Opinion of the Advocate General — ECLI:EU:C:2005:276
Date: 2005-05-10
Language of the case: Danish;German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Foodstuffs;Milk products;Intellectual, industrial and commercial property;Consumer protection
Procedure: Action for annulment - unfounded
Origin: Germany;Denmark

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. 1 – Original language: Spanish. 2 – Case C-317/95 Canadane Cheese Trading and Kouri [1997] ECR I-4681. 3 – Joined Cases C-289/96, C-293/96 and C-299/96 Denmark, Germany and France v Commission [1999] ECR I-1541, ‘Feta’. 4 – Regulation of 14 October 2002 amending the Annex to Regulation (EC) No 1107/96 with regard to the name ‘Feta’ (OJ 2002 L 277, p. 10). 5 – Jerusalem Bible, 1 Kings 5, 6 and 7, edited by E. Nácar and A. Colunga, version translated directly from the original languages, Desclee de Brouwer, Bilbao, 1975, pp. 371-373. The Bible also refers to certain products of recognised quality which are distinguished by reference to their geographical origin, such as bulls from Bashan, an area in the north of the Jordan Valley where particularly strong, fierce animals were bred (Psalms 22: 13, p. 730); sheet silver from Tarsus and gold from Ophir (Jeremiah, Lamentations 10: 9, p. 1144); and the vineyards of Engedi (Song of Songs 1: 14, p. 914). 6 – Harte Bavendamm, H., ‘Geographical Indications and Trademarks: Harmony or Conflict’, Symposium on the International Protection of Geographical Indications, Somerset West, South Africa, September 1 and 2, WIPO, Geneva, 1999, p. 59. 7 – References from Cortés Martín, J.M., La protección de las indicaciones geográficas en el comercio internacional y comunitario, Ministerio de Agricultura, Pesca y Alimentación, Madrid, 2003, pp. 25 and 26. 8 – Virgil, The Aeneid, translation and notes by Javier Echave-Susaeta, Gredos, Madrid, 1977, first reprint. Dodona was a place in Epirus and the site of an oracle to Zeus, where copper vessels were made which were used for making prophecies by interpreting the noise the vessels made when the wind moved them in the branches of the large oak tree in which they hung (Book III, line 465, p. 223). 9 – Ibid. Book III, line 484, p. 224. 10 – ‘Those who do not know how to recognise Tyrian purple or skins which absorb vermilion from Aquino will not experience a more imminent or certain danger in their bones than the inability to distinguish truth from lies’, Horace, Epistle X; XVII, Ode I, XXI and XXIX.6, cited by Plaisant, M. and Jacq., F., Traité de noms et appellations d’origine, Librairies Techniques, Paris, 1974, p. 1. 11 – Although it appears that in Rome there was a degree of protection under the Lex Cornelia de Falsis, which protected traders against the illegal use of their names in the form of an actio iniarium or an actio doli. See Franceschelli, R., Trattado di Diritto Industriale, Giuffrè, Milan, 1973, p. 77 et seq. 12 – Ferragio, G.M., ‘Denominazione di origine, indicazione di provinienza e d´intorni’, Rivista di Diritto Industriale, 1990, number 2, p. 224 et seq. 13 – In some instances, the collective mark of a product consisted of the initial of the name of the town where it was made or its coat of arms; for example, the letter A indicated tapestries from Audernarde; the letter B identified goods from Brussels; while two Es back-to-back identified goods from Enghien. See Cortés Martín, J.M., op. cit., p. 27, footnote 8, in which he cites Braun, A., Nouveau traité des marques de fabrique et de commerce, droit belge, droit international et droit comparé, Brussels, pp. XXIII-XXIV. 14 – Coiné, H., Derecho privado europeo, volume 2, ‘El siglo XIX’, Fundación Cultural del Notariado, Madrid, 1996, pp. 213-214, mentions silk produced in Lyon, linen from Bielfield and scythes from Erzberg in Styria. 15 – As a result of the phylloxera epidemic which attacked vineyards in the second half of the 19th century and the start of the 20th century. In that connection see Girardeu, J.M., ‘The Use of Geographical Indications in a Collective Marketing Strategy: The Example of Cognac’, Symposium on the International Protection of Geographical Indications, op. cit., p. 70. 16 – That approach can be found in the French Law of 1 August 1905 on the prevention of fraud in the sale of goods and the prevention of the illegal imitation of agricultural products and foodstuffs. However, it was not until the enactment of laws protecting specific products, such as the Law of 26 July 1925 safeguarding the name ‘Roquefort’, and the horizontal rules governing certain types of goods, such as the Law of 30 July 1935 protecting designations of origin in the wine sector, that such protection became more individualised. In Spain the Estatuto del Vino (Wine Statute), approved by the Royal Decree of 8 September 1932, recognises the autonomy of the designation of origin as a distinguishing sign. 17 – Cervantes, M. de, Don Quixote, edited, introduced and with notes by Martín de Riquer, RBA Editores, Barcelona, 1994 (Part One, Chapter IV, p. 128), mentions the wooden tools used in spinning to twist the thread and wind the yarn, which were highly regarded when they were made of beech from the Guadarrama mountains. 18 – Ibid., Part Two, Chapter XXXVIII, p. 905. 19 – Ibid., Part Two, Chapter XLIX, p. 981. 20 – Ibid., Part Two, Chapter XXXII, p. 865. 21 – Ibid., Part Two, Chapter XXX, p. 876. 