Order — ECLI:EU:T:2014:756
Date: 2014-09-03
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Agriculture and Fisheries;Foodstuffs;Intellectual, industrial and commercial property;Consumer protection
Procedure: Action for annulment - inadmissible
Origin: Germany

summary of the specification of the PGI at issue, contained in the annex to the contested regulation, states that through inter alia the use of the name ‘Gouda Holland’, it will be made clear to consumers that Gouda Holland is a different product from ‘other Gouda cheeses’. 29 It follows from the foregoing that the contested regulation clearly provides that the name ‘Gouda’ may continue to be used, inter alia for the marketing of cheeses, provided the principles and rules applicable in the Union’s legal order are respected. 30 Therefore, annulment of the contested regulation would not be of any advantage to the applicant’s members in that regard (see, to that effect, in the case of another PGI, order in Unione provinciale degli agricoltori di Firenze and Others v Commission, paragraph 18 above, paragraph 33). Those members are still entitled to use the name ‘Gouda’ and must, in any event, continue to respect the principles and rules applicable in the Union’s legal order. 31 Moreover, since the contested regulation provides that the word ‘Gouda’ may continue to be used for the marketing of cheeses, that regulation does not affect directly the legal situation of the applicant’s members (see, to that effect, in the case of another PGI, Case C‑343/07 Bavaria and Bavaria Italia [2009] ECR I‑5491, paragraphs 41 to 45). 32 As regards the point raised by the applicant, in response to the measures of organisation of procedure, that the contested regulation would expose its members to the risk of prosecution for using the word ‘Gouda’, it should be noted that an applicant cannot rely on future uncertain circumstances to establish its interest in seeking annulment of the contested measure (see Case T‑189/08 Forum 187 v Commission [2010] ECR II‑1039, paragraph 84 and the case-law cited). 33 In that context, the interest in bringing proceedings can result from a genuine risk that the applicant’s legal position will be affected by legal proceedings or where the risk of legal proceedings was vested and present at the date on which the action was brought before the EU judicature (see Joined Cases T‑309/04, T‑317/04, T‑329/04 and T‑336/04 TV 2/Danmark and Others v Commission [2008] ECR II‑2935, paragraph 79 and the case-law cited). 34 In the present case, it is sufficient to note that the applicant’s approach is based merely on assertions to that effect without any evidence that the risk alleged is genuine or was vested and present at the date on which the action was brought. That argument must therefore be rejected. 35 Secondly, as regards the point that the contested regulation entails a risk that some packaging that includes the word ‘Gouda’, used with illustrations referring to the Kingdom of the Netherlands, might be regarded as being in breach of Regulation No 510/2006, the applicant’s approach is once again based merely on assertions that do not prove that the risk alleged is genuine or was vested and present at the date on which the action was brought. 36 Furthermore, EU law does not permit the labelling of food to be such that it misleads consumers, inter alia as to the origin or provenance of that food (see, to that effect, the general principle established in Article 16 of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1); see also, more specifically, Article 2(1)(a)(i) of Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ 2000 L 109, p. 29)). 37 The applicant moreover acknowledged in its response to the measures of organisation of procedure that the provisions referred to in paragraph 36 above sought to ‘prevent consumers being misled as a result, inter alia, of the use of the word ‘Gouda’ together with references [to the Netherlands]’. 38 It follows that annulment of the contested regulation would not be of any advantage to the applicant’s members in that regard, in so far as such annulment would not remove the obligation that exists under EU law not to mislead consumers as to the origin or provenance of food (see, to that effect, with regard to a prior legal obligation, order of 3 July 2007 in Case T‑212/02 Commune de Champagne and Others v Council and Commission [2007] ECR II‑2017, paragraph 132). 39 Thirdly, the argument that the economic activities of the applicant’s members would be impeded since undertakings operating in the dairy sector could no longer sell milk produced in Germany for the manufacture of Gouda Holland is based merely on unsubstantiated assertions. In particular, when questioned in that regard in the context of the measures of organisation of procedure, the applicant acknowledged, in essence, that even if milk had actually been sold by its members to the Netherlands it was not possible to determine precisely what that milk had been used for. The argument put forward in that regard therefore has no factual basis. 40 The applicant’s request, contained in its response to the measures of organisation of procedure, that the Commission and the interveners should be required to provide evidence that German milk sold to the Netherlands was not used to manufacture Gouda must be rejected since it is the applicant itself which must provide evidence of its interest in bringing proceedings. 41 In any event, under Article 2 of the applicant’s articles of association, its object, in the interests of the milk and milk product processing undertakings which belong to it, is to undertake and support actions, whether or not by litigation, inter alia in respect of opposition to the registration of designations of origin according to the EU rules. Paragraph 3 of the applicant’s internal rules, which were adopted after those articles of association, states that the applicant ‘may intervene only if its members submit applications for registration, or for refusal or rejection of registration’. In the present case, it is common ground that the applicant’s members which submitted applications for refusal or rejection through the applicant are producers or distributors of Gouda, as is clear from the statement of objection lodged with the German authorities and from the applicant’s presentation of its action before this Court. The milk producers, which may or may not be the applicant’s members, did not, as such, object to registration of the PGI at issue. It follows that the applicant cannot, in any event, intervene before this Court in order to represent the interests of some of its members which have not submitted applications for refusal of registration of the PGI at issue. 