C-108/01

OPINION OF MR ALBER — CASE C-108/01

OPINION OF ADVOCATE GENERAL ALBER delivered on 25 April 2002 1

Table of contents

I — Introduction I-5125

II — Legal framework I-5125

(1) Community provisions I - 5125

(2) Asda and Hygrade ('the defendants') I-5134

(3) The United Kingdom I-5136

(4) The French Republic I-5137

(5) The Italian Republic I-5137

(6) The Kingdom of Spain I-5138

(7) The Commission I-5138

I — Introduction II — Legal framework

(1) Community provisions

1. The present order for reference concerns the question of the extent of the protection afforded by industrial property in the form (a) Council Regulation (EEC) No 2081/92 of protected designations of origin. Specifi- of 14 July 1992 on the protection of cally, the issue is whether the protected geographical indications and designations designation of origin 'Prosciutto di Parma' of origin for agricultural products and ('Parma ham') may be used only if the foodstuffs 2 ('Regulation No 2081/92') slicing and packaging of the ham also take place in the region of production. The Italian plaintiffs in the main proceedings wish to prevent the defendants from plac- 2. Regulation No 2081/92 introduces ing ham on the market under the protected Community rules to protect certain agri- designation of origin 'Parma ham' if it is sliced and packaged in the United King- dom. 2 — OJ 1992 I 208. p. 1.

I - 5125

OPINION OF MR ALBER — CASE C-108/01

cultural products and foodstuffs for which (b) geographical indication: means the a link between product or foodstuff char- name of a region, a specific place or, acteristics and geographical origin exists. in exceptional cases, a country, used to describe an agricultural product or a foodstuff:

CONSORZIO DEL PROSCIUTTO DI PARMA AND SALUMIFICIO S. RITA

area, a description of the method of and, if necessary, the grounds for its con- obtaining the agricultural product or food- clusions. If no statement of objections is stuff, details bearing out the link with the notified to the Commission in accordance geographical environment or the geo- with Article 7 by a Member State or a graphical origin and any requirements laid legitimately concerned natural or legal down by Community and/or national person, the Commission enters the name provisions. in the 'Register of protected designations of origin and protected geographical indica- tions' and publishes it in the Official Journal of the European Communities.

I-5127

OPINION OF MR ALBER — CASE C-108/01

(b) any misuse, imitation or evocation, 9. Article 17 governs the simplified pro- even if the true origin of the product cedure for registering a PDO or PGI. It is indicated or if the protected name is applied to names, such as Parma ham, translated or accompanied by an which already existed and enjoyed national expression such as "style", "type", protection before the regulation entered "method", "as produced in", "imi- into force. Article 17 states: tation" or similar;

(c) any other false or misleading indication as to the provenance, origin, nature or '1. Within six months of the entry into essential qualities of the product, on force of the Regulation,4 Member States the inner or outer packaging, advertis- shall inform the Commission which of their ing material or documents relating to legally protected names or,..., which of the product concerned, and the packing their names established by usage they wish of the product in a container liable to to register pursuant to this Regulation. convey a false impression as to its origin;

(d) any other practice liable to mislead the 2. In accordance with the procedure laid public as to the true origin of the down in Article 15, the Commission shall product. register the names referred to in paragraph 1 which comply with Articles 2 and 4. Article 7 shall not apply....

5

(2) Italian law (b) Commission R e g u l a t i o n (EC) No 1107/96 of 12 June 1996 on the registration of geographical indications and designations of origin under the pro- cedure laid clown in Article 17 of Regu- lation No 2 0 8 1 / 9 2 ( ' R e g u l a t i o n No 1107/96') 5 13. The Consorzio was set up on 18 April 1963 by 23 producers of Parma ham and in the very same year — thus long before the Community regulations entered into force in 1992 and 1996 — the trademark 'Pro- 11. After receiving and formally examining sciutto di Parma' was registered by it. The the names notified by the Member States production of Parma ham and protection of pursuant to Article 17 of Regulation the denomination of origin were first No 2081/92, the Commission adopted regulated in Italian law by Law No 506 Regulation No 1107/96. The annex to this of 4 July 1970. 6By ministerial order of regulation contains the list of names regis- 3 July 1978, the Consorzio was entrusted tered as PDOs or PGIs, including the PDO with the task of supervising the production 'Prosciutto di Parma'. and marketing of Parma ham pursuant to Article 7 of Law No 506. Law No 26 of 13 February 1990 consolidated in Italian law the rules which are now in force. 7 Ministerial Decree No 253 of 15 February 1993 and a ministerial decree of 12 April 12. The specification for the PDO 'Parma 1994 empowered the Consorzio to monitor ham' refers, in sections B.4 and C.2, to the and supervise observance of the provisions requirement that the packaging of sliced concerning the production and processing Parma ham is to be carried out in the region of Parma ham. 8 of production defined in section C.1. In section G it identifies the functions of the 6 — Gazzetta Ufficiale della Repubblica Italiana (GURI) No 179 of 17 July 1970, p. 4748. 7 — GURI No 42 of 20 February 1990. 5 — OJ 1996 L 148, p. 1. 8 — GURI No 173 of 26 July 1993.