22 – Vega y Carpio, Lope de, El caballero de Olmedo, edited by Francisco Rico, Cátedra, Madrid, 1981, Act I, line 103, p. 111. 23 – Vega y Carpio, Lope de, Peribáñez y el comendador de Ocaña, edited by Juan Mª Marín, Cátedra, Madrid, 1979, Act I, Scene XIII, line 677, p. 89. 24 – Ibid., Act I, Scene XIII, line 739, p. 91. 25 – Shakespeare, W., Hamlet, Prince of Denmark, Act I, Scene IV. 26 – Ibid., Act V, Scene II. 27 – Proust, M., À la recherche du temps perdu, Volume III, Sodome et Gomorrhe, p. 330. 28 – Ibid., Volume III, La prisonnière, p. 542. 29 – Carpentier, A., La consagración de la primavera, Siglo XXI de España Editores, 7th edition, Madrid, 1979, Part III, Chapter 18, p. 219. 30 – Ibid., Part VII, Chapter 35, p. 463. 31 – Ibid., Part VII, Chapter 36, p. 480. In the same novel, one of the characters, Teresa, is described as possessing the unusual ability to detect ‘trickery or pilfering in the purchase of caviar, the origin of foie-gras, and the authenticity of wines from great producers and great vintages’. The same woman rebukes her cook with the words, ‘You know that my compatriots know nothing about milésimes because they couldn’t care less whether they drink coca-cola or pepsi-cola, but don’t go provoking me with your Mouton-Rothschild bottles filled with cheap Galician red wine. And the next time you try to pass off a second-rate champagne as a Dom Perignon, I’ll send you back to France …’ (Part III , Chapter 18, p. 219). 32 – Maroño Gargallo, M.M., La protección jurídica de las denominaciones de origen en los Derechos español y comunitario, Marcial Pons, Madrid, 2002, p. 176. 33 – ‘… the effect of industrial property rights is to confer an exclusive right in relation to an entire market, the latter being defined as the territory within which there is free movement of goods … when the market expands and becomes supranational, but the monopoly created by the industrial property rights does not adapt to the new environment, conflict inevitably arises …’, Bercovitz, A., ‘La propiedad industrial e intelectual en el Derecho comunitario’, in the collective work Tratado de Derecho Comunitario Europeo, Volume II, Civitas, Madrid, 1986, p. 532. 34 – Article III-154 of the Treaty establishing a European Constitution (OJ 2004 C 310, p. 1) also cites that as one of the grounds justifying prohibitions or restrictions on imports, exports or goods in transit. 35 – OJ, English Special Edition 1970(I), p. 17. 36 – OJ 1979 L 33, p. 1. Similar wording is used in Article 18(2) 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), which repealed Directive 79/112. 37 – It will all depend on which definition prevails: the traditional one which covers products whose characteristics are essentially attributable to natural factors in the area of origin, or a wider definition which does not take into account those particular features. In that way, the retention of designations of origin for other goods is not precluded. See Pellicer, R., ‘Primeros pasos de una política comunitaria de defensa de la calidad de los productos alimenticios. Reglamento sobre la “especificidad” y Reglamento sobre denominaciones de origen e indicaciones geográficas’, Gaceta Jurídica, B-83 and B-84, May 1993, pp. 13 and 15, respectively; in particular, B-84 p. 16. 38 – OJ 1992 L 208, p. 1. 39 – Council Regulation (EC) No 692/2003 of 8 April 2003 amending Regulation No 2081/92 (OJ 2003 L 99, p. 1) is aimed, albeit tentatively, in that direction, stating that, ‘[t]o meet the expectations of some producers, it has also proved necessary to extend the list of agricultural products referred to in Annex II to Regulation (EEC) No 2081/92. It is also appropriate to extend the list referred to in Annex I to the said Regulation to include foodstuffs resulting from products in Annex I to the Treaty which have only undergone a slight transformation’ (first recital). 40 – OJ, English Special Edition 1959-1962, p. 123. 41 – OJ 1999 L 179, p. 1. Its predecessors were Regulation (EEC) No 816/70 of the Council of 28 April 1970 laying down additional provisions for the common organisation of the market in wine (OJ, English Special Edition 1970(I), p. 234) and Regulation (EEC) No 817/70 of the Council of 28 April 1970 laying down special provisions relating to quality wines produced in specified regions (OJ, English Special Edition 1970(I), p. 252). Those regulations were replaced, respectively, by Council Regulations (EEC) No 337/79 and (EEC) No 338/79, both of 5 February 1979 (OJ 1979 L 54, pp. 1 and 48), which were in turn replaced by Council Regulations (EEC) No 822/87 and (EEC) No 823/87, both of 16 March 1987 (OJ 1987 L 84, pp. 1 and 59), which were repealed by Regulation No 1493/1999, currently in force. 42 – In accordance with Council Regulation (EEC) No 1576/89 of 29 May 1989 laying down general rules on the definition, description and presentation of spirit drinks (OJ 1989 L 160, p. 1), and with Council Regulation (EEC) No 1601/91 of 10 June 1991 laying down general rules on the definition, description and presentation of aromatised wines, aromatised wine-based drinks and aromatised wine-product cocktails (OJ 1991 L 149, p. 1), geographical designations are reserved exclusively for the products concerned, by reference to the area where ‘they acquired their character and definitive qualities’ (Articles 5(3)(b) and 6(2)(b), respectively). 