Source: EURLEX
Language: en
Format: md

OPINION OF ADVOCATE GENERAL

RUIZ-JARABO COLOMER

delivered on 10 May 2005 ([1](#Footnote1))

**Joined Cases C-465/02 and C-466/02**

**Federal Republic of Germany**

**and**

**Kingdom of Denmark**

**v**

**Commission of the European Communities**

Table of contents

I –  Introduction

II –  The legal framework: Community protection of geographical indications and designations of origin

A – Background

B – First steps in Community legislation

C – Current Community legislation

1. Vine products

2. Agricultural products and foodstuffs

D – The basic regulation

1. The concepts of designation of origin and geographical indication

a) Basic definition

i) The geographical link

ii) The qualitative link

b) Equivalent concepts

i) Traditional names

ii) Other geographical designations

2. Unregistrable names

a) Generic names

b) Names which are likely to mislead

3. The registration procedure

a) The ordinary procedure

b) The simplified procedure

c) The Scientific Committee

E – Regulation No 1107/96

III –  Analysis of the case-law of the Court

A – Classification as industrial and commercial property rights

B – Aim of the protection

C – The basic regulation

1. Scope

2. Extent of the protection

3. Registration and its effects

4. Conclusion

IV –  Facts giving rise to the proceedings

A – The first inclusion of ‘feta’ in Regulation No 1107/96

B – The ‘Feta’ judgment

C – The second inclusion of ‘feta’ in Regulation No 1107/96 pursuant to Regulation No 1829/2002

D – Canadane Cheese Trading and Kouri

V –  The actions for annulment

A – Admissibility of the actions for annulment

B – Procedural pleas in law

1. Infringement of the time-limits and the rules on the use of languages

2. Insufficient statement of reasons

C – Substantive pleas in law

1. ‘Feta’ as a generic name

a) The meaning of ‘generic’

b) Criteria for delimitation

i) The situation in the Member State in which the name originates and in areas of consumption

– The situation in the State of origin

– The situation in areas of consumption

ii) The situation in other Member States

– The general situation in other States

– The situation in States which produce the cheese

iii) The relevant national and Community legislation

– Legislation of the Member States

– The Community legislation

iv) Other factors

– The situation in non-member countries

– The temporal situation

c) Analysis of the criteria and effects

2. ‘Feta’ as a traditional name

a) The traditional nature of the name

b) The name of a food originating in certain geographical areas

c) The reason for the quality and characteristics of feta and the geographical delimitation of its production, processing
and preparation

i) Quality attributable to the geographical environment

ii) Production, processing and preparation in a defined area

d) Effects

VI –  Costs

VII –  Conclusion

(Agriculture – Geographical indications and designations of origin for agricultural products and foodstuffs – The name ‘feta’ – Generic names – Traditional names – Validity of Regulation (EC) No 1829/2002)

  
  
  
  

I –  **Introduction**

1.     In this action for annulment, the Court is once again seised of a dispute concerning the lawfulness of the inclusion of the
name ‘feta’ in the European Community register of geographical indications and designations of origin.

2.     The issue previously arose in questions referred for a preliminary ruling, and later withdrawn, by the Simvoulio tis Epikratias
(Greek Council of State), in which connection I delivered an Opinion on 24 June 1997, ([2](#Footnote2)) and in another action for annulment ([3](#Footnote3)) where the Court ruled that the registration was to be annulled on procedural grounds but did not examine whether the name
is generic or whether it may be classed as traditional for the purposes of the applicable legislation.

3.     Subsequently, the Commission took a number of steps designed to rectify the shortcomings which had been brought to light in
the judgment and reinserted the name ‘feta’ into the list of protected designations by means of Commission Regulation (EC)
No 1829/2002, ([4](#Footnote4)) a measure whose annulment is sought by Germany and Denmark.

4.     In this Opinion, I shall analyse the legal framework and the relevant case-law of the Court, before setting out the facts
giving rise to the proceedings and examining the pleas for annulment.

II –  **The legal framework: Community protection of geographical indications and designations of origin**

A –    *Background*

5.     The first reference to a designation of origin can be found in the Bible where it describes the construction of the temple
of Jerusalem, promised to Yahveh by King David. For that purpose, Hiram, King of Tyre and Sidon, cut down cedars from Lebanon
at the request of Solomon, whose palace was later built using so many of those cedars that it was known as the House of the
Forest of Lebanon because it had four rows of columns made from the prized wood. The same wood was used to panel the throne
room, ‘where he administered justice, the Hall of Judgment’. ([5](#Footnote5)) In addition to names and symbols, a reference to geographical origin was probably one of the first methods of identifying
individuals and objects in order to distinguish them from their peers. ([6](#Footnote6)) A number of accounts demonstrate that, since antiquity, products originating in certain areas have been associated with standing
and prestige. Classical authors, such as Herodotus, Aristotle and Plato, bear witness to the Greeks’ appreciation of bronze
from Corinth, marble from Phrygia and Paros, pottery from Athens, terracotta statuettes from Thisbe, perfumes from Arabia
and wines from Naxos, Rhodes and Corinth. ([7](#Footnote7)) In *The Aeneid*, Virgil tells how Helen gave Aeneas gifts of ‘objects made of solid gold and carved ivory, large quantities of silver and
copper vessels from Dodona’, ([8](#Footnote8)) and includes among the gifts from Andromache to Ascanius ‘garments with designs embroidered in gold thread and a Phrygian
chlamys’. ([9](#Footnote9)) Horace peppered his work with a whole array of Roman geographical indications and warned against imitations. ([10](#Footnote10))

6.     The link between products and their origin did not distinguish between naturally occurring and man-made objects and did not
correspond to a precise definition. Nor was the link covered by any legal provisions. ([11](#Footnote11))

7.     It was the same in the Middle Ages; for example, an extract from Alcius refers to Calcide swords with short blades and long
hilts, so-called because of the place they were made. ([12](#Footnote12)) At that time there appears to have been some confusion between craftsmen’s marks and marks indicating the place of origin
of a product, which came about in response to the obligation of guild members to identify their products or be excluded from
the guild. Consequently, two types of marks emerged: the mark of the guild (*signum collegii*) and each craftsman’s own mark (*signum privati*). ([13](#Footnote13)) There was therefore a guarantee that certain requirements had been satisfied in the production of the goods, which in turn
indirectly safeguarded the place of production.

8.     The French Revolution brought about the abolition of guilds and the restoration of full trade freedom, by eradicating most
protectionist practices. Not all were eliminated, however, since, in the first half of the 19th century, there still existed
rules designed to promote specialities of certain areas, such as soap from Marseille, steel from Westphalia and the Rhineland,
and forges from Austria. ([14](#Footnote14))

9.     At that time, a number of countries started to take measures to prevent consumers being misled as to the origin of natural
and manufactured products, particularly in the wine sector. ([15](#Footnote15)) An attempt was made to protect the consumer by guaranteeing the authenticity of the product, and to protect the producer
against illegal imitations. ([16](#Footnote16)) Subsequently, a system of protection was implemented which was similar to the one for signs identifying goods and under which
designations of origin were recognised in their own right.

10.   Meanwhile, numerous references to the origin of certain products continued to flourish in European literature and culture,
thereby drawing attention to the recognised quality or the specific characteristics of those products. In *Don Quixote*, Cervantes refers to spindles from Guadarrama; ([17](#Footnote17)) to certain foodstuffs, such as chickpeas from Martos, ([18](#Footnote18)) francolins from Milan, pheasants from Rome, veal from Sorrento, partridges from Morón, and geese from Lavajos; ([19](#Footnote19)) to Neapolitan soap; ([20](#Footnote20)) and to certain types of fabric, such as woollen cloth from Cuenca and *límiste* from Segovia. ([21](#Footnote21)) Lope de Vega praises a French long cloak ([22](#Footnote22)) and mentions *palmilla* cloth from Cuenca ([23](#Footnote23)) and plates from Talavera; ([24](#Footnote24)) in *Hamlet*, Shakespeare refers to the ‘draughts of Rhenish’ with which the king drinks toasts, ([25](#Footnote25)) and the wager between Claudius and Laertes of six Barbary horses against six French rapiers and poniards; ([26](#Footnote26)) Proust praises a dessert, stating that it would be worth opening bottles of Port, ([27](#Footnote27)) and describes the meeting in the Hotel Balbec between the narrator and the Duchess of Guermantes, who is shrouded in the
mist of a grey crêpe de Chine dress; ([28](#Footnote28)) while Carpentier, who faithfully portrays European culture on the American continent, writes about Bordeaux wine, ([29](#Footnote29)) Italian straw hats, ([30](#Footnote30)) French and Italian dolls, and Scotch ‘wisky’. ([31](#Footnote31))

11.   Nowadays, products are distinguished by the fact that they are sold under each producer’s own mark; however, products also
frequently bear an indication of the place of manufacture. In a world dominated by symbols, where advances in trade offer
numerous alternatives to the consumer, the name of a product has emerged as a decisive factor when it comes to making a choice,
hence its economic significance.

B –    *First steps in Community legislation*

12.   The EC Treaty contains no provisions governing geographical indications. The historical developments I have described above
meant that, when the Treaty was adopted, the legal systems of the Member States protected geographical indications in different
ways. While some countries provided general safeguards under measures prohibiting unfair competition, in particular by application
of the principle of authenticity, others, such as France and Spain, had implemented specific measures similar to the rules
laid down for certain distinguishing features but characterised by the fact that they differentiated between ‘indications
of source’ and ‘designations of origin’. ([32](#Footnote32))

13.   The existence of those different systems of protection in the European Union is incompatible with the fundamental freedoms,
since the exclusive right to use a name affects the free movement of goods. ([33](#Footnote33)) However, the Treaty recognises that effect since, notwithstanding the fact that Articles 28 and 29 EC prohibit quantitative
restrictions on imports and exports and measures having equivalent effect, Article 30 EC lays down that those provisions are
not to preclude the setting of limits on the grounds of, *inter alia*, ‘the protection of industrial and commercial property’. ([34](#Footnote34)) However, the competence of the Member States to set those limits ceases when the Community introduces harmonising measures
to guarantee protection. In any event, as I will discuss later, the task of defining the extent to which that right takes
precedence over freedom of movement has fallen to the Court.

14.   Commission Directive 70/50/EEC of 22 December 1969 on the abolition of measures which have an effect equivalent to quantitative
restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty ([35](#Footnote35)) provided for the adaptation of the effects of Article 28 EC in this sphere, by referring to measures which confine names
which are not indicative of origin or source to domestic products only (Article 2(3)(s)). To put it another way, it follows
that measures which fall within either of those categories are not excluded.

15.   Subsequently, Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating
to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer ([36](#Footnote36)) provided that the authorities of each Member State were entitled to prohibit trade in those products on the grounds of the
protection of industrial and commercial property rights, indications of source, designations of origin, and the prevention
of unfair competition (Article 15(2)).

C –    *Current Community legislation*

16.   Initially, Community legislation applied only to the wine sector. Later, the scope of the legislation was extended to the
agricultural and food sectors, while in the future it is likely to apply to other sectors, ([37](#Footnote37)) as envisaged in recital 9 of 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 ([38](#Footnote38)) (‘the basic regulation’), which restricts the scope of the regulation to products and foodstuffs ‘for which a link between
product or foodstuff characteristics and geographical origin exists; … however, this scope could be enlarged to encompass
other products or foodstuffs’. ([39](#Footnote39))

1.      Vine products

17.   Wines, musts and grape juices were listed in Annex II to the Treaty among the products for which a common agricultural policy
was to be drawn up. That was the basis upon which, at a very early stage, Regulation No 24 of the Council of 4 April 1962
on the progressive establishment of a common organisation of the market in wine ([40](#Footnote40)) laid down certain general principles and provided for rules to be drawn up governing quality wines produced in defined regions.

18.   More recently, Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine ([41](#Footnote41)) has become the regulatory pillar of the system of rules in the sector, without prejudice to certain specific rules laid down
elsewhere. ([42](#Footnote42))

19.   In view of the fact that ‘the description, designation and presentation of products covered by this Regulation can have significant
effects on their marketability’, Regulation No 1493/1999 partly deals with the need to ‘provide for the obligatory use of
certain terms so as to identify the product and provide consumers with certain important items of information and the optional
use of other information on the basis of Community rules or subject to rules concerning the prevention of fraudulent practices’
(recital 50). In accordance with Article 47(1), the objectives of the regulation include the protection of the legitimate
interests of consumers (point (a)) and producers (point (b)), the smooth operation of the internal market (point (c)), and
the promotion of the production of quality products (point (d)).

20.   Furthermore, the system of rules laid down may be supplemented by specific laws adopted by the Member States.

2.      Agricultural products and foodstuffs

21.   It was not until the beginning of the 1990s that the Community adopted legislation regulating the use of geographical indications
for other types of product, in particular agricultural products and foodstuffs. The reason was that, although at the outset
Directive 79/112 on labelling appeared to be an adequate and appropriate measure to protect the consumer against the risk
of fraud, ([43](#Footnote43)) it subsequently became clear that that was not the case since there were other interests at stake. Directive 79/112 was a
useful addition but it did not protect geographical indications or safeguard the consumer effectively. ([44](#Footnote44))

22.   The need to prevent new obstacles to trade and to regulate instruments in order to protect consumers and producers adequately
was part of the reason for the creation of a Community policy on quality, ([45](#Footnote45)) aimed at closing the gaps which had been identified and highlighted by the Court. ([46](#Footnote46))

23.   During the debate which followed, a number of suggestions were made including, inter alia, that wide protection should be
ensured for terms identifying the places of origin of foodstuffs. ([47](#Footnote47)) The Commission took action in that connection ([48](#Footnote48)) and steps were also taken by the European Parliament. ([49](#Footnote49))

24.   Accordingly, on 14 July 1992, approving the proposal submitted in February 1991, the Council adopted the basic regulation,
([50](#Footnote50)) which lays down essential rules in the field. In contrast to the wine sector, the system was created around the traditional
concept of a designation of origin and is supported by compulsory registration, in so far as protection is granted only following
entry in a register. ([51](#Footnote51))

D –    *The basic regulation*

25.   The recitals refer to a number of objectives on which the regulation is founded, namely, the diversification of agricultural
production, the promotion of products having certain characteristics, and the provision to consumers of clear, reliable information
about the origin of their purchases. After acknowledging the successful results achieved by States whose legal systems already
protected designations of origin (recital 6) and the diversity existing in the field, the regulation states that ‘a framework
of Community rules on protection will permit the development of geographical indications and designations of origin since,
by providing a more uniform approach, such a framework will ensure fair competition between the producers of products bearing
such indications and enhance the credibility of the products in the consumers’ eyes’ (recital 7).

26.   The scope of the protection available is wide, in that, in accordance with Article 13, a registered name precludes: (a) any
direct or indirect commercial use in respect of products not covered by the registration; (b) any misuse, imitation or evocation,
even if the true origin of the product is indicated; (c) any other false indication as to the provenance, origin, nature or
essential qualities of the product; and (d) any other practice liable to mislead the public as to the true origin of the product.

27.   In short, as I pointed out in the Opinion in *Canadane Cheese Trading and Kouri*, ‘[t]he legal protection of a geographical name confers a collective monopoly over its commercial use upon a particular group
of producers by reference to their geographical location – in contrast, a trade mark can only be used by the owner’. ([52](#Footnote52)) Such protection entails a reward for the effort invested by the multiple holder of the registered name, who, by manufacturing
the product concerned in a particular manner, ensures that the product acquires a reputation worthy of protection under that
form of industrial property right. The protection ensures that the holders of the designation do not suffer financial loss
and also precludes unjust enrichment on the part of other individuals.

28.   However, the progress achieved at international level and the desire to provide a solution similar to the guidelines laid
down in national legal systems means that the protection is not confined to traditional designations of origin but that it
also extends, albeit to a lesser degree, to geographical indications, two concepts which, in the light of the actions for
annulment before the Court, require to be examined in some detail. It is also necessary to deal with unregistrable names and
with the registration procedure.

1.      The concepts of designation of origin and geographical indication

29.   Article 2 of the basic regulation describes what is meant by each term for the purposes of that regulation. Paragraph 2 contains
a basic definition which is then expanded in paragraphs 3 and 4.

a)      Basic definition

30.   In accordance with Article 2(2) of the basic regulation:

(a)       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’. ([53](#Footnote53))

(b)       Geographical indication denotes 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’.

31.   Thus, protection does not extend to all names but only to ones which encompass a dual connection, both spatial and qualitative,
between the product, on the one hand, and its appellation, on the other. The qualitative connection also serves to differentiate
designations of origin from geographical indications, in that the link with a particular area is not as strong in the latter
case. ([54](#Footnote54))

i)      The geographical link

32.   Both forms of protection require a direct connection with a place. That aspect of the relationship has no minimum delimitation
because the reference to a ‘specific place’ includes the smallest section of that place, such as part of a valley, the side
of a mountain, or the bank of a river.

