C-469/00

RAVIL

OPINION OF ADVOCATE GENERAL ALBER delivered on 25 April 2002 ·

I — Introduction origin for agricultural products and food- stuffs2 ('Regulation No 2081/92')

1. The present order for reference concerns the question of the extent of the protection afforded by industrial property in the form of protected designations of origin. Specifi- cally, the question is whether the protected 2. Regulation No 2081/92 introduces designation of origin 'Grana Padano' may Community rules to protect certain agri- be used only if the cheese is also grated and cultural products and foodstuffs for which packaged in the region of production. The a link between product or foodstuff char- plaintiffs in the main proceedings wish to acteristics and geographical origin exists. prevent the defendant from placing Grana Padano cheese grated in France on the market under the protected designation of origin.

3. Article 2(2) provides:

II — Legal framework

describe an agricultural product or a — which possesses a specific quality, foodstuff: 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.'

— originating in that region, specific place or country, and

4. Under Article 4(1) of Regulation No 2081/92, to be eligible to use a protected designation of origin ('PDO') 3 or a protected geographical indication ('PGI') an agricultural product or foodstuff —• the quality or characteristics of must comply with a specification. which are essentially or exclusively Article 4(2) lists the particulars which must due to a particular geographical be included in the specification; they environment with its inherent include a description of the agricultural natural and human factors, and product or foodstuff including the raw the production, processing and materials, the definition of the geographical preparation of which take place in area, a description of the method of the defined geographical area; obtaining the agricultural product or food- stuff, details bearing out the link with the geographical environment or the geo- graphical origin and any requirements laid down by Community and/or national provisions.

(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: 5. Regulation No 2081/92 prescribes a normal procedure and a simplified pro- cedure — which is relevant in the present case — for the entry of PDOs and PGIs in the 'Register of protected designations of origin and protected geographical indica-

(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, advertis­ ing material or documents relating to 6. In accordance with Article 8, the indi­ the product concerned, and the packing cations 'PDO' and 'PGľ may appear only of the product in a container liable to on agricultural products and foodstuffs convey a false impression as to its which comply with the regulation. origin;

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(d) any other practice liable to mislead the register the names referred to in paragraph public as to the true origin of the 1 which comply with Articles 2 and 4. product. Article 7 shall not apply....

3. ...' '

9. After receiving and formally examining the names notified by the Member States 8. Article 17 governs the simplified pro- pursuant to Article 17 of Regulation cedure for registering a PDO or PGI. It No 2081/92, the Commission adopted applied to names, such as Grana Padano, Regulation (EC) No 1107/96 of 12 June which already existed and enjoyed national 1996 on the registration of geographical protection before the regulation entered indications and designations of origin into force. Article 17 states: under the procedure laid down in Article 17 of R e g u l a t i o n (EEC) No 2081/92 ('Regulation No 1107/96'). 5 The annex to this regulation contains the list of names registered as PDOs or PGIs, including the PDO 'Grana Padano'.

14. As already mentioned, entry of the PDO 'Grana Padano' in the 'Register of protected designations of origin and pro- tected geographical indications' kept by the Commission was effected under Regulation No 1107/96, that is to say by means of the simplified procedure pursuant to Article 17 12. By decree of the Presidenza del Con- siglio (Prime Ministerial decree) of 8 — Article 1 of the decree states: 4 November 1991, the designation of 'La denominazione di origine del formaggio "Grana pad- origin 'Grana Padano' was again extended, ano" è estesa alla tipologia grattugiato, ottenuta esclusiva- mente da formaggio intero avente diritto alla this time to grated ('grattugiato') cheese. denominazione di origine di cui trattasi, a condizione che le operazioni di grattugia siano effetuate nell'ambito della Use of the PDO was made subject to the zona di produzione del formaggio medesimo e che il requirement for grating to take place in confezionamento avvenga immediatamente senza nessun trattamento e senza aggiunta di sostanze atte a modificare la accordance with specified provisions in the coservabilità e le caratteristiche organolettiche originarie.' Article2 states: region of production and for the cheese to 'La tipologia della denominazione in parola è riservata al be packaged immediately after grating formaggio grattugiato avente i parametri tecnici e tecnolo- gici sottospecificati: without further handling or the addition presenza dì grassi sulla sostanza secca: non inferiore al 32%; età: non inferiore a nove mesi ed entro i limiti fissati dallo of preservatives or other substances which standard di produzzione; could alter the original organoleptic char- additivi: Secondo legge; carratteri organolettici: conformi alle definizioni stabilite dallo standard di produzione; umindità: non inferiore al 25% e non superiore al 35%; aspetto: non pulverulento ed omogeneo, particelle con 6 — Gazzetta Ufficiale della Repubblica Italiana (GURI) No 95 diametro inferiore a 0,5 mm non superiori a 25%; quantità di crosta: non superiore al 18%; of 30 April 1954, p. 1294. composizione amminoacida: specifica del "Grana Padano".' 7 — GURI No 295 of 22 December 1955, p. 4401. The decree was published in GURI No 83 of 8 April 1992.

