allocate pow guarantee ensured by the Community legis ers between the Commission and the Mem lation. We are here faced with a different and ber States. more specific problem, namely whether a Member State, which has registered a name in accordance with the regulation, may sub sequently alter it without following the pro cedure specifically laid down for that pur pose by the regulation, and even in manifest breach of its provisions. In my opinion, the answer can only be negative. When a Mem ber State decides to avail itself of the protec In that general context, the specific problem tion conferred by the regulation in respect of in the present case is dealt with in an extremely precise manner in the regulation. When applying for registration, the Member 8 — Emphasis added. States must also submit the 'product specifi 9 — The text of Article 9 provides that, in the event of a minor cation' which must, itself, state, in accord amendment, the Commission 'may ... decide, under the pro cedure laid down in Article 15, not to apply the Article 6 ance with Article 4(2)(a), '(a) the name of the procedure'.
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a designation of origin and therefore applies adopted the French authorities had not sub for and obtains registration, it must then fol mitted any application for the amendment of low logically the procedural rules laid down the part of the product specification relating by that regulation, including those relating to to the name. That decree cannot therefore be any alterations. That is stated unambiguously regarded as protection granted transitionally by the aforementioned Article 9, and I do on a national level 'in connection with an not see how any other approach could be application for the amendment of the prod justified. uct specification' for the simple reason that no such application had been made. Further
more, the regulation referred to by the French Government had not entered into force when the 1995 decree was adopted. The latter can therefore not find any justifi Consequently, in so far as the French decree cation in provisions which were not yet in of 1995 changed the name 'Époisses de Bour 10 force at the time when it was adopted. gogne' into 'Époisses', it made an improper alteration to a designation of origin regis tered in accordance with the Community requirements in force. In doing so, the French authorities made the alteration by adopting a unilateral act, when they should have put into effect the special procedure laid down in Article 9.
6. By the second question, the national court asks the Court what is the value to be attached to the footnotes in the annex to Regulation No 1107/96 which exclude cer 5. Nor do I find any merit in the French tain parts of compound names from protec Government's argument, according to which tion. That regulation contains specifically the the national decree at issue in the main pro list of names registered in accordance with ceedings finds justification in Regulation No the procedure laid down in Article 17 of
535/97. In particular, the French Govern Regulation No 2081/92. The footnotes state ment refers to the provision which intro the parts of compound names in respect of duced the possibility for a Member State which protection has not been requested which has requested registration to grant 'on (and can therefore not be granted). In the a national level, a protection in the sense of case before the Court the registered name is the present Regulation to the name for 'Époisses de Bourgogne'.
However, there is warded'; that protection may also be granted no footnote indicating the intention to 'in connection with an application for the amendment of the product specification'. It is precisely on the latter point that the 10 — In any event, it is worth pointing out that Regulation No French Government appears to rely. 535/97 did not introduce mere coexistence of national rules alongside the Community rules. Protection on a national basis is granted only in the context of the procedure leading either to registration of a name, or to amendment of the product specification. Furthermore, it is clear that this is intended to avoid any lacuna in the legal protection for the name at a time when the procedure in question has not yet been completed.
It should therefore not be forgotten, in the light of Regulation No 535/97, that the protection granted by the national legislation, which is justified only when an However, as the order for reference indi application for registration or amendment of the product cates, at the time the contested decree was specification has been made, is purely provisional.
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exclude the term 'Époisses' from the protec intended to extend the protection to the vari tion granted by the regulation. The national ous constituent elements of a compound court consequently asks this Court to name, provision was expressly and directly explain the significance of the legislative made in the text; here again the result is nec technique of footnotes. In particular the essarily that the parts of names which are not Court is asked to state whether the list in mentioned remain unprotected. those footnotes is to be considered exhaus tive, in the sense that only those parts of names which are expressly mentioned in the footnotes themselves are unprotected, from which it follows — I might add — that, by following an a contrario line of reasoning, those which are not mentioned in the foot notes should therefore be regarded as pro tected. Thus the a contrario line of reasoning does not seem to be conclusive one way or the other. Perhaps a better way of putting it is that the footnotes in the annex to Regulation No 1107/96 can have only limited impor tance. As the eighth recital in the preamble to that regulation states, '... certain Member States have made it known that protection was not requested for some parts of designa tions and this should be taken into 1 account'; 1as the Commission pointed out, that was because the Member States agreed on the generic nature of the terms concerned In my opinion, the answer to the question and therefore on the usefulness of providing, must be negative. There are a number of rea once and for all, in the regulation that they sons for this. First of all, the aforementioned would not fall within the scope of the pro a contrario reasoning cannot, in my opinion, tection afforded by the Community legisla be conclusive. The national court itself tells tion. That was specifically achieved by the use of footnotes. In those circumstances, the us, in the order for reference, that one could note is conclusive only when it exists; in follow the same reasoning and reach con such a case, the intention not to protect the flicting conclusions. The annex to the regu part of the name to which the note relates is lation contains certain names comprising expressed clearly and unambiguously. By several terms in respect of which it is pro contrast, when — as here — no note has vided — directly in the text and not as a been inserted, the problem of the protection footnote — that protection was granted both of each constituent term of a compound to the name as a whole and to each of its name can, in my opinion, be examined and terms individually: for example 'Cantal or resolved only in the light of the general rules fourme de Cantal or cantaleť, 'Reblochon or laid down in Articles 3 and 13 of Regulation reblochon de Savoie', 'Crottin de Chavignol or chavignol' and others. It can therefore be concluded — again on the basis of a con trario reasoning — that when the legislature added.. 11 — Emphasis added
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No 2081/92. Protection must therefore be absence of a footnote. To the contrary, it refused in respect of an individual compo seems more accurate to say that any protec nent of the name, even in the absence of any tion for an individual part of a registered 12 footnote, if the term is of a generic nature; name stems from the relevant rules laid it is for the national court to make that down by the regulation, in particular by assessment on the basis of a detailed analysis Articles 3 and 13; on the one hand, the term of the factual background which it alone is in in question must not be generic and, on the a position to know. other, it must — as is provided in Article 13 — comprise some element of misuse, imita tion or evocation with regard to the name as a whole or, in any event, be liable to mislead To conclude, I do not think it is possible to the public as to the true origin of the prod draw any automatic conclusion from the ucts.
Conclusion
7. To conclude , I propose that the Court answer the questions referred for a pre liminary ruling as follows:
(1) If a Member State has registered a designation of origin within the framework 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, any alteration to that designation must take place in accord-
12 — Protection will also have to be refused, on the basis of Article 13, when, even if the expression considered is not generic, there is no element of misuse, imitation or evoca- tion, it is not misleading and it is not, in any event, liable to mislead the public as to the true origin of the products. However, that hypothesis seems to be rather theoretical, since, in my opinion, the use of a part of a registered name falls within the scope of one of the situations envisaged by Article 13.
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ance with the procedure laid down by that regulation and cannot be made by means of a national legislative measure.
(2) The footnotes in the annex to 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 Regulation No 2081/92 do not constitute an exhaustive list of the unprotected parts of compound names.
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