C-269/99

1 — Original language: English 2 —OJ 1992 L 208, p. 1. 3 — Seventh and ninth recitals in the preamble.

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— the quality or characteristics of 4. Article 2(4) provides: which are essentially or exclusively due to a particular geographical environment with its inherent nat- ural and human factors, and the production, processing and pre- paration of which take place in the defined geographical area; 'By way of derogation from Arti- cle 2[(2)](a), certain geographical designa- tions 4shall be treated as designations of origin where the raw materials of the products concerned come from a geogra- phical area larger than or different from the processing area, provided that:

(b) geographical indication: means the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff: — the production area of the raw materi- als is limited,

— originating in that region, specific place or country, and — special conditions for the production of the raw materials exist, and

— the existing situation in other Member States, 8. Article 4 provides that agricultural pro- ducts or foodstuffs seeking registration must comply with a specification. Arti- cle 4(2) requires that the product specifica- tion must include 'at least' the information

— the relevant national or Community laws.' 5 — COM (96) 38 final.

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listed in subparagraphs (a) to (i). Those Article 2(2)(a) or (b), whichever is include: applicable'.

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Member State in which he resides or is system, which of their names established by established....' usage they wish to register pursuant to this Regulation.

10. Article 13(1)(b) provides that regis- tered names are to be protected against: (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 'any misuse, imitation or evocation, even if names shall not be added. 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'.

11. Article 15 provides for the Commission to be assisted by a committee composed of the representatives of the Member States and chaired by the representative of the 13. Article 18 provides that the Regulation Commission. is to enter into force 12 months after the date of its publication in the Official Journal. That publication was on 24 July 1992.

12. Article 17 provides for a simplified system of registration to be used for a transitional period after entry into force of Regulation No 2081/92. It reads as fol- lows, in so far as relevant: 14. Regulation No 1107/96 6 provides for the registration under the simplified proce- dure as protected geographical indications or protected designations of origin of some 320 names listed in the Annex thereto. '(1) Within six months of the entry into force of the Regulation, Member States 6 — Commission Regulation (EC) No 1107/96 of 12 June 1996 shall inform the Commission which of their on the registration of geographical indications and designa- tions of origin under the procedure laid down in Article 17 legally protected names or, in those Mem- of Council Regulation (EEC) No 2081/92, OJ 1996 L 148, ber States where there is no protection p. 1.

17. The applicants produce and 'market pickled gherkins in Germany. The defen- dant is also a producer and nationwide 'Whereas, for certain names notified by the distributor of pickled gherkins, including Member States under Article 17 of Regula- the product 'Jütro Gurkenfässchen' which tion (EEC) No 2081/92, additional infor- is marketed throughout Germany with the mation was requested in order to ensure mention 'Spreewälder Art' ('Spreewald that they complied with Articles 2 and 4 of style'). that Regulation; whereas that additional information shows that the names comply with the said Articles; whereas they should therefore be registered and added to the Annex to Commission Regulation (EC) No 1107/96, as last amended by Regula- 18. The Spreewald is an area in the former tion (EC) No 83/1999.' 9 Democratic Republic of Germany, between the Czech border and Berlin, through which flows the river Spree. Between the towns of Lübben and Cottbus the river branches into numerous streams to create an inland delta networked by waterways. The former dense forest has been partly transformed into cultivated land, for which 16. Both Regulation No 1107/96 and all the alluvial soil of the former glacial valley the other regulations adding further names is well suited. The pickling of vegetables such as gherkins has long been a traditional industry in the area. 7 — Commission Regulation (EC) No 590/1999 of 18 March 1999 supplementing the Annex to Regulation (EC) No 1107/96, OJ 1999 L 74, p. 8. 8 — Commission Regulations (EC) Nos 1263/96 of 1 July 1996 (OJ 1996 L f63, p. 19), 123/97 of 23 January 1997 (OJ1997 L 22, p. 19), 1065/97 of 12 June 1997 (OJ 1997 L 156, p. 5), 2325/97 of 24 November 1997 (OJ 1997 L 322, p. 33), 134/98 of 20 January 1998 (OJ 1998 L 15, p. 6), 644/98 of 20 March 1998 (OJ 1998 19. The applicants have brought proceed- L 87, p. 8), 1549/98 of 17 July 1998 (OJ 1998 L 202, p. 25) and 813/2000 of 17 April 2000 (OJ 2000 L 100, p. 5). ings against the defendant seeking an order 9 — Footnotes omitted [references to the legislation!. that it desist from using the designation

