Bavaria NV and Bavaria Italia Srl v Bayerischer Brauerbund eV.
Date: 2009-07-02
38. In that regard, it must be borne in mind that, according to settled case-law, it is a general principle of Community law that an applicant, in proceedings brought under national law against the rejection of his application, is entitled to plead the unlawfulness of a Community measure on which the national decision taken in his regard is based, and the question of the validity of that Community measure may thus be referred to the Court in proceedings for a preliminary ruling (Case C‑239/99 Nachi Europe  [2001] ECR I‑1197, paragraph 35, and Case C‑441/05 Roquette Frères  [2007] ECR I‑1993, paragraph 39).
39. However, this general principle, which has the effect of ensuring that every person has or will have had the opportunity to challenge a Community measure which forms the basis of a decision adversely affecting him, does not in any way preclude a regulation from becoming definitive as against an individual with respect to whom it must be regarded as an individual decision whose annulment he could undoubtedly have sought under Article 230 EC, a fact which prevents that individual from pleading the unlawfulness of that regulation before the national court ( Nachi Europe , paragraph 37, and Roquette Frères , paragraph 40).
40. Therefore, the question arises as to whether an action for annulment by Bavaria or Bavaria Italia challenging Regulation No 1347/2001 under the fourth paragraph of Article 230 EC would undoubtedly have been admissible on the ground that that regulation was of direct and individual concern to them (see, to that effect, Case C‑241/95 Accrington Beef and Others  [1996] ECR I‑6699, paragraph 15; Nachi Europe , paragraph 40; and Roquette Frères , paragraph 41).
41. In that regard, it must be observed that Bavaria and Bavaria Italia may not be regarded, for the purpose of the fourth paragraph of Article 230 EC, as undoubtedly ‘directly and individually concerned’ by Regulation No 1347/2001.
43. Even if Regulation No 1347/2001 were capable of affecting Bavaria and Bavaria Italia’s legal position, that effect could not be regarded as resulting directly from that regulation. In accordance with settled case-law, the condition that the Community legislation forming the subject-matter of the proceedings must be of direct concern to a natural or legal person means that that legislation must affect directly the legal situation of the individual and leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see Case C‑404/96 P Glencore Grain  v Commission  [1998] ECR I‑2435, paragraph 41; Case C‑486/01 P Front National  v Parliament  [2004] ECR I‑6289, paragraph 34; and Case C‑15/06 P Regione Siciliana  v Commission  [2007] ECR I‑2591, paragraph 31).
46. Bavaria and Bavaria Italia did not undoubtedly have standing to bring an action for annulment against Regulation No 1347/2001 on the basis of Article 230 EC. Consequently, they are entitled, in an action brought in accordance with national law, to plead the invalidity of that regulation even though they did not bring an action for its annulment before the Community judicature within the period laid down in Article 230 EC.
Alleged infringement of general principles of Community law by Regulation No 2081/92 as regards its scope and legal basis
50. In the second place, as regards the argument that Articles 32 EC and 37 EC do not constitute the appropriate legal basis for the adoption of Regulation No 2081/92, on the ground that beer is not one of the ‘agricultural products’ mentioned in Annex I to the Treaty, it must be borne in mind that the Court has already held that legislation which contributes to the achievement of one or more of the objectives mentioned in Article 33 EC must be adopted on the basis of Article 37 EC, even though, in addition to applying essentially to products falling within Annex I to the Treaty, it also covers incidentally other products not included in that annex (see, to that effect, Case C‑11/88 Commission  v Council , paragraph 15, and Case C‑180/96 United Kingdom  v Commission  [1998] ECR I‑2265, paragraph 134).
54. It must be noted at the outset that, even though Article 17(2) of Regulation No 2081/92 expressly provided that Article 7 of that regulation was not applicable in the simplified registration procedure, and therefore, in the context of that procedure, excluded the right of objection by legitimately concerned third parties provided for in Article 7(3) of the regulation, a registration under that procedure also presupposed that the names conformed with the substantive requirements of the regulation (see Joined Cases C‑289/96, C‑293/96 and C‑299/96 Denmark and Others  v Commission ( ‘ Feta I’)  [1999] ECR I‑1541, paragraph 92).
