62000CC0469_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I ─ Introduction
1.
The present order for reference concerns the question of the extent of the protection afforded by industrial property in the form of protected designations of origin.
Specifically, the question is whether the protected designation of origin
"Grana Padano"
may be used only if the cheese is also grated and packaged in the region of production.
The plaintiffs in the main proceedings wish to prevent the defendant from placing Grana Padano cheese grated in France on the market under the protected designation of origin.
II ─ Legal framework
(1)
Community provisions
(a) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs
(2) ( "Regulation No 2081/92"
)
2.
Regulation No 2081/92 introduces Community rules to protect certain agricultural products and foodstuffs for which a link between product or foodstuff characteristics and geographical origin exists.
3.
Article 2(2) provides:
"For the purposes of this Regulation:
(a)
designation of origin: means the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff:
─
originating in that region, specific place or country, and
─
the quality or characteristics of which are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors, and the production, processing and preparation of which take place in the defined geographical area;
(b)
geographical indication: means the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff:
─
originating in that region, specific place or country, and
─
which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and the production and/or processing and/or preparation of which take place in the defined geographical area.
"
4.
Under Article 4(1) of Regulation No 2081/92, to be eligible to use a protected designation of origin ( "PDO"
)
(3) or a protected geographical indication ( "PGI"
) an agricultural product or foodstuff must comply with a
specification
.
Article 4(2) lists the particulars which must be included in the specification; they include a description of the agricultural product or foodstuff including the raw materials, the definition of the geographical area, a description of the method of obtaining the agricultural product or foodstuff, details bearing out the link with the geographical environment or the geographical origin and any requirements laid down by Community and/or national provisions.
5.
Regulation No 2081/92 prescribes a normal procedure and a simplified procedure ─ which is relevant in the present case ─ for the entry of PDOs and PGIs in the
"Register of protected designations of origin and protected geographical indications"
kept by the Commission.
The fundamental difference between them is that the simplified procedure does not provide for the main points of the application and the references to national provisions to be published in the
Official Journal of the European Communities
.
Articles 5, 6 and 7 govern the normal procedure.
In brief, Article 5 provides that an application is initially submitted at national level and examined as to its content by the Member State.
The Member State forwards the application to the Commission if it considers the application to be justified.
Under Article 6, the Commission verifies, by means of a formal investigation, whether the application for registration includes all the particulars provided for in Article 4 and, if it considers that the name qualifies for protection, publishes in the
Official Journal of the European Communities
the name and address of the applicant, the name of the product, the main points of the application, the references to national provisions governing the preparation, production or manufacture of the product and, if necessary, the grounds for its conclusions.
If no statement of objections is notified to the Commission in accordance with Article 7 by a Member State or a legitimately concerned natural or legal person, the Commission enters the name in the
"Register of protected designations of origin and protected geographical indications"
and publishes it in the
Official Journal of the European Communities
.
6.
In accordance with Article 8, the indications
"PDO"
and
"PGI"
may appear only on agricultural products and foodstuffs which comply with the regulation.
7.
Article 13(1) provides:
"Registered names shall be protected against:
(a)
any direct or indirect commercial use of a name registered in respect of products not covered by the registration in so far as those products are comparable to the products registered under that name or in so far as using the name exploits the reputation of the protected name;
(b)
any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated or accompanied by an expression such as
"style"
,
"type"
,
"method"
,
"as produced in"
,
"imitation"
or similar;
(c)
any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the product concerned, and the packing of the product in a container liable to convey a false impression as to its origin;
(d)
any other practice liable to mislead the public as to the true origin of the product.
...
"
8.
Article 17 governs the simplified procedure for registering a PDO or PGI.
It applied to names, such as Grana Padano, which already existed and enjoyed national protection before the regulation entered into force.
Article 17 states:
"1.
Within six months of the entry into force of the Regulation,
(4) Member States shall inform the Commission which of their legally protected names or, ..., which of their names established by usage they wish to register pursuant to this Regulation.
2.
In accordance with the procedure laid down in Article 15, the Commission shall register the names referred to in paragraph 1 which comply with Articles 2 and 4.
Article 7 shall not apply.
...
3.
...
"
9.
After receiving and formally examining the names notified by the Member States pursuant to Article 17 of Regulation No 2081/92, the Commission adopted Regulation (EC) No 1107/96 of 12 June 1996 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Regulation (EEC) No 2081/92 ( "Regulation No 1107/96"
).
(5)
The annex to this regulation contains the list of names registered as PDOs or PGIs, including the PDO
"Grana Padano"
.
(2)
Procedure leading to registration of the designation of origin
"Grana Padano"
as a PDO
10.
It is apparent from the observations of the Italian Government that Italy laid down the rules governing the use of designations of origin for cheese produced in Italy by enacting Law No 125 of 10 April 1954
(6) and Decree of the President of the Republic No 1269 of 30 October 1955.
(7)
That legislation covers Grana Padano, whose region of production it defines.
11.
By decree of 22 September 1981 the designation of origin
"Grana Padano"
was extended to cheese sold in portions.
12.
By decree of the Presidenza del Consiglio (Prime Ministerial decree) of 4 November 1991, the designation of origin
"Grana Padano"
was again extended, this time to grated ( "grattugiato"
) cheese.
Use of the PDO was made subject to the requirement for grating to take place in accordance with specified provisions in the region of production and for the cheese to be packaged immediately after grating without further handling or the addition of preservatives or other substances which could alter the original organoleptic characteristics of the cheese.
The decree was published on 8 April 1992.
(8)
13.
The Consorzio per la tutela del formaggio Grana Padano ( "the Grana Padano Association"
), which brings together producers of Grana Padano, was founded on 18 June 1954.
The Italian State entrusted the Grana Padano Association with the task of supervising observance of the provisions concerning the production of Grana Padano.
According to the facts set out in Ravil's observations, it can grant
"licences"
to use the PDO.
14.
As already mentioned, entry of the PDO
"Grana Padano"
in the
"Register of protected designations of origin and protected geographical indications"
kept by the Commission was effected under Regulation No 1107/96, that is to say by means of the simplified procedure pursuant to Article 17 of Regulation No 2081/92.
Only the PDO
"Grana Padano"
was registered, and not the designation
"Grana Padano grattugiato"
(grated Grana Padano) or the designation used by Ravil
"Grana Padano râpé frais"
(fresh grated Grana Padano).
(3)
Bilateral agreement between Italy and France
15.
On 28 April 1964 Italy and France entered into a bilateral agreement
(9) on the basis of the international Convention on the use of registered designations of origin and names of cheeses, signed at Stresa on 1 June 1951.
Under Articles 1 and 3 of that agreement, the designation of origin
"Grana Padano"
is protected in France (see Annex B to the agreement) and may be used only under the conditions laid down in Italian law.
III ─ Main proceedings and question referred for a ruling
16.