19. Accordingly, under Italian law, pre- sided and pre-packaged Parma ham must 2. In cases provided for in paragraph 1, if it be sliced and packaged in the Parma region is not possible to keep the mark on the of production and bear a label which product, the former shall be indelibly specifies the name and mark of the pro- stamped, so that it cannot be removed ducers or packer and seller, the location of from the packaging, under the control of the packaging plant, the date of production the competent body and according to and details of the preservation. On the methods determined by implementing regu- other hand, it is permissible, where the ham

I-5130

CONSORZIO DEL PROSCIUTTO DI PARMA AND SALUMIFICIO S. RITA

is supplied whole or cut up, for it to be duced in Italy, packed in the UK for Asda sliced in front of the purchaser in a shop or Stores Limited'. 10 restaurant.

22. In 1997 the Consorzio complained of breach of the regulations to trading stan- III — Facts, main proceedings and ques- dards officers in Wiltshire and West York- tion referred for a ruling shire. Those complaints were rejected.

20. Asda Stores Limited ('Asda') sells packets of ham described as 'Parma ham' in its supermarkets in England. It obtains those goods from Hygrade Foods Limited 23. On 14 November 1997 the Consorzio ('Hygrade'). Hygrade acquires the ham commenced proceedings in the English from Cesare Fiorucci SpA, a company courts against Asda and Hygrade, seeking resident in Italy. The ham is imported — various injunctions. The Consorzio's boned but unsliced — into the United motion was dismissed by judgment of Kingdom and sliced and packaged by 30 January 1998. Hygrade at its premises in Corsham. After been sliced, it is packed and sealed in packets of five slices.

(2) If the answer to issue 1 is Yes, are the relevant provisions of Council Regu- 26. The House of Lords elucidates the lation (EEC) No 2081/92 and Com- question which it has submitted by indicat- mission Regulation (EC) No 1107/96 ing, in question form, that it is interested valid? (The validity issue.) above all in clarification of the following issues:

'(1) On a true construction of Council Regulation (EEC) No 2081/92 and (3) Are the provisions of Council Regu- C o m m i s s i o n R e g u l a t i o n (EC) lation (EEC) No 2081/92 enforceable No 1107/96, and the relevant specifi- in civil proceedings in England by cation for Parma ham, is it contrary to persons such as the Appellants...? (The Articles 4 and/or 8 and/or 13 of direct effect issue.)'

I - 5132

CONSORZIO DEL PROSCIUTTO DI PARMA AND SALUMIFICIO S. RITA

IV — Arguments of the parties being the shape of the ham when it is sliced), the actual slicing and the sub- sequent packaging. A high quality of Parma ham is guaranteed only by simultaneously monitoring the processed ham and the staff carrying out the processing.

(1) Consorzio del Prosciutto di Parma and Salumificio Rita ('the plaintiffs')

30. The plaintiffs consider that the perma- nent presence of an inspector during pro- 28. The condition requiring ham to be cessing is necessary in order to ensure that sliced and packaged in the region of the image of Parma ham is protected. The production is fundamental to ensuring that competence necessary for the checks is the typical qualities of Parma ham are possessed only by those people who under- retained. When Parma ham is processed by stand the marketing and the technical being sliced and packaged, three factors are aspects of the product and of its processing, essential: selection of the ham to be pro- namely the Consorzio's inspectors and the cessed, checks on the equipment of the producers' workers. This knowledge, dis- business carrying out the processing, and played by the Consorzio's inspectors, is not the presence of Consorzio inspectors when possessed by people outside the region of the ham is sliced and packaged and the production. Checks are, moreover, a statu- certification mark is affixed. Processing is a tory requirement under Article 6 of Law complex procedure which encompasses No 26 of 1990 and Articles 25 and 26 of boning, preparation of the 'brick' (this Ministerial Decree No 253 of 1993.

I - 5133

OPINION OF MR ALBER — CASE C-108/01

31. The plaintiffs refer to the risk to the had, or was able to acquire, knowledge of reputation of Parma ham which would the conditions for using the PDO 'Pro- arise from allowing slicing and packaging sciutto di Parma'. outside the region of production. Any consumer dissatisfaction with the quality of ham processed outside the region of production would, in the plaintiffs' view, automatically also affect the high regard in which ham processed in the region of production is held. (2) Asda and Hygrade ('the defendants')