17. Biraghi, a business established in Italy, (3) Bilateral agreement between Italy and produces cheese in Italy and puts cheese France including Grana Padano on the market. Bellon Import and Biraghi France are both businesses resident in France and are the exclusive importers for France of goods 15. On 28 April 1964 Italy and France produced by Biraghi. entered into a bilateral agreement 9on the basis of the international Convention on the use of registered designations of origin and names of cheeses, signed at Stresa on 1 June 1951. Under Articles 1 and 3 ofthat agreement, the designation of origin 'Grana Padano' is protected in France (see Annex B 18. On 4 October 1996 Biraghi and Bellon to the agreement) and may be used only brought an action against Ravil before the under the conditions laid down in Italian Tribunal de commerce (Commercial law. Court), Marseilles, seeking an order, accompanied by a periodic penalty pay- ment for non-compliance, requiring it to stop placing cheese grated in France on the market with the designation 'Grana Padano râpé frais' and to compensate Biraghi and Bellon for the loss suffered by them through the placing on the market of such cheese. They submitted that the Prime Ministerial III — Main proceedings and question decree of 4 November 1991 extended the referred for a ruling designation of origin 'Grana Padano' to grated cheese and introduced the require- ment that the cheese be grated in the region of production. By judgment of 5 November 16. On 1 July 1990 Ravil, a business 1997 the Tribunal de commerce ordered established in France, obtained a 'licence' Ravil to pay damages for the marketing from 1992 and prohibited it, on pain of a periodic penalty payment, from distribu- 9 — Decree No 69-393 of 24 April 1969, Journal officiel de la ting cheese bearing the designation 'Grana République française of 27 April 1969; see also GURI 1967 Padano râpé frais'. The Cour d'appel No 163, p. 1074.

19. Ravil appealed against that judgment to the Cour de cassation (Court of Cas- sation). The Cour de cassation considers that the decree of 4 November 1991 is a measure having an equivalent effect to a (1) Ravil quantitative restriction on exports within the meaning of Article 29 EC. Referring to the judgements of the Court of Justice in Delbaize 10 and in Belgium v Spain 1 1(also known as the 'Rioja' case), it submitted the 21. Ravil submits that the requirement that following question to the Court of Justice grating and packaging take place in the for a preliminary ruling: region of production makes export of the cheese more difficult and more expensive. The rules deter potential importers from importing and distributing the cheese in another Member State. 'Is Article 29 EC to be interpreted as precluding national legislation which reserves the designation of origin "Grana Padano" for cheese grated in the region of production inasmuch as such an obligation is not indispensable for preserving the 22. Furthermore, the requirement for the specific characteristics which the product cheese to be grated and packaged in the has acquired?' region of production is not necessary in order to guarantee the quality of the product marketed under the PDO 'Grana Padano'. The measure does not merely make the export of Grana Padano more 20. It should also be noted that since 1999 difficult and more expensive but, in addi- Ravil has, pursuant to an agreement con- tion, gives local undertakings a particular advantage. It grants them an exclusive right to grate and package the cheese. French 10 — Case C-47/90 Delhaize et Le Lion [1992] ECR I-3669. undertakings must either build up an 11 — Case C-388/95 Belgium v Spain [2000] ECR I-3123. appropriate infrastructure in the region of

28. Grana Padano is exposed during pro- cessing to risks of oxidation, desiccation, compression and fermentation. Processing therefore requires specialised knowledge. 25. In their submission, the rules in the decree of 4 November 1991 are compatible with Community law. In accordance with 12 — Case C-3/91 Exportur [1992] ECR I-5529.

