CELEX: 62002CC0006
Language: en
Date: 2002-12-05 00:00:00
Title: Opinion of Mr Advocate General Mischo delivered on 5 December 2002. # Commission of the European Communities v French Republic. # Failure by a Member State to fulfil obligations - Free movement of goods - Measures having equivalent effect - Indication of provenance - Regional labels. # Case C-6/02.

OPINION OF ADVOCATE GENERALMISCHO delivered on 5 December 2002 (1)
         Case C-6/02 Commission of the European CommunitiesvFrench Republic
            ((Failure by a Member State to fulfil its obligations – Free movement of goods – Measures having equivalent effect – Indication of provenance – Regional labels))
            
      
         
      I ─The legislative background
       A ─The relevant Community provisions
      
      1.  Under Article 28 EC, quantitative restrictions on imports and measures having equivalent effect are prohibited between Member
      States. Article 30 EC, however, authorises restrictions on imports between Member States which are justified on grounds of,
       
       inter alia , the protection of industrial and commercial property, on condition that they do not constitute a means of arbitrary discrimination
      or a disguised restriction on intra-Community trade.
      
      2.  Article 2(2)(b) 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 
      
         			(2)
         		 provides: For the purposes of this Regulation:...
      (b) geographical indication: 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 
             
      
      
      
      
            ─
               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.
             
      
      
      
      3.  A protected geographical indication (hereinafter  
      PGI) is recognised at the end of the procedure provided for in Articles 5 to 7 of Regulation No 2081/92, by the adoption of a
      registration ruling by the Commission. 
      
      4.  Article 17 of Regulation No 2081/92 provides that, within six months of the entry into force of the regulation, Member States
      are to inform the Commission which of their legally protected names or, in those Member States where there is no protection
      system, which of their names established by usage they wish to register pursuant to the regulation. The Commission registers
      the names referred to in paragraph 1 which comply with Articles 2 and 4. Member States may maintain national protection of
      the names communicated in accordance with paragraph 1 until such time as a decision on registration has been taken.
       B─The relevant national provisions
      
      5.  Following the entry into force of Regulation No 2081/92, the French Republic adopted Law No 94-2 of 3 January 1994 on the
      recognition of the quality of agricultural products and foodstuffs (JORF of 4 January 1994, p. 131; hereinafter  
      the Law). Article L.115-23-1 of the Law provides: The principle prohibiting the mention of a geographical indication, which is not registered as a protected geographical indication,
      on a label or certification of conformity is laid down in Article L. 643-4 of the Rural Code (
       Code Rural ) as follows: Article L-643-4 ─ The label or certification of conformity shall not contain any geographical indication not registered as
      a protected geographical indication.However, if the administrative authority has applied for registration of such a geographical indication as a protected geographical
      indication, the label or certification of conformity may contain that indication, including in the specific characteristics,
      until the date of the decision on its registration....Agricultural products and foodstuffs which qualified, prior to the publication of Law No 94-2 of 3 January 1994 on the recognition
      of quality of agricultural products and foodstuffs, for an agricultural label or certification of conformity may continue
      to bear a geographical indication of origin without being entitled to a protected geographical indication, for a period of
      eight years from the date of publication of that law.
      
      II ─The pre-litigation procedure
      
      6.  On 21 December 1992, the French authorities sent their response to an inquiry initiated by the Commission aimed at indexing
      the labels and other national quality designations in use in the agricultural products and foodstuffs sector, followed by
      a supplementary response on 14 January 1993. The Commission subsequently became aware of the adoption of the Law. 
      
      7.  The Commission found that a substantial number of French quality designations were reserved to products or foodstuffs originating
      in specific French regions only and, in those circumstances, sent a letter of formal notice to the French Government on 16
      December 1997. The Commission stated that the labels in issue infringed Article 28 EC, inasmuch as their use was reserved
      to products made in specific geographical areas, excluding products from other Member States which fulfilled the objective
      criteria under the labels' specifications, and inasmuch as the designations in question, through their wording, rendered illusory
      any potential access which the products of other Member States might enjoy. In the Commission's view, reserving quality designations,
      in this way, to products originating in a specific geographical area cannot be justified under Article 30 EC and the protection
      of industrial property. The Commission pointed out that Regulation No 2081/92 harmonised the rules for the protection of a
      designation including a geographical description, having regard to the products falling within its scope of application.
      
