C-6/02

2. Article 2(2)(b) of Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and and

1 — Original language: French. 2 — OJ 1992 L 208, p. 1.

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— which possesses a specific B — The relevant national provisions quality, reputation or other characteristics attributable to that geographical origin and the production and/or process- ing and/or preparation of which take place in the defined 5. Following the entry into force of Regu- geographical area.' lation No 2081/92, the French Republic adopted Law No 94-2 of 3 January 1994 on the recognition of the quality of agri- cultural products and foodstuffs (JORF of 3 January 1994, p. 131; hereinafter 'the Law'). Article L.115-23-1 of the Law provides:

3. A protected geographical indication (hereinafter 'PGI') is recognised at the end of the procedure provided for in Articles 5 to 7 of Regulation No 2081/92, by the 'The principle prohibiting the mention of a adoption of a registration ruling by the geographical indication, which is not regis- Commission. tered as a protected geographical indi- cation, on a label or certification of con- formity is laid down in Article L. 643-4 of the Rural Code (Code Rural) as follows:

tification of conformity may contain that 7. The Commission found that a substan- indication, including in the specific char- tial number of French quality designations acteristics, until the date of the decision on were reserved to products or foodstuffs its registration. originating in specific French regions only and, in those circumstances, sent a letter of formal notice to the French Government on 16 December 1997. The Commission stated that the labels in issue infringed Article 28 EC, inasmuch as their use was reserved to products made in specific geographical areas, excluding products from other Member States which fulfilled the objective criteria under the labels' specifications, and inasmuch as the desig- nations in question, through their wording, Agricultural products and foodstuffs which rendered illusory any potential access qualified, prior to the publication of Law which the products of other Member States No 94-2 of 3 January 1994 on the recog- might enjoy. In the Commission's view, nition of quality of agricultural products reserving quality designations, in this way, and foodstuffs, for an agricultural label or to products originating in a specific geo- certification of conformity may continue to graphical area cannot be justified under bear a geographical indication of origin Article 30 EC and the protection of indus- without being entitled to a protected geo- trial property. The Commission pointed graphical indication, for a period of eight out that Regulation No 2081/92 harmon- years from the date of publication of that ised the rules for the protection of a law."' designation including a geographical description, having regard to the products falling within its scope of application.

9. The Commission considered these sub- presentation of its logo in order to clarify missions and, by letter of 28 April 1999, the body's functions for the consumer. sent a reasoned opinion stating that by maintaining the national legal protection afforded to the designations in issue, the French Republic had failed to fulfil its 11. By letter of 5 December 2001, the obligations under Article 30 of the EC French authorities transmitted a mem- Treaty (now, after amendment, Article 28 orandum to the Commission, along with EC) and, in providing on the labelling of annexes, in response to the part of the quality designations the wording 'Contrôlé reasoned opinion concerning the addition par qualité-France', the French Republic of the wording relating to the certification had failed to fulfil its obligations under body Qualité-France. The French auth- Article 2(1) of Council Directive orities, in this memorandum, informed the 79/112/EEC of 18 December 1978 on the Commission that measures had been taken approximation of the laws of the Member by the certification body so that the name States relating to the labelling, presentation 'Qualité-France' would only be cited as the and advertising of foodstuffs for sale to the granter of the certification, followed by its ultimate consumer. 3 In that letter, the address. Commission called on the French Republic to adopt the measures necessary to comply with the reasoned opinion within two months of the date of its notification. 12. Further to that memorandum, the Commission withdrew the ground for com- plaint relating to the infringement of Article 2(1) of Directive 79/112. On the other hand, the Commission remained of the view that, as concerned the regional labels, the French Republic had not com- plied with the requests set down in the reasoned opinion. The Commission there- fore decided to bring the present action.

the designations 'Salaisons d'Au- particularly to the provisions of Regulation vergne', 'Label régional Savoie', 'Label No 2081/92. In this respect, the Commis- régional Franche-Comté', 'Label sion cites the Court's judgments of 7 May régional Corse', 'Label régional Midi- 1997, 4 10 November 1992, 5 and Pyrénées', 'Label régional Normandie', 12 October 1978. 6 'Label régional Nord-Pas-de-Calais', 'Label régional Ardennes de France', 'Label régional Limousin', 'Label régional Languedoc-Roussillon' and 'Label régional Lorraine', the French Republic has failed to fulfil its obli- gations under Article 28 EC; 16. As concerns the designation 'Salaisons d'Auvergne', the Commission points out that the French authorities had stated that this label was to be the subject of an application for registration as a PGI under Article 5 of Regulation No 2081/92. The — order the French Republic to pay the Commission doubts however that such a costs. label can be registered as such in so far as Regulation No 2081/92 provides for the registration only of a specific product or foodstuff, and not of a category of products such as those covered by the term 'salai- sons'. In any event, in the absence of an 14. The French Republic does not contest application for registration of the desig- that its national law was not in compliance nation 'Salaisons d'Auvergne', the French with Community law but calls on the Court authorities cannot validly rely on to take account of the development which Article 5(5) of the said regulation, which has taken place in the relevant law and, would afford them the possibility of pro- consequently, to consider that this has put tecting the designation 'Salaisons d'Auverg- an end to the infringement of the Treaty. ne' for a transitional period and at national level, pending a Community decision on its registration. The label must therefore be assessed in the light of Articles 28 EC and 30 EC.

