62017TJ0626
JUDGMENT OF THE GENERAL COURT (Fourth Chamber, Extended Composition)
9 September 2020 (
*1
)
(Agriculture – Regulation (EU) No 1308/2013 – Designations of origin in the wine sector – Wine labelling – Use of the name of a wine grape variety which contains or consists of a protected designation of origin – Prohibition – Exception – Delegated Regulation (EU) 2017/1353 – Inclusion of the name of the ‘Teran’ wine grape variety in the list set out in Part A of Annex XV to Regulation (EC) No 607/2009 – Retroactive effect from the date of the accession of the Republic of Croatia to the European Union – Slovenian protected designation of origin ‘Teran’ – Legal certainty – Legitimate expectations – Proportionality – Right to property – Act concerning the conditions of accession of Croatia to the European Union – Interinstitutional Agreement on Better Law-Making – Institutional balance)
In Case T‑626/17,
Republic of Slovenia, represented by V. Klemenc and T. Mihelič Žitko, acting as Agents, and R. Knaak, lawyer,
applicant,
v
European Commission, represented by B. Eggers, I. Galindo Martín and B. Rous Demiri, acting as Agents,
defendant,
supported by
Republic of Croatia, represented by G. Vidović Mesarek, acting as Agent, and I. Ćuk, lawyer,
intervener,
APPLICATION under Article 263 TFEU for annulment of Commission Delegated Regulation (EU) 2017/1353 of 19 May 2017 amending Regulation (EC) No 607/2009 as regards the wine grape varieties and their synonyms that may appear on wine labels (OJ 2017 L 190, p. 5),
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed of H. Kanninen, President, J. Schwarcz, L. Madise, C. Iliopoulos and I. Reine (Rapporteur), Judges,
Registrar: S. Bukšek Tomac, Administrator,
having regard to the written part of the procedure and further to the hearing on 3 December 2019,
gives the following
Judgment
I. Legal context
A. General provisions on the protection of designations of origin in the wine sector
1.
Regulation No 479/2008 and Regulation No 1234/2007
1
Article 51 of Council Regulation (EC) No 479/2008 of 29 April 2008 on the common organisation of the market in wine, amending Regulations (EC) No 1493/1999, (EC) No 1782/2003, (EC) No 1290/2005, (EC) No 3/2008 and repealing Regulations (EEC) No 2392/86 and (EC) No 1493/1999 (OJ 2008 L 148, p. 1), which applied from 1 August 2009 and concerned wine names already protected under previous regulations, provided as follows:
‘1.   Wine names, which are protected in accordance with Articles 51 and 54 of [Council] Regulation (EC) No 1493/1999 [of 17 May 1999 on the common organisation of the market in wine (OJ 1999 L 179, p. 1)] … shall automatically be protected under this Regulation. The Commission shall list them in the register provided for in Article 46 of this Regulation.
…
4.   …
It may be decided, until 31 December 2014, at the initiative of the Commission and in accordance with the procedure referred to in Article 113(2) [of that regulation], to cancel protection of existing protected wine names referred to in paragraph 1 if they do not meet the conditions laid down in Article 34 [of that regulation].’
2
Regulation No 479/2008 was repealed by Council Regulation (EC) No 491/2009 of 25 May 2009 amending Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2009 L 154, p. 1). At that time, provisions of Regulation No 479/2008 that were specific to the wine sector were incorporated into Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1).
3
In that connection, the provisions of Article 51(1) and (4) of Regulation No 479/2008 were reproduced in Article 118s(1) and (4) of Regulation No 1234/2007.
2.
Regulation No 1308/2013
4
Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013 L 347, p. 671) has been applicable since 1 January 2014.
5
Article 107 of Regulation No 1308/2013 reproduces the provisions of Article 118s(1) and (4) of Regulation No 1234/2007 concerning the protection of existing names in the following terms:
‘1.   Wine names referred to in Articles 51 and 54 of Council Regulation (EC) No 1493/1999 … shall be automatically protected under this Regulation. The Commission shall list them in the [E-Bacchus electronic] register provided for in Article 104 of this Regulation.
…
3.   …
Until 31 December 2014, the Commission may, on its own initiative, adopt implementing acts cancelling the protection of existing protected wine names referred to in paragraph 1 of this Article if they do not meet the conditions laid down in Article 93 [of that regulation].
…’
B. Provisions concerning use of the name of a wine grape variety which contains or consists of a PDO for labelling wines
1.
Regulation No 753/2002
6
Commission Regulation (EC) No 753/2002 of 29 April 2002 laying down certain rules for applying Council Regulation (EC) No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products (OJ 2002 L 118, p. 1), in the version in force until 1 August 2009, established a special system for wine labelling. In particular, Article 19(1)(c) of that regulation provided:
‘The names of the vine varieties used for the production of a table wine with a geographical indication or a [quality wine produced in a specified region (quality wine psr)] or their synonyms may be given on the label of the wine concerned provided that:
…
(c)
the variety name or one of its synonyms does not include a geographical indication used to describe a quality wine psr …’
7
The labelling ban was nevertheless subject to a specific exception set out in Article 19(2)(b) of Regulation No 753/2002, worded as follows:
‘By way of derogation from paragraph 1(c) [of Article 19 of Regulation No 753/2002]:
…
(b)
the variety names and their synonyms listed in Annex II [to that regulation] may be used under the national and Community rules in force on the date of entry into force of this Regulation.’
2.
Regulation No 479/2008, Regulation No 1234/2007 and Regulation No 1308/2013
8
Article 42(3) of Regulation No 479/2008 provided:
‘Save as otherwise provided for in Commission implementing measures, where the name of a wine grape variety contains or consists of a protected designation of origin or geographical indication that name shall not be used for purposes of labelling the products covered by this Regulation.’
9
Article 118j(3) of Regulation No 1234/2007 reproduced the provisions of Article 42(3) of Regulation No 479/2008. In the version applicable on 1 July 2013, it provided:
‘Save as otherwise provided for in Commission implementing measures, where the name of a wine grape variety contains or consists of a protected designation of origin or a protected geographical indication, that name shall not be used for the purposes of labelling the products covered by this Regulation.’
10
Article 100(3) of Regulation No 1308/2013, which replaced Regulation No 1234/2007 from 1 January 2014, now provides:
‘Where the name of a wine grape variety contains or consists of a protected designation of origin or a protected geographical indication, that name shall not be used for the purposes of labelling agricultural products.
In order to take into account existing labelling practices, the Commission shall be empowered to adopt delegated acts in accordance with Article 227 [of Regulation No 1308/2013] laying down exceptions from that rule.’
11
In addition, Article 227 of Regulation No 1308/2013 grants the European Commission the power to adopt delegated acts subject to the conditions laid down in that article.
12
The second subparagraph of Article 232(1) of Regulation No 1308/2013 provides that that regulation is to apply from 1 January 2014.
3.
Regulation No 607/2009
13
Article 62(3) of Commission Regulation (EC) No 607/2009 of 14 July 2009 laying down certain detailed rules for the implementation of Council Regulation (EC) No 479/2008 as regards protected designations of origin and geographical indications, traditional terms, labelling and presentation of certain wine sector products (OJ 2009 L 193, p. 60), in the version applicable to the dispute, provided:
‘By way of derogation from Article 42(3) of Regulation (EC) No 479/2008, the wine grape variety names and their synonyms listed in Part A of Annex XV to this Regulation, that consist of or contain a protected designation of origin or geographical indication may only appear on the label of a product with protected designation of origin or geographical indication … if they were authorised under Community rules in force on 11 May 2002 or on the date of accession of Member States, whichever is later.’
14
Part A of Annex XV to Regulation No 607/2009 contained the list of wine grape varieties and their synonyms that could appear on the label of wines in accordance with Article 62(3) of that regulation.
15
Regulation No 607/2009 was repealed by Commission Delegated Regulation (EU) 2019/33 of 17 October 2018 supplementing Regulation No 1308/2013 as regards applications for protection of designations of origin, geographical indications and traditional terms in the wine sector, the objection procedure, restrictions of use, amendments to product specifications, cancellation of protection, and labelling and presentation (OJ 2019 L 9, p. 2). The terms of Article 62(3) of Regulation No 607/2009 were reproduced, in essence, in Article 50(3) of Regulation 2019/33. Moreover, Part A of Annex XV to Regulation No 607/2009 now appears in Annex IV to Regulation 2019/33.
C. Labelling provisions adopted following the Republic of Croatia’s accession to the European Union
1.
Implementing Regulation No 753/2013
16
Following the Republic of Croatia’s accession to the European Union on 1 July 2013, the Commission adopted Implementing Regulation (EU) No 753/2013 of 2 August 2013 amending Regulation No 607/2009 (OJ 2013 L 210, p. 21).
17
Recitals 2, 3 and 5 of Implementing Regulation No 753/2013 state:
‘(2)
The wine legislation applicable in Croatia contains no provisions on protected designations of origin and geographical indications or on the labelling of wine products, particularly those provided for by Commission Regulation (EC) No 607/2009. To allow the economic operators established in Croatia to continue to sell products made in line with the provisions applicable in Croatia before it acceded to the Union, the operators must be given the option of using up stocks of wine produced in line with the rules applying prior to accession.
(3)
In view of its accession to the European Union on 1 July 2013, Croatia, in conformity with Article 62(3) of Regulation (EC) No 607/2009, has requested that the wine grape variety names “Alicante Bouschet”, “Burgundac crni”, “Burgundac sivi”, “Burgundac bijeli”, “Borgonja istarska” and “Frankovka” traditionally used to market wines produced in that country, which consist of or contain a protected designation of origin or geographical indication, may continue to appear on the labels of Croatian wines with a protected designation of origin or geographical indication. Following verification, the Commission agrees that the name of Croatia be included, with the date of accession, in Annex XV Part A of the above Regulation with regard to the names of the wine grape varieties to which this request refers.
…
(5)
Regulation (EC) No 607/2009 should therefore be amended accordingly.’
18
Article 1 of Implementing Regulation No 753/2013 states that wines produced in Croatia before 30 June 2013, that comply with the relevant provisions applicable in Croatia on that date, may, first, be marketed until stocks are exhausted and, second, be labelled under the provisions applicable in Croatia on 30 June 2013. Article 1 also provides, in essence, that the name of the Republic of Croatia is to be included in Annex XV to Regulation No 607/2009, with the date of its accession to the European Union, with regard to the names of the wine grape varieties requested by that State.
2.
The contested regulation
19
On 19 May 2017, the Commission adopted Delegated Regulation (EU) 2017/1353 amending Regulation (EC) No 607/2009 as regards the wine grape varieties and their synonyms that may appear on wine labels (OJ 2017 L 190, p. 5; ‘the contested regulation’). Recitals 2 to 5 of that regulation provide:
‘(2)
With a view to its accession to the European Union on 1 July 2013, [the Republic of] Croatia requested that its national list of recognised wine grape varieties be added to the list of wine grape varieties that include a geographical indication and may appear on wine labels, a list which was contained in Annex II to Commission Regulation (EC) No 753/2002 and is currently found in Annex XV to Commission Regulation (EC) No 607/2009. In accordance with Regulation (EC) No 1234/2007 of the European Parliament and of the Council, the Commission informed [the Republic of] Croatia that the national list of varieties need not be approved at EU level and that each Member State might decide on its own list. Likewise, the Commission informed [the Republic of] Croatia that, in accordance with the practice followed in previous accessions and, in particular, with regard to Commission Regulation (EC) No 1429/2004 amending Annex II to Regulation (EC) No 753/2002, the names of Croatian wine grape varieties would be added to Annex XV to Regulation (EC) No 607/2009 after [the Republic of] Croatia’s accession. On the basis of this information, [the Republic of] Croatia withdrew this request from its negotiating position.
(3)
Annex XV to Regulation (EC) No 607/2009 was amended by Commission Regulation (EU) No 753/2013 in order to include, in particular, the names of wine grape varieties used traditionally for the marketing of wines produced in the territory of Croatia that contain or consist of a designation of origin or geographical indication protected in the Union, so that they may continue to appear on the labels of Croatian wines covered by a protected designation of origin or protected geographical indication. In light of the sensitivity of the matter for [the Republic of] Slovenia, the name of the “Teran” wine grape variety, which is a homonym of the Slovenian Protected Designation of Origin “Teran” (PDO-SI-A1581), has not been included in the Regulation pending the negotiation of a position between [the Republic of] Croatia and [the Republic of] Slovenia.
(4)
[The Republic of] Croatia has limited its request to use the name of the “Teran” wine grape variety to wines covered by the Protected Designation of Origin “Hrvatska Istra” (PDO-HR-A1652). Despite the geographical limitation of the requested authorisation and the Commission’s sustained efforts, it has not been possible to reach a compromise solution between [the Republic of] Croatia and [the Republic of] Slovenia.
(5)
In the absence of a negotiated solution, despite the Commission’s efforts to reconcile the positions of [the Republic of] Croatia and [the Republic of] Slovenia, and following a verification of the information available to the Commission on existing labelling practices concerning the “Teran” wine grape variety, the name of that variety should be entered in Part A of Annex XV to Regulation (EC) No 607/2009 in connection with the Protected Designation of Origin “Hrvatska Istra”.’
20
It is also apparent from recital 8 of the contested regulation that it should be given retroactive effect from the date of the Republic of Croatia’s accession to the European Union, on 1 July 2013, for the following reasons:
‘[The Republic of] Croatia’s entry in Part A of Annex XV to Regulation (EC) No 607/2009 as regards the use of the name of the “Teran” wine grape variety should take effect on the date of [the Republic of] Croatia’s accession to the Union on 1 July 2013, since [the Republic of] Croatia’s request was made before that date, the traditional use of the wine grape variety name “Teran” when marketing wines products produced on the territory of [the Republic of] Croatia was a practice existing at the time of accession, and since the adoption of this Regulation was postponed solely pending a negotiated solution. For the same reasons, a transitional provision should be issued for wines produced before the entry into force of this Regulation’.
