Opinion of the Advocate General — ECLI:EU:C:2003:302
Date: 2003-05-22
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Foodstuffs;General provisions;Free movement of goods;Measures having equivalent effect;Consumer protection;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Agriculture — Uniform laws — Protection of geographical indications and desig­
nations of origin for agricultural products and foodstuffs — Matters covered by 
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SUMMARY — CASE C-216/01 
Regulation No 2081/92 — Provision of a bilateral agreement between a Member State 
and a non-member country protecting a simple and indirect indication of geographical 
origin — Not covered 
(Council Regulation No 2081/92, Art. 2(2)(b)) 
2. Free movement of goods — Quantitative restrictions — Measures having equivalent 
effect — Provision of a bilateral agreement between a Member State and a non-
member country protecting a simple and indirect indication of geographical origin — 
justification — Condition — hack of generic nature 
(Arts 28 EC and 30 EC) 
3. Free movement of goods — Quantitative restrictions — Measures having equivalent 
effect — Provision of a bilateral agreement between a Member State and a non-
member country protecting a name without direct or indirect connection to the country 
of geographical origin — Not permissible 
(Art. 28 EC) 
4. International agreements — Agreements concluded by Member States — Agreements 
predating the EC Treaty — Provision of bilateral agreements concluded between a 
Member State and a non-member country contrary to the Treaty — Application by the 
court of the Member State — Whether permissible — Obligation to eliminate any 
incompatibilities between a prior agreement and the Treaty 
(Art. 307, first and second paras, EC) 
1. Regulation No 2081/92 on the pro­
tection of geographical indications and 
designations of origin for agricultural 
products and foodstuffs, as amended 
by Regulation No 535/97, does not 
preclude the application of a provision 
of a bilateral agreement between a 
Member State and a non-member 
country under which a simple and 
indirect indication of geographical ori­
gin from that non-member country is 
accorded protection in the importing 
Member State, whether or not there is 
any risk of consumers being misled, 
and the import of a product lawfully 
marketed in another Member State 
may be prevented. 
(see paras 78, 103, operative part 1) 
2. Articles 28 EC and 30 EC do not 
preclude the application of a provision 
of a bilateral agreement between a 
Member State and a non-member 
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BUD JOVICKÝ BUDVAR 
country, under which a simple and 
indirect indication of geographical ori­
gin from that non-member country is 
accorded protection in the importing 
Member State, whether or not there is 
any risk of consumers being misled, 
and the import of a product lawfully 
marketed in another Member State 
may be prevented, provided that the 
protected name has not, either at the 
date of the entry into force of that 
agreement or subsequently, become 
generic in the State of origin. 
(see paras 102-103, 
operative part 1) 
3. Article 28 EC precludes the application 
of a provision of a bilateral agreement 
between a Member State and a non-
member country under which a name 
which in that country does not directly 
or indirectly refer to the geographical 
source of the product that it designates 
is accorded protection in the importing 
Member State, whether or not there is 
any risk of consumers being misled, 
and the import of a product lawfully 
marketed in another Member State 
may be prevented. 
(see para. 111, 
operative part 2) 
4. The first paragraph of Article 307 EC is 
to be interpreted as permitting a court 
of a Member State, subject to the 
findings to be made by that court 
having regard inter alia as to whether 
the Member State and the non-member 
country showed that they intended to 
apply the principle of the continuity of 
treaties to the bilateral instruments at 
issue, to apply the provisions of bilat­
eral agreements concluded between 
that State and a non-member country 
and according protection to a name 
from the non-member country, even 
where those provisions prove to be 
contrary to the Treaty rules, on the 
ground that they concern an obligation 
resulting from agreements concluded 
before the date of the accession of the 
Member State concerned to the Euro­
pean Union. Pending the success of one 
of the methods referred to in the second 
paragraph of Article 307 EC in elimin­
ating any incompatibilities between an 
agreement predating that accession and 
the Treaty, the first paragraph of that 
article permits that State to continue to 
apply such an agreement in so far as it 
contains obligations which remain 
binding on that State under inter­
national law. 
(see paras 164, 173, 
operative part 3) 
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