I - 5134

CONSORZIO DEL PROSCIUTTO DI PARMA AND SALUMIFICIO S. RITA

region of production is founded. However, origin 'Prosciutto di Parma' which is pro- they are not attached to the specification, tected by Regulations No 2081/92 and making it impossible for the defendants to No 1107/96. In accordance with the judg- become aware of them. ment in Pistre,13Regulation No 2081/92 protects only requirements which ensure that the product comes from a particular geographical area. It is accordingly necess- ary for a requirement laid down in a specification to protect that particular link. 37. The defendants point out, furthermore, However, no link exists between the geo- that the Consorzio is not under a legal graphical origin of the ham and the slicing obligation to send them a copy of the and packaging processes. application for registration. Nor is the Commission obliged to, not even pursuant to Commission Decision 94/90/ECSC, EC, Euratom of 8 February 1994 on public access to Commission documents, 12 as the Commission is not the author of the specification, and therefore of the docu- 40. The defendants therefore propose that ment. Regulations No 2081/92 and No 1107/96 should be interpreted as not protecting the PDO as regards rules on the slicing and packaging of ham. In the alternative they suggest that Regulation No 1107/96 should be declared invalid to the extent that it 38. The only details which were published covers the rules concerning the slicing and were the fact that the PDO 'Prosciutto di packaging of Parma ham in the region of Parma' had been registered and that the production since that falls outside the spirit Consorzio was the competent body for and purpose of Regulation No 2081/92. inspections pursuant to Article 10 of Regu- lation No 2081/92. However, that is not sufficient for the rules concerning slicing and packaging in the region of production to be raised against them.

42. Nor have the plaintiffs put forward any displays certain characteristics. They there- justification for that restriction. Nobody fore protect only such requirements as are has ever questioned the quality of Parma necessary to guarantee those character- ham produced by a member of the Con- istics. sorzio in accordance with the applicable provisions. It has also not been submitted that the ham sold by the defendants has led to consumers being confused or misled or has ever harmed the reputation of Parma ham producers. 45. In the main proceedings, it is not in dispute between the parties that the whole hams imported by the defendants may bear the PDO 'Parma ham'. The quality of the ham is not adversely affected by being 43. Finally, the defendants consider that sliced and packaged. In this respect, the the requirement that slicing and packaging present case is not comparable with the take place in the region of production is decision in the Rioja case. disproportionate. Italian law also allows Parma ham to be exported whole or cut up and to be sliced in front of the consumer in another Member State. There is no reason for prohibiting the same slicing process outside the region of production when it does not take place in front of the con- sumer. 46. The United Kingdom Government shares the defendants' view with regard to the problem of publicity given to the specification. It is apparent from the 10th recital in the preamble to Regulation No 2081/92 that entry in the register should provide information to those involved in the trade and to consumers. Regulation No 1107/96 made public only (3) The United Kingdom that 'Parma ham' is protected as a PDO. When a trader purchases ham with the PDO 'Parma ham', he has the guarantee that the ham originates from the region of 44. The United Kingdom Government production laid down for Parma ham and takes the view that the requirement for satisfies certain quality requirements. The ham to be sliced and packaged in the region summary of the specification submitted in of production is a measure having an connection with registration under the equivalent effect to a quantitative restric- Article 17 procedure does not contain the tion on exports. That restriction on the free requirement that the ham must be sliced movement of goods is not justified. and packaged in the region of production. Articles 8 and 13 of Regulation It is true that it refers to the Italian No 2081/92 are intended to ensure that a legislation which lays down that the ham product comes from a specified area and is to be sliced and packaged in the region of

48. France considers that that requirement is also compatible with Regulation No 2081/92 since it is necessary in order 51. The Italian Government refers to sec- to guarantee that the ham originates from a tion B.4 of the specification and Article 12 specific area. In contrast to whole hams, in of the 'directive' annexed thereto, accord- the case of sliced ham consumers can be ing to which the PDO cannot be used informed only by means of the details on unless the ham has been sliced and pack- the packaging which are provided under aged in the region of production. All the supervision of the Consorzio. operations are subject to strict control by specially qualified staff who have great experience in handling Parma ham. Super- vision also extends to the technical suit- ability of the machines used and the product's aesthetic appearance. If those 49. Regulation No 2081/92 is compatible controls were not undertaken, the loss of with the provisions concerning the free quality would damage the product's repu- movement of goods. The legislature has a tation.

I - 5137

OPINION OF MR ALBER — CASE C-108/01

55. The Commission points out that the requirement for slicing and packaging to (6) The Kingdom of Spain take place in the region of production is contained in the specification which accompanied the application for regis- tration and that the specification, more- over, refers to the relevant Italian legis- lation. 53. The Spanish Government likewise refers to the judgment in the Rioja case. The purpose of a designation of origin is to guarantee that the product comes from a specified area and displays certain char- acteristics. The slicing of the ham is a particularly important step in its process- ing. Even if it does not take place until after the actual production, it is fundamental for 56. With regard to the validity of the Parma ham in particular, as Parma ham is registration in so far as it relates to the mainly sold sliced. requirement for slicing and packaging to take place in the region of production, the Commission refers to the decision in the Rioja case. The slicing and packaging of ham constitute a complex process requiring observance of certain rules and specialised knowledge. The process has an effect on 54. Supervision carried out outside the the product's quality which in turn deter- region of production affords fewer guaran- mines its reputation.

I-5138

CONSORZIO DEL PROSCIUTTO DI PARMA AND SALUMIFICIO S. RITA

57. The protected designation of origin and packaged in the region of production, guarantees that the product comes from a went too far. specified area and displays certain char- acteristics. This guarantee is best secured by slicing and packaging in the region of production. Outside that region there are no equivalent checks carried out by staff with specialised knowledge. The checks provided for in the specification and in the Italian legislation are designed to pre- serve the quality of Parma ham and are V — Assessment therefore justified.

