Opinion of Mr Advocate General Jacobs delivered on 5 April 2001. - Carl Kühne GmbH & Co. KG and Others v Jütro Konservenfabrik GmbH & Co. KG. - Reference for a preliminary ruling: Landgericht Hamburg - Germany. - Agricultural products and foodstuffs - Geographical indications and designations of origin - Simplified registration procedure - Protection of the designation 'Spreewälder Gurken'. - Case C-269/99.



European Court reports 2001 Page I-09517



Opinion of the Advocate-General

1. In this reference from the Landgericht (Regional Court), Hamburg, the Court is asked to consider the validity of Community legislation on the registration of the designation Spreewälder Gurken (Spreewald gherkins) as a protected geographical indication.

The relevant Community legislation

2. 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 seeks to establish a framework of Community rules on registered designations of origin and geographical indications for certain agricultural products and foodstuffs where there is a link between the characteristics of the product or foodstuff and its geographical origin. The Regulation provides for a system of registration at Community level of geographical indications and designations of origin which will confer protection in every Member State.

3. The general definitions of designations of origin and of geographical indications for the purposes of the Regulation appear in Article 2(2):

(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. Article 2(4) provides:

By way of derogation from Article 2[(2)](a), certain geographical designations shall be treated as designations of origin where the raw materials of the products concerned come from a geographical area larger than or different from the processing area, provided that:

- the production area of the raw materials is limited,

- special conditions for the production of the raw materials exist, and

- there are inspection arrangements to ensure that those conditions are adhered to.

5. The first three subparagraphs of Article 3(1) provide:

Names that have become generic may not be registered.

For the purposes of this Regulation, a "name that has become generic" means the name of an agricultural product or a foodstuff which, although it relates to the place or the region where this product or foodstuff was originally produced or marketed, has become the common name of an agricultural product or a foodstuff.

To establish whether or not a name has become generic, account shall be taken of all factors, in particular:

- the existing situation in the Member State in which the name originates and in areas of consumption,

- the existing situation in other Member States,

- the relevant national or Community laws.

6. Article 3(3) provides:

Before the entry into force of this Regulation, the Council, acting by a qualified majority on a proposal from the Commission, shall draw up and publish in the Official Journal of the European Communities a non-exhaustive, indicative list of the names of agricultural products or foodstuffs which are within the scope of this Regulation and are regarded under the terms of paragraph 1 as being generic and thus not able to be registered under this Regulation.

7. In 1996 the Commission presented a proposal for a Council decision drawing up a non-exhaustive, indicative list of the names of agricultural products and foodstuffs regarded as being generic, as provided for in Article 3(3) of Regulation No 2081/92. The proposal was not adopted since the majority needed for its adoption by the Council was not attained.

8. Article 4 provides that agricultural products or foodstuffs seeking registration must comply with a specification. Article 4(2) requires that the product specification must include at least the information listed in subparagraphs (a) to (i). Those include:

(b) a description of the agricultural product or foodstuff including the raw materials, if appropriate, and principal physical, chemical, microbiological and/or organoleptic characteristics of the product or the foodstuff;

(c) the definition of the geographical area and, if appropriate, details indicating compliance with the requirements in Article 2(4);

(d) evidence that the agricultural product or the foodstuff originates in the geographical area, within the meaning of Article 2(2)(a) or (b), whichever is applicable;

(e) a description of the method of obtaining the agricultural product or foodstuff and, if appropriate, the authentic and unvarying local methods;

(f) the details bearing out the link with the geographical environment or the geographical origin within the meaning of Article 2(2)(a) or (b), whichever is applicable.

9. The usual procedure for applying for registration as a protected designation of origin or a protected geographical indication is governed by Articles 5 to 7. In summary, Article 5 provides for the application to be made at national level in the first instance and then forwarded by the Member State to the Commission. Article 6 requires the Commission to verify, by means of a formal investigation, whether the application includes all the particulars provided for in Article 4, and to publish details of the application in the Official Journal if it concludes that the name qualifies for protection. Article 7 provides, in so far as relevant:

(1) Within six months of the date of publication in the Official Journal ..., any Member State may object to the registration.

...

(3) Any legitimately concerned natural or legal person may object to the proposed registration by sending a duly substantiated statement to the competent authority of the Member State in which he resides or is established. ...

10. Article 13(1)(b) provides that registered names are to be protected against:

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.