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Grating too demands specialised skills and lation. The factual position is therefore knowledge. Accordingly, the rules are different from that in Delbaize and the necessary in order to maintain the prod- Rioja case. The French Government uct's reputation. accordingly suggests that the Court should hold that there is no need to rule on the compatibility of Italian law with Commu- nity law.

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the rules in the decree of 4 November 1991 account of the fact that there is no cor- did not become an integral part of the responding quality control outside the agreement. For the purposes of the agree- region of production, the Italian Govern- ment, therefore, the PDO 'Grana Padano' ment concludes that, as regards the period does not encompass grated cheese. In this from the entry into force of Regulation regard it concludes that Ravil's conduct No 1107/96, that is to say from 21 June does not infringe the 1964 agreement. 1996, Ravil infringed the provisions con- cerning use of the PDO 'Grana Padano'.

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(6) The Commission 40. The PDO 'Grana Padano' also extends to grated cheese since it is sold in that form in particular. Grating is a special process. The conditions under which it takes place are crucial to the taste of the product 36. The Commission likewise finds guid- offered. Even selection of the whole cheeses ance in the judgment in the Rioja case and to be grated requires specialised knowledge reaches the conclusion in the present case and skills. Outside the region of production that the requirement that grating and there are no controls ensuring that those packaging take place in the region of rules are observed. production constitutes a justified restriction on exports.

37. The holder of a PDO can lay down the rules under which the PDO is allowed to be used. PDOs are industrial property and V — Assessment under Article 30 EC can justify restrictions within the meaning of Article 29 EC.

42. The Italian decree could be applicable made the reference for a preliminary ruling in France by virtue of, first, the agreement to determine what national law —• which concerning protection of designations of includes the 1964 agreement — is appli- origin entered into by Italy and France on cable. The order for reference contains no 28 April 1964 15 and, second, Regulation reasoning at all on the interpretation of the No 1107/96. 1964 agreement. For the purposes of further consideration of the present case, it should therefore be assumed that the national court proceeded on the basis that the Italian decree is applicable under the 1964 agreement. However, this question is to be examined and decided by the national 43. Agreements concluded between court. It can accordingly be stated by way Member States after the entry into force of intermediate conclusion that the refer- of the EC Treaty must likewise be com- ence for a preliminary ruling raises the patible with Community law. 16 For the question of the compatibility of the Franco- period prior to 21 June 1996 the question Italian agreement with Community law in could therefore arise as to the extent to so far as the rules in the decree of which the agreement entered into by France 4 November 1991 under which grated and Italy on 28 April 1964 is compatible 'Grana Padano' is allowed to be placed on with Community law, in particular the market under that designation of origin Article 29 EC. only if it has been grated and packaged in the region of production are declared applicable in France by the agreement.

Franco-Italian agreement of 1964 and 48. Support for the view that there is no Regulation No 1107/96. However, the measure having an equivalent effect to a legality of both those measures is at issue quantitative restriction on exports is pro- only in so far as they declare the rules in the vided first of all by the fact that the Italian decree of 4 November 1991 to be requirement for grating and packaging to applicable. In that regard, as the national take place in the region of production court has stated, the issue in the final affects domestic and foreign economic analysis is whether the rules under which operators in the same way. A business grated 'Grana Padano' is allowed to be established in Rome cannot grate the placed on the market under that desig- cheese in Rome and sell it there under the nation of origin only if it has been grated PDO 'Grana Padano' any more than Ravil and packaged in the region of production can in France. are compatible with Community law.

(2) Legality of the Franco-Italian agree- 49. On the other hand, it must be taken ment of 1964 into account that the requirement to grate and package the cheese in the region of production in order to be allowed to place it on the market under the designation of (a) Existence of a measure having an origin 'Grana Padano' confers a particular equivalent effect to a quantitative restric- advantage on the undertakings operating in tion on exports within the meaning of the region of production inasmuch as they Article 29 EC alone are allowed to grate and package the cheese. That activity remains reserved for the industry established in the region of production.