43 – In accordance with Article 2(1)(a) of that directive, its aim was to protect purchasers against any deception or confusion arising as a result of the labelling of goods. The equivalent in the sine sector was Council Regulation (EEC) No 2392/89 of 24 July 1989 laying down general rules for the description and presentation of wines and grape musts (OJ 1989 L 232, p. 13), which was repealed by Regulation No 1493/1999. 44 – Salignon, G., ‘La jurisprudence et la réglementation communautaires relatives à la protection des appellations d’origine, des dénominations géographiques et des indications de provenance’, Revue du Marché Unique Européen, No 4, 1994, p. 107. 45 – The Commission had announced that objective in 1985 in the Green Paper on the future of European agriculture (Bull. EC 7/8-1985, point 1.2.1 et seq., and COM(85) 333 final), and in the Communication on the completion of the internal market: Community legislation on food products (Bull. EC 11-1985, point 2.1.18 and COM(85) 603 final). 46 – Particularly in Case 120/78 Rewe-Zentral [1979] ECR 649, ‘Cassis de Dijon’, which I will discuss later. 47 – That proposal was set out in a memorandum sent to the Council by the French Government in January 1988 and entitled ‘Contribution to the completion of the Internal Market in foodstuffs’, in which, in addition to proposing that the protection of designations of origin for foodstuffs should be harmonised, urged the Commission to continue drawing up vertical harmonising measures (particularly for basic products), to introduce at Community level a system of recognition of speciality foods forming part of the culinary traditions of each Member State, and to reach an agreement on quality certification. See Brouwer, O., ‘Community Protection of Geographical Indications and Specific Character as a Means of Enhancing Foodstuffs Quality’, Common Market Law Review, No 28-1991, p. 618. 48 – For example, the Commission interpretative communication on the names under which food products are sold (OJ 1989 C 271, p. 2). 49 – The Parliament adopted a number of resolutions, most notably the Resolution of 28 April 1989 proposing the implementation in the Community of a system of protection for designations of origin, although it was confined to cheeses. 50 – On the same date, the Council adopted Regulation (EEC) No 2082/92 on certificates of specific character for agricultural products and foodstuffs (OJ 1992 L 208, p. 9), whose objective is also to implement a system for distinguishing between products on the market so that certain producers may increase their sales or improve their margins, by creating a traditional system of registration and labelling for products which have recognised specific features but which, unlike products covered by designations of origin and geographical indications, have no link, in terms of production or manufacture, to a particular place. That system is to exist in conjunction with national rules on certification. 51 – Maroño Gargallo, M.M., op. cit., p. 217. 52 – Cited in footnote 2, point 36. See also point 42, which sets out the consequences of registration under the basic regulation. 53 – That wording contains a definition of the concept similar to the one traditionally laid down in international agreements and national legislation. The wording of Article 2(2) echoes the definition set out in Article 2(1) of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of 31 October 1958, revised at Stockholm on 14 July 1967, UN Treaty Series, Vol. 923, No 13172, p. 205. It is also similar to the definition set out in Article 79 of Spanish Law 25/1970 of 2 December 1970 (BOE No 291), approving the Statute on Vines, Wine and Alcohol, and to the definition in Article 22 of Law 24/2003 of 10 July 2003 (BOE No 165) on Vines and Wine, which repealed the former law. 54 – Some writers are of the opinion that the distinction is one of degree only, rather than of substance. See, for example, Sordelli, L., ‘Indicazioni geografiche e denominazioni di origine nella disciplina comunitaria’, Diritto Industriale, 1994, p. 837 et seq. Other writers assert that the distinction is not clear, such as López Benítez, M., Las denominaciones de origen, Cedecs, Córdoba, 1996, p. 85. The same view was expressed by the Economic and Social Committee in the Opinion on the proposal for a Council Regulation (EEC) on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 1991 C 269, p. 62). 55 – Minutes No 7290/92 of 12 June 1992 of the Special Agricultural Committee state that ‘the Commission and the Council declare that, for the purposes of Article 2(2)(a) and (b), the Grand Duchy of Luxembourg will be regarded as an exceptional case. The Council and the Commission confirm that Article 2 of the Regulation covers the Luxembourg national trade mark’. See Pellicer, R., op. cit., B-84, pp. 16 and 17. 56 – As the Economic and Social Committee suggested at the relevant time in the Opinion on the proposal for a regulation, referred to above. 57 – Advocate General Jacobs raised that possibility in the Opinion in Case C-325/00 Commission v Germany [2002] ECR I-9977, ‘CMA’, stating at point 40 that the definition applies essentially where the Member State in question ‘is particularly small (e.g. Luxembourg) and, perhaps, where registration is sought for a whole Member State in respect of a particular product the quality or reputation of which is attributable to that Member State’. 