EN Official Journal of the European Union C 145/30

Action brought on 23 February 2011 — Schutzgemeinschaft Milch und Milcherzeugnisse v Commission

(Case T-113/11)

2011/C 145/50

Language of the case: German

Parties

Applicant: Schutzgemeinschaft Milch und Milcherzeugnisse eV (Berlin, Germany) (represented by: M. Loschelder und V. Schoene, lawyers)

Defendant: European Commission

Form of order sought

— Annul Commission Regulation (EU) No 1122/2010 of 2 December 2010 entering a designation in the register of protected designations of origin and protected geographical indications [Gouda Holland (PGI)];

— Order the Commission to pay the necessary costs.

Pleas in law and main arguments

In support of the action, the applicant relies on nine pleas in law.

1. First plea in law, alleging infringement of the division of powers — By its first plea the applicant alleges infringement of the division of powers under Regulation (EC) No 510/2006 (1) as no national procedure was initiated in respect of the protected geographical indication ‘Gouda Holland’ registered by means of the contested regulation. — The applicant submits that the original application applied for registration of the term ‘Hollandse Gouda’ and that the national preliminary procedure which is a necessary requirement pursuant to Article 5 of Regulation No 510/2006 took place only in respect of that name.

2. Second plea in law, alleging infringement of Article 3(2) of Regulation (EC) No 1898/2006 (2) — By this plea the applicant submits that ‘Gouda Holland’ is not a Dutch expression.

3. Third plea in law, alleging infringement of Article 2(1) and (2) of Regulation No 510/2006 and of Article 3(1) of Regulation No 1898/2006 — In the context of the third plea the applicant submits that the registered name is not used.

4. Fourth plea in law, alleging infringement of Article 2(2) of Regulation No 510/2006 — The applicant submits that there is infringement of Article 2(2) of Regulation No 510/2006 as ‘Gouda Holland’ is not a ‘traditional’ non-geographical name.

5. Fifth plea in law, alleging infringement of Article 2(1) of Regulation No 510/2006 — In the context of the fifth plea the applicant submits that there is infringement of Article 2(1) of Regulation No 510/2006 as ‘Gouda Holland’ does not have any specific characteristics or a reputation.

6. Sixth plea in law, alleging infringement of Articles 30 and 36 TFEU — By this plea the applicant submits that the contested regulation unjustifiably restricts the freedom of movement of goods on the basis that the milk from dairy farmers who are resident in the Netherlands, which is the only milk authorised in respect of ‘Gouda Holland’, has no special characteristics.

7. Seventh plea in law, alleging infringement of Article 2(1) and (2) of Regulation No 510/2006 — By this plea the applicant submits in particular that there is infringement of Article 2(2), in conjunction with Article 2(1) of Regulation No 510/2006, as ‘Holland’ as a synonym for ‘Netherlands’ is the name of a country. Furthermore, there is no exceptional case, which is required in respect of the registration of names of countries.

8. Eighth plea in law, alleging infringement of Article 3(3) of Regulation No 510/2006 — By this plea the applicant submits that, in view of the earlier registration ‘Noord-Hollandse Gouda g.U.’, the registration of ‘Gouda Holland’ took place without due regard being had to bona fide and local usage and gives rise to a danger of consumers being misled.

9. Ninth plea in law, alleging infringement of the principle of proportionality and of procedural principles, and an error of assessment — Lastly, the applicant submits that the defendant did not make it clear in the contested regulation, that the indication ‘Gouda’ is generic. The applicant takes the view that such a clarification was possible according to the case-law of the Court and the practice of the Commission and was, in view of the facts and circumstances, necessary. Its absence infringes the principle of proportionality and procedural principles and constitutes an error of assessment.

(1) Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 93, p. 12).

(2) Commission Regulation (EC) No 1898/2006 of 14 December 2006 laying down detailed rules of implementation of Council Regulation (EC) No 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 369, p. 1).