Conclusions
OPINION OF ADVOCATE GENERAL
ALBER
delivered on 25 April 2002 (1)
Case C-108/01
(1) Consorzio del Prosciutto di Parma
(2) Salumificio S. Rita SpA
v
(1) Asda Stores Limited
(2) Hygrade Foods Limited
(Reference for a preliminary ruling from the House of Lords)
((Free movement of goods – Measures having an equivalent effect to quantitative restrictions on exports – Justification for the protection of industrial property – Regulation (EEC) No 2081/92 – Use of protected designations of origin – Requirement for ham to be sliced and packaged in the region of production))
I ─ Introduction
1. The present order for reference concerns the question of the extent of the protection afforded by industrial property in the
form of protected designations of origin. Specifically, the issue is whether the protected designation of origin
Prosciutto di Parma (
Parma ham) may be used only if the slicing and packaging of the ham also take place in the region of production. The Italian plaintiffs
in the main proceedings wish to prevent the defendants from placing ham on the market under the protected designation of origin
Parma ham if it is sliced and packaged in the United Kingdom.
II ─ Legal framework
(1) Community provisions(a) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of
origin for agricultural products and foodstuffs
(2)
(
Regulation No 2081/92)
2. Regulation No 2081/92 introduces Community rules to protect certain agricultural products and foodstuffs for which a link
between product or foodstuff characteristics and geographical origin exists.
3. Article 2(2) provides: For the purposes of this Regulation:
(a) designation of origin: means the name of a region, a specific place or, in exceptional cases, a country, used to describe
an agricultural product or a foodstuff:
-
- ─
originating in that region, specific place or country, and
-
- ─
the quality or characteristics of which are essentially or exclusively due to a particular geographical environment with its
inherent natural and human factors, and the production, processing and preparation of which take place in the defined geographical
area;
(b) geographical indication: means the name of a region, a specific place or, in exceptional cases, a country, used to describe
an agricultural product or a foodstuff:
-
- ─
originating in that region, specific place or country, and
-
- ─
which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and the production
and/or processing and/or preparation of which take place in the defined geographical area.
4. Under Article 4(1) of Regulation No 2081/92, to be eligible to use a protected designation of origin (
PDO)
(3)
or a protected geographical indication (
PGI) an agricultural product or foodstuff must comply with a
specification . Article 4(2) lists the particulars which must be included in the specification; they include a description of the agricultural
product or foodstuff including the raw materials, the definition of the geographical area, a description of the method of
obtaining the agricultural product or foodstuff, details bearing out the link with the geographical environment or the geographical
origin and any requirements laid down by Community and/or national provisions.
5. Regulation No 2081/92 prescribes a normal procedure and a simplified procedure ─ which is relevant in the present case ─ for
the entry of PDOs and PGIs in the
Register of protected designations of origin and protected geographical indications kept by the Commission. The fundamental difference between them is that the simplified procedure does not provide for the
main points of the application and the references to national provisions to be published in the
Official Journal of the European Communities . Articles 5, 6 and 7 govern the normal procedure. In brief, Article 5 provides that an application is initially submitted
at national level and examined as to its content by the Member State. The Member State forwards the application to the Commission
if it considers the application to be justified. Under Article 6, the Commission verifies, by means of a formal investigation,
whether the application for registration includes all the particulars provided for in Article 4 and, if it considers that
the name qualifies for protection, publishes in the
Official Journal of the European Communities the name and address of the applicant, the name of the product, the main points of the application, the references to national
provisions governing the preparation, production or manufacture of the product and, if necessary, the grounds for its conclusions.
If no statement of objections is notified to the Commission in accordance with Article 7 by a Member State or a legitimately
concerned natural or legal person, the Commission enters the name in the
Register of protected designations of origin and protected geographical indications and publishes it in the
Official Journal of the European Communities .
6. In accordance with Article 8, the indications
PDO and
PGI may appear only on agricultural products and foodstuffs which comply with the regulation.
7. Article 13(1) provides: Registered names shall be protected against:
(a) any direct or indirect commercial use of a name registered in respect of products not covered by the registration in so far
as those products are comparable to the products registered under that name or in so far as using the name exploits the reputation
of the protected name;
(b) any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated
or accompanied by an expression such as
style,
type,
method,
as produced in,
imitation or similar;
(c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the
inner or outer packaging, advertising material or documents relating to the product concerned, and the packing of the product
in a container liable to convey a false impression as to its origin;
(d) any other practice liable to mislead the public as to the true origin of the product. ...
8. In accordance with Article 15, the Commission is assisted in the registration procedure by a committee composed of representatives
of the Member States.
9. Article 17 governs the simplified procedure for registering a PDO or PGI. It applied to names, such as Parma ham, which already
existed and enjoyed national protection before the regulation entered into force. Article 17 states:
1. Within six months of the entry into force of the Regulation,
(4)
Member States shall inform the Commission which of their legally protected names or, ... , which of their names established
by usage they wish to register pursuant to this Regulation.
2. In accordance with the procedure laid down in Article 15, the Commission shall register the names referred to in paragraph
1 which comply with Articles 2 and 4. Article 7 shall not apply. ...
3. ...
10. In contrast to the normal procedure, the simplified procedure therefore makes, or made, no provision for the main points of
the application and the references to national provisions to be published in the Official Journal. Comparable information
is made available solely to the committee set up under Article 15 of Regulation No 2081/92.(b) Commission Regulation (EC) No 1107/96 of 12 June 1996 on the registration of geographical indications and designations
of origin under the procedure laid down in Article 17 of Regulation No 2081/92 (
Regulation No 1107/96)
(5)
11. After receiving and formally examining the names notified by the Member States pursuant to Article 17 of Regulation No 2081/92,
the Commission adopted Regulation No 1107/96. The annex to this regulation contains the list of names registered as PDOs
or PGIs, including the PDO
Prosciutto di Parma.
12. The specification for the PDO
Parma ham refers, in sections B.4 and C.2, to the requirement that the packaging of sliced Parma ham is to be carried out in the region
of production defined in section C.1. In section G it identifies the functions of the Consorzio del Prosciutto di Parma (the
Parma Ham Producers' Association;
the Consorzio), including in relation to packaging. It sets out certain additional requirements as to labelling in Section H.(2) Italian law
13. The Consorzio was set up on 18 April 1963 by 23 producers of Parma ham and in the very same year ─ thus long before the Community
regulations entered into force in 1992 and 1996 ─ the trademark
Prosciutto di Parma was registered by it. The production of Parma ham and protection of the denomination of origin were first regulated in Italian
law by Law No 506 of 4 July 1970.
(6)
By ministerial order of 3 July 1978, the Consorzio was entrusted with the task of supervising the production and marketing
of Parma ham pursuant to Article 7 of Law No 506. Law No 26 of 13 February 1990 consolidated in Italian law the rules which
are now in force.
(7)
Ministerial Decree No 253 of 15 February 1993 and a ministerial decree of 12 April 1994 empowered the Consorzio to monitor
and supervise observance of the provisions concerning the production and processing of Parma ham.
(8)
14. Article 1 of Law No 26 reserves the name
Prosciutto di Parma exclusively for ham which bears a distinguishing mark permanently identifying it, is obtained by processing fresh legs of
pigs bred and slaughtered in
mainland Italy, is produced according to provisions laid down by the Law and is aged for a prescribed minimum period in the area of the
province of Parma defined in Article 2.
15. Article 3 sets out the specific characteristics of Parma ham, including its weight, colour, aroma and flavour.
16. Article 6 of the Law provides:
1. After the mark has been applied, Parma ham can be sold boned and in pieces of varying weight and shape, or it may be sliced
and suitably packaged.
2. In cases provided for in paragraph 1, if it is not possible to keep the mark on the product, the former shall be indelibly
stamped, so that it cannot be removed from the packaging, under the control of the competent body and according to methods
determined by implementing regulations. In these cases, packaging operations shall be carried out in the typical production
area as referred to in Article 2.
17. Article 11 of the Law empowers the competent ministries to make use of the assistance of a consortium of producers for the
purposes of supervision and control. The Consorzio has exercised that function since 1978. According to the Consorzio's
own submissions, the inspectors employed by it have very wide powers, similar to those of the police.
18. By Ministerial Decree No 253 of 15 February 1993, referred to above, it was laid down in addition that slicing and packaging
of Parma ham must take place at plants in the region of production which are recognised by the Consorzio (Article 25). Furthermore,
the decree requires the slicing and packaging of Parma ham to be carried out in the presence of representatives of the Consorzio
(Article 26). Finally, rules on packaging and labelling were adopted (Article 29).
19. Accordingly, under Italian law, pre-sliced and pre-packaged Parma ham must be sliced and packaged in the Parma region of production
and bear a label which specifies the name and mark of the producers or packer and seller, the location of the packaging plant,
the date of production and details of the preservation. On the other hand, it is permissible, where the ham is supplied whole
or cut up, for it to be sliced in front of the purchaser in a shop or restaurant.