21
Under Article 1 of the contested regulation, an additional row 55 was added to Part A of Annex XV to Regulation No 607/2009, stating that the name ‘Teran’ could be indicated as a wine grape variety on the label of wines produced in Croatia, but solely for the designation of origin ‘Hrvatska Istra’ (PDO-HR-A 1652), and on condition that ‘Hrvatska Istra’ and ‘Teran’ appeared in the same visual field and that the font size of the name ‘Teran’ was smaller than that of the words ‘Hrvatska Istra’.
22
Article 2 of the contested regulation provides, however, for the following transitional measure:
‘Wines with the protected designation of origin “Hrvatska Istra” (PDO-HR-A1652), produced before the date of entry into force of this Regulation pursuant to the applicable legislation, may be marketed until stocks are exhausted, even if they do not comply with the labelling conditions provided for in row 55 of Part A of Annex XV to Regulation (EC) No 607/2009, as added by Article 1 of this Regulation.’
23
Under the first paragraph of Article 3 of the contested regulation, that regulation is to enter into force on the day of its publication in the Official Journal of the European Union, that is to say, 21 July 2017. However, the second paragraph of that article provides that the contested regulation is to apply from 1 July 2013.
II. Background to the dispute
A. The Republic of Slovenia’s accession to the European Union and the protected designation of origin ‘Teran’
24
The Republic of Slovenia acceded to the EU on 1 May 2004.
25
Following that accession, the Commission adopted Regulation (EC) No 1429/2004 of 9 August 2004 amending Regulation No 753/2002 (OJ 2004 L 236, p. 11). In accordance with Article 3 thereof, Regulation No 1429/2004 is to apply retroactively from the date of the Republic of Slovenia’s accession to the European Union.
26
Under Annex II to Regulation No 1429/2004, various names of vine varieties that include a geographical indication and that may appear on the labelling of wines were added to the list referred to in Article 19(2) of Regulation No 753/2002 for the Republic of Slovenia. The name ‘Teran’ was entered, for the Republic of Slovenia, in the list of ‘additional traditional terms’ in the European Union, that is to say, the list of terms traditionally used in producer Member States to designate the production or ageing method or the quality, colour, type of place, or a particular event linked to the history of the wine concerned and defined in a Member State’s legislation for the purposes of designating the wines concerned originating in its territory. The additional traditional term ‘Teran’ was thus linked with wine from Kras as a quality wine produced in a specified region (quality wine psr).
27
On 17 February 2006, in accordance with Article 54(5) of Regulation No 1493/1999, the Commission published in the Official Journal of the European Union (OJ 2006 C 41, p. 1) an updated list of quality wines psr drawn up on the basis of information submitted by the Member States. That list includes the name ‘Kras, teran’ for Slovenia.
28
By email of 7 July 2009, the Republic of Slovenia sent the Commission a new national list of its quality wines psr which this time included the names ‘Teran, Kras’ and ‘Kras’. That new list, which reflected the situation in Slovenia on 31 July 2009, was published in the Official Journal on 8 August 2009 (OJ 2009 C 187, p. 1). Pursuant to Article 51(1) of Regulation No 479/2008, the names on that list were then automatically protected under the new regulation. However, the Republic of Slovenia had to submit the technical files and the national decisions of approval for those names to the Commission.
29
On 6 December 2011, the Republic of Slovenia submitted to the Commission the technical file referred to in Article 118c of Regulation No 1234/2007 (corresponding to Article 35 of Regulation No 479/2008), relating to the wine name ‘Teran’ with a view to protecting that name as a protected designation of origin (PDO) within the meaning of Article 118b of that regulation.
30
On 17 December 2014, in his Communication C(2014) 9593 final addressed to the Commission, the Member of the Commission responsible for Agriculture and Rural Development invited the College of Commissioners to endorse the results of the examination carried out by the Directorate-General (DG) for Agriculture and Rural Development of the technical files concerning existing wine names received by the Commission in accordance with Article 118s(2) of Regulation No 1234/2007 (corresponding to Article 51 of Regulation No 479/2008). The Slovenian name ‘Teran’ was included in the list of existing wine names for which protection as a PDO was confirmed. However, a footnote stated that use of the name ‘Teran’ by the Republic of Slovenia was without prejudice to the legitimate rights of Croatian wine producers to continue to use the name of Teran as a grapevine variety in accordance with a delegated act that the Commission intended to adopt on the basis of Article 100(3) of Regulation (EU) No 1308/2013.
B. The name of the ‘Teran’ wine grape variety in Croatia
31
On 8 September 2008, the Republic of Croatia submitted its negotiating position with a view to its accession to the European Union. At page 51 of that document, in Chapter 11, concerning agriculture, the Republic of Croatia requested, inter alia, that ‘[its] National List of Recognised Vine Varieties [be] included in the existing List of Vine Varieties and Their Synonyms that include[d] a geographical indication and that [could] appear on the labelling of wines, referred to in Annex II to Commission Regulation No 753/2002’.
32
On 28 January 2011, the Republic of Croatia stated, in an addendum to its negotiating position, relating to Chapter 11, entitled ‘Agriculture and rural development’, that it wished to withdraw its request referred to in paragraph 31 above. It said that it had understood that the national list of vine varieties and their synonyms that included a geographical indication and that could appear on the labelling of wine was to be established by each Member State in accordance with the requirements of Regulation No 1234/2007, and that a list of those varieties would be established by the Commission in accordance with Article 62(4) of Regulation No 607/2009.
33
In Common Position AD 12‑11 of 15 April 2011 relating to Chapter 11 on agriculture and rural development, the European Union took note that the Republic of Croatia had withdrawn ‘the request for the inclusion of the National List of Recognised Vine Varieties in the existing List of Vine Varieties and their Synonyms that include[d] a geographical indication and that [could] appear on the labelling of wines, referred to in Article 62(4) of Commission Regulation (EC) No 607/2009’.
C. The process by which the contested regulation was adopted
34
In a letter to the Commission dated 13 May 2013, the Republic of Croatia expressed its concern as to whether it would be possible to continue using the name of the ‘Teran’ wine grape variety for labelling its wines after its accession to the European Union on 1 July 2013 since that name was already registered as a Slovenian PDO. It therefore requested the Commission to find a solution which would satisfy all parties concerned. In those circumstances, it invited the Commission to reconsider the status of the Slovenian PDO ‘Teran’.
35
By a second letter sent to the Commission on the same day, the Republic of Croatia submitted a proposal for revision of List A of Annex XV to Regulation No 607/2009. That proposal did not include the name ‘Teran’.
36
By letter of 5 July 2013, the Commission replied to the Republic of Croatia that registration of the PDO ‘Teran’ was a sensitive issue which was being carefully examined by its services.
37
By letter of 16 April 2014 to the Commission, the Republic of Croatia again expressed its concern that it would be unable to use the name ‘Teran’ for labelling its wines because of the existence of the Slovenian PDO with the same name. It proposed that the name ‘Teran’ be included in Part A of Annex XV to Regulation No 607/2009. The Republic of Croatia also mentioned that the Commission had proposed that a negotiated solution be identified with the Republic of Slovenia and that a meeting between the Croatian and Slovenian ministers had taken place on 11 February 2014.
38
The Commission prepared a draft delegated regulation to amend Part A of Annex XV to Regulation No 607/2009 so as to include the name of the ‘Teran’ wine grape variety. That draft, which was initially to be discussed during the meeting of the GREX WINE group of experts of the Member States on 8 September 2014, was eventually removed from the agenda of that meeting.
39
By letter of 11 November 2014, the Republic of Slovenia thanked the Commission for the bilateral meeting which had taken place with the Commission concerning the question of ‘Teran’ wine. It added that that question was of significant importance for its wine producers and that it had been very surprised to learn that the Commission was preparing a draft delegated regulation authorising the Republic of Croatia to use that name for labelling its wines in view of the public statements to the contrary made by the Commission in April 2013.
40
On 4 December 2014, the Commission replied to the Republic of Slovenia that, although the Slovenian designation ‘Teran’ was indeed protected, the Republic of Croatia had raised the issue of use of the name of the ‘Teran’ wine grape variety during the negotiations preceding accession to the European Union, that the Republic of Croatia had not had the opportunity to oppose registration of the name ‘Teran’ as a Slovenian PDO and that, under the legislation in force, the Commission was entitled to provide for derogations from the absolute protection of PDOs.
41
Several meetings were then held and several letters were exchanged between the Commission and the Republic of Slovenia.
42
On 24 January 2017, the draft delegated regulation permitting the Republic of Croatia to use the name ‘Teran’ for labelling its wines was discussed by the GREX WINE expert group. The Republic of Slovenia and the Republic of Croatia submitted their observations.
43
From 17 March to 14 April 2017, the draft delegated regulation referred to in paragraph 42 above was published on the Commission’s ‘Better Law-Making’ portal. Various interveners, including Slovenian wine producers and associations, gave their views on that draft regulation.
44
On 19 May 2017, the Commission adopted the contested regulation.
III. Procedure and forms of order sought
45
By application lodged at the Court Registry on 15 September 2017, the Republic of Slovenia brought this action.
46
The Commission lodged its defence at the Court Registry on 4 December 2017.
47
By document lodged at the Court Registry on 29 December 2017, the Republic of Croatia sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.
48
The Republic of Slovenia lodged its reply at the Court Registry on 23 February 2018.
49
By decision of 1 March 2018, the President of the Fourth Chamber of the Court granted the Republic of Croatia leave to intervene in support of the form of order sought by the Commission.
50
The Commission lodged a rejoinder at the Court Registry on 16 May 2018.
51
The Republic of Croatia lodged its statement in intervention at the Court Registry on 16 May 2018.
52
The Republic of Slovenia lodged its observations on the statement in intervention at the Court Registry on 26 July 2018.
53
The Commission did not lodge observations on the statement in intervention.
54
By letter of 3 August 2018, the Republic of Slovenia stated that it wished to be heard at the hearing.
55
On the proposal of the Fourth Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure of the General Court, to refer the case to a Chamber sitting in extended composition.
56
On the proposal of the Judge-Rapporteur, the Court decided to open the oral part of the procedure.
57
By letter from the Registry of 10 October 2019, the Court, by way of measures of organisation of procedure, put questions to the parties to be answered in writing before the hearing. The parties responded within the time allowed.
58
The parties presented oral argument and answered the questions put to them by the Court at the hearing on 3 December 2019.
59
The Republic of Slovenia claims that the Court should:
–
annul the contested regulation in its entirety;
–
order the Commission to pay the costs.
60
The Commission contends that the Court should:
–
declare the action unfounded;
–
order the Republic of Slovenia to pay the costs.
61
The Republic of Croatia contends, in essence, that the Court should dismiss the action.
IV. Law
62
In support of its action, the Republic of Slovenia raises eight pleas in law, alleging:
–
first, infringement of Article 232 of Regulation No 1308/2013, in conjunction with the second subparagraph of Article 100(3) of that regulation;
–
second, infringement of the principles of legal certainty, respect for acquired rights, protection of legitimate expectations and proportionality;
–
third, infringement of Article 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 1 of Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’);
–
fourth, infringement of Article 41 of the Act concerning the conditions of accession of the Republic of Croatia to the European Union, in so far as the contested regulation provides for a transitional period for marketing wine produced before 1 July 2013;
–
fifth, infringement of the second subparagraph of Article 100(3) of Regulation No 1308/2013, in light of the importance of that provision in relation to the fundamental principles of EU law and to Article 17 of the Charter and Article 1 of Protocol No 1 to the ECHR;
–
sixth, infringement of Article 13(2) TEU and Article 290 TFEU, in that the Commission exceeded the limits of the powers conferred by the Treaties to adopt delegated acts;
–
seventh, infringement of the second subparagraph of Article 100(3) of Regulation No 1308/2013 and Article 62(3) of Regulation No 607/2009, in conjunction with Article 4(3) and Article 49(2) TEU, in that the Republic of Croatia did not submit a request to have the name of the ‘Teran’ wine grape variety included in Part A of Annex XV to Regulation No 607/2009 before its accession to the European Union, and the Republic of Slovenia was not informed of such a request for the purposes of the accession negotiations;
–
eighth, infringement of paragraph V.28 of the Interinstitutional Agreement of 13 April 2016 between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making (OJ 2016 L 123, p. 1; ‘the Interinstitutional Agreement’) and paragraph II.7 of the Common Understanding between the European Parliament, the Council and the Commission on Delegated Acts (‘the Common Understanding’) and of the principle of institutional balance.
A. First plea, alleging infringement of Article 232 of Regulation No 1308/2013 in conjunction with the second subparagraph of Article 100(3) of that regulation
63
In the first place, the Republic of Slovenia maintains that the legal basis of the contested regulation, namely the second subparagraph of Article 100(3) of Regulation No 1308/2013, has been applicable only since 1 January 2014, in accordance with Article 232 thereof. However, according to Article 3 of the contested regulation, it has been applicable since 1 July 2013, that is to say, before the date on which the regulation on the basis of which it was adopted became applicable. Consequently, by conferring on the contested regulation retroactive effect which covers a period prior to the entry into force and even the existence of Regulation No 1308/2013, the Commission exceeded the limits of the authority provided for in the second subparagraph of Article 100(3) of Regulation No 1308/2013, in conjunction with Article 232 thereof.
64
In the second place, the Republic of Slovenia submits that, under Article 62(3) of Regulation No 607/2009, the addition of the name ‘Teran’ to Part A of Annex XV to that regulation should have been authorised in accordance with the EU rules in force on the date of the Republic of Croatia’s accession, that is to say, 1 July 2013. However, Regulation No 1308/2013, which constitutes the legal basis for the adoption of the contested regulation, was not yet in force on1 July 2013. The provisions applicable on that date were thus those of Regulation No 1234/2007, in particular Article 118j thereof, which ceased to apply on 1 January 2014. Consequently, according to the Republic of Slovenia, Regulation No 1308/2013 cannot be regarded as a regulation in force on the date of the Republic of Croatia’s accession to the European Union for the purpose of Article 62(3) of Regulation No 607/2009.
65
The Commission disputes the arguments put by the Republic of Slovenia.
1.
