Case C-468/02: Action brought on 31 December 2002 by Kingdom of Spain against Commission of the European Communities
Date: 2003-03-08
Institutions: Court of Justice
Subjects: European Commission, Spain, action for annulment (EU), administrative check, aid system, olive oil, public stock

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.

8.3.2003

EN

Official Journal of the European Union

C 55/13

Pleas in law and main arguments

(Public
storage
EUR 37 621,55)

of olive oil,

financial

correction of

The successful tenderer fulfilled its obligation to communicate
its refusal to take over the lot, informing and notifying the
Commission thereof in fulfilment of
its obligation under
Article 10 of Regulation No 561/99 (2).

Secondly, return of the securities did not result in any loss to
the Community budget since the oil in question continued to
form part of the intervention stock, subject to that body of
rules and available to cover future operations, just as if refusal
had been communicated by the successful tenderer directly to
the Commission.

(Areas harvested for pasture by the paying agency of Castile
and Leon, financial correction of EUR 1 229 951,00)

The corrections relating to the 1998 and 1999 harvests are
the result of applying 2 % to the result of dividing the total
declared area in cases where the discrepancies detected during
administrative checks were in excess of 3 % or 2 hectares into
the total declared area.

Spain does not agree with the Commission on the proposed
financial correction because, first, Community legislation (3)
does not mean that the results of the administrative checks
should be included in the risk analysis when selecting the
checks to be made on the spot and, secondly, handling of the
applications for ‘area’ aid makes it impossible to carry out all
the administrative checks before on-the-spot checks are carried
out.

Nonetheless, in the Autonomous Community of Castile and
Leon cases in which irregularities have been detected in
the administrative checks carried out the previous year are
systematically included as a risk criterion when selecting the
sample of cases for on-the-spot checks.

( 1) Commission Decision 2002/881/EC of 5 November 2002 exclud-
ing from Community financing certain expenditure incurred by
the Member States under the Guarantee Section of the European
Agricultural Guidance and Guarantee Fund (EAGGF), OJ 2002 L
306, p. 26.

( 2) Commission Regulation (EC) No 561/1999 of 15 March 1999 on
the opening of a standing invitation to tender for the sale of olive
oil held by the Spanish intervention agency, OJ L 69, 16.1.1999,
p. 13.

( 3) Article 6(4) of Commission Regulation (EEC) No 3887/92 of

23 December 1992, OJ 1992 L 391, p. 36.

Appeal brought on 23 December 2002 by the European
Broadcasting Union (EBU) against the judgment delivered
on 8 October 2002 by the Second Chamber, Extended
Composition, of the Court of First Instance of the Euro-
pean Communities in Joined Cases T-185/00, T-216/00,
T-299/00 and T-300/00 between Métropole télévision SA
(M6), Antena 3 de Televisión, SA, Gestevisión Telecinco,
SA, SIC-Sociedade Independente de Communicação, SA,
supported by Deutsches SportFernsehen GmbH (DSF)
and Reti Televisive Italiane Spa (RTI) and Commission
of the European Communities, supported by European
Broadcasting Union (EBU) and Radiotelevisión Española
(RTVE)

(Case C-470/02 P)

(2003/C 55/22)

An appeal against the judgment delivered on 8 October 2002
by the Second Chamber, Extended Composition, of the Court
of First Instance of the European Communities in Joined
Cases T-185/00, T-216/00, T-299/00 and T-300/00 between
Métropole télévision SA (M6), Antena 3 de Televisión, SA,
Gestevisión Telecinco, SA, SIC-Sociedade Independente de
Communicação, SA, supported by Deutsches SportFernsehen
GmbH (DSF) and Reti Televisive Italiane Spa (RTI) and
Commission of the European Communities, supported by
European Broadcasting Union (EBU) and Radiotelevisión
Española (RTVE) was brought before the Court of Justice of
the European Communities on 23 December 2002 by the
European Broadcasting Union (EBU), represented by D. Wael-
broeck and M. Johnsson, lawyers.

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of
the European Communities of 8 October 2002 in Joined
Cases T-185/00, T-216/00, T-299/00 and T-300/00,
Métropole Télévision and Others v Commission;

— send the case back to the Court of First Instance so that it
may rule on the other pleas in law raised by the applicants
on which it has not yet ruled;

— reserve the costs.

Pleas in law and main arguments

By basing its reasoning on arguments that were not raised by
the applicants, the Court of First Instance has ruled ultra petita
and infringed the rights of the defence of the EBU and of the
Commission. The decisive element for the Court of First
Instance is the application of the sub-licensing scheme for ‘live