58 – Under the French law of 6 July 1966, the name of a country may, without limitation, constitute a designation of origin. Furthermore, there are no limits as to area in the Agreement on Trade-Related Aspects of Intellectual Property Rights, which is included in Annex 1C to the Agreement Establishing the World Trade Organisation, approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1). Article 22 defines geographical indications ‘which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin’. The Lisbon Agreement of 1958 provides a similar definition with regard to designations of origin. 59 – That is clear from the definition of ‘specified region’ contained in Annex VI.A of Regulation No 1493/1999, which is restricted to ‘a wine-growing area or a combination of wine-growing areas’. More specifically, the third recital in the preamble to Regulation No 1576/89 states that ‘… Community rules should reserve, for certain territories among which certain countries may, by way of exception, appear, the use of geographical designations referring to them …’, while Article 5(3) of that regulation provides for a specific derogation in favour of Luxembourg, with regard to the marque nationale luxembourgeoise. 60 – Cortés Martín, J.M., op. cit., p. 351. In that connection, it has been correctly noted that the likelihood of proving that relationship ‘diminishes in proportion to the size of the area to which the name relates’ (point 8 of the Opinion delivered by Advocate General La Pérgola in the Feta case). 61 – Commission Regulation (EC) No 2325/1997 of 24 November 1997 supplementing the Annex to 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 No 2081/92 (OJ 1997 L 322, p. 33). 62 – Commission Regulation (EC) No 1778/2001 of 7 September 2001 supplementing the Annex to Regulation No 1107/96 (OJ 2001 L 240, p. 6). 63 – In point 45 of the Opinion he delivered in Joined Cases C-108/97 and C-109/97 Windsurfing Chiemsee [1999] ECR I-2779, Advocate General Cosmas referred to raw materials, the soil and the climate in the region as natural factors, and a concentration of similar businesses in the same region, specialisation in the manufacture of certain products and quality maintenance at specified levels as human factors. 64 – Indeed, many mineral waters (in which natural factors predominate) have been registered as designations of origin, whereas bread, confectionery and pastry products have been registered as geographical indications. It is important to bear in mind that Regulation No 692/2003 excluded mineral and spring waters from the scope of the basic regulation and consequently, 10 years after its adoption, such names will no longer appear in the register (Article 2). 65 – Fernández Novoa, C., La protección internacional de las denominaciones geográficas de los productos, Tecnos, Madrid, 1970, p. 3. 66 – In the Proposal for the regulation (OJ C 30, p. 11), such names were considered as geographical indications. In fact, some writers have taken the view that the failure to provide for the extension of the scope of geographical indications is discriminatory. See Beier, F.K., and Knaak, R., ‘The Protection of Direct and Indirect Geographical Indications of Source in Germany and The European Community’, International Review of Industrial Property and Copyright Law, vol. 25-1994, p. 32; Tilmann, W., ‘EG-Schutz für Geographische Herkünftsangaben’, Gewerblicher Rechtsschutz und Urheberrecht, 1992, p. 833; and Jiménez Blanco, P., Las denominaciones de origen en el Derecho del comercio internacional, Eurolex, Madrid, 1996, p. 52 67 – Annex VI to Regulation No 1493/1999 provides that the appellations ‘muscadet’, ‘blanquette’, ‘vinho verde’, ‘cava’ and ‘manzanilla’ are recognised as the names of the respective specified regions demarcated and regulated by the relevant Member States before 1 March 1986. Similarly, Regulation No 1576/89 protects the names ‘pacharán’, ‘korn’, ‘kornbrand’ and ‘jägertee’. 68 – That derogation was included in the basic regulation in response to an application from the United Kingdom to register Stilton, a cheese whose production began in the English town of the same name but later moved to a nearby town while retaining the name by which it was traditionally known. 69 – Case 12/74 Commission v Germany [1975] ECR 181, ‘Sekt-Weinbrand’. 70 – Fernández Novoa, C., op. cit., p. 39; see also, Mattera, A., El mercado único, sus reglas y su funcionamiento, Civitas, Madrid, 1991, p. 447. 71 – Governed by Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994 L 11, p. 1). 72 – A new wording of that article is contained in Council Regulation (EC) No 806/2003 of 14 April 2003 adapting to Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in Council instruments adopted in accordance with the consultation procedure (qualified majority) (OJ 2003 L 122, p. 1). 73 – The details of that procedure are set out in the Commission communication to traders involved with designations of origin and geographical indications for agricultural products and foodstuffs concerning the simplified procedure for Community registration as laid down in Article 17 of Regulation No 2081/92 (OJ 1993 C 273, p. 4). The absence of a procedure under which individuals affected by a registration were able to lodge an objection was strongly criticised by academic writers, including Cortés Martín, op. cit., pp. 386 and 387. In accordance with Recital 13 in the preamble to Regulation No 692/2003, that shortcoming was among the reasons for the abolition of the simplified procedure. 