Case C-343/07: Reference for a preliminary ruling from the Corte d'Appello di Torino (Italy) lodged on 25 July 2007 — Bavaria N.V. and Bavaria Italia Srl v Bayerischer Brauerbund e.V
Date: 2007-10-20
Institutions: Court of Justice
Subjects: Germany, beer, consumer information, designation of origin, interpretation of the law, location of production

20.10.2007

EN

Official Journal of the European Union

C 247/5

The majority of the recommendations addressed to the Greek
authorities have been implemented either not at all or inade-
quately. Further, the inspection reports disclose a very worrying
picture of the official controls carried out in Greece.

a

for

Reference
from the
preliminary
Verwaltungsgericht Hannover (Germany) lodged on 19 July
2007 — Kabel Deutschland Vertrieb und Service GmbH &
für
Co. KG v Niedersächsische Landesmedienanstalt

ruling

privaten Rundfunk

(Case C-336/07)

(2007/C 247/07)

Language of the case: German

Referring court

Verwaltungsgericht Hannover

Parties to the main proceedings

Service Directive 2002/22/EC if a cable network operator is
forced to provide access to television programmes on its
analogue cable networks even in those areas of the Land in
which the cable end-user would in any event be in a position
to receive the same television programmes
terrestrially
according to the DVB-T standard by means of a terrestrial
antenna and a decoder?

3. Are ‘television … services’ within the meaning of the first
sentence of Article 31(1) of
the Universal Service Direc-
tive 2002/22/EC to be interpreted as including providers of
media services or telemedia, for example teleshopping?

4. Is a provision like Paragraph 37(2) of the Niedersächsisches
Mediengesetz compatible with Article 31(1) of the Universal
Service Directive 2002/22/EC if, in the event of a shortage of
channels, the competent national authority has to establish
an order of priority of applicants which results in full use of
the channels available to the cable network operator?

Reference for a preliminary ruling from the Corte
lodged on 25 July 2007 —
d'Appello di Torino (Italy)
Italia Srl v Bayerischer
and Bavaria
Bavaria N.V.

Brauerbund e.V

(Case C-343/07)

(2007/C 247/08)

Language of the case: Italian

Applicant: Kabel Deutschland Vertrieb und Service GmbH &
Co. KG

Defendant: Niedersächsische Landesmedienanstalt
Rundfunk

für privaten

Referring court

Interveners: Norddeutscher Rundfunk, Hamburg, and 39 others

Corte d'Appello di Torino

Questions referred

Parties to the main proceedings

1. Is a provision like Paragraph 37(1) of the Niedersächsisches
Mediengesetz (Lower Saxony Law on the Media) compatible
with Article 31(1) of
the Universal Service Directive
2002/22/EC if a cable network operator is forced to provide
access, on more than half of
the channels permanently
usable for analogue broadcasting which are available on its
networks, to programmes which — although they do not
cover the whole of the Land of Lower Saxony — are already
being broadcast terrestrially according to the DVB-T stand-
ard?

2. Is a provision like Paragraph 37(1) of the Niedersächsisches
Mediengesetz compatible with Article 31(1) of the Universal

Applicants: Bavaria N.V. and Bavaria Italia Srl

Defendant: Bayerischer Brauerbund e.V

Questions referred

1. Is Council Regulation (EC) No 1347/2001 (1) of 28 June
2001 invalid, possibly as a consequence of the invalidity of
other acts, in light of the following:

C 247/6

EN

Official Journal of the European Union

20.10.2007

Breach of general principles

coalesce to form the current single indication ‘Bayerisches
Bier’ until well after the deadline on 24 January 1994;

— the

invalidity of Article 1(1) of Regulation (EEC)
No 2081/1992 (2), read in conjunction with Annex I
thereto, in so far as it permits the registration of geogra-
phical indications relating to ‘beer’, which is an alcoholic
beverage listed (wrongly) in that Annex as one of the
‘foodstuffs’ referred to in Article 1(1), but which is not
one of the ‘agricultural products’ listed in Annex I to the
EC Treaty and referred to in Article 32 (formerly
Article 38) and Article 37 (formerly Article 43) thereof,
which the Council took as the legal basis for its compe-
tence to adopt Regulation (EEC) No 2081/1992;