11. Article 15 provides for the Commission to be assisted by a committee composed of the representatives of the Member States and chaired by the representative of the Commission.

12. Article 17 provides for a simplified system of registration to be used for a transitional period after entry into force of Regulation No 2081/92. It reads as follows, in so far as relevant:

(1) Within six months of the entry into force of the Regulation, Member States shall inform the Commission which of their legally protected names or, in those Member States where there is no protection system, 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. However, generic names shall not be added.

...

13. Article 18 provides that the Regulation is to enter into force 12 months after the date of its publication in the Official Journal. That publication was on 24 July 1992.

14. Regulation No 1107/96 provides for the registration under the simplified procedure as protected geographical indications or protected designations of origin of some 320 names listed in the Annex thereto.

15. Regulation No 590/1999 is one of a number of regulations which together add some 185 further names by supplementing the Annex to Regulation No 1107/96. Regulation No 590/1999 adds four additional names, including (for Germany) Spreewälder Gurken and Spreewälder Meerrettich (Spreewälder horseradish). The first recital in the preamble to Regulation No 590/1999 states:

Whereas, for certain names notified by the Member States under Article 17 of Regulation (EEC) No 2081/92, additional information was requested in order to ensure that they complied with Articles 2 and 4 of that Regulation; whereas that additional information shows that the names comply with the said Articles; whereas they should therefore be registered and added to the Annex to Commission Regulation (EC) No 1107/96, as last amended by Regulation (EC) No 83/1999.

16. Both Regulation No 1107/96 and all the other regulations adding further names by supplementing the Annex to Regulation No 1107/96 contain a similar recital in the preamble.

The facts and the main proceedings

17. The applicants produce and market pickled gherkins in Germany. The defendant is also a producer and nationwide distributor of pickled gherkins, including the product Jütro Gurkenfässchen which is marketed throughout Germany with the mention Spreewälder Art (Spreewald style).

18. The Spreewald is an area in the former Democratic Republic of Germany, between the Czech border and Berlin, through which flows the river Spree. Between the towns of Lübben and Cottbus the river branches into numerous streams to create an inland delta networked by waterways. The former dense forest has been partly transformed into cultivated land, to which the alluvial soil of the former glacial valley is well suited. The pickling of vegetables such as gherkins has long been a traditional industry in the area.

19. The applicants have brought proceedings against the defendant seeking an order that it desist from using the designation Spreewälder Art for its pickled gherkins on the ground that, following registration of the designation Spreewälder Gurken as a protected geographical indication by Regulation No 590/1999, use of the designation Spreewälder Art is contrary to Article 13(1)(b) of Regulation No 2081/92.

20. The defendant questions the validity of the registration of Spreewälder Gurken as a protected geographical indication.

21. The history of the registration of the designation Spreewälder Gurken as a protected geographical indication, which is necessary background to the defendant's arguments as to the validity of the registration, appears to be as follows.

22. According to the order for reference, in 1993 an association with the name Spreewald e.G (Spreewaldverein) applied the German authorities for registration of the designation Spreewälder Gurken as a protected designation of origin. As the specification of the geographical area referred to by the designation Spreewälder Gurken, required under Article 4(2)(c) of Regulation No 2081/92, Spreewaldverein stated in that application:

The glacial valley of the Spree between the northern edge of the city of Cottbus and the Neuendorfer See lying to the north of the city of Lübben.

23. According to the Commission, by letter of 21 January 1994, received on 26 January 1994, Germany sent it a list of names within the meaning of Article 17(1). That list included the name Spreewälder Gurken.

24. According to the German Government, in 1995 the Commission informed it (and many other Member States) that numerous notifications pursuant to Article 17 were incomplete and invited it to provide additional documents and information. Between July 1995 and March 1996, the German Government therefore asked almost all the parties concerned to supplement the documents originally lodged.

25. According to the order for reference, in July 1996 Spreewaldverein by supplement to its original application requested registration of the designation Spreewälder Gurken no longer as a protected designation of origin but as a protected geographical indication. It may be assumed that Spreewaldverein submitted the supplement to the national authorities who then passed it on to the Commission. The geographical area was stated as:

Territory along the Spree between Jänschwalde and Dürrenhofe and within the boundaries of an economic region determined by decisions of the local legislative bodies.

