OPINION OF ADVOCATE GENERAL
RUIZ-JARABO COLOMER
delivered on 10 May 2005 (1)
Joined Cases C-465/02 and C-466/02
Federal Republic of Germany
and
Kingdom of Denmark
v
Commission of the European Communities
Table of contents
I – Introduction
II – The legal framework: Community protection of geographical indications and designations of origin
A – Background
B – First steps in Community legislation
C – Current Community legislation
1. Vine products
2. Agricultural products and foodstuffs
D – The basic regulation
1. The concepts of designation of origin and geographical indication
a) Basic definition
i) The geographical link
ii) The qualitative link
b) Equivalent concepts
i) Traditional names
ii) Other geographical designations
2. Unregistrable names
a) Generic names
b) Names which are likely to mislead
3. The registration procedure
a) The ordinary procedure
b) The simplified procedure
c) The Scientific Committee
E – Regulation No 1107/96
III – Analysis of the case-law of the Court
A – Classification as industrial and commercial property rights
B – Aim of the protection
C – The basic regulation
1. Scope
2. Extent of the protection
3. Registration and its effects
4. Conclusion
IV – Facts giving rise to the proceedings
A – The first inclusion of ‘feta’ in Regulation No 1107/96
B – The ‘Feta’ judgment
C – The second inclusion of ‘feta’ in Regulation No 1107/96 pursuant to Regulation No 1829/2002
D – Canadane Cheese Trading and Kouri
V – The actions for annulment
A – Admissibility of the actions for annulment
B – Procedural pleas in law
1. Infringement of the time-limits and the rules on the use of languages
2. Insufficient statement of reasons
C – Substantive pleas in law
1. ‘Feta’ as a generic name
a) The meaning of ‘generic’
b) Criteria for delimitation
i) The situation in the Member State in which the name originates and in areas of consumption
– The situation in the State of origin
– The situation in areas of consumption
ii) The situation in other Member States
– The general situation in other States
– The situation in States which produce the cheese
iii) The relevant national and Community legislation
– Legislation of the Member States
– The Community legislation
iv) Other factors
– The situation in non-member countries
– The temporal situation
c) Analysis of the criteria and effects
2. ‘Feta’ as a traditional name
a) The traditional nature of the name
b) The name of a food originating in certain geographical areas
c) The reason for the quality and characteristics of feta and the geographical delimitation of its production, processing and preparation
i) Quality attributable to the geographical environment
ii) Production, processing and preparation in a defined area
d) Effects
VI – Costs
VII – Conclusion
(Agriculture – Geographical indications and designations of origin for agricultural products and foodstuffs – The name ‘feta’ – Generic names – Traditional names – Validity of Regulation (EC) No 1829/2002)
I – Introduction
1. In this action for annulment, the Court is once again seised of a dispute concerning the lawfulness of the inclusion of the name ‘feta’ in the European Community register of geographical indications and designations of origin.
2. The issue previously arose in questions referred for a preliminary ruling, and later withdrawn, by the Simvoulio tis Epikratias (Greek Council of State), in which connection I delivered an Opinion on 24 June 1997, (2) and in another action for annulment (3) where the Court ruled that the registration was to be annulled on procedural grounds but did not examine whether the name is generic or whether it may be classed as traditional for the purposes of the applicable legislation.
3. Subsequently, the Commission took a number of steps designed to rectify the shortcomings which had been brought to light in the judgment and reinserted the name ‘feta’ into the list of protected designations by means of Commission Regulation (EC) No 1829/2002, (4) a measure whose annulment is sought by Germany and Denmark.
4. In this Opinion, I shall analyse the legal framework and the relevant case-law of the Court, before setting out the facts giving rise to the proceedings and examining the pleas for annulment.
II – The legal framework: Community protection of geographical indications and designations of origin
A – Background
5. The first reference to a designation of origin can be found in the Bible where it describes the construction of the temple of Jerusalem, promised to Yahveh by King David. For that purpose, Hiram, King of Tyre and Sidon, cut down cedars from Lebanon at the request of Solomon, whose palace was later built using so many of those cedars that it was known as the House of the Forest of Lebanon because it had four rows of columns made from the prized wood. The same wood was used to panel the throne room, ‘where he administered justice, the Hall of Judgment’. (5) In addition to names and symbols, a reference to geographical origin was probably one of the first methods of identifying individuals and objects in order to distinguish them from their peers. (6) A number of accounts demonstrate that, since antiquity, products originating in certain areas have been associated with standing and prestige. Classical authors, such as Herodotus, Aristotle and Plato, bear witness to the Greeks’ appreciation of bronze from Corinth, marble from Phrygia and Paros, pottery from Athens, terracotta statuettes from Thisbe, perfumes from Arabia and wines from Naxos, Rhodes and Corinth. (7) In The Aeneid, Virgil tells how Helen gave Aeneas gifts of ‘objects made of solid gold and carved ivory, large quantities of silver and copper vessels from Dodona’, (8) and includes among the gifts from Andromache to Ascanius ‘garments with designs embroidered in gold thread and a Phrygian chlamys’. (9) Horace peppered his work with a whole array of Roman geographical indications and warned against imitations. (10)
6. The link between products and their origin did not distinguish between naturally occurring and man-made objects and did not correspond to a precise definition. Nor was the link covered by any legal provisions. (11)
7. It was the same in the Middle Ages; for example, an extract from Alcius refers to Calcide swords with short blades and long hilts, so-called because of the place they were made. (12) At that time there appears to have been some confusion between craftsmen’s marks and marks indicating the place of origin of a product, which came about in response to the obligation of guild members to identify their products or be excluded from the guild. Consequently, two types of marks emerged: the mark of the guild (signum collegii) and each craftsman’s own mark (signum privati). (13) There was therefore a guarantee that certain requirements had been satisfied in the production of the goods, which in turn indirectly safeguarded the place of production.
8. The French Revolution brought about the abolition of guilds and the restoration of full trade freedom, by eradicating most protectionist practices. Not all were eliminated, however, since, in the first half of the 19th century, there still existed rules designed to promote specialities of certain areas, such as soap from Marseille, steel from Westphalia and the Rhineland, and forges from Austria. (14)
9. At that time, a number of countries started to take measures to prevent consumers being misled as to the origin of natural and manufactured products, particularly in the wine sector. (15) An attempt was made to protect the consumer by guaranteeing the authenticity of the product, and to protect the producer against illegal imitations. (16) Subsequently, a system of protection was implemented which was similar to the one for signs identifying goods and under which designations of origin were recognised in their own right.
10. Meanwhile, numerous references to the origin of certain products continued to flourish in European literature and culture, thereby drawing attention to the recognised quality or the specific characteristics of those products. In Don Quixote, Cervantes refers to spindles from Guadarrama; (17) to certain foodstuffs, such as chickpeas from Martos, (18) francolins from Milan, pheasants from Rome, veal from Sorrento, partridges from Morón, and geese from Lavajos; (19) to Neapolitan soap; (20) and to certain types of fabric, such as woollen cloth from Cuenca and límiste from Segovia. (21) Lope de Vega praises a French long cloak (22) and mentions palmilla cloth from Cuenca (23) and plates from Talavera; (24) in Hamlet, Shakespeare refers to the ‘draughts of Rhenish’ with which the king drinks toasts, (25) and the wager between Claudius and Laertes of six Barbary horses against six French rapiers and poniards; (26) Proust praises a dessert, stating that it would be worth opening bottles of Port, (27) and describes the meeting in the Hotel Balbec between the narrator and the Duchess of Guermantes, who is shrouded in the mist of a grey crêpe de Chine dress; (28) while Carpentier, who faithfully portrays European culture on the American continent, writes about Bordeaux wine, (29) Italian straw hats, (30) French and Italian dolls, and Scotch ‘wisky’. (31)
11. Nowadays, products are distinguished by the fact that they are sold under each producer’s own mark; however, products also frequently bear an indication of the place of manufacture. In a world dominated by symbols, where advances in trade offer numerous alternatives to the consumer, the name of a product has emerged as a decisive factor when it comes to making a choice, hence its economic significance.
B – First steps in Community legislation
12. The EC Treaty contains no provisions governing geographical indications. The historical developments I have described above meant that, when the Treaty was adopted, the legal systems of the Member States protected geographical indications in different ways. While some countries provided general safeguards under measures prohibiting unfair competition, in particular by application of the principle of authenticity, others, such as France and Spain, had implemented specific measures similar to the rules laid down for certain distinguishing features but characterised by the fact that they differentiated between ‘indications of source’ and ‘designations of origin’. (32)
13. The existence of those different systems of protection in the European Union is incompatible with the fundamental freedoms, since the exclusive right to use a name affects the free movement of goods. (33) However, the Treaty recognises that effect since, notwithstanding the fact that Articles 28 and 29 EC prohibit quantitative restrictions on imports and exports and measures having equivalent effect, Article 30 EC lays down that those provisions are not to preclude the setting of limits on the grounds of, inter alia, ‘the protection of industrial and commercial property’. (34) However, the competence of the Member States to set those limits ceases when the Community introduces harmonising measures to guarantee protection. In any event, as I will discuss later, the task of defining the extent to which that right takes precedence over freedom of movement has fallen to the Court.
14. Commission Directive 70/50/EEC of 22 December 1969 on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty (35) provided for the adaptation of the effects of Article 28 EC in this sphere, by referring to measures which confine names which are not indicative of origin or source to domestic products only (Article 2(3)(s)). To put it another way, it follows that measures which fall within either of those categories are not excluded.
15. Subsequently, Council Directive 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 (36) provided that the authorities of each Member State were entitled to prohibit trade in those products on the grounds of the protection of industrial and commercial property rights, indications of source, designations of origin, and the prevention of unfair competition (Article 15(2)).
C – Current Community legislation
16. Initially, Community legislation applied only to the wine sector. Later, the scope of the legislation was extended to the agricultural and food sectors, while in the future it is likely to apply to other sectors, (37) as envisaged in recital 9 of Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (38) (‘the basic regulation’), which restricts the scope of the regulation to products and foodstuffs ‘for which a link between product or foodstuff characteristics and geographical origin exists; … however, this scope could be enlarged to encompass other products or foodstuffs’. (39)
1. Vine products
17. Wines, musts and grape juices were listed in Annex II to the Treaty among the products for which a common agricultural policy was to be drawn up. That was the basis upon which, at a very early stage, Regulation No 24 of the Council of 4 April 1962 on the progressive establishment of a common organisation of the market in wine (40) laid down certain general principles and provided for rules to be drawn up governing quality wines produced in defined regions.
