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Cite as: [2003] EUECJ C-6/02, [2003] EUECJ C-6/2

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JUDGMENT OF THE COURT (Third Chamber)

6 March 2003 (1)

(Failure by a Member State to fulfil obligations - Free movement of goods - Measures having equivalent effect - Indication of provenance - Regional labels)

In Case C-6/02,

Commission of the European Communities, represented by H. van Lier and J. Adda, acting as Agents, with an address for service in Luxembourg,

applicant,

French Republic, represented by G. de Bergues and A. Colomb, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by maintaining the national legal protection afforded to the name 'Salaisons d'Auvergne' and to the regional labels 'Savoie', 'Franche-Comté', 'Corse', 'Midi-Pyrénées', 'Normandie', 'Nord-Pas-de-Calais', 'Ardennes de France', 'Limousin', 'Languedoc-Roussillon' and 'Lorraine', the French Republic has failed to fulfil its obligations under Article 28 EC,

THE COURT (Third Chamber),

composed of: J.-P. Puissochet, President of the Chamber, C. Gulmann (Rapporteur) and F. Macken, Judges,

Advocate General: J. Mischo,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 5 December 2002,

gives the following

Judgment

By an application lodged at the Court Registry on 10 January 2002, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by maintaining the national legal protection afforded to the name 'Salaisons d'Auvergne' and to the regional labels 'Savoie', 'Franche-Comté', 'Corse', 'Midi-Pyrénées', 'Normandie', 'Nord-Pas-de-Calais', 'Ardennes de France', 'Limousin', 'Languedoc-Roussillon' and 'Lorraine', the French Republic has failed to fulfil its obligations under Article 28 EC.

The legislative framework

The Community legislation

Under Article 28 EC, quantitative restrictions on imports and measures having equivalent effect are prohibited between Member States. However, Article 30 EC provides that restrictions on imports between Member States which are justified on grounds of, inter alia, the protection of industrial and commercial property are permitted, so long as they do not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

Article 2(2)(b) of 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 (OJ 1992 L 208, p. 1), as amended by Council Regulation (EEC) No 535/97 of 17 March 1997 (OJ 1997 L 83, p. 3, hereinafter 'Regulation No 2081/92') provides:

'For the purposes of this Regulation:

...

(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.'

Protection of a geographical indication in accordance with Regulation No 2081/92 takes effect, following a procedure provided for in Articles 5 to 7 of that regulation, with the adoption of a registration decision by the Commission.

Article 17(1) of Regulation No 2081/92 provides that '[w]ithin six months of the entry into force of [this] Regulation, Member States shall inform the Commission which of their legally protected names or, in those Member States where there is no protection system, which of their names established by usage they wish to register pursuant to this Regulation'. The Commission is to register such names in so far as they comply with the criteria laid down in Articles 2 and 4 of that regulation. Member States may maintain national protection of the names so notified until such time as a decision on registration has been taken.

Article 5(5) of Regulation No 2081/92 is worded as follows:

'The Member State shall check that the application [for registration] is justified and shall forward the application, including the product specification referred to in Article 4 and other documents on which it has based its decision, to the Commission, if it considers that it satisfies the requirements of this Regulation.

That Member State may, on a transitional basis only, grant on the national level a protection in the sense of the present Regulation to the name forwarded in the manner prescribed, and, where appropriate, an adjustment period, as from the date of such forwarding; these may also be granted transitionally subject to the sameconditions in connection with an application for the amendment of the product specification.

Such transitional national protection shall cease on the date on which a decision on registration under this Regulation is taken. When that decision is taken, a period of up to five years may be allowed for adjustment, on condition that the undertakings concerned have legally marketed the products in question, using the names concerned continuously, for at least five years prior to the date of the publication provided for in Article 6(2).

The consequences of such national protection, where a name is not registered under this Regulation, shall be the sole responsibility of the Member State concerned.

The measures taken by Member States under the second subparagraph shall produce effects at national level only; they shall have no effect on intra-Community trade.

If the application concerns a name indicating a geographical area situated in another Member State also, that Member State shall be consulted before any decision is taken.'

The national legislation

Following the entry into force of Regulation No 2081/92, the French Government adopted Loi no 94-2, du 3 janvier 1994, relative à la reconnaissance de qualité des produits agricoles et alimentaires (Law No 94-2 of 3 January 1994 on the recognition of quality of agricultural products and foodstuffs (JORF of 4 January 1994, p. 131, hereinafter 'Law No 94-2'). Article L. 115-23-1 of the Code de la consommation (Consumer Code), as amended by that law (hereinafter 'the Consumer Code'), provides:

'...

... The label or certification of conformity shall not contain any geographical indication not registered as a protected geographical indication.

However, if the administrative authority has applied for registration of such a geographical indication as a protected geographical indication, the label or certification of conformity may contain that indication, including in the specific characteristics, until the date of the decision on its registration.

...

Agricultural products and foodstuffs which qualified, prior to the publication of Law No 94-2 of 3 January 1994 on the recognition of quality of agricultural products andfoodstuffs, for an agricultural label or certification of conformity may continue to bear a geographical indication of origin for a period of eight years from the date of publication of that law.'

The pre-litigation procedure

In accordance with the procedure laid down in Article 169 of the EC Treaty (now Article 226 EC), the Commission, having formally requested the French Republic to submit its observations, sent it a reasoned opinion by letter of 28 April 1999. In that opinion, the Commission claimed inter alia that, by maintaining the national legal protection afforded to the names in question, that Member State had failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC). It called on the French Republic to take the measures required to comply with the reasoned opinion within two months from the date of its notification. In the light of the information communicated to the Commission by the French authorities following that opinion, it took the view that the French Republic had not complied with its requests made therein and decided to bring the present action.