III ─ Facts, main proceedings and question referred for a ruling
20. Asda Stores Limited (
Asda) sells packets of ham described as
Parma ham in its supermarkets in England. It obtains those goods from Hygrade Foods Limited (
Hygrade). Hygrade acquires the ham from Cesare Fiorucci SpA, a company resident in Italy. The ham is imported ─ boned but unsliced
─ into the United Kingdom and sliced and packaged by Hygrade at its premises in Corsham. After been sliced, it is packed
and sealed in packets of five slices.
21. The packets bear the following words:
ASDA, A taste of Italy, PARMA HAM, Genuine Italian Parma Ham.
(9)
The back of the packets states:
PARMA HAM, All authentic Asda continental meats are made by traditional methods to guarantee their authentic flavour and quality and
Produced in Italy, packed in the UK for Asda Stores Limited.
(10)
22. In 1997 the Consorzio complained of breach of the regulations to trading standards officers in Wiltshire and West Yorkshire.
Those complaints were rejected.
23. On 14 November 1997 the Consorzio commenced proceedings in the English courts against Asda and Hygrade, seeking various injunctions.
The Consorzio's motion was dismissed by judgment of 30 January 1998.
24. The Consorzio appealed to the Court of Appeal against that judgment. In the course of those proceedings, leave was granted
for Salumificio S. Rita SpA (
Salumificio Rita), an undertaking which produces
Parma ham and is a member of the Consorzio, to be added as a plaintiff alongside the Consorzio. The appeal was dismissed on 1 December
1998.
25. The Consorzio and Salumificio Rita appealed to the House of Lords against the decision of the Court of Appeal. In those appeal
proceedings the House of Lords has referred the following question to the Court of Justice for a preliminary ruling: As a matter of Community law, does Council Regulation (EEC) No 2081/92 read with Commission Regulation (EC) No 1107/96 and
the specification for the PDO
prosciutto di Parma create a valid Community right, directly enforceable in the court of a Member State, to restrain the retail sale as
Parma ham of sliced and packaged ham derived from hams duly exported from Parma in compliance with the conditions of the PDO but which
have not been thereafter sliced, packaged and labelled in accordance with the specification?
26. The House of Lords elucidates the question which it has submitted by indicating, in question form, that it is interested above
all in clarification of the following issues: (1) On a true construction of Council Regulation (EEC) No 2081/92 and Commission Regulation (EC) No 1107/96, and the relevant
specification for Parma ham, is it contrary to Articles 4 and/or 8 and/or 13 of Council Regulation (EEC) No 2081/92 to label
and sell as
Parma ham ham from Parma which has not been sliced and packaged in the typical production area and under the supervision of the [Consorzio]?This issue focuses on two matters. First, whether the regulations are capable of protecting slicing and packaging operations.
Secondly, whether (assuming the regulations so permit) the application for registration included a claim for the protection
of slicing and packaging operations.(2) If the answer to issue 1 is Yes, are the relevant provisions of Council Regulation (EEC) No 2081/92 and Commission Regulation
(EC) No 1107/96 valid? (The validity issue.)(3) Are the provisions of Council Regulation (EEC) No 2081/92 enforceable in civil proceedings in England by persons such
as the Appellants ...? (The direct effect issue.)
IV ─ Arguments of the parties
(1) Consorzio del Prosciutto di Parma and Salumificio Rita (
the plaintiffs)
27. The plaintiffs submit that only ham sliced and packaged in the region of production may bear the PDO
Parma ham since this requirement forms part of the specification. That rule serves to protect the authenticity of the product. The
only means of satisfying consumers that they are obtaining genuine Parma ham lies in the existence of methods of control and
application of a certification mark which is allowed to be used only if the producers and packers comply with the strict requirements
laid down by the Consorzio.
28. The condition requiring ham to be sliced and packaged in the region of production is fundamental to ensuring that the typical
qualities of Parma ham are retained. When Parma ham is processed by being sliced and packaged, three factors are essential:
selection of the ham to be processed, checks on the equipment of the business carrying out the processing, and the presence
of Consorzio inspectors when the ham is sliced and packaged and the certification mark is affixed. Processing is a complex
procedure which encompasses boning, preparation of the
brick (this being the shape of the ham when it is sliced), the actual slicing and the subsequent packaging. A high quality of
Parma ham is guaranteed only by simultaneously monitoring the processed ham and the staff carrying out the processing.
29. Some of the necessary checks cannot be carried out until the ham is sliced.
Hidden defects such as dots resulting from micro-haemorrhaging within the animal, light patches in the muscle or excessive intra-muscular
fat cannot be discovered until this stage. The detection of such defects and the carrying out of effective checks demand
special experience and a thorough knowledge of the product with regard to the entire processing operation.
30. The plaintiffs consider that the permanent presence of an inspector during processing is necessary in order to ensure that
the image of Parma ham is protected. The competence necessary for the checks is possessed only by those people who understand
the marketing and the technical aspects of the product and of its processing, namely the Consorzio's inspectors and the producers'
workers. This knowledge, displayed by the Consorzio's inspectors, is not possessed by people outside the region of production.
Checks are, moreover, a statutory requirement under Article 6 of Law No 26 of 1990 and Articles 25 and 26 of Ministerial
Decree No 253 of 1993.
31. The plaintiffs refer to the risk to the reputation of Parma ham which would arise from allowing slicing and packaging outside
the region of production. Any consumer dissatisfaction with the quality of ham processed outside the region of production
would, in the plaintiffs' view, automatically also affect the high regard in which ham processed in the region of production
is held.
32. Relying on the judgment in the
Rioja case,
(11)
the plaintiffs contend that the rules on the slicing and packaging of Parma ham are designed to protect the PDO's reputation
which is essentially determined by the ham's quality. The particular abilities applied and the ethos prevailing when checks
are carried out in the region of production together with the specialised knowledge concerning the handling of Parma ham are
the best means of ensuring that quality.
33. The concerns expressed in relation to the lack of publicity given to the specification, an absence which the defendants criticise,
are, in the plaintiffs' view, irrelevant. The plaintiffs have merely demanded that Asda should refrain from future activity
and have not claimed damages in respect of the past. Consequently, it does not matter to what extent in the past Asda had,
or was able to acquire, knowledge of the conditions for using the PDO
Prosciutto di Parma.(2) Asda and Hygrade (
the defendants)
34. The defendants dispute that the provisions concerning the slicing and packaging of ham in the region of production can be
raised against them. Neither the specification nor the notification of the PDO
Prosciutto di Parma was published in the
Official Journal of the European Communities . In their submission, the principles of transparency and legal certainty would be infringed if unpublished rules could be
raised against them.
35. That is particularly the case where the rules have not been published in the official language of the country before whose
courts they are pleaded. However, the specification exists only in Italian and is not available in English, at any rate not
in an official translation.
36. It is true that the specification contains a reference to the Italian statutory provisions upon which the requirement that
slicing and packaging take place in the region of production is founded. However, they are not attached to the specification,
making it impossible for the defendants to become aware of them.
37. The defendants point out, furthermore, that the Consorzio is not under a legal obligation to send them a copy of the application
for registration. Nor is the Commission obliged to, not even pursuant to Commission Decision 94/90/ECSC, EC, Euratom of 8
February 1994 on public access to Commission documents,
(12)
as the Commission is not the author of the specification, and therefore of the document.
38. The only details which were published were the fact that the PDO
Prosciutto di Parma had been registered and that the Consorzio was the competent body for inspections pursuant to Article 10 of Regulation No
2081/92. However, that is not sufficient for the rules concerning slicing and packaging in the region of production to be
raised against them.
39. The defendants also submit that the rules requiring slicing and packaging to take place in the region of production and under
the supervision of the Consorzio did not become part of the designation of origin
Prosciutto di Parma which is protected by Regulations No 2081/92 and No 1107/96. In accordance with the judgment in
Pistre ,
(13)
Regulation No 2081/92 protects only requirements which ensure that the product comes from a particular geographical area.
It is accordingly necessary for a requirement laid down in a specification to protect that particular link. However, no
link exists between the geographical origin of the ham and the slicing and packaging processes.
40. The defendants therefore propose that Regulations No 2081/92 and No 1107/96 should be interpreted as not protecting the PDO
as regards rules on the slicing and packaging of ham. In the alternative they suggest that Regulation No 1107/96 should be
declared invalid to the extent that it covers the rules concerning the slicing and packaging of Parma ham in the region of
production since that falls outside the spirit and purpose of Regulation No 2081/92.
41. The defendants contend, furthermore, that to interpret Regulations No 2081/92 and No 1107/96 as also protecting the requirement
that slicing and packaging take place in the region of production infringes the rules on the free movement of goods. The
producer of the ham which the defendants marketed, Cesare Fiorucci SpA, put the ham into free circulation.
42. Nor have the plaintiffs put forward any justification for that restriction. Nobody has ever questioned the quality of Parma
ham produced by a member of the Consorzio in accordance with the applicable provisions. It has also not been submitted that
the ham sold by the defendants has led to consumers being confused or misled or has ever harmed the reputation of Parma ham
producers.
