Carl Kühne GmbH & Co. KG and Others v Jütro Konservenfabrik GmbH & Co. KG.
Date: 2001-12-06
33 That interpretation of Article 17 of Regulation No 2081/92 is further supported, as the Austrian Government has more particularly submitted, by the fact that the northern Member States have not historically had registers of protected designations, protection having been afforded by laws against misleading practices. It was only when Regulation No 2081/92 entered into force that it became necessary for those Member States to draw up a list of existing designations and determine whether they were PDOs or PGIs. It would therefore have been unrealistic to require those Member States to provide the Commission, within six months from the entry into force of Regulation No 2081/92, with all the information and documents necessary for a decision on registration, especially given the time needed for interested parties to exercise their procedural rights at the national level.
41 Moreover, the interpretation which is to be given to Article 17 of Regulation No 2081/92 certainly does not mean that interested third parties who consider their legitimate interests infringed by the registration cannot obtain a hearing in accordance with the principles relating to judicial protection, as results from the system of Regulation No 2081/92 and is described in paragraphs 57 and 58 below.
50 In this context, it must be stated that there is, in the system established by Regulation No 2081/92, a division of powers between the Member State concerned and the Commission.
51 Whether a registration under the normal procedure or the simplified procedure is concerned, the registration can only take place if the Member State concerned has made an application in that regard and has forwarded a specification and the necessary information for registration, in accordance with Article 4 of Regulation No 2081/92.
52 Under Article 5(5) of Regulation No 2081/92, it is for the Member States to check whether the application for registration under the normal procedure is justified with regard to the conditions laid down by that regulation. That article provides that a Member State to which an application for registration is submitted under the normal procedure must check that the application is justified and, if it considers that the requirements of Regulation No 2081/92 are satisfied, forward it to the Commission. Furthermore, it follows from the very terms of Article 6(1) of Regulation No 2081/92 that, before proceeding with the registration, as provided for by Article 6(2) to (4) and Article 7 of that regulation, the Commission undertakes only a simple formal examination to check whether those requirements are satisfied. There is no ground for applying other principles in the context of the simplified procedure.
53 It follows that the decision to register a designation as a PDO or as a PGI may only be taken by the Commission if the Member State concerned has submitted to it an application for that purpose and that such an application may only be made if the Member State has checked that it is justified. That system of division of powers is attributable particularly to the fact that registration assumes that it has been verified 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.
54 Under that system of division of powers, it is for the Commission, before registering a designation in the category applied for, to verify, in particular, first, 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 and that that information does not appear to contain obvious mistakes, and, secondly, on the basis of the information contained in the specification, that the designation satisfies the requirements of Article 2(2)(a) or (b) of Regulation No 2081/92.
57 In that regard, it must be noted that the requirement of judicial control stems from the constitutional traditions common to the Member States and is enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Case C-97/91 Oleificio Borelli v Commission [1992] ECR I-6313, paragraph 14, Case C-1/99 Kofisa Italia [2001] ECR I-207, paragraph 46, and Case C-226/99 Siples [2001] ECR I-277, paragraph 17). That requirement must also be complied with with regard to a measure, such as the application for registration at issue in the main proceedings, which constitutes a necessary step in the procedure for adoption of a Community measure, where the Community institutions have only a limited or non-existent discretion with regard to that measure (see, to that effect, Oleificio Borelli v Commission, paragraph 9 et seq.).
58 It is, therefore, for the national courts to rule on the lawfulness of an application for registration of a designation, such as that at issue in this case, on the same terms as those by which they review any definitive measure adopted by the same national authority which is capable of adversely affecting the rights of third parties under Community law, and, consequently, to regard an action brought for that purpose as admissible, even if the domestic rules of procedure do not provide for this in such a case (see, to that effect, Oleificio Borelli v Commission, paragraph 13).