Infringement of the second subparagraph of Article 100(3) of Regulation No 1308/2013 in conjunction with Article 232 thereof
66
It should be noted that the contested regulation was adopted on 19 May 2017 and entered into force on the day of its publication in the Official Journal of the European Union, that is to say, 21 July 2017. However, Article 3 of that regulation provides that it is to apply retroactively from 1 July 2013. As the Republic of Slovenia points out, that date is prior to the date on which Regulation No 1308/2013 – which is the legal basis for the contested regulation – became applicable, namely 1 January 2014.
67
It must therefore be determined whether, as the Republic of Slovenia claims, in essence, the Commission exceeded the powers conferred by the second subparagraph of Article 100(3) of Regulation No 1308/2013, in conjunction with Article 232 of that regulation, in so far as those provisions did not allow it to exercise the authority delegated thereunder retrospectively.
68
In that regard, the Court has consistently ruled that in order to ensure observance of the principles of legal certainty and protection of legitimate expectations, substantive rules must be interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, objectives or general scheme that such effect must be given to them (judgments of 24 September 2002, Falck and Acciaierie di Bolzano v Commission, C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraph 119, and of 19 June 2015, Italy v Commission, T‑358/11, EU:T:2015:394, paragraph 112).
69
In the present case, under Article 232 of Regulation No 1308/2013, the second subparagraph of Article 100(3) of that regulation has been applicable only since 1 January 2014. No recital or provision of that regulation states that the starting point for the entry into force of the latter provision should be established at a date other than that specified in Article 232 of that regulation. Even though the second subparagraph of Article 100(3) of that regulation clearly states that the purpose of that provision is to protect existing labelling practices, it does not imply that such practices can be protected even prior to the date of application of the delegation of authority in question. In that context, the power conferred on the Commission by the second subparagraph of Article 100(3) of Regulation No 1308/2013 cannot be regarded as permitting the Commission to use its delegated powers to grant an exception covering a period prior to 1 January 2014.
70
Thus, by relying on the power conferred by the second subparagraph of Article 100(3) of Regulation No 1308/2013 to lay down an exception in respect of labelling, such as that provided for by the contested regulation, between 1 July 2013 and 1 January 2014, the Commission applied the second subparagraph of Article 100(3) of Regulation No 1308/2013 retroactively, which was not provided for by that regulation.
71
However, it is also necessary to consider whether such retroactive application of the delegation of authority provided for in the second subparagraph of Article 100(3) of Regulation No 1308/2013 vitiates the contested regulation by a substantive defect such as to entail its annulment as regards its effect prior to 1 January 2014 (see, by analogy, judgment of 19 June 2015, Italy v Commission, T‑358/11, EU:T:2015:394, paragraph 121).
72
In that regard, it should be noted that, as is apparent from paragraph 2 above, Article 42(3) of Regulation No 479/2008 was subsequently incorporated into Regulation No 1234/2007 and was thus replaced by Article 118j(3) of Regulation No 1234/2007, which was applicable at the time when the Republic of Croatia acceded to the European Union. Those provisions already laid down a rule similar to that in the second subparagraph of Article 100(3) of Regulation No 1308/2013, namely that the name of a wine grape variety which contains or consists of a PDO and is not listed in the annex to the relevant regulation cannot appear on a wine label, unless the Commission adopts measures providing otherwise. Thus, the second subparagraph of Article 100(3) of Regulation No 1308/2013 does not create a new power for the Commission, but is a direct continuation of Article 118j(3) of Regulation No 1234/2007, which was in force and applicable on the date of the Republic of Croatia’s accession to the European Union on 1 July 2013.
73
Under Article 230 of Regulation No 1308/2013, references to Regulation No 1234/2007 are to be construed as references to Regulation No 1308/2013 and are to be read in accordance with the correlation table set out in Annex XIV to that regulation. That correlation table indicates that Article 118j of Regulation No 1234/2007 corresponds to Article 100 of Regulation No 1308/2013.
74
Moreover, when questioned by way of measures of organisation of procedure, the parties acknowledged that there was no substantive difference between the powers conferred on the Commission by the second subparagraph of Article 100(3) of Regulation No 1308/2013 and those deriving from Article 118j(3) of Regulation No 1234/2007.
75
It is true that the second subparagraph of Article 100(3) of Regulation No 1308/2013 is different in that it expressly requires the Commission to take account of existing labelling practices. However, that detail cannot support a finding that the authority granted to the Commission by that provision differ fundamentally from that provided for in Article 42(3) of Regulation No 479/2008, and then in Article 118j(3) of Regulation No 1234/2007, in so far as Article 100(3) of Regulation No 1308/2013 seeks only to clarify that authority by requiring the Commission to take account of existing labelling practices. Moreover, this offers an increased assurance to producers benefiting from a PDO that the Commission’s decision will not be adopted on an arbitrary basis, without altering the nature or the scope of the authority granted by the legislature to the Commission.
76
Furthermore, the existence of labelling practices relating to the name of the ‘Teran’ wine grape variety in Croatia at the time of its accession to the European Union is not disputed by the parties. That finding remains unchanged, whether Regulation No 1234/2007 or Regulation No 1308/2013 is applied.
77
Consequently, even though the Commission applied the second subparagraph of Article 100(3) of Regulation No 1308/2013 in a retroactive manner which was not provided for by the legislature, it did not exercise, with regard to the Republic of Croatia and in respect of the period from 1 July 2013 to 1 January 2014, an essentially new power of which the Republic of Slovenia was unaware. Moreover, it is not disputed that, even if the Commission had been able to rely on Article 118j of Regulation No 1234/2007 in order to adopt the contested regulation, the outcome would have been the same, namely the laying down of an exception in respect of labelling for Croatian wines upon the Republic of Croatia’s accession to the European Union.
78
The first part of the first plea must therefore be dismissed as unfounded.
2.
Infringement of Article 62(3) of Regulation No 607/2009, in conjunction with the second subparagraph of Article 100(3) and Article 232 of Regulation No 1308/2013
79
As regards Article 62(3) of Regulation No 607/2009, it should be borne in mind that, according to that provision, the wine grape variety names and their synonyms listed in Part A of Annex XV to that regulation, which consist of or contain a PDO may only appear on the label of a product with a PDO if they were authorised under the EU rules in force, in the present case, on the date when the Republic of Croatia acceded to the European Union.
80
It must therefore be ascertained whether, as the Republic of Slovenia claims, Article 62(3) of Regulation No 607/2009, in conjunction with the second subparagraph of Article 100(3) and Article 232 of Regulation No 1308/2013, prevented the Commission from relying on the second subparagraph of Article 100(3) of Regulation No 1308/2013, applicable since 1 January 2014, to adopt the contested regulation.
81
In that regard, first, it should be noted that, in the absence of any indication to the contrary in the wording of Article 62(3) of Regulation No 607/2009, the ‘[EU] rules in force’ referred to in that provision necessarily include the rules conferring authority on the Commission set out in Article 118j(3) of Regulation No 1234/2007, and also in the second subparagraph of Article 100(3) of Regulation No 1308/2013.
82
Although it is true that Regulation No 1308/2013 was not yet in force, or even adopted, when the Republic of Croatia acceded to the European Union on 1 July 2013, the Commission was already expressly authorised to lay down exceptions in respect of labelling under Article 118j(3) of Regulation No 1234/2007, as paragraph 72 above makes plain; that authorisation did not substantially differ from the authorisation set out in the second subparagraph of Article 100(3) of Regulation No 1308/2013.
83
In adopting the contested regulation on the basis of the second subparagraph of Article 100(3) of Regulation No 1308/2013, the Commission did not therefore apply a substantive rule different from that which was in force when the Republic of Croatia acceded to the European Union, as the Republic of Slovenia itself acknowledged in its replies to the measures of organisation of procedure.
84
Furthermore, the Republic of Slovenia has not referred to any other rule in force on 1 July 2013, which the Commission wrongly omitted to take into account when adopting the contested regulation. Nor has the Republic of Slovenia argued that the Commission could not take the date of the Republic of Croatia’s accession to the European Union as the date which must be used when assessing the existence of labelling practices in that State in respect of the name ‘Teran’.
85
Second, it is settled case-law that the provision constituting the legal basis of a measure and empowering the EU institution to adopt the measure in question must be in force at the time of its adoption (judgment of 4 April 2000, Commission v Council, C‑269/97, EU:C:2000:183, paragraph 45; see also, to that effect, judgment of 1 July 2009, ThyssenKrupp Stainless v Commission, T‑24/07, EU:T:2009:236, paragraph 74).
86
However, on 19 May 2017, the date on which the contested regulation was adopted, the provisions in force were those of Regulation No 1308/2013. On that date, the Commission could therefore no longer base the contested regulation on Article 118j of Regulation No 1234/2007, since it had been repealed and was hence no longer in force. Thus, the only legal basis on which the Commission could rely when adopting the contested regulation was the second subparagraph of Article 100(3) of Regulation No 1308/2013, the Commission having no discretion in that regard (see, by analogy, judgment of 21 November 2012, Spain v Commission, T‑76/11, EU:T:2012:613, paragraphs 31 and 32).
87
Third, Article 118j of Regulation No 1234/2007 and the second subparagraph of Article 100(3) of Regulation No 1308/2013 empower the Commission to lay down an exception in respect of labelling in order to allow PDOs and existing labelling practices to coexist peacefully when a PDO is registered or applicable. Moreover, those provisions do not establish any express time limit for the Commission to act.
88
In the present case, it must be held that the Commission was not entitled to adopt the contested regulation before the Republic of Croatia acceded to the European Union, since it did not have territorial jurisdiction to do so before that date. Against that background, in adopting the contested regulation with retroactive effect from the date when the Republic of Croatia acceded to the European Union, the Commission was correct to set the date of its entry into force as the date when the matter of the coexistence of the Slovenian PDO ‘Teran’ and Croatian labelling practices began to arise in practice, namely on the date of that accession. In the light of the circumstances of the present case, the Commission therefore acted in accordance with the general scheme and wording of the provisions in question.
89
The complaint alleging that the Commission infringed Article 62(3) of Regulation No 607/2009, in conjunction with the second subparagraph of Article 100(3) and Article 232 of Regulation No 1308/2013, must therefore be dismissed as unfounded.
90
Consequently, the first plea must be dismissed.
B. Second plea, alleging infringement of the principles of legal certainty, respect for acquired rights, protection of legitimate expectations and proportionality
91
The Republic of Slovenia claims, in essence, that, by conferring a retroactive effect of almost four years on the contested regulation, the Commission infringed, first, the principles of legal certainty and nemo potest venire contra factum proprium, second, the principles of respect for acquired rights and protection of legitimate expectations and, third, the principle of proportionality. In the present plea, the Republic of Slovenia also alleges, in essence, that the Commission infringed Article 100(3) of Regulation No 1308/2013 and Article 62(3) of Regulation No 607/2009.
92
First of all, according to the Republic of Slovenia, it is not apparent either from the provisions of Regulation No 607/2009 or those of Regulation No 1308/2013 that the legislature intended to grant retroactive effect to exceptions laid down pursuant to the second subparagraph of Article 100(3) of that regulation in a manner and circumstances such as those provided for by the contested regulation. Next, the fundamental requirement of legal certainty precludes the Commission from being able to delay the exercise of its power indefinitely. Moreover, the adoption of the contested regulation more than four years after the Republic of Croatia’s accession to the European Union departed significantly from the Commission’s practice upon previous accessions and infringed the legitimate expectations of Slovenian wine producers, which had been fuelled by several statements made by the Commission in 2013. In that context, the Republic of Slovenia proposes that the Court hear A, an official at the Slovenian Ministry of Agriculture, as a witness. Finally, by adopting the contested regulation with retroactive effect, the Commission undermined all inspection procedures carried out in the Republic of Slovenia against those responsible for infringing the Slovenian PDO ‘Teran’.
93
The Republic of Slovenia does not put forward any specific arguments in respect of the breach of the principle of proportionality. That being so, in the light of paragraph 28 et seq. of the application, it must be understood that the Republic of Slovenia claims, in essence, that the Commission went beyond what was necessary by conferring a retroactive effect of almost four years on the contested regulation.
94
The Commission, supported by the Republic of Croatia, disputes the arguments advanced by the Republic of Slovenia.
1.
Infringement of the principles of legal certainty, respect for acquired rights and protection of legitimate expectations, and, in essence, infringement of Article 100(3) of Regulation No 1308/2013 and Article 62(3) of Regulation No 607/2009
95
As a preliminary point, it should be recalled that the principle of legal certainty requires, on the one hand, that rules of law must be clear and precise and, on the other, that their application must be foreseeable by those subject to them (judgment of 10 September 2009, Plantanol, C‑201/08, EU:C:2009:539, paragraph 46).
96
For its part, the principle of the protection of legitimate expectations is defined as a right that extends to any individual in a situation where the authorities have caused him or her to entertain legitimate expectations (see, to that effect, judgments of 19 May 1983, Mavridis v Parliament, 289/81, EU:C:1983:142, paragraph 21, and of 26 June 1990, Sofrimport v Commission, C‑152/88, EU:C:1990:259, paragraph 26). That principle may also be relied on by States (judgment of 26 June 2012, Poland v Commission, C‑335/09 P, EU:C:2012:385, paragraphs 180 and 181; see also, to that effect, judgment of 6 October 2009, Commission v Spain, C‑562/07, EU:C:2009:614, paragraphs 18 to 20).
97
It is clear from the case-law that a person may not plead breach of the principle of the protection of legitimate expectations unless he or she has been given precise assurances by the administration (see judgment of 18 January 2000, Mehibas Dordtselaan v Commission, T‑290/97, EU:T:2000:8, paragraph 59 and the case-law cited; judgment of 9 July 2003, Cheil Jedang v Commission, T‑220/00, EU:T:2003:193, paragraph 33).
98
Moreover, an economic operator cannot claim an acquired right or even a legitimate expectation that a pre-existing situation which is capable of being altered by decisions taken by the EU institutions within the limits of their discretionary power will be maintained (judgment of 5 October 1994, Germany v Council, C‑280/93, EU:C:1994:367, paragraph 80).
