CELEX: C2003/055/20
Language: en
Date: 2003-03-08 00:00:00
Title: Case C-466/02: Action brought on 30 December 2002 by the Kingdom of Denmark against the Commission of the European Communities (received by fax on 23 December 2002)

8.3.2003               EN                         Official Journal of the European Union                                            C 55/11
Action brought on 30 December 2002 (faxed on                                    legislative provisions themselves and by the fact that the
27 December 2002) by the Federal Republic of Germany                            Community makes provision for the grant of aid for the
  against the Commission of the European Communities                            manufacture of Feta on the Aegean islands.
                                                                          —     Infringement of Council Regulation No 2081/92 and of
                         (Case C-465/02)                                        Article 253 EC.
                          (2003/C 55/19)                                  (1 ) OJ 2002 L 277, p. 10.
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities by the Federal Republic of Germany on
30 December 2002 (faxed on 27.12.2002), represented by                    Action brought on 30 December 2002 by the Kingdom
Wolf-Dieter Plessing, Ministerialrat in the Bundesministerium             of Denmark against the Commission of the European
der Finanzen (Federal Finance Ministry), Alfred Dittrich, Minis-              Communities (received by fax on 23 December 2002)
terialrat in the Bundesministerium der Justiz (Federal Ministry
of Justice) and by Dr Michael Loschelder, c/o Loschelder                                           (Case C-466/02)
Rechtsanwälte, Hohenstaufenring 30-32 D-50674 Cologne.
                                                                                                    (2003/C 55/20)
The applicant claims that the Court should:
1.    Annul Commission Regulation (EC) No 1829/2002 (1) of                An action against the Commission of the European Communi-
      14 October 2002 amending the annex to Commission                    ties was brought before the Court of Justice of the European
      Regulation (EC) No 1107/96 in relation to the ‘Feta’                Communities on 30 December 2002 (received by fax on
      designation;                                                        23 December 2002) by the Kingdom of Denmark, represented
                                                                          by J. Molde and J.B. Liisberg, acting as Agents, with an address
2.    Order the Commission to pay the costs.                              for service in Luxembourg.
                                                                          The applicant claims that the Court should:
Pleas in law and main arguments                                           —     Annul Commission Regulation (EC) No 1829/2002 (1) of
                                                                                14 October 2002 amending the Annex to Regulation
—     Infringement of the rules of procedure of the Regulatory                  (EC) No 1107/96 (2) with regard to the name ‘Feta’.
      Committee and infringement of Regulation (EEC) No 1:
      the documents for the meeting on 20 November 2001 of
      the Regulatory Committee established under Article 15               Pleas in law and main arguments
      of Council Regulation No 2081/92 on the protection of
      geographical indications and designations of origin for
      agricultural products and foodstuffs did not reach the
      Federal German Government 14 calendar days before-                  (Main)
      hand nor were they in German.
                                                                          The Commission adopted Regulation No 1829/2002 in con-
—     Infringement of Article 2(3) of Council Regulation                  travention of Article 17(2), in conjunction with Article 3(1), of
      No 2081/92: The Commission erroneously examines in                  Council Regulation (EEC) No 2081/92 ( 3) (the basic regulation):
      the recitals in the preamble to the contested regulation
      whether ‘Feta’ has become a generic designation. Since              Denmark bases its arguments in this connection on the
      ‘Feta’ is first of all a non-geographical concept, the              following principles of interpretation:
      Commission ought first to have proved that it has
      acquired a geographical meaning and indeed one that                 —     The prohibition of registration of generic designations
      does not refer to the whole of a Member State. The area                   specifically reflects a number of fundamental principles
      indicated by the Greek Government in its application is                   of Community law.
      quite plainly an artificial construct; unsupported by either
      tradition or commercial conceptions. Nor does Feta owe              —     This prohibition cannot be construed restrictively and
      its quality or characteristics predominantly or exclusively               compliance with the prohibition must be subject to full
      to geographical conditions; the Commission’s statements                   review by the Court.
      in Recital 36 are supported neither by the Greek Govern-
      ment’s application nor by the findings of the Scientific            —     If a designation has become on one occasion/been from
      Committee. Finally, the areas of production and manufac-                  the outset a generic designation, then it is for all time —
      ture do not coincide, as is borne out both by the Greek                   and irreversibly — a generic designation.