51. As mentioned above, the case-law con- 53. It must therefore be stated in con- cerning the interpretation of Article 29 EC clusion that t h e d e c r e e of focuses on whether the measure in question 4 November 1991 and, in that regard, also specifically restricts exports. 18 In its judg- the 1964 agreement are measures having an ments in Delbaize and the Rioja case, the equivalent effect to a quantitative restric- Court held that measures under which the tion on exports within the meaning of designation of origin for Rioja wine may be Article 29 EC since they establish a dif- used only if the wine is bottled in the region ference in treatment between the domestic of production specifically restrict patterns trade of a Member State and its export of exports for the purposes of Article 29 trade, in such a way as to provide a EC. 19 In the judgment in the Rioja case, it particular advantage for national produc- based that finding on the fact that the wine tion. may also be transported unbottled within the region of production, in contrast to exported wine. 20

(b) Justification of the measure in order to protect industrial property within the meaning of Article 30 EC

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apt to distinguish it from other cheese, or if grating to certain requirements, some of grating in the region of production were which are laid down in Article 2 of the essential in order to preserve specific char- decree of 4 November 1991, so that the acteristics acquired by the cheese during its quality of the cheese and its particular production. However, as the Commission characteristics are safeguarded. The above- correctly points out, only requirements mentioned parties contend that this know- observance of which is necessary in order how is available only in the region of to protect the reputation of the PDO are production. permissible as a restriction on the free movement of goods satisfying the principle of proportionality. 2 3

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61. There is the following further reflec- tion. In the Rioja case, the Court came to the view that the bottling of wine in the 60. Given those circumstances, and in the region of production was a justified restric- absence of statements to the ontrary in the tion on the free movement of goods since that was the best means of guaranteeing the quality of the bottled wine. It may be 24 — See the text of Article 2, quoted in footnote 8. evident that the bottling of the wine in the

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requirements can be ensured. At the same the region of production in accordance time, it should be made clear from the with Community law provided fewer guar- outset that only checks in respect of grating antees as to the quality and authenticity of are at issue here: cheese grated outside the the wine than those carried out in the region of production is of course subject, region of production. However, it has until it is grated, to exactly the same already been pointed out above that the controls as cheese grated within it. grating of cheese does not appear to be comparable with the bottling of wine. Consumers purchase Grana Padano either grated or by the piece, whilst, as a rule, they buy wine in bottles. If only for that reason, checks in respect of grating are probably not to be accorded the same status as checks in respect of bottling. 65. The carrying out of checks helps to maintain the quality and hence also the reputation of grated Grana Padano. It might accordingly be concluded that the requirement to grate the cheese in the region of production under the supervision of the Grana Padano Association and to package it immediately thereafter without 68. The problem addressed by Bellon and using preservatives is justified in order to Biraghi, Spain and the Commission that no protect industrial property. corresponding quality controls are under- taken outside the region of production is a general problem concerning the enforce- ment of rules in foreign legal systems. If the rules on the use of the PDO provide for corresponding controls to be undertaken, an economic operator who intends to use the PDO is required to undertake the 66. However, that conclusion is precluded controls, even if he grates the cheese by the fact that checks can in principle be outside the region of production. Other- carried out not only in the region of wise he infringes the provisions on the use production but also outside it. Inspectors of the PDO and may not use it. could be sent by the Grana Padano Associ- ation, or inspectors resident in the area in question could be trained by the Grana Padano Association and instructed to carry out checks.

70. In this regard, the objection that con- view must it therefore be discussed whether sumers can be sure that they are obtaining the rules in the decree of 4 November 1991 Grana Padano only if the cheese is grated are necessary in order to protect the and packaged in the region of production reputation of the PDO 'Grana Padano'. under the supervision of the Grana Padano Association is also not persuasive. That is admittedly a means of guaranteeing that only cheeses bearing the PDO 'Grana Padano' are grated. The objection implies, however, that a business which processes Grana Padano outside the region of 73. The requirement to grate Grana Pad- production might use cheeses that are not ano in the region of production can ensure, allowed to bear the PDO and then never- in particular having regard to the quality theless sell the grated cheese using the PDO controls undertaken by the Grana Padano 'Grana Padano'. This constitutes an imper- Association, that the grated cheese consists missible inference of unlawful conduct on only of Grana Padano, comes from the the part of the competitor and the objection region of production and is grated in is to be rejected for that reason. accordance with the rules laid down for using the PDO 'Grana Padano'. However, it is questionable whether those rules are the least restrictive means of achieving the objective of fair trade and of consumer information as to the provenance of the product and its particular characteristics or 71. It must therefore be stated in con- whether other means having less effect on clusion that the rules in the decree of 4 November 1991 do not serve to protect the free movement of goods are available a commercially material characteristic. which achieve that objective equally well. Consequently, the restriction on the free movement of goods which has been found is not justified on grounds of the protection of industrial and commercial property under Article 30 EC. It thus infringes Article 29 EC. 74. Above all, appropriate product label- ling must be considered. In the present case, a possibility is to label the goods as 'Grana Padano grated in France' ('râpé en France') or in a similar non-discriminatory manner.