99
As regards, in particular, the retroactive effect of an EU measure, it must be pointed out that, as a general rule, the principle of legal certainty precludes an EU measure from taking effect from a point in time before its publication. However, that prohibition is not absolute and may be disregarded in exceptional circumstances where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected (judgments of 24 September 2002, Falck and Acciaierie di Bolzano v Commission, C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraph 119, and of 10 November 2010, OHIM v Simões Dos Santos, T‑260/09 P, EU:T:2010:461, paragraph 48 and the case-law cited).
100
It is in the light of those principles that it must be determined whether, by giving retroactive effect of almost four years to the contested regulation, the Commission infringed the principles of legal certainty, protection of legitimate expectations and respect for the acquired rights of Slovenian wine producers benefiting from the PDO ‘Teran’ and, in essence, the provisions of Regulation No 607/2009 and Regulation No 1308/2013. In that regard, it is necessary to consider each of the arguments put forward by the Republic of Slovenia to the effect that: (i) the provisions of Regulation No 607/2009 and Regulation No 1308/2013 did not allow retroactive effect to be given in a manner and circumstances such as those of the contested regulation; (ii) the Commission could not indefinitely delay the exercise of its power in the light of the principle of legal certainty; (iii) the Commission departed from the practice followed upon previous accessions and infringed the legitimate expectations of Slovenian wine producers; and (iv) the Commission undermined all inspection procedures carried out in the Republic of Slovenia against those responsible for infringing the Slovenian PDO ‘Teran’.
(a)
Complaint alleging infringement of Article 100(3) of Regulation No 1308/2013 and Article 62(3) of Regulation No 607/2009
101
The Republic of Slovenia’s submissions alleging infringement of Article 100(3) of Regulation No 1308/2013 and Article 62(3) of Regulation No 607/2009, and infringement of the obligation which those provisions place on the Commission to act as soon as possible following a State’s accession to the European Union, seek to demonstrate, in essence, that those provisions specify a time limit for the Commission to act.
102
In the present case, the second subparagraph of Article 100(3) of Regulation No 1308/2013 requires only that account be taken of existing labelling practices when an exception is laid down. Article 62(3) of Regulation No 607/2009 refers to the EU rules in force on the date of accession of the Member State concerned.
103
Thus, for an exception to be granted in respect of labelling, it is necessary to establish whether any labelling practices exist which it is appropriate to maintain. Such practices must therefore necessarily exist on the date on which that exception begins to apply. Where, as in the present case, such practices exist on the date of a State’s accession to the European Union and are liable to have an adverse effect on a PDO from that accession, if the Commission considers that such practices must be capable of being maintained under the second subparagraph of Article 100(3) of Regulation No 1308/2013, it is required to satisfy itself that such labelling practices existed upon accession, that is to say, at the point when those practices begin to conflict with the PDO.
104
Consequently, where an exception is granted in respect of labelling when a State accedes to the European Union, as in the present case, the second subparagraph of Article 100(3) of Regulation No 1308/2013, in conjunction with Article 62(3) of Regulation No 607/2009, requires the Commission to take the date of the Republic of Croatia’s accession to the European Union as the date which must be used when assessing the existence of such labelling practices, and not a later date, and to comply with the rules in force on that date. However, it cannot be inferred from the wording of those two provisions that they impose a specific time limit on the Commission to lay down an exception in respect of wine labelling as they do not mention anything to that effect.
105
By contrast, the second subparagraph of Article 100(3) of Regulation No 1308/2013 and Article 62(3) of Regulation No 607/2009 do not provide any legal basis that would have enabled the Commission to adopt a delegated regulation such as the contested regulation before a State’s accession to the European Union. The Commission has no territorial jurisdiction in those circumstances, since the State in question is a third country. It follows that, where the grant of an exception in respect of labelling by means of such a delegated regulation is linked to accession, the Commission must necessarily wait for the date of that accession before it can begin the process of adopting a delegated regulation pursuant to the second subparagraph of Article 100(3) of Regulation No 1308/2013. In view of the need to follow the procedure laid down in Article 290 TFEU relating to the adoption of delegated acts, as required by Article 227 of Regulation No 1308/2013, such a process may take more or less time depending on the circumstances of the case.
106
Consequently, the present complaint, based, in essence, on the time limit laid down in Article 100(3) of Regulation No 1308/2013 and Article 62(3) of Regulation No 607/2009, is unfounded.
107
That being so, the absence of an express time limit in the applicable legislation for the adoption of a delegated regulation providing for an exception in respect of labelling does not mean that the Commission may disregard the general principles governing the temporal action of the EU institutions, in particular the obligation to observe the principle that action must be taken within a reasonable time and the principles of legal certainty, respect for acquired rights and protection of legitimate expectations. It is from this perspective that the Republic of Slovenia’s other complaints must also be examined.
(b)
The complaint that the Commission excessively delayed in exercising its powers
108
As the Republic of Slovenia submits, even where a time limit has not been set, the fundamental requirement of legal certainty prevents the Commission from indefinitely delaying the exercise of its powers (judgment of 15 January 2013, Spain v Commission, T‑54/11, EU:T:2013:10, paragraph 29).
109
It is therefore necessary to examine the conduct of the procedure for adopting the contested regulation and to ascertain to what extent the circumstances of the case could warrant the length of that procedure.
110
As paragraphs 31 and 32 above make plain, in its negotiating position of 8 September 2008, the Republic of Croatia had requested that its national list of recognised wine grape varieties be added to the list of wine grape varieties that included a geographical indication and could appear on wine labels. It then withdrew that request in the addendum to its negotiating position on 28 January 2011, on the ground that that list would be drawn up by the Commission after its accession to the European Union.
111
As stated in paragraph 29 above, it was not until 6 December 2011, that is to say, after the Republic of Croatia withdrew the request referred to in paragraph 110 above, that the Republic of Slovenia lodged with the Commission the technical file referred to in Article 118c of Regulation No 1234/2007 (corresponding to Article 35 of Regulation No 479/2008), relating to the wine name ‘Teran’ as such, for the purpose of protecting that name as a PDO within the meaning of Article 118b of that regulation. Before that date, as is apparent from paragraphs 27 and 28 above, the name ‘Teran’ was linked, as an additional term, with the name ‘Kras’ in the list of Slovenian quality wines psr, initially as ‘Kras, teran’ and subsequently as ‘Teran, Kras’.
112
In that regard, first, it is apparent from the documents before the Court in the present case that the Republic of Croatia informed the Commission of its concerns as to whether it would be possible to use the name of the ‘Teran’ wine grape variety after its accession to the European Union, at the latest in a letter dated 13 May 2013. That letter gave rise to numerous written exchanges and several bilateral meetings between the Commission and the Republic of Slovenia, held, inter alia, on 24 September 2014, 11 November 2014, 4 December 2014, 26 January 2015 and 8, 14 and 16 July 2015, and in January 2017.
113
In addition, the Republic of Slovenia sent additional documents and information to the Commission concerning the PDO ‘Teran’ on several occasions. On 20 January 2016, it also provided written replies to the Commission’s questions concerning that PDO, labelling practices and EU legislation.
114
The facts referred to in paragraphs 110 to 113 above show that the Commission did not stand by passively throughout the period prior to the adoption of the contested regulation. Nor is it apparent from the documents before the Court that it delayed the start of discussions with the parties concerned or that it delayed in such discussions. On the contrary, it sought to gather all the necessary information and endeavoured to find a negotiated solution to the issue raised in the Republic of Croatia’s letter of 13 May 2013, referred to in paragraph 112 above.
115
Second, it is clear from Article 107(3) of Regulation No 1308/2013 (corresponding to Article 118s(4) of Regulation No 1234/2007) that, until 31 December 2014, the Commission could decide, on its own initiative, to withdraw the protection automatically granted to existing wine names which had been declared by the Member States, including the Slovenian PDO ‘Teran’, if they did not satisfy, or no longer satisfied, the conditions for eligibility for a PDO laid down in Article 93 of that regulation. In so far as an exception favouring the Republic of Croatia for the term ‘Teran’ in respect of labelling was required solely because of the existence of the Slovenian PDO with the same name, it was reasonable for the Commission to await the outcome of the examination of the file lodged by the Republic of Slovenia for the PDO ‘Teran’ before adopting the contested regulation.
116
Third, in its letter of 18 January 2017 to the Republic of Slovenia, the Commission pointed out that it still had until 30 June 2017 to take a decision on the technical file of the Croatian PDO ‘Hrvatska Istra’, which was the specific PDO concerned by the name of the ‘Teran’ grapevine variety. In response to the measures of organisation of procedure, the Commission stated that the technical file of that Croatian PDO expressly stipulated that the term ‘Teran’ could be included on labels for the purpose of marketing, provided that that name appeared in the same visual field as the name of the PDO ‘Hrvatska Istra’. The Commission added that, in view of the length of the discussions and the absence of any positive developments on the matter of the name ‘Teran’, it was forced to conclude that an agreement between the Member States concerned was impossible and it decided to adopt the contested regulation – which reproduced the labelling rules set out in the technical file of the Croatian PDO ‘Hrvatska Istra’ – without waiting for the time limit established for examining that file to expire.
117
Fourth, as recital 3 of the contested regulation shows, the Commission expected the Republic of Slovenia and the Republic of Croatia to come to a negotiated solution, which ultimately proved impossible despite the Commission’s efforts to that effect.
118
It follows from the foregoing that, during the four years preceding the adoption of the contested regulation, the Commission continued actively to assess the ‘Teran’ issue, the sensitive nature of which it – like the Republic of Slovenia – emphasised on several occasions, and that it did not delay the exercise of its powers indefinitely. On the contrary, as is apparent from paragraph 116 above, it even preferred not to wait for the expiry of the deadline of 30 June 2017 for examining the technical file of the Croatian PDO ‘Hrvatska Istra’ before it adopted the contested regulation.
119
Accordingly, the Republic of Slovenia’s complaint that the Commission excessively delayed the exercise of its powers must be dismissed as unfounded.
(c)
The complaint that the extent of the retroactive effect of the contested regulation was unlawful
120
As is apparent from the case-law cited in paragraph 99 above, the principle of legal certainty as a rule precludes EU acts from being given retroactive effect. Nevertheless, that prohibition may be disregarded where two cumulative conditions are met: first, the aim pursued by the contested measure must require retroactive effect to be given to it and, second, the legitimate expectations of those concerned must have been duly respected.
121
It must therefore be considered whether the extent of the retroactive effect of the contested regulation satisfies the two conditions referred to in paragraph 120.
(1) The objective pursued by the contested regulation
122
According to the case-law, EU acts with retroactive effect must include in the statement of reasons, clearly and unequivocally, particulars which justify the desired retroactive effect (judgment of 1 April 1993, Diversinte and Iberlacta, C‑260/91 and C‑261/91, EU:C:1993:136, paragraph 10). It is also necessary that an act having such retroactive effect be such as to achieve the objective pursued (see, to that effect, judgment of 11 July 1991, Crispoltoni, C‑368/89, EU:C:1991:307, paragraph 18).
123
In the present case, according to recital 8 of the contested regulation, that regulation was to take effect from the date of the Republic of Croatia’s accession to the European Union, on 1 July 2013, on the grounds that the request to include the name of the ‘Teran’ wine grape variety in Part A of Annex XV to Regulation No 607/2009 had been submitted before that date of accession, that a practice of labelling with the name ‘Teran’ existed in the Republic of Croatia at the time of its accession and that the adoption of the contested regulation had been postponed solely pending a solution negotiated with the Republic of Slovenia.
124
The contested regulation thus seeks, in essence, to protect the labelling practices which existed in Croatia on 30 June 2013, which, moreover, are not disputed, following a request to that effect from that State. To that end, the contested regulation attempted to resolve the incompatibility of, on the one hand, those practices – lawful at that time – and, on the other, the rights flowing from the Slovenian PDO ‘Teran’, obtained before the Republic of Croatia acceded to the European Union, from the date on which that conflict arose.
125
First, as stated in paragraph 105 above, the Commission could not adopt a delegated regulation granting an exception to the Croatian labelling practices at issue before the Republic of Croatia acceded to the European Union since it did not have territorial jurisdiction to adopt such an act with regard to a third country.
126
In addition, as stated in paragraph 103 above, it is apparent from the second subparagraph of Article 100(3) of Regulation No 1308/2013 that the Commission, which could not begin the process of adopting the contested regulation before the Republic of Croatia had acceded to the European Union, was required to assess the existence of national labelling practices capable of being granted an exception from the general EU rules on labelling on the date that the Republic of Croatia acceded to the European Union and not on a later date.
127
Second, in view of the sensitive nature of the question of the name ‘Teran’ for the two States concerned, it was reasonable for the Commission to attempt, from the beginning of the conflict on 1 July 2013, to find a solution negotiated between them, which took time. As stated in paragraph 118 above, from that date, the Commission continued actively to examine the ‘Teran’ issue until the contested regulation was adopted.
128
Moreover, the parties do not dispute that the second subparagraph of Article 100(3) of Regulation No 1308/2013 is intended precisely to allow the Commission to lay down exceptions to allow existing labelling practices to continue from a State’s accession to the European Union. As the Republic of Slovenia itself acknowledged in its replies to the measures of organisation of procedure, such retroactive effect was required to ensure the necessary continuity of lawful labelling practices, with the result that the second paragraph of Article 3 of the contested regulation cannot be annulled alone without altering the substance of that regulation.
129
In those circumstances, requiring the Commission to assess the existence of particular labelling practices at the time of a State’s accession, without allowing it to apply retroactively an exception for those same labelling practices from the date of accession, even though it is legally and physically impossible for the Commission to adopt a regulation on the very day that a State accedes to the European Union, would have the effect of depriving the authority provided for in the second subparagraph of Article 100(3) of Regulation No 1308/2013 of practical effect.
130
Consequently, it must be concluded that the contested regulation pursued an objective in the public interest which required it to be given retroactive effect such as that provided for in Article 3 of that regulation.
(2) Respect for the legitimate expectations of Slovenian wine producers
131
As regards respect for the legitimate expectations of Slovenian wine producers, it must be ascertained whether, in accordance with the case-law cited in paragraph 96 above, the Commission led them to entertain reasonable expectations that no exception with retroactive effect would be granted to the Republic of Croatia as regards the indication of the term ‘Teran’ on the label of wines produced in that country. In that regard, it must be borne in mind that such assurances, in whatever form they are given, constitute precise, unconditional and consistent information (see judgment of 22 November 2018, Portugal v Commission, T‑31/17, EU:T:2018:830, paragraph 86 and the case-law cited) originating from authorised, reliable sources (judgment of 9 March 2018, Portugal v Commission, T‑462/16, not published, EU:T:2018:127, paragraph 20).