I-5139

OPINION OF MR ALBER — CASE C-108/01

(2) Scope of protection provided by the 63. It is therefore to be concluded that the PDO 'Prosciutto di Parma' specification submitted with the appli- cation for registration includes the require- ment that slicing and packaging take place in the region of production. The scope of the protection provided by the PDO 'Pro- sciutto di Parma' thus extends to slicing and packaging in that region. 61. It is necessary to examine first of all to what extent the specification submitted with the application for registration of the PDO 'Parma ham' includes the requirement to slice and package the ham in the region of production. It is to be observed in this regard that, under Article 4(2) (i) of Regu- lation No 2081/92, a specification may (3) Compatibility of the rules with Regu- include a reference to any requirements laid lation No 2081/92 down by Community and/or national provisions. By virtue of Article 4(2)(i), it is sufficient for the relevant Italian statu- tory provisions to be referred to in the specification as appropriate. 64. This leads to the question whether it was open to the Commission to register the PDO 'Parma ham' with that protective scope, that is to say whether the regis- tration under Regulation No 1107/96 is compatible with Regulation No 2081/92.

67. The foregoing division of powers also has an effect on review by the Community 66. When reviewing the legality of a regis- judicature of the Commission's registration tration, regard is to be had to the division decisions. Thus, the only matters to be of powers between the Member States and examined are whether the Commission the Commission introduced by Regulation complied with its obligation of verification No 2081/92. As the Court explained in its and whether the abovementioned require- judgment in Carl Kühne, an application for ments under Articles 2 and 4 of the registration under Article 5 of Regulation regulation are met. 18 No 2081/92 is to be submitted through a Member State. The Member State has the task of checking whether the application is justified with regard to the conditions laid down by the regulation. It must forward the application to the Commission only if it concludes that that is the case. The Com- mission then undertakes merely a formal 68. The Commission examined the appli- examination in accordance with Article 6(1) cation and accompanying specification of Regulation No 2081/92. Its examination which the Italian Government forwarded includes checking whether the specification under the simplified procedure. In accord- contains the particulars required under ance with the findings set out above, it is at Article 4 and whether, on the basis of the any rate not manifest that the specification specification, the designation satisfies the is incomplete or that the particulars con- requirements of Article 2(2)(a) or (b). 14 In tained in it, including the requirement for so doing, the Commission confines itself to slicing, packaging and labelling to take examining whether the assessment made by place in the region of production under the the competent Member State is not mani- supervision of the Consorzio, do not justify festly incorrect. 15 This applies to both the the registration as a PDO. Consequently, normal and the simplified procedure. 16 the r e g i s t r a t i o n under R e g u l a t i o n The point of that division of powers is that No 1107/96 does not infringe Regulation No 2081/92.

72. On the other hand, it must be taken into account that the requirement to slice and package the ham in the region of (a) Existence of a measure having an production in order to be allowed to place equivalent effect to a quantitative restric- it on the market under the designation of tion on exports origin 'Parma ham' confers a particular advantage on the undertakings operating in the region of production inasmuch as they alone are allowed to slice and package the ham. That activity remains reserved for the industry established in the region of 70. According to the settled case-law of the production. Court, Article 29 EC prohibits national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade, in such a way as to provide a particular advantage for national produc- tion or for the domestic market of the State 73. In addition, export of the ham to other in question. 19 Community law measures Member States might well be made more too must be compatible with the provisions expensive by the rules at issue. Prior to concerning the free movement of goods. 20 export, a further processing operation must be carried out. That increase in costs hinders the export of Parma ham. Those reasons point in favour of categorising the 19 — Case C-209/98 Sydhavnens Sten Sc Grus [2000] ECR I-3743, paragraph 34, Case 172/82 Inter-Huiles and rules as a measure having an equivalent Others [1983] ECR 555, paragraph 12, and Case 238/82 effect to a quantitative restriction on Dupbar [1984] ECR 523, paragraph 25. 20 — Case C-51/93 Meybui [1994] ECR I-3879, paragraph 11. exports.