region of production, with or without distinguishes the two products from each systematic monitoring by the group of other sufficiently clearly, mature and well- producers, might reduce the degree of informed consumers, who are to be pre- consumer confidence in the designation sumed not only in the context of Article 28 'denominación de origen calificada' based EC 26 but also that of Article 29 EC, could on the conviction that the production of also become entirely convinced that cheese quality wines produced in specified regions grated in the region of production for must at every stage be carried out under the Grana Padano differs from cheese grated control and responsibility of the relevant outside that region. Two different forms of group of producers. 25 marketing Grana Padano are involved. If the consumer comes to the conclusion that the cheese grated outside the region of production does not satisfy his require- ments as regards Grana Padano, he can purchase Grana Padano grated in the region of production instead. It is in no way established that if one of the forms of 76. The present case seems to be only the product does not appeal to the con- partially comparable. First, as already sumer he will immediately choose a dif- stated, the grating of cheese out of view ferent type of cheese. of the consumer is not closely linked to the product in a manner comparable to the bottling of wine. Second, in the present proceedings, unlike the Rioja case, the parties have put forward no argument to the effect that consumers might not be able to distinguish between 'Grana Padano' grated inside and outside the region of production or that there cannot possibly be two different markets, one for 'Grana Padano' grated in the region of production and one for 'Grana Padano' grated outside it. 78. The solution indicated here involving appropriate product labelling also finds support in Regulation No 2081/92. The fifth recital in the preamble to that regu- lation expressly points out that the rules concerning protected designations of origin and protected geographical indications 77. Nor is it in any way evident that any merely supplement the general labelling adverse appraisal of 'Grana Padano' grated provisions. They merely supplement the outside the region of production would p r o v i s i o n s of Council D i r e c t i v e necessarily be passed on to the cheese 79/112/EEC of 18 December 1978 on the grated inside it. Especially if provision is approximation of the laws of the Member made here for appropriate labelling which States relating to the labelling, presentation

81. It therefore remains to state by way of conclusion to this section of the Opinion that the Franco-Italian agreement of 1964 79. It is to be noted, furthermore, that is incompatible with Community law in so Regulation No 2081/92 itself also seeks a far as it reserves use of the PDO 'Grana solution through appropriate labelling in Padano' for cheese which is grated in the cases of conflict. Article 12(2) of the region of production. regulation provides that in cases where a name protected under Community law is identical to a name of a third country, the name may be used only if the country of origin of the product is clearly and visibly indicated on the label. If consumers can be expected, in such cases where names are identical, to distinguish one product from the other through the country of origin (3) Legality of Regulation No 1107/96 being specified on the label, it is not clear why they should not be able to do the same when the label states where processing took place. 82. The PDO 'Grana Padano' became pro- tected under Community law on the entry into force of Regulation No 1107/96. As is apparent from Article 17(3) of Regulation No 2081/92, that Community-wide pro- tection has replaced the national protection which existed until then. 28 By means of Regulation No 1107/96 the PDO 'Grana Padano' was entered in the register of 80. It must therefore be concluded that less protected designations of origin and pro- restrictive means exist than limiting use of tected geographical indications kept by the the PDO 'Grana Padano' to Grana Padano Commission. It is therefore necessary to grated and packaged in the region of discuss now whether the PDO 'Grana production. Equally effective protection of Padano' protected under Community law the PDO 'Grana Padano', of the quality of extends to grated cheese and to what extent the product and of its reputation with it is compatible with Regulation consumers can be achieved by labelling it No 2081/92 and Article 29 EC or is appropriately. The decree of 4 November 1991 therefore goes beyond what is necess- ary and is disproportionate in that respect. 28 — See also the Communication to enterprises winch use designations of origin and geographical indications for agricultural products and foodstuffs on the simplified Community registration procedure provided tor in Article 17 of Regulation (EEC No 2081/92 (OJ 1993 27 — OJ 19-9 L VI, p. 1. C 273, p. 4).