74 – Decision setting up a scientific committee for designations of origin, geographical indications and certificates of specific character (OJ 1993 L 13, p. 16), amended by Decision 94/437/EC of 14 June 1994 (OJ 1994 L 180, p. 47) and Decision 97/656/EC of 2 October 1997 (OJ 1997 L 277, p. 30). 75 – Regulation of 12 June 1996 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Regulation No 2081/92 (OJ 1996 L 148, p. 1). 76 – Commission Regulations (EC) No 1263/96 of 1 July 1996 (OJ 1996 L 163, p. 19), No 123/97 of 23 January 1997 (OJ 1997 L 22, p. 19), No 1065/97 of 12 June 1997 (OJ 1997 L 156, p. 5), No 134/98 of 20 January 1998 (OJ 1998 L 15, p. 6), No 644/98 of 20 March 1998 (OJ 1998 L 87, p. 8), No 1549/98 of 17 July 1998 (OJ 1998 L 202, p. 25), No 83/1999 of 13 January 1999 (OJ 1999 L 8, p. 17), No 590/1999 of 18 March 1999 (OJ 1999 L 74, p. 8), No 1070/1999 of 25 May 1999 (OJ 1999 L 130, p. 18), No 2317/1999 of 29 October 1999 (OJ 1999 280, p. 66), No 813/2000 of 17 April 2000 (OJ 2000 L 100, p. 5), No 2703/2000 of 11 December 2000 (OJ 2000 L 311, p. 25), No 913/2001 of 10 May 2001 (OJ 2001 L 129, p. 8), No 1347/2001 of 28 June 2001 (OJ 2001 L 182, p. 3), and No 1660/2003 of 19 September 2003 (OJ 2003 L 234, p. 10). In addition, Regulation No 2325/97 and No 1778/2001, cited above, and Regulation No 1829/2002, which is contested in these proceedings. 77 – Case 8/74 [1974] ECR 837. 78 – This case is known as ‘Cassis de Dijon’ after the French fruit liqueur with an alcohol content of between 15º and 20º which is sold freely in France, and which it was attempted to market in Germany where a minimum alcohol content of 25º was required. 79 – Case 113/80 Commission v Ireland [1981] ECR 1625, paragraph 7; Case 95/81 Commission v Italy [1982] ECR 2187, paragraphs 20 and 21; and Joined Cases C-321/94 to C-324/94 Pistre and Others [1997] ECR I-2343, paragraph 52. 80 – Case C-205/89 Commission v Greece [1991] ECR I-1361, paragraph 9. 81 – For example, Beier, F.-K., ‘Propiedad industrial y libre circulación de mercancías en el mercado interior y en el comercio con terceros Estados’, Revista General de Derecho, Number 549, June 1990, p. 4521 and footnote 31 on p. 4519. See also Bercovitz, A., op. cit., p. 520. 82 – Revised at Stockholm on 14 July 1967, UN Treaty Series, Vol. 828, No 11851, p. 305. 83 – Case C-47/90 [1992] ECR I-3669. 84 – Case C-3/91 [1992] ECR I-5529. 85 – Case C-388/95 [2000] ECR I-3123. 86 – Case C-469/00 [2003] ECR I-5053, paragraph 49. 87 – Case C-108/01 [2003] ECR I-5121, paragraph 64. 88 – Academic writers criticised strongly the fact that a dual connection was also required for indications of origin. See, inter alia, Beier, F.-K., ‘La nécessité de protéger les indications de provenance et les appellations d’origine dans le Marché Commun. En marge de l’Arret Sekt/Weinbrand de la Cour de Justice des Communautés européennes du 20 février 1975’, Proprieté Industrielle, WIPO/BIRPI, 1977, p. 160. 89 – For a specific reference to ‘reputation’, see, for example, Case 102/77 Hoffmann-La Roche [1978] ECR 1139, paragraph 7, and Joined Cases C-71/94, C-72/94 and C-73/94 Eurim-Pharm [1996] ECR I‑3603, paragraph 31 (both of which dealt with trade marks), in addition to Exportur, paragraph 28, and Case C-306/93 SMW Winzersekt [1994] ECR I-5555, paragraph 25. 90 – Case 144/81 [1982] ECR 2853. 91 – Case C-312/98 [2000] ECR I‑9187, in response to a reference for a preliminary ruling which arose in a dispute about the labelling of beer. 92 – Case C-99/99 [2000] ECR I-11535. 93 – Commission Regulation (EC) No 2815/98 of 22 December 1998 (OJ 1998 L 349, p. 56). 94 – Case C-216/01 [2003] ECR I-13617. 95 – Case C-87/97 [1999] ECR I-1301. The case concerned a dispute involving the names ‘Cambozola’, a cheese imported into Italy from another Member State where it is legally produced, and ‘Gorgonzola’, an Italian cheese whose designation of origin is recorded in the Community register. The Court held that, although in outward appearance the two foods are not dissimilar, it would seem reasonable to conclude that a protected name is indeed evoked where they contain the same number of syllables of which the last two are the same, with the result that there is a phonetic and visual similarity between the two terms. 96 – In view of the fact that the product specifications for designations of origin are not published, the two judgments also examined whether those specifications could be relied on against third parties. 97 – Joined Cases C-129/97 and C-130/97 [1998] ECR I‑3315. The facts were that the French Government had registered the name ‘Époisses de Bourgogne’ in accordance with the simplified procedure and then applied for amendment so that the name ‘Époisses’ alone was protected. 98 – Case C-66/00 [2002] ECR I-5917. 99 – Pursuant to Commission Regulation (EC) No 590/1999 of 18 March 1999 supplementing the Annex to Regulation No 1107/96 (OJ 1999 L 74, p. 8). 100 – Case C-269/99 [2001] ECR I-9517. 101 – Advocate General Alber took a similar approach in the Opinions he delivered in both cases (points 92 and 97, respectively). 