20. The defendant questions the validity of the registration of 'Spreewälder Gurken' as a protected geographical indication. 23. According to the Commission, by letter of 21 January 1994, received on 26 Janu- ary 1994, Germany sent it a list of names within the meaning of Article 17(1). That list included the name 'Spreewälder Gur- ken'. 21. The history of the registration of the designation 'Spreewälder Gurken' as a protected geographical indication, which is necessary background to the defendant's arguments as to the validity of the registra- 24. According to the German Government, tion, appears to be as follows. in 1995 the Commission informed it (and many other Member States) that numerous notifications pursuant to Article 17 were incomplete and invited it to provide addi- tional documents and information. Between July 1995 and March 1996, the German Government therefore asked almost all the parties concerned to supple- 22. According to the order for reference, in ment the documents originally lodged. 1993 an association with the name Spree- wald e.G ('Spreewaldverein') 10 applied the German authorities for registration of the designation 'Spreewälder Gurken' as a protected designation of origin. As the specification of the geographical area re- 25. According to the order for reference, in July 1996 Spreewaldverein by supplement to its original application requested regis- 10 — The association's name subsequently changed to Spree- waldverein e.V. tration of the designation 'Spreewälder

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29. The referring court indicates in the order for reference that the defendant challenged the validity of the registration of 'Spreewälder Gurken' on three grounds. 27. The supplement to the application also specified that the proportion of gherkins supplied from areas outside the Spreewald economic zone was less than 50%, subse- quently (in March 1998) further amended to 30%. According to the defendant, the former requirement meant that up to 50% of the gherkins used could come from areas outside but adjacent to the boundary of that zone, while the effect of the latter requirement was that up to 30% could 30. First, the six-month time-limit in Arti- come from anywhere. cle 17(1) was not respected since in July 1996 Spreewaldverein submitted docu- ments to the relevant authorities in Ger- many which materially amended the origi- nal application, making changes to the type of designation for which registration was sought, the area in question and the 28. According to the order for reference, in permitted source of the raw materials for the course of the implementation of the the product.

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31. Second, Article 17 was designed solely the proportion of gherkins permitted from for designations whose entitlement to regis- outside did not reflect consumer expecta- tration was uncontroversial. It was not tions as to the meaning of the designation appropriate for registration of a designa- 'Spreewälder Gurken'. The registration of tion with regard to which a number of the designation, and hence the legislation affected third parties had raised a whole pursuant to which that registration was series of objections, particularly concerning effected, thus enshrined the misleading of the delimitation of the geographical area. consumers, which could not have been the intention of the legislature.

41. The German and Austrian Govern- ments and the Commission submit that Article 17(1) requires the Member States to inform the Commission of the names to be registered and nothing more. Further infor- mation and amendments to such informa- tion once it has been supplied are not subject to the six-month time-limit. That 39. Neither the referring court nor the time-limit was accordingly observed. defendant appears to suggest that Germa- ny's initial application was made out of time. As the Commission notes, Regulation No 2081/92 entered into force 12 months after publication in the Official Journal. That publication was on 24 July 1992. Since however the 12 months did not start to run until the following day, 11 it expired 42. The German and Austrian Govern- at midnight on 25 July 1993. 12 The Reg- ments add that, in general, the northern ulation accordingly entered into force on Member States did not historically have 26 July 1993, and the six-month time-limit registers of protected designations: protec- expired at midnight on 26 January 1994. tion was assured by laws against misleading Since the list of information within the practices. It was only when the Regulation meaning of Article 17(1) supplied by Ger- entered into force that it became necessary many reached the Commission on 26 Jan- for such Member States to draw up a list of uary 1994, the time-limit was respected. existing designations and determine whe- ther they were designations of origin or geographical indications. It would there- 11 — See the second indent in Article 3(1) of Regulation (EEC, fore have been unrealistic to require com- Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time- plete and definitive files to be forwarded to limits, OJ English Special Edition 1971(II), p. 354. 12 — See Article 3(2)(c) of Regulation No 1182/71, cited in note the Commission within such a short time- 11. limit. It would also have worked to the