18. More recently, Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine (41) has become the regulatory pillar of the system of rules in the sector, without prejudice to certain specific rules laid down elsewhere. (42)
19. In view of the fact that ‘the description, designation and presentation of products covered by this Regulation can have significant effects on their marketability’, Regulation No 1493/1999 partly deals with the need to ‘provide for the obligatory use of certain terms so as to identify the product and provide consumers with certain important items of information and the optional use of other information on the basis of Community rules or subject to rules concerning the prevention of fraudulent practices’ (recital 50). In accordance with Article 47(1), the objectives of the regulation include the protection of the legitimate interests of consumers (point (a)) and producers (point (b)), the smooth operation of the internal market (point (c)), and the promotion of the production of quality products (point (d)).
20. Furthermore, the system of rules laid down may be supplemented by specific laws adopted by the Member States.
2. Agricultural products and foodstuffs
21. It was not until the beginning of the 1990s that the Community adopted legislation regulating the use of geographical indications for other types of product, in particular agricultural products and foodstuffs. The reason was that, although at the outset Directive 79/112 on labelling appeared to be an adequate and appropriate measure to protect the consumer against the risk of fraud, (43) it subsequently became clear that that was not the case since there were other interests at stake. Directive 79/112 was a useful addition but it did not protect geographical indications or safeguard the consumer effectively. (44)
22. The need to prevent new obstacles to trade and to regulate instruments in order to protect consumers and producers adequately was part of the reason for the creation of a Community policy on quality, (45) aimed at closing the gaps which had been identified and highlighted by the Court. (46)
23. During the debate which followed, a number of suggestions were made including, inter alia, that wide protection should be ensured for terms identifying the places of origin of foodstuffs. (47) The Commission took action in that connection (48) and steps were also taken by the European Parliament. (49)
24. Accordingly, on 14 July 1992, approving the proposal submitted in February 1991, the Council adopted the basic regulation, (50) which lays down essential rules in the field. In contrast to the wine sector, the system was created around the traditional concept of a designation of origin and is supported by compulsory registration, in so far as protection is granted only following entry in a register. (51)
D – The basic regulation
25. The recitals refer to a number of objectives on which the regulation is founded, namely, the diversification of agricultural production, the promotion of products having certain characteristics, and the provision to consumers of clear, reliable information about the origin of their purchases. After acknowledging the successful results achieved by States whose legal systems already protected designations of origin (recital 6) and the diversity existing in the field, the regulation states that ‘a framework of Community rules on protection will permit the development of geographical indications and designations of origin since, by providing a more uniform approach, such a framework will ensure fair competition between the producers of products bearing such indications and enhance the credibility of the products in the consumers’ eyes’ (recital 7).
26. The scope of the protection available is wide, in that, in accordance with Article 13, a registered name precludes: (a) any direct or indirect commercial use in respect of products not covered by the registration; (b) any misuse, imitation or evocation, even if the true origin of the product is indicated; (c) any other false indication as to the provenance, origin, nature or essential qualities of the product; and (d) any other practice liable to mislead the public as to the true origin of the product.
27. In short, as I pointed out in the Opinion in Canadane Cheese Trading and Kouri, ‘[t]he legal protection of a geographical name confers a collective monopoly over its commercial use upon a particular group of producers by reference to their geographical location – in contrast, a trade mark can only be used by the owner’. (52) Such protection entails a reward for the effort invested by the multiple holder of the registered name, who, by manufacturing the product concerned in a particular manner, ensures that the product acquires a reputation worthy of protection under that form of industrial property right. The protection ensures that the holders of the designation do not suffer financial loss and also precludes unjust enrichment on the part of other individuals.
28. However, the progress achieved at international level and the desire to provide a solution similar to the guidelines laid down in national legal systems means that the protection is not confined to traditional designations of origin but that it also extends, albeit to a lesser degree, to geographical indications, two concepts which, in the light of the actions for annulment before the Court, require to be examined in some detail. It is also necessary to deal with unregistrable names and with the registration procedure.
1. The concepts of designation of origin and geographical indication
29. Article 2 of the basic regulation describes what is meant by each term for the purposes of that regulation. Paragraph 2 contains a basic definition which is then expanded in paragraphs 3 and 4.
a) Basic definition
30. In accordance with Article 2(2) of the basic regulation:
(a) A designation of origin means ‘the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff:
– originating in that region, specific place or country, and
– the quality or characteristics of which are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors, and the production, processing and preparation of which take place in the defined geographical area’. (53)
(b) Geographical indication denotes the ‘name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff:
– originating in that region, specific place or country, and
– which possesses a specific quality, 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’.
31. Thus, protection does not extend to all names but only to ones which encompass a dual connection, both spatial and qualitative, between the product, on the one hand, and its appellation, on the other. The qualitative connection also serves to differentiate designations of origin from geographical indications, in that the link with a particular area is not as strong in the latter case. (54)
i) The geographical link
32. Both forms of protection require a direct connection with a place. That aspect of the relationship has no minimum delimitation because the reference to a ‘specific place’ includes the smallest section of that place, such as part of a valley, the side of a mountain, or the bank of a river.
33. However, there is a maximum limit reflected in the word ‘country’, a territorial unit which is protected only in ‘exceptional cases’. In principle, it could be argued that the term denotes States which are small in area. (55) However, if that were the case, the basic regulation would have stated as much, (56) and it would therefore have been possible to protect names covering a wide area, including ones encompassing an entire country, (57) provided that they met the required conditions.
34. Nevertheless, it must be pointed out that a designation of origin is capable of covering an entire country on the grounds that certain national and international provisions do not set any limits at all. (58) However, a number of Community provisions, such as the ones already cited in relation to the wine sector, provide that such a wide definition is exceptional in nature. (59)
35. Unquestionably, a name which encompasses an entire Member State could be classed as protectionist, in so far as the products associated with the name would benefit from the mere fact of its production there. However, the aim of the basic regulation in describing such cases as ‘exceptional’ reflects how infrequently the characteristics of a product have a connection with the natural and human features of a whole country; (60) such a connection is more likely to arise in smaller countries, although that does not preclude its occurrence in other contexts. In that regard, it is appropriate to include, for example, the registration of ‘Svecia’ (61) or that of ‘Salamini italiani alla cacciatora’. (62)
ii) The qualitative link
36. This requirement is designed to ensure that the product possesses a certain quality or attributes which distinguish it from other products of the same type and are due to the particular conditions of the area of origin, such as the climate or the vegetation.
37. However, the specific character of a product is generally derived from more than one factor, and is sometimes a combination of several. The provision refers to ‘natural and human’ factors. (63) Although the use of the conjunction ‘and’ indicates that both factors are required, there is nothing to preclude one factor from usually taking precedence, to the extent that, in most instances, where the particular features of a product are the result of natural circumstances they are protected by a designation of origin, and, where those features are derived essentially from human activity, they are protected by a geographical indication. (64)
b) Equivalent concepts
38. Article 2(3) and (4) of the basic regulation extends the definition of designation of origin to include traditional names and other names with geographical connotations.
i) Traditional names
39. Normally, geographical designations include the name of a city, town, area, or region of reasonable size. However, in trade, other appellations exist that are wider in scope and do not evoke a geographical origin directly and unequivocally, alluding to it indirectly instead. That is the case with traditional names which, while they do not refer to a place directly, are capable of indicating the origin of a product by triggering a process of association with a particular location in the minds of consumers. (65)
40. In accordance with Article 2(3) of the basic regulation, certain traditional geographical or non-geographical names designating an agricultural product or a foodstuff originating in a region or a specific place, which fulfil the conditions referred to in the second indent of paragraph 2(a), are also considered as designations of origin. (66)
41. In such names, which are also permitted in other spheres such as the wine sector, (67) the geographical connection disappears, although the relationship with a specific area, from which certain particular characteristics are derived, is retained as an essential feature. Such cases are unusual (the provision refers to ‘certain’ names) and satisfy the basic elements of the definition into which they are absorbed.
42. Unlike in other spheres, where protection is conferred only on appellations that are specifically mentioned, in this case general protection is afforded to agricultural products and foodstuffs originating in ‘a region or a specific place’, provided that their quality or characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors, and that their production, processing and preparation take place in the defined geographical area.
ii) Other geographical designations
43. Article 2(4) extends the protection where the raw materials of the products concerned come from a geographical area larger than or different from the processing area, provided that the production area of the raw materials is limited, that special conditions for the production of the raw materials exist, and that there are inspection arrangements to ensure that those conditions are adhered to.
44. That case includes situations where a product is identified by a designation of origin but does not actually originate in the place referred to. (68)
2. Unregistrable names
45. Article 3 contains a negative delimitation, in that it precludes the registration of certain names, such as generic names and names which are likely to mislead as to the true origin of the product.
a) Generic names
46. Article 3(1) reflects a traditional prohibition, applied by national administrative authorities and recognised by the Court, (69) which precludes the registration of ‘[n]ames that have become generic’. That provision is supplemented by Article 17(2) which also excludes ‘generic names’, even where such names are protected in the Member States or have been established by usage in Member States where there is no protection system.
47. The prohibition is justified on the ground that such names no longer perform their basic function, in that they have lost the link with the area where they originated and have ceased to identify the product itself as coming from a particular place, with the result that they have become descriptive of a type or kind of product. (70)
48. In view of the difficulties that can result from a prohibition, the basic regulation lays down guidelines for defining the term. First, the regulation provides that ‘[f]or the purposes of this Regulation, a “name that has become generic” means the name of an agricultural product or a foodstuff which, although it relates to the place or the region where this product or foodstuff was originally produced or marketed, has become the common name of an agricultural product or a foodstuff’. Second, the regulation goes on to state that, ‘[t]o establish whether or not a name has become generic, account shall be taken of all factors, in particular:
– the existing situation in the Member State in which the name originates and in areas of consumption,
– the existing situation in other Member States,
– the relevant national or Community laws’.
49. The guidelines do not stop there, since Article 3 also requires the Council, before the entry into force of the basic regulation, to draw up and publish a non-exhaustive, indicative list of the names of agricultural products or foodstuffs which are within the scope of the basic regulation and are regarded under the terms of Article 3(1) as being generic and thus not able to be registered. However, at the time of delivery of this Opinion, that requirement had not been complied with.
b) Names which are likely to mislead
50. Article 3(2) provides that a name may not be registered where it conflicts with the name of ‘a plant variety or an animal breed and as a result is likely to mislead the public as to the true origin of the product’.
3. The registration procedure
51. As with other industrial property rights, the protection of a name identifying an agricultural product or a foodstuff is conditional upon registration, a compulsory procedure that fulfils objectives similar to those of the Community trade mark, (71) but is unlike the procedure in the wine sector.
52. It is clear from Article 17(3) that, since it is the sole system of protection for such names in the Community, the requirement of registration must be met even in respect of names which, before the entry into force of the basic registration, were already protected under national laws or were established by usage in Member States with a different system. Registration may be carried out in accordance with an ordinary procedure or a simplified procedure.
a) The ordinary procedure
53. This procedure consists of two successive phases, the first of which takes place before the national government concerned and the second before the Commission. The second phase consists of verification, any objections, and the decision concerning registration.