43. Finally, the defendants consider that the requirement that slicing and packaging take place in the region of production is
disproportionate. Italian law also allows Parma ham to be exported whole or cut up and to be sliced in front of the consumer
in another Member State. There is no reason for prohibiting the same slicing process outside the region of production when
it does not take place in front of the consumer.(3) The United Kingdom
44. The United Kingdom Government takes the view that the requirement for ham to be sliced and packaged in the region of production
is a measure having an equivalent effect to a quantitative restriction on exports. That restriction on the free movement
of goods is not justified. Articles 8 and 13 of Regulation No 2081/92 are intended to ensure that a product comes from a
specified area and displays certain characteristics. They therefore protect only such requirements as are necessary to guarantee
those characteristics.
45. In the main proceedings, it is not in dispute between the parties that the whole hams imported by the defendants may bear
the PDO
Parma ham. The quality of the ham is not adversely affected by being sliced and packaged. In this respect, the present case is not
comparable with the decision in the
Rioja case.
46. The United Kingdom Government shares the defendants' view with regard to the problem of publicity given to the specification.
It is apparent from the 10th recital in the preamble to Regulation No 2081/92 that entry in the register should provide information
to those involved in the trade and to consumers. Regulation No 1107/96 made public only that
Parma ham is protected as a PDO. When a trader purchases ham with the PDO
Parma ham, he has the guarantee that the ham originates from the region of production laid down for Parma ham and satisfies certain
quality requirements. The summary of the specification submitted in connection with registration under the Article 17 procedure
does not contain the requirement that the ham must be sliced and packaged in the region of production. It is true that it
refers to the Italian legislation which lays down that the ham is to be sliced and packaged in the region of production.
However, that prohibition on use of the PDO
Parma ham must be transparent and readily identifiable or accessible.(4) The French Republic
47. The French Government points out that the requirement that slicing and packaging take place in the region of production formed
part of the specification submitted with the application for registration of the PDO
Parma ham. That requirement is accordingly afforded protection under Community law and thus ham which is sliced and packaged outside
the region of production may not bear the PDO
Parma ham.
48. France considers that that requirement is also compatible with Regulation No 2081/92 since it is necessary in order to guarantee
that the ham originates from a specific area. In contrast to whole hams, in the case of sliced ham consumers can be informed
only by means of the details on the packaging which are provided under the supervision of the Consorzio.
49. Regulation No 2081/92 is compatible with the provisions concerning the free movement of goods. The legislature has a wide
discretion in the context of agricultural policy. Regulation No 2081/82 strikes a balance between the interests of the free
movement of goods, of consumer protection and of protection of industrial property. Since use of the PDO is protected in
all Member States, the regulation assists the free movement of goods.(5) The Italian Republic
50. The Italian Government refers to the judgment in the
Rioja case. As found in that judgment in relation to wine, it is true with regard to the ham under discussion here that the processing
of quality products is to be left to specialists.
51. The Italian Government refers to section B.4 of the specification and Article 12 of the
directive annexed thereto, according to which the PDO cannot be used unless the ham has been sliced and packaged in the region of production.
All operations are subject to strict control by specially qualified staff who have great experience in handling Parma ham.
Supervision also extends to the technical suitability of the machines used and the product's aesthetic appearance. If those
controls were not undertaken, the loss of quality would damage the product's reputation.
52. The Italian Government submits with regard to the problem of transparency and of accessibility of the relevant provisions
that, when it lodged the application for registration, it also submitted to the Commission the specification, including the
directive, which contain the requirement that slicing and packaging take place in the region of production. In addition, the relevant
legislation was submitted. The Member States were provided with information hereon, in the various official languages, in
the committee set up under Article 15 of Regulation No 2081/92, and thus the relevant provisions are accessible. Businesses
concerned are obliged to obtain that relevant information.(6) The Kingdom of Spain
53. The Spanish Government likewise refers to the judgment in the
Rioja case. The purpose of a designation of origin is to guarantee that the product comes from a specified area and displays certain
characteristics. The slicing of the ham is a particularly important step in its processing. Even if it does not take place
until after the actual production, it is fundamental for Parma ham in particular, as Parma ham is mainly sold sliced.
54. Supervision carried out outside the region of production affords fewer guarantees of the product's quality and authenticity.
It is therefore necessary, in the interests of better consumer protection, for slicing and packaging to take place in the
region of production. That applies all the more because the certification mark affixed to whole hams is removed on slicing.(7) The Commission
55. The Commission points out that the requirement for slicing and packaging to take place in the region of production is contained
in the specification which accompanied the application for registration and that the specification, moreover, refers to the
relevant Italian legislation.
56. With regard to the validity of the registration in so far as it relates to the requirement for slicing and packaging to take
place in the region of production, the Commission refers to the decision in the
Rioja case. The slicing and packaging of ham constitute a complex process requiring observance of certain rules and specialised
knowledge. The process has an effect on the product's quality which in turn determines its reputation.
57. The protected designation of origin guarantees that the product comes from a specified area and displays certain characteristics.
This guarantee is best secured by slicing and packaging in the region of production. Outside that region there are no equivalent
checks carried out by staff with specialised knowledge. The checks provided for in the specification and in the Italian legislation
are designed to preserve the quality of Parma ham and are therefore justified.
58. With regard to the question of the direct applicability of Regulation No 2081/92, the Commission points out first of all that,
in accordance with Article 249 EC, regulations are directly applicable. It also deduces from the seventh and 12th recitals
in the preamble and Articles 8 and 13 that the regulation grants rights which are directly enforceable before national courts.
Finally, it relies in addition on the regulation's objective, which consists in henceforth protecting throughout the Community
names previously protected only at national level.
59. The Commission observes with regard to the publicity given to the provisions that even the Article 17 procedure ensures some
publicity. It was conceived as a procedure between the Member States, which, in the committee provided for under Article
15, were informed about the applications for registration including the specifications. Thus, the United Kingdom Government
voted in the committee against the draft regulation
inter alia because it considered that certain restrictions, for example the obligation requiring Parma ham to be sliced and packaged
in the region of production, went too far.
V ─ Assessment
(1) Interpretation of the question submitted
60. The House of Lords has referred to the Court of Justice the question whether Regulation No 2081/92 read with Regulation No
1107/96 and the specification for the PDO
Prosciutto di Parma creates a right which is directly enforceable before the courts of the Member States to restrain the retail sale of ham which
has not been sliced and packaged in the region of production in accordance with the specification. It is apparent from the
order for reference that the national court would like to ascertain, first, whether slicing and packaging operations in the
region of production are capable of being protected at all by Regulations No 2081/92 and No 1107/96 and, secondly, whether
the application for registration of the PDO
Prosciutto di Parma in fact included a claim seeking protection of slicing operations. Should both those questions be answered in the affirmative,
the question of the validity of both regulations is raised. Finally, the House of Lords asks whether it is possible to enforce
before national courts such protection as is granted under the regulations.(2) Scope of protection provided by the PDO
Prosciutto di Parma
61. It is necessary to examine first of all to what extent the specification submitted with the application for registration of
the PDO
Parma ham includes the requirement to slice and package the ham in the region of production. It is to be observed in this regard that,
under Article 4(2)(i) of Regulation No 2081/92, a specification may include a reference to any requirements laid down by Community
and/or national provisions. By virtue of Article 4(2)(i), it is sufficient for the relevant Italian statutory provisions
to be referred to in the specification as appropriate.
62. The copy of the specification submitted by the Consorzio as an appendix to its observations contains, in section B.4, the
requirement that ham is to be packaged in the region of production if the mark of origin cannot be affixed to the ham. That
is the case with sliced ham. In addition, section C.2 provides that the plants entrusted with the slicing and packaging must
be located in the region of production. Law No 26 of 13 February 1990, Article 6(2) of which requires slicing, packaging
and labelling to take place in the region of production, and Decree No 253 of 15 February 1993, which repeats those requirements
in Article 25, are expressly referred to in the lists at the end of sections B and C specifying the statutory provisions taken
into account.
63. It is therefore to be concluded that the specification submitted with the application for registration includes the requirement
that slicing and packaging take place in the region of production. The scope of the protection provided by the PDO
Prosciutto di Parma thus extends to slicing and packaging in that region.(3) Compatibility of the rules with Regulation No 2081/92
64. This leads to the question whether it was open to the Commission to register the PDO
Parma ham with that protective scope, that is to say whether the registration under Regulation No 1107/96 is compatible with Regulation
No 2081/92.
65. In accordance with Article 2(2)(a) of Regulation No 2081/92, a designation of origin is used to describe an agricultural product
or a foodstuff originating in the region, specific place or country in question, the quality or characteristics of which are
essentially or exclusively due to a particular geographical environment with its inherent natural and human factors, and the
production, processing and preparation of which take place in the defined geographical area. Slicing, packaging and labelling
in the region of production under the supervision of the Consorzio are processing operations. Labelling of the packets guarantees
that the sliced ham consists of ham which is allowed to be placed on the market under the designation
Parma ham. Finally, the supervision by the Consorzio ensures that the provisions concerning the processing of Parma ham are observed.