26. That amended specification increased the protected area by several times.

27. The supplement to the application also specified that the proportion of gherkins supplied from areas outside the Spreewald economic zone was less than 50%, subsequently (in March 1998) further amended to 30%. According to the defendant, the former requirement meant that up to 50% of the gherkins used could come from areas outside but adjacent to the boundary of that zone, while the effect of the latter requirement was that up to 30% could come from anywhere.

28. According to the order for reference, in the course of the implementation of the simplified procedure pursuant to Article 17 of Regulation No 2081/92 a number of affected third parties, mainly businesses in the food industry, raised objections to the application for entry of the designation Spreewälder Gurken and in particular to the extension of the geographical area and the acceptance of gherkins from outlying areas. It was argued that the special ground and climatic conditions referred to in the application applied at most to the Spreewald in the strict sense of the inland delta region, and not to the whole economic region, and that the processed product should not contain any raw materials from other production areas.

29. The referring court indicates in the order for reference that the defendant challenged the validity of the registration of Spreewälder Gurken on three grounds.

30. First, the six-month time-limit in Article 17(1) was not respected since in July 1996 Spreewaldverein submitted documents to the relevant authorities in Germany which materially amended the original application, making changes to the type of designation for which registration was sought, the area in question and the permitted source of the raw materials for the product.

31. Second, Article 17 was designed solely for designations whose entitlement to registration was uncontroversial. It was not appropriate for registration of a designation with regard to which a number of affected third parties had raised a whole series of objections, particularly concerning the delimitation of the geographical area.

32. Third, registration of the designation Spreewälder Gurken as a geographical indication infringed Articles 2 and 4 of Regulation No 2081/92 since the nature of the product meant that it should have been registered as a designation of origin.

33. The Landgericht, Hamburg, shared the defendant's doubts concerning the validity of the registration. In addition the Landgericht made the following two points in the order for reference.

34. First, it expressed the view that Article 17 was in any event inapplicable because Spreewälder Gurken was neither a legally protected name nor a name established by usage as a designation reflecting the specifications which supported registration.

35. Second, it considered that the specifications as to both the geographical area and the proportion of gherkins permitted from outside did not reflect consumer expectations as to the meaning of the designation Spreewälder Gurken. The registration of the designation, and hence the legislation pursuant to which that registration was effected, thus enshrined the misleading of consumers, which could not have been the intention of the legislature.

36. The Landgericht accordingly stayed the proceedings and referred the following question to the Court:

Is Commission Regulation (EC) No 590/1999 of 18 March 1999 supplementing, by the addition of the designation "Spreewälder Gurken", the Annex to Regulation (EC) No 1107/96 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Regulation (EEC) No 2081/92 compatible with European Community law?

37. Written observations have been submitted by the defendant, the German and Austrian Governments and the Commission. The applicants, the defendant, the German Government and the Commission presented oral argument at the hearing.

The time-limit in Article 17 of Regulation No 2081/92

38. Article 17(1) requires Member States to inform the Commission within six months of the entry into force of the Regulation which of their names - legally protected or established by usage - they wish to register pursuant to the simplified procedure.

39. Neither the referring court nor the defendant appears to suggest that Germany's initial application was made out of time. As the Commission notes, Regulation No 2081/92 entered into force 12 months after publication in the Official Journal. That publication was on 24 July 1992. Since however the 12 months did not start to run until the following day, it expired at midnight on 25 July 1993. The Regulation accordingly entered into force on 26 July 1993, and the six-month time-limit expired at midnight on 26 January 1994. Since the list of information within the meaning of Article 17(1) supplied by Germany reached the Commission on 26 January 1994, the time-limit was respected.

40. It is common ground however that, some two and a half years later, Germany submitted significant amendments to the specification supporting its initial application and sought registration of the designation Spreewälder Gurken not as a designation of origin but as a geographical indication. The referring court raises the question whether in those circumstances the six-month time-limit was respected.

41. The German and Austrian Governments and the Commission submit that Article 17(1) requires the Member States to inform the Commission of the names to be registered and nothing more. Further information and amendments to such information once it has been supplied are not subject to the six-month time-limit. That time-limit was accordingly observed.