54. For the purposes of the present actions for annulment, it is merely necessary to point out that Article 15 of the basic regulation (72) provides for the establishment of a committee (‘the Regulatory Committee’), to which proposals are submitted for an opinion. Two possibilities then arise: if the committee approves it, the proposal is adopted; if there is no approval from the committee, the proposal is submitted forthwith to the Council. The latter option also arises where the committee fails to deliver an opinion, owing, on many occasions, to insufficient votes. If, for any reason, the Council fails to deliver an opinion within three months, ‘the proposed measures shall be adopted by the Commission’.
b) The simplified procedure
55. In addition to the steps described above, Article 17 (which was deleted by Regulation No 692/2003) laid down a simpler procedure to prevent names which were already protected under the legal systems of the Member States from being subject to the same requirements and time-limits as new names.
56. Article 17 set out the following steps: (a) within six months of the entry into force of the regulation, the Member States were required to inform the Commission which of their legally protected names or, in those Member States without a protection system, which of their names established by usage, they wished to register; and (b) in accordance with the procedure in Article 15, the Commission was to register the names which complied with Articles 2 and 4. Article 7 did not apply and the registration of generic names was prohibited. (73)
c) The Scientific Committee
57. Irrespective of which procedure is used, it frequently involves the examination of very technical issues. In order to assist it with such questions, the Commission, by Decision 93/53/EEC of 21 December 1992, (74) set up a scientific committee composed of highly qualified professionals, whose task is to examine the factors to be taken into account when defining indications, designations and exceptions thereto, to examine whether such indications and designations are generic, and to carry out an assessment of the traditional nature of the product concerned and of criteria regarding the risk of misleading consumers in cases of conflict.
E – Regulation No 1107/96
58. Following the notification procedure provided for in Article 17 of the basic regulation, on 12 June 1996 the Commission adopted Regulation (EC) No 1107/96, (75) for the purpose of publishing registrations effected at Community level. Article 1 provides that ‘[t]he names listed in the Annex shall be registered as protected geographical indications (PGI) or protected designations of origin (PDO)’.
59. The Annex has been amended and supplemented many times, usually to include other names. (76) It is the challenge against the inclusion of one such name which has given rise to the present proceedings.
III – Analysis of the case-law of the Court
60. An analysis of the case-law of the Court is particularly important in order to understand more clearly the concepts to be considered, the purpose of the protection conferred and the meaning of the basic regulation.
A – Classification as industrial and commercial property rights
61. In Dassonville, (77) the Court dealt with indications of origin for the first time, albeit as a secondary issue in a reference for a preliminary ruling on the interpretation of the former Articles 30, 31, 32, 33, 36 and 85 of the EEC Treaty, with regard to the requirement in Belgium of an official document issued by the government of the exporting country for products bearing a designation of origin. In addition to defining a measure having equivalent effect (paragraph 5), the Court held that, in the absence of a Community system guaranteeing for consumers the authenticity of a product’s designation of origin, Member States are empowered to adopt reasonable, non-discriminatory, non-restrictive measures to prevent unfair practices (paragraphs 6 and 7).
62. In Sekt-Weinbrand, the Court considered the issue more directly from the point of view of the free movement of goods. In that case, the Commission claimed that Germany was in breach of that freedom by reserving the names ‘Sekt’ and ‘Weinbrand’ to domestic wines and brandies and the name ‘Prädikatsskt’ to Sekt produced in Germany from a minimum proportion of German grapes. The Court took the same view, holding that, although the Treaty does not restrict the power of each Member State to legislate in that regard, it prohibits the introduction of new measures of an arbitrary and unjustified nature whose effects are equivalent to quantitative restrictions, which is precisely the case where the protection provided for indications of origin is granted to other appellations which are not indications of origin, such as names which, at the time, are merely generic in nature.
63. The Court held that the restriction of freedom of movement was justified by the need to protect designations of origin to the extent to which the latter safeguard the interests of producers against unfair competition and the interests of consumers against information which may mislead them (point 7). In Cassis de Dijon, (78) the Court referred again to the ‘fairness of commercial transactions’ and the ‘defence of the consumer’ as justification for the restriction.
64. However, those grounds are not included in the list in Article 30 EC, which cannot be ‘extended to cases other than those specifically laid down’, (79) and must be construed restrictively. (80) As a result, uncertainty arose as to whether Article 30 EC applies to appellations indicating the origin of a product.
65. The majority of academic writers argued that indications of origin should be included in the concept of industrial and commercial property, which is referred to in Article 30 EC. (81) In support of that assertion, those writers cited the Paris Convention for the Protection of Industrial Property of 20 March 1883, (82) Article 1(2) of which refers to ‘indications of source or appellations of origin’ in conjunction with patents and trade marks.
66. In Delhaize et Le Lion, (83) the Court accepted that argument when analysing whether it was permissible to bottle wine away from the place of production, holding that refusal to authorise that practice amounted to a prohibited measure and that such measures are not justified ‘on grounds of the protection of industrial and commercial property within the meaning of Article 36 of the EC Treaty [now, after amendment, Article 30 EC] unless they are needed in order to ensure that the registered designation of origin fulfils its specific function’ (paragraph 16). That approach was followed in Exportur(84) and Belgium v Spain. (85) In the latter, the Court declared that ‘[d]esignations of origin fall within the scope of industrial and commercial property rights. The applicable rules protect those entitled to use them against improper use of those designations by third parties seeking to profit from the reputation which they have acquired. They are intended to guarantee that the product bearing them comes from a specified geographical area and displays certain particular characteristics’ (paragraph 54). The Court took the same view in Ravil(86) and Consorzio del Prosciutto di Parma and Salumificio S. Rita. (87)
B – Aim of the protection
67. The Sekt-Weinbrand judgment drew attention to the fact that the role of designations of origin and geographical indications is to describe and to ensure that the product referred to ‘does in fact possess qualities and characteristics which are due to the fact that it originated in a specific geographical area’ (paragraph 7). That approach took into account the requirement of a dual connection, both spatial and qualitative, (88) enshrined in the basic regulation, which was also held necessary in Delhaize et Le Lion.
68. In Belgium v Spain, the Court stressed the importance of the reputation of designations of origin among consumers, a fact which may be used by producers to attract custom. The Court declared that ‘[t]he reputation of designations of origin depends on their image in the minds of consumers. That image in turn depends essentially on particular characteristics and more generally on the quality of the product. It is on the latter, ultimately, that the product’s reputation is based’ (paragraph 56).
69. The inclusion of designations of origin and geographical indications within the scope of industrial and commercial property rights adds a new dimension to the assets of the holders of such rights, founded on the express or implied reputation of their products, (89) thereby protecting them against infringement by those who seek to use a right which does not have legal protection. In other words, it involves conferring a monopoly of usage. As the Court declared in Keurkoop, (90) the aim of the protection of such rights under Article 30 EC is ‘to define exclusive rights which are characteristic of that property’ (paragraph 14).
70. However, it is made clear in Warsteiner Brauerie(91) and, more explicitly, in CMA, that the safeguarding of so-called simple indications of source is not based on the protection of industrial and commercial property, but rather, where applicable, of the protection of consumers. Paragraph 26 of the judgment in CMA dismisses the argument that ‘the contested scheme is justified by Article 36 of the EC Treaty, as coming within the derogation for the protection of industrial and commercial property in so far as the CMA label constitutes simply a geographical indication of provenance’.
C – The basic regulation
71. The Court has analysed the basic regulation on a number of occasions. A systematic analysis of the case-law, with a view to obtaining an overall impression, reveals that the Court has ruled on the scope of the regulation, the extent of the Community protection, and registration and its effects.
1. Scope
72. In Italy v Commission, (92) an action contesting a regulation concerning marketing standards for olive oil, (93) the Court pointed out that the criteria laid down by the basic regulation ‘refer to specified homogeneous geographical areas and cannot be converted into general rules applicable irrespective of the size and heterogeneity of the areas concerned’, and that there is no ‘general principle that the origin of different agricultural products should be defined in uniform and mandatory terms by reference to the geographical area in which they were grown’ (paragraph 24).
73. Moreover, in accordance with Budéjovický Budvar, (94) application of the basic regulation ‘depends essentially on the nature of the designation, in that it covers only designations of products for which there is a specific link between their characteristics and their geographic origin, and by the fact that the protection conferred extends to the Community’.
74. More specifically, Pistre and Others, a case which arose as a result of a reference for a preliminary ruling from the Cour de cassation, France, concerning the use of the description ‘montagne’ in respect of agricultural products and foodstuffs, made clear the need for a link between the quality and the characteristics of the products concerned, on the one hand, and the physical surroundings, on the other. That link does not arise in the word ‘montagne’ which, moreover, suggests to the consumer qualities with an abstract connection to mountain areas, rather than to a place, a region or a country.
75. In any event, it follows from Pistre and Others that, outside the scope of the basic regulation, Member States retain the power to govern on their territory the use of geographical indications. In Warsteiner Brauerie, the Court upheld the use of that criterion in relation to simple indications, declaring that Community law ‘does not preclude the application of national legislation which prohibits the potentially misleading use of a geographical indication of source in the case of which there is no link between the characteristics of the product and its geographical provenance’ (paragraph 54). In Budéjovický Budvar, the Court once again advocated that approach.
2. Extent of the protection
76. In Consorzio per la tutela del formaggio Gorgonzola, (95) the Court held first of all that, in the present state of Community law, the principle of the free movement of goods does not preclude Member States from taking measures to protect registered designations of origin. The Court went on to state that protection under the basic regulation extends to any evocation (Article 13(1)(b)), even where the true origin is stated, which includes cases where the term used incorporates part of the protected designation, the fact that there is a likelihood of confusion not being the most important factor (paragraphs 25 and 26).
77. It is usual for there to be a number of stages between manufacture and marketing, and accordingly, in Ravil and Consorzio del Prosciutto di Parma and Salumificio S. Rita, the Court ruled on the question whether the grating and packaging of cheese, and the slicing of ham, could be carried out away from the region of production. In both judgments, the Court held that neither the obligation to inform consumers that those operations occurred elsewhere, nor controls carried out away from the region of production are sufficient to ensure fulfilment of the objective pursued by designations of origin. (96)
3. Registration and its effects
78. Chiciak and Fol(97) and Consorzio per la tutela del formaggio Gorgonzola dealt with the compulsory nature of registration. In the latter judgment the Court relied on the former to rule that the protection afforded by a national government after registration by the Commission does not continue, even where that protection is wider than the Community protection (paragraph 18).