74. As mentioned above, the case-law con- (b) Justification of the measure in order to cerning the interpretation of Article 29 EC protect industrial property focuses on whether the measure in question specifically restricts exports. 21In its judg- ments in Delhaize and the Rioja case, the Court held that measures under which the designation of origin for Rioja wine may be used only if the wine is bottled in the region of production specifically restrict patterns of exports for the purposes of Article 29 EC. 22 In the judgment in the Rioja case, it based that finding on the fact that the wine may also be transported unbottled within the region of production, in contrast to exported wine. 23 76. The question is thus raised of the extent to which the measure is justified on the grounds of protection of industrial prop- erty within the meaning of Article 30 EC. Designations of origin are industrial and commercial property within the meaning of Article 30 EC. 24 The restrictions on trade which they entail are justified in so far as they are necessary in order to ensure that the designation of origin fulfils its specific function, which is to guarantee that the product bearing it comes from a specified geographical area and displays certain par- ticular characteristics. 25 Accordingly, the requirement that slicing and packaging take 75. The situation in the present case place in the region of production would be appears to be comparable. The rules in justified if it gave the ham from that region question lay down solely that the ham must particular characteristics apt to distinguish be sliced and packaged in the region of it from other ham, or if slicing in the region production. That requirement is observed if of production were essential in order to the ham is transferred within the region of preserve specific characteristics acquired by production from the slaughterhouse to the ham during its production. However, another business which then slices and only requirements observance of which is packages it in accordance with the appli- necessary in order to protect the reputation cable rules. Therefore, here too it may be of the PDO are to be regarded as a concluded that there is a specific restriction restriction on the free movement of goods on exports. satisfying the principle of proportional- ity. 26

(i) Rules to protect a particular character- 80. It is to be noted, however, that none of istic the parties to the proceedings has put forward a convincing argument in support of the contention that the slicing of ham in the region of production is a process which confers particular characteristics on that 77. It must therefore be examined to what ham or which is essential in order to extent the slicing and packaging of Parma preserve the specific characteristics ham in the region of production confers on acquired by the ham during production. it or preserves a characteristic which The special knowledge which is required in influences the consumer's choice and is order to select the hams for slicing and in therefore commercially material. order to slice them properly in accordance with the provisions applicable to the PDO can also be applied outside the region of production. It is entirely comprehensible that, historically, the special knowledge has developed in the region of production. 78. Support for the view that a commer- However, the Consorzio has not put for- cially material characteristic is involved is ward any reason why that knowledge provided first of all by the fact that, should be available only in the region of according to the submissions of the Con- production. People who assist in the sorzio and Salumificio Rita and of Italy, production and processing of a product Spain and the Commission, slicing can — above all through training in the demands special knowledge. The hams to region of production — gain the requisite be sliced are to be selected with care, using knowledge and necessary skills for produc- special expertise. In addition, regard is to ing and processing the product. Equally be had during slicing to certain require- people who have acquired that knowledge ments, so that the quality of the ham, its and those skills can move away from the appearance and its particular character- region of production. It is therefore necess- istics are safeguarded. The Consorzio and ary to proceed on the basis that the human Salumificio Rita contend that this know- influences on the product are funda- how is available only in the region of mentally independent of the region of production. production.

83. Given those circumstances, and in the absence of statements to the contrary in the order for reference and the observations of the parties to the proceedings, it is at any rate not apparent that Parma ham will inevitably lose its particular characteristics which it acquires through its production if it is sliced outside the region of produc- tion — of course only if the slicing takes place in compliance with all other require- ments, in particular the exclusive use of Parma ham and observance of the technical requirements set out in the specification. A ham is of course also allowed to be exported whole or cut up and to be sliced by the ultimate consumer himself. In addi- tion, as the Consorzio confirms, a ham 82. Nor, in the final analysis, have the exported whole or cut up may also be sliced parties asserted that correct slicing as such by a retailer or in a restaurant in front of outside the Parma area impairs the uni- the consumer, without losing its quality or versally recognised quality of Parma ham. particular characteristics, even if, once Otherwise, it would also make no sense started, it is kept there for some time (a that ham is sold whole or cut up for slicing fact which incidentally points to the out- by consumers, or slicing by retailers or standing quality of Parma ham). I cannot restaurateurs who as a rule are not trained be persuaded that this should be permis- like processing personnel in the Parma area. sible but that industrial slicing followed by In this respect, the present case also differs immediate packaging should not be. from that of Rioja, where transport of the wine in bulk and bottling elsewhere could indeed give rise to changes in quality. The plaintiffs' principal argument is also less concerned with an unlikely loss in quality than with the checks, without which ham containing defects might be sliced or the reputation of the product as such could be 84. The objection that a consumer can see prejudiced. Apart from the fact that checks the mark of origin on the ham sliced in also fall away in the case of slicing by front of him by a retailer or in a restaurant

85. There is the following further reflec- tion. In the Rioja case, the Court came to the view that the bottling of wine in the region of production was a justified restric- (ii) Carrying out of quality controls in the tion on the free movement of goods since region of production that was the best means of guaranteeing the quality of the bottled wine. It may be evident that the bottling of the wine in the region of production constitutes a commer- cially material characteristic, since con- 87. If this view is followed, it is strictly sumers purchase wine primarily in bottles. speaking superfluous to discuss the carry- In the case of ham, however, the situation is ing out of checks in respect of slicing in different. It is purchased by consumers order to safeguard the quality of Parma either sliced — whether freshly by the ham. If slicing in the region of production is retailer or pre-packaged — or by the piece not a commercially material characteristic,

I - 5146

CONSORZIO DEL PROSCIUTTO DI PARMA AND SALUMIFICIO S. RITA

the fact that checks are carried out there provisions laid down for use of the PDO. It can no longer be a decisive factor. might be relevant in this context too how observance of those provisions can be ensured. At the same time, it should be made clear from the outset that only checks in respect of slicing are at issue here: ham sliced outside the region of production is of course subject, until it is sliced, to exactly the same controls as ham sliced within it.

