CJEC, 6th chamber, December 6, 2001, No C-269/99

THE COURT (Sixth Chamber),

1. By order of 23 June 1999, received at the Court on 19 July 1999, the Landgericht (Regional Court) Hamburg (Germany) referred to the Court for a preliminary ruling under Article 234 EC a question on the validity of Commission Regulation (EC) No 590-1999 of 18 March 1999 supplementing the Annex to Regulation (EC) No 1107-96 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Regulation (EEC) No 2081-92 (OJ 1999 L 74, p. 8).

2. That question was raised in proceedings brought by Carl Kühne GmbH & Co. KG, Rich. Hengstenberg GmbH & Co. and Ernst Nowka GmbH & Co. KG (hereinafter 'Kühne and Others') against Jütro Konservenfabrik GmbH & Co. KG (hereinafter 'Jütro') concerning the use of the designation 'Spreewälder Art' by the latter for its pickled gherkins.

Community legislation

3. 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) seeks to establish a framework of Community rules for protection of registered designations of origin and geographical indications for certain agricultural products and foodstuffs where there is a link between the characteristics of the product or foodstuff and its geographical origin. That regulation provides for a system of registration at Community level of geographical indications and designations of origin which will confer protection in every Member State.

4. Article 2(2) of Regulation No 2081-92 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.'

5. Under Article 4(1) of Regulation No 2081-92, to be eligible to use a protected designation of origin (PDO) or a protected geographical indication (PGI) an agricultural product or foodstuff must comply with a specification. The matters which must be included in the specification are set out in Article 4(2) of the regulation and are, among others, 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 product or foodstuff and the details bearing out the link with the geographical environment or the geographical origin.

6. Regulation No 2081-92 provides for both a 'normal' and a 'simplified' procedure for registration of a PDO or a PGI.

7. The normal registration procedure of a PDO or a PGI is governed by Articles 5 to 7 of Regulation No 2081-92. In brief, Article 5 provides that the application including the product specification shall be sent by the interested group to the Member State in which the relevant geographical area is situated. Under paragraph 5 of that article, '[t]he Member State shall check that the application 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'. Under Article 6, '[w]ithin a period of six months the Commission shall verify, by means of a formal investigation, whether the registration application includes all the particulars provided for in Article 4', and, if it concludes that the name qualifies for protection, shall publish it in the Official Journal of the European Communities. Article 7 provides that, within six months of the date of that publication, any Member State may object to the registration and that any legitimately concerned natural or legal person may object to the proposed registration by sending a duly substantiated statement to the competent authority of the Member State in which he resides or is established.

8. Article 13(1)(b) of Regulation No 2081-92 provides that '[r]egistered names shall be protected against ... 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'.

9. Article 15 of Regulation No 2081-92 provides that, in the context of the procedure for registration of a PDO or a PGI, the Commission is to be assisted by a committee composed of the representatives of the Member States and chaired by the representative of the Commission.

10. As a derogation from the normal procedure, Article 17 of Regulation No 2081-92 provides for a simplified procedure of registration of a PGI or a PDO:

'1. Within six months of the entry into force of the 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.

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. However, generic names shall not be added.

...'

11. Article 18 of Regulation No 2081-92 provides that the regulation is to enter into force 12 months after the date of its publication in the Official Journal of the European Communities. That publication took place on 24 July 1992.

12. After examining the designations notified by the Member States under Article 17 of Regulation No 2081-92, the Commission adopted 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 (OJ 1996 L 148, p. 1). The annex to that regulation contains a list of the designations registered as PGIs or PDOs under Article 17 of Regulation No 2081-92.

13. That annex has been supplemented inter alia by Regulation No 590-1999, which inserted in Part A thereof, under the heading 'Fruit, vegetables, cereals', subheading 'Germany', the PGI 'Spreewälder Gurken' (Spreewald Gherkins).

14. The first recital in the preamble to Regulation No 590-1999 reads as follows:

'Whereas, for certain names notified by the Member States under Article 17 of Regulation (EEC) No 2081-92, additional information was requested in order to ensure that they complied with Articles 2 and 4 of that Regulation; whereas that additional information shows that the names comply with the said Articles; whereas they should therefore be registered and added to the Annex to Commission Regulation (EC) No 1107-96 ...'.