79. In Chiciak and Fol, the Court defined the effects of registration, when examining whether it was possible to amend unilaterally a name registered in accordance with the simplified procedure under Article 17 of the basic regulation. The Court rejected that approach and interpreted the provision ‘as meaning that, since its entry into force, a Member State may not, by adopting provisions of national law, alter a designation of origin for which it has requested registration in accordance with Article 17 and protect that designation at national level’ (paragraph 33).
80. As regards the effects of registration, it is also important to mention Bigi. (98) That dispute dealt with the question whether grated cheese could be sold as ‘parmesan’ outside Italy, where the cheese is produced and where use of that name is prohibited, when it did not satisfy the specification for ‘Parmigiano Reggiano’. The reply was very clear: as soon as a Member State applies for registration in accordance with the simplified procedure, products which do not comply with the relevant provisions may not be legally marketed on its territory. Furthermore, once the products have been entered on the register, the system of derogations provided for in Article 13(2) of the basic regulation applies only to goods not originating in the territory of that Member State.
81. On a different level, a challenge to one of the amendments to Regulation No 1107/96, in accordance with which ‘Spreewälder Gurken’ was included as a protected designation of origin, (99) enabled the Court, in Carl Kühne and Others, (100) to address the question of the division of powers between the Member States and the Commission during the registration procedure, outlining the definition of a name ‘established by usage’, as referred to in Article 17 of the basic regulation. With regard to the first aspect, the Court declared that the system of division of powers is attributable particularly to the fact that registration presupposes verification ‘that a certain number of conditions have been met, which requires, to a great extent, detailed knowledge of matters particular to the Member State concerned, matters which the competent authorities of that State are best placed to check’ (paragraph 53), while it is incumbent on the Commission to verify ‘that the specification which accompanies the application complies with Article 4 of Regulation No 2081/92’, that is to say that it contains the required information, that there are no obvious mistakes, and ‘that the designation satisfies the requirements of Article 2(2)(a) or (b)’ of the basic regulation (paragraph 54). With regard to the second point, the Court held that the assessment of whether a term is established by usage is based on the checks made by the competent national authorities, subject to review by the national courts if appropriate, before the application for registration is notified to the Commission (paragraph 60).
4. Conclusion
82. All the aforementioned judgments reflect the trend, fostered by the Community legislation, towards increasing the quality of products within the framework of the common agricultural policy, thereby promoting their reputation. That was specifically pointed out in Ravil and Consorzio del Prosciutto di Parma and Salumificio S. Rita, (101) where designations of origin were described as having a dual aim: to guarantee the source of the designated product and to prevent fraudulent use of the name, while at the same time protecting industrial and commercial property, which, in conjunction with the principle of free movement of goods, is becoming increasingly important.
IV – Facts giving rise to the proceedings
A – The first inclusion of ‘feta’ in Regulation No 1107/96 (102)
83. On 21 January 1994, the Greek authorities applied to the Commission under Article 17(1) of the basic regulation for registration of the word ‘feta’ as a protected designation of origin in respect of a type of cheese. The accompanying file contained information concerning the geographical origin of the raw material used in the manufacture of the product, the natural conditions prevailing in the region where it was produced, the species and breeds of animals from which the milk used was obtained, the qualitative characteristics of that milk, the processes for manufacturing the cheese and its particular features.
84. Attached was Ministerial Order No 313025/1994 of the Ministry of Agriculture of 11 January 1994, (103) pursuant to which the name was protected at national level:
– Under Article 1(1) of the Order, ‘The name “feta” is recognised as a protected designation of origin (PDO) for salted white cheese traditionally produced in Greece, particularly in the regions mentioned in paragraph 2 of this article, from ewes’ milk or a mixture of ewes’ milk and goats’ milk’.
– In accordance with Article 1(2), the milk used for the manufacture of feta must come ‘exclusively from the regions of Macedonia, Thrace, Epirus, Thessaly, Central Greece, Peloponnese and the province (nomos) of Lesbos’.
– The provisions which follow govern the conditions to be met by the milk, the production process, the characteristics of the cheese, in particular its qualitative, organoleptic and taste characteristics, and the specification for the packaging.
– Article 6(2) prohibits the manufacture, import, export, despatch and marketing under the name ‘feta’ of cheese not meeting the foregoing conditions.
85. In view of the need to proceed with extreme caution, the Commission arranged in 1994 for a Eurobarometer survey of a sample of 12 800 individuals. The Final Report resulting from that survey was adopted on 24 October 1994:
– On average, one in five citizens of the European Union has seen or heard the name ‘feta’. In two States, namely Greece and Denmark, that name is in fact recognised by almost everyone.
– Of those who identify the name, the majority associate it with a cheese and a substantial proportion of the latter say that it is a Greek cheese.
– Three out of four people who know the name ‘feta’ state that it evokes a country or region with which the product has some connection.
– Of those who have already seen or heard the name ‘feta’, 37.2% consider it a common name (in Denmark the proportion is 63%) whilst 35.2% consider it a product from a particular origin (in Greece 52% are of that opinion). The remainder expressed no view.
– Finally, there are mixed feelings as to whether it is a generic product or a product from a particular origin. Of those who were immediately familiar with the name and indicated that it is a cheese, 50% regard it as a product from a particular origin and 47% consider it to be a common name.
86. The Scientific Committee issued an opinion on 15 November 1994, in which it expressed the view, by four votes in favour and three against, having regard to the information supplied, that the conditions for registration, particularly the ones laid down in Article 2(3) of the basic regulation, had been met. The Committee also stated, this time unanimously, that the term was not generic.
87. On 19 January 1996, the Commission approved a list of names, including ‘feta’, which were eligible for registration in accordance with Article 17 of the basic regulation. The Regulatory Committee did not give a decision within the period laid down for that purpose. When the proposal was submitted to the Council on 6 March 1996, that institution also failed to give a decision within the three months available to it.
88. On 12 June 1996, the Commission adopted Regulation No 1107/96, including ‘feta’ in the Annex at Part A, ‘Products listed in Annex II to the EC Treaty, intended for human consumption’, under the heading ‘cheeses’ and the country ‘Greece’. The product was registered as a protected designation of origin (‘PDO’).
89. The Danish, German and French Governments contested that registration and each brought an action for annulment before the Court.
B – The ‘Feta’ judgment
90. The judgment brought the three disputes to an end, annulling Regulation No 1107/96 to the extent to which it registered ‘feta’ as a protected designation of origin.
91. Essentially, the applicants put forward two pleas in law, based on Articles 2(3) and 3(1) of the basic regulation. By the first plea, they claimed that the conditions for registration had not been met, in that the product referred to did not originate in a region or a specific place and did not display any quality or characteristics which were essentially or exclusively due to the geographical environment, with its inherent natural and human factors, from which it originates. By the second plea, they argued that the term was generic, from which it followed that it could not be registered.
92. The Court started by examining the second plea, because the prohibition applies to all categories of name including ones which fulfil the conditions for them to be granted protection (paragraph 52).
93. First of all, the Court outlined the arguments of the applicant Member States (paragraphs 53 to 64), followed by the arguments of the Commission and Greece, which – as in the present proceedings – intervened in support of the lawfulness of the contested regulation (paragraphs 65 to 77). The Court then gave its findings, from which it is appropriate to draw attention to the following points:
– The prohibition of registration in Article 3 of the basic regulation is also applicable ‘to names which have always been generic’ (paragraph 80).
– In the light of the arguments put forward by certain governments in relation to that question, ‘either in the context of preparation of the draft list of generic names … or in the procedure for adoption of the contested regulation’, importance must be attached to ‘the considerations’ put forward by the Commission prior to and during the application process (paragraphs 82 to 86).
– Analysis of those considerations reveals that the Commission ‘minimised the importance to be attached to the situation existing in the Member States other than the State of origin and considered their national legislation to be entirely irrelevant’ (paragraph 87), factors which, together with the existing situation in the Member State in which the name originates and in areas of consumption, are specifically referred to in Article 3(1) (paragraph 88).
– In accordance with the foregoing, under the second indent of Article 7(4), ‘the fact that registration of a name … might jeopardise the existence of products which are legally on the market constitutes a ground on which a statement of objection from another Member State may be admissible’, which, notwithstanding that it is specifically provided for in respect of the normal registration procedure, also has a bearing on the simplified procedure, since regard must be had to ‘traditional fair practice and of the actual likelihood of confusion’ (paragraphs 91 to 94).
– In addition, account must be taken of the existence of products on the market which have been legally marketed under that name in Member States other than the State of origin by which registration is applied for (paragraph 96).
– In the case under consideration no account was taken of the fact that the disputed name ‘had been used for a considerable time in certain Member States other than the Hellenic Republic’ (paragraph 101).
94. In the light of the above factors, it was found that the Commission had not taken into account ‘all the factors which the third indent of Article 3(1) of the basic regulation required it to take into consideration’ and on those grounds the Court gave judgment annulling the regulation, as mentioned above.
95. The judgment did not look at the substantive requirements for registration, in particular the alleged generic nature of the term concerned, and merely considered the assessment carried out by the Commission which was held to be incomplete. Nor did the Court check whether the conditions laid down with regard to traditional names had been met.
C – The second inclusion of ‘feta’ in Regulation No 1107/96 pursuant to Regulation No 1829/2002
96. In the light of the aforementioned judgment, Regulation No 1070/1999 deleted the name ‘feta’ from the register.
97. However, having regard to the grounds for that annulment, the Commission wished to undertake a detailed, up-to-date survey of the position in the Community, as regards production and consumption of, and familiarity with, feta, to which end, on 15 October 1999, it sent a questionnaire to all the Member States. It is important to analyse that survey at some length since it is highly indicative. (104)
(a) Only Greece – since 1935 – and Denmark – since 1963 – have specific legislation on the production of feta, (105) although Germany and France also make it:
– Greece produced 115 000 tonnes, nearly all of which was for the domestic market.
– Production in Denmark reached 27 640 tonnes in 1998, intended mainly for export.
– Germany began production in 1972, and its output ranged from 19 757 to 39 201 tonnes, which was initially consumed by immigrants but was later aimed at the export market.
– France started to produce feta in 1931, with production reaching 19 964 tonnes, three quarters of which is sold to other countries. (106)
It is important to point out that, whereas the Greeks use only ewes’ milk, or a mixture of ewes’ milk and goats’ milk, the Danes and Germans use only cows’ milk, while the French use ewes’ milk and, to a lesser extent, cows’ milk.
(b) Turning to consumption, subject to the qualifications made in that regard, (107) it can be inferred that 92% of consumption occurred in the Hellenic Republic at the time of its accession to the Community; that figure subsequently dropped to 73%, as a result of increased consumption in other countries. A breakdown of consumption per person per year reveals the following information:
– In Spain, Luxembourg, Portugal, Italy and the Netherlands, consumption is no more than 0.010 kg (around 0.08% of the Community total).