42. The German and Austrian Governments add that, in general, the northern Member States did not historically have registers of protected designations: protection was assured by laws against misleading practices. It was only when the Regulation entered into force that it became necessary for such Member States to draw up a list of existing designations and determine whether they were designations of origin or geographical indications. It would therefore have been unrealistic to require complete and definitive files to be forwarded to the Commission within such a short time-limit. It would also have worked to the detriment of those States unable to use an existing register. The transitional procedure provided for by Article 17 continued until the Commission adopted the decision on registration. Until then, the Commission ran the procedure and could both accept amendments to the grounds for the application and request additional information relevant to determining whether the application complied with Articles 2 and 4.

43. I concur with the German and Austrian Governments and the Commission on this point. It would in my view be unrealistic to expect Member States with no existing register of designations to provide the Commission within six months of entry into force of the Regulation (or even within 18 months from publication of the Regulation) with all the information and documentation necessary for a decision as to registration, especially given the time needed for what (I shall suggest) are the necessary procedural guarantees for interested parties at national level. The specification required by Article 4 of the Regulation requires at least detailed information under nine specified heads. According to the defendant's undisputed statement at the hearing, over 1 000 names were submitted to the Commission pursuant to Article 17(1) by Germany alone; that figure is consistent with the extract from a list of those names which the Commission annexed to its written observations.

44. Admittedly the submission by a Member State of a change to the original application - in this case, a request for registration as a geographical indication rather than a designation of origin, a change in the area covered and a change in the proportion of raw materials permitted to come from outside that area - may be regarded as different in kind from the provision of information or documentation supplementing the original application. None the less, the submission of such changes outside the six-month time-limit is in my view permissible. It must be borne in mind that the structure introduced by the Regulation was novel: even those Member States whose existing system of protection of designations was based on registration would not necessarily have categorised protected designations in the same way as the Regulation; a fortiori the Member States which had no previous system of registration could not reasonably have been expected to determine definitively before submitting their list of names pursuant to Article 17 whether a particular name should be protected as a designation of origin or as a geographical indication. Nor would such Member States be likely to have on record sufficient data to enable them at the outset to determine definitively the precise extent of the area to be covered.

45. I accordingly conclude that the modification of the initial application after the six-month time-limit did not affect the validity of the contested regulation.

The applicability of Article 17 to controversial designations

46. The defendant and the referring court question whether Article 17 is applicable where - as in the present case - third parties have raised objections at national level to registration of the designation concerned.

47. The Commission submits that Article 17(2) expressly excludes the application to the simplified procedure of Article 7, which enables interested third parties to object to a proposed registration pursuant to the normal procedure. The simplified procedure also however caters for objections, since Article 15 of the Regulation requires the Commission to be assisted by a committee composed of representatives of the Member States. The Commission heard that committee when dealing with the application to register the designation Spreewälder Gurken.

48. The German Government argues that the mere fact that there are different opinions as to the registration of a designation does not mean that the simplified procedure is inapplicable. In such cases, it is the responsibility of the Member States to ensure that the parties concerned are heard. In the present case, the German Government heard the objections of interested parties and carefully considered the problems raised. It concluded however that those problems did not preclude protection of the designation.

49. In my view there is nothing to suggest that the simplified procedure provided by Article 17(1) is available only for the registration of designations with regard to which there is no controversy. Such a criterion would risk being unworkable. The Commission is not in a position to verify whether all applications for registration submitted pursuant to Article 17(1) - which, as mentioned above, numbered over 1 000 - are uncontroversial at national level.

50. It is however essential that interested third parties have the opportunity, before the Member State concerned submits to the Commission the list of designations with regard to which it intends to seek registration pursuant to Article 17(1), to make observations at national level on each designation. As the Court pointed out in Molkerei Großbraunshain, in the context of the normal procedure for registration of a designation in accordance with Article 5 of the Regulation, differences between the competent authority of the Member State which applies for registration of a designation and a natural or legal person resident or established in that Member State are in principle to be dealt with before the Member State concerned forwards the application to the Commission in accordance with Article 5. Where a trader who is legitimately concerned submits observations to the competent authority of that Member State concerning the application for registration and that authority does not take account of those observations, it is for the trader to bring proceedings before the national courts on the ground that the competent authority has acted contrary to the Regulation.

51. That requirement for protection at national level is, as the Court made clear in Molkerei Großbraunshain, independent of the procedure envisaged in Article 7 of the Regulation. That procedure is designed solely to regulate differences between Member States.

52. Similarly, the involvement of the committee required to be set up pursuant to Article 15 of the Regulation cannot, contrary to the submissions of the Commission, replace the proper taking account of objections at national level before submission of the application for registration. That committee is intended to facilitate close cooperation between the Member States and the Commission. Its opinion moreover is not binding on the legislature.

