Federal Republic of Germany (C-465/02) and Kingdom of Denmark (C-466/02) v Commission of the European Communities.
Date: 2005-10-25
37. A procedural irregularity of this nature could entail annulment of the act ultimately adopted only if, were it not for that irregularity, the procedure could have led to a different result (see, to that effect, Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others  v Commission  [1980] ECR 3125, paragraph 47; Case 128/86 Spain  v Commission  [1987] ECR 4171, paragraph 25; and Case C‑142/87 Belgium v Commission (‘Tubemeuse’)  [1990] ECR I-959, paragraph 48).
50. It follows from a combined reading of those two provisions that the place or region referred to in Article 2(3) must be defined as a geographical environment with specific natural and human factors and which is capable of giving an agricultural product or foodstuff its specific characteristics. The area of origin referred to must, therefore, present homogenous natural factors which distinguish it from the areas adjoining it (see, to that effect, Case 12/74 Commission  v Germany  [1975] ECR 181, paragraph 8).
75. It must be recalled that the third subparagraph of Article 3(1) of the basic regulation provides:
‘To establish whether or not a name has become generic, account shall be taken of all factors, in particular:
– the existing situation in the Member State in which the name originates and in areas of consumption,
– the existing situation in other Member States,
– the relevant national or Community laws.’
76. As to the argument put forward by the Danish Government to the effect that the term ‘feta’ refers to a type of cheese originating from the Balkans, it is common ground that white cheeses soaked in brine have been produced for a long time, not only in Greece but in various countries in the Balkans and the southeast of the Mediterranean basin. However, as noted in point B(a) of the scientific committee’s opinion, those cheeses are known in those countries under other names than ‘feta’.
77. As regards the production situation in the Hellenic Republic itself, the Danish Government submits, without being contradicted on this point, that, until 1988, cheese produced from cow’s milk according to methods other than the traditional Greek methods was imported into Greece under the name ‘feta’ and that, until 1987, feta cheese was produced in Greece using non-traditional methods, in particular from cow’s milk.
78. It must be recognised that, if such operations were to persist, they would tend to confer a generic nature on the name ‘feta’. The Court nevertheless notes that, by Ministerial Order No 2109/88 of 5 December 1988 approving the replacement of Article 83 ‘Cheese products’ in the Food Code, the definition of the geographical area of production based on traditional practices was established. In 1994, Ministerial Order No 313025 codified all of the rules applicable to feta cheese. Furthermore, all of that legislation created a new situation in which such operations should no longer take place.
79. As to the production situation in the other Member States, the Court notes that it held in paragraph 99 of the judgment in Denmark and Others  v Commission , cited above, that the fact that a product has been lawfully marketed under a name in some Member States may constitute a factor which must be taken into account in the assessment of whether that name has become generic within the meaning of Article 3(1) of the basic regulation.
80. The Commission acknowledges, moreover, that feta is produced in Member States other than the Hellenic Republic, namely the Kingdom of Denmark, the Federal Republic of Germany and the French Republic. According to the 13th to the 17th recitals in the preamble to the contested regulation, the Hellenic Republic produces approximately 115 000 tonnes annually. In 1998, almost 27 640 tonnes were produced in Denmark. From 1988 to 1998, production in France varied between 7 960 tonnes and 19 964 tonnes. Production in Germany has varied between 19 757 and 39 201 tonnes since 1985.
81. According to those same recitals, the production of feta commenced in 1972 in Germany, in 1931 in France and in the 1930s in Denmark.
82. Moreover, it is common ground that the cheese thus produced could be lawfully marketed, even in Greece, at least until 1988.
83. Although the production in the other countries has been relatively large and of substantial duration, the Court notes, as pointed out by the scientific committee in the first indent of the conclusion in its opinion, that the production of feta has remained concentrated in Greece.
84. The fact that the product has been lawfully produced in Member States other than the Hellenic Republic is only one factor of several which must be taken into account pursuant to Article 3(1) of the basic regulation.