83. Ravil disputes that the PDO 'Grana Padano' extends to grated cheese. In that 86. In accordance with Article 2(2)(a) of regard, it must be stated that in accordance Regulation No 2081/92, a designation of with Article 4 of Regulation No 2081/92 a origin is used to describe an agricultural specification is to be annexed to appli- product or a foodstuff originating in the cations for registration. By virtue of region, specific place or country in ques- Article 4(2)(i) the specification may contain tion, the quality or characteristics of which a reference to any requirements laid down are essentially or exclusively due to a by Community law and/or national provi- particular geographical environment with sions. its inherent natural and human factors, and the production, processing and preparation of which take place in the defined geo- graphical area. Grating and packaging in the region of production under the super- vision of the Grana Padano Association are processing operations. They ensure that the 84. The specification submitted with the grated cheese consists of cheese which is application for registration of the PDO allowed to be placed on the market under 'Grana Padano', which the Commission the PDO 'Grana Padano'. The supervision has lodged with the Court at the latter's by the Grana Padano Association ensures request, contains a reference to the decree that the provisions concerning the process- of 4 November 1991. 30 It does not appear ing of Grana Padano are observed. that that reference to the decree was deleted during the procedure for entering the PDO 'Grana Padano' in the register kept by the Commission. The PDO 'Grana Padano' therefore extends to grated cheese. 87. When reviewing the legality of a regis- tration, regard is to be had to the division 29 — Case C-51/93 Meyhui [1994] ECR I-3879, paragraph 11. 30 — See the list of Italian legislation relating to protection of of powers between the Member States and the designation of origin 'Grana Padano' which is set out the Commission introduced by Regulation on p. 9 of the 'Domanda di Registrazione' DOP (Denomi- nazione di origine protetta) 'Grana Padano'. No 2081/92. As the Court explained in its

(c) Compatibility of the rules with Article 29 EC

88. The foregoing division of powers also has an effect on review by the Community 90. Since the PDO 'Grana Padano' also judicature of the ¡Commission's regis- extends to grated cheese, it is prohibited under Article 8 of Regulation No 2081/92 to use the PDO 'Grana Padano' within the 31 — Judgment ¡n Case C-269/99 Carl Kühne and Others [20011 Community for grated cheese iwhich, while ECR 1-9517, paragraphs 50 to 54. 32 — Carl Kühne, cited in footnote 31, paragtaph 60. 33 — Carl Kühne, cited in footnote 31, paragraph 52. 35 — Carl Kühne, cited in footnote 31, paragraphs 49 and 57 to 34 — Carl Kühne, cited in footnote 31, paragraph 53. 60.

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93. The view that regard is not to be had to structural-policy considerations in order to justify restrictions on the free movement of goods is supported first of all by the 92. In contrast to the position when exam- wording of Article 30 EC. The list of ining the period before Regulation grounds upon which a restriction on the No 1107/96 entered into force, it is, how- free movement of goods may be justified ever, necessary at this point to discuss the does not include a 'structural-policy con- general tendency of legislation to bring out siderations' or 'agricultural policy' cat- the quality of products within the frame- egory. According to the case-law, the list work of the common agricultural policy, in of exceptions in Article 30 EC is, however, order to promote their reputation. The definitive. 37 means used for this purpose include desig- nations of origin. 36 That tendency is borne out by the second to sixth recitals in the 37 — See the judgments in Case 113/80 Commission v Ireland [1981] ECR 1625, paragraph 7, in Case 95/81 Commis- sion v Italy 1982] ECR 2187, paragraph 20 et seq., and in Joined Cases C-321/94, C-322/94, C-323/94 and C-324/94 Pistre and Others [1997] ECR I-2343, paragraph 52, and 36 — See the findings in Belgium v Spain, cited in footnote 11, the Opinion of Advocate General Jacobs in Case C-312/98 paragraph 53. Warsteiner Brauerei [2000] ECR I-9189, paragraph 36.