33.   However, there is a maximum limit reflected in the word ‘country’, a territorial unit which is protected only in ‘exceptional
cases’. In principle, it could be argued that the term denotes States which are small in area. ([55](#Footnote55)) However, if that were the case, the basic regulation would have stated as much, ([56](#Footnote56)) and it would therefore have been possible to protect names covering a wide area, including ones encompassing an entire country,
([57](#Footnote57)) provided that they met the required conditions.

34.   Nevertheless, it must be pointed out that a designation of origin is capable of covering an entire country on the grounds
that certain national and international provisions do not set any limits at all. ([58](#Footnote58)) However, a number of Community provisions, such as the ones already cited in relation to the wine sector, provide that such
a wide definition is exceptional in nature. ([59](#Footnote59))

35.   Unquestionably, a name which encompasses an entire Member State could be classed as protectionist, in so far as the products
associated with the name would benefit from the mere fact of its production there. However, the aim of the basic regulation
in describing such cases as ‘exceptional’ reflects how infrequently the characteristics of a product have a connection with
the natural and human features of a whole country; ([60](#Footnote60)) such a connection is more likely to arise in smaller countries, although that does not preclude its occurrence in other contexts.
In that regard, it is appropriate to include, for example, the registration of ‘Svecia’ ([61](#Footnote61)) or that of ‘Salamini italiani alla cacciatora’. ([62](#Footnote62))

ii)    The qualitative link

36.   This requirement is designed to ensure that the product possesses a certain quality or attributes which distinguish it from
other products of the same type and are due to the particular conditions of the area of origin, such as the climate or the
vegetation.

37.   However, the specific character of a product is generally derived from more than one factor, and is sometimes a combination
of several. The provision refers to ‘natural and human’ factors. ([63](#Footnote63)) Although the use of the conjunction ‘and’ indicates that both factors are required, there is nothing to preclude one factor
from usually taking precedence, to the extent that, in most instances, where the particular features of a product are the
result of natural circumstances they are protected by a designation of origin, and, where those features are derived essentially
from human activity, they are protected by a geographical indication. ([64](#Footnote64))

b)      Equivalent concepts

38.   Article 2(3) and (4) of the basic regulation extends the definition of designation of origin to include traditional names
and other names with geographical connotations.

i)      Traditional names

39.   Normally, geographical designations include the name of a city, town, area, or region of reasonable size. However, in trade,
other appellations exist that are wider in scope and do not evoke a geographical origin directly and unequivocally, alluding
to it indirectly instead. That is the case with traditional names which, while they do not refer to a place directly, are
capable of indicating the origin of a product by triggering a process of association with a particular location in the minds
of consumers. ([65](#Footnote65))

40.   In accordance with Article 2(3) of the basic regulation, certain traditional geographical or non-geographical names designating
an agricultural product or a foodstuff originating in a region or a specific place, which fulfil the conditions referred to
in the second indent of paragraph 2(a), are also considered as designations of origin. ([66](#Footnote66))

41.   In such names, which are also permitted in other spheres such as the wine sector, ([67](#Footnote67)) the geographical connection disappears, although the relationship with a specific area, from which certain particular characteristics
are derived, is retained as an essential feature. Such cases are unusual (the provision refers to ‘certain’ names) and satisfy
the basic elements of the definition into which they are absorbed.

42.   Unlike in other spheres, where protection is conferred only on appellations that are specifically mentioned, in this case
general protection is afforded to agricultural products and foodstuffs originating in ‘a region or a specific place’, provided
that their quality or characteristics are essentially or exclusively due to a particular geographical environment with its
inherent natural and human factors, and that their production, processing and preparation take place in the defined geographical
area.

ii)    Other geographical designations

43.   Article 2(4) extends the protection 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, that special
conditions for the production of the raw materials exist, and that there are inspection arrangements to ensure that those
conditions are adhered to.

44.   That case includes situations where a product is identified by a designation of origin but does not actually originate in
the place referred to. ([68](#Footnote68))

2.      Unregistrable names

45.   Article 3 contains a negative delimitation, in that it precludes the registration of certain names, such as generic names
and names which are likely to mislead as to the true origin of the product.

a)      Generic names

46.   Article 3(1) reflects a traditional prohibition, applied by national administrative authorities and recognised by the Court,
([69](#Footnote69)) which precludes the registration of ‘[n]ames that have become generic’. That provision is supplemented by Article 17(2) which
also excludes ‘generic names’, even where such names are protected in the Member States or have been established by usage
in Member States where there is no protection system.

47.   The prohibition is justified on the ground that such names no longer perform their basic function, in that they have lost
the link with the area where they originated and have ceased to identify the product itself as coming from a particular place,
with the result that they have become descriptive of a type or kind of product. ([70](#Footnote70))

48.   In view of the difficulties that can result from a prohibition, the basic regulation lays down guidelines for defining the
term. First, the regulation provides that ‘[f]or 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’. Second,
the regulation goes on to state that, ‘[t]o 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’.

49.   The guidelines do not stop there, since Article 3 also requires the Council, before the entry into force of the basic regulation,
to draw up and publish a non-exhaustive, indicative list of the names of agricultural products or foodstuffs which are within
the scope of the basic regulation and are regarded under the terms of Article 3(1) as being generic and thus not able to be
registered. However, at the time of delivery of this Opinion, that requirement had not been complied with.

b)      Names which are likely to mislead

50.   Article 3(2) provides that a name may not be registered where it conflicts with the name of ‘a plant variety or an animal
breed and as a result is likely to mislead the public as to the true origin of the product’.

3.      The registration procedure

51.   As with other industrial property rights, the protection of a name identifying an agricultural product or a foodstuff is conditional
upon registration, a compulsory procedure that fulfils objectives similar to those of the Community trade mark, ([71](#Footnote71)) but is unlike the procedure in the wine sector.

52.   It is clear from Article 17(3) that, since it is the sole system of protection for such names in the Community, the requirement
of registration must be met even in respect of names which, before the entry into force of the basic registration, were already
protected under national laws or were established by usage in Member States with a different system. Registration may be carried
out in accordance with an ordinary procedure or a simplified procedure.

a)      The ordinary procedure

53.   This procedure consists of two successive phases, the first of which takes place before the national government concerned
and the second before the Commission. The second phase consists of verification, any objections, and the decision concerning
registration.

54.   For the purposes of the present actions for annulment, it is merely necessary to point out that Article 15 of the basic regulation
([72](#Footnote72)) provides for the establishment of a committee (‘the Regulatory Committee’), to which proposals are submitted for an opinion.
Two possibilities then arise: if the committee approves it, the proposal is adopted; if there is no approval from the committee,
the proposal is submitted forthwith to the Council. The latter option also arises where the committee fails to deliver an
opinion, owing, on many occasions, to insufficient votes. If, for any reason, the Council fails to deliver an opinion within
three months, ‘the proposed measures shall be adopted by the Commission’.

b)      The simplified procedure

55.   In addition to the steps described above, Article 17 (which was deleted by Regulation No 692/2003) laid down a simpler procedure
to prevent names which were already protected under the legal systems of the Member States from being subject to the same
requirements and time-limits as new names.

56.   Article 17 set out the following steps: (a) within six months of the entry into force of the regulation, the Member States
were required to inform the Commission which of their legally protected names or, in those Member States without a protection
system, which of their names established by usage, they wished to register; and (b) in accordance with the procedure in Article
15, the Commission was to register the names which complied with Articles 2 and 4. Article 7 did not apply and the registration
of generic names was prohibited. ([73](#Footnote73))

c)      The Scientific Committee

57.   Irrespective of which procedure is used, it frequently involves the examination of very technical issues. In order to assist
it with such questions, the Commission, by Decision 93/53/EEC of 21 December 1992, ([74](#Footnote74)) set up a scientific committee composed of highly qualified professionals, whose task is to examine the factors to be taken
into account when defining indications, designations and exceptions thereto, to examine whether such indications and designations
are generic, and to carry out an assessment of the traditional nature of the product concerned and of criteria regarding the
risk of misleading consumers in cases of conflict.

E –    *Regulation No 1107/96*

58.   Following the notification procedure provided for in Article 17 of the basic regulation, on 12 June 1996 the Commission adopted
Regulation (EC) No 1107/96, ([75](#Footnote75)) for the purpose of publishing registrations effected at Community level. Article 1 provides that ‘[t]he names listed in the
Annex shall be registered as protected geographical indications (PGI) or protected designations of origin (PDO)’.

59.   The Annex has been amended and supplemented many times, usually to include other names. ([76](#Footnote76)) It is the challenge against the inclusion of one such name which has given rise to the present proceedings.

III –  **Analysis of the case-law of the Court**

60.   An analysis of the case-law of the Court is particularly important in order to understand more clearly the concepts to be
considered, the purpose of the protection conferred and the meaning of the basic regulation.

A –    *Classification as industrial and commercial property rights*

61.   In *Dassonville*, ([77](#Footnote77)) the Court dealt with indications of origin for the first time, albeit as a secondary issue in a reference for a preliminary
ruling on the interpretation of the former Articles 30, 31, 32, 33, 36 and 85 of the EEC Treaty, with regard to the requirement
in Belgium of an official document issued by the government of the exporting country for products bearing a designation of
origin. In addition to defining a measure having equivalent effect (paragraph 5), the Court held that, in the absence of a
Community system guaranteeing for consumers the authenticity of a product’s designation of origin, Member States are empowered
to adopt reasonable, non-discriminatory, non-restrictive measures to prevent unfair practices (paragraphs 6 and 7).

62.   In *Sekt-Weinbrand*, the Court considered the issue more directly from the point of view of the free movement of goods. In that case, the Commission
claimed that Germany was in breach of that freedom by reserving the names ‘Sekt’ and ‘Weinbrand’ to domestic wines and brandies
and the name ‘Prädikatsskt’ to Sekt produced in Germany from a minimum proportion of German grapes. The Court took the same
view, holding that, although the Treaty does not restrict the power of each Member State to legislate in that regard, it prohibits
the introduction of new measures of an arbitrary and unjustified nature whose effects are equivalent to quantitative restrictions,
which is precisely the case where the protection provided for indications of origin is granted to other appellations which
are not indications of origin, such as names which, at the time, are merely generic in nature.

63.   The Court held that the restriction of freedom of movement was justified by the need to protect designations of origin to
the extent to which the latter safeguard the interests of producers against unfair competition and the interests of consumers
against information which may mislead them (point 7). In *Cassis de Dijon*, ([78](#Footnote78)) the Court referred again to the ‘fairness of commercial transactions’ and the ‘defence of the consumer’ as justification
for the restriction.

64.   However, those grounds are not included in the list in Article 30 EC, which cannot be ‘extended to cases other than those
specifically laid down’, ([79](#Footnote79)) and must be construed restrictively. ([80](#Footnote80)) As a result, uncertainty arose as to whether Article 30 EC applies to appellations indicating the origin of a product.

65.   The majority of academic writers argued that indications of origin should be included in the concept of industrial and commercial
property, which is referred to in Article 30 EC. ([81](#Footnote81)) In support of that assertion, those writers cited the Paris Convention for the Protection of Industrial Property of 20 March
1883, ([82](#Footnote82)) Article 1(2) of which refers to ‘indications of source or appellations of origin’ in conjunction with patents and trade marks.

66.   In *Delhaize et Le Lion*, ([83](#Footnote83)) the Court accepted that argument when analysing whether it was permissible to bottle wine away from the place of production,
holding that refusal to authorise that practice amounted to a prohibited measure and that such measures are not justified
‘on grounds of the protection of industrial and commercial property within the meaning of Article 36 of the EC Treaty [now,
after amendment, Article 30 EC] unless they are needed in order to ensure that the registered designation of origin fulfils
its specific function’ (paragraph 16). That approach was followed in *Exportur*([84](#Footnote84)) and *Belgium* v *Spain*. ([85](#Footnote85)) In the latter, the Court declared that ‘[d]esignations of origin fall within the scope of industrial and commercial property
rights. The applicable rules protect those entitled to use them against improper use of those designations by third parties
seeking to profit from the reputation which they have acquired. They are intended to guarantee that the product bearing them
comes from a specified geographical area and displays certain particular characteristics’ (paragraph 54). The Court took the
same view in *Ravil*([86](#Footnote86)) and *Consorzio del Prosciutto di Parma and Salumificio S. Rita*. ([87](#Footnote87))

B –    *Aim of the protection*

67.   The *Sekt-Weinbrand* judgment drew attention to the fact that the role of designations of origin and geographical indications is to describe and
to ensure that the product referred to ‘does in fact possess qualities and characteristics which are due to the fact that
it originated in a specific geographical area’ (paragraph 7). That approach took into account the requirement of a dual connection,
both spatial and qualitative, ([88](#Footnote88)) enshrined in the basic regulation, which was also held necessary in *Delhaize et Le Lion*.

68.   In *Belgium* v *Spain*, the Court stressed the importance of the reputation of designations of origin among consumers, a fact which may be used
by producers to attract custom. The Court declared that ‘[t]he reputation of designations of origin depends on their image
in the minds of consumers. That image in turn depends essentially on particular characteristics and more generally on the
quality of the product. It is on the latter, ultimately, that the product’s reputation is based’ (paragraph 56).

69.   The inclusion of designations of origin and geographical indications within the scope of industrial and commercial property
rights adds a new dimension to the assets of the holders of such rights, founded on the express or implied reputation of their
products, ([89](#Footnote89)) thereby protecting them against infringement by those who seek to use a right which does not have legal protection. In other
words, it involves conferring a monopoly of usage. As the Court declared in *Keurkoop*, ([90](#Footnote90)) the aim of the protection of such rights under Article 30 EC is ‘to define exclusive rights which are characteristic of that
property’ (paragraph 14).

70.   However, it is made clear in *Warsteiner Brauerie*([91](#Footnote91)) and, more explicitly, in *CMA*, that the safeguarding of so-called simple indications of source is not based on the protection of industrial and commercial
property, but rather, where applicable, of the protection of consumers. Paragraph 26 of the judgment in *CMA* dismisses the argument that ‘the contested scheme is justified by Article 36 of the EC Treaty, as coming within the derogation
for the protection of industrial and commercial property in so far as the CMA label constitutes simply a geographical indication
of provenance’.

C –    *The basic regulation*

71.   The Court has analysed the basic regulation on a number of occasions. A systematic analysis of the case-law, with a view to
obtaining an overall impression, reveals that the Court has ruled on the scope of the regulation, the extent of the Community
protection, and registration and its effects.

1.      Scope

72.   In *Italy* v *Commission*, ([92](#Footnote92)) an action contesting a regulation concerning marketing standards for olive oil, ([93](#Footnote93)) the Court pointed out that the criteria laid down by the basic regulation ‘refer to specified homogeneous geographical areas
and cannot be converted into general rules applicable irrespective of the size and heterogeneity of the areas concerned’,
and that there is no ‘general principle that the origin of different agricultural products should be defined in uniform and
mandatory terms by reference to the geographical area in which they were grown’ (paragraph 24).

73.   Moreover, in accordance with *Budéjovický Budvar*, ([94](#Footnote94)) application of the basic regulation ‘depends essentially on the nature of the designation, in that it covers only designations
of products for which there is a specific link between their characteristics and their geographic origin, and by the fact
that the protection conferred extends to the Community’.

74.   More specifically, *Pistre and Others*, a case which arose as a result of a reference for a preliminary ruling from the Cour de cassation, France, concerning the
use of the description ‘montagne’ in respect of agricultural products and foodstuffs, made clear the need for a link between
the quality and the characteristics of the products concerned, on the one hand, and the physical surroundings, on the other.
That link does not arise in the word ‘montagne’ which, moreover, suggests to the consumer qualities with an abstract connection
to mountain areas, rather than to a place, a region or a country.

75.   In any event, it follows from *Pistre and Others* that, outside the scope of the basic regulation, Member States retain the power to govern on their territory the use of geographical
indications. In *Warsteiner Brauerie*, the Court upheld the use of that criterion in relation to simple indications, declaring that Community law ‘does not preclude
the application of national legislation which prohibits the potentially misleading use of a geographical indication of source
in the case of which there is no link between the characteristics of the product and its geographical provenance’ (paragraph
54). In *Budéjovický Budvar*, the Court once again advocated that approach.

2.      Extent of the protection

76.   In *Consorzio per la tutela del formaggio Gorgonzola*, ([95](#Footnote95)) the Court held first of all that, in the present state of Community law, the principle of the free movement of goods does
not preclude Member States from taking measures to protect registered designations of origin. The Court went on to state that
protection under the basic regulation extends to any evocation (Article 13(1)(b)), even where the true origin is stated, which
includes cases where the term used incorporates part of the protected designation, the fact that there is a likelihood of
confusion not being the most important factor (paragraphs 25 and 26).