132
In order to demonstrate that the Commission created a legitimate expectation among Slovenian wine producers, the Republic of Slovenia relies, in essence, on the adoption of Implementing Regulation No 753/2013, which laid down exceptions in respect of labelling to the benefit of the Republic of Croatia a few months after its accession to the European Union and a statement made on 22 April 2013 by B, a press officer of the Member of the Commission responsible for Agriculture and Rural Development, that no Croatian wine could be marketed using the name ‘Teran’. It also relies on the absence of any request by the Republic of Croatia for the name ‘Teran’ to be included in the list of Part A of Annex XV to Regulation No 607/2009.
133
As regards, first of all, Implementing Regulation No 753/2013, adopted shortly after the Republic of Croatia’s accession to the European Union, it is apparent from recital 3 and Article 1(2) of that regulation that Part A of Annex XV to Regulation No 607/2009 needed to be amended subsequent to a request from the Republic of Croatia to that effect and that that amendment did not concern the name ‘Teran’. However, it is not apparent from Implementing Regulation No 753/2013 that the request of the Republic of Croatia at issue was exhaustive and that, by adopting that regulation, the Commission confirmed to Slovenian wine producers that no other exception in respect of labelling could be granted to the Republic of Croatia. There can therefore be no question of an infringement of the principle nemo potest venire contra factum proprium in such circumstances.
134
In that regard, the allegedly clear interpretation of Article 62(3) of Regulation No 607/2009 put forward by the Republic of Slovenia, according to which any exception had to be adopted upon accession, does not come from the Commission itself. There is nothing in the documents in the case to show that the Commission adopted the Republic of Slovenia’s interpretation publicly from the Republic of Croatia’s accession to the European Union and thus intended to rule out an exception in respect of labelling for the name ‘Teran’.
135
As regards, next, the alleged absence of a request by the Republic of Croatia for the name ‘Teran’ to be added to the list in Part A of Annex XV to Regulation No 607/2009 and the lack of negotiations on that point before accession, such factors, even if proved, cannot be regarded as precise assurances provided by the Commission or as a situation created beforehand by the Commission itself.
136
It should be added that, as stated in paragraph 111 above, it was not until 6 December 2011 that the Republic of Slovenia lodged with the Commission the technical file referred to in Article 118c of Regulation No 1234/2007 (corresponding to Article 35 of Regulation No 479/2008) relating to the wine name ‘Teran’ as such with a view to protecting that name as a PDO under Article 118b of that regulation. Before that date, as is apparent from paragraphs 28 and 29 above, the name ‘Teran’ was an additional term linked with the name ‘Kras’ in the list of Slovenian quality wines psr, initially as ‘Kras, teran’, and subsequently as ‘Teran, Kras’.
137
In addition, the documents before the Court show that a meeting took place on 22 April 2013 – that is to say, after the submission of the technical file relating to the Slovenian name ‘Teran’ referred to in paragraph 136 above and before the Republic of Croatia’s accession to the European Union – between the Slovenian and Croatian ministers for agriculture. The minutes of that meeting, in Annex 6 to the Republic of Croatia’s statement in intervention, show that that bilateral meeting was held to discuss the issue of ‘Teran wine’ and a possible mutual solution that might enable Croatian wine producers to continue to use the name ‘Teran’ on their wines after 1 July 2013, despite the Slovenian PDO of the same name. Thus, following that meeting, the Republic of Slovenia could not have been unaware of the Republic of Croatia’s wish to protect its labelling practices when it acceded to the European Union.
138
Moreover, in view of the negotiating position of the Republic of Croatia of 2008, and then of the addendum to the negotiating position of the Republic of Croatia of 28 September 2011, in which the Republic of Croatia stated that it expected that the issue of possible exceptions concerning labelling would be settled after its accession to the European Union, the Republic of Slovenia could not have been unaware of the possibility that the Commission might use the authority provided for in Article 118j of Regulation No 1234/2007, and then in the second subparagraph of Article 100(3) of Regulation No 1308/2013, for the purposes of granting such exceptions. That applies a fortiori to the issue of the name ‘Teran’, expressly raised by the Republic of Croatia during the meeting referred to in paragraph 137 above.
139
As regards, lastly, the statement made on 22 April 2013 by B, press officer of the Member of the Commission responsible for Agriculture and Rural Development, according to which no Croatian wine could be marketed using the name ‘Teran’, it must be noted that that statement is briefly reported in an article from the Croatian newspaper HRT which appeared on 23 April 2013. Such a statement, even supposing it were issued by a source regarded as being authorised to represent the Commission, cannot by itself constitute ‘precise and consistent’ assurances provided by the Commission.
140
Moreover, that statement was disproved at the latest when, having become aware of the Republic of Croatia’s concerns regarding use of the name ‘Teran’ and examined the existing situation and the various possible options, the Commission sent the Member States a draft regulation in preparation for the meeting of the GREX WINE expert group on 8 September 2014. From that point in time, that is to say, well before the expiry of the deadline of 31 December 2014 referred to in paragraph 115 above, there could therefore no longer be any question of precise, unconditional and consistent assurances from the Commission that the Slovenian PDO ‘Teran’ would continue to enjoy ‘absolute protection’.
141
In addition, as the Commission observes, under Article 118s of Regulation No 1234/2007, now Article 107(3) of Regulation No 1308/2013, the Commission could, until 31 December 2014, decide to withdraw the protection granted to names that had been automatically protected until that date if it found that those names did not meet the criteria for a PDO laid down successively in Article 118b of Regulation No 1234/2007 and then Article 93 of Regulation No 1308/2013. In that regard, the Republic of Slovenia cannot claim that the Commission had no reason to withdraw the protection granted to the name ‘Teran’. In the absence of evidence to show that the Commission provided such an explicit assurance to the Republic of Slovenia, such a subjective perception cannot be treated as a precise and unconditional assurance provided by the Commission.
142
Consequently, the Republic of Slovenia has not shown that the Commission created a legitimate expectation among its wine producers that the contested regulation would not be adopted.
143
Moreover, as regards specifically the retroactive effect conferred on the contested regulation, it should be noted that, shortly after its accession to the European Union on 1 May 2004, the Republic of Slovenia itself benefited from exceptions in respect of labelling as a result of the adoption of Regulation No 1429/2004 on 9 August 2004. As may be seen in Article 3 of that regulation, it had already provided that the exceptions laid down would apply retroactively from the date of the Republic of Slovenia’s accession.
144
In addition, as the Republic of Slovenia stated in paragraphs 53 and 54 of the application, following the accession of the Republic of Bulgaria and Romania to the European Union on 1 January 2007, the Commission also adopted two regulations authorising exceptions in respect of labelling with retroactive effect that benefited those States. These were, first, Commission Regulation (EC) No 382/2007 of 4 April 2007 amending Regulation No 753/2002 (OJ 2007 L 95, p. 12), applicable from 1 April 2007, and, second, Commission Regulation (EC) No 1207/2007 of 16 October 2007 amending Regulation No 753/2002 (OJ 2007 L 272, p. 23), applicable from 1 July 2007.
145
It cannot therefore be found that the Commission gave precise, unconditional and consistent assurances to Slovenian wine producers that no exceptions in respect of labelling for the name ‘Teran’ would be granted to the Republic of Croatia with retroactive effect, even if that retroactive effect was longer than that provided for by the other regulations cited in paragraphs 143 and 144 above.
146
Moreover, as is apparent from paragraph 130 above, retroactive effect needed to be given to the contested regulation in the light of the circumstances of the case, as the Republic of Slovenia has itself acknowledged.
147
Consequently, the Republic of Slovenia has not shown that the extent and terms of the retroactive effect of the contested regulation infringed the legitimate expectations of Slovenian wine producers, without it being necessary to hear the witness proposed by that State.
(d)
The complaint that inspection procedures carried out in Slovenia against those responsible for infringing the PDO ‘Teran’ were undermined
148
As regards the alleged undermining of inspection procedures carried out in Slovenia against those responsible for infringing the Slovenian PDO ‘Teran’, the documents in the case do indeed show that various inspections were carried out by the Slovenian authorities between 2013 and 2016, as a result of which fines were imposed on the ground that the name ‘Teran’ was used on bottles of wine from the Republic of Croatia.
149
However, in view of the considerations set out in paragraphs 133 to 145 above, the Slovenian authorities could not have been unaware that the issue of use of the name ‘Teran’ by the Republic of Croatia remained open or that the Commission intended, as early as September 2014, to adopt a regulation such as the contested regulation.
150
In those circumstances, the Commission cannot be criticised for having infringed the principle of legal certainty or the protection of the legitimate expectations of the Slovenian authorities in respect of inspections which it did not itself impose or decide on.
(e)
The complaint relating to failure to observe acquired rights
151
As paragraph 141 above makes plain, until 31 December 2014, the Commission could decide, pursuant to Article 118s of Regulation No 1234/2007, now Article 107(3) of Regulation No 1308/2013, to withdraw the protection granted to the Slovenian PDO ‘Teran’ if it found that that PDO did not meet the criteria to benefit from protection as a PDO. In the light of the case-law referred to in paragraph 98 above, and taking into account the Commission’s discretion to adopt exceptions in respect of labelling under the second subparagraph of Article 100(3) of Regulation No 1308/2013, the Republic of Slovenia cannot claim that there has been an infringement of the necessary respect for acquired rights in the present case.
152
The Republic of Slovenia’s complaints relating to failure to observe acquired rights must therefore also be dismissed.
153
Thus, it follows from paragraphs 101 to 152 above that all of the Republic of Slovenia’s complaints alleging infringement of the principles of legal certainty, protection of legitimate expectations and observance of acquired rights must be dismissed as unfounded.
2.
Infringement of the principle of proportionality
154
It should be recalled that, as the Court has consistently ruled, in order to establish whether a provision complies with the principle of proportionality, it must be ascertained whether the means which it employs allow the desired objective to be achieved and whether they do not go beyond what is necessary to achieve it (judgment of 22 November 2001, Netherlands v Council, C‑301/97, EU:C:2001:621, paragraph 131; see also judgment of 15 March 2006, Italy v Commission, T‑226/04, not published, EU:T:2006:85, paragraph 86 and the case-law cited).
155
In the present case, as stated in paragraph 124 above, the contested regulation seeks, in essence, to protect the lawful practices in respect of labelling that existed in Croatia on 30 June 2013 and to settle the conflict between those practices and the protection of the Slovenian PDO ‘Teran’.
156
Since, as stated inter alia in paragraph 105 above, the Commission could not initiate the process of adopting the contested regulation before the Republic of Croatia acceded to the European Union as it lacked territorial jurisdiction to do so, it was necessarily required to give retroactive effect to the contested regulation in order to ensure that existing labelling practices in Croatia were protected from 1 July 2013, as established in paragraph 130 above.
157
Furthermore, protection of existing labelling practices in Croatia at the time of its accession to the European Union could not have been ensured if the retroactive effect of the contested regulation had been limited to just a few months, without covering the entire period between the Republic of Croatia’s accession to the European Union and the adoption of that regulation. Accordingly, although the retroactive effect covers several years – which is admittedly rather exceptional – a shorter retroactive effect would not have permitted the objective pursued by that effect to be attained.
158
In addition, the length of the retroactive effect in the present case can be attributed to the particularly sensitive nature of the matter, referred to in paragraph 118 above, and to the length of the negotiations conducted by the Commission in an attempt to reach an amicable solution between the States concerned. In that regard, as established in paragraph 114 above, the Commission did not remain passive throughout the period prior to the adoption of the contested regulation. Nor has it been shown that the Commission delayed the start of discussions with the parties concerned or delayed in such discussions. On the contrary, it sought to gather all the necessary information and endeavoured to find a negotiated solution between the parties concerned, as soon as it had territorial jurisdiction to apply Article 118j of Regulation No 1234/2007, now the second subparagraph of Article 100(3) of Regulation No 1308/2013, that is to say, from the Republic of Croatia’s accession to the European Union.
159
Thus, notwithstanding its extent, the retroactive effect of the contested regulation enables the objective pursued to be attained and does not go beyond what is necessary in order to attain it.
160
The arguments put forward by the Republic of Slovenia alleging infringement of the principle of proportionality must therefore be dismissed as unfounded.
161
The second plea must therefore be rejected in its entirety.
C. Third plea, alleging infringement of Article 17 of the Charter and Article 1 of Protocol No 1 to the ECHR
162
The Republic of Slovenia claims that, by adopting the contested regulation, the Commission disproportionately infringed the intellectual and commercial property rights of Slovenian wine producers, and therefore their fundamental right to property, as protected by Article 17 of the Charter and Article 1 of Protocol No 1 to the ECHR. It puts forward a number of arguments in that regard.
163
First, in contrast with the intellectual property right linked to the PDO ‘Teran’, use by Croatian producers of the name of the ‘Teran’ wine grape variety does not constitute a property right under Article 17 of the Charter or Article 1 of Protocol No 1 to the ECHR. Thus, the Commission balanced two legal interests which are not at all equivalent.
164
Second, use by Croatian wine producers of the name of the ‘Teran’ wine grape variety, which is a perfect homonym of the PDO ‘Teran’, creates the likelihood that consumers will be easily misled, as is illustrated, in particular, by the judgment of 21 January 2016, Viiniverla (C‑75/15, EU:C:2016:35), and by the adoption of Commission Regulation (EC) No 1166/2009 of 30 November 2009 amending and correcting Commission Regulation (EC) No 606/2009 laying down certain detailed rules for implementing Council Regulation (EC) No 479/2008 as regards the categories of grapevine products, oenological practices and the applicable restrictions (OJ 2009 L 314, p. 27). Such use of the name ‘Teran’ also runs counter to Article 100(1) and (2) of Regulation No 1308/2013 and allows Croatian producers to take undue advantage of the reputation of the Slovenian PDO at issue. Moreover, the contested regulation could have the effect of rendering the PDO ‘Teran’ meaningless, to the point where it is ascribed generic characteristics which deprive it of protection, contrary to the express prohibition laid down in Article 103(3) of Regulation No 1308/2013.