On 1 July 1990 Ravil, a business established in France, obtained a
"licence"
from the Grana Padano Association to distribute grated Grana Padano in France under the designation
"Grana Padano râpé frais"
.
Subsequently, it imported whole Grana Padano cheeses from Italy, grated them in France and distributed them under the designation
"Grana Padano râpé frais"
.
17.
Biraghi, a business established in Italy, produces cheese in Italy and puts cheese including Grana Padano on the market.
Bellon Import and Biraghi France are both businesses resident in France and are the exclusive importers for France of goods produced by Biraghi.
18.
On 4 October 1996 Biraghi and Bellon brought an action against Ravil before the Tribunal de commerce (Commercial Court), Marseilles, seeking an order, accompanied by a periodic penalty payment for non-compliance, requiring it to stop placing cheese grated in France on the market with the designation
"Grana Padano râpé frais"
and to compensate Biraghi and Bellon for the loss suffered by them through the placing on the market of such cheese.
They submitted that the Prime Ministerial decree of 4 November 1991 extended the designation of origin
"Grana Padano"
to grated cheese and introduced the requirement that the cheese be grated in the region of production.
By judgment of 5 November 1997 the Tribunal de commerce ordered Ravil to pay damages for the marketing from 1992 and prohibited it, on pain of a periodic penalty payment, from distributing cheese bearing the designation
"Grana Padano râpé frais"
.
The Cour d'appel (Court of Appeal), Aix-en-Provence, upheld that decision by judgment of 5 March 1998 on the ground that the placing of
"Grana Padano râpé frais"
on the market constituted sufficient proof of unfair competition.
It stated that Ravil infringed the Italian legislation in order to carry out transactions at a lower cost and win market share from competitors who complied with the legislation.
19.
Ravil appealed against that judgment to the Cour de cassation (Court of Cassation).
The Cour de cassation considers that the decree of 4 November 1991 is a measure having an equivalent effect to a quantitative restriction on exports within the meaning of Article 29 EC.
Referring to the judgements of the Court of Justice in
Delhaize (10) and in
Belgium
v
Spain (11) (also known as the
"Rioja "
case), it submitted the following question to the Court of Justice for a preliminary ruling:
"Is Article 29 EC to be interpreted as precluding national legislation which reserves the designation of origin
"Grana Padano"
for cheese grated in the region of production inasmuch as such an obligation is not indispensable for preserving the specific characteristics which the product has acquired?
"
20.
It should also be noted that since 1999 Ravil has, pursuant to an agreement concluded at the end of 1998 between it and the Grana Padano Association, arranged for cheese intended for export to France to be grated in Italy.
IV ─ Arguments of the parties
(1)
Ravil
21.
Ravil submits that the requirement that grating and packaging take place in the region of production makes export of the cheese more difficult and more expensive.
The rules deter potential importers from importing and distributing the cheese in another Member State.
22.
Furthermore, the requirement for the cheese to be grated and packaged in the region of production is not necessary in order to guarantee the quality of the product marketed under the PDO
"Grana Padano"
.
The measure does not merely make the export of Grana Padano more difficult and more expensive but, in addition, gives local undertakings a particular advantage.
It grants them an exclusive right to grate and package the cheese.
French undertakings must either build up an appropriate infrastructure in the region of production or instruct subcontractors there.
Ravil adds that there is no obligation to package pieces of Grana Padano in the region of production.
23.
The rules in the decree are not justified on industrial property grounds.
Besides, Regulation No 1107/96 protects only the PDO
"Grana Padano"
and not the designation
"Grana Padano râpé frais"
used by Ravil.
Nor does the specification for the PDO
"Grana Padano"
contain any provision specifying the place where grating and packaging are to occur.
(2)
Bellon and Biraghi France
24.
Bellon and Biraghi France argue that there is no measure having an equivalent effect to a quantitative restriction on exports because the decree applies just as much to cheese distributed in Italy as to exported cheese.
It is therefore not a measure which specifically concerns exports.
25.
In their submission, the rules in the decree of 4 November 1991 are compatible with Community law.
In accordance with the judgment in
Exportur
,
(12) PDOs are recognised as industrial property.
Under Regulation No 2081/92, Community law protection of PDOs replaced national protection.
Regulation No 1107/96, which forms the basis for inclusion of the PDO
"Grana Padano"
in the register kept by the Commission, cannot therefore be contrary in this respect to Community law, in particular to Article 29 EC.
26.
The requirement that the cheese be grated and packaged in the region of production in order to be allowed to bear the PDO
"Grana Padano"
guarantees the quality and the particular characteristics of the product.
Adequate controls safeguarding the product's quality do not exist outside the region of production.
27.
A PDO guarantees that a product comes from a defined area and displays certain characteristics.
It helps the manufacturer to acquire a clientele.
The goods bearing the PDO have a particular image which is determined by the quality of the product.
28.
Grana Padano is exposed during processing to risks of oxidation, desiccation, compression and fermentation.
Processing therefore requires specialised knowledge.
Grating too demands specialised skills and knowledge.
Accordingly, the rules are necessary in order to maintain the product's reputation.
(3)
The French Republic
29.
The French Government notes that Ravil uses a designation, namely
"Grana Padano râpé frais"
, which does not correspond to the protected designation, namely
"Grana Padano"
.
However, the decree of 4 November 1991 was intended to extend to grated cheese the protection conferred by the designation of origin.
By means of the specification which refers to national provisions, and thus also to the decree, that protection nevertheless became part of the PDO
"Grana Padano"
, so that grated Grana Padano which is to bear the PDO must also comply with the specification, including the requirement that grating take place in the region of production.
30.
The French Government maintains that the question referred for a preliminary ruling is not put correctly.
The present proceedings involve not the compatibility of the Italian decree with Article 29 EC, but that of Regulation No 1107/96 with Community law.
However, the Cour de cassation has put forward no grounds which could result in the invalidity of that regulation.
The factual position is therefore different from that in
Delhaize
and the
Rioja
case.
The French Government accordingly suggests that the Court should hold that there is no need to rule on the compatibility of Italian law with Community law.
31.
At the hearing it supplemented its observations by indicating that, in its submission, Regulation No 1107/96 is consistent with Community law.
The grating of cheese in the region of production is a condition for use of the PDO
"Grana Padano"
which can be protected by Regulation No 2081/92.
(4)
The Italian Republic
32.
The Italian Republic suggests that, in answering the question raised, a distinction should be drawn between the period before Regulation No 1107/96 entered into force and the period thereafter.
For the period until the regulation entered into force, it refers to the bilateral agreement which Italy and France entered into on 28 April 1964 on the basis of the international Convention on the use of registered designations of origin and names of cheeses, signed at Stresa on 1 June 1951.
(13)
The agreement contains no provisions regarding alterations made after it was concluded to designations of origin covered by it, so that the rules in the decree of 4 November 1991 did not become an integral part of the agreement.