I-5147

OPINION OF MR ALBER — CASE C-108/01

region of production. However, it has 94. Nor do checks in the region of produc- already been pointed out above that the tion appear necessary from the point of slicing of ham does not appear to be view of labelling. If slicing and packaging comparable with the bottling of wine. can also be checked outside the region of Consumers purchase 'Parma ham' either production, those checks can equally sliced (fresh or pre-packaged) or by the ensure that only ham allowed to bear the piece, whilst, as a rule, they buy wine in PDO 'Parma ham' is being sliced. bottles. If only for that reason, checks in respect of slicing are probably not to be accorded the same status as checks in respect of bottling.

I - 5148

CONSORZIO DEL PROSCIUTTO DI PARMA AND SALUMIFICIO S. RITA

100. It is also to be observed that a broad interpretation of Article 30 EC appears particularly uncalled for when examining

98. The view that regard is not to be had to 28 — See the judgments in Case 113/80 Commission v Ireland structural-policy considerations in order to [19811 ECR 1625, paragraph 7, in Case 95/81 Commis- sion v Italy [1982] ECR 2187, paragraph 20 et seq., and in justify restrictions on the free movement of Pistre, cited in footnote 13, paragraph 52, and the Opinion of Advocate General Jacobs in Case C-312/98 Warsteiner Brauerei [2000] ECR I-9187, paragraph 36. 29 —Judgment in Case C-205/89 Commission v Greece (19911 ECR I-1361, paragraph 9, and Opinion of Advocate 27 — See the findings in Belgium v Spain, cited in footnote 11, General Ruiz-Jarabo Colomer in Case C-358/95 Morellato paragraph 53. [1997] ECR I-1431, point 21.

I - 5149

OPINION OF MR ALBER — CASE C-108/01

I-5150

CONSORZIO DEL PROSCIUTTO DI PARMA AND SALUMIFICIO S. RITA

Member States otherwise than in accord- always favoured the free movement of ance with the purity requirement could also goods, support in any event a narrow be sold in Germany under the designation interpretation of the exceptions justified 'beer'. Initially the German breweries tried under Article 30 EC. 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 instance by including the words 'brewed in accordance with the German purity 104. Consequently, in the context of the requirement' on the label. In the meantime specification to be submitted under Article 4 'Bayerisches Bier' (Bavarian beer) was of Regulation No 2081/92 with an appli- entered in the register kept by the Com- cation for registration, only those provi- mission as a protected geographical indi- sions which are indispensable for guaran- cation under the procedure laid down in teeing the provenance and particular char- Article 17 of Regulation No 2081/92. 36 If acteristics of the product are to be the Court therefore acts in a generous accepted, and not also those provisions manner in the context of the recognition which are exclusively designed to grant the of industrial property rights and allows local undertakings resident in the region of provisions which objectively are not essen- production an exclusive right to the further tial in order to protect the origin of a processing of the product. product in a certain area and its particular characteristics, it runs the risk of again losing, within the framework of Article 29 EC, the freedom of movement of goods and opening up of national markets achieved in the course of interpreting Article 28 EC. 105. It must therefore be stated in con- clusion that the structural-policy objectives in the field of agricultural policy pursued by means of Regulation No 2081/92 are likewise not capable of justifying under Article 30 EC the restriction on exports which has been found.

are those which are necessary and required Britain' or in a similar non-discriminatory in order to protect the reputation of the manner. PDO, that is to say which are proportion- ate. 37 In case the foregoing analysis is not followed and the restriction is regarded as justified under Article 30 EC, it is therefore necessary to discuss in addition to what extent the restriction is proportionate. 109. In the Rioja case, the Court did not pursue the solution called to mind here. It argued that the coexistence of two different bottling processes, inside or outside the region of production, with or without systematic monitoring by the group of producers, might reduce the degree of 107. The requirement to slice Parma ham consumer confidence in the designation in the region of production can ensure, in 'denominación de origen calificada' based particular having regard to the quality on the conviction that the production of controls undertaken by the Consorzio, that quality wines produced in specified regions the sliced ham consists only of Parma ham, must at every stage be carried out under the comes from the region of production and is control and responsibility of the relevant sliced, packaged and labelled in accordance group of producers. 38 with the rules laid down for using the PDO 'Prosciutto di Parma'. However, it is ques- tionable whether those rules are the least restrictive means of achieving the objective of fair trade and of consumer information as to the provenance and particular char- acteristics of the product or whether other means having less effect on the free move- 110. The present case seems to be only ment of goods are available which achieve partially comparable. First, as already that objective equally well. stated, the slicing of ham out of view 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 arguments to the effect that consumers might not be able to distinguish between 'Prosciutto di Par- ma' sliced inside and outside the region of 108. Above all, appropriate product label- production or that there cannot possibly be ling must be considered. In the present case, two different markets, one for 'Prosciutto a possibility is to label the goods di Parma' sliced in the region of production as 'Prosciutto di Parma, sliced in Great and one for 'Prosciutto di Parma' sliced outside it.