The registration procedure for the designation 'Spreewälder Gurken' as a PGI

15. The Spreewald is an area to the south of Berlin, through which flows the River Spree. Between the towns of Lübben and Cottbus the river branches into numerous streams to create an inland delta criss-crossed by waterways. The former dense forest has been partly cleared for cultivation, to which the alluvial soil of the former glacial valley is well suited. The pickling of vegetables, such as gherkins, has long been an industry in the area.

16. According to the order for reference, Spreewald eG, later replaced by Spreewaldverein eV, in 1993 requested the German authorities to submit an application to the Commission for registration of the designation 'Spreewälder Gurken' as a PDO.

17. The Commission states that it received that application under Article 17 of Regulation No 2081-92 from the German Government on 26 January 1994. According to the specification required by Article 4(2) of Regulation No 2081-92, which accompanied the application:

- the geographical area was 'the glacial valley of the Spree between the northern edge of the town of Cottbus and the Neuendorfer See north of the town of Lübben',

- all gherkins had to originate in the geographical area.

18. According to the German Government, the Commission informed it in 1995 that numerous notifications pursuant to Article 17 of Regulation No 2081-92 were incomplete and invited it to provide additional documents and information. Between July 1995 and March 1996, the German Government therefore asked most of the parties concerned to supplement the documents originally lodged.

19. It appears from the order for reference that, following various requests made by Spreewaldverein eV, the German authorities on several occasions amended the original application so that, finally, according to the amended specification,

- it sought the registration of the designation 'Spreewälder Gurken' as a PGI,

- the geographical area was the 'territory along the Spree between Jänschwalde and Dürrenhofe and within the boundaries of an economic region determined by decisions of the local legislative bodies', called 'Wirtschaftsraum Spreewald' (Spreewald economic zone), with the result that the geographical area defined in the original specification was more than doubled,

- at least 70% of the gherkins had to originate from the geographical area mentioned.

20. In the course of the national phase of the simplified procedure under Article 17 of Regulation No 2081-92, a whole series of interested third parties raised objections to the application for registration of the designation 'Spreewälder Gurken'. They claimed that the special geographical and climatic conditions referred to in the application applied at most to the Spreewald, in the strict sense of the inland delta region, and not to the entire Wirtschaftsraum Spreewald, and that the processed product should not contain any raw materials from other production areas.

21. The German Government at first decided to abandon the simplified procedure and follow the normal procedure, but it then changed its mind and followed the simplified procedure, which led to the registration of the designation 'Spreewälder Gurken' by Regulation No 590-1999.

The main proceedings

22. Jütro has its registered office and production facility in Jüterbog, a town outside the geographical area of the PGI 'Spreewälder Gurken'. It produces, among other things, pickled gherkins called 'Jütro Gurkenfäßchen', which are distributed throughout Germany under the description 'Spreewälder Art' (Spreewald style).

23. Kühne and Others are producers of pickled gherkins competing with Jütro, who also do not meet the conditions for being able to use the designation 'Spreewälder Gurken'. They brought an action in the Landgericht Hamburg seeking an order prohibiting Jütro from using the designation 'Spreewälder Art' for its pickled gherkins on the ground that the use of that designation is no longer lawful, under Article 13(1)(b) of Regulation No 2081-92, since the registration of the designation 'Spreewälder Gurken' as a PGI.

24. In its defence Jütro pleaded the invalidity of Regulation No 590-1999 in so far as it registered the designation 'Spreewälder Gurken'.

25. In its order for reference, the Landgericht Hamburg considers that the registration of the designation 'Spreewälder Gurken' raises a number of problems such as to give rise to serious doubt on the validity of the registration.

26. In those circumstances, the Landgericht Hamburg stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

'Is Commission Regulation (EC) No 590-1999 of 18 March 1999 supplementing, by the designation "Spreewälder Gurken", the Annex to Regulation (EC) No 1107-96 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Regulation (EEC) No 2081-92 compatible with European Community law?'

The question referred

Compliance with the time-limit of six months under Article 17 of Regulation No 2081-92

27. Noting that Article 17 of Regulation No 2081-92 imposed on the Member States a time-limit of six months, from the date of the entry into force of that regulation, to notify the Commission of the designations which they wished to have registered under the simplified procedure, the referring court questions the compliance with that time-limit by the German authorities in this case.

28. In that regard it should be noted, firstly, that the original application was received by the Commission on 26 January 1994 and that, therefore, as the Advocate General pointed out in paragraph 39 of his Opinion, it was lodged before the expiry of the six months' time-limit laid down by Article 17 of Regulation No 2081-92.