Substance

The Commission argues that the question whether the labels introduced by the French legislation comply with Community law must be determined in the light of the provisions of Articles 28 EC and 30 EC, interpreted, in particular, by reference to the provisions of Regulation No 2081/92.

With regard to the name 'Salaisons d'Auvergne', the Commission observes that the French authorities stated that that name should form the subject of an application for registration as a geographical indication under Article 5 of Regulation No 2081/92. However, the Commission doubts whether such a name can be registered since that regulation allows the registration of a particular product or foodstuff but not a category of products such as those covered by the term 'salaisons'. In any event, in the absence of an application for registration of the name 'Salaisons d'Auvergne', the French authorities cannot legitimately rely on the provisions of Article 5(5) of that regulation, which conferred on them the right to protect that name transitionally and on a national level pending a Community decision on its registration.

With regard to the other names at issue, the Commission notes that Article L. 115-23-1 of the Consumer Code, while stating that a label 'shall not contain any geographical indication not registered as a protected geographical indication', nevertheless establishes a transitional period of eight years, from the date of publication of Law No 94-2, during which products or foodstuffs which qualified fora label prior to the publication of that law may continue to bear a geographical indication of origin without being entitled to a protected geographical indication. It points out that it is aware of the potential technical difficulties faced by economic operators and the competent regional authorities in connection with the revision of the legislation concerning labels. However, it cannot allow a transitional period of eight years, which constitutes an infringement of the provisions of Articles 28 EC and 30 EC.

The Commission submits that the French provisions which establish the names at issue may affect the free movement of goods between Member States, particularly since those provisions encourage the marketing of goods of national origin to the detriment of imported goods. The application of those provisions in itself creates and maintains a difference in treatment as between those two categories of goods.

The names at issue are intended to inform the consumer that the agricultural products or foodstuffs which bear them come from a particular region. However, since the entry into force of Regulation No 2081/92, the purpose of which is specifically to define the circumstances in which the protection of a name establishing a link between, on the one hand, agricultural products and foodstuffs and, on the other hand, a particular geographical origin may be introduced, protection for designations of origin and geographical indications may now, according to the Commission, be afforded only within the framework laid down by that regulation.

In its defence, the French Government does not dispute that, following the adoption of Law No 94-2, its legislation did not comply with Community law.

However, that government submits, in its rejoinder, that the adoption of a new legal framework put an end to the non-compliance in question. In that regard, it argues as follows:

- the name 'Salaisons d'Auvergne' was abolished by Article 6 of the Order of the Minister for Agriculture, Food, Fisheries and Rural Affairs and of the State Secretary for Small and Medium-Sized Enterprises, Trade, Craft Industries, Liberal Professions and Consumer Affairs of 12 August 2002 amending orders concerning regional labels (JORF of 11 September 2002, p. 15051, hereinafter 'the joint order');

- with regard to the regional label 'Savoie', the effect of Article 1 of the joint order was to abolish the names 'jésus, rosette', 'pur jus de pomme de Savoie' and 'plants de vigne de Savoie';

- although no change was formally necessary with regard to the regional label 'Franche-Comté', the effect of Article 2 of the joint order was to remove the indication 'morbier au lait cru' from the list of protected names;

- the regional label 'Corse' was abolished by the Order of the Minister for Agriculture, Food, Fisheries and Rural Affairs of 12 August 2002 repealing a general agricultural label regulation (JORF of 11 September 2002, p. 15051);

- the abolition of the regional label 'Midi-Pyrénées' is a consequence of Article 3 of the joint order;

- in the case of the regional label 'Nord-Pas-de-Calais', only names in respect of which an application for registration as a geographical indication is pending have remained, in accordance with Article 4 of the joint order, on the list of protected names;

- the provisions concerning the regional label 'Ardennes de France' have, as a consequence of Article 5 of the joint order, been repealed;

- so far as the regional label 'Lorraine' is concerned, the names arising from that label were registered as geographical indications by 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 (OJ 1992 L 148, p. 1) and

- so far as the regional labels 'Normandie', 'Limousin' and 'Languedoc-Roussillon' are concerned, the bringing of the national legislation into conformity with Community law did not require any amendment of that legislation.

In that regard, it must be recalled that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, in particular, Case C-352/01 Commission v Spain [2002] ECR I-0000, paragraph 6).

In the present case, the French Republic does not dispute that it did not adopt the measures necessary in order to comply with Community law within the period prescribed for that purpose in the reasoned opinion.

Furthermore, a Member State may not plead provisions, practices or situations within its internal legal order in order to justify its failure to fulfil obligations under Community law (see, in particular, Case C-13/00 Commission v Ireland [2002] ECR I-2943, paragraph 21).

The application must therefore be allowed.

Consequently, it must be held that, by not putting an end, within the period laid down in the reasoned opinion, to the national legal protection afforded to the names at issue, the French Republic has failed to fulfil its obligations under Article 28 EC.

Costs

On those grounds,

THE COURT (Third Chamber)

hereby:

1. Declares that, by maintaining the national legal protection afforded to the name 'Salaisons d'Auvergne' and to the regional labels 'Savoie', 'Franche-Comté', 'Corse', 'Midi-Pyrénées', 'Normandie', 'Nord-Pas-de-Calais', 'Ardennes de France', 'Limousin', 'Languedoc-Roussillon' and 'Lorraine', the French Republic has failed to fulfil its obligations under Article 28 EC;

2. Orders the French Republic to pay the costs.

Puissochet Gulmann Macken

Delivered in open court in Luxembourg on 6 March 2003.

R. Grass J.-P. Puissochet

Registrar President of the Third Chamber

1: Language of the case: French.