Article L.115-23-1 of the Law states that informing the consumer that the product 'the label... shall not contain any geo- bearing them comes from a specific region, graphical indication not registered as a by providing information to him on the protected geographical indication', it source of agricultural products or food- nevertheless establishes a transitional stuffs. None the less, after the entry into period of eight years from the date of force of Regulation No 2081/92, the pur- publication of the Law, during which pose of which is precisely to define, exclus- 'products and foodstuffs which qualified, ively, the conditions under which a desig- prior to the publication of [that law], for a nation establishing a link between agricul- label... may continue to bear a [reserved] tural products or foodstuffs and a specific geographical indication of origin without geographical origin may be protected, the being entitled to a protected geographical protection of designations of origin and indication'. The Commission submits that geographical indications can, henceforth, it is aware of the potential technical be carried out only in the circumstances difficulties which might be faced by econ- outlined by the regulation. omic operators and the competent regional authorities in connection with the reform of the rules relating to the labels. However, the Commission cannot allow an eight year transitional period, which constitutes an infringement of Articles 28 EC and 30 EC. 20. The Commission considers that, out- side the material scope of Regulation No 2081/92, the concept of 'indication of provenance' approved by the Court may justify an obstacle to the principle of the free movement of goods only if it serves to 18. The Commission is of the view that the protect the significant reputation acquired French provisions which establish the des- amongst consumers by a product or a ignation 'Salaisons d'Auvergne' and the particular foodstuff originating in a certain regional labels may affect the free move- region. The designation 'Salaisons d'Au- ment of goods between Member States, vergne' and the French regional labels do particularly inasmuch as those provisions not constitute 'indications of provenance' favour the marketing of goods of national within the meaning of the Court's case-law, origin to the disadvantage of imported inasmuch as they are attached not to a goods. The application of those provisions product or a particular foodstuff, but to creates and maintains, in itself, discrimi- groups of products the special reputation of nation between those two categories of which is, however, neither asserted nor goods. established.

23. In respect of the 'Savoie' regional label, the French Government points out that the designations 'tomme de Savoie', 'emmental de Savoie' and 'pommes et poires de Savoie' 26. The French Government explains, as to were registered as PGI by Commission the 'Midi-Pyrénées' regional label, that the Regulation (EC) No 1107/96 of 12 June only products concerned are 'produits de palmipèdes gras'. A decree repealing the 1996 on the registration of geographical provisions on force-fed duck products is indications and designations of origin currently being drafted. under the procedure laid down in Article 17 of Regulation No 2081/92 7 and that the designations 'jambon de Savoie' and 'saucisson sec de Savoie' are the subject of two applications, currently under way, for PGI registration. Finally, the designations 'Jésus, rosette', 'pur jus de 27. As for the 'Normandie' regional label, pomme de Savoie' and 'plants de vigne de the French Government observes that the Savoie' are to be abolished by a decree in specifications of the products concerned the process of being drafted. were subject to a series of assessments, and

7 — OJ 1996 L 148, p. 1. 8 — JORF of 30 December 2000, p. 20944.

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have been approved as PGI or as agricul- being drafted in order to repeal the provi- tural labels without a geographical indi- sions relating to the other designations, cation, so that making national law con- namely 'saucisson sec', 'fromage de sistent with Community law does not Rocroi', 'galette au sucre', 'gâteau mollet' require the repeal of any text. and 'cidre'.

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33. The Commission, in its reply, takes — as for the 'Savoie' regional label, it formal note that the French Government abolishes the designations 'Jésus, concedes that the designation 'Salaisons rosette', 'pur jus de pomme de Savoie' d'Auvergne' is not compatible with Com- and 'plants de vigne de Savoie'; munity law and that the government there- fore acknowledges its failure to fulfil its obligations under Article 28 EC. As for the other regional labels, the Commission notes that the French Government, as of the date of its written pleadings, acknowledges that — as regards the 'Franche-Comté' it has continued to fail to fulfil its obli- regional label, the indication 'morbier gations under Article 28 EC by maintaining au lait cru' no longer appears on the list the legal protection afforded to those of protected labels; designations.

— it abolishes the 'Midi-Pyrénées' regional label; 34. The French Government, in its rejoinder, states that after adoption of a new domestic legal framework, the relevant labels and designations are as follows:

— concerning the 'Nord-Pas-de-Calais' regional label, only those products for which an application for PGI regis- tration is underway remain on the list of protected products; The Decree of 12 August 2002 of the Minister for Agriculture, Food, Fisheries and Rural Affairs and of the Secretary of State for Small and Medium-Sized Enter- prises, Trade, Craft Industries, Liberal Professions and Consumer Affairs, amend- — as concerns the 'Ardennes de France' ing decrees relating to regional labels regional label, the provisions on the (JORF of 11 September 2002, p. 15051), designations 'saucisson sec', 'fromage brings about the following amendments: de Rocroi', 'galette au sucre', 'gâteau mollet' and 'cidre' are repealed.

42. Since the infringement asserted by the Commission has thus been made out, it V — Assessment must be granted the form of order sought.

38. It is for the Commission to check whether the provisions of those decrees have made French legislation consistent 11 — Case C-352/01 Commission v Spain [2002] ECR I-10263, paragraph 6. with Community law. 12 — The Court refers, in particular, to Case C-147/00 Com- mission v France [2001] ECR I-2387, paragraph 26. 13 — Cited above in footnote 11, paragraph 8. 10 — JORF of 11 September 2002, p. 15051. 14 — The Court refers, in particular, to Case C-276/98 Com- mission v Portugal [2001] ECR I-1699, paragraph 20.

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VI — Conclusion

43. In view of the foregoing, I suggest that the Court: