Budéjovický Budvar, národní podnik v Rudolf Ammersin GmbH.
Date: 2003-11-18
47. It is settled law that in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98  PreussenElektra  [2001] ECR I-2099, paragraphs 38 and 39).
54. That question deals with the hypothesis that the name Bud constitutes a simple and indirect indication of geographical source, that is to say, a name in respect of which there is no direct link between a specific quality, reputation or other characteristic of the product and its specific geographical origin, so that it does not come within the scope of Article 2(2)(b) of Regulation No 2081/92 (see Case C-312/98  Warsteiner Brauerei  [2000] ECR I-9187, paragraphs 43 and 44), and which, moreover, is not in itself a geographical name but is at least capable of informing the consumer that the product bearing that indication comes from a particular place, region or country (see Case C-3/91  Exportur  [1992] ECR I-5529, paragraph 11).
─ Regulation No 2081/92
Observations submitted to the Court
73. The Court has already held that there is nothing in Regulation No 2081/92 to imply that simple indications of geographical source cannot be protected under the national legislation of a Member State (see  Warsteiner Brauerei , paragraph 45).
74. The aim of Regulation No 2081/92 is to ensure uniform protection within the Community of the geographical designations which it covers; it introduced a requirement of Community registration in respect of those designations so that they could enjoy protection in every Member State, whereas the national protection which a Member State accords to geographical designations that do not meet the conditions for registration under Regulation No 2081/92 is governed by the national law of that Member State and is confined to its territory (see  Warsteiner Brauerei , paragraph 50).
76. The scope of Regulation No 2081/92 is not determined by reference to such factors, but depends essentially on the nature of the designation, in that it covers only designations of products for which there is a specific link between their characteristics and their geographic origin, and by the fact that the protection conferred extends to the Community.
95. Articles 28 EC and 30 EC apply without distinction to products originating in the Community and to those admitted into free circulation in any of the Member States, whatever the real origin of such products. It is therefore subject to those reservations that those articles apply to the American Bud beer at issue in the main proceedings (see, to that effect, Case 125/88  Nijman  [1989] ECR 3533, paragraph 11).
96. In the case at issue in the main proceedings, the prohibition on marketing beer from countries other than the Czech Republic under the name of Bud in Austria, which follows from the bilateral convention, is capable of affecting imports of that product under that name from other Member States and thus of constituting a barrier to intra-Community trade. Such a rule is therefore a measure having an effect equivalent to a quantitative restriction within the meaning of Article 28 EC (see, to that effect,  Nijman , paragraph 12, and  Exportur , paragraphs 19 and 20).
97. National legislation prohibiting the use of a geographical name for goods originating in a non-member country which are admitted into free circulation in other Member States where they are lawfully marketed does not, it is true, absolutely preclude the importation of those products into the Member State concerned. It is, however, likely to make their marketing more difficult and thus to impede trade between Member States (see, to that effect, Case C-448/98  Guimont  [2000] ECR I-10663, paragraph 26).
99. The Court has already held, in relation to the absolute protection of an indication of source granted under a bilateral agreement of essentially the same kind as the one at issue in the main proceedings, that the aim of such an agreement, which is to prevent the producers of a contracting State from using the geographical names of another State and thereby taking advantage of the reputation of the products of undertakings established in the regions or places indicated by those names, is to ensure fair competition. Such an objective may be regarded as falling within the sphere of the protection of industrial and commercial property within the meaning of Article 30 EC, provided that the names in question have not, either at the time of the entry into force of that agreement or subsequently, become generic in the country of origin (see  Exportur , paragraph 37, and Case C-87/97  Consorzio per la tutela del formaggio Gorgonzola  [1999] ECR I-1301, paragraph 20).
102. In the light of the foregoing, the answer to the first question, in so far as it concerns Articles 28 EC and 30 EC, must be that those articles do not preclude the application of a provision of a bilateral agreement between a Member State and a non-member country, under which a simple and indirect indication of geographical origin from that non-member country is accorded protection in the Member State concerned, whether or not there is any risk of consumers being misled, and the import of a product lawfully marketed in another Member State may be prevented, provided that the protected name has not, either at the date of the entry into force of that agreement or subsequently, become generic in the State of origin (see  Exportur , paragraph 39).
108. In that case, and without prejudice to any protection under specific rights such as trade mark rights, the protection of that name cannot be justified on the grounds of protection of industrial and commercial property within the meaning of Article 30 EC (see, to that effect,  Exportur , paragraph 37, and Joined Cases C-321/94 to C-324/94  Pistre and Others  [1997] ECR I-2343, paragraph 53).
144. It follows from the first paragraph of Article 307 EC that rights and obligations under an agreement concluded between a Member State and a non-member country before the date of accession of that Member State are not affected by the Treaty provisions.
145. The purpose of that provision is to make clear, in accordance with the principles of international law, that application of the EC Treaty does not affect the duty of the Member State concerned to respect the rights of non-member countries under an earlier agreement and to perform its obligations thereunder (see, inter alia, Case C-84/98  Commission  v  Portugal  [2000] ECR I-5215, paragraph 53).
146. Consequently, in order to determine whether a Community rule may be deprived of effect by an earlier international agreement, it is necessary to examine whether that agreement imposes on the Member State concerned obligations whose performance may still be required by the non-member country which is party to it (see, to that effect, inter alia, Joined Cases C-364/95 and C-365/95  T. Port  [1998] ECR I-1023, paragraph 60).
170. If it proves impracticable to interpret an agreement concluded prior to a Member State ' s accession to the European Union in such a way that it is consistent with Community law then, within the framework of Article 307 EC, it is open to that State to take the appropriate steps, while, however, remaining obliged to eliminate any incompatibilities existing between the earlier agreement and the Treaty. If that Member State encounters difficulties which make adjustment of an agreement impossible, an obligation to denounce that agreement cannot therefore be excluded (see  Commission  v  Portugal , paragraph 58).