      8.  The French authorities invoked political, social, economic and technical difficulties in their responses to the letter of
      formal notice, in order to justify the maintenance, during a transitional period, of certain labels for which no classification
      had been decided.
      
      9.  The Commission considered these submissions and, by letter of 28 April 1999, sent a reasoned opinion stating that by maintaining
      the national legal protection afforded to the designations in issue, the French Republic had failed to fulfil its obligations
      under Article 30 of the EC Treaty (now, after amendment, Article 28 EC) and, in providing on the labelling of quality designations
      the wording  
      Contrôlé par qualité-France, the French Republic had failed to fulfil its obligations under Article 2(1) of 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. 
      
         			(3)
         		 In that letter, the Commission called on the French Republic to adopt the measures necessary to comply with the reasoned
      opinion within two months of the date of its notification.
      
      10.  On 7 July 1999, the Commission received a memorandum from the French authorities in response to the reasoned opinion, announcing
      their intention to review the approval of the designation  
      Salaisons d'Auvergne by removing the reference to the geographical name, to amend the rules relating to regional labels, and the intention of
      the president of the body Qualité-France to reformulate the presentation of its logo in order to clarify the body's functions
      for the consumer.
      
      11.  By letter of 5 December 2001, the French authorities transmitted a memorandum to the Commission, along with annexes, in response
      to the part of the reasoned opinion concerning the addition of the wording relating to the certification body Qualité-France.
      The French authorities, in this memorandum, informed the Commission that measures had been taken by the certification body
      so that the name  
      Qualité-France would only be cited as the granter of the certification, followed by its address.
      
      12.  Further to that memorandum, the Commission withdrew the ground for complaint relating to the infringement of Article 2(1)
      of Directive 79/112. On the other hand, the Commission remained of the view that, as concerned the regional labels, the French
      Republic had not complied with the requests set down in the reasoned opinion. The Commission therefore decided to bring the
      present action.
      
      III ─The written procedure and the forms of order sought  
      
      13.  The Commission claims that the Court should:
      
      
      ─
         declare that, by maintaining the national legal protection afforded to the designations  
         Salaisons d'Auvergne,  
         Label régional Savoie,  
         Label régional Franche-Comté,  
         Label régional Corse,  
         Label régional Midi-Pyrénées,  
         Label régional Normandie,  
         Label régional Nord-Pas-de-Calais,  
         Label régional Ardennes de France,  
         Label régional Limousin,  
         Label régional Languedoc-Roussillon and  
         Label régional Lorraine, the French Republic has failed to fulfil its obligations under Article 28 EC; 
      
      
      
      ─
         order the French Republic to pay the costs.
      
      
      
      14.  The French Republic does not contest that its national law was not in compliance with Community law but calls on the Court
      to take account of the development which has taken place in the relevant law and, consequently, to consider that this has
      put an end to the infringement of the Treaty.
      
      IV ─The pleas and arguments of the parties  
      
      15.  In its action, the Commission considers that the conformity, with Community law, of the labels introduced by the French rules
      must be assessed in the light of Articles 28 EC and 30 EC, interpreted with reference particularly to the provisions of Regulation
      No 2081/92. In this respect, the Commission cites the Court's judgments of 7 May 1997, 
      
         			(4)
         		 10 November 1992, 
      
         			(5)
         		 and 12 October 1978. 
      
         			(6)
         		
      16.  As concerns the designation  
      Salaisons d'Auvergne, the Commission points out that the French authorities had stated that this label was to be the subject of an application
      for registration as a PGI under Article 5 of Regulation No 2081/92. The Commission doubts however that such a label can be
      registered as such in so far as Regulation No 2081/92 provides for the registration only of a specific product or foodstuff,
      and not of a category of products such as those covered by the term  
      salaisons. In any event, in the absence of an application for registration of the designation  
      Salaisons d'Auvergne, the French authorities cannot validly rely on Article 5(5) of the said regulation, which would afford them the possibility
      of protecting the designation  
      Salaisons d'Auvergne for a transitional period and at national level, pending a Community decision on its registration. The label must therefore
      be assessed in the light of Articles 28 EC and 30 EC.
      