42 Fourthly, the argument put forward by the applicant that it has an individual interest due to the rejection of its objection by the Commission is based on an incorrect premiss. In particular, it is clear from the documents in the case that only the Federal Republic of Germany — and not the applicant — was recognised by the Commission as having lodged an admissible objection (recital 2 in the preamble to the contested regulation). The applicant has not called that finding into question in the context of the action. Moreover, only the Federal Republic of Germany — and not the applicant — was invited by the Commission to engage in appropriate consultations in order to reach an agreement within the meaning of Article 7(5) of Regulation No 510/2006. The applicant was not therefore recognised by the Commission as being an ‘interested party’ within the meaning of that article. The applicant has not called that finding into question in the context of the action. In view of those factors, the applicant cannot claim that the Commission rejected its objection in the present case. In any event, it should be noted that the second subparagraph of Article 7(2) of Regulation No 510/2006 provides that natural or legal persons having a legitimate interest and being established or resident in a Member State may object to the proposed registration by lodging a duly substantiated statement with that Member State within a time-limit permitting an objection in accordance with paragraph 1 of that article. Article 7(1) of Regulation No 510/2006 provides inter alia that ‘any Member State’ may object to the registration proposed, by lodging a duly substantiated statement with the Commission. It follows that, contrary to what the applicant contends, in essence, in its pleadings, natural or legal persons having a legitimate interest and being established or resident in a Member State are not entitled to lodge an objection directly with the Commission (see, to that effect, order of 11 September 2007 in Case T‑35/06 Honig-Verband v Commission [2007] ECR II‑2865, paragraph 51). 43 Fifthly, as regards the point raised by the applicant in its response to the measures of organisation of procedure that producers who are entitled to use the quality label for the PGI at issue have a competitive advantage over its members, again it is based merely on an assertion without any substantiation. In particular, the applicant has not provided any evidence to show that its members’ products are actually competing with products which are entitled to use the PGI at issue or that the products which the applicant regards as competing necessarily enjoy a competitive advantage as a result of bearing the abovementioned label. 44 Furthermore, it cannot be inferred from Regulation No 510/2006 that the purpose of that regulation was to grant a competitive advantage to producers which are entitled to use a PGI. In particular, Regulation No 510/2006 had, among other objectives, only that of ensuring ‘fair competition’ between the producers of products bearing indications of origin (recital 6 in the preamble to that regulation). Therefore, in the absence of more detailed evidence, the applicant’s argument must be rejected. 45 Furthermore, it should be noted that the contested regulation is not intended to abolish a right held by the applicant’s members, but to grant a new right to all operators, including the applicant’s members if they so wish, whose products comply with the specification set out in that regulation. Therefore, the point raised by the applicant constitutes a purely factual point from which no unfavourable effect of the contested regulation on the legal position of its members can be inferred (see, to that effect, order of 15 October 2013 in Case T‑13/12 Andechser Molkerei Scheitz v Commission, not published in the ECR, under appeal, paragraphs 38 and 39). 46 Furthermore, the point raised by the applicant is not such as to prove, save in specific circumstances, that the condition that those members must be directly concerned is fulfilled (see, to that effect, Joined Cases 10/68 and 18/68 Eridania and Others v Commission [1969] ECR 459, paragraph 7; order of 18 February 1998 in Case T‑189/97 Comité d’entreprise de la Société française de production and Others v Commission [1998] ECR II‑335, paragraph 48, and order of 21 September 2011 in Case T‑343/10 Etimine and Etiproducts v ECHA [2011] ECR II‑6611, paragraph 41). Therefore, in the absence of more detailed evidence provided by the applicant, the argument at issue does not show that the applicant’s members are directly concerned by the contested regulation. 47 In the light of all of those factors, the action must be dismissed as inadmissible. Costs 48 Under Article 87(2) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay, in addition to its own costs, those incurred by the Commission, in accordance with the form of order sought by the Commission. 49 In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the Kingdom of the Netherlands must be ordered to bear its own costs. In accordance with the third subparagraph of Article 87(4) of the Rules of Procedure, the NZO must be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby orders: 1. The action is dismissed as inadmissible. 2. Schutzgemeinschaft Milch und Milcherzeugnisse eV is ordered to bear its own costs and those incurred by the European Commission. 3. The Kingdom of the Netherlands and the Nederlandse Zuivelorganisatie are ordered to bear their own costs. Luxembourg, 3 September 2014. E. Coulon S. Frimodt Nielsen Registrar President * Language of the case: German.