66. When reviewing the legality of a registration, regard is to be had to the division of powers between the Member States and
the Commission introduced by Regulation No 2081/92. As the Court explained in its judgment in
Carl Kühne , an application for registration under Article 5 of Regulation No 2081/92 is to be submitted through a Member State. The
Member State has the task of checking whether the application is justified with regard to the conditions laid down by the
regulation. It must forward the application to the Commission only if it concludes that that is the case. The Commission
then undertakes merely a formal examination in accordance with Article 6(1) of Regulation No 2081/92. Its examination includes
checking whether the specification contains the particulars required under Article 4 and whether, on the basis of the specification,
the designation satisfies the requirements of Article 2(2)(a) or (b).
(14)
In so doing, the Commission confines itself to examining whether the assessment made by the competent Member State is not
manifestly incorrect.
(15)
This applies to both the normal and the simplified procedure.
(16)
The point of that division of powers is that examination of an application for registration requires, to a great extent,
detailed knowledge of matters particular to the Member State concerned, matters which the national authorities are best placed
to check.
(17)
67. The foregoing division of powers also has an effect on review by the Community judicature of the Commission's registration
decisions. Thus, the only matters to be examined are whether the Commission complied with its obligation of verification
and whether the abovementioned requirements under Articles 2 and 4 of the regulation are met.
(18)
68. The Commission examined the application and accompanying specification which the Italian Government forwarded under the simplified
procedure. In accordance with the findings set out above, it is at any rate not manifest that the specification is incomplete
or that the particulars contained in it, including the requirement for slicing, packaging and labelling to take place in the
region of production under the supervision of the Consorzio, do not justify the registration as a PDO. Consequently, the
registration under Regulation No 1107/96 does not infringe Regulation No 2081/92.(4) Compatibility of the rules with Article 29 EC
69. This leads to the further question as to whether the registration of the PDO by means of Regulation No 1107/96 including the
requirement that slicing and packaging take place in the region of production under the supervision of the Consorzio might
be invalid because Article 29 EC is infringed.(a) Existence of a measure having an equivalent effect to a quantitative restriction on exports
70. According to the settled case-law of the Court, Article 29 EC prohibits national measures which have as their specific object
or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic
trade of a Member State and its export trade, in such a way as to provide a particular advantage for national production or
for the domestic market of the State in question.
(19)
Community law measures too must be compatible with the provisions concerning the free movement of goods.
(20)
71. Support for the view that there is no measure having an equivalent effect to a quantitative restriction on exports is provided
first of all by the fact that the requirement for slicing and packaging to take place in the region of production affects
domestic and foreign economic operators in the same way. A business established in Rome cannot slice the ham in Rome and
sell it there under the PDO
Parma ham any more than Asda and Hygrade can in the United Kingdom.
72. On the other hand, it must be taken into account that the requirement to slice and package the ham in the region of production
in order to be allowed to place it on the market under the designation of origin
Parma ham confers a particular advantage on the undertakings operating in the region of production inasmuch as they alone are allowed
to slice and package the ham. That activity remains reserved for the industry established in the region of production.
73. In addition, export of the ham to other Member States might well be made more expensive by the rules at issue. Prior to export,
a further processing operation must be carried out. That increase in costs hinders the export of Parma ham. Those reasons
point in favour of categorising the rules as a measure having an equivalent effect to a quantitative restriction on exports.
74. As mentioned above, the case-law concerning the interpretation of Article 29 EC focuses on whether the measure in question
specifically restricts exports.
(21)
In its judgments in
Delhaize and the
Rioja case, the Court held that measures under which the designation of origin for Rioja wine may be used only if the wine is bottled
in the region of production specifically restrict patterns of exports for the purposes of Article 29 EC.
(22)
In the judgment in the
Rioja case, it based that finding on the fact that the wine may also be transported unbottled within the region of production,
in contrast to exported wine.
(23)
75. The situation in the present case appears to be comparable. The rules in question lay down solely that the ham must be sliced
and packaged in the region of production. That requirement is observed if the ham is transferred within the region of production
from the slaughterhouse to another business which then slices and packages it in accordance with the applicable rules. Therefore,
here too it may be concluded that there is a specific restriction on exports.(b) Justification of the measure in order to protect industrial property
76. The question is thus raised of the extent to which the measure is justified on the grounds of protection of industrial property
within the meaning of Article 30 EC. Designations of origin are industrial and commercial property within the meaning of
Article 30 EC.
(24)
The restrictions on trade which they entail are justified in so far as they are necessary in order to ensure that the designation
of origin fulfils its specific function, which is to guarantee that the product bearing it comes from a specified geographical
area and displays certain particular characteristics.
(25)
Accordingly, the requirement that slicing and packaging take place in the region of production would be justified if it
gave the ham from that region particular characteristics apt to distinguish it from other ham, or if slicing in the region
of production were essential in order to preserve specific characteristics acquired by the ham during its production. However,
only requirements observance of which is necessary in order to protect the reputation of the PDO are to be regarded as a restriction
on the free movement of goods satisfying the principle of proportionality.
(26)
(i) Rules to protect a particular characteristic
77. It must therefore be examined to what extent the slicing and packaging of Parma ham in the region of production confers on
it or preserves a characteristic which influences the consumer's choice and is therefore commercially material.
78. Support for the view that a commercially material characteristic is involved is provided first of all by the fact that, according
to the submissions of the Consorzio and Salumificio Rita and of Italy, Spain and the Commission, slicing demands special knowledge.
The hams to be sliced are to be selected with care, using special expertise. In addition, regard is to be had during slicing
to certain requirements, so that the quality of the ham, its appearance and its particular characteristics are safeguarded.
The Consorzio and Salumificio Rita contend that this know-how is available only in the region of production.
79. A further argument in favour of a commercially material characteristic being involved is the fact, likewise put forward by
the Consorzio and Salumificio Rita, Italy, Spain and the Commission, that the quality controls in respect of slicing and packaging
are undertaken by the Consorzio only in the region of production. In their submission, this is the only means of guaranteeing
that Parma ham put on the market is of a constant high quality.
80. It is to be noted, however, that none of the parties to the proceedings has put forward a convincing argument in support of
the contention that the slicing of ham in the region of production is a process which confers particular characteristics on
that ham or which is essential in order to preserve the specific characteristics acquired by the ham during production. The
special knowledge which is required in order to select the hams for slicing and in order to slice them properly in accordance
with the provisions applicable to the PDO can also be applied outside the region of production. It is entirely comprehensible
that, historically, the special knowledge has developed in the region of production. However, the Consorzio has not put forward
any reason why that knowledge should be available only in the region of production. People who assist in the production and
processing of a product can ─ above all through training in the region of production ─ gain the requisite knowledge and necessary
skills for producing and processing the product. Equally people who have acquired that knowledge and those skills can move
away from the region of production. It is therefore necessary to proceed on the basis that the human influences on the product
are fundamentally independent of the region of production.
81. Analogous considerations apply to observance of the other slicing requirements, including the technical equipment of the businesses
entrusted with the slicing. No argument has been advanced to support the proposition that those requirements can be complied
with only in the region of production. With the technical possibilities available today, it is easy to imagine that the requirements
can at any time be complied with anywhere so far as concerns, for example, refrigeration of the ham before slicing and the
technical equipment of the slicing plants. In that case, however, there is no reason for allowing slicing only in the region
of production.
82. Nor, in the final analysis, have the parties asserted that correct slicing as such outside the Parma area impairs the universally
recognised quality of Parma ham. Otherwise, it would also make no sense that ham is sold whole or cut up for slicing by consumers,
or slicing by retailers or restaurateurs who as a rule are not trained like processing personnel in the Parma area. In this
respect, the present case also differs from that of Rioja, where transport of the wine in bulk and bottling elsewhere could
indeed give rise to changes in quality. The plaintiffs' principal argument is also less concerned with an unlikely loss in
quality than with the checks, without which ham containing defects might be sliced or the reputation of the product as such
could be prejudiced. Apart from the fact that checks also fall away in the case of slicing by consumers or by retailers or
restaurateurs, it is to be noted that such checks could equally be carried out outside the Parma area by suitably trained
staff.
83. Given those circumstances, and in the absence of statements to the contrary in the order for reference and the observations
of the parties to the proceedings, it is at any rate not apparent that Parma ham will inevitably lose its particular characteristics
which it acquires through its production if it is sliced outside the region of production ─ of course only if the slicing
takes place in compliance with all other requirements, in particular the exclusive use of Parma ham and observance of the
technical requirements set out in the specification. A ham is of course also allowed to be exported whole or cut up and to
be sliced by the ultimate consumer himself. In addition, as the Consorzio confirms, a ham exported whole or cut up may also
be sliced by a retailer or in a restaurant in front of the consumer, without losing its quality or particular characteristics,
even if, once started, it is kept there for some time (a fact which incidentally points to the outstanding quality of Parma
ham). I cannot be persuaded that this should be permissible but that industrial slicing followed by immediate packaging should
not be.