102 – See the factual background set out in points 22 to 47 of the ‘Feta’ judgment, which I will look at in detail below. 103 – FEK B 8. 104 – A basic summary of the questionnaire is attached as Annex 1 to the Commission’s defence. Its indicative nature is referred to in the 17th recital in the preamble to Regulation No 1829/2002, which notes that ‘the absence of a specific legislative framework in almost all the Member States, along with the very general definition of the term “Feta” in the combined customs nomenclature, sometimes leads to rather approximate estimates, and cross-comparisons of responses produce statistically divergent data. Indeed, many Member States find it difficult to distinguish between domestic output and re-exports, which may unduly inflate the figures’. 105 – From 1981 to 1998, the Netherlands also had legislation governing feta production. Austria reserves the term to Greek products, in accordance with the Convention concluded with Greece on 20 June 1972 pursuant to the Agreement between the two countries of 5 June 1970 on the protection of indications of origin and the names of agricultural, artisanal and industrial products, (BGBl. Nos 378/1972 and 379/1972; Österreichisches Patentblatt No 11/1972 of 15 November 1972). 106 – The representative of France stated at the hearing that, in that country, production was 10 325 tonnes in 2003 and 11 200 tonnes in 2004. 107 – Recital 19 in the preamble to Regulation No 1829/2002 states that a broad assessment ‘has proved inadequate in some cases and has even produced anomalous results in others: since it is impossible to take account of existing stocks, quantities re-exported and other factors, the calculation has resulted in theoretically negative consumption in some Member States’. 108 – At the hearing it was confirmed that labels alluding to Greece are used by German and Danish producers, a fact which is also referred to in the documents which the Commission attached to its defence. 109 – The full text of the opinion is attached as Annex 3 to the defence of the Commission. The findings are set out in recitals 30 to 32 in the preamble to Regulation No 1829/2002. 110 – However, the view in academic legal circles was that the conflict could be resolved only by compromise. Fluir, A., ‘Feta als geschützte Ursprungsbezeichnung – eine Leidensgeschichte’, European Law Reporter, 2002, No 11, p. 437. 111 – Ministerial Order No 15294/1987 of the Ministries of Finance and Agriculture (FEK B 347). 112 – FEK B 892. 113 – FEK B 663. 114 – FEK B 667. 115 – The Court of First Instance has also been seised of a number of similar actions contesting Regulation No 1829/2002, brought by Alpenhain-Camembert-Werk and Others (T-370/02), by the Confédération générale des producteurs de lait de brebis et des industriels de Roquefort (T-381/02) and by Arla Foods and Others (T-397/02). In the Order of 6 July 2004 ([2004] ECR II-2097) in the first of the aforementioned cases, the Court of First Instance allowed the objection submitted by the Commission and declared the action inadmissible on the ground that the contested act did not individually concern the applicants, German undertakings involved in the production of cheese marketed as ‘feta’. The other two cases are pending judgment. 116 – Rules of Procedure of the Court of Justice, Codified Version of 19 June 1991 (OJ 1991 L 176, p. 7), amended on a number of occasions (most recent official publication in OJ 2003 C 193, p. 1). 117 – Regulation No 1 of the Council of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958,p. 59). 118 – Forwarding of the agenda, proposed measures, and other working documents at least 14 days before the date of the meeting is provided for in Article 3 of the standard rules of procedure approved by Council Decision 1999/468/EC (OJ 2001 C 38, p. 3). It is also important to bear in mind Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), and Regulation No 806/2003, cited above. 119 – I took a similar approach in the Opinion in Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and 219/00 P Aalborg Portland and Others [2004] ECR I-123, pointing out that an act containing a decision on a file may be annulled only ‘if it is found that, if the proper procedural routes had been scrupulously followed, the outcome could have been more advantageous for the person concerned or if, precisely because of the procedural defect, it is impossible to ascertain whether the decision would have been different’. I went on to state that ‘defects in the procedure do not have a life of their own in isolation from the substance of the case. If a decision taken in the wake of a defective procedure is annulled because, owing to the defects in the procedure leading to its adoption, it is wrong in substance, the decision is annulled because it is incorrect in substance, not because of the procedural defect. The defect in form assumes an independent existence only when, because it occurred, it is impossible to form an opinion about the decision which was adopted’. 120 – The summarised minutes of the meeting record that no agreement was reached, since the proposal received 47 votes in favour, 23 against and 17 abstentions. That document, together with the other minutes of the Committee on Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs, can be found at www.europa.eu.int/comm/agriculture/minco/regco. 