– In Ireland, the United Kingdom, Austria, France, Sweden, Belgium and Finland, consumption fluctuates between 0.040 and 0.150 kg (between 0.32% and 1.22%).
– In Germany it is 0.290 kg (2.36%).
– In Denmark it is 0.700 kg (5%).
– Greece accounts for 10.500 kg (85.64%).
(c) It appears that consumers generally tend to associate ‘feta’ with Greece, as a result of the labelling of the cheese, (108) the way it is described in publications, and advertising.
98. That information was forwarded to the Scientific Committee which, on 24 April 2001, issued an opinion, approved unanimously, (109) stating that the word ‘feta’ was not generic for the following reasons:
(a) Production and consumption of feta are heavily concentrated in Greece, where they use a raw material and a production process which are different to those used in other Member States; as a result, Greece has a dominant position in the single market. In the Member States where it is neither produced nor consumed, the name ‘feta’ is not used, from which it follows that it cannot be classed as a common name.
(b) In consumers’ perception, the word ‘feta’ evokes a specific origin, namely Greece.
(c) In Member States with specific legislation for the product concerned, there are notable technical differences; the fact that the designation is used in the common customs nomenclature or in Community legislation on export refunds is not relevant in this context.
99. Having checked the information available to it, the Commission proposed that ‘feta’ should once again be protected. (110) The Regulatory Committee failed to give an opinion in the time-limit set by its chairman. When the proposal was submitted to the Council, it did not issue an opinion within three months.
100. That being the case, Regulation No 1829/2002 approved the entry in the register, provided for in Article 6(3) of the basic regulation, of ‘feta’ as a protected designation of origin, ‘[s]ince the term … has not been established as generic’ (recital 34) and is ‘a traditional non-geographical name’ (recital 35).
D – Canadane Cheese Trading and Kouri
101. In the above reference for a preliminary ruling, the judgment of the Court was pending with regard to the measures described above, which the Greek Government adopted to protect the name ‘feta’. However, that judgment was not delivered because the referring court withdrew the questions and the Court was therefore obliged to shelve the proceedings by order of 8 August 1997.
102. It is important to recall, albeit briefly, the details of that case and the considerations I set out in the Opinion.
103. Notwithstanding a number of already established practices and a first restrictive measure, (111) the Greek Government began a process of gradual regulation of the conditions of production and marketing of feta cheese with Ministerial Order No 2109/1988 (112) of the Ministries of Finance and Agriculture, and continued the process with two other Ministerial Orders of the same ministeries, No 688/1989 (113) and No 565/1991, (114) which amended Article 83 of the Foodstuffs Code, a provision which was also amended by Ministerial Order No 313025/1994, referred to above.
104. Pursuant to that provision, the Greek authorities prohibited the sale under the name ‘feta’ of a consignment of cheese imported from Denmark. The Danish undertaking Canadane Cheese Trading AMBA and the Greek undertaking Afoi G. Kouri AEVE challenged that prohibition and the condition that for entry on to the market the description ‘white cheese in brine made in Denmark from pasteurised cows’ milk’ must be used (points 1 to 6 of the Opinion). In the proceedings which followed, the Council of State referred three questions (point 7) to the Court, seeking guidance on whether legislation prohibiting the sale in a Member State, under the name ‘feta’, of a cheese lawfully produced and marketed under the same name in another Member State constituted a measure having equivalent effect, contrary to Community law, and, if that was the case, whether there was any justification for the prohibition (point 46).
105. In the Opinion, I discussed the production and marketing of feta cheese in the Community (points 9 to 19), describing the production process in Greece and the main qualities of the cheese, namely, its natural white colour, its characteristic taste and smell (slightly acid, salty and greasy), and its compact texture (points 15 and 16). I also described in detail the provisions of national law governing the cheese (points 20 to 25). In view of the fact that the basic regulation had not entered into force at the material time, I undertook a detailed analysis of the case-law of the Court and of the Community rules on the selling names of products. With regard to the latter question, I proposed the following categories:
(a) Community names (point 27), which cover ‘eurofoods’, such as honey and chocolate, and are marketed without restriction.
(b) Generic names (points 28 to 34), which comprise common names used to designate agricultural or food products; they form part of the general cultural and gastronomic stock and may, in principle, be used by any producer. I gave as examples vinegar, geneva, beer, pasta, yoghurt, Edam cheese, cheeses, cold meats and bread.
(c) Geographical names (points 35 to 44), which designate food products by alluding to their origin from a particular area. That reference may be direct, when a precise reference is included (Manchego Cheese, Parma Ham, Faba Asturiana and Normandy Camembert), or indirect, when no place-name is included (tetilla cheese, reblochon, grappa, ouzo, cava).
106. Turning to the substance of the questions referred, it was necessary first of all to establish whether the contested legislation constituted a measure having equivalent effect, contrary to Article 30 of the Treaty. If the reply to that question was in the affirmative, it would then be necessary to consider whether the measure was justified.
(a) By analysing the national legislation in the light of the case-law of the Court, I concluded that it was a measure having equivalent effect to a quantitative restriction within the meaning of the Treaty (points 47 to 49).
(b) Accordingly, it was necessary to determine whether the restriction was covered by Article 30 or, where applicable, Article 36, of the Treaty:
– In order to establish the scope afforded by the consumer protection and fair trading derogation, I examined the similarities and differences between the Greek and Danish cheeses, by reference to their composition and production methods (points 61 and 62), international standards (point 63), legislation and consumer expectations in the importing country (point 64) and in the other Member States (point 65), and Community acts (point 66). My conclusion was that there is no substantial difference between the two products and that adequate labelling would have safeguarded consumers and fair trade (points 67 and 68).
– However, having regard to the fact that my analysis was based on the Greek legislation in question, the restriction was permitted on the grounds of the protection of industrial and commercial property, because in Greece the name ‘feta’ satisfies the conditions stipulated in Exportur, in that: (a) it indicates indirectly the geographical origin of the cheese marketed under that name (point 73); (b) it guarantees a food which has certain characteristics and a quality which gives it a high reputation amongst consumers in Greece (points 74 and 75); (c) it is protected by domestic law (point 76); and (d) in Greece the name has not undergone an irreversible process of erosion which might have changed it into a generic name (point 77).
107. In the light of those considerations, I proposed that the Court reply as follows to the questions referred for a preliminary ruling:
‘(1) Legislation of a Member State which prevents the marketing, under the sales description “feta”, of a cheese lawfully produced and marketed under that name in another Member State is a measure having equivalent effect to a quantitative restriction, contrary to Article 30 of the EC Treaty.
(2) Legislation of a Member State which restricts to national products the use of the name “feta” is not justified on the grounds of consumer protection or fair trading.
(3) Legislation of a Member State intended to protect the rights which are the specific subject-matter of a geographical name, such as the name “feta”, is justified on the ground of protection of industrial and commercial property referred to in Article 36 of the EC Treaty.’
V – The actions for annulment
108. Germany and Denmark, supported by France and the United Kingdom, seek the annulment of Regulation No 1829/2002. (115) The Commission contends that the regulation is lawful. That contention is supported by Greece, which, in its observations, also maintains that the actions must be declared inadmissible on the ground that they were brought outside the time-limit.
109. In its application, Germany puts forward a number of pleas for annulment on procedural grounds. Those pleas must be examined before the substantive pleas, which, in both the German and the Danish applications, are essentially the same as those put forward in the applications in Feta, namely, that ‘feta’ is a generic name and does not satisfy the requirements for treatment as a traditional name or for protection under the basic regulation.
110. At the hearing held on 15 February 2005, oral argument was presented by the representatives of Germany, Denmark, France, Greece and the Commission.
A – Admissibility of the actions for annulment
111. The Greek Government claims that, at the time when the applications were lodged on 30 December 2002, the period of two months specified in Article 230(5) EC had already expired because the regulation had been published in the Official Journal on 15 October 2001.
112. That procedural objection must be dismissed, since the period set in the Treaty for contesting a provision must be calculated in accordance with the rules laid down in Article 81 of the Rules of Procedure, (116) paragraph 1 of which provides that, ‘[w]here the period of time allowed for initiating proceedings against a measure adopted by an institution runs from publication of that measure, that period shall be calculated, for the purposes of Article 80(1)(a), from the end of the 14th day after publication thereof in the Official Journal of the European Union’. Article 81(2) provides that ‘[t]he prescribed time-limits shall be extended on account of distance by a single period of 10 days’.
113. Pursuant to those provisions, in the cases before the Court the two months began to run on 30 October rather than 15 October, meaning that by lodging the applications at the Registry of the Court on 30 December the applicants did so within the time-limit.
114. Accordingly, it is appropriate to dismiss the plea of inadmissibility alleging that the applications were lodged out of time.
B – Procedural pleas in law
115. Germany puts forward a number of procedural grounds for annulment alleging infringement of the rules of procedure of the Regulatory Committee and of the Regulation determining the languages to be used by the Community, (117) and also alleging that the statement of reasons was insufficient.
1. Infringement of the time-limits and the rules on the use of languages
116. The German Government states that the invitation to the meeting of the Regulatory Committee of 20 November 2001 was sent by email on 9 November 2001 and included a number of attachments in French and English only; a translation of those attachments was not provided, despite a complaint made in that regard.
117. The German Government next complains that the invitation was sent less than 14 days in advance, (118) and that versions of the attachments in all the languages were not provided. The Commission does not contest those facts but disagrees about their legal effects.
118. When dealing with that issue, it must be recalled that a procedural requirement does not constitute an end in itself. That approach is all the more relevant where the final result would have been the same had the defects not occurred. (119)
119. It is important to bear in mind that the minutes record that the meeting of 20 November 2001 merely involved a discussion about the ‘feta’ file and about the summary of the responses to the questionnaire sent by the Commission. On 16 May 2002 the draft regulation was discussed and put to the vote. (120)
120. In the light of those factors, it is possible to distinguish the present situation from the one in Germany v Commission, (121) a case invoked by the applicant, where the procedural defects identified by the Court, on the basis of which the contested act was annulled, arose in the meeting at which the proposal for that act was debated. By way of a summary of its findings, the Court held in paragraph 32 that ‘… the adoption of the opinion of the Standing Committee on Construction, without regard to the obligation to send the draft document to its two separate addressees within the time-limit laid down and without the vote having been postponed despite the request made by a Member State, is vitiated by infringement of essential procedural requirements, with the result that the contested decision is void.’
121. In the Opinion I delivered in that case, I drew a distinction, by reference to the rules of procedure of the committee concerned, between cases involving the communication of preparatory documents for a meeting and working documents in general and those involving the discussion of the adoption of a particular measure. In both cases, the procedural requirements are important but they only become substantive in nature in the second case, where the rule that documents of the institutions must be drafted in the language of the State to which they are sent, laid down in Article 3 of Regulation No 1, applies in full.