85. As regards the consumption of feta in the various Member States, as opposed to its production, the Court notes that the 19th recital in the preamble to the contested regulation indicates that more than 85% of Community consumption of feta, per capita and per year, takes place in Greece. As noted by the scientific committee, the consumption of feta is therefore concentrated in Greece.
86. The information provided to the Court indicates that the majority of consumers in Greece consider that the name ‘feta’ carries a geographical and not a generic connotation. In Denmark, by contrast, the majority of consumers believe that the name is generic. The Court does not have any conclusive evidence regarding the other Member States.
87. The evidence adduced to the Court also shows that, in Member States other than Greece, feta is commonly marketed with labels referring to Greek cultural traditions and civilisation. It is legitimate to infer therefrom that consumers in those Member States perceive feta as a cheese associated with the Hellenic Republic, even if in reality it has been produced in another Member State.
88. Those various factors relating to the consumption of feta in the Member States tend to indicate that the name ‘feta’ is not generic in nature.
89. As to the German Government’s argument referring to the second sentence of the 20th recital in the preamble to the contested regulation, it follows from paragraph 87 of this judgment that it is not incorrect to state, with respect to consumers in Member States other than the Hellenic Republic, that ‘the link between the name “Feta” and Greece is thus deliberately suggested and sought as part of a sales strategy that capitalises on the reputation of the original product, and this creates a real risk of consumer confusion’.
90. The argument put forward by the German Government maintaining the contrary is, therefore, unfounded.
91. As to the national legislation, it must be borne in mind that, according to the 18th and 31st recitals in the preamble to the contested regulation, the Kingdom of Denmark and the Hellenic Republic were the only Member States at the time which had legislation specifically relating to feta.
92. The Danish legislation does not refer to ‘feta’ but to ‘Danish feta’, which would tend to suggest that in Denmark the name ‘feta’, by itself, has retained a Greek connotation.
93. Furthermore, as the Court noted in paragraph 27 of Denmark and Others v Commission , cited above, the name ‘feta’ was protected by a convention between the Republic of Austria and the Kingdom of Greece, concluded on 20 June 1972 pursuant to the 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). Since then, the use of the name in Austria has been reserved exclusively for Greek products.
94. It follows that, as a whole, the relevant national legislation tends to indicate that the name ‘feta’ is not generic.
95. As to the Community legislation, it is true that the name ‘feta’ is used without further specification as to the Member State of origin in the combined customs nomenclature and in the Community legislation relating to export refunds.
96. However, the latter legislation and the customs nomenclature apply to customs matters and are not intended to regulate industrial property rights. Their provisions are, therefore, not conclusive in this context.
97. As to earlier assessments made by the Commission, it is true that, on 21 June 1985, it responded to written question No 13/85 from an MEP as follows: ‘feta describes a type of cheese and is not a designation of origin’ (OJ 1985 C 248, p. 13).
98. It should be borne in mind, however, that, at that time, there was not yet Community protection in place for designations of origin and geographical indications, which was established for the first time in the basic regulation. At the date of that response, the name ‘feta’ was protected in Greece only by traditional custom.
99. It follows from the foregoing that several relevant and important factors indicate that the term has not become generic.
100. In the light of the foregoing, the Court finds that the Commission could lawfully decide, in the contested regulation, that the term ‘feta’ had not become generic within the meaning of Article 3 of the basic regulation.
The statement of reasons
106. As to the degree of detail in the statement of reasons provided in the contested regulation on the question of the generic nature of the term ‘feta’, it is settled case-law that the statement of reasons required by Article 253 EC must be appropriate to the nature of the measure in question and must show clearly and unequivocally the reasoning of the institution which enacted the measure, so as to inform the persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review (see Case C-328/00 Weber  [2002] ECR I‑1461, paragraph 42 and the case-law cited therein). The institution which adopted the act is not required, however, to define its position on matters which are plainly of secondary importance or to anticipate potential objections (see, to that effect, Case C‑367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I-1719, paragraph 64).