CELEX: C1995/333/10
Language: en
Date: 1995-12-09 00:00:00
Title: Reference for a preliminary ruling by the Simvoulio tis Epikratias (Council of State), Greece, by a decision of that court of 20 June 1995 in the case of Canadane Cheese Trading AMBA and Adelfi G. Kouri AEVE v. Ministers of (1) Commerce, (2) Finance, (3) Health, Welfare and Social Security, and (4) Agriculture (Case C-317/95)

No C 333/6             EN                  Official Journal of the European Communities                                    9 . 12 . 95
and Jose Luis Iglesias Buhigues ) — the Court ( Sixth                     and method of manufacture are familiar to consumers,
Chamber ), composed of C. N. Kakouris, President of the                   even though they differ in their secondary characteristics
Chamber, G. Hirsch, G. F. Mancini ( Rapporteur ), F.                      — not, however, decisively as regards type, but simply in
A. Schockweiler and P. J. G. Kapteyn, Judges; C. O. Lenz,                 the determination of different national varieties and in
Advocate-General; R. Grass, Registrar, made an order on                   that case the majority of those national varieties are
26 October 1995 , the operative part of which is as                       lawfully produced and.marketed primarily for domestic
follows :                                                                 consumption in the Member State of their origin ?
                                                                          Further, whenever a product is put on the market within
                                                                          the Community for sale for consumption exclusively or
1 . The appeals are dismissed.                                            almost exclusively within one Member State where there
                                                                          is a demand on the part of consumers, especially when
                                                                          the product is known under a traditional name, then,
2 . The appellants are ordered to pay the costs.                          even where the product is also produced in another
                                                                          Member State — not, however, for marketing primarily
                                                                          for domestic consumption, but with the exclusive, or
(') OJ No C 254 , 10 . 9 . 1994 .                                         almost exclusive, intention that it will be exported to the
                                                                          Member State where it is consumed — is the general
                                                                          familiarity of consumers with the product within the
                                                                          Community as regards its general and essential
                                                                          characteristics to be assessed and judged by reference to
                                                                          the consumers within the said Member State where that
                                                                          product is marketed for consumption ?
Reference for a preliminary ruling by the Simvoulio tis               3 . If the answer to the previous questions is in the
Epikratias ( Council of State ), Greece, by a decision of that            affirmative, in view of the information set out above
court of 20 June 1995 in the case of Canadane Cheese                      contained in Communication 9539/VI/24 . 2 . 1994 from
Trading AMBA and Adelfi G. Kouri AEVE v. Ministers of                     the Director-General of the Directorate-General for
( 1 ) Commerce, ( 2 ) Finance, ( 3 ) Health, Welfare and Social           Agriculture of the European Communities and the
                  Security, and ( 4 ) Agriculture                         accompanying report and consequently the data
                        ( Case C-3 17/95 )                                extracted — first, as regards the proportionate
                          ( 95/C 333/ 10 )                                relationship between total consumption within the
                                                                          Community of cheese under the name feta and
                                                                          consumption within the Community of cheese under the
Reference has been made to the Court of Justice of the                    same name manufactured from sheep and goat's milk
European Communities by a decision of the Simvoulio tis                   and by the natural straining method; secondly, as
Epikratias, which was received at the Court Registry on                   regards the proportionate relationship between
10 October 1995 , for a preliminary ruling in the case of                 consumption of feta cheese from sheep and goat's milk
Canadane Cheese Trading AMBA and Adelfi G. Kouri                          within the Community and consumption of the same
AEVE v. Ministers of ( 1 ) Commerce, ( 2 ) Finance,                       product in Greece; and thirdly, as regards the
( 3 ) Health, Welfare^and Social Security, and ( 4 ) Agriculture          proportionate relationship between production,
on the following questions :                                              domestic consumption and export in Denmark, and also
                                                                          in all the other Community countries, of cheese under
                                                                          the name ' feta' made from cow's milk by the
1 . Does it follow from an interpretation of Articles 30 and              ultra-filtration process — is it possible to accept that
      36 of the EEC Treaty that a Member State may refuse to              white cheese under the name 'feta ' may be produced
      allow the use of a certain commercial name for products             in the other Community countries, in particular in
      produced by and exported from another Community                     Denmark, with the almost exclusive aim of exporting it,
      country for circulation within that State where those               as regards intra-Community trade, to Greece which is
      products are so different from the point of view of their           almost the only Community country where cheese is
      composition and method of manufacture from products                 marketed for consumption under the name feta ?
      which are generally known by that name in the                       Furthermore, should general familiarity within the
      Community that they could not be regarded as similar                Community with cheese known under the commercial
      products falling within the same category ?                         name feta, in particular as regards its general and
                                                                          essential characteristics, be assessed and judged by
                                                                          reference to consumers of feta cheese in Greece, for
2 . In that situation, should general familiarity with the                whom ' feta' means white cheese produced from sheep
      product under a particular name within the Community                and or goat's milk by the natural straining method,
      be assessed and judged in relation to consumers within              whereas cheese manufactured from cow's milk by the
      the Member States of the Community, since it is their               ultra-filtration process is so essentially different from
      protection that is sought ? Does 'products generally                the point of view of raw material and method of
      known under a certain name by consumers within the                  manufacture that it is impossible to treat it as a similar
      Community' mean similar products, the general and                   product ? In consequence, is Article 83 of the Greek
      essential characteristics of which as regards composition           Foodstuffs Code, in the version in fbrce when the
 ---pagebreak--- 9 . 12 . 95              EN                    Official Journal of the European Communities                                          No C 333/7
      contested decision was adopted, reserving the use of the            by the Commission of the European Communities,
      name feta solely to cheese produced from sheep and/or               represented by James Macdonald Flett, member of the Legal
      goat's milk by the natural straining method compatible,             Service, acting as agent, with an address for service in
      for the purposes of the case under review, with                     Luxembourg at the office of Carlos Gomez de la Cruz,
      Articles 30 and 36 of the EEC Treaty ?                              Centre Wagner.