165
Third, the contested regulation goes beyond what is reasonable and necessary to attain the objectives pursued by the legislation on PDOs, since Croatian producers can use a synonym of the name ‘Teran’, namely the name ‘Istrijanac’. In that regard, the Republic of Slovenia cites the judgment of 12 May 2005, Regione autonoma Friuli-Venezia Giulia and ERSA (C‑347/03, EU:C:2005:285). Furthermore, the contested regulation is liable to cause significant economic damage to Slovenian wine producers.
166
The Republic of Slovenia adds that the first subparagraph of Article 100(3) of Regulation No 1308/2013 does not allow an automatic exception for all existing labelling practices, as is shown by the Commission’s practice, in particular as regards the names of the Croatian grape varieties Barbera, Portugizac and Montepulciano. In that regard, the Republic of Slovenia considers that the Commission infringed the general principle of equal treatment, since it treated comparable situations differently.
167
Fourth, the adoption of the contested regulation almost four years after the Republic of Croatia’s accession to the European Union infringes the principle of proportionality. In addition, the Commission acted inconsistently with its previous practice in comparable situations and there is no objective reason for that divergence of approach.
168
Fifth, the Republic of Slovenia also submits that the Commission’s power to provide for an exception when a new Member State accedes to the European Union is subject to the agreement of the Member State whose producers benefit from a PDO, as is apparent from the second paragraph of Article 49 TEU. At the very least, the Commission should take into account the opinion of the Member State concerned before adopting the delegated act.
169
The Commission, supported by the Republic of Croatia, refutes the arguments advanced by the Republic of Slovenia.
1.
Outline of principles
170
The right to property is a fundamental right laid down in Article 17 of the Charter. However, that right does not appear to be an unfettered prerogative. As is apparent from Article 52(1) of the Charter, restrictions may be imposed on the exercise of the right to property, provided that the restrictions are provided for by law, genuinely meet objectives of general interest pursued by the European Union and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right guaranteed (see, to that effect, judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 70).
171
As regards judicial review of compliance with the principle of proportionality, the Court has accepted that, in the exercise of the powers conferred on it, the EU legislature is accorded a broad discretion in areas where its action involves political, economic and social choices and where it is called upon to undertake complex assessments and evaluations. This is particularly true of the common agricultural policy, an area where the EU legislature enjoys a broad discretion, consonant with the political responsibilities conferred on it by Articles 40 and 43 TFEU (judgments of 17 March 2011, AJD Tuna, C‑221/09, EU:C:2011:153, paragraph 80, and of 14 March 2013, Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraph 43).
172
Moreover, that wide discretion is not reserved to the legislature. It has been held that the Council may find it necessary, in the sphere of the common agricultural policy, to confer on the Commission wide discretion (see order of 22 March 2010, SPM v Council and Commission, C‑39/09 P, not published, EU:C:2010:157, paragraph 38 and the case-law cited).
173
In view of the fact that, in the present case, the Commission enjoys a broad discretion as to whether to take account of existing labelling practices, as is apparent from paragraphs 171 and 172 above, the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the Commission is seeking to pursue (see, to that effect, judgments of 13 December 1994, SMW Winzersekt, C‑306/93, EU:C:1994:407, paragraph 21, and of 2 July 2009, Bavaria and Bavaria Italia, C‑343/07, EU:C:2009:415, paragraph 81). The only test to be applied in those circumstances is therefore not whether the measure adopted by the Commission was the only measure possible or the best measure possible but whether it was manifestly inappropriate (see, to that effect, judgments of 21 July 2011, Beneo-Orafti, C‑150/10, EU:C:2011:507, paragraph 77, and of 28 July 2011, Agrana Zucker, C‑309/10, EU:C:2011:531, paragraph 44).
174
That limited degree of review does not mean, however, that the Courts of the European Union cannot subject contested measures to rigorous scrutiny in order to verify their proportionality. In that regard, the Courts of the European Union must, inter alia, also ensure that the relevant EU institution has fully taken into account all the interests involved beyond the main objective pursued (judgment of 12 July 2012, Association Kokopelli, C‑59/11, EU:C:2012:447, paragraph 40; see also, to that effect, judgment of 12 July 2001, Jippes and Others, C‑189/01, EU:C:2001:420, paragraph 85) and – in this context – that due attention was paid to the interests of individuals negatively affected (see, to that effect, judgment of 17 July 1997, Affish, C‑183/95, EU:C:1997:373, paragraph 43).
2.
Application to the present case
175
In the present case, the contested regulation lays down an exception from the prohibition on labelling Croatian wines with the name of the ‘Teran’ wine grape variety. That regulation is therefore not intended to prevent the marketing of wines benefiting from the Slovenian PDO ‘Teran’, still less to withdraw that designation. By contrast, the Commission extended the group of persons entitled to use the name ‘Teran’ on their wine labels to include Croatian wine producers. In that sense, the Commission limited the extent of the protection deriving from the property right granted to the beneficiaries of the Slovenian PDO ‘Teran’ in so far as those beneficiaries lost the monopoly over use of the name ‘Teran’ for labelling their wines because of the contested regulation.
176
In that context, it must be ascertained whether the conditions laid down by the case-law cited in paragraphs 170 to 173 above have been satisfied.
177
First of all, it is common ground that the exception in respect of labelling at issue was set out in a Commission delegated regulation, itself adopted on the basis of the authority conferred in the second subparagraph of Article 100(3) of Regulation No 1308/2013. Consequently, the condition that the infringement of the property right must have been provided for by law is satisfied in the present case. That is not disputed by the parties.
178
Next, as regards the objective pursued by the contested regulation, it has already been noted, in paragraphs 123 and 124 above, that the contested regulation seeks to protect existing labelling practices in Croatia on 30 June 2013 and to settle the conflict which arose upon its accession to the European Union between, on the one hand, those labelling practices and, on the other, the Slovenian PDO ‘Teran’. That objective is coupled with the need to reconcile the conflicting demands of the Republic of Croatia and the Republic of Slovenia and accordingly the different interests of Croatian and Slovenian producers. Such an objective, which seeks to strike a balance between the legitimate interests of the beneficiaries of the Slovenian PDO ‘Teran’ and those of Croatian wine producers, may be regarded as a legitimate aim in the public interest, which, moreover, is not disputed by the Republic of Slovenia.
179
Finally, as regards the proportionality of the exception in question in relation to the objective pursued, recital 5 of the contested regulation makes it clear that the Commission did not merely grant an exception, but verified the existence of lawful labelling practices in the Republic of Croatia at the time of its accession to the European Union. Moreover, as stated in recital 6 of the contested regulation, it made the exception at issue subject to particular conditions specifically to take account of the Republic of Slovenia’s reservations.
180
Thus, to avoid the consumer being misled, the Commission stated that the name of the ‘Teran’ wine grape variety could appear only on the label of Croatian wines bearing the PDO ‘Hrvatska Istra’, provided that the terms ‘Hrvatska Istra’ and ‘Teran’ appeared in the same visual field and that the font size of the name ‘Teran’ was smaller than that used for the PDO ‘Hrvatska Istra’. At the hearing, the Commission stated that such a condition for labelling was exceptional, in so far as special labelling conditions are not laid down for any other wine grape variety and that that condition had been adopted precisely in order to take account of the Republic of Slovenia’s reservations.
181
In that context, it must be determined, in the light of the arguments raised by the Republic of Slovenia, whether the Commission acted in a manifestly disproportionate manner in relation to the objective pursued, referred to in paragraph 178 above.
(a)
The absence of equivalence of interests in the present case
182
As regards the fact that the interest of Croatian wine producers in being able to continue to label their wines with the term ‘Teran’ was not equivalent to the right of Slovenian wine producers benefiting from the PDO ‘Teran’, protected by various regulatory texts, the Court must hold, as the Commission has done, that that factor was already necessarily taken into account by the EU legislature when it made the political choice to adopt the second subparagraph of Article 100(3) of Regulation No 1308/2013.
183
The second subparagraph of Article 100(3) of Regulation No 1308/2013 seeks precisely to allow exceptions to the monopoly of use deriving from a PDO where there are other interests involved, namely those of wine producers not benefiting from the PDO and of consumers who have been accustomed to seeing certain terms appear on the labels of wines produced by those producers. It was therefore the legislature itself which made it possible to provide for such an exception in order to enable a homonym of a PDO, such as the name ‘Teran’, to be used for labelling wines not covered by that PDO.
184
In those circumstances, contrary to what is implied by the Republic of Slovenia, the facts that the second subparagraph of Article 100(3) of Regulation No 1308/2013 provides only for an option, and not an obligation, for the Commission to grant an exception, and that it is mandatory to indicate the PDO but not the wine grape variety on wine labels, cannot establish that the exception laid down in the contested regulation is manifestly disproportionate in relation to the public interest objective pursued.
(b)
The homonymy of the name of the ‘Teran’ wine grape variety and the PDO ‘Teran’
185
As regards the homonymy of the name of the ‘Teran’ wine grape variety and the Slovenian PDO ‘Teran’, first of all, it is not apparent from the wording of the second subparagraph of Article 100(3) of Regulation No 1308/2013 that such a circumstance would preclude any exception in respect of labelling. The only condition for granting an exception is that lawful labelling practices existed at the time when the State concerned acceded to the European Union.
186
Moreover, as the wording of the first subparagraph of Article 100(3) of Regulation No 1308/2013 shows, that provision covers the situation in which the name of a wine grape variety ‘consists of’ a PDO; homonymy is therefore one of the situations envisaged.
187
Furthermore, the general prohibition laid down in Article 100(1) and (2) of Regulation No 1308/2013, relied on by the Republic of Slovenia, concerns only the registration of a name which is wholly or partially homonymous with a name which has already been registered. However, that situation is distinct from the situation in this case. The documents in the case do not show that a request was made for the name of the ‘Teran’ wine grape variety to be registered as a PDO competing with the Slovenian PDO of the same name.
188
Next, it should be noted, first, that the Commission took specific account of the likelihood that consumers would be misled in respect of Croatian wines produced after the entry into force of the contested regulation, since, as stated in paragraph 179 above, the contested regulation imposes – in an entirely exceptional manner – particular labelling conditions for those wines, a fact that the Republic of Slovenia does not dispute. Thus, the consumer must always read the name of the Croatian ‘Teran’ wine grape variety in conjunction with the Croatian PDO ‘Hrvatska Istra’ (Croatian Istria), which must appear in a larger font than the one used for the name ‘Teran’.
189
Second, as regards wines bearing the Croatian PDO ‘Hrvatska Istra’ which were produced before the entry into force of the contested regulation, it is true that those wines may continue to be marketed until stocks are exhausted under Article 2 of the contested regulation, without having to comply with the specific labelling conditions (referred to in paragraph 188 above) imposed by that regulation for wine produced as from its entry into force. However, these are merely transitional arrangements which, moreover, apply only to wines bearing the Croatian PDO ‘Hrvatska Istra’. The likelihood of possible confusion with wines bearing the Slovenian PDO ‘Teran’ is therefore limited to certain wines produced during a specified period which come from a particular region.
190
Moreover, as explained by the Commission in its replies to the measures of organisation of procedure, the name ‘Hrvatska Istra’ was already protected in Croatia at the time when it acceded to the European Union. According to Article 118s(4) and (5) of Regulation No 1234/2007, in order to retain that protection as a PDO, the Republic of Croatia was required to submit a technical file demonstrating that that name complied with the conditions set out in Article 118b of that regulation. The Commission stated, without being contradicted on that point, that the technical file thus submitted by the Republic of Croatia indicated that the name ‘Teran’ was permitted on the labels of the wine ‘Hrvatska Istra’ only on condition that the name ‘Teran’ appeared in the same visual field as the name ‘Hrvatska Istra’, in a smaller font size than used for the latter. In the light of those existing labelling conditions, the likelihood of confusion between the ‘Teran’ wine produced in Croatia before the date of entry into force of the contested regulation and the Slovenian wine bearing the homonymous PDO ‘Teran’ appears to be reduced, in particular because, in respect of wines covered by the contested transitional provision – that is to say wines produced between July 2013 and July 2017 – that likelihood can concern only wines using the designation ‘Hrvatska Istra’ whose labelling is not fully in accordance with the abovementioned technical file.
191
Furthermore, as regards the judgment of 21 January 2016, Viiniverla (C‑75/15, EU:C:2016:35), it should be noted that that judgment relates to the interpretation of Article 16(b) of Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89 (OJ 2008 L 39, p. 16). Leaving aside the fact that that provision concerns only ‘spirit drinks’ defined in Article 2 of the regulation, to the exclusion of wines, it protects geographical indications against misuse, imitation or evocation and does not provide for exceptions to be granted in respect of labelling. That judgment therefore relates to a different provision and context from those at issue in the present case.
192
Nor can the Republic of Slovenia rely on the judgment of 21 January 2016, Viiniverla (C‑75/15, EU:C:2016:35), to show that use of the name of the ‘Teran’ wine grape variety by Croatian wine producers will create in the mind of the public an association of ideas regarding the origin of the product, thus enabling those producers to take undue advantage of the reputation of the Slovenian PDO ‘Teran’. First, the parties do not dispute that, at the time when the Republic of Croatia acceded to the European Union, lawful labelling practices existed in respect of the term ‘Teran’ in that State; use of that term cannot, therefore, be regarded as taking ‘undue’ advantage of the reputation of the Slovenian PDO ‘Teran’. Second, in contrast with the situation in the case which gave rise to the judgment of 21 January 2016, Viiniverla (C‑75/15, EU:C:2016:35), where no specific additional term was indicated on the labels of the beverages at issue, in the contested regulation, the Commission took into account the likelihood of confusion among consumers by requiring that the label of ‘Teran’ Croatian wines clearly stated that the wine came from Croatian Istria (PDO ‘Hrvatska Istra’).