77.   It is usual for there to be a number of stages between manufacture and marketing, and accordingly, in *Ravil* and *Consorzio del Prosciutto di Parma and Salumificio S. Rita*, the Court ruled on the question whether the grating and packaging of cheese, and the slicing of ham, could be carried out
away from the region of production. In both judgments, the Court held that neither the obligation to inform consumers that
those operations occurred elsewhere, nor controls carried out away from the region of production are sufficient to ensure
fulfilment of the objective pursued by designations of origin. ([96](#Footnote96))

3.      Registration and its effects

78.   *Chiciak and Fol*([97](#Footnote97)) and *Consorzio per la tutela del formaggio Gorgonzola* dealt with the compulsory nature of registration. In the latter judgment the Court relied on the former to rule that the
protection afforded by a national government after registration by the Commission does not continue, even where that protection
is wider than the Community protection (paragraph 18).

79.   In *Chiciak and Fol*, the Court defined the effects of registration, when examining whether it was possible to amend unilaterally a name registered
in accordance with the simplified procedure under Article 17 of the basic regulation. The Court rejected that approach and
interpreted the provision ‘as meaning that, since its entry into force, a Member State may not, by adopting provisions of
national law, alter a designation of origin for which it has requested registration in accordance with Article 17 and protect
that designation at national level’ (paragraph 33).

80.   As regards the effects of registration, it is also important to mention *Bigi*. ([98](#Footnote98)) That dispute dealt with the question whether grated cheese could be sold as ‘parmesan’ outside Italy, where the cheese is
produced and where use of that name is prohibited, when it did not satisfy the specification for ‘Parmigiano Reggiano’. The
reply was very clear: as soon as a Member State applies for registration in accordance with the simplified procedure, products
which do not comply with the relevant provisions may not be legally marketed on its territory. Furthermore, once the products
have been entered on the register, the system of derogations provided for in Article 13(2) of the basic regulation applies
only to goods not originating in the territory of that Member State.

81.   On a different level, a challenge to one of the amendments to Regulation No 1107/96, in accordance with which ‘Spreewälder
Gurken’ was included as a protected designation of origin, ([99](#Footnote99)) enabled the Court, in *Carl Kühne and Others*, ([100](#Footnote100)) to address the question of the division of powers between the Member States and the Commission during the registration procedure,
outlining the definition of a name ‘established by usage’, as referred to in Article 17 of the basic regulation. With regard
to the first aspect, the Court declared that the system of division of powers is attributable particularly to the fact that
registration presupposes verification ‘that a certain number of conditions have been met, which requires, to a great extent,
detailed knowledge of matters particular to the Member State concerned, matters which the competent authorities of that State
are best placed to check’ (paragraph 53), while it is incumbent on the Commission to verify ‘that the specification which
accompanies the application complies with Article 4 of Regulation No 2081/92’, that is to say that it contains the required
information, that there are no obvious mistakes, and ‘that the designation satisfies the requirements of Article 2(2)(a) or
(b)’ of the basic regulation (paragraph 54). With regard to the second point, the Court held that the assessment of whether
a term is established by usage is based on the checks made by the competent national authorities, subject to review by the
national courts if appropriate, before the application for registration is notified to the Commission (paragraph 60).

4.      Conclusion

82.   All the aforementioned judgments reflect the trend, fostered by the Community legislation, towards increasing the quality
of products within the framework of the common agricultural policy, thereby promoting their reputation. That was specifically
pointed out in *Ravil* and *Consorzio del Prosciutto di Parma and Salumificio S. Rita*, ([101](#Footnote101)) where designations of origin were described as having a dual aim: to guarantee the source of the designated product and to
prevent fraudulent use of the name, while at the same time protecting industrial and commercial property, which, in conjunction
with the principle of free movement of goods, is becoming increasingly important.

IV –  **Facts giving rise to the proceedings**

A –    *The first inclusion of ‘feta’ in Regulation No 1107/96* ([102](#Footnote102))

83.   On 21 January 1994, the Greek authorities applied to the Commission under Article 17(1) of the basic regulation for registration
of the word ‘feta’ as a protected designation of origin in respect of a type of cheese. The accompanying file contained information
concerning the geographical origin of the raw material used in the manufacture of the product, the natural conditions prevailing
in the region where it was produced, the species and breeds of animals from which the milk used was obtained, the qualitative
characteristics of that milk, the processes for manufacturing the cheese and its particular features.

84.   Attached was Ministerial Order No 313025/1994 of the Ministry of Agriculture of 11 January 1994, ([103](#Footnote103)) pursuant to which the name was protected at national level:

–       Under Article 1(1) of the Order, ‘The name “feta” is recognised as a protected designation of origin (PDO) for salted white
cheese traditionally produced in Greece, particularly in the regions mentioned in paragraph 2 of this article, from ewes’
milk or a mixture of ewes’ milk and goats’ milk’.

–       In accordance with Article 1(2), the milk used for the manufacture of feta must come ‘exclusively from the regions of Macedonia,
Thrace, Epirus, Thessaly, Central Greece, Peloponnese and the province (*nomos*) of Lesbos’.

–       The provisions which follow govern the conditions to be met by the milk, the production process, the characteristics of the
cheese, in particular its qualitative, organoleptic and taste characteristics, and the specification for the packaging.

–       Article 6(2) prohibits the manufacture, import, export, despatch and marketing under the name ‘feta’ of cheese not meeting
the foregoing conditions.

85.   In view of the need to proceed with extreme caution, the Commission arranged in 1994 for a Eurobarometer survey of a sample
of 12 800 individuals. The Final Report resulting from that survey was adopted on 24 October 1994:

–       On average, one in five citizens of the European Union has seen or heard the name ‘feta’. In two States, namely Greece and
Denmark, that name is in fact recognised by almost everyone.

–       Of those who identify the name, the majority associate it with a cheese and a substantial proportion of the latter say that
it is a Greek cheese.

–       Three out of four people who know the name ‘feta’ state that it evokes a country or region with which the product has some
connection.

–       Of those who have already seen or heard the name ‘feta’, 37.2% consider it a common name (in Denmark the proportion is 63%)
whilst 35.2% consider it a product from a particular origin (in Greece 52% are of that opinion). The remainder expressed no
view.

–       Finally, there are mixed feelings as to whether it is a generic product or a product from a particular origin. Of those who
were immediately familiar with the name and indicated that it is a cheese, 50% regard it as a product from a particular origin
and 47% consider it to be a common name.

86.   The Scientific Committee issued an opinion on 15 November 1994, in which it expressed the view, by four votes in favour and
three against, having regard to the information supplied, that the conditions for registration, particularly the ones laid
down in Article 2(3) of the basic regulation, had been met. The Committee also stated, this time unanimously, that the term
was not generic.

87.   On 19 January 1996, the Commission approved a list of names, including ‘feta’, which were eligible for registration in accordance
with Article 17 of the basic regulation. The Regulatory Committee did not give a decision within the period laid down for
that purpose. When the proposal was submitted to the Council on 6 March 1996, that institution also failed to give a decision
within the three months available to it.

88.   On 12 June 1996, the Commission adopted Regulation No 1107/96, including ‘feta’ in the Annex at Part A, ‘Products listed in
Annex II to the EC Treaty, intended for human consumption’, under the heading ‘cheeses’ and the country ‘Greece’. The product
was registered as a protected designation of origin (‘PDO’).

89.   The Danish, German and French Governments contested that registration and each brought an action for annulment before the
Court.

B –    *The ‘Feta’ judgment*

90.   The judgment brought the three disputes to an end, annulling Regulation No 1107/96 to the extent to which it registered ‘feta’
as a protected designation of origin.

91.   Essentially, the applicants put forward two pleas in law, based on Articles 2(3) and 3(1) of the basic regulation. By the
first plea, they claimed that the conditions for registration had not been met, in that the product referred to did not originate
in a region or a specific place and did not display any quality or characteristics which were essentially or exclusively due
to the geographical environment, with its inherent natural and human factors, from which it originates. By the second plea,
they argued that the term was generic, from which it followed that it could not be registered.

92.   The Court started by examining the second plea, because the prohibition applies to all categories of name including ones which
fulfil the conditions for them to be granted protection (paragraph 52).

93.   First of all, the Court outlined the arguments of the applicant Member States (paragraphs 53 to 64), followed by the arguments
of the Commission and Greece, which – as in the present proceedings – intervened in support of the lawfulness of the contested
regulation (paragraphs 65 to 77). The Court then gave its findings, from which it is appropriate to draw attention to the
following points:

–       The prohibition of registration in Article 3 of the basic regulation is also applicable ‘to names which have always been generic’
(paragraph 80).

–       In the light of the arguments put forward by certain governments in relation to that question, ‘either in the context of preparation
of the draft list of generic names … or in the procedure for adoption of the contested regulation’, importance must be attached
to ‘the considerations’ put forward by the Commission prior to and during the application process (paragraphs 82 to 86).

–       Analysis of those considerations reveals that the Commission ‘minimised the importance to be attached to the situation existing
in the Member States other than the State of origin and considered their national legislation to be entirely irrelevant’ (paragraph
87), factors which, together with the existing situation in the Member State in which the name originates and in areas of
consumption, are specifically referred to in Article 3(1) (paragraph 88).

–       In accordance with the foregoing, under the second indent of Article 7(4), ‘the fact that registration of a name … might jeopardise
the existence of products which are legally on the market constitutes a ground on which a statement of objection from another
Member State may be admissible’, which, notwithstanding that it is specifically provided for in respect of the normal registration
procedure, also has a bearing on the simplified procedure, since regard must be had to ‘traditional fair practice and of the
actual likelihood of confusion’ (paragraphs 91 to 94).

–       In addition, account must be taken of the existence of products on the market which have been legally marketed under that
name in Member States other than the State of origin by which registration is applied for (paragraph 96).

–       In the case under consideration no account was taken of the fact that the disputed name ‘had been used for a considerable
time in certain Member States other than the Hellenic Republic’ (paragraph 101).

94.   In the light of the above factors, it was found that the Commission had not taken into account ‘all the factors which the
third indent of Article 3(1) of the basic regulation required it to take into consideration’ and on those grounds the Court
gave judgment annulling the regulation, as mentioned above.

95.   The judgment did not look at the substantive requirements for registration, in particular the alleged generic nature of the
term concerned, and merely considered the assessment carried out by the Commission which was held to be incomplete. Nor did
the Court check whether the conditions laid down with regard to traditional names had been met.

C –    *The second inclusion of ‘feta’ in Regulation No 1107/96 pursuant to Regulation No 1829/2002*

96.   In the light of the aforementioned judgment, Regulation No 1070/1999 deleted the name ‘feta’ from the register.

97.   However, having regard to the grounds for that annulment, the Commission wished to undertake a detailed, up-to-date survey
of the position in the Community, as regards production and consumption of, and familiarity with, feta, to which end, on 15
October 1999, it sent a questionnaire to all the Member States. It is important to analyse that survey at some length since
it is highly indicative. ([104](#Footnote104))

(a)      Only Greece – since 1935 – and Denmark – since 1963 – have specific legislation on the production of feta, ([105](#Footnote105)) although Germany and France also make it:

–       Greece produced 115 000 tonnes, nearly all of which was for the domestic market.

–       Production in Denmark reached 27 640 tonnes in 1998, intended mainly for export.

–       Germany began production in 1972, and its output ranged from 19 757 to 39 201 tonnes, which was initially consumed by immigrants
but was later aimed at the export market.

–       France started to produce feta in 1931, with production reaching 19 964 tonnes, three quarters of which is sold to other countries.
([106](#Footnote106))

It is important to point out that, whereas the Greeks use only ewes’ milk, or a mixture of ewes’ milk and goats’ milk, the
Danes and Germans use only cows’ milk, while the French use ewes’ milk and, to a lesser extent, cows’ milk.

(b)      Turning to consumption, subject to the qualifications made in that regard, ([107](#Footnote107)) it can be inferred that 92% of consumption occurred in the Hellenic Republic at the time of its accession to the Community;
that figure subsequently dropped to 73%, as a result of increased consumption in other countries. A breakdown of consumption
per person per year reveals the following information:

–       In Spain, Luxembourg, Portugal, Italy and the Netherlands, consumption is no more than 0.010 kg (around 0.08% of the Community
total).

–       In Ireland, the United Kingdom, Austria, France, Sweden, Belgium and Finland, consumption fluctuates between 0.040 and 0.150
kg (between 0.32% and 1.22%).

–       In Germany it is 0.290 kg (2.36%).

–       In Denmark it is 0.700 kg (5%).

–       Greece accounts for 10.500 kg (85.64%).

(c)      It appears that consumers generally tend to associate ‘feta’ with Greece, as a result of the labelling of the cheese, ([108](#Footnote108)) the way it is described in publications, and advertising.

98.   That information was forwarded to the Scientific Committee which, on 24 April 2001, issued an opinion, approved unanimously,
([109](#Footnote109)) stating that the word ‘feta’ was not generic for the following reasons:

(a)      Production and consumption of feta are heavily concentrated in Greece, where they use a raw material and a production process
which are different to those used in other Member States; as a result, Greece has a dominant position in the single market.
In the Member States where it is neither produced nor consumed, the name ‘feta’ is not used, from which it follows that it
cannot be classed as a common name.

(b)      In consumers’ perception, the word ‘feta’ evokes a specific origin, namely Greece.

(c)      In Member States with specific legislation for the product concerned, there are notable technical differences; the fact that
the designation is used in the common customs nomenclature or in Community legislation on export refunds is not relevant in
this context.

99.   Having checked the information available to it, the Commission proposed that ‘feta’ should once again be protected. ([110](#Footnote110)) The Regulatory Committee failed to give an opinion in the time-limit set by its chairman. When the proposal was submitted
to the Council, it did not issue an opinion within three months.

100. That being the case, Regulation No 1829/2002 approved the entry in the register, provided for in Article 6(3) of the basic
regulation, of ‘feta’ as a protected designation of origin, ‘[s]ince the term … has not been established as generic’ (recital
34) and is ‘a traditional non-geographical name’ (recital 35).

D –     *Canadane Cheese Trading and Kouri*

101. In the above reference for a preliminary ruling, the judgment of the Court was pending with regard to the measures described
above, which the Greek Government adopted to protect the name ‘feta’. However, that judgment was not delivered because the
referring court withdrew the questions and the Court was therefore obliged to shelve the proceedings by order of 8 August
1997.

102. It is important to recall, albeit briefly, the details of that case and the considerations I set out in the Opinion.

103. Notwithstanding a number of already established practices and a first restrictive measure, ([111](#Footnote111)) the Greek Government began a process of gradual regulation of the conditions of production and marketing of feta cheese with
Ministerial Order No 2109/1988 ([112](#Footnote112)) of the Ministries of Finance and Agriculture, and continued the process with two other Ministerial Orders of the same ministeries,
No 688/1989 ([113](#Footnote113)) and No 565/1991, ([114](#Footnote114)) which amended Article 83 of the Foodstuffs Code, a provision which was also amended by Ministerial Order No 313025/1994,
referred to above.

104. Pursuant to that provision, the Greek authorities prohibited the sale under the name ‘feta’ of a consignment of cheese imported
from Denmark. The Danish undertaking Canadane Cheese Trading AMBA and the Greek undertaking Afoi G. Kouri AEVE challenged
that prohibition and the condition that for entry on to the market the description ‘white cheese in brine made in Denmark
from pasteurised cows’ milk’ must be used (points 1 to 6 of the Opinion). In the proceedings which followed, the Council of
State referred three questions (point 7) to the Court, seeking guidance on whether legislation prohibiting the sale in a Member
State, under the name ‘feta’, of a cheese lawfully produced and marketed under the same name in another Member State constituted
a measure having equivalent effect, contrary to Community law, and, if that was the case, whether there was any justification
for the prohibition (point 46).

105. In the Opinion, I discussed the production and marketing of feta cheese in the Community (points 9 to 19), describing the
production process in Greece and the main qualities of the cheese, namely, its natural white colour, its characteristic taste
and smell (slightly acid, salty and greasy), and its compact texture (points 15 and 16). I also described in detail the provisions
of national law governing the cheese (points 20 to 25). In view of the fact that the basic regulation had not entered into
force at the material time, I undertook a detailed analysis of the case-law of the Court and of the Community rules on the
selling names of products. With regard to the latter question, I proposed the following categories:

(a)      Community names (point 27), which cover ‘eurofoods’, such as honey and chocolate, and are marketed without restriction.

(b)      Generic names (points 28 to 34), which comprise common names used to designate agricultural or food products; they form part
of the general cultural and gastronomic stock and may, in principle, be used by any producer. I gave as examples vinegar,
geneva, beer, pasta, yoghurt, Edam cheese, cheeses, cold meats and bread.

(c)      Geographical names (points 35 to 44), which designate food products by alluding to their origin from a particular area. That
reference may be direct, when a precise reference is included (Manchego Cheese, Parma Ham, Faba Asturiana and Normandy Camembert),
or indirect, when no place-name is included (tetilla cheese, reblochon, grappa, ouzo, cava).

106. Turning to the substance of the questions referred, it was necessary first of all to establish whether the contested legislation
constituted a measure having equivalent effect, contrary to Article 30 of the Treaty. If the reply to that question was in
the affirmative, it would then be necessary to consider whether the measure was justified.