Is it for the Member State or the Commission to determine whether a name should be registered as a designation of origin or a geographical indication?

53. The defendant and the national court are of the view that registration of the designation Spreewälder Gurken as a geographical indication may have infringed Articles 2 and 4 of Regulation No 2081/92 since the nature of the product and the expectations of consumers mean that it should have been registered as a designation of origin: the term Spreewälder Gurken was known to consumers as indicating gherkins originating from the Spreewald proper and consequently of a particular quality; it was not regarded as referring to their processing or the recipe therefor.

54. The defendant submits that, by analogy with the Court's ruling in the Feta case, on an application for registration of a designation pursuant to Article 17 of the Regulation the Commission must verify that the requirements of Article 2 of the Regulation are met. In the present case the Commission made no attempt to determine whether the proposed designation complied with those requirements, merely accepting the German Government's view - after submission of the amended specification - that the designation should be registered as a geographical indication.

55. In the defendant's view, if the quality or characteristics of the gherkins cultivated in the Spreewald proper are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors within the meaning of Article 2(2)(a) of the Regulation, the designation should have been registered as a designation of origin with the condition that all the gherkins should come from the Spreewald proper. If on the other hand the specific quality, reputation or other characteristics of the gherkins are attributable to [their] geographical origin - namely to the fact that their provenance is the economic zone and not the Spreewald proper - within the meaning of Article 2(2)(b), the mere fact that gherkins from other areas are processed in the Spreewald economic zone is not sufficient to bring the designation within the scope of that provision, since the method of processing could be equally guaranteed by manufacturers of pickled gherkins operating outside the economic zone.

56. The defendant adds that the Commission should also have taken account of Article 3 of the Regulation and satisfied itself that the designation Spreewälder Gurken had not become generic in the sense that it now suggested merely that gherkins so marketed had been pickled in accordance with a particular recipe. In that case, gherkins so designated could lawfully come from anywhere provided that that recipe was followed.

57. The German Government submits that the designation Spreewälder Gurken could in principle be protected as either a designation of origin under Article 2(2)(a) of the Regulation or a geographical indication under Article 2(2)(b). Both provisions apply to agricultural products and foodstuffs originating in that region, specific place or country. Article 2(2)(b) explicitly permits the protection of an agricultural product which is merely processed in a particular area: the degree of processing is irrelevant. Where protection as a geographical indication is sought for a processed product, all that is required is that the finished product comes from the geographical region indicated. The German Government asserts that, after carefully examining all the factors, including public opinion, it concluded that the designation Spreewälder Gurken was a geographical indication and not a designation of origin.

58. Both the Austrian Government and the Commission are of the view that, while it is for the Member State to specify in its application whether it seeks registration of a designation as a designation of origin or a geographical indication, whether the designation will be registered in the form sought depends on whether it complies with the conditions required for that form.

59. In my view it follows from the wording of Article 17 that, while in the first instance it is for the Member State to specify whether registration of a particular name is sought as a designation of origin or a geographical indication, the Commission must, before registering it as one or the other, verify both that that name appears to fulfil the requirements of Article 2(2)(a) or 2(2)(b), whichever is relevant, and that the product specification accompanying the application is in accordance with Article 4.

60. Article 17(2) expressly requires the Commission to register the names ... which comply with Articles 2 and 4. Article 4 lists the minimum requirements of the product specification compliance with which is a precondition of eligibility to use a designation of origin or geographical indication. It is clear from those requirements that the Member State submitting the application will specify which type of registration it seeks. Article 2 defines what is meant by designation of origin and geographical indication. Before the Commission registers the name submitted in accordance with Article 17(1), it must therefore verify that the name appears to satisfy that definition. The question therefore arises whether, contrary to the submissions of the defendant, the Commission in the present case correctly discharged its duty to verify compliance with Articles 2 and 4.