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96. Finally, the matter should also be con- sidered from the following angle. When the Court has interpreted the provisions on the 95. It is also to be observed that a broad free movement of goods, it has always interpretation of Article 30 EC appears endeavoured to help that fundamental free- particularly uncalled for when examining dom to assert itself over national measures restrictions on exports within the meaning which, like the decree under discussion of Article 29 EC. As explained above, here, are intended inter alia to protect Article 29 EC has been defined by the domestic industry. The disputes in this case-law as meaning that not every restric- context have often concerned foodstuffs tion on exports, but only those measures whose raw materials essentially consist of which specifically prevent the export of agricultural products. A well-known goods, are prohibited under that provision. example is the judgment on the German That case-law defines the field of appli- 'Reinheitsgebot' (purity requirement) for cation of the prohibition of restrictions on beer 40 which can be traced back to a exports substantially more narrowly than Bavarian Purity Law adopted in 1516. the field of application for restrictions on Other cases have related to Italian pasta, 41 imports under Article 28 EC. In accordance the minimum fat content of Edam cheese 42 with the Dassonville formula, Article 28 EC prohibits any measure which is capable 39 — Case 8/74 Dassonville [1974] ECR 837, paragraph 5. See also Joined Cases C-267/91 and C-268/91 Keck and Mtlboiiard ( 1993] ECR I-6097, paragraph 11. 38 —Judgment in Case C-205/89 Commission v Greece [1991] 40 — Case 178/84 Commission v Germany [1987] ECR 1227. ECK I-1361, paragraph 9, and Opinion of Advocate 41 — Case 407/85 3 Glocken and Another v USI, Centro-Sud General Ruiz-Jarabo Colomer in Case C-358/95 Marcitalo and Another |1988| ECR 4233. (1997| ECR I-1431, point 21. 42 — Case 286/86 Deserbais [1988] ECR 4907.

97. The case-law on the interpretation of Article 28 EC may have prompted pro- ducers to seek refuge in industrial property rights, that is to say to endeavour to compensate for the lost national statutory protection from competition by creating new rights as protected designations of 98. The connection between Articles 28 origin and protected geographical indi- EC, 29 EC and 30 EC demonstrated in the cations. Beer provides a striking demon- last two arguments and the consequences of stration of this tendency. After the Court the case-law on Article 28 EC, which has declared that the Bavarian/German purity always favoured the free movement of requirement, which reserved use of the goods, support in any event a narrow designation 'beer' for beer having only interpretation of the exceptions justified certain ingredients, was incompatible with under Article 30 EC. Article 28 EC, beer produced in other Member States otherwise than in accord- ance with the purity requirement could also be sold in Germany under the designation 'beer'. Initially the German breweries tried to compensate for the economic loss which the opening up of the German market to competing products from other Member States entailed for them by advertising, for 99. Consequently, in the context of the instance by including the words 'brewed in specification to be submitted under Article 4 accordance with the German purity of Regulation No 2081/92 with an appli- requirement' on the label. In the meantime cation for registration, only those provi- 'Bayerisches Bier' (Bavarian beer) was sions which are indispensable for guaran- entered in the register kept by the Com-

teeing the provenance and particular char- (d) Conclusion acteristics of the product are to be accepted, and not also those provisions which are exclusively designed to grant the local undertakings resident in the region of production an exclusive right to the further 101. The Commission, acting on the basis processing of the product. of Article 17 of Regulation No 2081/92, adopted Regulation No 1107/96 by which the PDO 'Grana Padano' — including the requirement contained in the decree of 4 November 1991 that the cheese must be grated and packaged in the region of production — was entered in the register of designations of origin and geographical indications protected under Regulation No 2081/92. By means of Regulation No 1107/96 the restriction on exports which has been found in the present case 100. It must therefore be stated in con- thus acquired the status of Community law. clusion that the structural-policy objectives That regulation is accordingly to be in the field of agricultural policy pursued declared invalid on the ground of infringe- by means of Regulation No 2081/92 are ment of Article 29 EC in so far as it reserves likewise not capable of justifying under the PDO 'Grana Padano' for grated cheese Article 30 EC the restriction on exports which is grated and packaged in the region which has been found. of production.

VI — Conclusion

102. On the basis of the foregoing arguments, I propose the following answer to the question referred for a preliminary ruling:

(1) Article 29 EC is to be interpreted as precluding national legislation which reserves the protected designation of origin 'Grana Padano' for cheese which is grated and packaged in the region of production.