Press and Information Division
PRESS RELEASE No 100/03
Judgment in Case C-216/01
Budjovický Budvar, národní podnik v Rudolph Ammersin GmbH
THE ABSOLUTE PROTECTION WHICH THE AUSTRO-CZECH BILATERAL CONVENTION ACCORDS TO THE NAME "BUD" FOR BEER PRODUCED AND EXPORTED BY THE CZECH BREWERY IS SUBJECT TO THE CONDITION THAT IT DIRECTLY OR INDIRECTLY DESIGNATES A REGION OR A PLACE IN THE CZECH REPUBLIC
If the bilateral convention predates the accession of the Republic of Austria to the European Union, the obligations under that convention remain binding even if they are contrary to provisions of the Community treaty
In 1999 the Budjovický Budvar brewery requested the Austrian courts to prohibit the
Austrian company Ammersin from marketing beer produced by the brewery Anheuser-Busch Inc, established
in St Louis (United States of America), under the name "American Bud", inter
alia on the ground that under the bilateral convention between Austria and the
Czech Republic, the name "Bud" is reserved for Czech beer.
The Vienna Handelsgericht (Austria) asked the Court of Justice whether Regulation No 2081/92
on the protection of geographical indications and designations of origin for agricultural products
and foodstuffs or the provisions of the EC Treaty relating to the free
movement of goods preclude the application of a provision of a bilateral convention
between a Member State (the Republic of Austria) and a non-member country (the
Czech Republic), under which an indication such as "Bud" is accorded protection irrespective
of whether there is any risk of consumers being misled, and the import
of a product lawfully marketed in another Member State may thus be prevented.
The Court held that Regulation No 2081/92 does not preclude a bilateral convention
under which a simple and indirect indication of origin from a non-member country
is accorded protection in a Member State, irrespective of whether there is any
risk of consumers being misled, and the import into that Member State of
a product lawfully marketed in another Member State may be prevented. A simple
and indirect geographical indication of origin means that there is no direct link
between a particular quality and the specific geographic origin of the product but
the name, while not in itself a geographic name, is nevertheless capable of
informing the consumer that the product comes from a particular place, region or
On the other hand, prohibition of the use of such a geographic name
for goods from non-member countries which are lawfully marketed in other Member States
is likely to make their marketing more difficult and thus to constitute a
restriction on the free movement of goods. It was necessary to examine whether
that restriction on the free movement of goods could, however, be justified under
In line with its case-law, the Court found that the aim of the bilateral convention, which contains a prohibition on the use in one State of a geographic name protected in another State, is to ensure fair competition. It therefore falls within the sphere of the protection of industrial and commercial property provided that the name in question has not, either at the time of the entry into force of that convention or subsequently, become generic in the State of origin.
If the findings of the national court show that, in fact, according to
the prevailing perceptions in the Czech Republic the name "Bud" designates a region
or a place in the Czech Republic and must be protected under the
scheme of protection for industrial and commercial property, Community law does not preclude
such protection from being extended to the territory of Austria. On the other
hand, if "Bud" does not either directly or indirectly designate any part of
the territory of the Czech Republic, its absolute protection constitutes an obstacle to
the free movement of goods and cannot be justified.
Finally, as regards Austria's international obligations, the Court stated that it is for
the national court to check whether at the date of the accession of
the Republic of Austria to the European Union (1 January 1995), that State
remained bound to the Czech Republic under the bilateral convention of 1976, notwithstanding
the break-up of Czechoslovakia the contracting party to the bilateral convention and the
predecessor to the Czech Republic on 1 January 1993: if that were the
case, the bilateral convention could be regarded as predating that accession, with the
result that the obligations under the bilateral convention remain binding even where they
are contrary to the provisions of the Treaty relating to the free movement
of goods. Pending the elimination of any incompatibilities between a bilateral convention predating
accession to the European Union and the Community Treaty, the national courts may
continue to apply the provisions of the bilateral convention.
N.B. Another case between the Budjovický Budvar and Anheuser-Busch Inc breweries is currently
pending before the Court. That case (C-245/02) was referred by the Supreme Court
of Finland and the written procedure has now closed.
Unofficial document, for media use only, which does not bind the Court of Justice
Available languages: DE, FR, EN, ES, IT, NL
The full text of the judgment can be found on the internet (www.curia.eu.int ).
In principle it will be available from midday CET on the day of delivery.
For additional information please contact Christopher Fretwell
Tel: (00352) 4303 3355 Fax: (00352) 4303 2731