(a)      By analysing the national legislation in the light of the case-law of the Court, I concluded that it was a measure having
equivalent effect to a quantitative restriction within the meaning of the Treaty (points 47 to 49).

(b)      Accordingly, it was necessary to determine whether the restriction was covered by Article 30 or, where applicable, Article
36, of the Treaty:

–       In order to establish the scope afforded by the consumer protection and fair trading derogation, I examined the similarities
and differences between the Greek and Danish cheeses, by reference to their composition and production methods (points 61
and 62), international standards (point 63), legislation and consumer expectations in the importing country (point 64) and
in the other Member States (point 65), and Community acts (point 66). My conclusion was that there is no substantial difference
between the two products and that adequate labelling would have safeguarded consumers and fair trade (points 67 and 68).

–       However, having regard to the fact that my analysis was based on the Greek legislation in question, the restriction was permitted
on the grounds of the protection of industrial and commercial property, because in Greece the name ‘feta’ satisfies the conditions
stipulated in *Exportur*, in that: (a) it indicates indirectly the geographical origin of the cheese marketed under that name (point 73); (b) it guarantees
a food which has certain characteristics and a quality which gives it a high reputation amongst consumers in Greece (points
74 and 75); (c) it is protected by domestic law (point 76); and (d) in Greece the name has not undergone an irreversible process
of erosion which might have changed it into a generic name (point 77).

107. In the light of those considerations, I proposed that the Court reply as follows to the questions referred for a preliminary
ruling:

‘(1)      Legislation of a Member State which prevents the marketing, under the sales description “feta”, of a cheese lawfully produced
and marketed under that name in another Member State is a measure having equivalent effect to a quantitative restriction,
contrary to Article 30 of the EC Treaty.

(2)      Legislation of a Member State which restricts to national products the use of the name “feta” is not justified on the grounds
of consumer protection or fair trading.

(3)      Legislation of a Member State intended to protect the rights which are the specific subject-matter of a geographical name,
such as the name “feta”, is justified on the ground of protection of industrial and commercial property referred to in Article
36 of the EC Treaty.’

V –  **The actions for annulment**

108. Germany and Denmark, supported by France and the United Kingdom, seek the annulment of Regulation No 1829/2002. ([115](#Footnote115)) The Commission contends that the regulation is lawful. That contention is supported by Greece, which, in its observations,
also maintains that the actions must be declared inadmissible on the ground that they were brought outside the time-limit.

109. In its application, Germany puts forward a number of pleas for annulment on procedural grounds. Those pleas must be examined
before the substantive pleas, which, in both the German and the Danish applications, are essentially the same as those put
forward in the applications in *Feta*, namely, that ‘feta’ is a generic name and does not satisfy the requirements for treatment as a traditional name or for protection
under the basic regulation.

110. At the hearing held on 15 February 2005, oral argument was presented by the representatives of Germany, Denmark, France, Greece
and the Commission.

A –    *Admissibility of the actions for annulment*

111. The Greek Government claims that, at the time when the applications were lodged on 30 December 2002, the period of two months
specified in Article 230(5) EC had already expired because the regulation had been published in the Official Journal on 15
October 2001.

112. That procedural objection must be dismissed, since the period set in the Treaty for contesting a provision must be calculated
in accordance with the rules laid down in Article 81 of the Rules of Procedure, ([116](#Footnote116)) paragraph 1 of which provides that, ‘[w]here the period of time allowed for initiating proceedings against a measure adopted
by an institution runs from publication of that measure, that period shall be calculated, for the purposes of Article 80(1)(a),
from the end of the 14th day after publication thereof in the *Official Journal of the European Union*’. Article 81(2) provides that ‘[t]he prescribed time-limits shall be extended on account of distance by a single period of
10 days’.

113. Pursuant to those provisions, in the cases before the Court the two months began to run on 30 October rather than 15 October,
meaning that by lodging the applications at the Registry of the Court on 30 December the applicants did so within the time-limit.

114. Accordingly, it is appropriate to dismiss the plea of inadmissibility alleging that the applications were lodged out of time.

B –    *Procedural pleas in law*

115. Germany puts forward a number of procedural grounds for annulment alleging infringement of the rules of procedure of the Regulatory
Committee and of the Regulation determining the languages to be used by the Community, ([117](#Footnote117)) and also alleging that the statement of reasons was insufficient.

1.      Infringement of the time-limits and the rules on the use of languages

116. The German Government states that the invitation to the meeting of the Regulatory Committee of 20 November 2001 was sent by
email on 9 November 2001 and included a number of attachments in French and English only; a translation of those attachments
was not provided, despite a complaint made in that regard.

117. The German Government next complains that the invitation was sent less than 14 days in advance, ([118](#Footnote118)) and that versions of the attachments in all the languages were not provided. The Commission does not contest those facts
but disagrees about their legal effects.

118. When dealing with that issue, it must be recalled that a procedural requirement does not constitute an end in itself. That
approach is all the more relevant where the final result would have been the same had the defects not occurred. ([119](#Footnote119))

119. It is important to bear in mind that the minutes record that the meeting of 20 November 2001 merely involved a discussion
about the ‘feta’ file and about the summary of the responses to the questionnaire sent by the Commission. On 16 May 2002 the
draft regulation was discussed and put to the vote. ([120](#Footnote120))

120. In the light of those factors, it is possible to distinguish the present situation from the one in *Germany* v *Commission*, ([121](#Footnote121)) a case invoked by the applicant, where the procedural defects identified by the Court, on the basis of which the contested
act was annulled, arose in the meeting at which the proposal for that act was debated. By way of a summary of its findings,
the Court held in paragraph 32 that ‘… the adoption of the opinion of the Standing Committee on Construction, without regard
to the obligation to send the draft document to its two separate addressees within the time-limit laid down and without the
vote having been postponed despite the request made by a Member State, is vitiated by infringement of essential procedural
requirements, with the result that the contested decision is void.’

121. In the Opinion I delivered in that case, I drew a distinction, by reference to the rules of procedure of the committee concerned,
between cases involving the communication of preparatory documents for a meeting and working documents in general and those
involving the discussion of the adoption of a particular measure. In both cases, the procedural requirements are important
but they only become substantive in nature in the second case, where the rule that documents of the institutions must be drafted
in the language of the State to which they are sent, laid down in Article 3 of Regulation No 1, applies in full.

122. In line with that approach, the defects affecting the meeting of 20 November 2001 are not substantive and, accordingly, they
do not justify the annulment of the contested regulation, the proposal for which was debated at a subsequent meeting on which
those defects have not been shown to have had any effect whatsoever. Nor does it appear likely that the failure to send the
invitation a sufficient number of days in advance of the meeting and the fact that there was no translation of the opinion
of the Scientific Committee or of the information arising from the survey, would have prevented the German Government from
exercising its rights.

123. Moreover, it is difficult to imagine that, if the defects had not occurred, a different outcome would have arisen in the subsequent
decision of the Regulatory Committee on the draft submitted by the Commission. Indeed, it seems reasonable to suppose that
the outcome would have been the same, in other words, that there would not have been a majority of votes. As concerns the
action taken, annulment of the contested regulation would result in the clock being turned back to the time when the defects
occurred only, in all probability, for the same outcome to occur once those defects had been remedied.

124. It is in those terms that it is appropriate to construe recital 10 of the contested regulation, which states that the Commission
summarised the information received overall and by Member State, and the Member States subsequently made a number of corrections
and amendments. The fact that the latter statement is partially incorrect does not justify annulment.

2.      Insufficient statement of reasons

125. In the Opinion I delivered in *Portugal*  v *Commission*, ([122](#Footnote122)) I pointed out that the statement of reasons ‘is an essential part’ of a measure ([123](#Footnote123)) and that the obligation to provide reasons is not only for the protection of interested parties, but is also intended to
provide the Court with the information necessary to enable it to undertake fully the appropriate legal review. ([124](#Footnote124)) In addition, according to the case-law of the Court, the statement of reasons must show clearly and unequivocally the reasoning
of the institution which enacted the measure so as to inform the persons concerned of the justification for the measure adopted
and to enable the Court to exercise its powers of review. It is not necessary, however, for details of all relevant factual
and legal aspects to be given, provided that an assessment is made not only of its wording but also of its context and of
all the legal rules governing the matter in question ([125](#Footnote125)) (point 83).

126. The Commission explains in the contested regulation how, at the request of the Greek authorities, it registered ‘feta’ only
to delete the name following the judgment in Joined Cases C-289/96, C-293/96 and C-299/96 (recitals 1 to 5). The Commission
goes on to describe the questionnaire sent to the Member States for the purpose of assessing the production and consumption
of feta and the knowledge of the term professed by Community consumers, and sets out and comments on the details of that survey
(recitals 6 to 21). Next, the Commission refers to the opinion issued by the Scientific Committee, setting out the final section
of that opinion (recitals 22 to 32). Subsequently, the Commission notes ‘that the exhaustive overall analysis of the legal,
historical, cultural, political, social, economic, scientific and technical information notified by the Member States or resulting
from investigations undertaken or sponsored by the Commission leads to the conclusion that in particular none of the criteria
required under Article 3 of Regulation (EEC) No 2081/92 to show that a name is generic have been met’ (recital 33), and that
instead ‘feta’ is a traditional non-geographical name, before dealing in some detail with the natural and human factors which
influence the production of the cheese to which the name refers (recitals 34 to 36). Finally, the Commission refers to the
fact that the product specification includes all the required information (recital 37), to the need to amend Regulation No
1107/96 (recital 38), and to the procedure followed (recital 39).

127. It is clear from the above that an adequate statement of reasons was provided. Although one might call into question the extent
and the subject-matter of the reasons stated, that complaint does not touch on the lawfulness of the justification for the
decision.

C –    *Substantive pleas in law*

128. When examining the two substantive pleas for annulment submitted, it is appropriate to follow the order proposed by the Court
in the *Feta* case, that is, to analyse first whether the name ‘feta’ can be classed as generic before going on to assess whether it is
a traditional name. ([126](#Footnote126))

1.      ‘Feta’ as a generic name

129. It is appropriate to consider first of all what is meant by generic, then to deal with the factors laid down in the legislation
for delimiting the term and to apply those factors to this case.

a)      The meaning of ‘generic’

130. The quality of being generic refers to what is common to several species, and includes characteristics which belong to the
same class or family and which define the nature or attributes of that class or family. That is the case, for example, with
orange, a name applying to all fruits with a particular kind of shape, colour, smell and taste which distinguish them from
all other fruits. ([127](#Footnote127))

131. That character is attributable either to the word itself – in that it has always been generic – or to the fact that it has
gradually become generalised. Such names have either never had or have lost their indicative function and cannot therefore
be used to distinguish by reference to their origin.

132. Notwithstanding that the case-law of the Court provides no definition of ‘generic name’, ([128](#Footnote128)) I pointed out in the Opinion in *Canadane Cheese Trading and Kouri* that use of the term in relation to food products encompasses names which ‘form part of the general cultural and gastronomic
stock and may, in principle, be used by any producer’ (point 28). Thus, the term also covers words which are not linked to
production in a particular place and therefore to the provenance of the product but only to its characteristics, linked to
the fact that similar manufacturing processes are used. ([129](#Footnote129))

133. The term ‘generic’ can also be applied to names which originally had a geographical meaning but then lost that meaning because
the names underwent a process of generalisation; as a result such names are no longer used to describe a product with a particular
origin, from which it follows that their use is not reserved to undertakings situated in the region concerned.

134. The usual reason why a name comes into popular usage ([130](#Footnote130)) is that producers who are not established in its place of origin start to use the name, either on its own or with a ‘de-localising’
word (in the latter case the process is slowed down). Often, usage begins in areas which have seen the arrival of a large
influx of migrants, either because producers once again take up the activity they pursued in their country of origin and carry
on that activity in the host country, or to meet demand from recent arrivals who wish to eat their traditional foods. In both
cases, the specific aim of the producers concerned is to take advantage of the reputation which the product has already earned.
As the geographical link weakens, producers continue in good faith, believing that the name in question refers only to a type
of product having certain characteristics. The transformation is complete when the name refers to a category and is used freely.

135. Another factor which has a bearing on the process is the passivity of consumers. A name will decline if no action is taken
by consumers and the authorities in response to its misuse, whereas it will be strengthened if there is an appropriate reaction.
However, it must be recalled that protective measures can be weakened by a shortage of legal provisions, which did not exist
at all until very recently, and by apathy on the part of national courts. ([131](#Footnote131))

b)      Criteria for delimitation

136. Under the system provided for in the basic regulation, responsibility for determining whether a name is generic is assigned
to the Commission, which must make a decision in accordance with the procedure laid down, having regard to the opinion of
the Scientific Committee. That responsibility also falls, to a lesser extent, to the Council since, as I have already observed,
it is required under Article 3(3) to draw up a list of generic names identifying agricultural products or foodstuffs.

137. That system does not preclude a subsequent wide-ranging review by the Court of the lawfulness of the decision. The aim is
not that the Court should take the place of the Commission and analyse the extra-judicial grounds for permitting registration
of the name; instead the Court must establish whether the registration is lawful. ([132](#Footnote132))

138. The difficulty arises because the legal concept in question is indeterminate and must be assessed on a case-by-case basis,
and because registration of a designation of origin, in so far as it expresses ‘the historical, cultural, legal and economic
reality’ that attaches to the product, ([133](#Footnote133)) becomes more difficult the more popular the name concerned is and the more frequently it is used.

139. The basic regulation acknowledges that in most cases determination of whether a name is generic is an arduous and complicated
task. With a view to simplifying the task, the regulation provides two methods of delimitation, by requiring that a list of
common names be drawn up (Article 3(3)) and by setting out criteria for assessment (Article 3(1)). ([134](#Footnote134))

140. As I observed above, an agreement has yet to be reached regarding approval of a list of names which may not be registered
on the grounds that they are generic, ([135](#Footnote135)) which indicates the difficulty of the task. Accordingly, the other system of delimitation becomes all the more important,
and the mere fact that such a system exists demonstrates that ‘generic’ may not be defined as the opposite of ‘exclusive’.
([136](#Footnote136))

141. Moreover, the assessment must be made on the basis of ‘all factors’ but with reference to three ‘in particular’, namely, the
situation in the Member State in which the name originates and in areas of consumption, the situation in other Member States,
and the relevant national or Community laws. Therefore, there is nothing to preclude other factors from being taken into account.

i)      The situation in the Member State in which the name originates and in areas of consumption

142. That heading comprises two distinct elements which must not be permitted to overlap: the situation of the product in the place
of provenance and the situation in the place where it is consumed.

–       The situation in the State of origin

143. In *Exportur*, the Court drew attention to the importance of this criterion, stating that protection of a name extends to another Member
State only in so far as that name continues to be legitimate in the State of origin. However, when assessing that situation,
account must be taken not only of protective measures but also of other factors such as, for example, the extent of production
and consumption, the views of inhabitants, and the interest shown.

144. It is clear from the case-file that Greeks are unanimously of the opinion that ‘feta’ refers to a traditional national product
produced from a particular kind of milk using a specific process. An analysis of the information collected by the Commission
leads to the same conclusion.

145. The applicants do not contest those facts but draw attention to other factors which are undeniably of particular significance
in that the aim is not to extend from one country to another the protection of certain names, but rather to provide harmonised
legal protection throughout the Member States.

–       The situation in areas of consumption

146. It must, of course be pointed out that, although initially the consumers of a product come from the place in which the product
originates, usually, after a while, the product reaches consumers in other areas and the initial identification with that
place is lost. Frequently, a product can be purchased in many different areas which have no connection with the area where
it is produced or originates. That explains why, for the purpose of determining whether or not the name of a product is generic,
the perception of the name in those places is important.

147. The expression ‘areas of consumption’ refers to consumers. Academic legal writers have emphasised the importance of the opinion
of consumers with regard to classifying a name for legal purposes, ([137](#Footnote137)) since consumers act as the ultimate interpreters of the meaning a name has on the market. However, the primary issue in the
present cases is not the protection of consumers but rather the protection of industrial and commercial property rights, which
is enshrined in the Treaty.

148. At first sight, it appears that only Community areas of consumption need to be taken into account. It has been pointed out
that feta is also produced and marketed in the Balkans. Since Article 3 of the basic regulation requires that regard must
be had to ‘all’ factors having a bearing on the classification of a name, I will restrict the assessment to the situation
in regions of the Community for the time being and consider later the situation elsewhere.

149. Second, areas of consumption must also include areas of provenance where, as in this case, the two coincide. Thus, regard
must be had to the opinion of Greek consumers, amongst whom the name ‘feta’ enjoys a high reputation, thereby assisting producers
to retain a highly important customer base.

150. From that multiple point of view, Greek consumers identify feta as being a national product and a high proportion of consumers
in the other Member States associate the cheese with Greece, since the labelling contains express or implied references to
Greek culture, although, exceptionally, labels, books, magazines, and other non-specialised publications exist which do not
contain such references.

ii)    The situation in other Member States

151. There is no requirement that the product must be consumed everywhere, and this factor therefore affects two spheres. The first
is the general situation in countries other than the one in which the name originates, and the second is the situation in
States where the cheese is also produced.