111. Nor is it in any way evident that any the PDO 'Prosciutto di Parma' just as well adverse appraisal of 'Prosciutto di Parma' as the restriction of the use of the PDO to sliced outside the region of production ham sliced and packaged in the region of would necessarily be passed on to the production. For the reasons given above, ham sliced inside it. Especially if provision slicing in front of the consumer can hardly is made here for appropriate labelling ensure anyway that he is informed of the which distinguishes the two products from ham's provenance. Furthermore, here too each other sufficiently clearly, mature and there is no longer any guarantee that the well-informed consumers, who are to be ham is sliced in accordance with the Con- presumed not only in the context of sorzio's rules and thereby acquires any Article 28 EC 39 but also that of Article 29 particular characteristics or retains the EC, could also become entirely convinced particular characteristics acquired by it that ham sliced in the Parma area differs when it was produced. from ham sliced outside that area. Two different forms of marketing Parma ham are involved. If the consumer comes to the conclusion that the ham sliced outside the region of production does not satisfy his requirements as regards 'Prosciutto di Parma', he can purchase 'Prosciutto di Parma' sliced in the region of production 113. The solution indicated here involving instead. It is in no way established that if appropriate product labelling also finds one of the forms of the product does not support in Regulation No 2081/92. The appeal to the consumer he will immediately fifth recital in the preamble to that regu- choose a different type of sliced ham. lation expressly points out that the rules concerning protected designations of origin and protected geographical indications merely supplement the general labelling provisions. They merely supplement the p r o v i s i o n s of Council D i r e c t i v e 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer. 40

117. Asda and Hygrade complain that the specification is not accessible because it has 115. It must therefore be concluded that not been published in the Official Journal less restrictive means exist than limiting use of the European Communities and they of the PDO 'Prosciutto di Parma' to Parma have no right against the Commission or ham sliced and packaged in the region of the Consorzio to access to it. production. Equally effective protection of the PDO 'Prosciutto di Parma', of the quality of the product and of its reputation with consumers can be achieved by label- ling it appropriately. The specification therefore goes beyond what is necessary and is disproportionate in that respect. 118. It is a fundamental principle of the Community legal order that a measure adopted by the public authorities cannot be applicable to those concerned before they have had the opportunity to make themselves acquainted with it. 41 Articles 8 and 13 of Regulation No 2081/92 in conjunction with Regulation No 1107/96 establish a Community law prohibition on (5) Compatibility of the measure with the placing on the market under the PDO principles of transparency and legal cer- 'Prosciutto di Parma' ham which has not tainty been sliced, packaged and labelled in the region of production. However, that pro-

41 — Judgment in Case 98/78 Racke [1979] ECR 69, paragraph 15; judgment in Case 99/78 Decker [1979] ECR 101, paragraph 3. See also the observations of Advocate 116. In the main proceedings it is in ques- General Geelhoed in his Opinion in Case C-228/99 Silos tion whether the slicing and packaging e Mangimi Martini [2001] ECR I-8401, at point 39.

120. Nor does the fact, relied on by the Commission, that in the normal procedure 122. Registration concludes an adminis- under Articles 5, 6 and 7 of Regulation trative procedure which begins with the No 2081/92 the specification is equally submission to the relevant Member State of published in the Official Journal in sum- the application, including the specification mary form only appear capable of dispel- to be lodged therewith. As the Court found ling the concerns put forward by Asda and in its judgment in Carl Kühne, under the Hygrade. Under the normal procedure the division of powers laid down by Regulation national provisions to be observed are none No 2081/92 it is for the Member States to the less indicated. In the case of the PDO examine the material preconditions for 'Parma ham', where the restriction at issue registration of a PDO or PGI. It is accord- is also embodied in national provisions, ingly also for the national courts to decide that indisputably did not occur. whether the substantive preconditions for

I - 5155

OPINION OF MR ALBER — CASE C-108/01

123. In the light of that case-law, the 125. Community law indeed ensures some question can be raised of whether pub- publicity for the specification. In accord- lication at Community level is still necess- ance with the 12th recital in the preamble ary at all. The registration procedure under to Regulation No 2081/92, entry in the Regulation No 2081/92 is a procedure register of protected designations of origin which requires the participation of both and protected geographical indications national and Community authorities. Since kept by the Commission serves to provide the Member States are to examine whether information to those involved in the trade. the preconditions for registration are met Interested businesses such as Asda and and objections as to legality are to be raised Hygrade can see first of all from that entry at national level, publication of the specifi- that there is a PDO 'Prosciutto di Parma'. cation at Community level does not seem absolutely necessary.