                                                                          The Applicant claims that the Court should:
                                                                          1 . declare that by failing to adopt the laws, regulations or
Action brought on 10 October 1995 by the Commission of                           administrative provisions necessary to comply with
          the European Communities against Ireland                               Council Directives 92/45/EEC ('), 92/46/EEC ( 2 ),
                           ( Case C-3 18/95 )                                    92/65/EEC ( 3 ), 92/ 116/EEC (4 ), 92/117/EEC ( 5 ) and
                             ( 95/C 333/ 11 )                                    92/118/EEC ( 6 ) Ireland has failed to fulfil its obligations
                                                                                 under the Directives and under the Treaty; and
An action against Ireland was brought before the Court of
Justice of the European Communities on 10 October 1995                    2 . order Ireland to pay the costs.
by the Commission of the European Communities,
represented by James Macdonald Flett, member of the Legal
Service, acting as agent, with an address for service in                  Pleas in law and main arguments:
Luxembourg at the office of Carlos Gomez de la Cruz,
Centre Wagner.
                                                                          Article 189 of the EC Treaty, under which a directive shall
The Applicant claims that the Court should :                              be binding, as to the result to be achieved, upon each
                                                                          Member State, carries by implication an obligation on the
1 . declare that by failing to adopt the laws, regulations or             Member States to observe the period for compliance laid
      administrative provisions necessary to comply with                  down in the directive . That period expired on 1 January
      Council Directive 92/ 119/EEC of 17 December 1992                   1994 without Ireland having enacted the provisions
      introducing general Community measures for the                      necessary to comply with the Directives referred to in the
                                                                          conclusions of the Commission .
      control of certain animal diseases and specific measures
      relating to swine vesicular disease ( ! ) Ireland has failed
      to fulfil its obligations under the Directive and under the
                                                                          (') Council Directive 92/45/EEC of 16 June 1992 on public health
      Treaty; and                                                               and animal health problems relating to the killing of wild game
                                                                                and the placing on the market of wild-game meat ( OJ No L 268 ,
2 . order Ireland to pay the costs .                                            14 . 9 . 1992 , p. 35 ).
                                                                          (2 ) Council Directive 92/46/EEC of 16 June 1992 laying down the
                                                                                health rules for the production and placing on the market of raw
Pleas in law and main arguments                                                 milk, heat-treated milk and milk-based products ( OJ No L 268 ,
                                                                                14 . 9 . 1992 , p. 1 ).
Article 189 of the EC Treaty, under which a directive shall               ( 3 ) Council Directive 92/65/EEC of 13 July 1992 laying down
be binding, as to the result to be achieved, upon each                          animal health requirements governing trade in and imports into
Member State, carries by implication an obligation on the                       the Community of animals, semen, ova and embryos not subject
Member States to observe the period for compliance laid                         to animal health requirements laid down in specific Community
down in the directive. That period expired on 1 October                         rules referred to in Annex A ( I ) to Directive 90/425/EEC ( OJ No
1993 without Ireland having enacted the provisions                              L 268 , 14 . 9 . 1992 , p. 54 ).
                                                                          (4 ) Council Directive 92/1 1 6/EEC of 1 7 December 1 992 amending
necessary to comply with the Directive referred to in the                       and updating Directive 71 / 118/EEC on health problems
conclusions of the Commission .
                                                                                affecting trade in fresh poultrymeat ( OJ No L 62 , 15 . 3 . 1993 ,
                                                                                p. 1 ).
( ] ) OJ No L 62 , 15 . 3 . 1993 , p. 69 .                                ( 5 ) Council Directive        92/ 117/EEC     of   17 December     1992
                                                                                concerning measures for protection against specified zoonoses
                                                                                and specified zoonotic agents in animals and products of animal
                                                                                origin in order to prevent outbreaks to food-borne infections
                                                                                and intoxications ( OJ No L 62 , 15 . 3 . 1993 , p. 38 ).
                                                                          ( 6 ) Council Directive 92/118/EEC of 17 December 1992 laying
                                                                                down animal health and public health requirements governing
                                                                                trade in and imports into the Community of products not
Action brought on 10 October 1995 by the Commission of                          subject to the said requirements laid down in specific
           the European Communities against Ireland                             Community rules referred to in Annex A ( I ) to Directive
                           ( Case C-3 19/95                                     89/662/EEC and , as regards pathogens, to Directive
                                                                                90/425/EEC ( OJ No L 62 , 15 . 3 . 1993 , p. 49 ).
                              ( 95/C 333/ 12 )
An action against Ireland was brought before the Court of
Justice of the European Communities on 10 October 1995