–       The general situation in other States

152. In the light of the information obtained in the Eurobarometer survey and of the results of the questionnaire sent by the Commission,
it appears that, as in areas of consumption, where the name ‘feta’ is recognised, individuals and publications in the first
sphere described associate the cheese with Greek culture. That is not the case in Denmark and Germany, or, albeit to a lesser
extent, in France, because in those countries there is large-scale production of the cheese, a factor which must be considered
in relation to the second sphere.

153. In all other respects, one statistic must be emphasised: one in five people asked is familiar with name. Had the name become
generic, would not a greater number of those surveyed have recognised it? It must be recalled that at stake is the protection
of industrial and commercial property rights throughout the Community, not merely in the places where feta is currently produced
and consumed, since it is likely that, in the future, consumption of the cheese will increase. In other words, familiarity
with the name must be widespread and not just confined to the territory of those States involved in the commercial production
of feta.

–       The situation in States which produce the cheese

154. As concerns the second sphere, in *Feta* the Court warned of the need to take account of products marketed under that name in Member States other than the State of
origin (paragraph 96).

155. In support of that assertion, the Court relied on the second indent of Article 7(4) of the basic regulation, which refers
to that case as a ground of objection to registration. However, that provision is intended to apply to registration under
the normal procedure, ([138](#Footnote138)) whereas at issue in this case is a name already protected under national rules for which protection at Community level was
effected under the simplified procedure. The two situations are therefore different.

156. In the light of the foregoing, I believe that the assertion made by the Court in *Feta* was intended to draw attention to a particular factor, namely, the situation in other Member States, not with the intention
of giving that situation priority over other factors but rather to prevent its importance from being minimised, which is what
the Commission initially did. Accordingly, the view expressed in the judgment must be qualified, since, otherwise, (a) the
inaction theory would be accepted outright and that would fail to take account of the fact that many undertakings were unable
to enforce their legal rights prior to the entry into force of the legislation concerned, as a result of which they were placed
at a serious disadvantage because a process of generalisation, resulting merely from infringement of the name by unauthorised
third parties, was permitted to take place; (b) there would be a conflict with previous case-law, since in *SMW Winzersekt*, which dealt with the protection of the names of wines, the Court held that, in order to achieve the objective of designations
of origin, it was essential ‘… that the producer should not derive advantage, for his own product, from a reputation established
for a similar product by producers from a different region …’ and that ‘… the final consumer should receive sufficiently accurate
information to enable him to form an opinion of the products in question’; and, finally, (c) attaching greater weight to that
factor would disadvantage those goods whose dynamics mean that they enter markets in other regions shortly after first appearing
on a particular market, since, using the most recent technological advances, competitors would imitate those goods and use
the same name.

157. In short, the reference to fair trade in goods with the same name must be construed in accordance with the system of protection
laid down. That global approach means simply that, in cases such as the one before the Court, regard must also be had to the
situation in other Member States. However, under no circumstances will that situation alone suffice to preclude registration
applied for under the procedure laid down in Article 17 of the basic regulation.

158. Turning now to the factor under consideration, it must be noted that in Denmark, Germany and France, in particular, a cheese
is produced under the name ‘feta’ using a different type of milk and a different production process from the ones used in
Greece.

159. In that regard, it is useful to summarise the points set out in points 61 and 62 of the Opinion in *Canadane Cheese Trading and Kouri*:

(a)      The kind of milk used means that, since ewes’ milk and goats’ milk have different chemical and organoleptic characteristics
from cows’ milk, the following differences are manifested in the resulting cheese:

–       The use of ewes’ milk gives rise to a pure white cheese, while the use of cows’ milk leads to a yellowish white colour which
can only be removed by chemical substances.

–       When ewes’ milk is used, the cheese has an oily, salty and slightly acid taste and a strong aroma, whereas feta made from
cows’ milk has less aroma and a sweeter taste.

–       The use of cows’ milk gives the cheese fewer holes than ewes’ milk feta because the effect of the brine is different.

(b)      Although the cheese matures faster with ultra-filtration, since the whey is removed before the curds are formed, it does not
appear that the difference in production processes has a significant effect.

iii) The relevant national and Community legislation

160. The basic regulation requires that legislation in force in the Member States and in the Community be taken into consideration.

–       Legislation of the Member States

161. The aim of the reference to national measures is to establish whether the name concerned is protected in the country of origin
and in other States, irrespective of the turnover it yields. In that regard, it is important to recall a matter which I have
already mentioned, namely that prior to the Community legislation most Member States did not have legal measures in place
for protecting geographical indications, which, to a certain extent, reduces the importance of this factor.

162. Indeed, the Greek legislation of the 1980s was restricted to setting out in written form the traditional use of the name,
which dates back several centuries, and to laying down rules for the production and marketing of feta.

163. Measures concerning feta were also adopted in Denmark (and in the Netherlands where they remained in force for only a short
time), but those measures do not impose restrictions on trade since it would be contradictory to protect a name which the
Danish Government has argued is generic.

164. It should also be pointed out that Austria reserves the name to cheese originating in Greece, pursuant to the bilateral agreement
concluded on 20 June 1972.

–       The Community legislation

165. In this regard, the criteria taken into account when assessing whether a name has become generic have included the Common
Customs Tariff nomenclature and the Community legislation on export refunds.

166. However, having regard to the aim pursued, those factors cannot be taken as defining criteria in the field of industrial property
rights. ([139](#Footnote139)) The same applies to provisions adopted in the context of the common agricultural policy which are designed to maintain certain
prices. When such provisions are adopted and implemented, no assessment is made of whether the persons to whom they are addressed
are using a particular name lawfully. At most, the provisions concerned could be regarded as having the potential to provide
guidance which is in no way conclusive.

167. An example will illustrate the effects of stringent application of the combined nomenclature. ([140](#Footnote140)) The *Mozartkugeln* is a famous Austrian speciality made from marzipan and nougat covered in milk chocolate. If the *Mozartkugeln*  were classified as a chocolate-based product, notwithstanding that it contains only a minimum amount of chocolate, it would
be excluded from the basic regulation on the ground that it is not referred to in Annex I to the Treaty. If the *Mozartkugeln* were classed as a cake it would appear in the list in Annex I to the basic regulation, even though it contains some chocolate.

iv)    Other factors

168. It is important to bear in mind the obligation to take account of all relevant factors. Academic legal writers have suggested
a number of examples: inclusion of the word concerned in reference works, such as dictionaries, travel books and restaurant
guides; ([141](#Footnote141)) turnover inside and outside the designated region or the region to which the name is principally connected; ([142](#Footnote142)) and the fact that the name is classified as generic in an international treaty ratified by at least one of the Member States.
([143](#Footnote143))

169. In the case before the Court, two factors must be accorded particular emphasis, namely, the situation in non-member countries
and the temporal aspect.

–       The situation in non-member countries

170. The need to establish the situation in non-member countries is derived from the reference to ‘areas of consumption’ in Article
3(1) of the basic regulation and from Article 12, which provides that the regulation may apply ‘to an agricultural product
or foodstuff from a third country’, provided that certain conditions are met.

171. In these proceedings for annulment it is common ground that white cheese in brine resembling feta is produced in other European
countries, such as Bulgaria. Similar kinds of cheese are produced in Iran and Saudi Arabia, using ewes’ milk, and in the United
States and New Zealand, where cows’ milk is normally used. ([144](#Footnote144))

172. Accordingly, the perception of the name in those countries may serve as a parameter for establishing the correct delimitation
of the name ‘feta’, although, in the light of the aim of the protection concerned, it is important not to exaggerate the influence
of that perception, notwithstanding that, in common with other names, the territorial scope of ‘feta’ has been extended pursuant
to international agreements. ([145](#Footnote145))

–       The temporal situation

173. Even where it appears that the situation in the Member State by which the application for registration is made relates to
the present, recollection of the past also has an effect on the perception of whether the name has become generic, particularly
with regard to establishing whether a name has always been generic. Historical perspective has a significant bearing on this
question.

174. Recalling the considerations I set out in the Opinion in *Canadane Cheese Trading and Kouri*, it is important to point out that the name ‘feta’ is of Italian origin and is derived from ‘fetta’, which means slice, slab
or chunk. It was brought into Greece through the influence of Venice and gained acceptance in the 19th century to designate
the traditional white cheese in brine which has been made since ancient times in most of Greece and other parts of the Balkans.

Homer’s *Odyssey* recounts how Polyphemus ‘… sat down to milk his ewes and bleating goats, which he did methodically, putting her young to
each mother as he finished. He then curdled half the white milk, gathered it all up, and stored it in wicker baskets ...’.
([146](#Footnote146)) In this way the Cyclops, Polyphemus, made the cheese which Ulysses and his men found in the cave. It is not surprising that,
in using this method of making cheese, which is very similar to that traditionally used in modern Greece, Polyphemus was unaware
of the legal problems which the free movement of that product in the European Community was going to cause at the end of the
20th century, not only because he could not have predicted, 27 centuries in the future, the complex stratagems of protected
names, but also because of his own nature, as the Cyclopes are beings with no idea of justice and the law. ([147](#Footnote147))      *The*      *Odyssey* also alludes to the story of the daughters of Pandareus, who in olden times were ‘rapt away by the Demons of the Storm’ after
‘the gods had robbed them of their parents and left them orphaned in their home; and yet they lived, and flourished on the
cheese, the sweet honey, and the mellow wine that Aphrodite brought them’. ([148](#Footnote148))

Another of Homer’s poems, *The Iliad*, shows the importance of cheese in the Greece of the 8th century BC. ([149](#Footnote149))

Feta is made from ewes’ milk or a mixture of ewes’ and goats’ milk by the natural straining method, without applying pressure.
The production of feta was not regulated by the Greek authorities until 1988 by which time different local or regional variants
had come into existence (points 14 to 16 of the Opinion).

175. The fact that there were no technical specifications at international level meant that a different, more modern and competitive
method of production of feta could be developed in different Member States and in other countries, aimed initially at satisfying
demand from Greek immigrants, as the representatives of Germany and France observed at the hearing. In the second half of
the 20th century, Denmark, Germany and the Netherlands began to produce a cheese from cows’ milk using an industrial ultra-filtration
process; that cheese was marketed under the name ‘feta’. In France, a cheese called ‘feta’ is made from cows’ milk, while
in some areas, such as the island of Corsica and some parts of the Massif Central, it is made from ewes’ milk, although in
the latter region feta is made to use up the milk not needed for the production of Roquefort (point 17 of the Opinion).

176. Why did those producers decide to give the name ‘feta’ to white cheese in brine made using cows’ milk? There can be no doubt
that they did so to ensure that the cheese had a name which meant something to consumers. In short, as the Commission asserted
at the hearing, they were looking for a name which could increase sales. ([150](#Footnote150))

c)      Analysis of the criteria and effects

177. The basic regulation does not list in order of importance the relevant factors for determining whether a name is generic,
so the question arises whether any of the factors take precedence over the others.

178. In the *Exportur* judgment, which was delivered before the basic regulation entered into force, the Court took the view that greater weight
should be attached to the situation in the place of origin, and I applied that case-law in the Opinion in *Canadane Cheese Trading and Kouri*. ([151](#Footnote151))

179. However, in *Feta*, the Court amended that case-law and held that equal weight must be attached to all of the factors specifically referred
to in the relevant provision, ([152](#Footnote152)) particularly the situation in other Member States. Thus, none of the factors take precedence, from which it follows that
they must all be taken into account. Moreover, other factors may also be considered. Provided reasons are given, there is
nothing to preclude the attachment of greater weight to a particular factor during the assessment, since the instrumental
nature of the factors, whose purpose is to delimit an indeterminate legal concept, makes them dependent on their ability to
achieve that objective.

180. Following that line of reasoning, the question arises as to whether the name ‘feta’ has changed to the extent that its meaning
has expanded to designate a whole family of cheeses, irrespective of their origin, method of production, or ingredients.

181. In addition to a separate analysis of each factor, it is essential to undertake an overall assessment, taking into account:

–       All the facts directly and indirectly connected to the case, since sometimes, as in the present case, the historical perspective
becomes vitally important.

–       The factual and legal arguments of the parties and the evidence adduced in the proceedings with regard to the contested registration.

–       The opinion of the Scientific Committee, issued by highly qualified professionals (Article 3 of the Decision establishing
that committee). ([153](#Footnote153))

–       The opinion poll carried out at the relevant time and the replies provided to the questionnaire sent by the Commission. ([154](#Footnote154))

182. Those considerations lead me to conclude that the name has not become generic at Community level or in Greece itself, as I
argued in the Opinion in *Canadane Cheese Trading and Kouri*, since the name ‘feta’ is inextricably associated with a specific food, that is, a cheese produced in a large part of Greece
from ewes’ milk or from a mixture of ewes’ milk and goats’ milk, using the natural craft method of straining without applying
pressure.

183. To refuse to authorise the monopoly of the name, including in cases where the cheese is produced by the same method elsewhere,
would be on a par with depriving an inventor of his patent rights on account of the fact that someone else came up with a
similar creation after registration of the invention. ([155](#Footnote155))

2.      ‘Feta’ as a traditional name

184. If the Court agrees with the foregoing considerations and holds that the name is not generic, it will be necessary to turn
to Article 2(3) of the basic regulation, pursuant to which ‘[c]ertain traditional geographical or non-geographical names designating
an agricultural product or a foodstuff originating in a region or a specific place, which fulfil the conditions referred to
in the second indent of paragraph 2(a) shall also be considered as designations of origin’.

185. Since ‘feta’ does not refer directly to a specific place, it is necessary to establish whether the name fulfils the requirements
laid down for geographic indications, namely, whether it is traditional, whether it refers to a food originating in a region
or a specific place, whether its quality and characteristics are essentially or exclusively due to the geographical environment,
and whether its production, processing and preparation take place in a defined area for the purpose of obtaining a particular
end result.

a)      The traditional nature of the name

186. Tradition evokes the passing down from generation to generation of information, teachings, stories, rites and customs. Behaviour
which is ruled by ideas, standards and practices from the past is described as traditional.

187. In accordance with the points I made regarding the perception of a name in relation to time, there can be no doubt that the
word ‘feta’ displays the characteristics required for it to be regarded as ‘traditional’ for the purposes of Article 2(3)
of the basic regulation. However, that finding alone is not a sufficient basis for registration. The other requirements laid
down must also be met.

b)      The name of a food originating in certain geographical areas

188. As I stated in the Opinion in *Canadane Cheese Trading and Kouri*, in the same way that the names ‘grappa’, ‘ouzo’ and ‘cava’ allude indirectly to Italian, Greek and Spanish origins and are
linked to specific regions without containing the corresponding place name, the name ‘feta’ is associated with a cheese made
in Greece, even though the word ‘fetta’ is etymologically of Italian origin (point 73).

189. The difficulty arises because origin denotes ‘the name of a region, a specific place or, in exceptional cases, a country’
(Article 2(2) of the basic regulation), whereas in this case the name refers to a product or food originating (note that it
does not say ‘exclusively originating’) ‘in a region or a specific place’ (Article 2(3) of the basic regulation), since ‘feta’
is linked to a large area of Greece, both historically and at the present time. ([156](#Footnote156))

190. I should like to make a number of observations aimed at resolving that difficulty:

(a)      Article 2(2) applies to direct names and therefore requires a link with an area, which can, exceptionally, be an entire country.
By contrast, Article 2(3) governs indirect names and links the product, rather than the name itself, with the geographical
location. The two provisions therefore relate to different situations.

(b)      It makes no sense to link a geographical area to a traditional name when the provision itself rules out any spatial meaning,
which, in most cases, is absent.

(c)      Article 2(3) does not refer to ‘a country’, which the applicants claim means that it is impossible for a traditional name
to encompass such an area. However, another interpretation is possible, namely that the absence of such a reference means
that there is no such maximum territorial limit. To interpret it any other way would preclude areas in a number of States,
or even two or more States, from being regarded as a ‘region’. ([157](#Footnote157)) What is important is that the foodstuff, rather than its name, is linked to a defined area, thereby preventing a lack of
spatial clarity.

(d)      Finally, there appears to be a consensus that the concept of ‘region’ as used by the Community legislature does not encompass
the administrative sense of the word. ([158](#Footnote158))

191. In the light of those observations, it is appropriate to state that ‘feta’, as the name of a cheese originating in a wide,
but specific, geographical area fulfils the requirement in question. The size of the area of provenance is immaterial; the
decisive factor is that the area has certain features which give rise to the particular characteristics of the cheese.