84. The objection that a consumer can see the mark of origin on the ham sliced in front of him by a retailer or in a restaurant
and is therefore informed of the ham's origin would appear to be justified only to a limited extent. First, slicing machines
are not as a rule placed on the shop counter, so that consumers would probably only rarely get to see the ham at sufficiently
close quarters to be able to detect and recognise the certification mark at all. Secondly, the mark is not applied on every
part of the ham, so that, depending on how much of the ham has already been sliced up, the part with the mark is perhaps there
only partially or even no longer at all or at any rate can perhaps no longer be immediately recognised by the consumer when
the ham is sliced in his presence. At the hearing, the Consorzio itself conceded that as a rule consumers do not in fact
require the mark to be shown to them before the ham is sliced. The possibility of checking whether the ham in fact comes
from the region of production is accordingly rather a theoretical one.
85. There is the following further reflection. In the
Rioja case, the Court came to the view that the bottling of wine in the region of production was a justified restriction on the
free movement of goods since that was the best means of guaranteeing the quality of the bottled wine. It may be evident that
the bottling of the wine in the region of production constitutes a commercially material characteristic, since consumers purchase
wine primarily in bottles. In the case of ham, however, the situation is different. It is purchased by consumers either
sliced ─ whether freshly by the retailer or pre-packaged ─ or by the piece or even as a whole ham. It is thus clear that
the slicing of ham does not have a significance comparable to that of the bottling of wine. It is then even less the case
that the place where slicing takes place can have a decisive influence on consumer choice. This supports the view that slicing
in the region of production does not involve a commercially material characteristic.
86. By way of intermediate conclusion, therefore, slicing and packaging of Parma ham in the region of production are not to be
regarded as measures which serve to protect particular characteristics of the ham. It been not been established either that
they bestow a particular characteristic upon the ham or that slicing and packaging in the region of production are necessary
in order to preserve the particular characteristics acquired by the ham in the production process. The parties too have placed
less emphasis on that than on checks and on the reputation of the product linked thereto.(ii) Carrying out of quality controls in the region of production
87. If this view is followed, it is strictly speaking superfluous to discuss the carrying out of checks in respect of slicing
in order to safeguard the quality of Parma ham. If slicing in the region of production is not a commercially material characteristic,
the fact that checks are carried out there can no longer be a decisive factor.
88. This argument will accordingly be addressed below by way of supplement only. That approach appears, first, to be necessary
in case the Court does not follow the analysis set out above. Second, discussion of this argument is appropriate because
the parties which plead that the requirement is lawful have, referring to the judgment in the
Rioja case, relied above all on this argument. The Consorzio, Salumificio Rita, Italy, Spain and the Commission contend that specialised
knowledge is needed and the special requirements set out in the specification are to be observed in order for Parma ham to
be sliced in such a way that its quality and its particular characteristics are preserved. In their submission, that is crucial
for preserving the body of purchasers which has been built up and hence for the economic value of the PDO
Prosciutto di Parma. Only the checks systematically carried out in the region of production by the competent bodies ensure observance of the
relevant criteria. They observe that there are no corresponding controls outside the region of production. Third and finally,
it is necessary to discuss the issue of checks for the further reason that, as stated above, slicing outside the region of
production has to take place in compliance with the provisions laid down for use of the PDO. It might be relevant in this
context too how observance of those provisions can be ensured. At the same time, it should be made clear from the outset
that only checks in respect of slicing are at issue here: ham sliced outside the region of production is of course subject,
until it is sliced, to exactly the same controls as ham sliced within it.
89. The carrying out of checks helps to maintain the quality and hence also the reputation of sliced Parma ham. It might accordingly
be concluded that the requirement to slice and package the ham in the region of production under the supervision of the Consorzio
is justified in order to protect industrial property.
90. However, that conclusion is precluded by the fact that checks can in principle be carried out not only in the region of production
but also outside it. Inspectors could be sent by the Consorzio, or inspectors resident in the area in question could be trained
by the Consorzio and instructed to carry out checks.
91. It is true that the Court held in the
Rioja case that controls undertaken outside the region of production in accordance with Community law provided fewer guarantees
as to the quality and authenticity of the wine than those carried out in the region of production. However, it has already
been pointed out above that the slicing of ham does not appear to be comparable with the bottling of wine. Consumers purchase
Parma ham either sliced (fresh or pre-packaged) or by the piece, whilst, as a rule, they buy wine in bottles. If only for that reason,
checks in respect of slicing are probably not to be accorded the same status as checks in respect of bottling.
92. The problem addressed by the Consorzio and Salumificio Rita, Spain and the Commission that no or, at any rate, no equivalent
quality controls are undertaken outside the region of production is a general problem concerning the enforcement of rules
in foreign legal systems. If the rules on the use of the PDO provide for corresponding controls to be undertaken, an economic
operator who intends to use the PDO is also required to undertake the controls if he slices the ham outside the region of
production. Otherwise he infringes the provisions on the use of the PDO and may not use it.
93. It is moreover possible to enforce the rules on the use of the PDO
Parma ham, including any checks, throughout the Community for the very reason that prohibitory injunctions may be applied for under
Articles 8 and 13 of Regulation No 2081/92.
94. Nor do checks in the region of production appear necessary from the point of view of labelling. If slicing and packaging
can also be checked outside the region of production, those checks can equally ensure that only ham allowed to bear the PDO
Parma ham is being sliced.
95. In this regard, the objection that consumers can be sure that they are obtaining Parma ham only if the ham is sliced and packaged
in the region of production under the supervision of the Consorzio is also not persuasive. That is admittedly a means of
guaranteeing that only hams bearing the PDO
Parma ham are used. The objection implies, however, that a business which processes Parma ham outside the region of production might
use hams that are not allowed to bear the PDO and then nevertheless sell the sliced ham using the PDO
Parma ham. This constitutes an impermissible inference of unlawful conduct on the part of the competitor and the objection is to be
rejected for that reason.
96. It must therefore be stated in conclusion that the requirement in the specification does not serve to protect a commercially
material characteristic. Consequently, the restriction on the free movement of goods which has been found is not justified
on grounds of the protection of industrial and commercial property under Article 30 EC.(c) Justification of the measure on the basis of considerations of structural policy
97. Legislation displays a general tendency to bring out the quality of products within the framework of the common agricultural
policy, in order to promote their reputation. The means used for this purpose include designations of origin.
(27)
That tendency is borne out by the second to sixth recitals in the preamble to Regulation No 2081/92. The legal basis for
that regulation is, logically, Article 37 EC, which is in the agriculture chapter of the Treaty. The legislature is thereby
concerned not only with protecting the quality of agricultural products but, as is shown by the second recital in the preamble
to the regulation, above all also with matters of structural policy. The promotion of rural areas is sought by improving
farmers' income and retaining the rural population in those areas. As stated in the discussion of Article 29 EC, the requirement
for Parma ham to be sliced and packaged in the region of production confers an advantage on the businesses located there.
That assessment might support the view that the requirement for slicing and packaging to take place in the region of production
should be held compatible with Community law.
98. The view that regard is not to be had to structural-policy considerations in order to justify restrictions on the free movement
of goods is supported first of all by the wording of Article 30 EC. The list of grounds upon which a restriction on the free
movement of goods may be justified does not include a
structural-policy considerations or
agricultural policy category. According to the case-law, the list of exceptions in Article 30 EC is, however, definitive.
(28)
99. Furthermore, in accordance with general rules of interpretation Article 30 EC is, as an exception to the principle of the
free movement of goods, to be construed narrowly.
(29)
This too provides support for the view that quantitative restrictions on exports and measures having equivalent effect should
be accepted as justified within narrow limits only. With regard to designations of origin, it appears justified to accept
restrictions arising from natural influences on the product in question, since they are tied to the region of production.
On the other hand, this is not true of know-how, which in principle can also be applied outside the region of production.
100. It is also to be observed that a broad interpretation of Article 30 EC appears particularly uncalled for when examining restrictions
on exports within the meaning of Article 29 EC. As explained above, Article 29 EC has been defined by the case-law as meaning
that not every restriction on exports, but only those measures which specifically prevent the export of goods, are prohibited
under that provision. That case-law defines the field of application of the prohibition of restrictions on exports substantially
more narrowly than the field of application for restrictions on imports under Article 28 EC. In accordance with the
Dassonville formula, Article 28 EC prohibits any measure which is capable of directly or indirectly, actually or potentially, hindering
intra-Community trade.
(30)
If, however, the field of application of Article 29 EC is narrower than that of Article 28 EC, there is, in the context
of Article 29 EC in particular, even less reason to interpret the exception in Article 30 EC broadly. Therefore, when interpreting
Article 30 EC, only those measures which are essential in order to guarantee the provenance and quality of the product protected
by the PDO should be accepted as justified.