      17.  As concerns the other different regional labels, the Commission recalls that while Article L.115-23-1 of the Law states that
       
      the label ... shall not contain any geographical indication not registered as a protected geographical indication, it nevertheless establishes a transitional period of eight years from the date of publication of the Law, during which 
      
      products and foodstuffs which qualified, prior to the publication of [that law], for a label ... may continue to bear a [reserved]
      geographical indication of origin without being entitled to a protected geographical indication. The Commission submits that it is aware of the potential technical difficulties which might be faced by economic operators
      and the competent regional authorities in connection with the reform of the rules relating to the labels. However, the Commission
      cannot allow an eight year transitional period, which constitutes an infringement of Articles 28 EC and 30 EC.
      
      18.  The Commission is of the view that the French provisions which establish the designation  
      Salaisons d'Auvergne and the regional labels may affect the free movement of goods between Member States, particularly inasmuch as those provisions
      favour the marketing of goods of national origin to the disadvantage of imported goods. The application of those provisions
      creates and maintains, in itself, discrimination between those two categories of goods.
      
      19.  The designation  
      Salaisons d'Auvergne and the French regional labels are aimed at informing the consumer that the product bearing them comes from a specific region,
      by providing information to him on the source of agricultural products or foodstuffs. None the less, after the entry into
      force of Regulation No 2081/92, the purpose of which is precisely to define, exclusively, the conditions under which a designation
      establishing a link between agricultural products or foodstuffs and a specific geographical origin may be protected, the protection
      of designations of origin and geographical indications can, henceforth, be carried out only in the circumstances outlined
      by the regulation.
      
      20.  The Commission considers that, outside the material scope of Regulation No 2081/92, the concept of  
      indication of provenance approved by the Court may justify an obstacle to the principle of the free movement of goods only if it serves to protect
      the significant reputation acquired amongst consumers by a product or a particular foodstuff originating in a certain region.
      The designation  
      Salaisons d'Auvergne and the French regional labels do not constitute  
      indications of provenance within the meaning of the Court's case-law, inasmuch as they are attached not to a product or a particular foodstuff, but
      to groups of products the special reputation of which is, however, neither asserted nor established.
      
      21.  The Commission accordingly concludes that, inasmuch as the designation  
      Salaisons d'Auvergne and the regional labels have not been registered under Regulation No 2081/92 and inasmuch as they do not constitute  
      indications of provenance either, it is not possible to rely on Article 30 EC to attempt to justify the obstacle to intra-Community trade brought about
      by those labels. 
      
      22.  In its defence, the French Government concedes that the designation  
      Salaisons d'Auvergne is not compatible with Community law and states that it will be removed by decree. 
      
      23.  In respect of the  
      Savoie regional label, the French Government points out that the designations  
      tomme de Savoie,  
      emmental de Savoie and  
      pommes et poires de Savoie were registered as PGI by Commission Regulation (EC) No 1107/96 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 
      
         			(7)
         		 and that the designations  
      jambon de Savoie and  
      saucisson sec de Savoie are the subject of two applications, currently under way, for PGI registration. Finally, the designations  
      jésus, rosette,  
      pur jus de pomme de Savoie and  
      plants de vigne de Savoie are to be abolished by a decree in the process of being drafted.
      
      24.  In the case of the  
      Franche-Comté regional label, the French Government submits that no amendment of existing national law is required. Indeed, the designation
       
      morbier au lait cru was approved as a designation of origin (appellation d'origine contrôlée) by Decree of 22 December 2000 
      
         			(8)
         		 on the designation of origin  
      Morbier. An application for registration under Article 5 of Regulation No 2081/92 was sent to the Commission on 24 November 2000.
      The other products covered by the label are all the subject of an application, currently under way, for PGI registration.
      