29. Secondly, it must be examined whether, as the referring court thinks, the validity of Regulation No 590-1999 is open to question because the original application was substantially amended over a period of several years after the expiry of the six months' time-limit.

30. Jütro argues that, in those circumstances, the registration should have been made in accordance with the normal procedure under Articles 5 to 7 of Regulation No 2081-92.

31. On the other hand, the German and Austrian Governments and the Commission submit that Article 17(1) of that regulation has been correctly applied in this case. They point out that that provision only requires the Member States to notify the Commission of the designations to be registered, so that the provision of supplementary information and the notification of changes to information already provided are not subject to the time-limit of six months.

32. In that regard, it should be observed that, unlike Article 5 of Regulation No 2081-92, which provides expressly that, in the normal procedure, the application for registration is to be accompanied by the specification, Article 17 of the regulation is confined to requiring the Member States to notify 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'. In those circumstances, Article 17 of Regulation No 2081-92 cannot be interpreted as requiring the Member States to communicate, within the six months' time-limit, the final version of the specification and the other relevant documents, so that any amendment of the specification originally submitted would lead to the application of the normal procedure.

33. That interpretation of Article 17 of Regulation No 2081-92 is further supported, as the Austrian Government has more particularly submitted, by the fact that the northern Member States have not historically had registers of protected designations, protection having been afforded by laws against misleading practices. It was only when Regulation No 2081-92 entered into force that it became necessary for those Member States to draw up a list of existing designations and determine whether they were PDOs or PGIs. It would therefore have been unrealistic to require those Member States to provide the Commission, within six months from the entry into force of Regulation No 2081-92, with all the information and documents necessary for a decision on registration, especially given the time needed for interested parties to exercise their procedural rights at the national level.

34. It must therefore be held that, in this case, the amendment of the original application for registration after the expiry of the time-limit of six months provided for by Article 17 of Regulation No 2081-92 did not make the application of the simplified procedure unlawful.

Applicability of the simplified procedure to applications for registration which are controversial at national level

35. The referring court doubts whether the simplified procedure can be applied if, as in the present case, third parties have raised serious objections at national level to the registration of the designation concerned.

36. That court considers that the expression 'names established by usage' in Article 17(1) of Regulation No 2081-92 is aimed at allowing registration under the simplified procedure only of those designations which are unopposed in the Member State concerned. The simplified procedure is not appropriate in cases in which the registration raises serious problems since, in the context of that procedure, those concerned have no chance of asserting their objections.

37. Jütro considers that the simplified procedure can only be used for designations which are widely accepted as being among the designations protected in the Member States. Yet the designation 'Spreewälder Gurken', as defined in the amended specification, is by no means a case in which the registration is indisputable. Quite the contrary, numerous interested third parties have raised a whole series of objections, particularly in relation to the demarcation of the geographical area.

38. The Commission submits that Article 17(2) of Regulation No 2081-92 expressly excludes the application, in the context of the simplified procedure, of Article 7 of that regulation, which enables interested third parties to object to a proposed registration in the context of the normal procedure. However, it submits that the simplified procedure also caters for possible objections, since Article 15 of Regulation No 2081-92 requires the Commission to be assisted, in giving its decisions on applications for registration pursuant to the simplified procedure, by a committee of representatives of the Member States. The Commission points out that it heard that committee when considering the application for registration of the designation 'Spreewälder Gurken'.

39. The German Government argues that the mere fact that there are different opinions at national level as to the registration of a designation does not mean that the simplified procedure is inapplicable. In such cases, it is for the Member States to ensure that the parties concerned are heard. In this case, the German Government heard the objections of interested parties and carefully considered the problems raised. It concluded however that those problems did not preclude protection of the designation 'Spreewälder Gurken'.

40. In that regard, it must be stated that Article 17 of Regulation No 2081-92 may not be interpreted as meaning that its application is conditional on the application for registration being uncontroversial at national level. The requirement of such a condition, which would have considerably restricted the application of the simplified procedure, is not supported at all by the wording of that article and no more follows from the system established by Regulation No 2081-92.

41. Moreover, the interpretation which is to be given to Article 17 of Regulation No 2081-92 certainly does not mean that interested third parties who consider their legitimate interests infringed by the registration cannot obtain a hearing in accordance with the principles relating to judicial protection, as results from the system of Regulation No 2081-92 and is described in paragraphs 57 and 58 below.

42. Consequently, the simplified procedure under Article 17 of Regulation No 2081-92 can be applied even if third parties have raised, at national level, objections to the registration of the designation in question.