101. Finally, the matter should also be considered from the following angle. When the Court has interpreted the provisions on
the free movement of goods, it has always endeavoured to help that fundamental freedom to assert itself over national measures
which, like the measure under discussion here, are intended
inter alia to protect domestic industry. The disputes in this context have often concerned foodstuffs whose raw materials essentially
consist of agricultural products. A well-known example is the judgment on the German
Reinheitsgebot (purity requirement) for beer
(31)
which can be traced back to a Bavarian Purity Law adopted in 1516. Other cases have related to Italian pasta,
(32)
the minimum fat content of Edam cheese
(33)
and the marketing of deep-frozen yoghurt.
(34)
Two cases on chocolate are currently pending.
(35)
102. The case-law on the interpretation of Article 28 EC may have prompted producers to seek refuge in industrial property rights,
that is to say to endeavour to compensate for the lost national statutory protection from competition by creating new rights
as protected designations of origin and protected geographical indications. Beer provides a striking demonstration of this
tendency. After the Court declared that the Bavarian/German purity requirement, which reserved use of the designation
beer for beer having only certain ingredients, was incompatible with Article 28 EC, beer produced in other Member States otherwise
than in accordance with the purity requirement could also be sold in Germany under the designation
beer. Initially the German breweries tried to compensate for the economic loss which the opening up of the German market to competing
products from other Member States entailed for them by advertising, for instance by including the words
brewed in accordance with the German purity requirement on the label. In the meantime
Bayerisches Bier (Bavarian beer) was entered in the register kept by the Commission as a protected geographical indication under the procedure
laid down in Article 17 of Regulation No 2081/92.
(36)
If the Court therefore acts in a generous manner in the context of the recognition of industrial property rights and allows
provisions which objectively are not essential in order to protect the origin of a product in a certain area and its particular
characteristics, it runs the risk of again losing, within the framework of Article 29 EC, the freedom of movement of goods
and opening up of national markets achieved in the course of interpreting Article 28 EC.
103. The connection between Articles 28 EC, 29 EC and 30 EC demonstrated in the last two arguments and the consequences of the
case-law on Article 28 EC, which has always favoured the free movement of goods, support in any event a narrow interpretation
of the exceptions justified under Article 30 EC.
104. Consequently, in the context of the specification to be submitted under Article 4 of Regulation No 2081/92 with an application
for registration, only those provisions which are indispensable for guaranteeing the provenance and particular characteristics
of the product are to be accepted, and not also those provisions which are exclusively designed to grant the local undertakings
resident in the region of production an exclusive right to the further processing of the product.
105. It must therefore be stated in conclusion that the structural-policy objectives in the field of agricultural policy pursued
by means of Regulation No 2081/92 are likewise not capable of justifying under Article 30 EC the restriction on exports which
has been found.(d) Proportionality
106. As explained at the outset, the only restrictions on the free movement of goods that may be accepted under Article 30 EC are
those which are necessary and required in order to protect the reputation of the PDO, that is to say which are proportionate.
(37)
In case the foregoing analysis is not followed and the restriction is regarded as justified under Article 30 EC, it is therefore
necessary to discuss in addition to what extent the restriction is proportionate.
107. The requirement to slice Parma ham in the region of production can ensure, in particular having regard to the quality controls
undertaken by the Consorzio, that the sliced ham consists only of Parma ham, comes from the region of production and is sliced,
packaged and labelled in accordance with the rules laid down for using the PDO
Prosciutto di Parma. However, it is questionable whether those rules are the least restrictive means of achieving the objective of fair trade
and of consumer information as to the provenance and particular characteristics of the product or whether other means having
less effect on the free movement of goods are available which achieve that objective equally well.
108. Above all, appropriate product labelling must be considered. In the present case, a possibility is to label the goods as
Prosciutto di Parma, sliced in Great Britain or in a similar non-discriminatory manner.
109. In the
Rioja case, the Court did not pursue the solution called to mind here. It argued that the coexistence of two different bottling
processes, inside or outside the region of production, with or without systematic monitoring by the group of producers, might
reduce the degree of consumer confidence in the designation
denominación de origen calificada based on the conviction that the production of quality wines produced in specified regions must at every stage be carried
out under the control and responsibility of the relevant group of producers.
(38)
110. The present case seems to be only partially comparable. First, as already stated, the slicing of ham out of view of the consumer
is not closely linked to the product in a manner comparable to the bottling of wine. Second, in the present proceedings,
unlike the
Rioja case, the parties have put forward no arguments to the effect that consumers might not be able to distinguish between
Prosciutto di Parma sliced inside and outside the region of production or that there cannot possibly be two different markets, one for
Prosciutto di Parma sliced in the region of production and one for
Prosciutto di Parma sliced outside it.
111. Nor is it in any way evident that any adverse appraisal of
Prosciutto di Parma sliced outside the region of production would necessarily be passed on to the ham sliced inside it. Especially if provision
is made here for appropriate labelling which distinguishes the two products from each other sufficiently clearly, mature and
well-informed consumers, who are to be presumed not only in the context of Article 28 EC
(39)
but also that of Article 29 EC, could also become entirely convinced that ham sliced in the Parma area differs from ham sliced
outside that area. Two different forms of marketing Parma ham are involved. If the consumer comes to the conclusion that
the ham sliced outside the region of production does not satisfy his requirements as regards
Prosciutto di Parma, he can purchase
Prosciutto di Parma sliced in the region of production instead. It is in no way established that if one of the forms of the product does not
appeal to the consumer he will immediately choose a different type of sliced ham.
112. In addition, it is of course permissible to slice the ham outside the region of production in front of the consumer and nevertheless
to sell it using the PDO
Prosciutto di Parma. If that is permissible, it is not evident that appropriate labelling making it clear that the ham has been sliced outside
the region of production cannot protect the quality and the reputation of the PDO
Prosciutto di Parma just as well as the restriction of the use of the PDO to ham sliced and packaged in the region of production. For the reasons
given above, slicing in front of the consumer can hardly ensure anyway that he is informed of the ham's provenance. Furthermore,
here too there is no longer any guarantee that the ham is sliced in accordance with the Consorzio's rules and thereby acquires
any particular characteristics or retains the particular characteristics acquired by it when it was produced.
113. The solution indicated here involving appropriate product labelling also finds support in Regulation No 2081/92. The fifth
recital in the preamble to that regulation expressly points out that the rules concerning protected designations of origin
and protected geographical indications merely supplement the general labelling provisions. They merely supplement the provisions
of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the
labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer.
(40)
114. It is to be noted, furthermore, that Regulation No 2081/92 itself also seeks a solution through appropriate labelling in cases
of conflict. Article 12(2) of the regulation provides that in cases where a name protected under Community law is identical
to a name of a third country, the name may be used only if the country of origin of the product is clearly and visibly indicated
on the label. If consumers can be expected, in such cases where names are identical, to distinguish one product from the
other through the country of origin being specified on the label, it is not clear why they should not be able to do the same
when the label states where processing took place.
115. It must therefore be concluded that less restrictive means exist than limiting use of the PDO
Prosciutto di Parma to Parma ham sliced and packaged in the region of production. Equally effective protection of the PDO
Prosciutto di Parma, of the quality of the product and of its reputation with consumers can be achieved by labelling it appropriately. The specification
therefore goes beyond what is necessary and is disproportionate in that respect.(5) Compatibility of the measure with the principles of transparency and legal certainty
116. In the main proceedings it is in question whether the slicing and packaging requirement contained in the specification can
be raised against Asda and Hygrade because it was not published in the
Official Journal of the European Communities and, at any rate officially, is available only in Italian.(a) Publication of the specification
117. Asda and Hygrade complain that the specification is not accessible because it has not been published in the
Official Journal of the European Communities and they have no right against the Commission or the Consorzio to access to it.
118. It is a fundamental principle of the Community legal order that a measure adopted by the public authorities cannot be applicable
to those concerned before they have had the opportunity to make themselves acquainted with it.
(41)
Articles 8 and 13 of Regulation No 2081/92 in conjunction with Regulation No 1107/96 establish a Community law prohibition
on placing on the market under the PDO
Prosciutto di Parma ham which has not been sliced, packaged and labelled in the region of production. However, that prohibition has been published
in the Official Journal only in so far as it follows from Regulations No 2081/92 and No 1107/96 that there is a PDO
Parma ham. The detail of the conditions under which the PDO may be used is contained in the specification submitted with the notification,
which was not published in the Official Journal.
119. It is true that the transmission of a summary of the specification to the committee under Article 15 of Regulation No 2081/92,
a step invoked by the Commission, results in a certain level of publicity for the specification. However, only the Member
States are thereby informed. This reflection therefore does not solve the problem of notifying citizens or businesses such
as Asda and Hygrade.
120. Nor does the fact, relied on by the Commission, that in the normal procedure under Articles 5, 6 and 7 of Regulation No 2081/92
the specification is equally published in the Official Journal in summary form only appear capable of dispelling the concerns
put forward by Asda and Hygrade. Under the normal procedure the national provisions to be observed are none the less indicated.
In the case of the PDO
Parma ham, where the restriction at issue is also embodied in national provisions, that indisputably did not occur.