      
      25.  Concerning the  
      Corse regional label, the French Government observes that it appears never to have been used and is moreover to be abolished.
      
      26.  The French Government explains, as to the  
      Midi-Pyrénées regional label, that the only products concerned are  
      produits de palmipèdes gras. A decree repealing the provisions on force-fed duck products is currently being drafted.
      
      27.  As for the  
      Normandie regional label, the French Government observes that the specifications of the products concerned were subject to a series
      of assessments, and have been approved as PGI or as agricultural labels without a geographical indication, so that making
      national law consistent with Community law does not require the repeal of any text.
      
      28.  As regards the  
      Nord-Pas-de-Calais regional label, the French Government states that, for the products  
      fromage vieux Lille or  
      fromage gris de Lille,  
      bières spéciales du Nord, and  
      langue de Valenciennes à la Lucullus, applications for PGI registration are being assessed. The provisions of national law concerning the other products marketed
      under this label are in the process of being repealed. 
      
      29.  The French Government explains, concerning the  
      Ardennes de France regional label, that the designations  
      jambon sec des Ardennes,  
      noix des Ardennes and  
      boudin blanc de Rethel qualify for a PGI under Commission Regulation (EC) No 2036/2001 of 17 October 2001 supplementing the Annex to Regulation
      (EC) No 2400/96 on the entry of certain names in the  
      Register of protected designations of origin and protected geographical indications provided for in Regulation (EEC) No 2081/92. 
      
         			(9)
         		 As for the products  
      porcs des Ardennes and  
      boudin blanc à l'oignon de la Vallée de la Meuse, two applications for PGI registration are being considered. A decree is being drafted in order to repeal the provisions
      relating to the other designations, namely  
      saucisson sec,  
      fromage de Rocroi,  
      galette au sucre,  
      gâteau mollet and  
      cidre.
      
      30.  As for the  
      Limousin regional label, the French Government states that the Limousin indication of origin is used only for those products qualifying
      for a PGI. Consequently, making national law consistent with Community law does not require the repeal of any text.
      
      31.  As regards the  
      Languedoc-Roussillon regional label, the French Government submits that the only products bearing a reference to the Languedoc region are  
      volailles du Languedoc, which are registered as a PGI under Regulation 1107/96. The specifications of other poultry products have been approved
      without a geographical reference and are the subject of an application for PGI registration under the designation  
      volailles de Cévennes. Use of the term  
      Languedoc-Roussillon is therefore consistent with Community legislation. 
      
      32.  Finally, concerning the  
      Lorraine regional label, the French Government points out that the products bearing wording under this label are  
      Mirabelles de Lorraine and  
      Bergamotes de Nancy, which were registered as PGI under Regulation No 1107/96. Use of the term  
      Lorraine is therefore in compliance with Community legislation.
      
      33.  The Commission, in its reply, takes formal note that the French Government concedes that the designation  
      Salaisons d'Auvergne is not compatible with Community law and that the government therefore acknowledges its failure to fulfil its obligations
      under Article 28 EC. As for the other regional labels, the Commission notes that the French Government, as of the date of
      its written pleadings, acknowledges that it has continued to fail to fulfil its obligations under Article 28 EC by maintaining
      the legal protection afforded to those designations.
      
      34.  The French Government, in its rejoinder, states that after adoption of a new domestic legal framework, the relevant labels
      and designations are as follows:The Decree of 12 August 2002 of the Minister for Agriculture, Food, Fisheries and Rural Affairs and of the Secretary of State
      for Small and Medium-Sized Enterprises, Trade, Craft Industries, Liberal Professions and Consumer Affairs,  amending decrees
      relating to regional labels (JORF of 11 September 2002, p. 15051), brings about the following amendments:
      
      
      ─
         it abolishes the designation  
         Salaisons d'Auvergne; 
      
      
      
      ─
         as for the  
         Savoie regional label, it abolishes the designations  
         jésus, rosette,  
         pur jus de pomme de Savoie and  
         plants de vigne de Savoie; 
      
      
      
      ─
         as regards the  
         Franche-Comté regional label, the indication  
         morbier au lait cru no longer appears on the list of protected labels; 
      
      
      
      ─
         it abolishes the  
         Midi-Pyrénées regional label; 
      
      
      
      ─
         concerning the  
         Nord-Pas-de-Calais regional label, only those products for which an application for PGI registration is underway remain on the list of protected
         products; 
      
      
      
      ─
         as concerns the  
         Ardennes de France regional label, the provisions on the designations  
         saucisson sec,  
         fromage de Rocroi,  
         galette au sucre,  
         gâteau mollet and  
         cidre are repealed.  
      