193
Furthermore, as regards the Republic of Slovenia’s argument based on Regulation No 1166/2009, it must be stated, first, that that regulation is not intended to implement Article 118j of Regulation No 1234/2007 (now Article 100 of Regulation No 1308/2013). On the contrary, it is based on Article 113d(2) and the third and fourth subparagraphs of Article 121 of that regulation, which are not at issue in the present case.
194
Second, the Republic of Slovenia has not adduced any evidence to show that the circumstances surrounding the adoption of Regulation No 1166/2009 were similar to those in the present case. On the contrary, it is apparent from recital 2 of that regulation that the decision to impose use of the term ‘Glera’ in Italy to designate the vine variety in question was made by the Italian authorities themselves. The Commission merely took formal note of that decision and amended Regulation No 606/2009 accordingly in order to avoid a disparity between the Italian legislation and the EU rules. In the present case, by contrast, the Commission had to reconcile conflicting national interests and examine existing labelling practices in Croatia.
195
Finally, the Republic of Slovenia is not justified in claiming that the indication of the name of the ‘Teran’ wine grape variety on wines from Croatian Istria would divest the Slovenian PDO ‘Teran’ of all meaning to the point of rendering that PDO generic and depriving it of protection.
196
Admittedly, it is clear from Article 101(1) of Regulation No 1308/2013 that protection as a PDO is refused where it appears that a name has become generic in the European Union. However, that provision concerns the conditions which apply to an application for protection of a name as a PDO. By contrast, Article 103 of that regulation governs the scope of protection of PDOs once that protection has been granted. It thus follows from paragraph 3 of that provision that, once a name has been considered to satisfy the conditions for obtaining the status of a PDO under Article 93(1) of Regulation No 1308/2013, that PDO cannot subsequently lose that status even if it appears to have become generic in the European Union.
(c)
The existence of a synonym for the name ‘Teran’ and the inconsistency of the Commission’s action
197
As the Republic of Slovenia observes, the annexes to the letter of 13 May 2013 from the Republic of Croatia to the Commission, containing a request for revision of the list in Part A of Annex XV to Regulation No 607/2009, show that the name of wine grape variety ‘Teran’ may also be designated, in Croatia, by the synonym ‘Istrijanac’.
198
However, when adopting the contested regulation, the Commission took into account the existing labelling practices in Croatia at the time of its accession to the European Union, as required by the second subparagraph of Article 100(3) of Regulation No 1308/2013. After a detailed examination of the matter, the Commission concluded that the name ‘Teran’ was used in that State to designate a wine grape variety and that, because of that usage, an exception should be made in respect of labelling for that variety name.
199
However, the documents before the Court do not show that the Republic of Croatia made a similar request concerning use of the name ‘Istrijanac’. Nor do those documents contain any evidence establishing that, at the time of its accession to the European Union, the name ‘Istrijanac’ was actually used in Croatia in respect of labelling and that the Commission should have therefore taken it into account when it adopted the contested regulation.
200
It is true that in the judgment of 12 May 2005, Regione autonoma Friuli-Venezia Giulia and ERSA (C‑347/03, EU:C:2005:285, paragraph 133), which concerns the prohibition on the use of the Italian vine variety names ‘Tocai friulano’ and ‘Tocai italico’ owing to the existence of the Hungarian geographical indication ‘Tokaj’, the Court pointed out that synonyms existed to replace the designations ‘Tocai friulano’ and ‘Tocai italico’ by way of justification for the proportionality of the prohibition in question.
201
However, the fact that a labelling prohibition has been held to be proportionate because synonyms exist does not mean that the contested regulation, which, conversely, seeks to authorise the use of the name of a wine grape variety in respect of labelling on the basis of a legal authorisation to that effect (the second subparagraph of Article 100(3) of Regulation No 1308/2013) is disproportionate because there are synonyms for that variety name. Whether or not the contested regulation is proportionate must be assessed in the light of the objective pursued in the present case, namely to take into account existing labelling practices in Croatia on the date of its accession to the European Union and to reconcile the conflicting interests of two States. By authorising use of the name of the ‘Teran’ wine grape variety subject to compliance with particular labelling conditions, the Commission did not manifestly go beyond what was necessary to attain such an objective.
202
As regards the inordinate economic consequences which the contested regulation could entail for Slovenian wine producers, as the Commission submits, that argument is based on the premiss, relied on by the Republic of Slovenia, that consumers will be misled as to the true origin of the Croatian wine produced from the ‘Teran’ wine grape variety and will prefer to buy that Croatian wine, which is in more plentiful supply and cheaper than the Slovenian wine covered by the PDO ‘Teran’.
203
As paragraph 188 above makes plain, the Commission took into account the likelihood of consumers being misled as to the origin of the wines concerned and laid down specific labelling conditions sufficient to avoid such an error.
204
In any event, the documents before the Court do not indicate that the Republic of Slovenia’s catastrophic predictions will materialise. On that point, the fact that the Republic of Croatia has a much higher capacity to produce ‘Teran’ wine than the Republic of Slovenia does not mean that wine producers in Croatian Istria will give up cultivating certain vines in favour of the ‘Teran’ wine grape variety or that they will prefer to plant that variety over another. It is true that the figures relating to production and the areas cultivated quoted by the Republic of Slovenia demonstrate the significance of ‘Teran’ wine production for that State (the PDO ‘Teran’ represents more than half of production for 88% of Slovenian producers), but do not establish that the authorisation to indicate the term ‘Teran’ on the labels of Croatian wines will entail equally significant losses for Slovenian producers.
205
As regards the Republic of Slovenia’s submission regarding the inconsistency of the Commission’s action in supposedly treating comparable situations differently, it should be borne in mind that the general principle of equal treatment, which is one of the fundamental principles of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraph 73). Thus, for an infringement of that principle to be established, it must first be ascertained whether the situations referred to in the present case are comparable.
206
In that regard, the letter from the Republic of Croatia of 13 May 2013 concerning the amendment of the list in Part A of Annex XV to Regulation No 607/2009 shows that that State had requested the Commission to include the names ‘Barbera’, ‘Montepuliciano’ and ‘Portugizac’ in that list and, despite that request, Implementing Regulation No 753/2013 did not grant any exception in respect of labelling for the names of those varieties.
207
Nevertheless, that circumstance alone is not sufficient to demonstrate that, for all the names referred to in paragraph 206 above, a labelling practice comparable to that of ‘Teran’ existed in Croatia when it acceded to the European Union. The documents before the Court do not contain any evidence to that effect. Thus, since it has not demonstrated the existence of comparable situations, the Republic of Slovenia cannot complain that the Commission infringed the principle of equal treatment in the present case or acted inconsistently in that regard.
(d)
The length of the period preceding the adoption of the contested regulation
208
As regards the allegedly disproportionate length of time required to adopt the contested regulation, it must be held that the Republic of Slovenia raises, in essence, the same argument as that relied on in the second plea, alleging that the Commission unlawfully delayed the exercise of its powers.
209
For the reasons set out in paragraphs 112 to 118 above, and taking into account the sensitive nature of the matter, the Commission cannot be criticised for having taken almost four years to deal with the ‘Teran’ issue or for encouraging a negotiated solution between the parties.
210
It follows from the foregoing that the Republic of Slovenia has failed to demonstrate that the Commission committed a manifestly disproportionate infringement of the property right of Slovenian producers of wine bearing the PDO ‘Teran’. The third plea must therefore be dismissed. That finding is, however, without prejudice to consideration of the Republic of Slovenia’s arguments referred to in paragraph 168 above, which are put forward in support of the seventh plea and will be examined in that context.
D. Fourth plea, alleging infringement of Article 41 of the Act of Accession of the Republic of Croatia
211
The Republic of Slovenia maintains that, under Article 41 of the Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community (OJ 2012 L 112, p. 21; ‘the Act of Accession of the Republic of Croatia’), any transitional measures with respect to the common agricultural policy to facilitate the Republic of Croatia’s accession to the European Union could only be adopted within a period of three years from the date of accession and were not to apply beyond that period.
212
However, according to the Republic of Slovenia, the transitional measure laid down in Article 2 of the contested regulation, in so far as it allows stocks of Croatian wine produced before the Republic of Croatia acceded to the European Union on 1 July 2013 to be disposed of even if they do not comply with the new labelling conditions laid down in Article 1 of that regulation, applies over a period longer than the three years provided for in Article 41 of the Act of Accession of the Republic of Croatia because of that regulation’s retroactive effect of almost four years. Thus, more than three years after that accession, the Commission prescribed a new transitional period for that wine, which is contrary to Article 41 of the Act of Accession of the Republic of Croatia.
213
The Commission disputes the arguments put forward by the Republic of Slovenia.
214
In the present case, Article 41 of the Act of Accession of the Republic of Croatia must be read in conjunction with the first paragraph of Article 2 of that Act of Accession. The latter provision provides that, from the date of accession, the provisions of the Treaties and the acts adopted by the institutions before accession are to be binding on the Republic of Croatia and are to apply in that State under the conditions laid down in those Treaties and in the Act of Accession in question. It follows that, from its accession to the European Union on 1 July 2013, the Republic of Croatia was subject, in general, to all provisions applicable to the labelling of wine sector products, including the labelling prohibition laid down in Article 118j(3) of Regulation No 1234/2007 (now Article 100(3) of Regulation No 1308/2013) and any exceptions from that prohibition under Article 62(3) of Regulation No 607/2009.
215
It is in that context that Article 41 of the Act of Accession of the Republic of Croatia authorises the adoption of transitional provisions in the field of the common agricultural policy for the purpose of facilitating the transition by that State from its previous national rules to those of the European Union. The transitional measures referred to are therefore those which are intended to derogate, for a limited period, from the EU legislation in force on 1 July 2013, which, without those provisions, would have been applied immediately to the Republic of Croatia on that date.
216
However, the transitional measure set out in Article 2 of the contested regulation does not fall within the framework defined in paragraphs 214 and 215 above. That provision is not intended to derogate from the legislation in force at the time when the Republic of Croatia acceded to the European Union, but rather from new labelling requirements laid down by a regulation adopted by the Commission, after that accession, on the basis of an express authorisation conferred by the second subparagraph of Article 100(3) of Regulation No 1308/2013, in conjunction with Article 62(3) of Regulation No 607/2009.
217
Consequently, the fourth plea must be rejected as unfounded.
E. Fifth plea, alleging infringement of the second subparagraph of Article 100(3) of Regulation No 1308/2013, in light of the importance of that provision in relation to the fundamental principles of EU law and to Article 17 of the Charter and Article 1 of Protocol No 1 to the ECHR, and sixth plea, alleging infringement of Article 13(2) TEU and Article 290 TFEU
218
In support of its fifth plea, the Republic of Slovenia submits that the second subparagraph of Article 100(3) of Regulation No 1308/2013 must be interpreted restrictively in accordance with the fundamental principles of EU law, in particular the principles of legal certainty, respect for acquired rights, protection of legitimate expectations and proportionality, and with Article 17 of the Charter and Article 1 of Protocol No 1 to the ECHR. By adopting the contested regulation, which fails to comply with those principles, the Commission exceeded the limits of the authority provided for in the second subparagraph of Article 100(3) of that regulation.
219
By its sixth plea, the Republic of Slovenia also claims that the Commission exceeded its powers by undermining the very substance of Regulation No 1308/2013, which principally aims to protect, first, the legitimate interests of producers and consumers against deception and, second, the smooth functioning of the internal market. It thus infringed Article 13 TEU and Article 290 TFEU.
220
The Commission disputes the arguments advanced by the Republic of Slovenia and refers to the responses which it submitted to the first three pleas.
221
In the present case, it should be noted that the Republic of Slovenia’s arguments relating to the consideration of the principles of legal certainty, protection of acquired rights, protection of legitimate expectations and proportionality have already been addressed in the context of the second plea, in paragraphs 95 to 161 above, and have already been held to be unfounded. Thus, in so far as the fifth plea overlaps with the second plea, it must be dismissed for the same reasons.
222
As regards the arguments relating to the infringement of Article 17 of the Charter and Article 1 of Protocol No 1 to the ECHR, it must be held that they concern the protection of consumers against deception, the complete homonymy between the Slovenian PDO ‘Teran’ and the name of the Croatian ‘Teran’ wine grape variety, and the existence of the synonym ‘Istrijanac’ to designate that wine grape variety. Those arguments have also been addressed in the context of the third plea, in paragraphs 185 to 210 above. In so far as the fifth plea overlaps with the third plea, it must be dismissed as unfounded, for the same reasons.
223
Similarly, given that the arguments raised in support of the infringement of Article 13 TEU and Article 290 TFEU under the sixth plea overlap, in essence, with those raised under the fifth plea, they must also be rejected on the same grounds.
224
Consequently, the fifth and sixth pleas must be dismissed as unfounded.
F. Seventh plea, alleging that the Republic of Croatia did not submit a request to have the name of the ‘Teran’ wine grape variety included in Part A of Annex XV to Regulation No 607/2009 before its accession to the European Union, and that the Republic of Slovenia was not informed of such a request for the purposes of the accession negotiations
225
The Republic of Slovenia claims that, under the second subparagraph of Article 100(3) of Regulation No 1308/2013 and Article 62(3) of Regulation No 607/2009, the Republic of Croatia should have requested that the name of the ‘Teran’ wine grape variety be included in the list in Part A of Annex XV to Regulation No 607/2009 before it acceded to the European Union, which it failed to do. Moreover, under the principle of sincere cooperation laid down in Article 4 TEU, the Commission was required to inform the Republic of Slovenia of such a request, assuming it had been made. Since such a question necessarily falls within the scope of the negotiations on a State’s accession to the European Union, the Republic of Slovenia should then have had the choice to accept or refuse that inclusion, as follows, inter alia, from the second paragraph of Article 49 TEU.
226
The Commission, supported by the Republic of Croatia, disputes the arguments advanced by the Republic of Slovenia.
227
As regards, first, the alleged requirement for the Republic of Croatia to submit, prior to its accession to the European Union, a request for the name of the ‘Teran’ wine grape variety to be added to the list in Part A of Annex XV to Regulation No 607/2009 (formerly Annex II to Regulation No 753/2002), it must be noted that, in Chapter III.b.3 of the negotiating position of 2008, relating to ‘Special crops, wine and spirit drinks’, the Republic of Croatia had clearly signalled its desire for its national list of recognised vine varieties and their synonyms to be included in the existing list of vine varieties and their synonyms that included a geographic indication and that could appear on the labelling of wines, set out in Annex II to Regulation No 753/2002.