121. The principle of legal certainty could be complied with by publishing the whole specification in the Official Journal. However,
that approach seems practicable to a limited extent only in view of the very technical nature of that document and its length.
Nor does that approach take account of the fact that, where designations of origin are registered under Article 17 of Regulation
No 2081/92, names already protected under national law on the entry into force of the regulation are involved. The provisions
conferring protection have therefore already been published once, in the case of Parma ham in the Italian Official Gazette.
Account has thus been taken of publicity at national level. If fresh publication were now required at Community level, publication
would take place twice. This proposition accordingly seems not to take sufficiently into account the particular nature of
the registration procedure under Article 17 of Regulation No 2081/92.
122. Registration concludes an administrative procedure which begins with the submission to the relevant Member State of the application,
including the specification to be lodged therewith. As the Court found in its judgment in
Carl Kühne , under the division of powers laid down by Regulation No 2081/92 it is for the Member States to examine the material preconditions
for registration of a PDO or PGI. It is accordingly also for the national courts to decide whether the substantive preconditions
for registration are met.
(42)
As is apparent from the facts set out in that judgment, objections concerning the preconditions were indeed raised at national
level.
(43)
It follows that the problem of the accessibility of the specification, from which the requirements imposed on the use of
a PDO arise, is first of all an issue to be raised within the framework of national law. As
Carl Kühne
(44)
also establishes, that also applies to the simplified procedure followed under Article 17 of Regulation No 2081/92.
123. In the light of that case-law, the question can be raised of whether publication at Community level is still necessary at
all. The registration procedure under Regulation No 2081/92 is a procedure which requires the participation of both national
and Community authorities. Since the Member States are to examine whether the preconditions for registration are met and
objections as to legality are to be raised at national level, publication of the specification at Community level does not
seem absolutely necessary.
124. It is, however, to be taken into account that entry in the register of protected designations of origin meant that the protection
for the PDO
Parma ham which previously existed only at national level was extended throughout the Community. Registration has the effect of creating
the industrial property right established under Community law. The situation appears reconcilable with the principle of legal
certainty only with difficulty if that new right is created without some publicity, which is also ensured at Community level,
for the rules to be observed.
125. Community law indeed ensures some publicity for the specification. In accordance with the 12th recital in the preamble to
Regulation No 2081/92, entry in the register of protected designations of origin and protected geographical indications kept
by the Commission serves to provide information to those involved in the trade. Interested businesses such as Asda and Hygrade
can see first of all from that entry that there is a PDO
Prosciutto di Parma.
126. In addition, it is apparent from Article 4 of Regulation No 2081/92 that a specification is to be annexed to the application
for registration of a PDO or PGI. It is clear, furthermore, from Article 6 of the regulation that the application is to be
sent to the Commission and that the Commission keeps the register of PDOs and PGIs. Businesses therefore know not only that
there is a PDO
Parma ham but also, through that disclosure, that there is a specification for the PDO and that it is held by the Commission.
127. In accordance with case-law, a person who has learnt of the existence of a legal measure which was not notified to him is
obliged to obtain the full text of the legal measure affecting him from the relevant institution.
(45)
This also applies where a summary of the legal measure in question has been published.
(46)
That case-law clearly proceeds on the basis that there is, alongside the duty to notify under Article 254 EC, in addition
an obligation on citizens of the Union to inform themselves where appropriate.
128. An economic operator is informed by publication of Regulation No 1107/96 that the PDO
Parma ham exists. It knows on the basis of Regulation No 2081/92, which was published, that registration occurs only if there is a
corresponding specification. It also knows that applications for registration are to be sent via the Member State to the
Commission and that the Commission keeps the register of protected designations of origin. It accordingly knows where it
can inform itself about the specification. On the basis of the case-law cited, it may therefore be assumed that where the
need arises businesses inform themselves about the specification of interest to them by making an appropriate request to the
Commission.
129. The fact that the register is kept by the Commission and serves to provide information to those involved in the trade and
that the Commission receives the application for registration together with the specification via the competent Member State
provides justification, arguing from the converse, for the assumption that the Commission is obliged to make the specification
held by it accessible to interested persons involved in the trade. It performs with regard to the basic elements of the registration
the function as it were of a notary or depositary with whom the documents which have led to the registration are deposited.
That assumption appears to be necessary not only for reasons of legal certainty but also in particular in the light of Article
255 EC which grants citizens of the Union a right of access to the Commission's documents. In addition, regard is to be had
to the third paragraph of Article 21 EC. It too entitles every citizen to write to the Commission and seek information.
130. The fact that the specification was not drawn up by the Commission should not preclude the right of access to that document.
The Commission is the author of the entry in the register of protected designations of origin. Since the protective effect
of registration conferred by Articles 8 and 13 of Regulation No 2081/92 also relates to the conditions for use of the PDO
or PGI which are contained in the specification, the Commission may be considered to have taken on the provisions in the specification.
Finally the Commission is the author of the legal measure, Regulation No 1107/96, by which the PDO
Parma ham is protected under Community law to the extent defined by the specification. It is therefore either to be regarded as author
or at any rate to be equated to the drafter.
131. As for the rest, it is to be noted that, in accordance with Article 2(3) of Regulation (EC) No 1049/2001 of the European Parliament
and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents
(47)
which was adopted in implementation of Article 255 EC (see the fourth recital in its preamble), a right of access is granted
to all documents held by an institution, that is to say to all documents drawn up or received by it and in its possession,
in all areas of activity of the European Union. The specification concerns an entry in the register of PDOs and PGIs and
thus an area of activity of the Union. It was received by the Commission and is in its possession. The Commission is therefore
required to grant access to that document.
132. It must therefore be stated by way of intermediate conclusion that the absence of publication of the specification in the
Official Journal does not infringe the principles of transparency and legal certainty. A business must inform itself about
the specification and the conditions contained in it for use of a PDO by making a request to the Commission.(b) Existence of the specification in only one official language
133. It thus remains to discuss to what extent the rules cannot be raised against Asda and Hygrade because they were submitted
to the Commission in Italian only and at any rate no official English translation of the specification for the PDO
Parma ham is available.
134. The question is thus raised as to whether a prohibition under Community law, as declared here by means of Articles 8 and 13
of Regulation No 2081/92 in respect of use of the PDO
Parma ham for ham not sliced in the region of production, is effective only if it is published or accessible in all the official languages.
135. The question of the extent to which a citizen's obligations under Community law must be accessible to him in his mother tongue,
at least in so far as it is one of the official languages of the Community, is a fundamental question. Article 290 EC does
not settle the language question but leaves it to the Council to settle. A right cannot at any rate be derived from that
provision whereby all Community law measures must necessarily be available in every official language.
(48)
136. Under Articles 4 and 5 of Regulation No 1 of the Council of 15 April 1958 determining the languages to be used by the European
Economic Community,
(49)
regulations and other documents of general application are to be drafted in the official languages and published in the Official
Journal. As explained above, the specification at issue here forms part of the entry in the register of designations of origin
which was effected on the basis of Regulation No 1107/96. It can thus be taken as part of the regulation. By virtue of the
prohibitory effect of Articles 8 and 13 of Regulation No 2081/92, it is, however, in any event
another document of general application because it lays down in detail the conditions to be met for use of the PDO. This could indicate that the specification must
be translated into all the official languages.
137. It could be argued to the same effect by referring to the third paragraph of Article 21 EC. Under that provision, every citizen
may write to the Commission and expect an answer from it in the official language chosen for the request. If Asda and Hygrade
therefore write to the Commission in English in accordance with the solution proposed above and seek information on the specification,
the view could be taken, referring to that provision, that the Commission must produce the specification in English.
138. This solution perhaps comes closest to meeting the requirement of legal certainty. However, it fails to take account of the
mixed national/Community nature of the registration procedure and imposes a substantial translation burden on the Commission.
139. As already stated, under the case-law judicial protection in respect of a registration is to be sought from the national courts.
(50)
Within that framework, a business interested in placing on the market a product protected by a PDO is nevertheless obliged
to use the official language in which the application for registration was written, therefore Italian in the present case.
140. Against that background, it does not seem unreasonable to expect a person who seeks information from the Commission on a specification
to receive the specification in the official language in which it was submitted to the Commission with the application for
registration.
141. This outcome also seems justified in particular by the reflection that a business concerned with placing foreign goods on
the market, such as Asda or Hygrade, will generally have the linguistic knowledge necessary for importing the goods or otherwise
has available to it appropriate means of overcoming the associated language difficulties. It can therefore also be expected
to overcome the obstacles resulting from the fact that the specification is available in the original language only.
142. In addition to those arguments, practice in competition law can be referred to. There the principle applies that, while the
person to whom a decision on a cartel is addressed must be sent the statement of objections in his official language, the
documents upon which the Commission's assessment is based and which are communicated as annexes or subject to the right of
inspection are to be made available only in the original. No translation is required.
(51)
Here too, documents upon which the Commission bases its decision are involved. It could be argued in a similar fashion
that, when the Commission decides on the registration of a designation of origin, it relies on the details in the application
for registration and particularly in the specification and that the specification is therefore also to be made available only
in the original language.