For the purposes of the agreement, therefore, the PDO
"Grana Padano"
does not encompass grated cheese.
In this regard it concludes that Ravil's conduct does not infringe the 1964 agreement.
33.
Since the entry into force of Regulation No 1107/96, the PDO
"Grana Padano"
has been protected to the extent described in the specification.
The specification refers to the national legislation, which includes the decree of 4 November 1991.
Consequently, the PDO henceforth also encompasses grated Grana Padano.
34.
Grating of the cheese forms part of the production process.
In that regard too, therefore, certain production methods are to be adhered to, observance of which is to be monitored by the competent supervisory bodies.
Relying on the judgment in the
Rioja
case, the Italian Government points out that, in the case of the PDO
"Grana Padano"
too, preservation of quality is at issue.
Noting the risk that Grana Padano which is not grated correctly can go rancid and that inappropriate handling can thus cause substantial harm to the reputation of products manufactured in compliance with the provisions of the PDO, and taking account of the fact that there is no corresponding quality control outside the region of production, the Italian Government concludes that, as regards the period from the entry into force of Regulation No 1107/96, that is to say from 21 June 1996, Ravil infringed the provisions concerning use of the PDO
"Grana Padano"
.
(5)
The Kingdom of Spain
35.
The Spanish Government too, relying on the judgment in the
Rioja
case, proceeds on the basis that a PDO is industrial property whose protection can justify a restriction on exports.
Grating of the cheese admittedly occurs after it has been produced.
However, since Grana Padano is consumed almost exclusively in grated form, grating has particular significance in the case of this cheese.
Grana Padano is similar to Rioja wine in that checks undertaken outside the region of production provide less certainty as to the quality of the product than the checks undertaken in the region of production under the supervision of the Grana Padano Association.
Even if grating takes place under optimal conditions in full compliance with the law, the quality of the product can none the less be better safeguarded by the requirement that the cheese be grated in the region of production.
In the case of protected designations of origin it is particularly important to maintain the product's reputation.
(6)
The Commission
36.
The Commission likewise finds guidance in the judgment in the
Rioja
case and reaches the conclusion in the present case that the requirement that grating and packaging take place in the region of production constitutes a justified restriction on exports.
37.
The holder of a PDO can lay down the rules under which the PDO is allowed to be used.
PDOs are industrial property and under Article 30 EC can justify restrictions within the meaning of Article 29 EC.
38.
A PDO guarantees that a product comes from a defined area.
In addition it guarantees that the product displays certain characteristics.
The restriction on exports resulting from the requirement that grating and packaging take place in the region of production is justified because appropriate quality controls are undertaken only in that region.
The restriction is necessary because it ensures identification of origin and guarantees the product's reputation.
39.
"Grana Padano"
is a well-known PDO with a very good reputation.
The product is stamped with certain characteristics and a certain know-how, the preservation of which is essential in order to maintain its reputation and special characteristics.
40.
The PDO
"Grana Padano"
also extends to grated cheese since it is sold in that form in particular.
Grating is a special process.
The conditions under which it takes place are crucial to the taste of the product offered.
Even selection of the whole cheeses to be grated requires specialised knowledge and skills.
Outside the region of production there are no controls ensuring that those rules are observed.
V ─ Assessment
(1)
Subject-matter of the reference for a preliminary ruling
41.
The order for reference raises the question whether the Italian decree of 4 November 1991 is compatible with Community law.
That question appears to be somewhat contracted as, under the principle of territoriality to which industrial property rights ─ which include designations of origin
(14) ─ are subject, it is not self-evident that the Italian decree applies in France.
It is therefore appropriate to begin by clarifying the subject-matter of the reference for a preliminary ruling.
42.
The Italian decree could be applicable in France by virtue of, first, the agreement concerning protection of designations of origin entered into by Italy and France on 28 April 1964
(15) and, second, Regulation No 1107/96.
43.
Agreements concluded between Member States after the entry into force of the EC Treaty must likewise be compatible with Community law.
(16)
For the period prior to 21 June 1996 the question could therefore arise as to the extent to which the agreement entered into by France and Italy on 28 April 1964 is compatible with Community law, in particular Article 29 EC.
44.
It is true that the Italian Government submits that the agreement does not automatically take account of subsequent amendments to national law.
It therefore considers that the 1991 decree, and thus the requirement at issue here that grating and packaging take place in the region of production, are not covered by the agreement in the absence of a subsequent measure incorporating them, and that for the purposes of the agreement the designation of origin
"Grana Padano"
accordingly does not extend to grated cheese.
It is, however, for the national court which has made the reference for a preliminary ruling to determine what national law ─ which includes the 1964 agreement ─ is applicable.
The order for reference contains no reasoning at all on the interpretation of the 1964 agreement.
For the purposes of further consideration of the present case, it should therefore be assumed that the national court proceeded on the basis that the Italian decree is applicable under the 1964 agreement.
However, this question is to be examined and decided by the national court.
It can accordingly be stated by way of intermediate conclusion that the reference for a preliminary ruling raises the question of the compatibility of the Franco-Italian agreement with Community law in so far as the rules in the decree of 4 November 1991 under which grated
"Grana Padano"
is allowed to be placed on the market under that designation of origin only if it has been grated and packaged in the region of production are declared applicable in France by the agreement.
45.
Since 21 June 1996 the PDO
"Grana Padano"
has been protected throughout the Community by Regulation No 1107/96 in conjunction with Regulation No 2081/92.
The order for reference therefore also raises the question of the validity of Regulation No 1107/96 in so far as it reserves use of the PDO
"Grana Padano"
for Grana Padano grated and packaged in the region of production.
46.
By way of summary, therefore, the subject-matter of the present reference for a preliminary ruling is constituted by the Franco-Italian agreement of 1964 and Regulation No 1107/96.
However, the legality of both those measures is at issue only in so far as they declare the rules in the Italian decree of 4 November 1991 to be applicable.
In that regard, as the national court has stated, the issue in the final analysis is whether the rules under which grated
"Grana Padano"
is allowed to be placed on the market under that designation of origin only if it has been grated and packaged in the region of production are compatible with Community law.
(2)
Legality of the Franco-Italian agreement of 1964
(a) Existence of a measure having an equivalent effect to a quantitative restriction on exports within the meaning of Article 29 EC
47.
According to the settled case-law of the Court, Article 29 EC prohibits national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade, in such a way as to provide a particular advantage for national production or for the domestic market of the State in question.
(17)
48.
Support for the view that there is no measure having an equivalent effect to a quantitative restriction on exports is provided first of all by the fact that the requirement for grating and packaging to take place in the region of production affects domestic and foreign economic operators in the same way.
A business established in Rome cannot grate the cheese in Rome and sell it there under the PDO
"Grana Padano"
any more than Ravil can in France.
49.
