Opinion of the Advocate General — ECLI:EU:C:2019:650
Date: 2019-07-29
Language of the case: German
Subject matter: Agriculture and Fisheries;Foodstuffs;Intellectual, industrial and commercial property;Consumer protection
Procedure: Reference for a preliminary ruling
Origin: Germany

summary have been modified 
accordingly.’ 
20 Commission Regulation (EU) No 1121/2010 of 2 December 2010 entering the 
designation ‘Edam Holland’ in the register of protected geographical indications 
contains equivalent provisions. 
[Or. 9] 
CONSORZIO TUTELA ACETO BALSAMICO DI MODENA 
 
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21 It may be inferred from the case-law of the Court of Justice of the European 
Union that this restriction of the scope of protection of a protected geographical 
indication is effective. Regarding the protected geographical indications ‘Gouda 
Holland’ and ‘Edam Holland’ registered by way of the aforementioned 
regulations, the Court of Justice has stated that, in view of the provisions in 
Article 1 and recital 8 of those regulations, those indications are protected solely 
against the use of the entire name and not against the use of the components 
‘Gouda’ and ‘Edam’ (cf. CJEU, order of 6 October 2015 — C-519/14 P, 
[EU:C:2015:702] [...] paragraph 21 — Gouda Holland; order of 6 October 
2015 — C-517/14 P, [EU:C:2015:700] [...] paragraph 21 — Edam Holland). 
22 (bb)  The appeal on a point of law unsuccessfully asserts that the Commission 
could not override the priority of application of the basic regulation by means of 
mere remarks regarding the scope of protection of the term as a whole in the 
recitals of the registration regulation, such as to preclude the courts from assessing 
whether the name of a product contained in a protected indication is generic. 
23 It is, admittedly, true that, in accordance with the principle of the hierarchy of 
norms, an implementing regulation may not derogate from the superior basic 
regulation (cf. judgment of the General Court of 13 April 2011 — T-576/08 
[EU:T:2011:166], paragraph 100 with further references). However, the 
implementing regulations in question here do not derogate from the basic 
regulation by determining the scope of protection of the name to be registered. 
According to the system of the basic regulation, the Commission is authorised to 
take a decision on the registration of the indication in cases in which oppositions 
have been lodged and an agreement has not been reached (cf. Article 51, 
Article 52(3)(b) of the basic regulation). 
[Or. 10] 
24 (cc)  The fact that an applicant is able to state that it does not seek protection for 
elements of an entire name also shows that the protection granted by the 
registration of the name can be restricted. Accordingly, numerous footnotes in 
Commission Regulation (EC) No 1107/96 of 12 June 1996 on the registration of 
geographical indications and designations of origin under the procedure laid down 
in Article 17 of Regulation (EEC) No 2081/92 specify that protection of 
individual components — for instance ‘Camembert’ in the entire name 
‘Camembert du Normandie’ or ‘Emmental’ in the entire name ‘Emmental de 
Savoie’ — is not sought. 
25 It is also clarified in recital 5 of Commission Regulation (EC) No 737/2005 of 
13 May 2005 supplementing the Annex to Regulation (EC) No 2400/96 as regards 
the entry of the name ‘Ricotta Romana’ in the ‘Register of protected designations 
of origin and protected geographical indications’, for instance, that the application 
relates solely to protection of the compound name ‘Ricotta Romana’ and that the 
term ‘Ricotta’ can be freely used. In these cases, the fact that the protection does 
REQUEST FOR A PRELIMINARY RULING OF 12. 4. 2018 — CASE C-432/18 
 