228
It is true that that request was subsequently withdrawn in the addendum to the Republic of Croatia’s negotiating position of 28 September 2011. However, that withdrawal was expressly based on the premiss that the list of varieties that could appear on the labelling of wines would then be drawn up not in the context of the accession negotiations but later, pursuant to Article 62 of Regulation No 607/2009.
229
In addition, it should be noted that it was not until 6 December 2011, when submitting the technical file relating to the name ‘Teran’, referred to in Article 118c of Regulation No 1234/2007, that the Republic of Slovenia informed the Commission for the first time that the name ‘Teran’, taken in isolation, was to be protected as a PDO. However, on that date, the decision of the Council of the European Union of 5 December 2011 on the admission of the Republic of Croatia to the European Union (OJ 2012 L 112, p. 6), to which the Act of Accession of the Republic of Croatia was appended, had already been adopted.
230
It was in those circumstances that, in one of the three letters sent to the Commission on 13 May 2013 specifically concerning the Slovenian PDO ‘Teran’, the Republic of Croatia requested the Commission to find an appropriate solution that would allow its wine producers to continue using the name of the ‘Teran’ wine grape variety for labelling their wines. Although this was not an express request for the name of the ‘Teran’ wine grape variety to be included in the list referred to in Article 62(3) of Regulation No 607/2009, the fact remains that the Republic of Croatia clearly sought the Commission’s intervention in finding a solution permitting it to use the name ‘Teran’ for labelling its wines.
231
In any event, it is not apparent from the wording of the second subparagraph of Article 100(3) of Regulation No 1308/2013, in conjunction with Article 62(3) of Regulation No 607/2009, that the Republic of Croatia was required to request an exception in respect of the ‘Teran’ wine grape variety during the negotiations on accession to the European Union.
232
On the contrary, it follows from the second subparagraph of Article 100(3) of Regulation No 1308/2013 that, under that provision, the decision to lay down an exception in respect of labelling for the name of a wine grape variety in a Member State lies exclusively with the Commission in the exercise of its delegated powers. Thus, such an exception is based not on an agreement between the Member States prior to accession to the European Union, but on an express power conferred by the legislature on the Commission, which already existed when the Republic of Croatia acceded to the European Union (see Article 118j(3) of Regulation No 1234/2007).
233
In other words, the decision to include the name of a wine grape variety in the list in Part A of Annex XV to Regulation No 607/2009 does not, in itself, constitute one of the ‘conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails’ (second paragraph of Article 49 TEU), but is merely the implementation of a regulation forming part of the EU acquis to which a new State subscribes.
234
Second, as regards the fact that the Republic of Slovenia was not informed of a request submitted by the Republic of Croatia for the name of the ‘Teran’ wine grape variety to be included in the list set out in Part A of Annex XV to Regulation No 607/2009 before its accession to the European Union, and the resulting infringement of the duty of sincere cooperation, it must be borne in mind that the principle of sincere cooperation, which is laid down in the first subparagraph of Article 4(3) TEU, involves an obligation, for Member States, to take all measures necessary to guarantee the application and effectiveness of EU law and imposes on the institutions of the European Union duties of mutual respect and assistance with regard to the Member States in carrying out the tasks flowing from the Treaties (see judgment of 1 March 2018, Poland v Commission, T‑402/15, EU:T:2018:107, paragraph 53 (not published) and the case-law cited).
235
In that regard, it suffices to recall that the issue of authorising use of the name of the ‘Teran’ wine grape variety on bottles of Croatian wines was not covered by the accession negotiations. On the contrary, it was settled on the basis of powers granted to the Commission to that end in a separate context from those negotiations, subsequent to the Republic of Croatia’s accession to the European Union, of which the Republic of Slovenia was aware and in circumstances of which it was informed and directly involved, as is apparent from paragraphs 112 and 113 above. Therefore, the Commission cannot be criticised for having failed in its duty to respect and provide assistance to the Republic of Slovenia in the accession negotiations.
236
Moreover, the letter sent by the Slovenian Minister for Agriculture to the Member of the Commission responsible for Agriculture and Rural Development on 11 November 2014 makes plain that the Republic of Slovenia had been informed of the Republic of Croatia’s request after its accession to the European Union and that it had had the opportunity to submit its observations to the Commission on the ‘Teran’ question at a bilateral meeting with the Commission. In addition, as correctly stated in recitals 3, 4 and 5 of the contested regulation, the Republic of Slovenia was subsequently consulted several times on the ‘Teran’ issue so that a compromise solution could be found with the Republic of Croatia.
237
Third, in view of the fact that the exception in respect of labelling for the ‘Teran’ wine grape variety was granted by the Commission on the basis of a legal authorisation unrelated to the accession negotiations, the Republic of Slovenia’s argument that its agreement was required in the accession negotiations for such an exception to be laid down is also entirely unfounded.
238
Moreover, the need to obtain Member States’ prior agreement to be able to adopt an exception is not apparent from the second subparagraph of Article 100(3) of Regulation No 1308/2013. To interpret that provision differently would be tantamount to granting each of those States a right of veto and thus negating the delegation of power granted by that provision to the Commission.
239
The seventh plea must therefore be rejected as unfounded.
G. Eighth plea, alleging infringement of paragraph V.28 of the Interinstitutional Agreement, paragraph II.7 of the Common Understanding and the principle of institutional balance
240
The Republic of Slovenia submits that, in the draft delegated regulation submitted to the meeting of the GREX WINE expert group on 24 January 2017, the Commission intended to authorise Croatian wine producers to indicate the name ‘Teran’ on their bottles subject to compliance with specific labelling conditions. However, in the version finally adopted, the contested regulation also provides for a transitional period for selling stocks of Croatian wines which do not comply with the new labelling conditions. That was a material amendment in relation to the draft delegated regulation, on which the experts and the Member States did not have the opportunity to comment.
241
Accordingly, the Commission failed to fulfil the commitment set out in paragraph V.28 of the Interinstitutional Agreement and in the Common Understanding annexed to that agreement. It also infringed the principle of institutional balance.
242
The Commission disputes the arguments put by the Republic of Slovenia.
243
In the present case, the Republic of Slovenia’s reasoning is based on the premiss that the addition of the transitional provision provided for in Article 2 of the contested regulation constitutes a material amendment to the draft regulation discussed by the GREX WINE expert group on 24 January 2017, for the purposes of paragraph II.7 of the Common Understanding.
244
In that regard, it must be borne in mind that, under the first subparagraph of paragraph V.28 of the Interinstitutional Agreement, the Commission commits to gathering, prior to the adoption of delegated acts, all necessary expertise, including through the consultation of Member States’ experts and through public consultations. In addition, paragraph II.7 of the Common Understanding states that ‘where the material content of a draft delegated act is changed in any way, the Commission shall give Member States’ experts the opportunity to react, where appropriate in writing, to the amended version of the draft delegated act’.
245
It follows from a combined reading of the two provisions cited in paragraph 244 above that the Commission undertook to gather all necessary expertise before adopting a delegated act, which entails, inter alia, consultation of Member States’ experts on all the material aspects of the text before it is adopted.
246
As regards the draft delegated regulation discussed at the meeting of the GREX WINE expert group on 24 January 2017, it is true that that text did not contain a transitional provision such as that which was eventually added to Article 2 of the contested regulation. Nor is it disputed that the final version of the contested regulation was not discussed within that expert group.
247
Nevertheless, it should be borne in mind that the objective of the contested regulation, as stated in recital 5 thereof, is to take account of existing labelling practices in Croatia at the time of its accession to the European Union and to authorise, by way of an exception, use of the name ‘Teran’ for labelling Croatian wines subject to compliance with certain conditions. In that regard, the Commission complied with the undertaking set out in the first subparagraph of paragraph V.28 of the Interinstitutional Agreement, since it is not disputed that the Commission did indeed gather the necessary expertise, including expert opinions, in accordance with that paragraph, when assessing those labelling practices.
248
In those circumstances, the transitional provision contained in Article 2 of the contested regulation does not alter either the exception granted or the conditions under which it may be exercised. That provision merely lays down a transitional rule limited to wines bearing the PDO ‘Hrvatska Istra’ which were produced before the contested regulation entered into force to ensure that that regulation does not itself impose new labelling obligations on Croatian producers for those wines retroactively. In that regard, the Commission, which acted on the basis of a delegation of power within the meaning of Article 290 TFEU, exercised the discretion which such a delegation entails, within the limits set by the legislature. More specifically, it acted in accordance with Article 100(3) of Regulation No 1308/2013, in conjunction with Article 62(3) of Regulation No 607/2009, which confers on the Commission a broad discretion to lay down exceptions in respect of labelling. Thus, the addition of a transitional provision such as Article 2 to the contested regulation was integral to the powers of the Commission.
249
In any event, even if it had to be held that the Commission had not complied with the obligation laid down in the first subparagraph of paragraph V.28 of the Interinstitutional Agreement, in conjunction with paragraph II.7 of the Common Understanding, the Republic of Slovenia has not shown how such a consultation could have altered the content of the contested regulation. On the contrary, it must be held that the transitional measure in Article 2 of the contested regulation was required in the light of the principle of legal certainty, as recalled in paragraph 99 above. By adopting that provision, the Commission ensured that the contested regulation did not itself impose new labelling obligations on Croatian wine producers retroactively.
250
Thus, the Republic of Slovenia’s arguments alleging infringement of paragraph V.28 of the Interinstitutional Agreement and paragraph II.7 of the Common Understanding cannot be accepted.
251
The Republic of Slovenia’s argument based on the principle of institutional balance must be dismissed on the same grounds as those set out in paragraphs 247 to 251 above.
252
It follows from the foregoing that the eighth plea must be dismissed as unfounded.
253
Consequently, since all the pleas have been dismissed as unfounded, the action must be dismissed.
V. Costs
254
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Republic of Slovenia has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
255
Under Article 138(1) of the Rules of Procedure, Member States which have intervened in the proceedings are to bear their own costs. The Republic of Croatia must therefore bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber, Extended Composition)
hereby:
1.
Dismisses the action;
2.
Orders the Republic of Slovenia to bear its own costs and pay those incurred by the European Commission;
3.
Orders the Republic of Croatia to bear its own costs.
Kanninen
Schwarcz
Madise
Iliopoulos
Reine
Delivered in open court in Luxembourg on 9 September 2020.
[Signatures]
Table of contents
I. Legal context
A. General provisions on the protection of designations of origin in the wine sector
1. Regulation No 479/2008 and Regulation No 1234/2007
2. Regulation No 1308/2013
B. Provisions concerning use of the name of a wine grape variety which contains or consists of a PDO for labelling wines
1. Regulation No 753/2002
2. Regulation No 479/2008, Regulation No 1234/2007 and Regulation No 1308/2013
3. Regulation No 607/2009
C. Labelling provisions adopted following the Republic of Croatia’s accession to the European Union
1. Implementing Regulation No 753/2013
2. The contested regulation
II. Background to the dispute
A. The Republic of Slovenia’s accession to the European Union and the protected designation of origin ‘Teran’
B. The name of the ‘Teran’ wine grape variety in Croatia
C. The process by which the contested regulation was adopted
III. Procedure and forms of order sought
IV. Law
A. First plea, alleging infringement of Article 232 of Regulation No 1308/2013 in conjunction with the second subparagraph of Article 100(3) of that regulation
1. Infringement of the second subparagraph of Article 100(3) of Regulation No 1308/2013 in conjunction with Article 232 thereof
2. Infringement of Article 62(3) of Regulation No 607/2009, in conjunction with the second subparagraph of Article 100(3) and Article 232 of Regulation No 1308/2013
B. Second plea, alleging infringement of the principles of legal certainty, respect for acquired rights, protection of legitimate expectations and proportionality
1. Infringement of the principles of legal certainty, respect for acquired rights and protection of legitimate expectations, and, in essence, infringement of Article 100(3) of Regulation No 1308/2013 and Article 62(3) of Regulation No 607/2009
(a) Complaint alleging infringement of Article 100(3) of Regulation No 1308/2013 and Article 62(3) of Regulation No 607/2009
(b) The complaint that the Commission excessively delayed in exercising its powers
(c) The complaint that the extent of the retroactive effect of the contested regulation was unlawful
(1) The objective pursued by the contested regulation
(2) Respect for the legitimate expectations of Slovenian wine producers
(d) The complaint that inspection procedures carried out in Slovenia against those responsible for infringing the PDO ‘Teran’ were undermined
(e) The complaint relating to failure to observe acquired rights
2. Infringement of the principle of proportionality
C. Third plea, alleging infringement of Article 17 of the Charter and Article 1 of Protocol No 1 to the ECHR
1. Outline of principles
2. Application to the present case
(a) The absence of equivalence of interests in the present case
(b) The homonymy of the name of the ‘Teran’ wine grape variety and the PDO ‘Teran’
(c) The existence of a synonym for the name ‘Teran’ and the inconsistency of the Commission’s action
(d) The length of the period preceding the adoption of the contested regulation
D. Fourth plea, alleging infringement of Article 41 of the Act of Accession of the Republic of Croatia
E. Fifth plea, alleging infringement of the second subparagraph of Article 100(3) of Regulation No 1308/2013, in light of the importance of that provision in relation to the fundamental principles of EU law and to Article 17 of the Charter and Article 1 of Protocol No 1 to the ECHR, and sixth plea, alleging infringement of Article 13(2) TEU and Article 290 TFEU
F. Seventh plea, alleging that the Republic of Croatia did not submit a request to have the name of the ‘Teran’ wine grape variety included in Part A of Annex XV to Regulation No 607/2009 before its accession to the European Union, and that the Republic of Slovenia was not informed of such a request for the purposes of the accession negotiations
G. Eighth plea, alleging infringement of paragraph V.28 of the Interinstitutional Agreement, paragraph II.7 of the Common Understanding and the principle of institutional balance
V. Costs
(
*1
)	Language of the case: Slovenian.