121 – Case C-263/95 [1998] ECR I-441. 122 – Case C-249/02 [2004] ECR I-10717. 123 – Case 131/86 United Kingdom v Council [1988] ECR 905, paragraph 37. 124 – Case 18/57 Nold v High Authority [1959] ECR 41 and subsequent cases. 125 – Case C-350/88 Delacre and Others v Commission [1990] ECR I-395 and Case C-22/94 Irish Farmers Association and Others [1997] ECR I-1809. 126 – That is also the order followed in Denmark’s application, while Germany’s application deals first of all with the traditional character of the name and then goes on to assert that it is generic. 127 – I have taken that example from the Diccionario de la Real Academia Española, 22nd edition. 128 – However, as I observed in point 28 of the Opinion in Canadane Cheese and Kouri, the Court has held the following to be generic names: vinegar (Case 193/80 Commission v Italy [1981] ECR 3019); geneva (Case 182/84 Miro [1985] ECR 3731); beer (Case 178/84 Commission v Germany [1987] ECR 1227); pasta (Case 407/85 3Glocken and Kritzinger [1988] ECR 4233 and Case 90/86 Zoni [1988] ECR 4285); yoghurt (Case 298/87 Smanor [1988] ECR 4489); Edam cheese (Case 286/86 Deserbais [1988] ECR 4907); cheeses (Case C-210/89 Commission v Italy [1990] ECR I-3697 and Case C-196/89 Nespoli and Crippa [1990] ECR I-3647); meat products (‘Fleischwaren’) (Case C-269/89 Bonfait [1990] ECR I-4169); and bread (Case 130/80 Kelderman [1981] ECR 527, Case C-17/93 Van der Veldt [1994] ECR I-3537, and Case C-358/95 Morellato [1997] ECR I‑1431). 129 – Opinion of Advocate General Saggio in Case C-448/98 Guimont [2000] ECR I-10663, point 11. 130 – Unlike the rules with regard to trade marks, the basic regulation does not set out grounds for generalisaton, which has led to a number of criticisms. See Lobato García-Miján, L., ‘La protección de las Denominaciones de origen: estudio del reglamento (CEE) 2081/92’, Estudios de Derecho Mercantil en homenaje al profesor Manuel Brosseta Pont, Volume II, Tirant lo Blanch, Valencia, 1995, p. 1985 et seq. On the subject of popular usage, see Fernández Novoa, C., op. cit., p. 42. 131 – For example, in the English case Wine Products Ltd. & others v Mackenzie & Co. Ltd & Others, the High Court (Chancery Division) gave judgment on 31 July 1967 authorising Australian and South African producers to use on the English market the name ‘Jerez’ (Sherry), a Spanish town, provided that they added the adjective Australian or South African (‘Australian Sherry’ or ‘South African Sherry’), holding that to permit producers of sherry to prevent the use of those expressions would be unjust since they had already been aware of such use (see the Opinion of Advocate General Warner in Sekt-Weinbrand). In French case-law, the judgment of the Cour d’Appel de Montpellier of 25 August 1984 on the designations ‘Jijona’ and ‘Alicante’ gave rise to much discussion when it was examined in the light of the findings of the Court in the judgment in Exportur which was delivered in response to a reference for a preliminary ruling in that case. 132 – I would like to qualify the statement made by Advocate General Léger in point 40 of the Opinion in Bigi, to the effect that, ‘[s]ince the assessment of whether a name is generic in terms of the Regulation falls within the remit of the Commission, I take the view that it is not for the Court to take on the task of the Commission on that question. The role of the Court consists simply in reviewing the legality of decisions adopted by the Commission (or the Council) on the subject, in accordance with Article 230 EC’. While I do not dispute the second part of that statement, I believe that where an act is annulled following an assessment by the Court as to whether a particular name is generic, the Court has not taken on the task of the Commission or usurped its powers. 133 – The words are taken from Advocate General Léger, at point 50 of the Opinion in Bigi. 134 – The fact that there are two methods addresses the need for a broad-based approach owing to the different levels of protection in the Member States. 135 – Paragraphs 22 to 28 of the Feta judgment describe the steps taken by the Commission to draw up a draft non-exhaustive indicative list of names which are precluded from registration because they are regarded as generic. 136 – López Escudero, M., in ‘Parmigiano, feta, epoisse y otros manjares en Luxemburgo: las denominaciones geográficas ante el TJCE’, Une Communauté de droit: Festschrift für Gil Carlos Rodríguez Iglesias, BMW-Berliner Wissenschafts-Verlag, 2003, p. 409 et seq., directs harsh criticism towards the fact that to determine whether or not the name of a product is generic there must be an exclusive connection with a particular area. 137 – For example, Fernández Novoa, C., op. cit., p. 46, and, in German academic legal circles, Bussman, K., ‘Herkunftsangabe oder Gattungsbezeichnung’, Gewerblicher Rechtsschutz Und Urheberrecht, 1965, p. 281 et seq. 138 – The procedure leading to registration in the Annex to Commission Regulation (EC) No 2400/96 of 17 December 1996 on the entry of certain names in the ‘Register of protected designation of origin and protected geographical indications’ provided for in Regulation No 2081/92 (OJ 1996 L 327, p. 11), amended on numerous occasions. 139 – See, in that regard, Cortés Martín, J.M., op. cit., p. 381. 