Case C-466/02: Action brought on 30 December 2002 by the Kingdom of Denmark against the Commission of the European Communities (received by fax on 23 December 2002)
Date: 2003-03-08
Institutions: Court of Justice
Subjects: Denmark, European Commission, action for annulment (EU), cheese, designation of origin, location of production, product designation

8.3.2003

EN

Official Journal of the European Union

C 55/11

Action brought on 30 December 2002 (faxed on
27 December 2002) by the Federal Republic of Germany
against the Commission of the European Communities

legislative provisions themselves and by the fact that the
Community makes provision for the grant of aid for the
manufacture of Feta on the Aegean islands.

(Case C-465/02)

(2003/C 55/19)

— Infringement of Council Regulation No 2081/92 and of

Article 253 EC.

(1) OJ 2002 L 277, p. 10.

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities by the Federal Republic of Germany on
30 December 2002 (faxed on 27.12.2002), represented by
Wolf-Dieter Plessing, Ministerialrat in the Bundesministerium
der Finanzen (Federal Finance Ministry), Alfred Dittrich, Minis-
terialrat in the Bundesministerium der Justiz (Federal Ministry
of Justice) and by Dr Michael Loschelder, c/o Loschelder
Rechtsanwälte, Hohenstaufenring 30-32 D-50674 Cologne.

The applicant claims that the Court should:

Action brought on 30 December 2002 by the Kingdom
of Denmark against the Commission of the European
Communities (received by fax on 23 December 2002)

(Case C-466/02)

(2003/C 55/20)

1. Annul Commission Regulation (EC) No 1829/2002 (1) of
14 October 2002 amending the annex to Commission
Regulation (EC) No 1107/96 in relation to the ‘Feta’
designation;

2. Order the Commission to pay the costs.

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 30 December 2002 (received by fax on
23 December 2002) by the Kingdom of Denmark, represented
by J. Molde and J.B. Liisberg, acting as Agents, with an address
for service in Luxembourg.

Pleas in law and main arguments

— Infringement of the rules of procedure of the Regulatory
Committee and infringement of Regulation (EEC) No 1:
the documents for the meeting on 20 November 2001 of
the Regulatory Committee established under Article 15
of Council Regulation No 2081/92 on the protection of
geographical indications and designations of origin for
agricultural products and foodstuffs did not reach the
Federal German Government 14 calendar days before-
hand nor were they in German.

first

— Infringement of Article 2(3) of Council Regulation
No 2081/92: The Commission erroneously examines in
the recitals in the preamble to the contested regulation
whether ‘Feta’ has become a generic designation. Since
‘Feta’
is first of all a non-geographical concept, the
to have proved that it has
Commission ought
acquired a geographical meaning and indeed one that
does not refer to the whole of a Member State. The area
indicated by the Greek Government in its application is
quite plainly an artificial construct; unsupported by either
tradition or commercial conceptions. Nor does Feta owe
its quality or characteristics predominantly or exclusively
to geographical conditions; the Commission’s statements
in Recital 36 are supported neither by the Greek Govern-
ment’s application nor by the findings of the Scientific
Committee. Finally, the areas of production and manufac-
ture do not coincide, as is borne out both by the Greek

The applicant claims that the Court should:

— Annul Commission Regulation (EC) No 1829/2002 (1) of
14 October 2002 amending the Annex to Regulation
(EC) No 1107/96 (2) with regard to the name ‘Feta’.

Pleas in law and main arguments

(Main)

The Commission adopted Regulation No 1829/2002 in con-
travention of Article 17(2), in conjunction with Article 3(1), of
Council Regulation (EEC) No 2081/92 (3) (the basic regulation):

Denmark bases its arguments in this connection on the
following principles of interpretation:

— The prohibition of registration of generic designations
specifically reflects a number of fundamental principles
of Community law.

— This prohibition cannot be construed restrictively and
compliance with the prohibition must be subject to full
review by the Court.

— If a designation has become on one occasion/been from
the outset a generic designation, then it is for all time —
and irreversibly — a generic designation.

C 55/12

EN

Official Journal of the European Union

8.3.2003

— If the applicant country has itself for a long time accepted
and benefited from the generic use of the designation, it
will have forfeited any right to argue that the designation
is non-generic.

— Registration as a designation of origin at Community
level is excluded if a designation is a generic designation
in even only one Member State.

— Lawful production and marketing over a long period of
time in other Member States are central factors in the
evaluation of a generic designation. Lawful marketing of
this kind may be suppressed only if it is contrary to fair
custom and practice or gives rise to a genuine risk of
confusion.

— Lawful production in non-member countries and their
trade with the EU also argue in favour of treating a
designation as being covered by the prohibition of
registration of generic designations, inter alia in the light
of the Community’s obligations under the WTO.

— There is a presumption that non-geographical indications
are generic designations, in particular where an indication
is derived from a language other than that of the applicant
country.

— The applicant country and, secondly, the Commission
have the onus of establishing that a non-geographical
indication is not a generic designation and that lawful
marketing over a long period in other countries is
contrary to fair custom and practice and gives rise to a
genuine risk of confusion.

Denmark attaches particular importance to the following
specific factors:

— Whether as a designation or a product, feta does not
have its origin specifically in Greece. The traditional
consumption and production area covers a number of
Balkan lands, including several non-member countries
due shortly to join the EU.

— Up until 15 years ago, Greece itself imported, produced,
consumed and exported feta, including feta made from
cow’s milk. Consumers in Greece must, for a number of
years, have regarded the designation as being generic.

— In other countries, both within and outwith the EU, in
which it is consumed and produced in large quantities,
consumers also regard feta as being a generic designation.

— Lawful production and marketing of feta outside the area
of origin take place in a number of Member States and
non-member countries.

— Danish production and marketing of feta are in no wise
contrary to fair custom and practice, nor do they give rise
to any genuine risk of confusion, precisely because
Danish legislation has, since as far back as 1963, required
that such feta be designated as ‘dansk feta’.

— The Community legislature, including the Commission,
in a number of legal provisions and measures,
has,
proceeded on the basis that ‘feta’ is a generic designation.

(Alternative)

The Commission adopted Regulation No 1829/2002 in con-
travention of the basic regulation inasmuch as feta does not
satisfy the conditions governing registration as a traditional
non-geographical name laid down in Article 2(3) of the basic
regulation.

(1) OJ L 277 of 15.10.2002, p. 10.
(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 (OJ L 148 of 21.6.1996, p. 1).
(3) 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 (OJ L 208 of 24.7.1992,
p. 1).

Action brought on 31 December 2002 by Kingdom of
Spain against Commission of the European Communities

(Case C-468/02)

(2003/C 55/21)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 31 December 2002 by the Kingdom of
Spain, represented by Lourdes Fraguas Gadea, Abogado del
Estado, acting as Agent, with an address for service in
Luxembourg.

The applicant claims that the Court should:

1.

annul Decision 2002/881/EC (1) so far as concern the
financial corrections imposed on the Kingdom of Spain

2.

order the defendant institution to pay the costs.