Opinion of the Advocate General — ECLI:EU:C:2004:823
Date: 2004-12-16
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Association Agreement;External relations;Commercial policy;Intellectual, industrial and commercial property;Consumer protection;Wine
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. International agreements — Agreements entered into by the Community — Conclusion — EC-Hungary Agreement on the reciprocal protection and control of wine names — Legal basis — Article 133 EC (Art. 133 EC; EC-Hungary Association Agreement; EC-Hungary Agreement on wines) 2. International agreements — Agreements entered into by the Community — EC‑Hungary Agreement on the reciprocal protection and control of wine names — Rules governing geographical homonyms — Conditions for application — Name ‘Tocai’ for Italian wines and ‘Tokaj’ for Hungarian wines — Name ‘Tocai’ not a protected geographical indication — Exchange of letters prohibiting the use of that name — Infringement of those rules — None (EC-Hungary Agreement on wines, Art. 4(5)) 3. International agreements — Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) — Homonymity between a geographical indication of a third country and a name including the name of a vine variety used for the description and presentation of certain Community wines — Right, recognised in the agreement, for producers who have used that name traditionally and in good faith to continue to use it — None (TRIPs Agreement, Arts 22 to 24) 4. Community law — Principles — Fundamental rights — Right to property — Restrictions — Prohibition on use of the name ‘Tocai’ for Italian wines — None — Prohibition pursuing an aim of general interest (Protocol No 1 to the European Convention of Human Rights, Art. 1, first para.; EC‑Hungary Agreement on wines) 1. The European 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, is not the legal basis of Decision 93/724 concerning the conclusion of the Agreement between the European Community and the Republic of Hungary on the reciprocal protection and control of wine names. The appropriate legal basis for the conclusion by the Community alone of the latter agreement is Article 133 EC, as referred to in the preamble to Decision 93/724, an article which confers on the Community competence in the field of the common commercial policy. That agreement is part of those laid down in Article 63 of Regulation No 822/87 on the common organisation of the market in wine and its principal objective is to promote trade between the Contracting Parties by facilitating on a reciprocal basis, on the one hand, the marketing of wines originating in Hungary by guaranteeing those wines the same protection as that provided for in respect of quality wines produced in a specified region of Community origin and, on the other, the marketing in that country of wines originating in the Community. (see paras 70, 79-80, 83, operative part 1-2) 2. The rules governing homonyms laid down in Article 4(5) of the Agreement between the European Community and the Republic of Hungary on the reciprocal protection and control of wine names (EC-Hungary Agreement on wines) concern geographical indications protected by virtue of that agreement. Since the terms ‘Tocai friulano’ and ‘Tocai italico’, unlike the Hungarian wine names ‘Tokaj’ and ‘Tokaji’, do not appear in part A of the Annex to the EC-Hungary Agreement on wines and are the name of a vine or vine variety recognised in Italy as being suitable for the production of certain quality wines produced in a specified region, they cannot be classed as geographical indications within the meaning of that agreement. It follows that the prohibition of use of the name ‘Tocai’ in Italy after the expiry of the transitional period laid down in the EC-Hungary Agreement on wines, resulting from the exchange of letters concerning Article 4 of that agreement, is not contrary to the rules governing homonyms laid down in Article 4(5) of that agreement. It also follows that the Joint Declaration concerning Article 4(5) of the EC‑Hungary Agreement on wines, in so far as it states in the first paragraph that, in respect of Article 4(5)(a) of that agreement, the Contracting Parties noted that at the time of the negotiations they were not aware of any specific case to which the provisions referred to could be applicable, is not a clear misrepresentation of reality. (see paras 87-88, 90, 92, 98, 102, operative part 3-4) 3. Articles 22 to 24 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), set out in Annex 1 C to the Agreement establishing the World Trade Organisation, are to be interpreted as meaning that, in a case which concerns homonymity between a geographical indication of a third country and a name including the name of a vine variety used for the description and presentation of certain Community wines made from it, those provisions, even though they do not prohibit the continued and similar use of such a name, also do not require that that name may continue to be used in the future notwithstanding the twofold circumstance that it has been used in the past by the producers concerned either in good faith or for at least 10 years prior to 15 April 1994 and that it clearly identifies the country, region or area of origin of the protected wine in such a way as not to mislead the consumer. (see paras 110, 115, operative part 5) 4. The right to property does not preclude the prohibition on use by the operators concerned in an autonomous Italian region of the word ‘Tocai’ in the term ‘Tocai friulano’ or ‘Tocai italico’ for the description and presentation of certain Italian quality wines produced in a specified region at the end of a 13-year transitional period, resulting from the exchange of letters concerning the use of the word ‘Tocai’, annexed to the Agreement between the European Community and the Republic of Hungary on the reciprocal protection and control of wine names but not referred to in the latter. That prohibition, in so far as it does not exclude any reasonable method of marketing the Italian wines concerned, does not constitute a deprivation of possessions as referred to in the first paragraph of Article 1 of Protocol No 1 to the European Convention on Human Rights. In addition, even if it were shown that that restriction were to entail a restriction of the fundamental right to property, that restriction may be justified in so far as, by prohibiting the use of that name which is a homonym of the ‘Tokaj’ geographical indication of Hungarian wines, it pursues an aim of general interest, which is to promote trade between the Contracting Parties by facilitating on a reciprocal basis the marketing of wines which are described or presented using a geographical indication. (see paras 122, 127, 134, operative part 6)