122. In line with that approach, the defects affecting the meeting of 20 November 2001 are not substantive and, accordingly, they do not justify the annulment of the contested regulation, the proposal for which was debated at a subsequent meeting on which those defects have not been shown to have had any effect whatsoever. Nor does it appear likely that the failure to send the invitation a sufficient number of days in advance of the meeting and the fact that there was no translation of the opinion of the Scientific Committee or of the information arising from the survey, would have prevented the German Government from exercising its rights.
123. Moreover, it is difficult to imagine that, if the defects had not occurred, a different outcome would have arisen in the subsequent decision of the Regulatory Committee on the draft submitted by the Commission. Indeed, it seems reasonable to suppose that the outcome would have been the same, in other words, that there would not have been a majority of votes. As concerns the action taken, annulment of the contested regulation would result in the clock being turned back to the time when the defects occurred only, in all probability, for the same outcome to occur once those defects had been remedied.
124. It is in those terms that it is appropriate to construe recital 10 of the contested regulation, which states that the Commission summarised the information received overall and by Member State, and the Member States subsequently made a number of corrections and amendments. The fact that the latter statement is partially incorrect does not justify annulment.
2. Insufficient statement of reasons
125. In the Opinion I delivered in Portugal v Commission, (122) I pointed out that the statement of reasons ‘is an essential part’ of a measure (123) and that the obligation to provide reasons is not only for the protection of interested parties, but is also intended to provide the Court with the information necessary to enable it to undertake fully the appropriate legal review. (124) In addition, according to the case-law of the Court, the statement of reasons must show clearly and unequivocally the reasoning of the institution which enacted the measure so as to inform the persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review. It is not necessary, however, for details of all relevant factual and legal aspects to be given, provided that an assessment is made not only of its wording but also of its context and of all the legal rules governing the matter in question (125) (point 83).
126. The Commission explains in the contested regulation how, at the request of the Greek authorities, it registered ‘feta’ only to delete the name following the judgment in Joined Cases C-289/96, C-293/96 and C-299/96 (recitals 1 to 5). The Commission goes on to describe the questionnaire sent to the Member States for the purpose of assessing the production and consumption of feta and the knowledge of the term professed by Community consumers, and sets out and comments on the details of that survey (recitals 6 to 21). Next, the Commission refers to the opinion issued by the Scientific Committee, setting out the final section of that opinion (recitals 22 to 32). Subsequently, the Commission notes ‘that the exhaustive overall analysis of the legal, historical, cultural, political, social, economic, scientific and technical information notified by the Member States or resulting from investigations undertaken or sponsored by the Commission leads to the conclusion that in particular none of the criteria required under Article 3 of Regulation (EEC) No 2081/92 to show that a name is generic have been met’ (recital 33), and that instead ‘feta’ is a traditional non-geographical name, before dealing in some detail with the natural and human factors which influence the production of the cheese to which the name refers (recitals 34 to 36). Finally, the Commission refers to the fact that the product specification includes all the required information (recital 37), to the need to amend Regulation No 1107/96 (recital 38), and to the procedure followed (recital 39).
127. It is clear from the above that an adequate statement of reasons was provided. Although one might call into question the extent and the subject-matter of the reasons stated, that complaint does not touch on the lawfulness of the justification for the decision.
C – Substantive pleas in law
128. When examining the two substantive pleas for annulment submitted, it is appropriate to follow the order proposed by the Court in the Feta case, that is, to analyse first whether the name ‘feta’ can be classed as generic before going on to assess whether it is a traditional name. (126)
1. ‘Feta’ as a generic name
129. It is appropriate to consider first of all what is meant by generic, then to deal with the factors laid down in the legislation for delimiting the term and to apply those factors to this case.
a) The meaning of ‘generic’
130. The quality of being generic refers to what is common to several species, and includes characteristics which belong to the same class or family and which define the nature or attributes of that class or family. That is the case, for example, with orange, a name applying to all fruits with a particular kind of shape, colour, smell and taste which distinguish them from all other fruits. (127)
131. That character is attributable either to the word itself – in that it has always been generic – or to the fact that it has gradually become generalised. Such names have either never had or have lost their indicative function and cannot therefore be used to distinguish by reference to their origin.
132. Notwithstanding that the case-law of the Court provides no definition of ‘generic name’, (128) I pointed out in the Opinion in Canadane Cheese Trading and Kouri that use of the term in relation to food products encompasses names which ‘form part of the general cultural and gastronomic stock and may, in principle, be used by any producer’ (point 28). Thus, the term also covers words which are not linked to production in a particular place and therefore to the provenance of the product but only to its characteristics, linked to the fact that similar manufacturing processes are used. (129)
133. The term ‘generic’ can also be applied to names which originally had a geographical meaning but then lost that meaning because the names underwent a process of generalisation; as a result such names are no longer used to describe a product with a particular origin, from which it follows that their use is not reserved to undertakings situated in the region concerned.
134. The usual reason why a name comes into popular usage (130) is that producers who are not established in its place of origin start to use the name, either on its own or with a ‘de-localising’ word (in the latter case the process is slowed down). Often, usage begins in areas which have seen the arrival of a large influx of migrants, either because producers once again take up the activity they pursued in their country of origin and carry on that activity in the host country, or to meet demand from recent arrivals who wish to eat their traditional foods. In both cases, the specific aim of the producers concerned is to take advantage of the reputation which the product has already earned. As the geographical link weakens, producers continue in good faith, believing that the name in question refers only to a type of product having certain characteristics. The transformation is complete when the name refers to a category and is used freely.
135. Another factor which has a bearing on the process is the passivity of consumers. A name will decline if no action is taken by consumers and the authorities in response to its misuse, whereas it will be strengthened if there is an appropriate reaction. However, it must be recalled that protective measures can be weakened by a shortage of legal provisions, which did not exist at all until very recently, and by apathy on the part of national courts. (131)
b) Criteria for delimitation
136. Under the system provided for in the basic regulation, responsibility for determining whether a name is generic is assigned to the Commission, which must make a decision in accordance with the procedure laid down, having regard to the opinion of the Scientific Committee. That responsibility also falls, to a lesser extent, to the Council since, as I have already observed, it is required under Article 3(3) to draw up a list of generic names identifying agricultural products or foodstuffs.
137. That system does not preclude a subsequent wide-ranging review by the Court of the lawfulness of the decision. The aim is not that the Court should take the place of the Commission and analyse the extra-judicial grounds for permitting registration of the name; instead the Court must establish whether the registration is lawful. (132)
138. The difficulty arises because the legal concept in question is indeterminate and must be assessed on a case-by-case basis, and because registration of a designation of origin, in so far as it expresses ‘the historical, cultural, legal and economic reality’ that attaches to the product, (133) becomes more difficult the more popular the name concerned is and the more frequently it is used.
139. The basic regulation acknowledges that in most cases determination of whether a name is generic is an arduous and complicated task. With a view to simplifying the task, the regulation provides two methods of delimitation, by requiring that a list of common names be drawn up (Article 3(3)) and by setting out criteria for assessment (Article 3(1)). (134)
140. As I observed above, an agreement has yet to be reached regarding approval of a list of names which may not be registered on the grounds that they are generic, (135) which indicates the difficulty of the task. Accordingly, the other system of delimitation becomes all the more important, and the mere fact that such a system exists demonstrates that ‘generic’ may not be defined as the opposite of ‘exclusive’. (136)
141. Moreover, the assessment must be made on the basis of ‘all factors’ but with reference to three ‘in particular’, namely, the situation in the Member State in which the name originates and in areas of consumption, the situation in other Member States, and the relevant national or Community laws. Therefore, there is nothing to preclude other factors from being taken into account.
i) The situation in the Member State in which the name originates and in areas of consumption
142. That heading comprises two distinct elements which must not be permitted to overlap: the situation of the product in the place of provenance and the situation in the place where it is consumed.
– The situation in the State of origin
143. In Exportur, the Court drew attention to the importance of this criterion, stating that protection of a name extends to another Member State only in so far as that name continues to be legitimate in the State of origin. However, when assessing that situation, account must be taken not only of protective measures but also of other factors such as, for example, the extent of production and consumption, the views of inhabitants, and the interest shown.
144. It is clear from the case-file that Greeks are unanimously of the opinion that ‘feta’ refers to a traditional national product produced from a particular kind of milk using a specific process. An analysis of the information collected by the Commission leads to the same conclusion.
145. The applicants do not contest those facts but draw attention to other factors which are undeniably of particular significance in that the aim is not to extend from one country to another the protection of certain names, but rather to provide harmonised legal protection throughout the Member States.
– The situation in areas of consumption
146. It must, of course be pointed out that, although initially the consumers of a product come from the place in which the product originates, usually, after a while, the product reaches consumers in other areas and the initial identification with that place is lost. Frequently, a product can be purchased in many different areas which have no connection with the area where it is produced or originates. That explains why, for the purpose of determining whether or not the name of a product is generic, the perception of the name in those places is important.
147. The expression ‘areas of consumption’ refers to consumers. Academic legal writers have emphasised the importance of the opinion of consumers with regard to classifying a name for legal purposes, (137) since consumers act as the ultimate interpreters of the meaning a name has on the market. However, the primary issue in the present cases is not the protection of consumers but rather the protection of industrial and commercial property rights, which is enshrined in the Treaty.
148. At first sight, it appears that only Community areas of consumption need to be taken into account. It has been pointed out that feta is also produced and marketed in the Balkans. Since Article 3 of the basic regulation requires that regard must be had to ‘all’ factors having a bearing on the classification of a name, I will restrict the assessment to the situation in regions of the Community for the time being and consider later the situation elsewhere.
149. Second, areas of consumption must also include areas of provenance where, as in this case, the two coincide. Thus, regard must be had to the opinion of Greek consumers, amongst whom the name ‘feta’ enjoys a high reputation, thereby assisting producers to retain a highly important customer base.
150. From that multiple point of view, Greek consumers identify feta as being a national product and a high proportion of consumers in the other Member States associate the cheese with Greece, since the labelling contains express or implied references to Greek culture, although, exceptionally, labels, books, magazines, and other non-specialised publications exist which do not contain such references.
ii) The situation in other Member States
151. There is no requirement that the product must be consumed everywhere, and this factor therefore affects two spheres. The first is the general situation in countries other than the one in which the name originates, and the second is the situation in States where the cheese is also produced.
– The general situation in other States
152. In the light of the information obtained in the Eurobarometer survey and of the results of the questionnaire sent by the Commission, it appears that, as in areas of consumption, where the name ‘feta’ is recognised, individuals and publications in the first sphere described associate the cheese with Greek culture. That is not the case in Denmark and Germany, or, albeit to a lesser extent, in France, because in those countries there is large-scale production of the cheese, a factor which must be considered in relation to the second sphere.