126. In addition, it is apparent from 124. It is, however, to be taken into Article 4 of Regulation No 2081/92 that a account that entry in the register of pro- specification is to be annexed to the tected designations of origin meant that the application for registration of a PDO or PGI. It is clear, furthermore, from Article 6 of the regulation that the application is to 42 — Carl Kühne, cited in footnote 14, paragraphs 52 and 57 et be sent to the Commission and that the seq. Commission keeps the register of PDOs 43 — See paragraph 20 of the judgment. 44 — Paragraph 52 of the judgment. and PGIs. Businesses therefore know not

127. In accordance with case-law, a person who has learnt of the existence of a legal measure which was not notified to him is obliged to obtain the full text of the legal 129. The fact that the register is kept by the measure affecting him from the relevant Commission and serves to provide infor- institution. 45 This also applies where a mation to those involved in the trade and summary of the legal measure in question that the Commission receives the appli- has been published. 46 That case-law clearly cation for registration together with the proceeds on the basis that there is, along- specification via the competent Member side the duty to notify under Article 254 State provides justification, arguing from EC, in addition an obligation on citizens of the converse, for the assumption that the the Union to inform themselves where Commission is obliged to make the specifi- appropriate. cation held by it accessible to interested persons involved in the trade. It performs with regard to the basic elements of the registration the function as it were of a notary or depositary with whom the docu- ments which have led to the registration are deposited. That assumption appears to be 128. An economic operator is informed by necessary not only for reasons of legal publication of Regulation No 1107/96 that certainty but also in particular in the light the PDO 'Parma ham' exists. It knows on of Article 255 EC which grants citizens of the basis of Regulation No 2081/92, which the Union a right of access to the Commis- was published, that registration occurs only sion's documents. In addition, regard is to if there is a corresponding specification. It be had to the third paragraph of Article 21 also knows that applications for regis- EC. It too entitles every citizen to write to tration are to be sent via the Member State the Commission and seek information. to the Commission and that the Commis- sion keeps the register of protected desig- nations of origin. It accordingly knows where it can inform itself about the spec- ification. On the basis of the case-law cited, it may therefore be assumed that where the

entry in the register of protected desig- publication of the specification in the nations of origin. Since the protective effect Official Journal does not infringe the of registration conferred by Articles 8 and principles of transparency and legal cer- 13 of Regulation No 2081/92 also relates tainty. A business must inform itself about to the conditions for use of the PDO or PGI the specification and the conditions con- which are contained in the specification, tained in it for use of a PDO by making a the Commission may be considered to have request to the Commission. taken on the provisions in the specification. Finally the Commission is the author of the legal measure, Regulation No 1107/96, by which the PDO 'Parma ham' is protected under Community law to the extent defined by the specification. It is therefore either to be regarded as author or at any rate to be equated to the drafter. (b) Existence of the specification in only one official language

I-5158

CONSORZIO DEL PROSCIUTTO DI PARMA AND SALUMIFICIO S. RITA

tongue, at least in so far as it is one of the 137. It could be argued to the same effect official languages of the Community, is a by referring to the third paragraph of fundamental question. Article 290 EC does Article 21 EC. Under that provision, every not settle the language question but leaves citizen may write to the Commission and it to the Council to settle. A right cannot at expect an answer from it in the official any rate be derived from that provision language chosen for the request. If Asda whereby all Community law measures must and Hygrade therefore write to the Com- necessarily be available in every official mission in English in accordance with the language. 48 solution proposed above and seek infor- mation on the specification, the view could be taken, referring to that provision, that the Commission must produce the specifi- cation in English.

I-5159

OPINION OF MR ALBER — CASE C-108/01

140. Against that background, it does not translation is required.51 Here too, docu- seem unreasonable to expect a person who ments upon which the Commission bases seeks information from the Commission on its decision are involved. It could be argued a specification to receive the specification in a similar fashion that, when the Com- in the official language in which it was mission decides on the registration of a submitted to the Commission with the designation of origin, it relies on the details application for registration. in the application for registration and particularly in the specification and that the specification is therefore also to be made available only in the original lan- guage.

I - 5160

CONSORZIO DEL PROSCIUTTO DI PARMA AND SALUMIFICIO S. RITA

tures of the procedure under Article 17 of the specification that the PDO 'Parma ham' Regulation No 2081/92. may be used for sliced ham only if it is sliced, packaged and labelled in the region of production under the supervision of the Consorzio del Prosciutto di Parma is a measure having an equivalent effect to a 145. It is therefore to be concluded that the quantitative restriction on exports within registration of the PDO 'Parma ham' is also the meaning of Article 29 EC. The measure consistent with the principles of legal is not justified on grounds of protection of certainty and transparency. industrial and commercial property within the meaning of Article 30 EC. Nor can it be accepted as justified under Article 30 on the basis of structural-policy considerations. Moreover, it is disproportionate. Regu- lation No 1107/96 is therefore to be VI — Summary declared invalid in so far as it reserves the protected designation of origin 'Prosciutto di Parma' for sliced ham which is sliced, packaged and labelled in the region of 146. It can thus be stated by way of production under the supervision of the summary that the condition contained in Consorzio del Prosciutto di Parma.

VII — Conclusion

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

(1) Council Regulation (EEC) No 2081/92 read with Commission Regulation (EC) No 1107/96 and the specification for the protected designation of origin