On the other hand, it must be taken into account that the requirement to grate and package the cheese in the region of production in order to be allowed to place it on the market under the designation of origin
"Grana Padano"
confers a particular advantage on the undertakings operating in the region of production inasmuch as they alone are allowed to grate and package the cheese.
That activity remains reserved for the industry established in the region of production.
50.
In addition, export of the cheese to other Member States might well be made more expensive by the rules at issue.
Prior to export, a further processing operation must be carried out.
That increase in costs hinders the export of Grana Padano.
Those reasons point in favour of categorising the decree as a measure having an equivalent effect to a quantitative restriction on exports.
51.
As mentioned above, the case-law concerning the interpretation of Article 29 EC focuses on whether the measure in question specifically restricts exports.
(18)
In its judgments in
Delhaize
and the
Rioja
case, the Court held that measures under which the designation of origin for Rioja wine may be used only if the wine is bottled in the region of production specifically restrict patterns of exports for the purposes of Article 29 EC.
(19)
In the judgment in the
Rioja
case, it based that finding on the fact that the wine may also be transported unbottled within the region of production, in contrast to exported wine.
(20)
52.
The situation in the present case appears to be comparable.
The decree in question lays down solely that the cheese must be grated and packaged in the region of production.
That requirement is also observed if the cheese is transferred within the region of production from the cheese dairy to another business which then grates and packages it in accordance with the applicable rules.
Therefore, here too it may be concluded that there is a specific restriction on exports.
53.
It must therefore be stated in conclusion that the decree of 4 November 1991 and, in that regard, also the 1964 agreement are measures having an equivalent effect to a quantitative restriction on exports within the meaning of Article 29 EC since they establish a difference in treatment between the domestic trade of a Member State and its export trade, in such a way as to provide a particular advantage for national production.
(b) Justification of the measure in order to protect industrial property within the meaning of Article 30 EC
54.
The question is thus raised of the extent to which the measure is justified on the grounds of protection of industrial property within the meaning of Article 30 EC.
Designations of origin are industrial and commercial property within the meaning of Article 30 EC.
(21)
The restrictions on trade which they entail are justified in so far as they are necessary in order to ensure that the designation of origin fulfils its specific function, which is to guarantee that the product bearing it comes from a specified geographical area and displays certain particular characteristics.
(22)
Accordingly, the requirement that grating and packaging take place in the region of production would be justified if it gave the cheese from that region particular characteristics apt to distinguish it from other cheese, or if grating in the region of production were essential in order to preserve specific characteristics acquired by the cheese during its production.
However, as the Commission correctly points out, only requirements observance of which is necessary in order to protect the reputation of the PDO are permissible as a restriction on the free movement of goods satisfying the principle of proportionality. (23)
(i) Rules to protect a particular characteristic
55.
It must therefore be examined to what extent the grating and packaging of the cheese in the region of production confers on it or preserves a characteristic which influences the consumer's choice and is therefore commercially material.
56.
Support for the view that a commercially material characteristic is involved is provided first of all by the fact that, according to the submissions of Bellon and Biraghi, Italy, Spain and the Commission, grating demands special knowledge.
The whole cheeses to be grated must be selected with care, using special expertise.
In addition, regard is to be had during grating to certain requirements, some of which are laid down in Article 2 of the decree of 4 November 1991, so that the quality of the cheese and its particular characteristics are safeguarded.
The abovementioned parties contend that this know-how is available only in the region of production.
57.
A further argument in favour of a commercially material characteristic being involved is the fact, likewise relied on by Bellon and Biraghi, Italy, Spain and the Commission, that the quality controls in respect of grating and packaging are undertaken by the Grana Padano Association only in the region of production.
In their submission, this is the only means of guaranteeing that Grana Padano put on the market is of a constant high quality.
58.
It is to be noted, however, that none of the parties to the proceedings has put forward an argument that the grating of the cheese in the region of production is a process which confers particular characteristics on that cheese or which is essential in order to preserve the specific characteristics acquired by it during production.
The special knowledge which is required in order to select the whole cheeses and in order to grate them properly in accordance with the provisions applicable to the PDO can also be applied outside the region of production.
It is entirely comprehensible that, historically, the special knowledge has developed in the region of production.
However, no reason has been put forward as to why that knowledge should be available only in the region of production.
People who assist in the production and processing of a product can ─ above all through training in the region of production ─ gain the requisite knowledge and necessary skills for producing and processing the product.
Equally people who have acquired that knowledge and those skills can move away from the region of production.
It is therefore necessary to proceed on the basis that the human influences on the product are fundamentally independent of the region of production.
59.
Analogous considerations apply to observance of certain external conditions when the cheese is grated, so that it can be protected from the risks of oxidation, desiccation, compression and fermentation to which Bellon and Biraghi refer.
The same is true of compliance with the technical and technological parameters set out in Article 2 of the decree of 4 November 1991.
(24)
No argument has been advanced to support the proposition that the risks can be met only by grating in the region of production or that the technical and technological parameters can be complied with only in that region.
With the technical possibilities available today, it is easy to imagine that the requirements can at any time be complied with anywhere.
In that case, however, there is no apparent reason for allowing grating only in the region of production.
60.
Given those circumstances, and in the absence of statements to the contrary in the order for reference and the observations of the parties to the proceedings, it is at any rate not apparent that Grana Padano ─ of course only if the grating takes place in compliance with all other requirements, in particular the exclusive use of Grana Padano and observance of the technical and technological parameters set out in Article 2 of the decree of 4 November 1991 ─ will inevitably lose its particular characteristics which it acquires through its production if it is grated outside the region of production.
Cheeses are of course also allowed to be exported whole or cut up and to be grated by the ultimate consumer himself, without losing their qualitative characteristics.
In this connection, it remains open to question whether it is not only persons who grate the cheese themselves who know how to appreciate properly the quality of good Grana Padano.
I cannot be persuaded that grating by the ultimate consumer should be permissible but that industrial grating followed by immediate packaging should not be.
From the point of view of the risk of possible losses in quality, it is also to be taken into consideration that cheeses exported whole may remain for longer with a retailer for example and therefore be exposed to the risk of desiccation, loss of aroma or deterioration in their appearance.
In the case of industrial grating and packaging, it might be possible to counter those risks with specific measures.
61.
There is the following further reflection.
In the
Rioja
case, the Court came to the view that the bottling of wine in the region of production was a justified restriction on the free movement of goods since that was the best means of guaranteeing the quality of the bottled wine.
It may be evident that the bottling of the wine in the region of production constitutes a commercially material characteristic, since consumers purchase wine primarily in bottles.
In the case of Grana Padano, however, the situation is different.
It is purchased by consumers either grated or by the piece.
It is thus clear that the grating of the cheese does not have a significance comparable to that of the bottling of the wine.
It is then even less the case that the place where grating takes place can have a decisive influence on consumer choice.
This supports the view that grating in the region of production does not involve a commercially material characteristic.
62.