140 – See, in that regard, Cortés Martín, J.M., op. cit., footnote 1206, p. 381. 141 – Fernández Novoa, C., op. cit., p. 43. 142 – Rochard, D., ‘“Rillettes du Mans”, “Rilettes de la Sarthe”: dénominations génériques ou IGP? C’est le juge qui va déguster!’, Revue de Droit Rural, No 251, 1997, p. 175. 143 – Rochard, D., op. cit., refers specifically to the Stresa Convention, concluded on 1 June 1951, which authorises the signatories thereto to use the names in Annex II, provided that the rules on production are observed and the country of production is specified. However, the names in Annex I may be used only by producers in the relevant geographical area. It should be noted that Denmark was a signatory to the convention, which does not apply to feta, but later withdrew, while Greece has never been a signatory. 144 – See point 19 of the Opinion in Canadane Cheese Trading and Kouri. 145 – On the subject of international agreements, see, for example, the Euro-Mediterranean Agreement establishing an Association between the European Communities and theirMember States, of the one part, and the Arab Republic of Egypt, of the other part, done at Luxembourg on 25 June 2001 (OJ 2004 L 304, p. 39), particularly Article 37, Annex VI and the joint declaration on the two; the Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Member States, of the one part, and the United Mexican States, of the other part, concluded in Brussels on 8 December 1997 (OJ 2000 L 276, p. 45 ), particularly Article 12; and the Interim Agreement on trade and trade-related matters between the European Economic Community and the European Coal and Steel Community, of the one part, and the Republic of Bulgaria, of the other part, concluded in Brussels on 8 March 1993 (OJ 1993 L 323, p. 2). 146 – Homer, The Odyssey, Book IX, translated by E.V. Rieu, Penguin Books, 1946, p. 145. 147 – Ibid., p. 142: ‘the Cyclopes, a fierce, uncivilized people ... have no assemblies for the making of laws, nor any settled customs, but live in hollow caverns in the mountain heights, where each man is law-giver to his children and his wives, and nobody cares a jot for his neighbours’; p. 145: a ‘being of colossal strength and ferocity, to whom the law of god and man meant nothing’. 148 – Ibid., Book XX, p. 306. 149 – Homer, The Iliad, Book XI, translated by E.V. Rieu, Penguin Books, 1950, p. 214: the lady Hecamede, the ‘comely attendant’ of Nestor and Patroclus, ‘mixed them the pottage with Pramnian wine ... grating into it some goat’s milk cheese with a bronze grater …’. 150 – See O´Connor, B. and Kirieeva, I., ‘What’s in a name?: The Feta cheese saga’, International trade law and regulation, Vol. 9, 2003, p. 117 et seq. 151 – That approach is in accordance with Article 6 of the Lisbon Agreement and contrasts with Article 24(6) of the Agreement on Trade-Related Aspects of Intellectual Property Rights which gives precedence to the situation of the name in areas of consumption. 152 – Article 3 of the basic regulation provides 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 …’. 153 – Although Denmark disputes the opinion, it has not put forward any convincing reasons why the opinion should be discredited. 154 – Putting aside earlier doubts, the usefulness of opinion polls was acknowledged in the judgments in Windsurfing Chiemsee, paragraph 53, and in Case C-210/96 Gut Springenheide and Tusky [1998] ECR I-4657, paragraph 37. Although those judgments refer to that method in the context of trade marks and the guidance is directed towards national courts, the case-law can be extrapolated to the field of designations of origin and the actions of the Community institutions. 155 – In accordance with the judgment in Joined Cases C-267/95 and C-268/95 Merck and Beecham [1996] ECR I-6285, which dealt specifically with patents, the specific subject-matter of industrial and commercial property in that connection ‘is, in particular, in order to reward the creative effort of the inventor, to guarantee that the patentee has the exclusive right to use an invention with a view to manufacturing industrial products and putting them into circulation for the first time, either directly or by the grant of licences to third parties, as well as the right to oppose infringements’ (paragraph 30). 156 – The Greek provisions and the product specification attached to the application for entry in the Community Register permit production in Macedonia, Thrace, Epirus, Thessaly, Central Greece, Peloponnese – nearly all of mainland Greece – and the nomos (an administrative district) of Lesbos. 157 – It is important to bear in mind the evolution of the European Union, which has progressively expanded, on a number of occasions to admit small States. The phenomenon will continue and, perhaps, the protection conferred on a product in an area of the current territory of the Community will extend to areas in the new States. 158 – Advocate General La Pérgola accepted that view in the Opinion in Feta (point 8). 159 – I noted as much in point 75 of my Opinion in Canadane Cheese Trading and Kouri, pointing out that otherwise it ‘would preclude protection for many geographical names because modern production techniques enable almost any product to be made anywhere’. 160 – In other words, it does not even cover the whole of that island. 161 – Calvino, I., Palomar, ed. Giulio Einaudi, Turin, 1983, p. 85.