# C_2004201EN.01001001.xml

| 7.8.2004 | EN | Official Journal of the European Union | C 201/10 |
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7.8.2004

EN

Official Journal of the European Union

C 201/10

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Reference for a preliminary ruling by the Tribunale Amministrativo Regionale per il Lazio by order of that court of 23 February 2004 in the case of Confcooperative Unione Regionale della Cooperazione FVG Federagricole and Others against Ministero delle Politiche Agricole e Forestali and Regione Veneto

(Case C-231/04)

(2004/C 201/19)

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale Amministrativo Regionale per il Lazio of 23 February 2004, received at the Court Registry on 3 June 2004, for a preliminary ruling in the case of Confcooperative Unione Regionale della Cooperazione FVG Federagricole and Others against Ministero delle Politiche Agricole e Forestali and Regione Veneto on the following questions:

‘1.

Can the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part, concluded on 16 December 1991 and published in OJ 1993 L 347, provide a proper and sufficient legal basis for conferring on the European Community power to conclude the Community Agreement between the European Community and the Republic of Hungary on the reciprocal protection and control of wine names of 29 November 1993 (OJ 1993 L 337), with particular reference to Article 65(1), to joint declaration no 13 and to Annex XIII (points 3, 4 and 5) of the European Agreement of 1991 on the possible reservation of the sovereignty and jurisdiction of the Member States in the matter of national geographical names used with reference to food and wine and restraint of any transfer of jurisdiction of competence in that matter to the European Community?

2.

In view of what is said in opinion no 1/94 of the Court of Justice of the European Communities concerning the exclusive jurisdiction of the European Community, should the Community Agreement between the European Community and the Republic of Hungary on the protection and control of wine names of 29 November 1993 (OJ 1993 L 337), which specifies the protection of geographical names which have intellectual and commercial property significance, be declared invalid and of no effect within the Community legal order because the agreement itself has not been ratified by the individual Member States of the European Community?

3.

In the event that the Community Agreement of 1993 (OJ 1993 L 337) is to be regarded as lawful and applicable in its entirety, should the prohibition of the use in Italy after 2007 of the name “Tocai”, which arises from the exchange of letters between the parties to the agreement, annexed to the agreement, be regarded as invalid and of no effect because it is inconsistent with the rules governing geographical homonyms established in the agreement itself (see Article 4(5) of the protocol to the agreement)?

4.

Should the Second Joint Declaration annexed to the 1993 agreement (OJ 1993 L 337), which implies that the contracting parties were unaware, at the time of their negotiations, of the existence of homonyms connected with European and Hungarian wines, be regarded as a clear misrepresentation of reality (given that the Italian and Hungarian names used to refer to “Tocai” wines have existed alongside each other for centuries, were officially recognised in 1948 in an agreement between Italy and Hungary and were recently brought within the scope of Community law) such as to render null and void that part of the 1993 agreement which prohibits the use in Italy of the name Tocai, on the basis of Article 48 of the Vienna convention on the law of the Treaties?

5.

In light of Article 59 of the Vienna convention on the law of the Treaties, is the TRIPS agreement on trade-related aspects of intellectual property rights (OJ 1994 L 336), which was concluded within the context of the World Trade Organisation and entered into force on 1 January 1996, thus after the Community Agreement of 1993 (OJ 1994 L 337) entered into force, to be interpreted as meaning that its provisions governing homonyms in vine names apply in place of those of the Community Agreement of 1993 where there is inconsistency between the two, given that the parties to both agreements are the same?

6.

In the case of two names that are homonyms and refer to two different wines produced in two different countries both party to the TRIPS Agreement (and both where the homonym relates to two geographical names used in both the countries party to TRIPS and where it relates to a geographical name in one country and the like name relates to a vine traditionally cultivated in another country party to TRIPS), must Articles 22 to 24 of the Third Part of Annex C to the Treaty Establishing the World Trade Organisation, which contains the TRIPS Agreement (OJ 1994 L 336), which entered into force on 1 January 1996, be interpreted as meaning that both the names may continue to be used provided that they have been used in the past by the respective producers either in good faith or for at least 10 years prior to 15 April 1994 (Article 24(4)) and each name clearly indicates the country or region or area of the origin of the wine to which it refers in such a way as not to mislead consumers?’

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