— the

invalidity of Article 17 of Regulation (EEC)
No 2081/1992 in so far as it provides for an accelerated
registration procedure under which the rights of inter-
ested parties are substantially limited and impaired, in so
far as it makes no provision for a right of opposition, in
clear breach of the principles of transparency and legal
certainty, as is evident in particular from the complexity
of the procedure for registering ‘Bayerisches Bier’, the
protected geographical
indication at issue, which took
more than seven years from 1994 to 2001, and from the
express acknowledgment to that effect in Recital (13) in
the preamble to Regulation (EC) No 692/2003 (3),
Article 15 of which repealed — for those reasons —
Article 17 of Regulation (EEC) No 2081/1992;

Failure to comply with procedural requirements

— the failure of the indication ‘Bayerisches Bier’ to satisfy
the conditions laid down in Article 17 of Regulation
(EEC) No 2081/1992 for eligibility for registration in
accordance with the simplified procedure provided for
in that, at the time when the application for
therein,
registration was submitted,
indication was not a
‘legally protected name’
in Germany, nor had it been
‘established by usage’ there;

that

— the fact that the question whether the pre-conditions had
been met for registration of the indication ‘Bayerisches
Bier’ was not given due consideration either by the
German Government before submitting the application,
or by the Commission itself after receiving that applica-
tion, contrary to the requirements established by the
case-law of the Court of Justice (Case C-269/99 Carl
Kühne and Others [2001] ECR I 9517);

— the fact

that

registration of

the application for

the
indication ‘Bayerisches Bier’ was not submitted in good
time by the German Government in accordance with
Article 17(1) of Regulation (EEC) No 2081/92 (6 months
after the entry into force of the Regulation, which took
place on 24 July 1993), it being also the case that the
subject-matter of the application initially submitted by
the applicant company envisaged eight varying indica-
tions — with a reservation as to the possibility of later
variations of an unspecified nature — which did not

Failure to comply with substantive requirements

— failure of the indication ‘Bayerisches Bier’ to satisfy the
substantive requirements laid down in Article 2(2)(b) of
Regulation (EEC) No 2081/1992 for registration as a
protected geographical
indication, given the generic
nature of that indication, which has historically desig-
nated beer produced in accordance with a particular
method of production which originated during the nine-
teenth century in Bavaria, whence it spread throughout
Europe and the rest of the world (the method known as
‘the Bavarian method’, based on bottom fermentation),
and which even today in a number of European
languages (Danish, Swedish, Finnish) is used as a generic
term for beer and which, in any case, can at most iden-
tify, solely and generically, from among the numerous
varieties of beer in existence any type of ‘beer produced
in the German Land of Bavaria’, there being no ‘direct
link’
(Case C-312/98 Warsteiner [2000] ECR I 9187)
between a specific quality, reputation or other character-
istic of the product (beer) and its specific geographical
origin (Bavaria), nor evidence that this is one of
the
‘exceptional cases’ required under Article 2(2)(b) of Regu-
lation (EEC) No 2081/1992 in order for it to be permis-
sible to register a geographical indication containing the
name of a country;

— the fact that, as emerges from the preceding paragraph,
the indication ‘Bayerisches Bier’ is a ‘generic’ indication,
and as
to
Articles 3(1) and 17(2) of Regulation (EEC) 2081/1992;

registration pursuant

such ineligible for

— the fact that registration of the indication ‘Bayerisches
Bier’ should have been refused pursuant to Article 14(3)
of Regulation (EEC) 2081/1992, since, in the light of ‘the
reputation and renown’ of the Bavaria marks and ‘the
length of time for which [they] have been used’, registra-
tion was ‘liable to mislead the consumer as to the true
identity of the product’?

2. In the alternative,

if Question 1 is held inadmissible or
unfounded, should Council Regulation (EC) No 1347/2001
of 28 June 2001 be construed as meaning that recognition
of the protected geographical indication ‘Bayerisches Bier’ is
to have no adverse effects on the validity or usability of pre-
existing marks of third parties in which the word ‘Bavaria’
appears?

(1) OJ 2001 L 182, p. 3.
(2) OJ 1992 L 208, p. 1.
(3) OJ 2003 L 99, p. 1.