detriment of those States unable to use an 44. Admittedly the submission by a Mem- existing register. The transitional procedure ber State of a change to the original provided for by Article 17 continued until application — in this case, a request for the Commission adopted the decision on registration as a geographical indication registration. Until then, the Commission rather than a designation of origin, a ran the procedure and could both accept change in the area covered and a change amendments to the grounds for the appli- in the proportion of raw materials permit- cation and request additional information ted to come from outside that area — may relevant to determining whether the appli- be regarded as different in kind from the cation complied with Articles 2 and 4. provision of information or documentation supplementing the original application. None the less, the submission of such changes outside the six-month time-limit is in my view permissible. It must be borne in mind that the structure introduced by the Regulation was novel: even those Member States whose existing system of protection of designations was based on registration would not necessarily have categorised protected designations in the same way as the Regulation; a fortiori the Member States which had no previous system of 43. I concur with the German and Austrian registration could not reasonably have been Governments and the Commission on this expected to determine definitively before point. It would in my view be unrealistic to submitting their list of names pursuant to expect Member States with no existing Article 17 whether a particular name register of designations to provide the should be protected as a designation of Commission within six months of entry origin or as a geographical indication. Nor into force of the Regulation (or even within would such Member States be likely to 18 months from publication of the Regula- have on record sufficient data to enable tion) with all the information and docu- them at the outset to determine definitively mentation necessary for a decision as to the precise extent of the area to be covered. registration, especially given the time nee- ded for what (I shall suggest) are the necessary procedural guarantees for inter- ested parties at national level. The specifi- cation required by Article 4 of the Regula- tion requires 'at least' detailed information under nine specified heads. 13 According to the defendant's undisputed statement at the hearing, over 1 000 names were submitted to the Commission pursuant to Arti- cle 17(1) by Germany alone; that figure is consistent with the extract from a list of those names which the Commission annexed to its written observations. 45. I accordingly conclude that the mod- ification of the initial application after the six-month time-limit did not affect the 13 — Some of which are set out in paragraph 8 above. validity of the contested regulation.

46. The defendant and the referring court question whether Article 17 is applicable where — as in the present case — third parties have raised objections at national 49. In my view there is nothing to suggest level to registration of the designation that the simplified procedure provided by concerned. Article 17(1) is available only for the registration of designations with regard to which there is no controversy. Such a criterion would risk being unworkable. The Commission is not in a position to verify whether all applications for registra- tion submitted pursuant to Article 17(1) — 47. The Commission submits that Arti- which, as mentioned above, numbered over cle 17(2) expressly excludes the application 1 000 — are uncontroversial at national to the 'simplified' procedure of Article 7, level. which enables interested third parties to object to a proposed registration pursuant to the 'normal' procedure. The simplified procedure also however caters for objec- tions, since Article 15 of the Regulation requires the Commission to be assisted by a committee composed of representatives of the Member States. The Commission heard 50. It is however essential that interested that committee when dealing with the third parties have the opportunity, before application to register the designation the Member State concerned submits to the 'Spreewälder Gurken'. Commission the list of designations with regard to which it intends to seek registra- tion pursuant to Article 17(1), to make observations at national level on each designation. As the Court pointed out in Molkerei Großbraunshain, 14 in the context of the 'normal' procedure for registration 48. The German Government argues that of a designation in accordance with Arti- the mere fact that there are different cle 5 of the Regulation, differences between opinions as to the registration of a desig- the competent authority of the Member nation does not mean that the simplified State which applies for registration of a procedure is inapplicable. In such cases, it designation and a natural or legal person is the responsibility of the Member States resident or established in that Member to ensure that the parties concerned are State are in principle to be dealt with heard. In the present case, the German Government heard the objections of inter- 14 — Case C-447/98 P Molkerei Großbraunshain and Bene ested parties and carefully considered the Nahrungsmittel v Commission, order of 26 October 2000.

51. That requirement for protection at national level is, as the Court made clear in Molkerei Großbraunshain, independent of the procedure envisaged in Article 7 of 53. The defendant and the national court the Regulation. That procedure is designed are of the view that registration of the solely to regulate differences between designation 'Spreewälder Gurken' as a Member States. 17 geographical indication may have infringed Articles 2 and 4 of Regulation No 2081/92 since the nature of the product and the expectations of consumers mean that it should have been registered as a designa- tion of origin: the term 'Spreewälder Gur- ken' was known to consumers as indicating 52. Similarly, the involvement of the com- gherkins originating from the Spreewald mittee required to be set up pursuant to proper and consequently of a particular Article 15 of the Regulation cannot, con- quality; it was not regarded as referring to trary to the submissions of the Commis- their processing or the recipe therefor. sion, replace the proper taking account of objections at national level before submis- sion of the application for registration. That committee is intended to facilitate close cooperation between the Member