By way of intermediate conclusion, therefore, grating and packaging of Grana Padano in the region of production are not to be regarded as a step which serves to protect particular characteristics of the cheese.
It been not been established either that they bestow a particular characteristic upon the cheese or that grating and packaging in the region of production are necessary in order to preserve the particular characteristics acquired by the cheese in the production process.
The parties too have focused less on that than on checks and on the reputation of the product linked thereto.
(ii) Carrying out of quality controls in the region of production
63.
If this view is followed, it is strictly speaking superfluous to discuss the carrying out of checks in respect of grating in order to safeguard the quality of Grana Padano.
If grating in the region of production is not a commercially material characteristic, the fact that checks are carried out there can no longer be a decisive factor.
64.
This argument will accordingly be addressed below by way of supplement only.
That approach appears, first, to be necessary in case the Court does not follow the analysis set out above.
Second, discussion of this argument is appropriate because the parties which plead that the requirement is lawful have, referring to the judgment in the
Rioja
case, relied above all on this argument.
Bellon and Biraghi, Italy, Spain and the Commission contend that specialised knowledge is needed and that the special requirements set out in the decree are to be observed in order for Grana Padano to be grated in such a way that its quality and its particular characteristics are preserved.
In their submission, that is crucial for preserving the body of purchasers which has been built up and hence for the economic value of the PDO
"Grana Padano"
.
Only the checks systematically carried out in the region of production by the competent bodies ensure observance of the relevant criteria.
They point out that there are no corresponding controls outside the region of production.
Third and finally, it is necessary to discuss the issue of checks for the further reason that, as stated above, grating outside the region of production has to take place in compliance with the provisions laid down for use of the PDO.
It might be relevant in this context too how observance of those requirements can be ensured.
At the same time, it should be made clear from the outset that only checks in respect of grating are at issue here: cheese grated outside the region of production is of course subject, until it is grated, to exactly the same controls as cheese grated within it.
65.
The carrying out of checks helps to maintain the quality and hence also the reputation of grated Grana Padano.
It might accordingly be concluded that the requirement to grate the cheese in the region of production under the supervision of the Grana Padano Association and to package it immediately thereafter without using preservatives is justified in order to protect industrial property.
66.
However, that conclusion is precluded by the fact that checks can in principle be carried out not only in the region of production but also outside it.
Inspectors could be sent by the Grana Padano Association, or inspectors resident in the area in question could be trained by the Grana Padano Association and instructed to carry out checks.
67.
It is true that the Court held in the
Rioja
case that controls undertaken outside the region of production in accordance with Community law provided fewer guarantees as to the quality and authenticity of the wine than those carried out in the region of production.
However, it has already been pointed out above that the grating of cheese does not appear to be comparable with the bottling of wine.
Consumers purchase Grana Padano either grated or by the piece, whilst, as a rule, they buy wine in bottles.
If only for that reason, checks in respect of grating are probably not to be accorded the same status as checks in respect of bottling.
68.
The problem addressed by Bellon and Biraghi, Spain and the Commission that no corresponding quality controls are undertaken outside the region of production is a general problem concerning the enforcement of rules in foreign legal systems.
If the rules on the use of the PDO provide for corresponding controls to be undertaken, an economic operator who intends to use the PDO is required to undertake the controls, even if he grates the cheese outside the region of production.
Otherwise he infringes the provisions on the use of the PDO and may not use it.
69.
It is moreover possible to enforce the rules on the use of the PDO
"Grana Padano"
, including any checks, throughout the Community for the very reason that prohibitory injunctions may be applied for under Articles 8 and 13 of Regulation No 2081/92.
70.
In this regard, the objection that consumers can be sure that they are obtaining Grana Padano only if the cheese is grated and packaged in the region of production under the supervision of the Grana Padano Association is also not persuasive.
That is admittedly a means of guaranteeing that only cheeses bearing the PDO
"Grana Padano"
are grated.
The objection implies, however, that a business which processes Grana Padano outside the region of production might use cheeses that are not allowed to bear the PDO and then nevertheless sell the grated cheese using the PDO
"Grana Padano"
.
This constitutes an impermissible inference of unlawful conduct on the part of the competitor and the objection is to be rejected for that reason.
71.
It must therefore be stated in conclusion that the rules in the decree of 4 November 1991 do not serve to protect a commercially material characteristic.
Consequently, the restriction on the free movement of goods which has been found is not justified on grounds of the protection of industrial and commercial property under Article 30 EC.
It thus infringes Article 29 EC.
(iii) Proportionality
72.
Only in the alternative and only should the Court not subscribe to the foregoing view must it therefore be discussed whether the rules in the decree of 4 November 1991 are necessary in order to protect the reputation of the PDO
"Grana Padano"
.
73.
The requirement to grate Grana Padano in the region of production can ensure, in particular having regard to the quality controls undertaken by the Grana Padano Association, that the grated cheese consists only of Grana Padano, comes from the region of production and is grated in accordance with the rules laid down for using the PDO
"Grana Padano"
.
However, it is questionable whether those rules are the least restrictive means of achieving the objective of fair trade and of consumer information as to the provenance of the product and its particular characteristics or whether other means having less effect on the free movement of goods are available which achieve that objective equally well.
74.
Above all, appropriate product labelling must be considered.
In the present case, a possibility is to label the goods as
"Grana Padano grated in France"
( "râpé en France"
) or in a similar non-discriminatory manner.
75.
In the
Rioja
case, the Court did not pursue the solution called to mind here.
It argued that the coexistence of two different bottling processes, inside or outside the region of production, with or without systematic monitoring by the group of producers, might reduce the degree of consumer confidence in the designation
"denominación de origen calificada"
based on the conviction that the production of quality wines produced in specified regions must at every stage be carried out under the control and responsibility of the relevant group of producers. (25)
76.
The present case seems to be only partially comparable.
First, as already stated, the grating of cheese out of view of the consumer is not closely linked to the product in a manner comparable to the bottling of wine.
Second, in the present proceedings, unlike the
Rioja
case, the parties have put forward no argument to the effect that consumers might not be able to distinguish between
"Grana Padano"
grated inside and outside the region of production or that there cannot possibly be two different markets, one for
"Grana Padano"
grated in the region of production and one for
"Grana Padano"
grated outside it.
77.
Nor is it in any way evident that any adverse appraisal of
"Grana Padano"
grated outside the region of production would necessarily be passed on to the cheese grated inside it.
Especially if provision is made here for appropriate labelling which distinguishes the two products from each other sufficiently clearly, mature and well-informed consumers, who are to be presumed not only in the context of Article 28 EC
(26) but also that of Article 29 EC, could also become entirely convinced that cheese grated in the region of production for Grana Padano differs from cheese grated outside that region.
Two different forms of marketing Grana Padano are involved.
If the consumer comes to the conclusion that the cheese grated outside the region of production does not satisfy his requirements as regards Grana Padano, he can purchase Grana Padano grated in the region of production instead.