153. In all other respects, one statistic must be emphasised: one in five people asked is familiar with name. Had the name become generic, would not a greater number of those surveyed have recognised it? It must be recalled that at stake is the protection of industrial and commercial property rights throughout the Community, not merely in the places where feta is currently produced and consumed, since it is likely that, in the future, consumption of the cheese will increase. In other words, familiarity with the name must be widespread and not just confined to the territory of those States involved in the commercial production of feta.
– The situation in States which produce the cheese
154. As concerns the second sphere, in Feta the Court warned of the need to take account of products marketed under that name in Member States other than the State of origin (paragraph 96).
155. In support of that assertion, the Court relied on the second indent of Article 7(4) of the basic regulation, which refers to that case as a ground of objection to registration. However, that provision is intended to apply to registration under the normal procedure, (138) whereas at issue in this case is a name already protected under national rules for which protection at Community level was effected under the simplified procedure. The two situations are therefore different.
156. In the light of the foregoing, I believe that the assertion made by the Court in Feta was intended to draw attention to a particular factor, namely, the situation in other Member States, not with the intention of giving that situation priority over other factors but rather to prevent its importance from being minimised, which is what the Commission initially did. Accordingly, the view expressed in the judgment must be qualified, since, otherwise, (a) the inaction theory would be accepted outright and that would fail to take account of the fact that many undertakings were unable to enforce their legal rights prior to the entry into force of the legislation concerned, as a result of which they were placed at a serious disadvantage because a process of generalisation, resulting merely from infringement of the name by unauthorised third parties, was permitted to take place; (b) there would be a conflict with previous case-law, since in SMW Winzersekt, which dealt with the protection of the names of wines, the Court held that, in order to achieve the objective of designations of origin, it was essential ‘… that the producer should not derive advantage, for his own product, from a reputation established for a similar product by producers from a different region …’ and that ‘… the final consumer should receive sufficiently accurate information to enable him to form an opinion of the products in question’; and, finally, (c) attaching greater weight to that factor would disadvantage those goods whose dynamics mean that they enter markets in other regions shortly after first appearing on a particular market, since, using the most recent technological advances, competitors would imitate those goods and use the same name.
157. In short, the reference to fair trade in goods with the same name must be construed in accordance with the system of protection laid down. That global approach means simply that, in cases such as the one before the Court, regard must also be had to the situation in other Member States. However, under no circumstances will that situation alone suffice to preclude registration applied for under the procedure laid down in Article 17 of the basic regulation.
158. Turning now to the factor under consideration, it must be noted that in Denmark, Germany and France, in particular, a cheese is produced under the name ‘feta’ using a different type of milk and a different production process from the ones used in Greece.
159. In that regard, it is useful to summarise the points set out in points 61 and 62 of the Opinion in Canadane Cheese Trading and Kouri:
(a) The kind of milk used means that, since ewes’ milk and goats’ milk have different chemical and organoleptic characteristics from cows’ milk, the following differences are manifested in the resulting cheese:
– The use of ewes’ milk gives rise to a pure white cheese, while the use of cows’ milk leads to a yellowish white colour which can only be removed by chemical substances.
– When ewes’ milk is used, the cheese has an oily, salty and slightly acid taste and a strong aroma, whereas feta made from cows’ milk has less aroma and a sweeter taste.
– The use of cows’ milk gives the cheese fewer holes than ewes’ milk feta because the effect of the brine is different.
(b) Although the cheese matures faster with ultra-filtration, since the whey is removed before the curds are formed, it does not appear that the difference in production processes has a significant effect.
iii) The relevant national and Community legislation
160. The basic regulation requires that legislation in force in the Member States and in the Community be taken into consideration.
– Legislation of the Member States
161. The aim of the reference to national measures is to establish whether the name concerned is protected in the country of origin and in other States, irrespective of the turnover it yields. In that regard, it is important to recall a matter which I have already mentioned, namely that prior to the Community legislation most Member States did not have legal measures in place for protecting geographical indications, which, to a certain extent, reduces the importance of this factor.
162. Indeed, the Greek legislation of the 1980s was restricted to setting out in written form the traditional use of the name, which dates back several centuries, and to laying down rules for the production and marketing of feta.
163. Measures concerning feta were also adopted in Denmark (and in the Netherlands where they remained in force for only a short time), but those measures do not impose restrictions on trade since it would be contradictory to protect a name which the Danish Government has argued is generic.
164. It should also be pointed out that Austria reserves the name to cheese originating in Greece, pursuant to the bilateral agreement concluded on 20 June 1972.
– The Community legislation
165. In this regard, the criteria taken into account when assessing whether a name has become generic have included the Common Customs Tariff nomenclature and the Community legislation on export refunds.
166. However, having regard to the aim pursued, those factors cannot be taken as defining criteria in the field of industrial property rights. (139) The same applies to provisions adopted in the context of the common agricultural policy which are designed to maintain certain prices. When such provisions are adopted and implemented, no assessment is made of whether the persons to whom they are addressed are using a particular name lawfully. At most, the provisions concerned could be regarded as having the potential to provide guidance which is in no way conclusive.
167. An example will illustrate the effects of stringent application of the combined nomenclature. (140) The Mozartkugeln is a famous Austrian speciality made from marzipan and nougat covered in milk chocolate. If the Mozartkugeln were classified as a chocolate-based product, notwithstanding that it contains only a minimum amount of chocolate, it would be excluded from the basic regulation on the ground that it is not referred to in Annex I to the Treaty. If the Mozartkugeln were classed as a cake it would appear in the list in Annex I to the basic regulation, even though it contains some chocolate.
iv) Other factors
168. It is important to bear in mind the obligation to take account of all relevant factors. Academic legal writers have suggested a number of examples: inclusion of the word concerned in reference works, such as dictionaries, travel books and restaurant guides; (141) turnover inside and outside the designated region or the region to which the name is principally connected; (142) and the fact that the name is classified as generic in an international treaty ratified by at least one of the Member States. (143)
169. In the case before the Court, two factors must be accorded particular emphasis, namely, the situation in non-member countries and the temporal aspect.
– The situation in non-member countries
170. The need to establish the situation in non-member countries is derived from the reference to ‘areas of consumption’ in Article 3(1) of the basic regulation and from Article 12, which provides that the regulation may apply ‘to an agricultural product or foodstuff from a third country’, provided that certain conditions are met.
171. In these proceedings for annulment it is common ground that white cheese in brine resembling feta is produced in other European countries, such as Bulgaria. Similar kinds of cheese are produced in Iran and Saudi Arabia, using ewes’ milk, and in the United States and New Zealand, where cows’ milk is normally used. (144)
172. Accordingly, the perception of the name in those countries may serve as a parameter for establishing the correct delimitation of the name ‘feta’, although, in the light of the aim of the protection concerned, it is important not to exaggerate the influence of that perception, notwithstanding that, in common with other names, the territorial scope of ‘feta’ has been extended pursuant to international agreements. (145)
– The temporal situation
173. Even where it appears that the situation in the Member State by which the application for registration is made relates to the present, recollection of the past also has an effect on the perception of whether the name has become generic, particularly with regard to establishing whether a name has always been generic. Historical perspective has a significant bearing on this question.
174. Recalling the considerations I set out in the Opinion in Canadane Cheese Trading and Kouri, it is important to point out that the name ‘feta’ is of Italian origin and is derived from ‘fetta’, which means slice, slab or chunk. It was brought into Greece through the influence of Venice and gained acceptance in the 19th century to designate the traditional white cheese in brine which has been made since ancient times in most of Greece and other parts of the Balkans.
Homer’s Odyssey recounts how Polyphemus ‘… sat down to milk his ewes and bleating goats, which he did methodically, putting her young to each mother as he finished. He then curdled half the white milk, gathered it all up, and stored it in wicker baskets ...’. (146) In this way the Cyclops, Polyphemus, made the cheese which Ulysses and his men found in the cave. It is not surprising that, in using this method of making cheese, which is very similar to that traditionally used in modern Greece, Polyphemus was unaware of the legal problems which the free movement of that product in the European Community was going to cause at the end of the 20th century, not only because he could not have predicted, 27 centuries in the future, the complex stratagems of protected names, but also because of his own nature, as the Cyclopes are beings with no idea of justice and the law. (147) The Odyssey also alludes to the story of the daughters of Pandareus, who in olden times were ‘rapt away by the Demons of the Storm’ after ‘the gods had robbed them of their parents and left them orphaned in their home; and yet they lived, and flourished on the cheese, the sweet honey, and the mellow wine that Aphrodite brought them’. (148)
Another of Homer’s poems, The Iliad, shows the importance of cheese in the Greece of the 8th century BC. (149)
Feta is made from ewes’ milk or a mixture of ewes’ and goats’ milk by the natural straining method, without applying pressure. The production of feta was not regulated by the Greek authorities until 1988 by which time different local or regional variants had come into existence (points 14 to 16 of the Opinion).
175. The fact that there were no technical specifications at international level meant that a different, more modern and competitive method of production of feta could be developed in different Member States and in other countries, aimed initially at satisfying demand from Greek immigrants, as the representatives of Germany and France observed at the hearing. In the second half of the 20th century, Denmark, Germany and the Netherlands began to produce a cheese from cows’ milk using an industrial ultra-filtration process; that cheese was marketed under the name ‘feta’. In France, a cheese called ‘feta’ is made from cows’ milk, while in some areas, such as the island of Corsica and some parts of the Massif Central, it is made from ewes’ milk, although in the latter region feta is made to use up the milk not needed for the production of Roquefort (point 17 of the Opinion).
176. Why did those producers decide to give the name ‘feta’ to white cheese in brine made using cows’ milk? There can be no doubt that they did so to ensure that the cheese had a name which meant something to consumers. In short, as the Commission asserted at the hearing, they were looking for a name which could increase sales. (150)
c) Analysis of the criteria and effects
177. The basic regulation does not list in order of importance the relevant factors for determining whether a name is generic, so the question arises whether any of the factors take precedence over the others.
178. In the Exportur judgment, which was delivered before the basic regulation entered into force, the Court took the view that greater weight should be attached to the situation in the place of origin, and I applied that case-law in the Opinion in Canadane Cheese Trading and Kouri. (151)
179. However, in Feta, the Court amended that case-law and held that equal weight must be attached to all of the factors specifically referred to in the relevant provision, (152) particularly the situation in other Member States. Thus, none of the factors take precedence, from which it follows that they must all be taken into account. Moreover, other factors may also be considered. Provided reasons are given, there is nothing to preclude the attachment of greater weight to a particular factor during the assessment, since the instrumental nature of the factors, whose purpose is to delimit an indeterminate legal concept, makes them dependent on their ability to achieve that objective.
