Case T-120/15: Action brought on 6 March 2015 — Proforec v Commission
Date: 2015-03-06
Institutions: General Court
Subjects: agricultural product, designation of origin, food production, foodstuff, free movement of goods, frozen product, product designation, wholesale trade








C_2015138EN.01006601.xml










27.4.2015   


EN


Official Journal of the European Union


C 138/66





Action brought on 6 March 2015 — Proforec v Commission
(Case T-120/15)
(2015/C 138/85)
Language of the case: Italian

Parties


Applicant: Proforec Srl (Recco, Italy) (represented by: G. Durazzo, M. Mencoboni and G. Pescatore, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






—


annul the contested Commission Implementing Regulation (EU) 2015/39 of 13 January 2015 on the grounds put forward in the present action, as set out in full in the application;










—


as a result of the annulment, implement all the measures and steps necessary to remove the entry of the protected geographical indication ‘Focaccia di Recco col formaggio’ from the register of protected designations of origin and protected geographical indications;










—


order the Commission to pay the costs of the present proceedings. Should the present action be dismissed, quod non, the applicant requests that costs be shared.





Pleas in law and main arguments

According to the applicant, the contested implementing Regulation prevents it, in fact, from continuing to market its own product even though it is the proprietor of trade marks that were registered well before the date on which the application for protection was submitted to the Commission and even though it is common ground and undisputed that it has lawfully marketed its product within the European Union since 2006, that is to say, for more than five years.
In support of the action, the applicant relies on five pleas in law.






1.


First plea in law, alleging infringement of Article 15 of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1)






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The applicant argues in this respect that, as regards the entry into force of the contested regulation, no provision has been made, or is made, for any transitional period whatsoever to allow for the disposal of stocks and packaging.














2.


Second plea in law, alleging that recitals 5, 6 and 7 to the contested regulation are contradictory






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The applicant argues in this respect that recitals 5 and 6 are at variance with recital 7 and that protection is also tacitly conferred on a designation in respect of which registration was not requested and which is liable to give rise to confusion as regards the geographical indication of the main ingredient.














3.


Third plea in law, alleging that the Commission’s interpretation of the facts was wrong and a misuse of its power






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The applicant maintains in this respect that recital 9 refers to the fact that existing products are allegedly jeopardised whilst denying that this is the case. However, such harm is not alleged but real and the claims of the association putting forward the proposal have given rise to anti-competitive conduct that is likely to harm, unlawfully, existing competitors on the market, undermining their acquired rights as a result of the misuse of power on the part of the Commission.














4.


Fourth plea in law, alleging that the transitional protection no longer applied






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The applicant maintains in this respect that the statement of the facts in recital 10 to the contested regulation is incorrect in that the transitional national protection in Italy has expired since no programme of self-regulation concerning the product specification has been adopted.














5.


Fifth plea in law, alleging infringement of Article 7(e) of Regulation No 1151/2012






—


The applicant maintains in this respect that the contested regulation, in prohibiting deep-freezing and preservation techniques, legitimises unlawful practices on the part of the association putting forward the proposal that are inconsistent with EU law and with the free movement of goods and services, the Commission distorting in recitals 11 and 12 the actual scope of the specification, which clearly infringes Regulation No 1151/2012.