It is in no way established that if one of the forms of the product does not appeal to the consumer he will immediately choose a different type of cheese.
78.
The solution indicated here involving appropriate product labelling also finds support in Regulation No 2081/92.
The fifth recital in the preamble to that regulation expressly points out that the rules concerning protected designations of origin and protected geographical indications merely supplement the general labelling provisions.
They merely supplement the provisions of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer.
(27)
79.
It is to be noted, furthermore, that Regulation No 2081/92 itself also seeks a solution through appropriate labelling in cases of conflict.
Article 12(2) of the regulation provides that in cases where a name protected under Community law is identical to a name of a third country, the name may be used only if the country of origin of the product is clearly and visibly indicated on the label.
If consumers can be expected, in such cases where names are identical, to distinguish one product from the other through the country of origin being specified on the label, it is not clear why they should not be able to do the same when the label states where processing took place.
80.
It must therefore be concluded that less restrictive means exist than limiting use of the PDO
"Grana Padano"
to Grana Padano grated and packaged in the region of production.
Equally effective protection of the PDO
"Grana Padano"
, of the quality of the product and of its reputation with consumers can be achieved by labelling it appropriately.
The decree of 4 November 1991 therefore goes beyond what is necessary and is disproportionate in that respect.
(c) Conclusion in respect of the Franco-Italian agreement
81.
It therefore remains to state by way of conclusion to this section of the Opinion that the Franco-Italian agreement of 1964 is incompatible with Community law in so far as it reserves use of the PDO
"Grana Padano"
for cheese which is grated in the region of production.
(3)
Legality of Regulation No 1107/96
82.
The PDO
"Grana Padano"
became protected under Community law on the entry into force of Regulation No 1107/96.
As is apparent from Article 17(3) of Regulation No 2081/92, that Community-wide protection has replaced the national protection which existed until then.
(28)
By means of Regulation No 1107/96 the PDO
"Grana Padano"
was entered in the register of protected designations of origin and protected geographical indications kept by the Commission.
It is therefore necessary to discuss now whether the PDO
"Grana Padano"
protected under Community law extends to grated cheese and to what extent it is compatible with Regulation No 2081/92 and Article 29 EC or is justified under Article 30 EC.
Community law measures too must be compatible with the provisions concerning the free movement of goods.
(29)
(a) Scope of protection provided by the PDO
"Grana Padano"
83.
Ravil disputes that the PDO
"Grana Padano"
extends to grated cheese.
In that regard, it must be stated that in accordance with Article 4 of Regulation No 2081/92 a specification is to be annexed to applications for registration.
By virtue of Article 4(2)(i) the specification may contain a reference to any requirements laid down by Community law and/or national provisions.
84.
The specification submitted with the application for registration of the PDO
"Grana Padano"
, which the Commission has lodged with the Court at the latter's request, contains a reference to the decree of 4 November 1991.
(30)
It does not appear that that reference to the decree was deleted during the procedure for entering the PDO
"Grana Padano"
in the register kept by the Commission.
The PDO
"Grana Padano"
therefore extends to grated cheese.
(b) Compatibility of the rules with Regulation No 2081/92
85.
This leads to the question whether it was open to the Commission to register the PDO
"Grana Padano"
with that protective scope.
It must therefore be examined whether the registration is compatible with Regulation No 2081/92.
86.
In accordance with Article 2(2)(a) of Regulation No 2081/92, a designation of origin is used to describe an agricultural product or a foodstuff originating in the region, specific place or country in question, the quality or characteristics of which are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors, and the production, processing and preparation of which take place in the defined geographical area.
Grating and packaging in the region of production under the supervision of the Grana Padano Association are processing operations.
They ensure that the grated cheese consists of cheese which is allowed to be placed on the market under the PDO
"Grana Padano"
.
The supervision by the Grana Padano Association ensures that the provisions concerning the processing of Grana Padano are observed.
87.
When reviewing the legality of a registration, regard is to be had to the division of powers between the Member States and the Commission introduced by Regulation No 2081/92.
As the Court explained in its judgment in
Carl Kühne
, an application for registration under Article 5 of Regulation No 2081/92 is to be submitted through a Member State.
The Member State has the task of checking whether the application is justified with regard to the conditions laid down by the regulation.
It must forward the application to the Commission only if it concludes that that is the case.
The Commission then undertakes merely a formal examination in accordance with Article 6(1) of Regulation No 2081/92.
Its examination includes checking whether the specification contains the particulars required under Article 4 and whether, on the basis of the specification, the designation satisfies the requirements of Article 2(2)(a) or (b).
(31)
In so doing, the Commission confines itself to examining whether the assessment made by the competent Member State is not manifestly incorrect.
(32)
This applies to both the normal procedure under Articles 5, 6 and 7 of Regulation No 2081/92 and the simplified procedure under Article 17.
(33)
The point of that division of powers is that examination of an application for registration requires, to a great extent, detailed knowledge of matters particular to the Member State concerned, matters which the national authorities are best placed to check.
(34)
88.
The foregoing division of powers also has an effect on review by the Community judicature of the Commission's registration decisions.
Thus, the only matters to be examined are whether the Commission complied with its obligation of verification and whether the abovementioned requirements under Articles 2 and 4 of the regulation are met.
(35)
89.
In the absence of evidence to the contrary, it is to be assumed that the Commission examined the application and accompanying specification which the Italian Government forwarded under the procedure provided for in Article 17 of Regulation No 2081/92.
In accordance with the findings set out above, it is at any rate not manifest that the specification is incomplete or that the particulars contained in it, including the requirement for grating and packaging to take place in the region of production under the supervision of the Grana Padano Association, do not justify the registration as a PDO.
Consequently, the registration by means of Regulation No 1107/96 does not infringe Regulation No 2081/92.
(c) Compatibility of the rules with Article 29 EC
90.
Since the PDO
"Grana Padano"
also extends to grated cheese, it is prohibited under Article 8 of Regulation No 2081/92 to use the PDO
"Grana Padano"
within the Community for grated cheese which, while produced from Grana Padano, has not been grated and packaged in the region of production.
It must therefore now be examined to what extent Article 8 of Regulation No 2081/92 in conjunction with Regulation No 1107/96 and the specification for the PDO
"Grana Padano"
is compatible with Community law, in particular Articles 29 EC and 30 EC.
91.
In accordance with the reasoning set out above, the Italian decree is a measure having an equivalent effect to a quantitative restriction on exports within the meaning of Article 29 EC.
It is not justified for the protection of industrial and commercial property within the meaning of Article 30 EC.
In so far as Regulation No 1107/96 therefore confers validity on the rules in the decree throughout the Community it too infringes Articles 29 EC and 30 EC.
92.
In contrast to the position when examining the period before Regulation No 1107/96 entered into force, it is, however, necessary at this point to discuss the general tendency of legislation to bring out the quality of products within the framework of the common agricultural policy, in order to promote their reputation.