The other grounds of opposition to the validity of the registration of the designation 'Spreewälder Gurken' as a PGI

43. The national court is of the view that the registration procedure provided for by Article 17 of Regulation No 2081-92 was not applicable to the designation 'Spreewälder Gurken' because that designation was neither legally protected nor established by usage as a geographical indication within the meaning of that article. It was not legally protected because there was no system of formal legal protection for geographical indications in Germany. It was not established by usage so as to warrant registration pursuant to Article 17 because the designation had been known to consumers for centuries as referring to products cultivated in the Spreewald proper, not products coming from a wider economic region.

44. Further, the national court is of the view that registration of the designation 'Spreewälder Gurken' as a PGI may have infringed Articles 2 and 4 of Regulation No 2081-92 since the nature of the product and the expectations of consumers mean that it should have been registered as a PDO. In its view, the designation 'Spreewälder Gurken' told consumers that all the gherkins came from the Spreewald proper and were, consequently, of a particular quality. The designation was not regarded as referring to their processing or the recipe therefor.

45. Finally, the national court considers that, since the specifications relating to the geographical area do not reflect consumer expectations of a product carrying the designation 'Spreewälder Gurken', the registration of the latter as a PGI gives approval to the misleading of consumers.

46. Jütro submits that the Commission must verify, when considering an application for registration of a designation under Article 17 of Regulation No 2081-92, that the conditions laid down in Article 2 of that regulation are met. In the present case, the Commission made no attempt to verify whether the suggested designation fulfilled those conditions, but contented itself with adopting the view of the German Government and thus registered an application which did not satisfy those conditions.

47. The German and Austrian Governments and the Commission, while asserting that, on the facts, the registration of the designation 'Spreewälder Gurken' was made in accordance with the conditions laid down by Regulation No 2081-92, maintain that it is not for the Commission to verify whether a designation notified by a Member State is established by usage, whether the product in question should, according to its nature, be granted a PDO or a PGI, or whether the geographical area has been correctly defined. Those questions are within the competence of the Member State concerned. Article 17(2) of Regulation No 2081-92 requires the Commission simply to verify that the designations notified under paragraph 1 of that article satisfy the requirements of Articles 2 and 4 of that regulation.

48. The argument of the German and Austrian Governments and the Commission is based on the premiss that there is a division of powers between the Member State which made the application for registration, on the one hand, and the Commission in deciding whether the registration should be made, on the other hand, and that it is exclusively for the Community judicature, within the framework of their review of the lawfulness of the Commission's decision, to check the latter's assessment of the factors whose correctness and lawfulness it had to verify.

49. It must therefore be considered, in the first place, whether, in the context of the registration procedure, there are such limits to the Commission's obligations of verification and consequently to the review jurisdiction of the Community judicature.

50. In this context, it must be stated that there is, in the system established by Regulation No 2081-92, a division of powers between the Member State concerned and the Commission.

51. Whether a registration under the normal procedure or the simplified procedure is concerned, the registration can only take place if the Member State concerned has made an application in that regard and has forwarded a specification and the necessary information for registration, in accordance with Article 4 of Regulation No 2081-92.

52. Under Article 5(5) of Regulation No 2081-92, it is for the Member States to check whether the application for registration under the normal procedure is justified with regard to the conditions laid down by that regulation. That article provides that a Member State to which an application for registration is submitted under the normal procedure must check that the application is justified and, if it considers that the requirements of Regulation No 2081-92 are satisfied, forward it to the Commission. Furthermore, it follows from the very terms of Article 6(1) of Regulation No 2081-92 that, before proceeding with the registration, as provided for by Article 6(2) to (4) and Article 7 of that regulation, the Commission undertakes only a simple formal examination to check whether those requirements are satisfied. There is no ground for applying other principles in the context of the simplified procedure.

53. It follows that the decision to register a designation as a PDO or as a PGI may only be taken by the Commission if the Member State concerned has submitted to it an application for that purpose and that such an application may only be made if the Member State has checked that it is justified. That system of division of powers is attributable particularly to the fact that registration assumes that it has been verified that a certain number of conditions have been met, which requires, to a great extent, detailed knowledge of matters particular to the Member State concerned, matters which the competent authorities of that State are best placed to check.