 ---pagebreak--- C 55/12               EN                          Official Journal of the European Union                                              8.3.2003
—    If the applicant country has itself for a long time accepted         —      Lawful production and marketing of feta outside the area
     and benefited from the generic use of the designation, it                   of origin take place in a number of Member States and
     will have forfeited any right to argue that the designation                 non-member countries.
     is non-generic.
                                                                          —      Danish production and marketing of feta are in no wise
                                                                                 contrary to fair custom and practice, nor do they give rise
—    Registration as a designation of origin at Community                        to any genuine risk of confusion, precisely because
     level is excluded if a designation is a generic designation                 Danish legislation has, since as far back as 1963, required
     in even only one Member State.                                              that such feta be designated as ‘dansk feta’.
                                                                          —      The Community legislature, including the Commission,
                                                                                 has, in a number of legal provisions and measures,
—    Lawful production and marketing over a long period of
                                                                                 proceeded on the basis that ‘feta’ is a generic designation.
     time in other Member States are central factors in the
     evaluation of a generic designation. Lawful marketing of
     this kind may be suppressed only if it is contrary to fair
     custom and practice or gives rise to a genuine risk of               (Alternative)
     confusion.
                                                                          The Commission adopted Regulation No 1829/2002 in con-
                                                                          travention of the basic regulation inasmuch as feta does not
—    Lawful production in non-member countries and their                  satisfy the conditions governing registration as a traditional
     trade with the EU also argue in favour of treating a                 non-geographical name laid down in Article 2(3) of the basic
     designation as being covered by the prohibition of                   regulation.
     registration of generic designations, inter alia in the light
     of the Community’s obligations under the WTO.
                                                                          (1 ) OJ L 277 of 15.10.2002, p. 10.
                                                                          (2 ) Commission Regulation (EC) No 1107/96 of 12 June 1996 on
                                                                               the registration of geographical indications and designations of
—    There is a presumption that non-geographical indications                  origin under the procedure laid down in Article 17 of Council
     are generic designations, in particular where an indication               Regulation (EEC) No 2081/92 (OJ L 148 of 21.6.1996, p. 1).
     is derived from a language other than that of the applicant          (3 ) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the
     country.                                                                  protection of geographical indications and designations of origin
                                                                               for agricultural products and foodstuffs (OJ L 208 of 24.7.1992,
                                                                               p. 1).
—    The applicant country and, secondly, the Commission
     have the onus of establishing that a non-geographical
     indication is not a generic designation and that lawful
     marketing over a long period in other countries is
     contrary to fair custom and practice and gives rise to a
     genuine risk of confusion.
                                                                          Action brought on 31 December 2002 by Kingdom of
                                                                          Spain against Commission of the European Communities
Denmark attaches particular importance to the following
specific factors:                                                                                    (Case C-468/02)
                                                                                                      (2003/C 55/21)
—    Whether as a designation or a product, feta does not
     have its origin specifically in Greece. The traditional
     consumption and production area covers a number of
     Balkan lands, including several non-member countries                 An action against the Commission of the European Communi-
     due shortly to join the EU.                                          ties was brought before the Court of Justice of the European
                                                                          Communities on 31 December 2002 by the Kingdom of
                                                                          Spain, represented by Lourdes Fraguas Gadea, Abogado del
                                                                          Estado, acting as Agent, with an address for service in
—    Up until 15 years ago, Greece itself imported, produced,             Luxembourg.
     consumed and exported feta, including feta made from
     cow’s milk. Consumers in Greece must, for a number of
     years, have regarded the designation as being generic.               The applicant claims that the Court should:
                                                                          1.     annul Decision 2002/881/EC (1) so far as concern the
—    In other countries, both within and outwith the EU, in                      financial corrections imposed on the Kingdom of Spain
     which it is consumed and produced in large quantities,
     consumers also regard feta as being a generic designation.           2.     order the defendant institution to pay the costs.