FOR REASONS OF CONSUMER PROTECTION AND FAIR COMPETITION, IMITATION
PARMESAN MANUFACTURED IN ITALY IS NOT ELIGIBLE FOR PROTECTION UNDER THE TRANSITIONAL
PROCEDURE FOR DESIGNATIONS OF ORIGIN
Mr Bigi, the legal representative of Nuova Castelli SpA, was subject to criminal
proceedings before the Tribunale di Parma, following a complaint by the Consorzio
del Parmigiano Reggiano, for producing a dried, grated pasteurised cheese in
powder form, made from a mixture of several cheeses, which does not comply with
the specification for the Protected Designation of Origin (PDO) Parmigiano
Reggiano (in force since 1996), the sale of which is prohibited in Italy.
That cheese, intended exclusively for marketing outside Italy, particularly
in France, bears a label on which the word parmesan is clearly marked
and which states clearly its actual origin.
The system of Community protection for designations of origin, set up by a
Council Regulation of 1992, entails that, from the time a PDO is registered,
any use of that name for products which do not comply with the specification
for that PDO is, generally, prohibited. That system also provides for transitional
derogations: Member States may allow the use of certain registered names for
products which do not comply: a firm which has legally marketed products under
the same name for 5 years before the date of registration may continue to do
so for a further five years, provided that the labelling clearly indicates the
true origin of the product. This is in order to allow producers who have been
using such names for a long time a period of adjustment to prevent adverse effects
on them, while protecting consumers and safeguarding fair competition.
The Tribunale di Parma sought a ruling from the Court of Justice as to the
scope of the system of derogations covering products which do not comply with
specifications.
As well as Italy, Germany, Greece, Austria, France and Portugal submitted
observations in this case.
First, in reply to an objection raised by Germany, the Court of Justice points
out that it is far from clear that the designation Parmesan
has become generic.
The Court therefore assesses whether the transitional system may be applied
to products which do not comply with the specification for a PDO and which
originate in the Member State which obtained the registration of that PDO.
It bases its assessment on the objective of that system of derogations and
points out that its implementation depends on the desire of each Member State
to maintain within its national territory, for a limited period and subject
to certain conditions, the national system prior to Community protection.
The Court points out that this system of derogations only concerns
PDOs obtained under a simplified procedure (which presupposes that the products
were already protected legally in the State, even before Community protection)
and only applies to products originating in States other than that which
has applied for registration.
Once a Member State has applied for registration of a name as a PDO, products
which do not comply with the specification for that name cannot be legally
marketed in that State.
Moreover, they cannot be marketed in other Member States either, as
that would prejudice consumer protection and fair competition.
That is because the mere mention of the true origin of a product which does
not comply with the specification for a PDO might mislead a consumer in any
event. A product marketed in a State other than that which applied for registration
of the PDO, by an undertaking from the State where the product with a PDO originates,
would appear the same as the product covered by the registration, but would
not correspond to the PDO. Such an indication of its origin might also create
unfair conditions of competition on a market other than that of the PDO product,
benefiting the manufacturer of a product not complying with the specification
and disadvantaging other producers.
Consequently, Mr Bigi cannot rely on the transitional system of derogations.
N.B.:
For products which do not comply with a specification and are manufactured
in a State other than that of the PDO and subject to the conditions of the
system of derogations (which are not at issue in this case):
.
the transitional system of derogations cannot lead to
their being freely sold in the Member State which has applied for registration;
.
they may be sold in other States provided that the State
in question consents and the other conditions set out in the Regulation (as
regards labelling and time-limits) are respected.
Available in Dutch, English, French, German, Greek, Italian Portuguese
and Spanish. For the full text of the judgment, please consult our Internet page For further information please contact Reinier van Winden: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731 |