180. Following that line of reasoning, the question arises as to whether the name ‘feta’ has changed to the extent that its meaning has expanded to designate a whole family of cheeses, irrespective of their origin, method of production, or ingredients.
181. In addition to a separate analysis of each factor, it is essential to undertake an overall assessment, taking into account:
– All the facts directly and indirectly connected to the case, since sometimes, as in the present case, the historical perspective becomes vitally important.
– The factual and legal arguments of the parties and the evidence adduced in the proceedings with regard to the contested registration.
– The opinion of the Scientific Committee, issued by highly qualified professionals (Article 3 of the Decision establishing that committee). (153)
– The opinion poll carried out at the relevant time and the replies provided to the questionnaire sent by the Commission. (154)
182. Those considerations lead me to conclude that the name has not become generic at Community level or in Greece itself, as I argued in the Opinion in Canadane Cheese Trading and Kouri, since the name ‘feta’ is inextricably associated with a specific food, that is, a cheese produced in a large part of Greece from ewes’ milk or from a mixture of ewes’ milk and goats’ milk, using the natural craft method of straining without applying pressure.
183. To refuse to authorise the monopoly of the name, including in cases where the cheese is produced by the same method elsewhere, would be on a par with depriving an inventor of his patent rights on account of the fact that someone else came up with a similar creation after registration of the invention. (155)
2. ‘Feta’ as a traditional name
184. If the Court agrees with the foregoing considerations and holds that the name is not generic, it will be necessary to turn to Article 2(3) of the basic regulation, pursuant to which ‘[c]ertain traditional geographical or non-geographical names designating an agricultural product or a foodstuff originating in a region or a specific place, which fulfil the conditions referred to in the second indent of paragraph 2(a) shall also be considered as designations of origin’.
185. Since ‘feta’ does not refer directly to a specific place, it is necessary to establish whether the name fulfils the requirements laid down for geographic indications, namely, whether it is traditional, whether it refers to a food originating in a region or a specific place, whether its quality and characteristics are essentially or exclusively due to the geographical environment, and whether its production, processing and preparation take place in a defined area for the purpose of obtaining a particular end result.
a) The traditional nature of the name
186. Tradition evokes the passing down from generation to generation of information, teachings, stories, rites and customs. Behaviour which is ruled by ideas, standards and practices from the past is described as traditional.
187. In accordance with the points I made regarding the perception of a name in relation to time, there can be no doubt that the word ‘feta’ displays the characteristics required for it to be regarded as ‘traditional’ for the purposes of Article 2(3) of the basic regulation. However, that finding alone is not a sufficient basis for registration. The other requirements laid down must also be met.
b) The name of a food originating in certain geographical areas
188. As I stated in the Opinion in Canadane Cheese Trading and Kouri, in the same way that the names ‘grappa’, ‘ouzo’ and ‘cava’ allude indirectly to Italian, Greek and Spanish origins and are linked to specific regions without containing the corresponding place name, the name ‘feta’ is associated with a cheese made in Greece, even though the word ‘fetta’ is etymologically of Italian origin (point 73).
189. The difficulty arises because origin denotes ‘the name of a region, a specific place or, in exceptional cases, a country’ (Article 2(2) of the basic regulation), whereas in this case the name refers to a product or food originating (note that it does not say ‘exclusively originating’) ‘in a region or a specific place’ (Article 2(3) of the basic regulation), since ‘feta’ is linked to a large area of Greece, both historically and at the present time. (156)
190. I should like to make a number of observations aimed at resolving that difficulty:
(a) Article 2(2) applies to direct names and therefore requires a link with an area, which can, exceptionally, be an entire country. By contrast, Article 2(3) governs indirect names and links the product, rather than the name itself, with the geographical location. The two provisions therefore relate to different situations.
(b) It makes no sense to link a geographical area to a traditional name when the provision itself rules out any spatial meaning, which, in most cases, is absent.
(c) Article 2(3) does not refer to ‘a country’, which the applicants claim means that it is impossible for a traditional name to encompass such an area. However, another interpretation is possible, namely that the absence of such a reference means that there is no such maximum territorial limit. To interpret it any other way would preclude areas in a number of States, or even two or more States, from being regarded as a ‘region’. (157) What is important is that the foodstuff, rather than its name, is linked to a defined area, thereby preventing a lack of spatial clarity.
(d) Finally, there appears to be a consensus that the concept of ‘region’ as used by the Community legislature does not encompass the administrative sense of the word. (158)
191. In the light of those observations, it is appropriate to state that ‘feta’, as the name of a cheese originating in a wide, but specific, geographical area fulfils the requirement in question. The size of the area of provenance is immaterial; the decisive factor is that the area has certain features which give rise to the particular characteristics of the cheese.
192. That view does not contradict the approach taken in the CMA judgment, in which the Court pointed out, at paragraph 27, that the Exportur judgment acknowledged that the protection of geographical indications ‘may, under certain conditions, fall within the protection of industrial and commercial property for the purposes of Article 36 of the Treaty’, before going on to hold that a scheme under which Germany had conferred a quality label on products produced on its territory which fulfilled certain requirements could not be considered as a geographic indication capable of justification under Article 36 of the Treaty. It cannot be inferred from that passage of case-law that an indication of source is absolutely precluded from covering a whole country; moreover, the dispute in the present case concerns a traditional name with certain specific features which are different to the ones at issue in CMA.
c) The reason for the quality and characteristics of feta and the geographical delimitation of its production, processing and preparation
193. On the subject of traditional names, Article 2(3) of the basic regulation refers to the second indent of Article 2(2)(a), pursuant to which the quality or characteristics of a product must be essentially or exclusively due to a particular geographical environment with its inherent natural and human factors, and the production, processing and preparation of that product must take place in a defined geographical area. That requirement addresses the need for a clear link between the product and its area of origin, stipulated in the two conditions laid down in the aforementioned indent.
i) Quality attributable to the geographical environment
194. Assuming that it is accepted that ‘feta’ designates a cheese produced in a specific area, it is still necessary to establish whether those conditions are met with regard to the quality and characteristics of feta.
195. In that assessment, the following may be cited as factors giving rise to the particular nature of the cheese: the climate of the zone of production; the richness and diversity of its vegetation; the milk used in the production of the cheese, which is obtained from ewes and goats reared in accordance with long-established custom; and the fact that the cheese is made by experienced craftsmen using natural straining without applying pressure.
196. The determination of whether there is a link between those elements and the specific characteristics of the product requires a global assessment which takes into account all those factors, paying special attention to the interrelation between them to obtain an overall impression. (159)
197. Accordingly, contrary to the view of the applicants, the quality and characteristics of feta are attributable to the areas of Greece where the cheese is produced, since a basic link has been established between its colour, aroma, texture, taste, ingredients and inherent properties, on the one hand, and the natural environment in which it originates, the culture which supports it, and the traditional production process used in Greece, on the other.
198. That finding is not weakened by the fact that there are certain differences between feta from different regions of Greece or by the lack of uniformity in other aspects, such as the orography and the quality of the pasture, since the common features predominate and the basic catalysts are the same. The delimitation complained of by the applicants actually bolsters that view, in that the territory of the Greek islands has been excluded, with the exception of the nomos of Lesbos. (160) The sheep and goats of Thrace and Thessaly are very similar to one another but are strikingly different from Scottish, French and Spanish sheep and goats. The same applies to the food they eat, the mountains or meadows where they live, the climate they experience, and all the other conditions which have a bearing on how the cheese comes into being. In that connection, I should like to quote again from Palomar by Italo Calvino, in which the experiences of the hero in a shop in Paris is recounted in masterly fashion: ‘behind each cheese there is a different grass under a different sky: fields encrusted with salt deposited every day by the tides of Normandy; fields perfumed with aromas of sun and wind from Provence; there are different cattle with their cowsheds and seasonal moves to new pastures; there are secrets of production handed down over the centuries. This shop is a museum: when visiting it, Mr Palomar feels, behind every object displayed, the presence of the civilisation which gave it shape, as if he were in the Louvre’. (161)
ii) Production, processing and preparation in a defined area
199. The requirement that the entire production process for the product be carried out in a defined area does not extend to the name given to the product, which may be devoid of any geographical connotations.
200. The aim is to preclude the weakening of the link between the product and the environment concerned through the division of the stages of production between different areas or through their association with unspecified places.
201. In the case of feta, there is little doubt that that requirement is fulfilled, since it is laid down in the Greek legislation, albeit with a slight modification in that the region where the cheese is produced is wider in area than the one specified for the sourcing of the raw materials. It is important to note that the area of origin of the milk used is limited, and that the milk must come from indigenous breeds of animals which have been raised using traditional methods and have grazed on pasture in the authorised regions. However, that disparity is not particularly significant, in view of the fact that the basic regulation does not require absolute geographical identity and permits regions which are organised in concentric circles, provided that they are defined with total clarity.
202. The size of the region specified does not appear to be of fundamental importance, since there is nothing to prevent it from covering the whole of the territory of peninsular Greece, notwithstanding that that might give rise to a certain amount of diversity in the product. The essential factor is that the different stages of production take place in a specific area, and that has been shown to be the case in these proceedings.
d) Effects
203. The analysis carried out above confirms that the contested regulation is lawful in so far as it classifies the word ‘feta’ as a name designating a cheese which originates in a significant part of Greece, has qualities and characteristics attributable essentially or exclusively to the geographical environment, and the production, processing and preparation of which take place in a defined area.
204. The size of the area gives rise to a number of variations in the feta, but all variants of the cheese are substantially the same in that they have elements in common which reinforce the specific character of feta.
205. It is clear from the foregoing considerations that the name ‘feta’ is not generic because, as a traditional name, it satisfies the requirements for it to be considered as a designation of origin, eligible for protection throughout the whole territory of the Community on the ground that it is a form of industrial and commercial property. Accordingly, the pleas for annulment put forward in these proceedings must be dismissed and the contested regulation must be held to be valid.
VI – Costs
206. In accordance with Article 69(2) of the Rules of Procedure, since their claims have been unsuccessful and the Commission has applied for costs, the two applicant Member States must be ordered to pay their own costs and those of the Commission. Pursuant to Article 69(4), the States which intervened in the proceedings must bear their own costs.
VII – Conclusion
207. In the light of the foregoing considerations, I propose that the Court:
(1) dismiss the applications lodged by the Federal Republic of Germany and the Kingdom of Denmark for annulment of Commission Regulation (EC) No 1829/2002 of 14 October 2002 amending the Annex to Regulation (EC) No 1107/96 with regard to the name ‘Feta’.
(2) order the applicant States to pay their own costs and those incurred by the Commission.
(3) declare that the French Republic, the United Kingdom of Great Britain and Northern Ireland and the Hellenic Republic must bear their own costs.