54. Under that system of division of powers, it is for the Commission, before registering a designation in the category applied for, to verify, in particular, first, that the specification which accompanies the application complies with Article 4 of Regulation No 2081-92, that is to say that it contains the required information and that that information does not appear to contain obvious mistakes, and, secondly, on the basis of the information contained in the specification, that the designation satisfies the requirements of Article 2(2)(a) or (b) of Regulation No 2081-92.

55. In this connection, it should be observed that it follows from the wording and the scheme of Article 7 of Regulation No 2081-92 that a statement of objection to a registration cannot come from the Member State which has applied for the registration and that the objection procedure established by Article 7 of that regulation is not therefore intended to settle disputes between the competent authority of the Member State which has applied for registration of a designation and a natural or legal person resident or established in that Member State (see Case C-447-98 P Molkerei Großbraunshain and Bene Nahrungsmittel v Commission [2000] ECR I-9097, paragraph 74).

56. According to Jütro, in a system of division of powers such as that described in paragraphs 50 to 54 of this judgment, the possibility for interested third parties to challenge the lawfulness of the registration of a designation as a PDO or as a PGI is limited in a way which does not take into account their legitimate interest in judicial review. It thus submits that it is unable to challenge, at national level, the measure which consists of the application for registration.

57. In that regard, it must be noted that the requirement of judicial control stems from the constitutional traditions common to the Member States and is enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Case C-97-91 Oleificio Borelli v Commission [1992] ECR I-6313, paragraph 14, Case C-1-99 Kofisa Italia [2001] ECR I-207, paragraph 46, and Case C-226-99 Siples [2001] ECR I-277, paragraph 17). That requirement must also be complied with with regard to a measure, such as the application for registration at issue in the main proceedings, which constitutes a necessary step in the procedure for adoption of a Community measure, where the Community institutions have only a limited or non-existent discretion with regard to that measure (see, to that effect, Oleificio Borelli v Commission, paragraph 9 et seq.).

58. It is, therefore, for the national courts to rule on the lawfulness of an application for registration of a designation, such as that at issue in this case, on the same terms as those by which they review any definitive measure adopted by the same national authority which is capable of adversely affecting the rights of third parties under Community law, and, consequently, to regard an action brought for that purpose as admissible, even if the domestic rules of procedure do not provide for this in such a case (see, to that effect, Oleificio Borelli v Commission, paragraph 13).

59. In the second place, and having regard to the preceding considerations, each of the matters raised by the national court must be considered in order to decide whether the Commission, in this case, properly fulfilled its task of checking that the conditions laid down by Regulation No 2081-92 were satisfied.

60. So far as the question whether the designation 'Spreewälder Gurken' was established by usage within the meaning of Article 17 of Regulation No 2081-92 is concerned, it must be pointed out that that assessment is based on the checks which must be made by the competent national authorities, subject to review by the national courts if appropriate, before the application for registration is notified to the Commission. Since the assessment made by the competent German authorities does not appear to be tainted by a manifest error, the Commission could properly register the designation 'Spreewälder Gurken' under the simplified procedure.

61. In relation to the registration of the designation 'Spreewälder Gurken' as a PGI, it must be observed that for the purposes of Article 2(2)(b) of Regulation No 2081-92, as opposed to paragraph (a) of that provision, a foodstuff may be treated as originating from the geographical area concerned if it is processed or produced in that area, even if the raw materials are produced in another region.

62. The Commission could therefore properly register the designation 'Spreewälder Gurken' as a PGI since the competent German authorities considered that the product, by its nature, came within that category, even though the specification did not require that all the raw materials came from the defined geographical area.

63. So far as the definition of the geographical area is concerned, it must be held that that decision pertains to the checks which must be carried out by the competent national authorities subject to review by the national courts if appropriate. Since the decision taken by the competent national authorities does not appear to be tainted by a manifest error, the Commission could properly register the designation 'Spreewälder Gurken' for the geographical area defined in the amended specification.

64. In view of all the preceding considerations, the reply to the national court must be that consideration of the question referred has not revealed any matter of such a nature as to affect the validity of Regulation No 590-1999 in so far as it registers the designation 'Spreewälder Gurken'.

Costs

65. The costs incurred by the German and Austrian Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the question referred to it by the Landgericht Hamburg by order of 23 June 1999, hereby rules:

Consideration of the question referred has not revealed any matter of such a nature as to affect the validity of Commission Regulation (EC) No 590-1999 of 18 March 1999 supplementing the Annex to Regulation (EC) No 1107-96 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Regulation (EEC) No 2081-92, in so far as it registers the designation 'Spreewälder Gurken'.