192. That view does not contradict the approach taken in the *CMA* judgment, in which the Court pointed out, at paragraph 27, that the *Exportur* judgment acknowledged that the protection of geographical indications ‘may, under certain conditions, fall within the protection
of industrial and commercial property for the purposes of Article 36 of the Treaty’, before going on to hold that a scheme
under which Germany had conferred a quality label on products produced on its territory which fulfilled certain requirements
could not be considered as a geographic indication capable of justification under Article 36 of the Treaty. It cannot be inferred
from that passage of case-law that an indication of source is absolutely precluded from covering a whole country; moreover,
the dispute in the present case concerns a traditional name with certain specific features which are different to the ones
at issue in *CMA*.

c)      The reason for the quality and characteristics of feta and the geographical delimitation of its production, processing and
preparation

193. On the subject of traditional names, Article 2(3) of the basic regulation refers to the second indent of Article 2(2)(a),
pursuant to which the quality or characteristics of a product must be essentially or exclusively due to a particular geographical
environment with its inherent natural and human factors, and the production, processing and preparation of that product must
take place in a defined geographical area. That requirement addresses the need for a clear link between the product and its
area of origin, stipulated in the two conditions laid down in the aforementioned indent.

i)      Quality attributable to the geographical environment

194. Assuming that it is accepted that ‘feta’ designates a cheese produced in a specific area, it is still necessary to establish
whether those conditions are met with regard to the quality and characteristics of feta.

195. In that assessment, the following may be cited as factors giving rise to the particular nature of the cheese: the climate
of the zone of production; the richness and diversity of its vegetation; the milk used in the production of the cheese, which
is obtained from ewes and goats reared in accordance with long-established custom; and the fact that the cheese is made by
experienced craftsmen using natural straining without applying pressure.

196. The determination of whether there is a link between those elements and the specific characteristics of the product requires
a global assessment which takes into account all those factors, paying special attention to the interrelation between them
to obtain an overall impression. ([159](#Footnote159))

197. Accordingly, contrary to the view of the applicants, the quality and characteristics of feta are attributable to the areas
of Greece where the cheese is produced, since a basic link has been established between its colour, aroma, texture, taste,
ingredients and inherent properties, on the one hand, and the natural environment in which it originates, the culture which
supports it, and the traditional production process used in Greece, on the other.

198. That finding is not weakened by the fact that there are certain differences between feta from different regions of Greece
or by the lack of uniformity in other aspects, such as the orography and the quality of the pasture, since the common features
predominate and the basic catalysts are the same. The delimitation complained of by the applicants actually bolsters that
view, in that the territory of the Greek islands has been excluded, with the exception of the *nomos* of Lesbos. ([160](#Footnote160)) The sheep and goats of Thrace and Thessaly are very similar to one another but are strikingly different from Scottish, French
and Spanish sheep and goats. The same applies to the food they eat, the mountains or meadows where they live, the climate
they experience, and all the other conditions which have a bearing on how the cheese comes into being. In that connection,
I should like to quote again from *Palomar* by Italo Calvino, in which the experiences of the hero in a shop in Paris is recounted in masterly fashion: ‘behind each
cheese there is a different grass under a different sky: fields encrusted with salt deposited every day by the tides of Normandy;
fields perfumed with aromas of sun and wind from Provence; there are different cattle with their cowsheds and seasonal moves
to new pastures; there are secrets of production handed down over the centuries. This shop is a museum: when visiting it,
Mr Palomar feels, behind every object displayed, the presence of the civilisation which gave it shape, as if he were in the
Louvre’. ([161](#Footnote161))

ii)    Production, processing and preparation in a defined area

199. The requirement that the entire production process for the product be carried out in a defined area does not extend to the
name given to the product, which may be devoid of any geographical connotations.

200. The aim is to preclude the weakening of the link between the product and the environment concerned through the division of
the stages of production between different areas or through their association with unspecified places.

201. In the case of feta, there is little doubt that that requirement is fulfilled, since it is laid down in the Greek legislation,
albeit with a slight modification in that the region where the cheese is produced is wider in area than the one specified
for the sourcing of the raw materials. It is important to note that the area of origin of the milk used is limited, and that
the milk must come from indigenous breeds of animals which have been raised using traditional methods and have grazed on pasture
in the authorised regions. However, that disparity is not particularly significant, in view of the fact that the basic regulation
does not require absolute geographical identity and permits regions which are organised in concentric circles, provided that
they are defined with total clarity.

202. The size of the region specified does not appear to be of fundamental importance, since there is nothing to prevent it from
covering the whole of the territory of peninsular Greece, notwithstanding that that might give rise to a certain amount of
diversity in the product. The essential factor is that the different stages of production take place in a specific area, and
that has been shown to be the case in these proceedings.

d)      Effects

203. The analysis carried out above confirms that the contested regulation is lawful in so far as it classifies the word ‘feta’
as a name designating a cheese which originates in a significant part of Greece, has qualities and characteristics attributable
essentially or exclusively to the geographical environment, and the production, processing and preparation of which take place
in a defined area.

204. The size of the area gives rise to a number of variations in the feta, but all variants of the cheese are substantially the
same in that they have elements in common which reinforce the specific character of feta.

205. It is clear from the foregoing considerations that the name ‘feta’ is not generic because, as a traditional name, it satisfies
the requirements for it to be considered as a designation of origin, eligible for protection throughout the whole territory
of the Community on the ground that it is a form of industrial and commercial property. Accordingly, the pleas for annulment
put forward in these proceedings must be dismissed and the contested regulation must be held to be valid.

VI –  **Costs**

206. In accordance with Article 69(2) of the Rules of Procedure, since their claims have been unsuccessful and the Commission has
applied for costs, the two applicant Member States must be ordered to pay their own costs and those of the Commission. Pursuant
to Article 69(4), the States which intervened in the proceedings must bear their own costs.

VII –  **Conclusion**

207. In the light of the foregoing considerations, I propose that the Court:

(1)      dismiss the applications lodged by the Federal Republic of Germany and the Kingdom of Denmark for annulment of Commission
Regulation (EC) No 1829/2002 of 14 October 2002 amending the Annex to Regulation (EC) No 1107/96 with regard to the name ‘Feta’.

(2)      order the applicant States to pay their own costs and those incurred by the Commission.

(3)      declare that the French Republic, the United Kingdom of Great Britain and Northern Ireland and the Hellenic Republic must
bear their own costs.

---

[1](#Footref1) – Original language: Spanish.

---

[2](#Footref2)  – Case C-317/95 *Canadane Cheese Trading and Kouri* [1997] ECR I-4681.

---

[3](#Footref3)  – Joined Cases C-289/96, C-293/96 and C-299/96 *Denmark, Germany and France* v *Commission* [1999] ECR I-1541, ‘*Feta*’.

---

[4](#Footref4)  – Regulation of 14 October 2002 amending the Annex to Regulation (EC) No 1107/96 with regard to the name ‘Feta’ (OJ 2002
L 277, p. 10).

---

[5](#Footref5)  – *Jerusalem Bible,* 1 Kings 5, 6 and 7, edited by E. Nácar and A. Colunga, version translated directly from the original languages, Desclee de
Brouwer, Bilbao, 1975, pp. 371-373. The Bible also refers to certain products of recognised quality which are distinguished
by reference to their geographical origin, such as bulls from Bashan, an area in the north of the Jordan Valley where particularly
strong, fierce animals were bred (Psalms 22: 13, p. 730); sheet silver from Tarsus and gold from Ophir (Jeremiah, Lamentations
10: 9, p. 1144); and the vineyards of Engedi (Song of Songs 1: 14, p. 914).

---

[6](#Footref6)  – Harte Bavendamm, H., ‘Geographical Indications and Trademarks: Harmony or Conflict’, *Symposium on the International Protection of Geographical Indications,* Somerset West, South Africa, September 1 and 2, WIPO, Geneva, 1999, p. 59.

---

[7](#Footref7)  – References from Cortés Martín, J.M., *La protección de las indicaciones geográficas en el comercio internacional y comunitario,* Ministerio de Agricultura, Pesca y Alimentación, Madrid, 2003, pp. 25 and 26.

---

[8](#Footref8)  – Virgil, *The Aeneid,* translation and notes by Javier Echave-Susaeta, Gredos, Madrid, 1977, first reprint. Dodona was a place in Epirus and the
site of an oracle to Zeus, where copper vessels were made which were used for making prophecies by interpreting the noise
the vessels made when the wind moved them in the branches of the large oak tree in which they hung (Book III, line 465, p.
223).

---

[9](#Footref9)  – Ibid. Book III, line 484, p. 224.

---

[10](#Footref10)  – ‘Those who do not know how to recognise Tyrian purple or skins which absorb vermilion from Aquino will not experience
a more imminent or certain danger in their bones than the inability to distinguish truth from lies’, Horace, Epistle X; XVII,
Ode I, XXI and XXIX.6, cited by Plaisant, M. and Jacq., F., *Traité de noms et appellations d’origine,* Librairies Techniques, Paris, 1974, p. 1.

---

[11](#Footref11) – Although it appears that in Rome there was a degree of protection under the *Lex Cornelia de Falsis,* which protected traders against the illegal use of their names in the form of an *actio iniarium* or an *actio doli*. See Franceschelli, R., *Trattado di Diritto Industriale,* Giuffrè, Milan, 1973, p. 77 et seq.

---

[12](#Footref12) – Ferragio, G.M., ‘Denominazione di origine, indicazione di provinienza e d´intorni’, *Rivista di Diritto Industriale,* 1990, number 2, p. 224 et seq.

---

[13](#Footref13) – In some instances, the collective mark of a product consisted of the initial of the name of the town where it was made
or its coat of arms; for example, the letter A indicated tapestries from Audernarde; the letter B identified goods from Brussels;
while two Es back-to-back identified goods from Enghien. See Cortés Martín, J.M., op. cit., p. 27, footnote 8, in which he
cites Braun, A., *Nouveau traité des marques de fabrique et de commerce, droit belge, droit international et droit comparé,* Brussels, pp. XXIII-XXIV.

---

[14](#Footref14) – Coiné, H., *Derecho privado europeo,* volume 2, ‘El siglo XIX’, Fundación Cultural del Notariado, Madrid, 1996, pp. 213-214, mentions silk produced in Lyon, linen
from Bielfield and scythes from Erzberg in Styria.

---

[15](#Footref15) – As a result of the phylloxera epidemic which attacked vineyards in the second half of the 19th century and the start of
the 20th century. In that connection see Girardeu, J.M., ‘The Use of Geographical Indications in a Collective Marketing Strategy:
The Example of Cognac’, *Symposium on the International Protection of Geographical Indications*, op. cit., p. 70.

---

[16](#Footref16) – That approach can be found in the French Law of 1 August 1905 on the prevention of fraud in the sale of goods and the prevention
of the illegal imitation of agricultural products and foodstuffs. However, it was not until the enactment of laws protecting
specific products, such as the Law of 26 July 1925 safeguarding the name ‘Roquefort’, and the horizontal rules governing certain
types of goods, such as the Law of 30 July 1935 protecting designations of origin in the wine sector, that such protection
became more individualised. In Spain the Estatuto del Vino (Wine Statute), approved by the Royal Decree of 8 September 1932,
recognises the autonomy of the designation of origin as a distinguishing sign.

---

[17](#Footref17) – Cervantes, M. de, *Don Quixote,* edited, introduced and with notes by Martín de Riquer, RBA Editores, Barcelona, 1994 (Part One, Chapter IV, p. 128), mentions
the wooden tools used in spinning to twist the thread and wind the yarn, which were highly regarded when they were made of
beech from the Guadarrama mountains.

---

[18](#Footref18) – Ibid.*,* Part Two, Chapter XXXVIII, p. 905.

---

[19](#Footref19) – Ibid.*,* Part Two, Chapter XLIX, p. 981.

---

[20](#Footref20) – Ibid.*,* Part Two, Chapter XXXII, p. 865.

---

[21](#Footref21) – Ibid., Part Two, Chapter XXX, p. 876.

---

[22](#Footref22) – Vega y Carpio, Lope de, *El caballero de Olmedo,*  edited by Francisco Rico, Cátedra, Madrid, 1981, Act I, line 103, p. 111.

---

[23](#Footref23) – Vega y Carpio, Lope de, *Peribáñez y el comendador de Ocaña,* edited by Juan Mª Marín, Cátedra, Madrid, 1979, Act I, Scene XIII, line 677, p. 89.

---

[24](#Footref24) – Ibid*.,* Act I, Scene XIII, line 739, p. 91.

---

[25](#Footref25) – Shakespeare, W., *Hamlet, Prince of Denmark*, Act I, Scene IV.

---

[26](#Footref26) – Ibid., Act V, Scene II.

---

[27](#Footref27) – Proust, M., *À la recherche du temps perdu,* Volume III, *Sodome et Gomorrhe,* p. 330.

---

[28](#Footref28) – Ibid., Volume III, *La prisonnière,* p. 542.

---

[29](#Footref29) – Carpentier, A., *La consagración de la primavera,* Siglo XXI de España Editores, 7th edition, Madrid, 1979, Part III, Chapter 18, p. 219.

---

[30](#Footref30) – Ibid., Part VII, Chapter 35, p. 463.

---

[31](#Footref31) – Ibid., Part VII, Chapter 36, p. 480. In the same novel, one of the characters, Teresa, is described as possessing the unusual
ability to detect ‘trickery or pilfering in the purchase of caviar, the origin of foie-gras, and the authenticity of wines
from great producers and great vintages’. The same woman rebukes her cook with the words, ‘You know that my compatriots know
nothing about *milésimes* because they couldn’t care less whether they drink coca-cola or pepsi-cola, but don’t go provoking me with your Mouton-Rothschild
bottles filled with cheap Galician red wine. And the next time you try to pass off a second-rate champagne as a Dom Perignon,
I’ll send you back to France …’ (Part III , Chapter 18, p. 219).

---

[32](#Footref32) – Maroño Gargallo, M.M., *La protección jurídica de las denominaciones de origen en los Derechos español y comunitario,* Marcial Pons, Madrid, 2002, p. 176.

---

[33](#Footref33) – ‘… the effect of industrial property rights is to confer an exclusive right in relation to an entire market, the latter
being defined as the territory within which there is free movement of goods … when the market expands and becomes supranational,
but the monopoly created by the industrial property rights does not adapt to the new environment, conflict inevitably arises
…’, Bercovitz, A., ‘La propiedad industrial e intelectual en el Derecho comunitario’, in the collective work *Tratado de Derecho Comunitario Europeo,* Volume II, Civitas, Madrid, 1986, p. 532.

---

[34](#Footref34) – Article III-154 of the Treaty establishing a European Constitution (OJ 2004 C 310, p. 1) also cites that as one of the
grounds justifying prohibitions or restrictions on imports, exports or goods in transit.

---

[35](#Footref35) – OJ, English Special Edition 1970(I), p. 17.

---

[36](#Footref36) – OJ 1979 L 33, p. 1. Similar wording is used in Article 18(2) of Directive 2000/13/EC of the European Parliament and of
the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation
and advertising of foodstuffs (OJ 2000 L 109, p. 29), which repealed Directive 79/112.

---

[37](#Footref37) – It will all depend on which definition prevails: the traditional one which covers products whose characteristics are essentially
attributable to natural factors in the area of origin, or a wider definition which does not take into account those particular
features. In that way, the retention of designations of origin for other goods is not precluded. See Pellicer, R., ‘Primeros
pasos de una política comunitaria de defensa de la calidad de los productos alimenticios. Reglamento sobre la “especificidad”
y Reglamento sobre denominaciones de origen e indicaciones geográficas’, *Gaceta Jurídica,* B-83 and B-84, May 1993, pp. 13 and 15, respectively; in particular, B-84 p. 16.

---

[38](#Footref38) – OJ 1992 L 208, p. 1.

---

[39](#Footref39) – Council Regulation (EC) No 692/2003 **of 8 April 2003 amending Regulation No 2081/92** (OJ 2003 L 99, p. 1) is aimed, albeit tentatively, in that direction, stating that, ‘[t]o meet the expectations of some producers,
it has also proved necessary to extend the list of agricultural products referred to in Annex II to Regulation (EEC) No 2081/92.
It is also appropriate to extend the list referred to in Annex I to the said Regulation to include foodstuffs resulting from
products in Annex I to the Treaty which have only undergone a slight transformation’ (first recital).

---

[40](#Footref40) – OJ, English Special Edition 1959-1962, p. 123.

---

[41](#Footref41) – OJ 1999 L 179, p. 1. Its predecessors were Regulation (EEC) No 816/70 of the Council of 28 April 1970 laying down additional
provisions for the common organisation of the market in wine (OJ, English Special Edition 1970(I), p. 234) and Regulation
(EEC) No 817/70 of the Council of 28 April 1970 laying down special provisions relating to quality wines produced in specified
regions (OJ, English Special Edition 1970(I), p. 252). Those regulations were replaced, respectively, by Council Regulations
(EEC) No 337/79 and (EEC) No 338/79, both of 5 February 1979 (OJ 1979 L 54, pp. 1 and 48), which were in turn replaced by
Council Regulations (EEC) No 822/87 and (EEC) No 823/87, both of 16 March 1987 (OJ 1987 L 84, pp. 1 and 59), which were repealed
by Regulation No 1493/1999, currently in force.