55. In any event, the Court has already held that the interpretation to be given to Article 17 of Regulation No 2081/92 certainly did not mean that interested third parties who considered their legitimate interests infringed by the registration of a name could not obtain a hearing and state their objection before the Member State requesting that registration, inter alia in accordance with the principles relating to judicial protection, as results from the system of Regulation No 2081/92 (see Carl Kühne and Others , paragraph 41).
57. It was for the national courts to rule on the lawfulness of an application for registration of a designation under Article 17 of Regulation No 2081/92 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, Case C‑97/91 Oleificio Borelli  v Commission  [1992] ECR I‑6313, paragraph 13, and Carl Kühne and Others , paragraph 58).
64. In that regard, it must be borne in mind that there is, in the system established by Regulation No 2081/92, a division of powers between the Member State concerned and the Commission. 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 (see Carl Kühne and Others , paragraphs 50 and 51).
65. 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 provision 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 (see Carl Kühne and Others , paragraph 52).
66. 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 (see Carl Kühne and Others , paragraph 53).
67. 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, second, 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 (see Carl Kühne and Others , paragraph 54).
70. It must be stated at the outset that, while the Court has jurisdiction to analyse whether a name registered under Regulation No 2081/92 complies with the conditions set out in that regulation, it is for the national courts alone to review the verification of that compliance initiated by the competent national authorities, as was pointed out in paragraphs 55 and 57 above.
71. By contrast, it is for the Court to review whether the Council and the Commission properly carried out their task of verifying compliance with the conditions set out in Regulation No 2081/92.
77. That interpretation of Article 17 of Regulation No 2081/92 is further supported 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 (see Carl Kühne and Others,  paragraph 33).
81. It should be noted at the outset, first, that in matters concerning the common agricultural policy the Community legislature has a broad discretion which corresponds to the political responsibilities given to it by Articles 34 EC and 37 EC and that the Court has, on several occasions, held that the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate, having regard to the objective which the competent institution is seeking to pursue (see Case C‑280/93 Germany  v Council [1994] ECR I‑4973, paragraphs 89 and 90, and Case C‑306/93 SMW Winzersekt  [1994] ECR I‑5555, paragraph 21).
82. Consequently, review by the Court must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion (Case C‑189/01 Jippes and Others  [2001] ECR I‑5689, paragraph 80; C‑304/01 Spain  v Commission  [2004] ECR I‑7655, paragraph 23; and Case C‑535/03 Unitymark and North Sea Fishermen’s Organisation  [2006] ECR I‑2689, paragraph 55).
84. When implementation by the Council or the Commission of the Community’s agricultural policy necessitates the evaluation of a complex economic or social situation, their discretion is not limited solely to the nature and scope of the measures to be taken but also, to some extent, to the finding of basic facts. In that context, it is open to the Council or the Commission to rely if necessary on general findings (see, to that effect, Case C‑122/94 Commission  v Council  [1996] ECR I‑881, paragraph 18; Case C‑4/96 NIFPO and Northern Ireland Fishermen’s Federation  [1998] ECR I‑681, paragraphs 41 and 42; Case C‑179/95 Spain  v Council  [1999] ECR I‑6475, paragraph 29; and Case C‑120/99 Italy  v Council  [2001] ECR I‑7997, paragraph 44).
101. In that regard, it must be borne in mind that when assessing the generic character of a name, it is necessary, under Article 3(1) of Regulation No 2081/92, to take into account the places of production of the product concerned both inside and outside the Member State which obtained the registration of the name at issue, the consumption of that product and how it is perceived by consumers inside and outside that Member State, the existence of national legislation specifically relating to that product, and the way in which the name has been used in Community law (see Case C‑132/05 Commission  v Germany  [2008] ECR I‑957, paragraph 53).