IP case law Court of Justice

Judgment of 20 May 2003, C-108/01 (Prosciutto di Parma)



JUDGMENT OF THE COURT

20 May 2003(1)

(Protected designations of origin - Regulation (EEC) No 2081/92 - Regulation (EC) No 1107/96 - ‘Prosciutto di Parma’ - Specification - Requirement for ham to be sliced and packaged in the region of production - Articles 29 EC and 30 EC - Justification - Whether requirement may be relied on against third parties - Legal certainty - Publicity)

In Case C-108/01,

REFERENCE to the Court under Article 234 EC by the House of Lords (United Kingdom) for a preliminary ruling in the proceedings pending before that court between

Consorzio del Prosciutto di Parma,

Salumificio S. Rita SpA

and

Asda Stores Ltd,

Hygrade Foods Ltd,

on the interpretation 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 the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1), and of 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 (OJ 1996 L 148, p. 1),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet, R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann (Rapporteur), D.A.O. Edward, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges,

Advocate General: S. Alber,


Registrar: M.-F. Contet, Principal Administrator,

after considering the written observations submitted on behalf of:

-    Consorzio del Prosciutto di Parma and Salumificio S. Rita SpA, by F. Capelli, avvocato, and A. Barone, Solicitor,

-    Asda Stores Ltd and Hygrade Foods Ltd, by N. Green QC and M. Hoskins, Barrister, instructed by Eversheds, Solicitors, and Clarke Willmott and Clarke, Solicitors,

-    the United Kingdom Government, by G. Amodeo, acting as Agent, and C. Lewis, Barrister,

-    the Spanish Government, by M. López-Monís Gallego, acting as Agent,

-    the French Government, by G. de Bergues and L. Bernheim, acting as Agents,

-    the Italian Government, by U. Leanza, acting as Agent, assisted by O. Fiumara, avvocato dello Stato,

-    the Commission of the European Communities, by J.L. Iglesias Buhigues, C. O'Reilly and A.-M. Rouchaud, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Consorzio del Prosciutto di Parma and Salumificio S. Rita SpA, Asda Stores Ltd and Hygrade Foods Ltd, the French Government, the Italian Government and the Commission at the hearing on 19 February 2002,

after hearing the Opinion of the Advocate General at the sitting on 25 April 2002,

gives the following

Judgment

1.     By order of 8 February 2001, received at the Court on 7 March 2001, the House of Lords referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation 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 the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1) (‘Regulation No 2081/92’), and of 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 (OJ 1996 L 148, p. 1).

2.     That question was raised in proceedings between Consorzio del Prosciutto di Parma (‘the Consorzio’), an association of producers of Parma ham, established in Italy, and Salumificio S. Rita SpA (‘Salumificio’), a company also established in Italy, a producer of Parma ham and a member of the Consorzio, of the one part, and Asda Stores Ltd (‘Asda’), a company established in the United Kingdom, an operator of supermarkets, and Hygrade Foods Ltd (‘Hygrade’), also established in the United Kingdom, an importer of Parma ham, of the other part, concerning the marketing in the United Kingdom under the protected designation of origin ‘Prosciutto di Parma’ (‘the PDO “Prosciutto di Parma”’) of Parma ham sliced and packaged in that Member State.

Legal background

National legislation

3.     Article 1 of Legge No 26, tutela della denominazione di origine ‘Prosciutto di Parma’ (Law No 26 on protection of the designation of origin ‘Prosciutto di Parma’) of 13 February 1990 (GURI No 42 of 20 February 1990, p. 3, ‘the Law of 13 February 1990’) reserves the designation ‘Prosciutto di Parma’ (‘Parma ham’) exclusively to ham marked with a distinguishing mark allowing it to be identified at any time, obtained from fresh legs of pigs raised and slaughtered in mainland Italy, produced in accordance with provisions laid down in the law, and aged in the typical production area for a minimum period laid down in the law.

4.     Article 2 of the Law of 13 February 1990 defines the typical production area as the relevant part of the province of Parma. Article 3 sets out the specific characteristics of Parma ham, including its weight, colour, aroma and flavour.