---

[42](#Footref42) – In accordance with Council Regulation (EEC) No 1576/89 of 29 May 1989 laying down general rules on the definition, description
and presentation of spirit drinks (OJ 1989 L 160, p. 1), and with Council Regulation (EEC) No 1601/91 of 10 June 1991 laying
down general rules on the definition, description and presentation of aromatised wines, aromatised wine-based drinks and aromatised
wine-product cocktails (OJ 1991 L 149, p. 1), geographical designations are reserved exclusively for the products concerned,
by reference to the area where ‘they acquired their character and definitive qualities’ (Articles 5(3)(b) and 6(2)(b), respectively).

---

[43](#Footref43) – In accordance with Article 2(1)(a) of that directive, its aim was to protect purchasers against any deception or confusion
arising as a result of the labelling of goods. The equivalent in the sine sector was Council Regulation (EEC) No 2392/89 of
24 July 1989 laying down general rules for the description and presentation of wines and grape musts (OJ 1989 L 232, p. 13),
which was repealed by Regulation No 1493/1999.

---

[44](#Footref44) – Salignon, G., ‘La jurisprudence et la réglementation communautaires relatives à la protection des appellations d’origine,
des dénominations géographiques et des indications de provenance’, *Revue du Marché Unique Européen,* No 4, 1994, p. 107.

---

[45](#Footref45) – The Commission had announced that objective in 1985 in the Green Paper on the future of European agriculture (Bull. EC
7/8-1985, point 1.2.1 et seq., and COM(85) 333 final), and in the Communication on the completion of the internal market:
Community legislation on food products (Bull. EC 11-1985, point 2.1.18 and COM(85) 603 final).

---

[46](#Footref46) – Particularly in Case 120/78 *Rewe-Zentral* [1979] ECR 649, ‘*Cassis de Dijon*’, which I will discuss later.

---

[47](#Footref47) – That proposal was set out in a memorandum sent to the Council by the French Government in January 1988 and entitled ‘Contribution
to the completion of the Internal Market in foodstuffs’, in which, in addition to proposing that the protection of designations
of origin for foodstuffs should be harmonised, urged the Commission to continue drawing up vertical harmonising measures (particularly
for basic products), to introduce at Community level a system of recognition of speciality foods forming part of the culinary
traditions of each Member State, and to reach an agreement on quality certification. See Brouwer, O., ‘Community Protection
of Geographical Indications and Specific Character as a Means of Enhancing Foodstuffs Quality’, *Common Market Law Review*, No 28-1991, p. 618.

---

[48](#Footref48) – For example, the Commission interpretative communication on the names under which food products are sold (OJ 1989 C 271,
p. 2).

---

[49](#Footref49) – The Parliament adopted a number of resolutions, most notably the Resolution of 28 April 1989 proposing the implementation
in the Community of a system of protection for designations of origin, although it was confined to cheeses.

---

[50](#Footref50) – On the same date, the Council adopted Regulation (EEC) No 2082/92 on certificates of specific character for agricultural
products and foodstuffs (OJ 1992 L 208, p. 9), whose objective is also to implement a system for distinguishing between products
on the market so that certain producers may increase their sales or improve their margins, by creating a traditional system
of registration and labelling for products which have recognised specific features but which, unlike products covered by designations
of origin and geographical indications, have no link, in terms of production or manufacture, to a particular place. That system
is to exist in conjunction with national rules on certification.

---

[51](#Footref51) – Maroño Gargallo, M.M., op. cit., p. 217.

---

[52](#Footref52) – Cited in footnote 2, point 36. See also point 42, which sets out the consequences of registration under the basic regulation.

---

[53](#Footref53) – That wording contains a definition of the concept similar to the one traditionally laid down in international agreements
and national legislation. The wording of Article 2(2) echoes the definition set out in Article 2(1) of the Lisbon Agreement
for the Protection of Appellations of Origin and their International Registration of 31 October 1958, revised at Stockholm
on 14 July 1967, *UN Treaty Series*, Vol. 923, No 13172, p. 205. It is also similar to the definition set out in Article 79 of Spanish Law 25/1970 of 2 December
1970 (BOE No 291), approving the Statute on Vines, Wine and Alcohol, and to the definition in Article 22 of Law 24/2003 of
10 July 2003 (BOE No 165) on Vines and Wine, which repealed the former law.

---

[54](#Footref54) – Some writers are of the opinion that the distinction is one of degree only, rather than of substance. See, for example,
Sordelli, L., ‘Indicazioni geografiche e denominazioni di origine nella disciplina comunitaria’, *Diritto Industriale,* 1994, p. 837 et seq. Other writers assert that the distinction is not clear, such as López Benítez, M., *Las denominaciones de origen,* Cedecs, Córdoba, 1996, p. 85. The same view was expressed by the Economic and Social Committee in the Opinion on the proposal
for a Council Regulation (EEC) on the protection of geographical indications and designations of origin for agricultural products
and foodstuffs (OJ 1991 C 269, p. 62).

---

[55](#Footref55) – Minutes No 7290/92 of 12 June 1992 of the Special Agricultural Committee state that ‘the Commission and the Council declare
that, for the purposes of Article 2(2)(a) and (b), the Grand Duchy of Luxembourg will be regarded as an exceptional case.
The Council and the Commission confirm that Article 2 of the Regulation covers the Luxembourg national trade mark’. See Pellicer,
R., op. cit., B-84, pp. 16 and 17.

---

[56](#Footref56) – As the Economic and Social Committee suggested at the relevant time in the Opinion on the proposal for a regulation, referred
to above.

---

[57](#Footref57) – Advocate General Jacobs raised that possibility in the Opinion in Case C-325/00 *Commission* v *Germany* [2002] ECR I-9977, ‘*CMA*’, stating at point 40 that the definition applies essentially where the Member State in question ‘is particularly small (e.g.
Luxembourg) and, perhaps, where registration is sought for a whole Member State in respect of a particular product the quality
or reputation of which is attributable to that Member State’.

---

[58](#Footref58) – Under the French law of 6 July 1966, the name of a country may, without limitation, constitute a designation of origin.
Furthermore, there are no limits as to area in the Agreement on Trade-Related Aspects of Intellectual Property Rights, which
is included in Annex 1C to the Agreement Establishing the World Trade Organisation, approved by Council Decision 94/800/EC
of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence,
of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1). Article 22 defines
geographical indications ‘which identify a good as originating in the territory of a Member, or a region or locality in that
territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical
origin’. The Lisbon Agreement of 1958 provides a similar definition with regard to designations of origin.

---

[59](#Footref59) – That is clear from the definition of ‘specified region’ contained in Annex VI.A of Regulation No 1493/1999, which is restricted
to ‘a wine-growing area or a combination of wine-growing areas’. More specifically, the third recital in the preamble to Regulation
No 1576/89 states that ‘… Community rules should reserve, for certain territories among which certain countries may, by way
of exception, appear, the use of geographical designations referring to them …’, while Article 5(3) of that regulation provides
for a specific derogation in favour of Luxembourg, with regard to the marque nationale luxembourgeoise.

---

[60](#Footref60) – Cortés Martín, J.M., op. cit., p. 351. In that connection, it has been correctly noted that the likelihood of proving that
relationship ‘diminishes in proportion to the size of the area to which the name relates’ (point 8 of the Opinion delivered
by Advocate General La Pérgola in the *Feta* case).

---

[61](#Footref61) – Commission Regulation (EC) No 2325/1997 of 24 November 1997 supplementing 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
No 2081/92 (OJ 1997 L 322, p. 33).

---

[62](#Footref62) – Commission Regulation (EC) No 1778/2001 of 7 September 2001 supplementing the Annex to Regulation No 1107/96 (OJ 2001 L
240, p. 6).

---

[63](#Footref63) – In point 45 of the Opinion he delivered in Joined Cases C-108/97 and C-109/97 *Windsurfing Chiemsee* [1999] ECR I-2779, Advocate General Cosmas referred to raw materials, the soil and the climate in the region as natural factors,
and a concentration of similar businesses in the same region, specialisation in the manufacture of certain products and quality
maintenance at specified levels as human factors.

---

[64](#Footref64) – Indeed, many mineral waters (in which natural factors predominate) have been registered as designations of origin, whereas
bread, confectionery and pastry products have been registered as geographical indications. It is important to bear in mind
that Regulation No 692/2003 excluded mineral and spring waters from the scope of the basic regulation and consequently, 10
years after its adoption, such names will no longer appear in the register (Article 2).

---

[65](#Footref65) – Fernández Novoa, C., *La protección internacional de las denominaciones geográficas de los productos,* Tecnos, Madrid, 1970, p. 3.

---

[66](#Footref66) – In the Proposal for the regulation (OJ C 30, p. 11), such names were considered as geographical indications. In fact, some
writers have taken the view that the failure to provide for the extension of the scope of geographical indications is discriminatory.
See Beier, F.K., and Knaak, R., ‘The Protection of Direct and Indirect Geographical Indications of Source in Germany and The
European Community’, *International Review of Industrial Property and Copyright Law,* vol. 25-1994, p. 32; Tilmann, W., ‘EG-Schutz für Geographische Herkünftsangaben’, *Gewerblicher Rechtsschutz und Urheberrecht,* 1992, p. 833; and Jiménez Blanco, P., *Las denominaciones de origen en el Derecho del comercio internacional,* Eurolex, Madrid, 1996, p. 52

---

[67](#Footref67) – Annex VI to Regulation No 1493/1999 provides that the appellations ‘muscadet’, ‘blanquette’, ‘vinho verde’, ‘cava’ and
‘manzanilla’ are recognised as the names of the respective specified regions demarcated and regulated by the relevant Member
States before 1 March 1986. Similarly, Regulation No 1576/89 protects the names ‘pacharán’, ‘korn’, ‘kornbrand’ and ‘jägertee’.

---

[68](#Footref68) – That derogation was included in the basic regulation in response to an application from the United Kingdom to register
Stilton, a cheese whose production began in the English town of the same name but later moved to a nearby town while retaining
the name by which it was traditionally known.

---

[69](#Footref69) – Case 12/74 *Commission*  v *Germany* [1975] ECR 181, ‘*Sekt-Weinbrand*’.

---

[70](#Footref70) – Fernández Novoa, C., op. cit., p. 39; see also, Mattera, A., *El mercado único, sus reglas y su funcionamiento,* Civitas, Madrid, 1991, p. 447.

---

[71](#Footref71) – Governed by Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994 L 11, p. 1).

---

[72](#Footref72) – A new wording of that article is contained in Council Regulation (EC) No 806/2003 of 14 April 2003 adapting to Decision
1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid
down in Council instruments adopted in accordance with the consultation procedure (qualified majority) (OJ 2003 L 122, p. 1).

---

[73](#Footref73) – The details of that procedure are set out in the Commission communication to traders involved with designations of origin
and geographical indications for agricultural products and foodstuffs concerning the simplified procedure for Community registration
as laid down in Article 17 of Regulation No 2081/92 (OJ 1993 C 273, p. 4). The absence of a procedure under which individuals
affected by a registration were able to lodge an objection was strongly criticised by academic writers, including Cortés Martín,
op. cit., pp. 386 and 387. In accordance with Recital 13 in the preamble to Regulation No 692/2003, that shortcoming was among
the reasons for the abolition of the simplified procedure.

---

[74](#Footref74) – Decision setting up a scientific committee for designations of origin, geographical indications and certificates of specific
character (OJ 1993 L 13, p. 16), amended by Decision 94/437/EC of 14 June 1994 (OJ 1994 L 180, p. 47) and Decision 97/656/EC
of 2 October 1997 (OJ 1997 L 277, p. 30).

---

[75](#Footref75) – Regulation of 12 June 1996 on the registration of geographical indications and designations of origin under the procedure
laid down in Article 17 of Regulation No 2081/92 (OJ 1996 L 148, p. 1).

---

[76](#Footref76) – Commission Regulations (EC) No 1263/96 of 1 July 1996 (OJ 1996 L 163, p. 19), No 123/97 of 23 January 1997 (OJ 1997 L 22,
p. 19), No 1065/97 of 12 June 1997 (OJ 1997 L 156, p. 5), No 134/98 of 20 January 1998 (OJ 1998 L 15, p. 6), No 644/98 of
20 March 1998 (OJ 1998 L 87, p. 8), No 1549/98 of 17 July 1998 (OJ 1998 L 202, p. 25), No 83/1999 of 13 January 1999 (OJ 1999
L 8, p. 17), No 590/1999 of 18 March 1999 (OJ 1999 L 74, p. 8), No 1070/1999 of 25 May 1999 (OJ 1999 L 130, p. 18), No 2317/1999
of 29 October 1999 (OJ 1999 280, p. 66), No 813/2000 of 17 April 2000 (OJ 2000 L 100, p. 5), No 2703/2000 of 11 December 2000
(OJ 2000 L 311, p. 25), No 913/2001 of 10 May 2001 (OJ 2001 L 129, p. 8), No 1347/2001 of 28 June 2001 (OJ 2001 L 182, p.
3), and No 1660/2003 of 19 September 2003 (OJ 2003 L 234, p. 10). In addition, Regulation No 2325/97 and No 1778/2001, cited
above, and Regulation No 1829/2002, which is contested in these proceedings.

---

[77](#Footref77) – Case 8/74 [1974] ECR 837.

---

[78](#Footref78) – This case is known as ‘*Cassis de Dijon*’ after the French fruit liqueur with an alcohol content of between 15º and 20º which is sold freely in France, and which
it was attempted to market in Germany where a minimum alcohol content of 25º was required.

---

[79](#Footref79) – Case 113/80 *Commission* v *Ireland* [1981] ECR 1625, paragraph 7; Case 95/81 *Commission* v *Italy* [1982] ECR 2187, paragraphs 20 and 21; and Joined Cases C-321/94 to C-324/94 *Pistre and Others* [1997] ECR I-2343, paragraph 52.

---

[80](#Footref80) – Case C-205/89 *Commission* v *Greece* [1991] ECR I-1361, paragraph 9.

---

[81](#Footref81) – For example, Beier, F.-K., ‘Propiedad industrial y libre circulación de mercancías en el mercado interior y en el comercio
con terceros Estados’, *Revista General de Derecho,* Number 549, June 1990, p. 4521 and footnote 31 on p. 4519. See also Bercovitz, A., op. cit., p. 520.

---

[82](#Footref82) – Revised at Stockholm on 14 July 1967, *UN Treaty Series*, Vol. 828, No 11851, p. 305.

---

[83](#Footref83) – Case C-47/90 [1992] ECR I-3669.

---

[84](#Footref84) – Case C-3/91 [1992] ECR I-5529.

---

[85](#Footref85) – Case C-388/95 [2000] ECR I-3123.

---

[86](#Footref86) – Case C-469/00 [2003] ECR I-5053, paragraph 49.

---

[87](#Footref87) – Case C-108/01 [2003] ECR I-5121, paragraph 64.

---

[88](#Footref88) – Academic writers criticised strongly the fact that a dual connection was also required for indications of origin. See,
inter alia, Beier, F.-K., ‘La nécessité de protéger les indications de provenance et les appellations d’origine dans le Marché
Commun. En marge de l’Arret Sekt/Weinbrand de la Cour de Justice des Communautés européennes du 20 février 1975’, *Proprieté Industrielle,* WIPO/BIRPI, 1977, p. 160.

---

[89](#Footref89) – For a specific reference to ‘reputation’, see, for example, Case 102/77 *Hoffmann-La Roche* [1978] ECR 1139, paragraph 7, and Joined Cases C-71/94, C-72/94 and C-73/94 *Eurim-Pharm* [1996] ECR I‑3603, paragraph 31 (both of which dealt with trade marks), in addition to *Exportur*, paragraph 28, and Case C-306/93 *SMW Winzersekt* [1994] ECR I-5555, paragraph 25.

---

[90](#Footref90) – Case 144/81 [1982] ECR 2853.

---

[91](#Footref91) – Case C-312/98 [2000] ECR I‑9187, in response to a reference for a preliminary ruling which arose in a dispute about the
labelling of beer.

---

[92](#Footref92) – Case C-99/99 [2000] ECR I-11535.

---

[93](#Footref93) – Commission Regulation (EC) No 2815/98 of 22 December 1998 (OJ 1998 L 349, p. 56).

---

[94](#Footref94) – Case C-216/01 [2003] ECR I-13617.

---

[95](#Footref95) – Case C-87/97 [1999] ECR I-1301. The case concerned a dispute involving the names ‘Cambozola’, a cheese imported into Italy
from another Member State where it is legally produced, and ‘Gorgonzola’, an Italian cheese whose designation of origin is
recorded in the Community register. The Court held that, although in outward appearance the two foods are not dissimilar,
it would seem reasonable to conclude that a protected name is indeed evoked where they contain the same number of syllables
of which the last two are the same, with the result that there is a phonetic and visual similarity between the two terms.

---

[96](#Footref96) – In view of the fact that the product specifications for designations of origin are not published, the two judgments also
examined whether those specifications could be relied on against third parties.

---

[97](#Footref97) – Joined Cases C-129/97 and C-130/97 [1998] ECR I‑3315. The facts were that the French Government had registered the name
‘Époisses de Bourgogne’ in accordance with the simplified procedure and then applied for amendment so that the name ‘Époisses’
alone was protected.