15 — Paragraph 75 of the order. 54. The defendant submits that, by ana- 16 — Paragraph 76 of the order. logy with the Court's ruling in the Feta 17 — Paragraphs 72 to 74 of the order. See further on Article 7 the orders of the Court of the First Instance in Case T-114/99 CSR Pampryl v Commission [1999] ECR II-3331, paragraphs 49 to 59, and Case T-215/00 SCEA 18 — See recital 16 in the preamble to Regulation No 2081/92. La Conqueste v Commission, order made on 30 January 2001, paragraphs 41 to 51. 19 — See Article 15, fourth paragraph.

case, 2 0 on an application for registration ufacturers of pickled gherkins operating of a designation pursuant to Article 17 of outside the economic zone. the Regulation the Commission must verify that the requirements of Article 2 of the Regulation are met. In the present case the Commission made no attempt to determine whether the proposed designation complied with those requirements, merely accepting the German Government's view — after submission of the amended specification — that the designation should be registered as a geographical indication. 56. The defendant adds that the Commis- sion should also have taken account of Article 3 of the Regulation and satisfied itself that the designation 'Spreewälder Gurken' had not become generic in the sense that it now suggested merely that gherkins so marketed had been pickled in accordance with a particular recipe. In that case, gherkins so designated could lawfully come from anywhere provided that that 55. In the defendant's view, if the 'quality recipe was followed. or characteristics' of the gherkins cultivated in the Spreewald proper are 'essentially or exclusively due to a particular geographical environment with its inherent natural and human factors' within the meaning of Article 2(2)(a) of the Regulation, the des- ignation should have been registered as a designation of origin with the condition that all the gherkins should come from the Spreewald proper. If on the other hand the 57. The German Government submits that 'specific quality, reputation or other char- the designation 'Spreewälder Gurken' acteristics' of the gherkins are 'attributable could in principle be protected as either a to [their] geographical origin' — namely designation of origin under Article 2(2)(a) to the fact that their provenance is the of the Regulation or a geographical indica- economic zone and not the Spreewald tion under Article 2(2)(b). Both provisions proper — within the meaning of Arti- apply to agricultural products and food- cle 2(2)(b), the mere fact that gherkins stuffs 'originating in that region, specific from other areas are processed in the place or country'. Article 2(2)(b) explicitly Spreewald economic zone is not sufficient permits the protection of an agricultural to bring the designation within the scope of product which is merely processed in a that provision, since the method of proces- particular area: the degree of processing is sing could be equally guaranteed by man- irrelevant. Where protection as a geogra- phical indication is sought for a processed product, all that is required is that the 20 —Joined Cases C-289/96, C-293/96 and C-299/96 Denmark finished product comes from the geogra- and Others v Commission [1999] ECR I-1541, paragraphs 102 and 110 of the judgment. phical region indicated. The German Gov-

59. In my view it follows from the wording 61. With regard to compliance with the of Article 17 that, while in the first instance definition in Article 2(2), it appears to be it is for the Member State to specify accepted by all those submitting observa- whether registration of a particular name tions to the Court in the present case that, is sought as a designation of origin or a for the purposes of Article 2(2)(b) as dis- geographical indication, the Commission tinct from Article 2(2)(a), a foodstuff is must, before registering it as one or the regarded as originating in the geographical other, verify both that that name appears to area concerned solely by virtue of being fulfil the requirements of Article 2(2)(a) or processed (or produced or prepared) in that 2(2)(b), whichever is relevant, and that the area, notwithstanding that the raw ingre- product specification accompanying the dients have another provenance. I must application is in accordance with Article 4. confess to finding Article 2(2) unclear on that distinction, although it appears to be borne out by the wording of Article 2(4). Article 4(2)(d) also suggests that there is a difference between the requirements as to geographical origin imposed by subpara- graphs (a) and (b) of Article 2(2), but since 60. Article 17(2) expressly requires the Commission to 'register the names... which comply with Articles 2 and 4'. Article 4 21 — See in particular Article 4(2)(d) and (f), set out in paragraph 8 above. lists the minimum requirements of the 22 — See also paragraphs 92 and 101 to 103 of the judgment in product specification compliance with the Feta case, cited in note 20.

