Kingdom of Denmark, Federal Republic of Germany and French Republic v Commission of the European Communities.
Date: 1999-03-16
27 Second, that name was protected by a convention between the Republic of Austria and the Kingdom of Greece, concluded on 20 June 1972 under an agreement of 5 June 1970 between those two States relating to the protection of indications of provenance, designations of origin and names of agricultural, craft and industrial products (BGBl. Nos 378/1972 and 379/1972; sterreichisches Patentblatt No 11/1972 of 15 November 1972).
84 In the explanatory memorandum to the proposal for a decision, the Commission simply stated that the basic regulation requires that all factors be taken into account, including those expressly listed in Article 3(1), before going on to say that those criteria `are to be considered together' and that it should be noted in that connection that in paragraph 37 of its judgment in Exportur v LOR SA and Confiserie du Tech SA, cited above, `the Court took as a criterion the status of the name in the Member State of origin with a view to establishing whether it had become generic'.  However, the Commission did not give any indication whether and to what extent the names which it finally proposed treating as generic fulfilled those criteria or of the reasons for which it considered that the name `Feta' to which it devoted a separate chapter in its explanatory memorandum to the proposal for a decision did not fulfil them.
87 With respect to those factors, it must nevertheless be observed that the Commission minimised the importance to be attached to the situation existing in the Member States other than the State of origin and considered their national legislation to be entirely irrelevant on the grounds, first, that, as is apparent from paragraph 37 of the judgment in Exportur v LOR SA and Confiserie du Tech SA, cited above, it is appropriate to attach primary importance to the situation existing in the Member State of origin and, second, that the fact that, in other Member States, the name `Feta' may have been used for the marketing of lawfully produced cheese is no basis for concluding that that name has become generic.
89 Next, in Exportur v LOR SA and Confiserie du Tech SA, cited above, the Court was called on to rule whether it is contrary to the free movement of goods for a bilateral agreement between two Member States to render applicable, in the State of importation, the law of the State of origin, thus derogating from the principle of territoriality, according to which the protection of indications of provenance and designations of origin is governed by the law of the State in which the protection is applied for, that is to say by that of the State of importation.
90 In answering that question in the negative, but subject to the express condition that the geographical indications which that bilateral agreement is intended to protect have not, at the time of its entry into force or thereafter, become generic in the State of origin, the Court therefore did no more than ensure that the protection in the State of origin should not be extended to the territory of another State unless, in the State of origin itself, that protection is, or continues to be, deserved.
92 Second, as the Commission itself pointed out in its defence in Case C-293/96, it must be noted that, even though Article 17(2) of the basic regulation expressly provides that Article 7 thereof is not applicable in the simplified registration procedure, a registration under that procedure also presupposes that the names conform with the substantive requirements of that regulation.  In the absence of express provisions to the contrary, there is no possibility, under the simplified procedure, of names being registered which do not fulfil the substantive conditions for registration under the normal registration procedure.
99 That distinction does not mean that the fact that a product has been legally marketed under a name in certain Member States cannot constitute a factor to be taken into account when considering whether, in the meantime, it has become generic within the meaning of Article 3(1) of the basic regulation.