5.     Article 6 of the law provides that:

-    after the mark has been applied, Parma ham may be marketed boned and in pieces of varying shape and weight or sliced and suitably packaged;

-    if it is not possible to keep the mark on the product, the mark is to be indelibly stamped so that it cannot be removed from the packaging, under the supervision of the competent body and in accordance with the method determined by the implementing regulation;

-    in that case, the packaging operations are to be carried out in the typical production area as referred to in Article 2.

6.     Article 11 provides that the competent ministers may make use of the assistance of an association of producers for purposes of supervision and control.

7.     Article 25 of Decreto No 253, regolamento di esecuzione della legge 13 febbraio 1990, No 26 (Decree No 253 implementing Law No 26 of 13 February 1990) of 15 February 1993 (GURI No 173 of 26 July 1993, p. 4, ‘the Decree of 15 February 1993’) prescribes that the slicing and packaging of Parma ham must take place at plants in the typical production area which are approved by the Consorzio.

8.     Article 26 of that decree requires the slicing and packaging of the product to be carried out in the presence of representatives of the Consorzio.

9.     The Decree of 15 February 1993 also contains provisions on packaging and labelling.

10.     Under a decree of 12 April 1994, the Consorzio was given the task of monitoring the application of the provisions concerning the ‘Prosciutto di Parma’ designation of origin.

Community law

11.     Article 29 EC states:

‘Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.’

12.     Under Article 30 EC, Article 29 EC does not preclude prohibitions or restrictions on exports justified inter alia on grounds of the protection of industrial and commercial property.

13.     Article 2 of Regulation No 2081/92 provides:

‘1.    Community protection of designations of origin and of geographical indications of agricultural products and foodstuffs shall be obtained in accordance with this Regulation.

2.    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;

...’

14.     Article 4 of that regulation provides:

‘1.    To be eligible to use a protected designation of origin (PDO) ... an agricultural product or foodstuff must comply with a specification.

2.    The product specification shall include at least:

(a)    the name of the agricultural product or foodstuffs, including the designation of origin ...

(b)    a description of the agricultural product or foodstuff including the raw materials, if appropriate, and principal physical, chemical, microbiological and/or organoleptic characteristics of the product or the foodstuff;

(c)    the definition of the geographical area ...

(d)    evidence that the agricultural product or the foodstuff originates in the geographical area, within the meaning of Article 2(2)(a) ...

(e)    a description of the method of obtaining the agricultural product or foodstuff and, if appropriate, the authentic and unvarying local methods;

(f)    the details bearing out the link with the geographical environment or the geographical origin within the meaning of Article 2(2)(a) ...

(g)    details of the inspection structures provided for in Article 10;

(h)    the specific labelling details relating to the indication PDO ... or the equivalent traditional national indications;

(i)    any requirements laid down by Community and/or national provisions.’

15.     Articles 5 to 7 lay down an ordinary procedure for registration of a PDO. In that procedure, an application is to be made to the Commission through the intermediary of a Member State (Article 5(4) and (5)). The application is to include the specification in accordance with Article 4 (Article 5(3)). The Commission is to verify that the application includes all the particulars provided for in Article 4 (Article 6(1)). If it reaches a positive conclusion, it is to publish in the Official Journal of the European Communities among other things the name of the product, the main points of the application and the references to national provisions governing the preparation, production or manufacture of the product (Article 6(2)). Any Member State or any legitimately concerned natural or legal person may object to the registration, in which case the objection is to be examined in accordance with a specified procedure (Article 7). If there is no objection, the Commission is to register the designation and publish it in the Official Journal of the European Communities (Article 6(3) and (4)).

16.     Article 8 states:

‘The indications PDO ... or equivalent traditional national indications may appear only on agricultural products and foodstuffs that comply with this Regulation.’

17.     Article 10(1) provides:

‘Member States shall ensure that not later than six months after the entry into force of this Regulation inspection structures are in place, the function of which shall be to ensure that agricultural products and foodstuffs bearing a protected name meet the requirements laid down in the specifications ...’

