PRESS RELEASE No 36/02
25 April 2002
Opinion of Advocate General Alber in cases C-469/00 and C-108/01
(1) Société Ravil v Société Bellon Import and Société
SPA Biraghi 2) Consorzio del Prosciutto di Parma and Salumificio S. Rita
SpA v Asda Stores Limited and Hygrade Foods Limited
ADVOCATE GENERAL ALBER GIVES HIS VIEW ON THE SCOPE OF THE PROTECTION
CONFERRED BY THE DESIGNATIONS OF ORIGIN PROSCIUTTO DI PARMA AND GRANA PADANO
Regulation No 2081/92 introduced Community rules on the protection of geographical
indications and designations of origin for agricultural products and foodstuffs.
The protection is founded on the particular link between the characteristics
of a product and its geographical origin. A protected designation of origin
may be used only in so far as the product conforms with a specification. The
specification includes, amongst other particulars, a precise description of
the product, details bearing out the link with the geographical environment,
and any requirements laid down by Community and/or national provisions.
Designations of origin which were already protected in the various Member
States before Regulation No 2081/92 entered into force were registrable under
a simplified procedure. Under that method, the designations of origin Prosciutto
di Parma and Grana Padano, which were protected in Italy, were entered
in the register kept by the Commission through the adoption of Regulation No
1107/96. The specifications for those designations of origin refer to the Italian
legislation and provide that the slicing of ham or the grating of cheese and
the packaging must take place in the respective regions of production.
Asda Stores Limited sells packets of ham described as 'Parma ham' in its supermarkets
in England. It obtains those goods from Hygrade Foods Limited which itself acquires
the ham from Cesare Fiorucci SpA, a company resident in Italy. The ham is imported
- boned - into the United Kingdom and sliced and packaged by Hygrade.
In November 1997 the Consorzio del Prosciutto di Parma commenced proceedings
in the English courts, seeking various injunctions. The case subsequently came
before the House of Lords as final court of appeal. The House of Lords stayed
proceedings and submitted a reference to the Court of Justice of the European
Communities.
In July 1990 Ravil, a company resident in France, obtained a "licence"
from the Grana Padano Producers' Association to distribute grated Grana Padano
in France under the designation "fresh grated Grana Padano". Since
then it has imported whole Grana Padano cheeses from Italy and grated and distributed
them in France.
Biraghi, a company resident in Italy, produces cheese there and puts cheese
including Grana Padano on the market. Bellon Import and Biraghi France are both
companies resident in France and are the exclusive importers for France of goods
produced by Biraghi. They brought an action against Ravil before the Tribunal
de commerce (Commercial Court), Marseilles.
The case came before the Cour de Cassation (Court of Cassation) as final court
of appeal. The Cour de Cassation stayed proceedings and likewise submitted a
reference to the Court of Justice.
The two cases are essentially concerned with the question whether the Community
regulations referred to above can protect:
(1) the slicing and packaging of Parma ham in the region of production; and
(2) the grating and packaging of Grana Padano cheese in the region of production.
Advocate General Alber delivered his Opinion today.
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The Advocate General finds first of all that the specifications submitted
by Italy certainly include the requirement for slicing or grating and packaging
to take place in the region of production.
The Advocate General then examines whether the principle of the free movement
of goods is infringed by the regulation adopted in 1996 in so far as it protects
the requirements that Parma ham must be sliced and Grana Padano must be grated
in the region of production.
After establishing that the free movement of goods is restricted, he examines
whether that restriction might be justified on the grounds of protection of
industrial property. Designations of origin are industrial property. The restriction
would be justified if slicing or grating in the region of production were essential
in order to preserve commercially material characteristics acquired by the ham
or cheese during production.
The Advocate General agrees with the argument that special expertise is required
for the slicing or grating. He points out, however, that this know-how can perfectly
well also be applied outside the region of production: people who assist in
the production and processing of a product can gain the appropriate specialised
knowledge in the region of production and specialists can move away from that
region.
Similar considerations also apply, according to the Advocate General, to the
technical equipment of the businesses entrusted with the slicing or grating.
Finally, the Advocate General refers to the fact that, according to the specifications,
it is also permissible to sell hams whole for slicing by retailers in another
Member State; as a rule the retailers have not been trained in the Parma area
and they do not normally slice the ham in front of the customer, who consequently
does not notice in the least the certification mark affixed to the ham (whether
because of the distance or because the mark is no longer there atall, or only
in part, as a large part of the ham has already been sliced up). Similarly,
the cheese may be exported whole and grated by consumers themselves.
The Advocate General thus comes to the conclusion that the slicing or grating
and packaging cannot be regarded as measures which serve to protect commercially
material characteristics of the ham or cheese.
According to the Advocate General, therefore, the Community regulation
adopted in 1996 should be declared invalid in so far as it reserves
the protected designation of origin "Prosciutto di Parma" for ham
sliced and packaged in the Parma area and reserves the protected designation
of origin "Grana Padano" for cheese grated and packaged in its region
of production.
N.B.: The judges of the Court of Justice will now begin their deliberation
in these cases. Judgment will be delivered later.
Unofficial document for media use only; not binding on the Court of Justice. Available in English, French, German and Italian. For the full text of the Opinions, please consult our Internet page For further information please contact Zaïra Penders: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731 |