61. With regard to compliance with the definition in Article 2(2), it appears to be accepted by all those submitting observations to the Court in the present case that, for the purposes of Article 2(2)(b) as distinct from Article 2(2)(a), a foodstuff is regarded as originating in the geographical area concerned solely by virtue of being processed (or produced or prepared) in that area, notwithstanding that the raw ingredients have another provenance. I must confess to finding Article 2(2) unclear on that distinction, although it appears to be borne out by the wording of Article 2(4). Article 4(2)(d) also suggests that there is a difference between the requirements as to geographical origin imposed by subparagraphs (a) and (b) of Article 2(2), but since that requirement is expressed in identical language in the first indent of each subparagraph the source of that difference is not obvious. On the assumption however that the consensus in the observations submitted to the Court is correct, it seems to me that the Commission may properly register a designation as a geographical indication where so requested by the Member State concerned even where the specification does not require all the raw ingredients to originate from within the geographical area concerned, provided of course that it is satisfied that all the requirements of Article 2(2)(b) are met, in particular that the product or foodstuff possesses a specific quality, reputation or other characteristics attributable to its geographical origin.

62. With regard to the requirement of compliance with Article 4, the specification prescribed by that provision must include the definition of the geographical area. In the absence of any suggestion of manifest error, the Commission is in my view entitled to accept the Member State's definition of that area, since the competent authorities of that Member State are better placed to define the area, taking account of the particular features of production and marketing in the region. There is no suggestion in the present case that any other requirements of Article 4 have not been satisfied.

63. I accordingly conclude that the Commission discharged its duty to verify formal compliance with Articles 2 and 4 of the Regulation before it registered the designation Spreewälder Gurken as a geographical indication.

64. The defendant also submits that the Commission should have satisfied itself that that designation had not become generic.

65. It is clear from the wording of Article 17(2) that the Commission may not register a generic name under the simplified procedure provided by Article 17 (nor of course may it do so under the normal procedure, since Article 3(1) prohibits the registration of names that have become generic). I do not however consider that the Commission is as a result required to examine of its own motion whether each designation in respect of which registration is sought pursuant to Article 17 is not a generic name.

66. In my view, the duty to undertake such an examination will arise only if, before application is made for registration pursuant to Article 17 of a particular name of an agricultural product or foodstuff as a designation of origin or a geographical indication, the Commission has been put on notice by a Member State that that name may be generic.

67. In July 1992 the Commission asked the Member States pursuant to Article 3(3) of the Regulation to give it the names of the products which they regarded as capable of being recognised as generic names; the Member States responded by sending various suggestions. The Commission thus had available a working list of names regarded by at least one Member State as generic.

68. Although in the English version of the Regulation the 13th recital in the preamble - which is not reflected in any substantive provision of the Regulation - states that the registration procedure should enable any person individually and directly concerned in a Member State to exercise his rights by notifying the Commission of his opposition, it is clear from other language versions that such notice may be given only via the Member State concerned. I do not therefore consider that an individual can alert the Commission to the possibility that a name sought to be registered is generic.

69. If therefore application is made for registration of a name which to the Commission's knowledge is regarded as generic by a Member State, the Commission must before registering the name satisfy itself, in the light of the factors which Article 3(1) of the Regulation requires it to take into consideration, that the name is not in fact generic. If the Commission registers the name without taking due account of all those factors, the registration will be invalid. That is what occurred in the Feta case.

70. Where however application is made to the Commission under Article 17 for registration of a name as a designation of origin or geographical indication and the Commission is not on notice that that name is regarded by at least one Member State as generic, I do not consider that it is bound to investigate whether the name is in fact generic.

71. I would note that the position may be different where application is made for registration pursuant to the normal procedure, since by virtue of Article 7 of the Regulation Member States have the opportunity to object to the proposed registration in the course of that procedure on the ground that the name whose registration is applied for is generic in nature. If a Member State makes such an objection, and the Member States cannot reach agreement among themselves, the Commission, acting together with the committee, must take a decision in accordance with Article 15 of the Regulation. In taking that decision the Commission must also in those circumstances satisfy itself that the name is not in fact generic.

Is the name Spreewälder Gurken established by usage?

72. The national court is of the view that the registration procedure provided by Article 17 of the Regulation was not applicable to the designation Spreewälder Gurken because that designation was neither a legally protected name nor a name established by usage as a geographical indication within the meaning of the Regulation. It was not legally protected because there was no system of formal legal protection for geographical indications in Germany. It was not established by usage so as to warrant registration pursuant to Article 17 because the designation had been known to consumers for centuries as referring to products cultivated in the Spreewald itself and not products coming from a wider economic region.