65. It is clear from the wording of Arti- cle 17(2) that the Commission may not 62. With regard to the requirement of register a generic name under the simplified compliance with Article 4, the specification procedure provided by Article 17 (nor of prescribed by that provision must include course may it do so under the normal the definition of the geographical area. 23 In procedure, since Article 3(1) prohibits the the absence of any suggestion of manifest registration of names that have become error, the Commission is in my view generic). I do not however consider that the entitled to accept the Member State's Commission is as a result required to definition of that area, since the competent examine of its own motion whether each authorities of that Member State are better designation in respect of which registration placed to define the area, taking account of is sought pursuant to Article 17 is not a the particular features of production and generic name. 25 marketing in the region. 24 There is no

25 — There is an interesting discussion of the Court's case-law 23 — Article 4(2)(c), set out in paragraph 8 above. on the concept of generic names before entry into force of the Regulation in the Opinion of Advocate General 24 — See Case T-109/97 Molkerei Großbraunshain and Bene Ruiz-Jarabo Colomer in Case C-317/9J Canadane Cheese Nahrungsmittel v Commission [1998] ECR II-3533, Trading and Kouri [1997] ECR I-4681, paragraphs 28 to paragraph 65 of the order of the Court of First Instance. 34.

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66. In my view, the duty to undertake such may be given only via the Member State an examination will arise only if, before concerned. I do not therefore consider that application is made for registration pur- an individual can alert the Commission to suant to Article 17 of a particular name of the possibility that a name sought to be an agricultural product or foodstuff as a registered is generic. 29 designation of origin or a geographical indication, the Commission has been put on notice by a Member State that that name may be generic.

68. Although in the English version of the 70. Where however application is made to Regulation the 13th recital in the pream- the Commission under Article 17 for regis- ble — which is not reflected in any sub- tration of a name as a designation of origin stantive provision of the Regulation — or geographical indication and the Com- states that 'the registration procedure mission is not on notice that that name is should enable any person individually and regarded by at least one Member State as directly concerned in a Member State to generic, I do not consider that it is bound to exercise his rights by notifying the Com- investigate whether the name is in fact mission of his opposition', it is clear from generic. other language versions that such notice 29 — See to similar effect with regard to the Article 7 procedure CSR Pampryl, cited in note 17, in particular paragraphs 53 26 — March 1995 in the case of Austria, Finland and Sweden. and 58 of the order. 27 — Set out in paragraph 6 above. 30 — The Feta case, cited in note 20, paragraphs 101 to 103 of 28 — See further the Feta case, cited in note 20, paragraphs 22 to the judgment. 24 of the judgment. 31 — Cited in note 20.

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cle 17(1) satisfy the requirements of Arti- of the Member State concerned are clearly cles 2 and 4. The question whether a name better placed to make the necessary assess- is 'established by usage' is always for the ment. Member State concerned.

77. I would repeat however my comments in paragraph 50 above to the effect that it is essential that interested third parties have the opportunity to make observations at national level with regard to designations 75. In any event, the Commission notes which a Member State proposes to submit that in the order for reference the referring to the Commission pursuant to Arti- court states that 'Spreewälder Gurken' is a cle 17(1) and that national law provide a designation known to consumers for cen- remedy where the competent authority has turies for gherkins from the Spreewald. The acted contrary to the Regulation. fact that the referring court notes that that designation refers to products cultivated in the Spreewald itself, and not to those coming from a Spreewald economic area, is irrelevant: it is not for the Commission to verify the geographical area with regard to which a name has been established by usage. Does the registration of 'Spreewälder Gur- ken' mislead consumers?

phical zone in question to be the prove- indication enshrines the misleading of con- nance of Spreewälder gherkins. As for the sumers as suggested by the referring court. permitted proportion of gherkins from On the assumption, discussed above, 3 3 that outside the Spreewald proper, that is irre- the Commission's interpretation of Arti- levant to registration as a geographical cle 2(2)(b) is correct, it seems to me that the indication pursuant to Article 2(2)(b) of fact that a proportion of the raw materials the Regulation. is permitted to come from outside the geographical area concerned will not, pro- vided that the other conditions of Arti- cle 2(2)(b) are satisfied, affect the validity of the registration of a geographical indica- tion under Regulation 2081/92. As for the extent of the geographical area, I have already indicated 34 my view that specifica- tion of the geographical area linked to a 80. The Commission notes that in accor- geographical indication is for the Member dance with the second indent of Arti- State concerned. cle 2(2)(b) it is sufficient in order for a product to have a geographical indication that its 'production and/or processing and/ or preparation... takes place in the defined geographical area'. It is accordingly not necessary that the raw material originate from the geographical area concerned, provided that the finished product is, for example, processed in that area.

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