The means used for this purpose include designations of origin.
(36)
That tendency is borne out by the second to sixth recitals in the preamble to Regulation No 2081/92.
The legal basis for that regulation is, logically, Article 37 EC, which is in the agriculture chapter of the Treaty.
The legislature is thereby concerned not only with protecting the quality of agricultural products but, as is shown by the second recital in the preamble to the regulation, above all also with matters of structural policy.
The promotion of rural areas is sought by improving farmers' income and retaining the rural population in those areas.
In that regard, it is necessary to agree with Ravil's submission that the restriction imposed by the decree of 4 November 1991 confers an advantage on undertakings in the region of production.
That is fully intended under Regulation No 2081/92.
These findings might support the view that the rules in the decree of 4 November 1991 and, to that extent, Regulation No 1107/96 too should be held compatible with Community law.
93.
The view that regard is not to be had to structural-policy considerations in order to justify restrictions on the free movement of goods is supported first of all by the wording of Article 30 EC.
The list of grounds upon which a restriction on the free movement of goods may be justified does not include a
"structural-policy considerations"
or
"agricultural policy"
category.
According to the case-law, the list of exceptions in Article 30 EC is, however, definitive. (37)
94.
Furthermore, in accordance with general rules of interpretation Article 30 EC is, as an exception to the principle of the free movement of goods, to be construed narrowly.
(38)
This too provides support for the view that quantitative restrictions on exports and measures having equivalent effect should be accepted as justified within narrow limits only.
With regard to designations of origin, it appears justified to accept restrictions arising from natural influences on the product in question, since they are tied to the region of production.
On the other hand, this is not true of know-how, which in principle can also be applied outside the region of production.
95.
It is also to be observed that a broad interpretation of Article 30 EC appears particularly uncalled for when examining restrictions on exports within the meaning of Article 29 EC.
As explained above, Article 29 EC has been defined by the case-law as meaning that not every restriction on exports, but only those measures which specifically prevent the export of goods, are prohibited under that provision.
That case-law defines the field of application of the prohibition of restrictions on exports substantially more narrowly than the field of application for restrictions on imports under Article 28 EC.
In accordance with the
Dassonville
formula, Article 28 EC prohibits any measure which is capable of directly or indirectly, actually or potentially, hindering intra-Community trade.
(39)
If, however, the field of application of Article 29 EC is narrower than that of Article 28 EC, there is, in the context of Article 29 EC in particular, even less reason to interpret the exception in Article 30 EC broadly.
Therefore, when interpreting Article 30 EC, only those measures which are essential in order to guarantee the provenance and quality of the product protected by the PDO should be accepted as justified.
96.
Finally, the matter should also be considered from the following angle.
When the Court has interpreted the provisions on the free movement of goods, it has always endeavoured to help that fundamental freedom to assert itself over national measures which, like the decree under discussion here, are intended
inter alia
to protect domestic industry.
The disputes in this context have often concerned foodstuffs whose raw materials essentially consist of agricultural products.
A well-known example is the judgment on the German
"Reinheitsgebot"
(purity requirement) for beer
(40) which can be traced back to a Bavarian Purity Law adopted in 1516.
Other cases have related to Italian pasta,
(41) the minimum fat content of Edam cheese
(42) and the marketing of deep-frozen yoghurt.
(43)
Two cases on chocolate are currently pending.
(44)
97.
The case-law on the interpretation of Article 28 EC may have prompted producers to seek refuge in industrial property rights, that is to say to endeavour to compensate for the lost national statutory protection from competition by creating new rights as protected designations of origin and protected geographical indications.
Beer provides a striking demonstration of this tendency.
After the Court declared that the Bavarian/German purity requirement, which reserved use of the designation
"beer"
for beer having only certain ingredients, was incompatible with Article 28 EC, beer produced in other Member States otherwise than in accordance with the purity requirement could also be sold in Germany under the designation
"beer"
.
Initially the German breweries tried to compensate for the economic loss which the opening up of the German market to competing products from other Member States entailed for them by advertising, for instance by including the words
"brewed in accordance with the German purity requirement"
on the label.
In the meantime
"Bayerisches Bier"
(Bavarian beer) was entered in the register kept by the Commission as a protected geographical indication under the procedure laid down in Article 17 of Regulation No 2081/92.
(45)
If the Court therefore acts in a generous manner in the context of the recognition of industrial property rights and allows provisions which objectively are not essential in order to protect the origin of a product in a certain area and its particular characteristics, it runs the risk of again losing, within the framework of Article 29 EC, the freedom of movement of goods and opening up of national markets achieved in the course of interpreting Article 28 EC.
98.
The connection between Articles 28 EC, 29 EC and 30 EC demonstrated in the last two arguments and the consequences of the case-law on Article 28 EC, which has always favoured the free movement of goods, support in any event a narrow interpretation of the exceptions justified under Article 30 EC.
99.
Consequently, in the context of the specification to be submitted under Article 4 of Regulation No 2081/92 with an application for registration, only those provisions which are indispensable for guaranteeing the provenance and particular characteristics of the product are to be accepted, and not also those provisions which are exclusively designed to grant the local undertakings resident in the region of production an exclusive right to the further processing of the product.
100.
It must therefore be stated in conclusion that the structural-policy objectives in the field of agricultural policy pursued by means of Regulation No 2081/92 are likewise not capable of justifying under Article 30 EC the restriction on exports which has been found.
(d) Conclusion
101.
The Commission, acting on the basis of Article 17 of Regulation No 2081/92, adopted Regulation No 1107/96 by which the PDO
"Grana Padano"
─ including the requirement contained in the decree of 4 November 1991 that the cheese must be grated and packaged in the region of production ─ was entered in the register of designations of origin and geographical indications protected under Regulation No 2081/92.
By means of Regulation No 1107/96 the restriction on exports which has been found in the present case thus acquired the status of Community law.
That regulation is accordingly to be declared invalid on the ground of infringement of Article 29 EC in so far as it reserves the PDO
"Grana Padano"
for grated cheese which is grated and packaged in the region of production.
VI ─ Conclusion
102.
On the basis of the foregoing arguments, I propose the following answer to the question referred for a preliminary ruling:
(1)
Article 29 EC is to be interpreted as precluding national legislation which reserves the protected designation of origin
"Grana Padano"
for cheese which is grated and packaged in the region of production.
(2)
Commission Regulation (EC) No 1107/96 of 12 June 1996 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Council Regulation (EEC) No 2081/92 is invalid in so far as it reserves the protected designation of origin
"Grana Padano"
for grated cheese which is grated and packaged in the region of production.
(1) .
(2)
OJ 1992 L 208, p. 1.
(3)
This footnote concerns only the German version of the Opinion.
(4)
Under Article 18 the regulation was to enter into force 12 months after the date of its publication.