73. The German Government submits that the designation Spreewälder Gurken is indubitably established by usage. It has been known to consumers for centuries as indicating gherkins from the Spreewald. The designation refers not only to products cultivated in the Spreewald itself but also to products cultivated in the economic zone as a whole, which encompasses adjacent areas. Gherkins processed in the Spreewald economic zone have been known as Spreewald gherkins for decades. Under Article 17, it is for the Member States to verify whether the conditions for registration under the Regulation are satisfied. It should moreover be noted that an application is not automatically registered: it is considered by the committee mentioned in Article 15 and verified by the Commission, advised by a scientific committee.

74. The Commission submits that it is not for it to verify whether and to what extent a name notified by a Member State is established by usage. Article 17(2) requires the Commission simply to verify that the names communicated pursuant to Article 17(1) satisfy the requirements of Articles 2 and 4. The question whether a name is established by usage is always for the Member State concerned.

75. In any event, the Commission notes that in the order for reference the referring court states that Spreewälder Gurken is a designation known to consumers for centuries for gherkins from the Spreewald. The fact that the referring court notes that that designation refers to products cultivated in the Spreewald itself, and not to those coming from a Spreewald economic area, is irrelevant: it is not for the Commission to verify the geographical area with regard to which a name has been established by usage.

76. I concur with the observations of the German Government and the Commission. The wording of Article 17(1), which requires Member States to inform the Commission which of their names established by usage they wish to register, suggests that it is for the Member State concerned to determine whether a name with regard to which application for registration has been made at national level is established by usage. It would be wholly unworkable for the Commission to be under a duty to verify the accuracy of that criterion. Again, the competent authorities of the Member State concerned are clearly better placed to make the necessary assessment.

77. I would repeat however my comments in paragraph 50 above to the effect that it is essential that interested third parties have the opportunity to make observations at national level with regard to designations which a Member State proposes to submit to the Commission pursuant to Article 17(1) and that national law provide a remedy where the competent authority has acted contrary to the Regulation.

Does the registration of Spreewälder Gurken mislead consumers?

78. The national court considers that the specifications as to both the geographical area and the proportion of gherkins permitted from outside do not reflect consumer expectations as to the meaning of the designation Spreewälder Gurken. The registration of the designation, and hence the legislation pursuant to which that registration was effected, thus enshrine the misleading of consumers, which cannot have been the intention of the legislature.

79. The German Government asserts that the public considers the economic-geographical zone in question to be the provenance of Spreewälder gherkins. As for the permitted proportion of gherkins from outside the Spreewald proper, that is irrelevant to registration as a geographical indication pursuant to Article 2(2)(b) of the Regulation.

80. The Commission notes that in accordance with the second indent of Article 2(2)(b) it is sufficient in order for a product to have a geographical indication that its production and/or processing and/or preparation ... takes place in the defined geographical area. It is accordingly not necessary that the raw material originate from the geographical area concerned, provided that the finished product is, for example, processed in that area.

81. It cannot of course have been the intention of the legislature to validate the misleading of consumers: indeed Article 14(3) of the Regulation, which prohibits the registration of a designation of origin or geographical indication where, in the light of the reputation, renown and period of use of a conflicting trade mark, registration is liable to mislead the consumer as to the true identity of the product, may be regarded as reflecting a general principle to that effect. I do not however consider that registration of the name Spreewälder Gurken as a geographical indication enshrines the misleading of consumers as suggested by the referring court. On the assumption, discussed above, that the Commission's interpretation of Article 2(2)(b) is correct, it seems to me that the fact that a proportion of the raw materials is permitted to come from outside the geographical area concerned will not, provided that the other conditions of Article 2(2)(b) are satisfied, affect the validity of the registration of a geographical indication under Regulation 2081/92. As for the extent of the geographical area, I have already indicated my view that specification of the geographical area linked to a geographical indication is for the Member State concerned.

82. The national procedure which precedes the competent authority's application to the Commission to register a designation must however, again as discussed earlier, ensure that legitimately concerned third parties have the opportunity to submit objections to a proposed application and seek judicial review of any such application made in contravention of that requirement.

Conclusion

83. I accordingly consider that the question referred by the Landgericht, Hamburg, should be answered as follows:

Consideration of the question referred has revealed no factors of such a kind as to affect the validity of Commission Regulation (EC) No 590/1999 of 18 March 1999 supplementing, by the addition of the designation Spreewälder Gurken, the Annex to Regulation (EC) No 1107/96 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Regulation (EEC) No 2081/92.