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not cover individual components of the entire name follows from the registration 
regulation itself [...]. 
26 In the ‘Fromagerie Chiciak and Fol’ decision, the Court of Justice of the 
European Union stated that the protection of a compound designation of origin 
does not necessarily relate to all of its components if the registration regulation 
does not contain a footnote according to which protection is not sought for a part 
of the name (cf. CJEU, judgment of 9 June 1998 — C-129/97, C-130/97, 
[EU:C:1998:274] [...]). 
[Or. 11] 
27 (c) In the case here in dispute, recitals 3, 5 and 10 of Regulation (EC) 
No 583/2009 militate in favour of a restriction of the scope of protection to the 
name ‘Aceto Balsamico di Modena’ as a whole, to the exclusion of individual 
non-geographical components. These recitals read as follows: 
‘[3] Germany’s objection referred in particular to the concern that the 
registration of “Aceto Balsamico di Modena” as a protected geographical 
indication would adversely affect other products that have been placed 
lawfully on the market for at least five years and sold as Balsamessig/Aceto 
balsamico, as well as to the alleged generic character of these terms. 
Germany also pointed to the lack of clarity regarding the stages of 
production which must take place in the area of origin. 
… 
[5] Greece stressed the importance of balsamic vinegar production in 
Greece, which is marketed under names such as “balsamico” or “balsamon” 
and the negative impact that registration of the name “Aceto Balsamico di 
Modena” would have on these products, which have been placed lawfully on 
the market for at least five years. Greece also maintains that the terms “aceto 
balsamico”, “balsamic”, etc. are generic. 
… 
[10] It appears that Germany and Greece did not refer to the entire name, i.e. 
“Aceto Balsamico di Modena” in their objections regarding the generic 
nature of the name proposed for registration, but only to some elements of it, 
namely the words “aceto”, “balsamico” and “aceto balsamico”, or to 
translations thereof. However, protection is granted to the term “Aceto 
Balsamico di Modena” as a whole. Individual non-geographical components 
of that term may be used, even jointly and also in translation, throughout the 
Community, provided the principles and rules applicable in the 
Community’s legal order are respected.’ 
28 With the statements in the third sentence of recital 10, the Commission could have 
expressed that the protection of the entire name does not relate to its individual 
CONSORZIO TUTELA ACETO BALSAMICO DI MODENA 
 
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non-geographical components, which, according to the submissions of Germany 
and Greece in the objection procedure, are generic. 
[Or. 12] 
29 Nor does the lack of an express reference to the second subparagraph of 
Article 13(1) of the basic regulation in Regulation (EC) No 583/2009, which is 
relevant in the case in dispute, provide unambiguous clarification on the point of 
law, even in view of the aforementioned regulations, in which such a reference 
was included. Rather, having regard to the equivalent wording in the second 
sentence of Article 1 of Regulations (EU) No 1121/2010 and No 1122/2010, for 
instance, the wording in recital 10 of Regulation (EC) No 583/2009, according to 
which individual non-geographical components of the term as a whole may ‘be 
used [...] throughout the Community, provided the principles and rules applicable 
in the Community’s legal order are respected’, could be understood in the sense of 
a restriction of the protected subject matter. 
30 (d) Contrary to the view taken in the appeal on a point of law, the assumption 
of a restriction of the protection to the name as a whole did not give rise to an 
inconsistency with the registration of the protected designations of origin ‘Aceto 
Balsamico Tradizionale di Modena’ and ‘Aceto Balsamico Tradizionale di Reggio 
Emilia’ effected by Council Regulation (EC) No 813/2000 of 17 April 2000 
supplementing the Annex to Commission Regulation (EC) No 1107/96 on the 
registration of geographical indications and designations of origin under the 
procedure laid down in Article 17 of Regulation (EEC) No 2081/92. It is true 
that — unlike Regulation (EC) No 583/2009 — this regulation does not contain a 
reference to the free availability of non-geographical components of entire names, 
meaning that the question of whether the use of non-geographical components of 
such names is allowed is to be assessed on the basis of Article 13(1), first 
subparagraph, (b), and the second subparagraph of Article 13(1) of the basic 
regulation in each particular case. 
[Or. 13] 
31 However, the absence of references to a restricted scope of protection in 
Regulation (EC) No 813/2000, which may be attributable to the fact that there was 
no opposition by Member States pursuant to Article 7 of Regulation (EEC) 
No 2081/92 (now Articles 51 and 52 of the basic regulation) in the preceding 
registration procedure, does not preclude a restriction of the protective effect of 
the subsequently registered entire name relevant in the case in dispute. 
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