CELEX: C2003/055/21
Language: en
Date: 2003-03-08 00:00:00
Title: Case C-468/02: Action brought on 31 December 2002 by Kingdom of Spain against Commission of the European Communities

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.
 ---pagebreak--- 8.3.2003                 EN                          Official Journal of the European Union                                           C 55/13
Pleas in law and main arguments                                              Appeal brought on 23 December 2002 by the European
                                                                             Broadcasting Union (EBU) against the judgment delivered
                                                                             on 8 October 2002 by the Second Chamber, Extended
                                                                             Composition, of the Court of First Instance of the Euro-
(Public storage        of olive oil, financial correction of                 pean Communities in Joined Cases T-185/00, T-216/00,
EUR 37 621,55)                                                               T-299/00 and T-300/00 between Métropole télévision SA
                                                                             (M6), Antena 3 de Televisión, SA, Gestevisión Telecinco,
                                                                             SA, SIC-Sociedade Independente de Communicação, SA,
The successful tenderer fulfilled its obligation to communicate              supported by Deutsches SportFernsehen GmbH (DSF)
its refusal to take over the lot, informing and notifying the                and Reti Televisive Italiane Spa (RTI) and Commission
Commission thereof in fulfilment of its obligation under                     of the European Communities, supported by European
Article 10 of Regulation No 561/99 ( 2).                                     Broadcasting Union (EBU) and Radiotelevisión Española
                                                                                                          (RTVE)
Secondly, return of the securities did not result in any loss to
the Community budget since the oil in question continued to                                         (Case C-470/02 P)
form part of the intervention stock, subject to that body of
rules and available to cover future operations, just as if refusal
had been communicated by the successful tenderer directly to                                          (2003/C 55/22)
the Commission.
                                                                             An appeal against the judgment delivered on 8 October 2002
(Areas harvested for pasture by the paying agency of Castile                 by the Second Chamber, Extended Composition, of the Court
and Leon, financial correction of EUR 1 229 951,00)                          of First Instance of the European Communities in Joined
                                                                             Cases T-185/00, T-216/00, T-299/00 and T-300/00 between
                                                                             Métropole télévision SA (M6), Antena 3 de Televisión, SA,
The corrections relating to the 1998 and 1999 harvests are                   Gestevisión Telecinco, SA, SIC-Sociedade Independente de
the result of applying 2 % to the result of dividing the total               Communicação, SA, supported by Deutsches SportFernsehen
declared area in cases where the discrepancies detected during               GmbH (DSF) and Reti Televisive Italiane Spa (RTI) and
administrative checks were in excess of 3 % or 2 hectares into               Commission of the European Communities, supported by
the total declared area.                                                     European Broadcasting Union (EBU) and Radiotelevisión
                                                                             Española (RTVE) was brought before the Court of Justice of
                                                                             the European Communities on 23 December 2002 by the
Spain does not agree with the Commission on the proposed                     European Broadcasting Union (EBU), represented by D. Wael-
financial correction because, first, Community legislation (3)               broeck and M. Johnsson, lawyers.
does not mean that the results of the administrative checks
should be included in the risk analysis when selecting the
checks to be made on the spot and, secondly, handling of the
applications for ‘area’ aid makes it impossible to carry out all             The appellant claims that the Court should:
the administrative checks before on-the-spot checks are carried
out.                                                                         —     set aside the judgment of the Court of First Instance of
                                                                                   the European Communities of 8 October 2002 in Joined
                                                                                   Cases T-185/00, T-216/00, T-299/00 and T-300/00,
Nonetheless, in the Autonomous Community of Castile and                            Métropole Télévision and Others v Commission;
Leon cases in which irregularities have been detected in
the administrative checks carried out the previous year are
systematically included as a risk criterion when selecting the               —     send the case back to the Court of First Instance so that it
sample of cases for on-the-spot checks.                                            may rule on the other pleas in law raised by the applicants
                                                                                   on which it has not yet ruled;
( 1) Commission Decision 2002/881/EC of 5 November 2002 exclud-              —     reserve the costs.
     ing from Community financing certain expenditure incurred by
     the Member States under the Guarantee Section of the European
     Agricultural Guidance and Guarantee Fund (EAGGF), OJ 2002 L
     306, p. 26.
( 2) Commission Regulation (EC) No 561/1999 of 15 March 1999 on              Pleas in law and main arguments
     the opening of a standing invitation to tender for the sale of olive
     oil held by the Spanish intervention agency, OJ L 69, 16.1.1999,
     p. 13.
( 3) Article 6(4) of Commission Regulation (EEC) No 3887/92 of               By basing its reasoning on arguments that were not raised by
     23 December 1992, OJ 1992 L 391, p. 36.                                 the applicants, the Court of First Instance has ruled ultra petita
                                                                             and infringed the rights of the defence of the EBU and of the
                                                                             Commission. The decisive element for the Court of First
                                                                             Instance is the application of the sub-licensing scheme for ‘live