Since the regulation was published in the Official Journal on 24 July 1992, it entered into force on 24 July 1993.
The simplified procedure was therefore applicable until 24 January 1994.
(5)
OJ 1996 L 148, p. 1.
(6)
Gazzetta Ufficiale della Repubblica Italiana
(GURI) No 95 of 30 April 1954, p. 1294.
(7)
GURI No 295 of 22 December 1955, p. 4401.
(8)
Article 1 of the decree states:
"La denominazione di origine del formaggio
"Grana padano"
è estesa alla tipologia grattugiato, ottenuta esclusivamente da formaggio intero avente diritto alla denominazione di origine di cui trattasi, a condizione che le operazioni di grattugia siano effetuate nell'ambito della zona di produzione del formaggio medesimo e che il confezionamento avvenga immediatamente senza nessun trattamento e senza aggiunta di sostanze atte a modificare la coservabilità e le caratteristiche organolettiche originarie.
"
Article 2 states:
"La tipologia della denominazione in parola è riservata al formaggio grattugiato avente i parametri tecnici e tecnologici sottospecificati:
presenza di grassi sulla sostanza secca: non inferiore al 32%;
età: non inferiore a nove mesi ed entro i limiti fissati dallo standard di produzzione;
additivi: Secondo legge;
carratteri organolettici: conformi alle definizioni stabilite dallo standard di produzione;
umindità: non inferiore al 25% e non superiore al 35%;
aspetto: non pulverulento ed omogeneo, particelle con diametro inferiore a 0,5 mm non superiori a 25%;
quantità di crosta: non superiore al 18%;
composizione amminoacida: specifica del
"Grana Padano"
.
"
The decree was published in GURI No 83 of 8 April 1992.
(9)
Decree No 69-393 of 24 April 1969,
Journal officiel de la République française
of 27 April 1969; see also GURI 1967 No 163, p. 1074.
(10)
Case C-47/90
Delhaize et Le Lion
[1992] ECR I-3669.
(11)
Case C-388/95
Belgium
v
Spain
[2000] ECR I-3123.
(12)
Case C-3/91
Exportur
[1992] ECR I-5529.
(13)
GURI 1967 No 163, p. 1074.
(14)
Exportur
, cited in footnote 12, paragraph 37, and
Belgium
v
Spain
, cited in footnote 11, paragraph 54.
(15)
Convenzione tra l'Italia e la Francia per la protezione delle denominazioni di origine, delle indicazioni di provenienza e delle denominazioni di alcuni prodotti, con Protocollo annesso (cited in footnote 13).
(16)
See, with regard to a similar situation, the findings in
Exportur
, cited in footnote 12, paragraph 8.
(17)
Case C-209/98
Sydhavnens Sten
& Grus
[2000] ECR I-3743, paragraph 34, Case 172/82
Inter-Huiles and Others
[1983] ECR 555, paragraph 12, and Case 238/82
Duphar
[1984] ECR 523, paragraph 25.
(18)
Cf.
Exportur
, cited in footnote 12, paragraphs 16 to 22, where the two, differing, approaches to Articles 28 EC and 29 EC are discussed in the light of the law on designations of origin.
(19)
Delhaize et Le Lion
, cited in footnote 10, paragraphs 12, 13 and 14, and
Belgium
v
Spain
, cited in footnote 11, paragraphs 38 to 42.
(20)
Belgium
v
Spain
, cited in footnote 11, paragraphs 38 to 42.
(21)
Exportur
, cited in footnote 12, paragraph 37, and
Belgium
v
Spain
, cited in footnote 11, paragraph 54.
(22)
Delhaize et Le Lion
, cited in footnote 10, paragraph 16 et seq., and
Exportur
, cited in footnote 12, paragraph 24.
(23)
See, with regard to this approach in the case-law, for example Case C-228/91
Commission
v
Italy
[1993] ECR I-2701, paragraph 19.
(24)
See the text of Article 2, quoted in footnote 8.
(25)
Belgium
v
Spain
, cited in footnote 11, paragraph 77.
(26)
See Case C-3/99
Ruwet
[2000] ECR I-8749, paragraph 53.
(27)
OJ 1979 L 33, p. 1.
(28)
See also the Communication to enterprises which use designations of origin and geographical indications for agricultural products and foodstuffs on the simplified Community registration procedure provided for in Article 17 of Regulation (EEC) No 2081/92 (OJ 1993 C 273, p. 4).
(29)
Case C-51/93
Meyhui
[1994] ECR I-3879, paragraph 11.
(30)
See the list of Italian legislation relating to protection of the designation of origin
"Grana Padano"
which is set out on p. 9 of the
"Domanda di Registrazione"
DOP (Denominazione di origine protetta)
"Grana Padano"
.
(31)
Judgment in Case C-269/99
Carl Kühne and Others
[2001] ECR I-9517, paragraphs 50 to 54.
(32)
Carl Kühne
, cited in footnote 31, paragraph 60.
(33)
Carl Kühne
, cited in footnote 31, paragraph 52.
(34)
Carl Kühne
, cited in footnote 31, paragraph 53.
(35)
Carl Kühne
, cited in footnote 31, paragraphs 49 and 57 to 60.
(36)
See the findings in
Belgium
v
Spain
, cited in footnote 11, paragraph 53.
(37)
See the judgments in Case 113/80
Commission
v
Ireland
[1981] ECR 1625, paragraph 7, in Case 95/81
Commission
v
Italy
[1982] ECR 2187, paragraph 20 et seq., and in
Joined Cases C-321/94, C-322/94, C-323/94 and C-324/94
Pistre and Others
[1997] ECR I-2343, paragraph 52, and the Opinion of Advocate General Jacobs in Case C-312/98
Warsteiner Brauerei
[2000] ECR I-9187, paragraph 36.
(38)
Judgment in Case C-205/89
Commission
v
Greece
[1991] ECR I-1361, paragraph 9, and Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-358/95
Morellato
[1997] ECR I-1431, point 21.
(39)
Case 8/74
Dassonville
[1974] ECR 837, paragraph 5.
See also Joined Cases C-267/91 and C-268/91
Keck and Mithouard
[1993] ECR I-6097, paragraph 11.
(40)
Case 178/84
Commission
v
Germany
[1987] ECR 1227.
(41)
Case 407/85
3 Glocken and Another
v
USL Centro-Sud and Another
[1988] ECR 4233.
(42)
Case 286/86
Deserbais
[1988] ECR 4907.
(43)
Case 298/87
Smanor
[1988] ECR 4489.
(44)
They are Case C-12/00
Commission
v
Spain
and Case C-14/00
Commission
v
Italy
, in which Opinions were delivered on 6 December 2001.
(45)
Council Regulation (EC) No 1347/2001 of 28 June 2001 supplementing the Annex to Commission Regulation (EC) No 1107/96 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Council Regulation (EEC) No 2081/92 (OJ 2001 L 182, p. 3).