      
      
      35.  The  
      Corse regional label is abolished by another decree, of 12 August 2002 of the Minister for Agriculture, Food, Fisheries and Rural
      Affairs, which repeals a general regulation concerning agricultural labels. 
      
         			(10)
         		
      36.  As for the  
      Lorraine regional label, the products bearing wording under this label have been registered as PGI by Regulation No 1107/96.
      
      37.  Finally, the French Government states that, as concerns the  
      Normandie,  
      Limousin and  
      Languedoc-Roussillon regional labels, bringing national law into line did not require any amendment. 
      
      V ─Assessment  
      
      38.  It is for the Commission to check whether the provisions of those decrees have made French legislation consistent with Community
      law.
      
      39.  It is apparent, in any event, that the said decrees were adopted after the expiry of the period laid down by the reasoned
      opinion.
      
      40.  In that regard, according to settled case-law, cited again by the Court in a recent judgment, 
      
         			(11)
         		 the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation
      prevailing in the Member State at the end of the period laid down in the reasoned opinion. 
      
         			(12)
         		
      41.  Furthermore, as the Court also pointed out in the judgment  
       Commission  v
       Spain , 
      
         			(13)
         		 it is settled case-law that a Member State may not rely on provisions, practices or circumstances in its own legal order
      to justify failure to implement a directive within the prescribed period. 
      
         			(14)
         		
      42.  Since the infringement asserted by the Commission has thus been made out, it must be granted the form of order sought. 
       
      VI ─Conclusion
      
      43.  In view of the foregoing, I suggest that the Court: 
      
      
      ─
         declare that, by maintaining the national legal protection afforded to the designations  
         Salaisons d'Auvergne,  
         Label régional Savoie,  
         Label régional Franche-Comté,  
         Label régional Corse,  
         Label régional Midi-Pyrénées,  
         Label régional Normandie,  
         Label régional Nord-Pas-de-Calais,  
         Label régional Ardennes de France,  
         Label régional Limousin,  
         Label régional Languedoc-Roussillon and  
         Label régional Lorraine, the French Republic has failed to fulfil its obligations under Article 28 EC; 
      
      
      
      ─
         order the French Republic to pay the costs. 
      
      
      
       1 –
         
           Original language: French.
      
      2 –
         
         OJ 1992 L 208, p. 1.
      
      3 –
         
         OJ 1979 L 33, p. 1.
      
      4 –
         
         Joined Cases C-321/94 to C-324/94  
             Pistre and Others  [1997] ECR I-2343.
         
      
      5 –
         
         Case C-3/91  
             Exportur  [1992] ECR I-5529.
         
      
      6 –
         
         Case 13/78  
             Eggers  [1978] ECR 1935.
         
      
      7 –
         
         OJ 1996 L 148, p. 1.
      
      8 –
         
         JORF of 30 December 2000, p. 20944.
      
      9 –
         
         OJ 2001 L 275, p. 9.
      
      10 –
         
         JORF of 11 September 2002, p. 15051.
      
      11 –
         
         Case C-352/01  
             Commission  v  
             Spain  [2002] ECR I-10263, paragraph 6.
         
      
      12 –
         
         The Court refers, in particular, to Case C-147/00  
             Commission  v  
             France  [2001] ECR I-2387, paragraph 26.
         
      
      13 –
         
         Cited above in footnote 11, paragraph 8.
      
      14 –
         
         The Court refers, in particular, to Case C-276/98  
             Commission  v  
             Portugal   [2001] ECR I-1699, paragraph 20.