143. On the basis of those reflections, it must be assumed that the fact that the specification does not exist in English does
not prevent Articles 8 and 13 from being directly applicable in relation to the PDO
Parma ham.
144. It should be added that the problem discussed here concerns only registrations under the simplified procedure. For names
registered under the normal procedure, a summary of the notification including the specification and reference to any national
provisions to be observed is published in the Official Journal and therefore in all the official languages. The consequences
of the interpretation put forward here are thus limited. The interpretation concerns only registrations of names already
existing when Regulation No 2081/92 was adopted, and only in so far as the Commission was informed of them within six months
of the entry into force of the regulation. In that respect, the interpretation put forward here appears appropriate to the
particular features of the procedure under Article 17 of Regulation No 2081/92.
145. It is therefore to be concluded that the registration of the PDO
Parma ham is also consistent with the principles of legal certainty and transparency.
VI ─ Summary
146. It can thus be stated by way of summary that the condition contained in the specification that the PDO
Parma ham may be used for sliced ham only if it is sliced, packaged and labelled in the region of production under the supervision
of the Consorzio del Prosciutto di Parma is a measure having an equivalent effect to a quantitative restriction on exports
within the meaning of Article 29 EC. The measure is not justified on grounds of protection of industrial and commercial property
within the meaning of Article 30 EC. Nor can it be accepted as justified under Article 30 on the basis of structural-policy
considerations. Moreover, it is disproportionate. Regulation No 1107/96 is therefore to be declared invalid in so far as
it reserves the protected designation of origin
Prosciutto di Parma for sliced ham which is sliced, packaged and labelled in the region of production under the supervision of the Consorzio
del Prosciutto di Parma.
VII ─ Conclusion
147. On the basis of the foregoing arguments, I propose the following answer to the question referred for a preliminary ruling:
(1) Council Regulation (EEC) No 2081/92 read with Commission Regulation (EC) No 1107/96 and the specification for the protected
designation of origin
Prosciutto di Parma does not create a directly enforceable right to prevent the protected designation of origin
Prosciutto di Parma from being used for Parma ham which has not been sliced, packaged and labelled in the region of production.
(2) Commission Regulation (EC) No 1107/96 of 12 June 1996 on the registration of geographical indications and designations of
origin under the procedure laid down in Article 17 of Council Regulation (EEC) No 2081/92 is invalid in so far as it reserves
the protected designation of origin
Prosciutto di Parma for sliced ham which is sliced, packaged and labelled in the region of production under the supervision of the Consorzio
del Prosciutto di Parma.
- 1 –
- Original language: German.
- 2 –
- OJ 1992 L 208, p. 1.
- 3 –
- This footnote concerns only the German version of the Opinion.
- 4 –
- Under Article 18 the regulation was to enter into force 12 months after the date of its publication. Since the regulation
was published in the Official Journal on 24 July 1992, it entered into force on 24 July 1993. The simplified procedure was
therefore applicable until 24 January 1994.
- 5 –
- OJ 1996 L 148, p. 1.
- 6 –
- . Gazzetta Ufficiale della Repubblica Italiana (GURI) No 179 of 17 July 1970, p. 4748.
- 7 –
- GURI No 42 of 20 February 1990.
- 8 –
- GURI No 173 of 26 July 1993.
- 9 –
- This footnote is unnecessary for the English version of the Opinion.
- 10 –
- This footnote is unnecessary for the English version of the Opinion.
- 11 –
- Case C-388/95
Belgium v
Spain [2000] ECR I-3123.
- 12 –
- OJ 1994 L 46, p. 58.
- 13 –
- Joined Cases C-321/94, C-322/94, C-323/94 and C-324/94
Pistre and Others [1997] ECR I-2343, paragraph 31.
- 14 –
- Judgment in Case C-269/99
Carl Kühne and Others [2001] ECR I-9517, paragraphs 50 to 54.
- 15 –
- . Carl Kühne , cited in footnote 14, paragraph 60.
- 16 –
- . Carl Kühne , cited in footnote 14, paragraph 52.
- 17 –
- . Carl Kühne , cited in footnote 14, paragraph 53.
- 18 –
- . Carl Kühne , cited in footnote 14, paragraphs 49 and 57 to 60.
- 19 –
- Case C-209/98
Sydhavnens Sten & Grus [2000] ECR I-3743, paragraph 34, Case 172/82
Inter-Huiles and Others [1983] ECR 555, paragraph 12, and Case 238/82
Duphar [1984] ECR 523, paragraph 25.
- 20 –
- Case C-51/93
Meyhui [1994] ECR I-3879, paragraph 11.
- 21 –
- Cf. the judgment in Case C-3/91
Exportur [1992] ECR I-5529, at paragraphs 16 to 22, where the two, differing, approaches to Articles 28 EC and 29 EC are discussed
in the light of the law on designations of origin.
- 22 –
- Case C-47/90
Delhaize et Le Lion [1992] ECR I-3669, paragraphs 12, 13 and 14, and
Belgium v
Spain , cited in footnote 11, paragraphs 38 to 42.
- 23 –
- . Belgium v
Spain , cited in footnote 11, paragraphs 38 to 42.
- 24 –
- . Exportur , cited in footnote 21, paragraph 37, and
Belgium v
Spain , cited in footnote 11, paragraph 54.
- 25 –
- . Delhaize et Le Lion , cited in footnote 22, paragraph 16 et seq., and
Exportur , cited in footnote 21, paragraph 24.
- 26 –
- See, with regard to this approach in the case-law, for example Case C-228/91
Commission v
Italy [1993] ECR I-2701, paragraph 19.
- 27 –
- See the findings in
Belgium v
Spain , cited in footnote 11, paragraph 53.
- 28 –
- See the judgments in Case 113/80
Commission v
Ireland [1981] ECR 1625, paragraph 7, in Case 95/81
Commission v
Italy [1982] ECR 2187, paragraph 20 et seq., and in
Pistre , cited in footnote 13, paragraph 52, and the Opinion of Advocate General Jacobs in Case C-312/98
Warsteiner Brauerei [2000] ECR I-9187, paragraph 36.
- 29 –
- Judgment in Case C-205/89
Commission v
Greece [1991] ECR I-1361, paragraph 9, and Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-358/95
Morellato [1997] ECR I-1431, point 21.
- 30 –
- Case 8/74
Dassonville [1974] ECR 837, paragraph 5. See also Joined Cases C-267/91 and C-268/91
Keck and Mithouard [1993] ECR I-6097, paragraph 11.
- 31 –
- Case 178/84
Commission v
Germany [1987] ECR 1227.
- 32 –
- Case 407/85
3 Glocken and Another v
USL Centro-Sud and Another [1988] ECR 4233.
- 33 –
- Case 286/86
Deserbais [1988] ECR 4907.
- 34 –
- Case 298/87
Smanor [1988] ECR 4489.
- 35 –
- They are Case C-12/00
Commission v
Spain and Case C-14/00
Commission v
Italy , in which Opinions were delivered on 6 December 2001.
- 36 –
- Council Regulation (EC) No 1347/2001 of 28 June 2001 supplementing the Annex to Commission Regulation (EC) No 1107/96 on the
registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Council
Regulation (EEC) No 2081/92 (OJ 2001 L 182, p. 3).
- 37 –
- See, with regard to this approach in the case-law, for example
Commission v
Italy , cited in footnote 26, paragraph 19.
- 38 –
- . Belgium v
Spain , cited in footnote 11, paragraph 77.
- 39 –
- See Case C-3/99
Ruwet [2000] ECR I-8749, paragraph 53.
- 40 –
- OJ 1979 L 33, p. 1.
- 41 –
- Judgment in Case 98/78
Racke [1979] ECR 69, paragraph 15; judgment in Case 99/78
Decker [1979] ECR 101, paragraph 3. See also the observations of Advocate General Geelhoed in his Opinion in Case C-228/99
Silos e Mangimi Martini [2001] ECR I-8401, at point 39.
- 42 –
- . Carl Kühne , cited in footnote 14, paragraphs 52 and 57 et seq.
- 43 –
- See paragraph 20 of the judgment.
- 44 –
- Paragraph 52 of the judgment.
- 45 –
- Case C-48/96 P
Windpark Groothusen v
Commission [1998] ECR I-2873, paragraphs 25 and 26; Case C-309/95
Commission v
Council [1998] ECR I-655, paragraph 18.
- 46 –
- Case T-188/95
Waterleiding Maatschappij
Noord-West Brabant v
Commission [1998] ECR II-3713, paragraphs 110 and 111.
- 47 –
- OJ 2001 L 145, p. 43.
- 48 –
- Cf. Case T-120/99
Kik v
OHIM [2001] ECR II-2235, paragraph 58.
- 49 –
- OJ, English Special Edition 1952-1958, p. 59.
- 50 –
- . Carl Kühne , cited in footnote 14, paragraph 58.
- 51 –
- Case T-148/89
Trefilunion v
Commission [1995] ECR II-1063, paragraph 21.