---

[98](#Footref98) – Case C-66/00 [2002] ECR I-5917.

---

[99](#Footref99) – Pursuant to Commission Regulation (EC) No 590/1999 of 18 March 1999 supplementing the Annex to Regulation No 1107/96 (OJ
1999 L 74, p. 8).

---

[100](#Footref100) – Case C-269/99 [2001] ECR I-9517.

---

[101](#Footref101) – Advocate General Alber took a similar approach in the Opinions he delivered in both cases (points 92 and 97, respectively).

---

[102](#Footref102) – See the factual background set out in points 22 to 47 of the ‘*Feta*’ judgment, which I will look at in detail below.

---

[103](#Footref103) – FEK B 8.

---

[104](#Footref104) – A basic summary of the questionnaire is attached as Annex 1 to the Commission’s defence. Its indicative nature is referred
to in the 17th recital in the preamble to Regulation No 1829/2002, which notes that ‘the absence of a specific legislative
framework in almost all the Member States, along with the very general definition of the term “Feta” in the combined customs
nomenclature, sometimes leads to rather approximate estimates, and cross-comparisons of responses produce statistically divergent
data. Indeed, many Member States find it difficult to distinguish between domestic output and re-exports, which may unduly
inflate the figures’.

---

[105](#Footref105) –      From 1981 to 1998, the Netherlands also had legislation governing feta production. Austria reserves the term to Greek products,
in accordance with the Convention concluded with Greece on 20 June 1972 pursuant to the Agreement between the two countries
of 5 June 1970 on the protection of indications of origin and the names of agricultural, artisanal and industrial products,
(BGBl. Nos 378/1972 and 379/1972; *Österreichisches Patentblatt*  No 11/1972 of 15 November 1972).

---

[106](#Footref106) – The representative of France stated at the hearing that, in that country, production was 10 325 tonnes in 2003 and 11 200
tonnes in 2004.

---

[107](#Footref107) –      Recital 19 in the preamble to Regulation No 1829/2002 states that a broad assessment ‘has proved inadequate in some cases
and has even produced anomalous results in others: since it is impossible to take account of existing stocks, quantities re-exported
and other factors, the calculation has resulted in theoretically negative consumption in some Member States’.

---

[108](#Footref108) –      At the hearing it was confirmed that labels alluding to Greece are used by German and Danish producers, a fact which is also
referred to in the documents which the Commission attached to its defence.

---

[109](#Footref109) – The full text of the opinion is attached as Annex 3 to the defence of the Commission. The findings are set out in recitals
30 to 32 in the preamble to Regulation No 1829/2002.

---

[110](#Footref110) – However, the view in academic legal circles was that the conflict could be resolved only by compromise. Fluir, A., ‘Feta
als geschützte Ursprungsbezeichnung – eine Leidensgeschichte’, *European Law Reporter,* 2002, No 11, p. 437.

---

[111](#Footref111) – Ministerial Order No 15294/1987 of the Ministries of Finance and Agriculture (FEK B 347).

---

[112](#Footref112) – FEK B 892.

---

[113](#Footref113) – FEK B 663.

---

[114](#Footref114) – FEK B 667.

---

[115](#Footref115) – The Court of First Instance has also been seised of a number of similar actions contesting Regulation No 1829/2002, brought
by *Alpenhain-Camembert-Werk and Others* (T-370/02), by the *Confédération générale des producteurs de lait de brebis et des industriels de Roquefort* (T-381/02) and by *Arla Foods and Others* (T-397/02). In the Order of 6 July 2004 ([2004] ECR II-2097) in the first of the aforementioned cases, the Court of First
Instance allowed the objection submitted by the Commission and declared the action inadmissible on the ground that the contested
act did not individually concern the applicants, German undertakings involved in the production of cheese marketed as ‘feta’.
The other two cases are pending judgment.

---

[116](#Footref116) – Rules of Procedure of the Court of Justice, Codified Version of 19 June 1991 (OJ 1991 L 176, p. 7), amended on a number
of occasions (most recent official publication in OJ 2003 C 193, p. 1).

---

[117](#Footref117) – Regulation No 1 of the Council of 15 April 1958 **determining the languages to be used by the European Economic Community** (OJ, English Special Edition *1952-1958,**p. 59*).

---

[118](#Footref118) – Forwarding of the agenda, proposed measures, and other working documents at least 14 days before the date of the meeting
is provided for in Article 3 of the standard rules of procedure approved by Council Decision 1999/468/EC (OJ 2001 C 38, p.
3). It is also important to bear in mind Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise
of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), and Regulation No 806/2003, cited above.

---

[119](#Footref119) – I took a similar approach in the Opinion in Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and
219/00 P *Aalborg Portland and Others* [2004] ECR I-123, pointing out that an act containing a decision on a file may be annulled only ‘if it is found that, if
the proper procedural routes had been scrupulously followed, the outcome could have been more advantageous for the person
concerned or if, precisely because of the procedural defect, it is impossible to ascertain whether the decision would have
been different’. I went on to state that ‘defects in the procedure do not have a life of their own in isolation from the substance
of the case. If a decision taken in the wake of a defective procedure is annulled because, owing to the defects in the procedure
leading to its adoption, it is wrong in substance, the decision is annulled because it is incorrect in substance, not because
of the procedural defect. The defect in form assumes an independent existence only when, because it occurred, it is impossible
to form an opinion about the decision which was adopted’.

---

[120](#Footref120) – The summarised minutes of the meeting record that no agreement was reached, since the proposal received 47 votes in favour,
23 against and 17 abstentions. That document, together with the other minutes of the Committee on Geographical Indications
and Designations of Origin for Agricultural Products and Foodstuffs, can be found at www.europa.eu.int/comm/agriculture/minco/regco.

---

[121](#Footref121) – Case C-263/95 [1998] ECR I-441.

---

[122](#Footref122) – Case C-249/02 [2004] ECR I-10717.

---

[123](#Footref123) – Case 131/86 *United Kingdom* v *Council* [1988] ECR 905, paragraph 37.

---

[124](#Footref124) – Case 18/57 *Nold*  v *High Authority* [1959] ECR 41 and subsequent cases.

---

[125](#Footref125) – Case C-350/88 *Delacre and Others* v *Commission* [1990] ECR I-395 and Case C-22/94 *Irish Farmers Association and Others* [1997] ECR I-1809.

---

[126](#Footref126) – That is also the order followed in Denmark’s application, while Germany’s application deals first of all with the traditional
character of the name and then goes on to assert that it is generic.

---

[127](#Footref127) – I have taken that example from the *Diccionario de la Real Academia Española*, 22nd edition.

---

[128](#Footref128) – However, as I observed in point 28 of the Opinion in *Canadane Cheese and Kouri*, the Court has held the following to be generic names: vinegar (Case 193/80 *Commission* v *Italy* [1981] ECR 3019); geneva (Case 182/84 *Miro* [1985] ECR 3731); beer (Case 178/84 *Commission* v *Germany* [1987] ECR 1227); pasta (Case 407/85 *3**Glocken and Kritzinger* [1988] ECR 4233 and Case 90/86 *Zoni* [1988] ECR 4285); yoghurt (Case 298/87 *Smanor* [1988] ECR 4489); Edam cheese (Case 286/86 *Deserbais* [1988] ECR 4907); cheeses (Case C-210/89 *Commission* v *Italy* [1990] ECR I-3697 and Case C-196/89 *Nespoli and Crippa* [1990] ECR I-3647); meat products (‘Fleischwaren’) (Case C-269/89 *Bonfait* [1990] ECR I-4169); and bread (Case 130/80 *Kelderman* [1981] ECR 527, Case C-17/93 *Van der Veldt* [1994] ECR I-3537, and Case C-358/95 *Morellato* [1997] ECR I‑1431).

---

[129](#Footref129) – Opinion of Advocate General Saggio in Case C-448/98 *Guimont* [2000] ECR I-10663, point 11.

---

[130](#Footref130) – Unlike the rules with regard to trade marks, the basic regulation does not set out grounds for generalisaton, which has
led to a number of criticisms. See Lobato García-Miján, L., ‘La protección de las Denominaciones de origen: estudio del reglamento
(CEE) 2081/92’, *Estudios de Derecho Mercantil en homenaje al profesor Manuel Brosseta Pont,* Volume II, Tirant lo Blanch, Valencia, 1995, p. 1985 et seq. On the subject of popular usage, see Fernández Novoa, C., op.
cit., p. 42.

---

[131](#Footref131) – For example, in the English case *Wine Products Ltd. & other* s v *Mackenzie & Co. Ltd & Others*, the High Court (Chancery Division) gave judgment on 31 July 1967 authorising Australian and South African producers to use
on the English market the name ‘Jerez’ (Sherry), a Spanish town, provided that they added the adjective Australian or South
African (‘Australian Sherry’ or ‘South African Sherry’), holding that to permit producers of sherry to prevent the use of
those expressions would be unjust since they had already been aware of such use (see the Opinion of Advocate General Warner
in *Sekt-Weinbrand*). In French case-law, the judgment of the Cour d’Appel de Montpellier of 25 August 1984 on the designations ‘Jijona’ and
‘Alicante’ gave rise to much discussion when it was examined in the light of the findings of the Court in the judgment in
*Exportur* which was delivered in response to a reference for a preliminary ruling in that case.

---

[132](#Footref132) – I would like to qualify the statement made by Advocate General Léger in point 40 of the Opinion in *Bigi*, to the effect that, ‘[s]ince the assessment of whether a name is generic in terms of the Regulation falls within the remit
of the Commission, I take the view that it is not for the Court to take on the task of the Commission on that question. The
role of the Court consists simply in reviewing the legality of decisions adopted by the Commission (or the Council) on the
subject, in accordance with Article 230 EC’. While I do not dispute the second part of that statement, I believe that where
an act is annulled following an assessment by the Court as to whether a particular name is generic, the Court has not taken
on the task of the Commission or usurped its powers.

---

[133](#Footref133) – The words are taken from Advocate General Léger, at point 50 of the Opinion in *Bigi*.

---

[134](#Footref134) – The fact that there are two methods addresses the need for a broad-based approach owing to the different levels of protection
in the Member States.

---

[135](#Footref135) – Paragraphs 22 to 28 of the *Feta* judgment describe the steps taken by the Commission to draw up a draft non-exhaustive indicative list of names which are
precluded from registration because they are regarded as generic.

---

[136](#Footref136) – López Escudero, M., in ‘Parmigiano, feta, epoisse y otros manjares en Luxemburgo: las denominaciones geográficas ante el
TJCE’, *Une Communauté de droit: Festschrift für Gil Carlos Rodríguez Iglesias,* BMW-Berliner Wissenschafts-Verlag, 2003, p. 409 et seq., directs harsh criticism towards the fact that to determine whether
or not the name of a product is generic there must be an exclusive connection with a particular area.

---

[137](#Footref137) – For example, Fernández Novoa, C., op. cit., p. 46, and, in German academic legal circles, Bussman, K., ‘Herkunftsangabe
oder Gattungsbezeichnung’, *Gewerblicher Rechtsschutz Und Urheberrecht,* 1965, p. 281 et seq.

---

[138](#Footref138) – The procedure leading to registration in the Annex to Commission Regulation (EC) No 2400/96 of 17 December 1996 on the
entry of certain names in the ‘Register of protected designation of origin and protected geographical indications’ provided
for in Regulation No 2081/92 (OJ 1996 L 327, p. 11), amended on numerous occasions.

---

[139](#Footref139) – See, in that regard, Cortés Martín, J.M., op. cit., p. 381.

---

[140](#Footref140) – See, in that regard, Cortés Martín, J.M., op. cit., footnote 1206, p. 381.

---

[141](#Footref141) – Fernández Novoa, C., op. cit., p. 43.

---

[142](#Footref142) – Rochard, D., ‘“Rillettes du Mans”, “Rilettes de la Sarthe”: dénominations génériques ou IGP? C’est le juge qui va déguster!’,
*Revue de Droit Rural,* No 251, 1997, p. 175.

---

[143](#Footref143) – Rochard, D., op. cit., refers specifically to the Stresa Convention, concluded on 1 June 1951, which authorises the signatories
thereto to use the names in Annex II, provided that the rules on production are observed and the country of production is
specified. However, the names in Annex I may be used only by producers in the relevant geographical area. It should be noted
that Denmark was a signatory to the convention, which does not apply to feta, but later withdrew, while Greece has never been
a signatory.

---

[144](#Footref144) – See point 19 of the Opinion in *Canadane Cheese Trading and Kouri*.

---

[145](#Footref145) – On the subject of international agreements, see, for example, the **Euro-Mediterranean Agreement establishing an Association between the European Communities and their****Member States, of the one part, and the Arab Republic of Egypt, of the other part, done at Luxembourg**  on 25 June 2001 (OJ 2004 L 304, p. 39), particularly Article 37, Annex VI and the joint declaration on the two; the **Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Member States,
of the one part, and the United Mexican States, of the other part, concluded in** Brussels on 8 December 1997 (OJ 2000 L 276, p. 45 ), particularly Article 12; and the **Interim Agreement on trade and trade-related matters between the European Economic Community and the European Coal and Steel
Community, of the one part, and the Republic of Bulgaria, of the other part**, concluded in Brussels on 8 March 1993 (OJ 1993 L 323, p. 2).

---

[146](#Footref146) –      Homer, *The Odyssey*, Book IX, translated by E.V. Rieu, Penguin Books, 1946, p. 145.

---

[147](#Footref147) –      Ibid., p. 142: ‘the Cyclopes, a fierce, uncivilized people ... have no assemblies for the making of laws, nor any settled
customs, but live in hollow caverns in the mountain heights, where each man is law-giver to his children and his wives, and
nobody cares a jot for his neighbours’; p. 145: a ‘being of colossal strength and ferocity, to whom the law of god and man
meant nothing’.

---

[148](#Footref148) –      Ibid., Book XX, p. 306.

---

[149](#Footref149) –      Homer, *The Iliad*, Book XI, translated by E.V. Rieu, Penguin Books, 1950, p. 214: the lady Hecamede, the ‘comely attendant’ of Nestor and Patroclus,
‘mixed them the pottage with Pramnian wine ... grating into it some goat’s milk cheese with a bronze grater …’.

---

[150](#Footref150) – See O´Connor, B. and Kirieeva, I., ‘What’s in a name?: The Feta cheese saga’, *International trade law and regulation,* Vol. 9, 2003, p. 117 et seq.

---

[151](#Footref151) – That approach is in accordance with Article 6 of the Lisbon Agreement and contrasts with Article 24(6) of the Agreement
on Trade-Related Aspects of Intellectual Property Rights which gives precedence to the situation of the name in areas of consumption.

---

[152](#Footref152) – Article 3 of the basic regulation provides that ‘… [t]o 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 …’.

---

[153](#Footref153) – Although Denmark disputes the opinion, it has not put forward any convincing reasons why the opinion should be discredited.

---

[154](#Footref154) – Putting aside earlier doubts, the usefulness of opinion polls was acknowledged in the judgments in *Windsurfing Chiemsee*, paragraph 53, and in Case C-210/96 *Gut Springenheide and Tusky* [1998] ECR I-4657, paragraph 37. Although those judgments refer to that method in the context of trade marks and the guidance
is directed towards national courts, the case-law can be extrapolated to the field of designations of origin and the actions
of the Community institutions.

---

[155](#Footref155) – In accordance with the judgment in Joined Cases C-267/95 and C-268/95 *Merck and Beecham* [1996] ECR I-6285, which dealt specifically with patents, the specific subject-matter of industrial and commercial property
in that connection ‘is, in particular, in order to reward the creative effort of the inventor, to guarantee that the patentee
has the exclusive right to use an invention with a view to manufacturing industrial products and putting them into circulation
for the first time, either directly or by the grant of licences to third parties, as well as the right to oppose infringements’
(paragraph 30).

---

[156](#Footref156) – The Greek provisions and the product specification attached to the application for entry in the Community Register permit
production in Macedonia, Thrace, Epirus, Thessaly, Central Greece, Peloponnese – nearly all of mainland Greece – and the *nomos* (an administrative district) of Lesbos.

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[157](#Footref157) –      It is important to bear in mind the evolution of the European Union, which has progressively expanded, on a number of occasions
to admit small States. The phenomenon will continue and, perhaps, the protection conferred on a product in an area of the
current territory of the Community will extend to areas in the new States.

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[158](#Footref158) –      Advocate General La Pérgola accepted that view in the Opinion in *Feta* (point 8).

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[159](#Footref159) – I noted as much in point 75 of my Opinion in *Canadane Cheese Trading and Kouri*, pointing out that otherwise it ‘would preclude protection for many geographical names because modern production techniques
enable almost any product to be made anywhere’.

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[160](#Footref160) – In other words, it does not even cover the whole of that island.

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[161](#Footref161) – Calvino, I., *Palomar,* ed. Giulio Einaudi, Turin, 1983, p. 85.

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