18.     Article 13(1)(a) provides that registered names are to be protected against 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.

19.     Article 17 establishes a simplified registration procedure for names which are already legally protected:

‘1.    Within six months of the entry into force of the Regulation, Member States shall inform the Commission which of their legally protected names ... they wish to register pursuant to this Regulation ...

2.    In accordance with the procedure laid down in Article 15 [assistance of a committee composed of representatives of the Member States and, in certain cases, action by the Council], the Commission shall register the names referred to in paragraph 1 which comply with Articles 2 and 4. Article 7 [on the right to object] shall not apply ...

3.    Member States may maintain national protection of the names communicated in accordance with paragraph 1 until such time as a decision on registration has been taken.’

20.     Regulation No 1107/96, which entered into force on 21 June 1996, registers inter alia the PDO ‘Prosciutto di Parma’ under the heading ‘Meat-based products’.

21.     On 26 October 1996 the Commission published in the Official Journal of the European Communities a notice on the inspection structures notified by the Member States in accordance with Article 10(2) of Regulation No 2081/92 (OJ 1996 C 317, p. 3). The purpose of that publication is to provide information on the inspection bodies for each geographical indication or designation of origin registered under Regulation No 2081/92. For the PDO ‘Prosciutto di Parma’, it refers to the Consorzio and gives its address.

The main proceedings

22.     Asda operates a chain of supermarkets in the United Kingdom. It sells among other things ham bearing the description ‘Parma ham’, purchased pre-sliced from Hygrade, which itself purchases the ham boned but not sliced from an Italian producer who is a member of the Consorzio. The ham is sliced and hermetically sealed by Hygrade in packets each containing five slices.

23.     The packets bear the wording ‘ASDA A taste of Italy PARMA HAM Genuine Italian Parma Ham’.

24.     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’.

25.     On 14 November 1997 the Consorzio brought proceedings by writ in the United Kingdom against Asda and Hygrade seeking various injunctions against them, essentially requiring them to cease their activities, on the ground that they were contrary to the rules applicable to Parma ham.

26.     On 17 November 1997 it issued a notice of motion seeking the injunctions claimed in its writ and statement of claim.

27.     Asda and Hygrade opposed the applications, arguing in particular that Regulation No 2081/92 and/or Regulation No 1107/96 did not confer on the Consorzio the rights it alleged.

28.     The applications were dismissed.

29.     The Consorzio appealed to the Court of Appeal (England and Wales). Salumificio was granted leave to intervene in the proceedings. The appeal was dismissed on 1 December 1998.

30.     The Consorzio and Salumificio thereupon appealed to the House of Lords.

31.     Since the House of Lords considered that the outcome of the case depended on the interpretation of Regulation No 2081/92 and Regulation No 1107/96, it decided to stay the proceedings and refer the following question to the Court 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?’

The question referred for a preliminary ruling

32.     It should be observed, as a preliminary point, that the specification on the basis of which the PDO ‘Prosciutto di Parma’ was registered by Regulation No 1107/96 expressly mentions the requirement of slicing and packaging the product in the region of production for ham marketed in slices, and refers to the Law of 13 February 1990 and the Decree of 15 February 1993 as requirements laid down by national provisions within the meaning of Article 4(2)(i) of Regulation No 2081/92.

33.     It should also be observed that the main proceedings concern slicing and packaging operations carried out at a stage other than that of retail sale and restaurant sale, for which it is common ground that the condition that those operations must be carried out in the region of production does not apply.

34.     Consequently, where reference is made in the present judgment to the condition of slicing and packaging in the region of production, that relates only to slicing and packaging operations carried out at a stage other than that of retail sale and restaurant sale.

35.     In the light of those observations, the question referred for a preliminary ruling consists essentially of four elements.

36.     The first point is whether Regulation No 2081/92 must be interpreted as precluding the use of a PDO from being conditional on operations such as the slicing and packaging of the product taking place in the region of production.

37.     The second point is whether imposing such a condition on the use of the PDO ‘Prosciutto di Parma’ for ham marketed in slices constitutes a measure having equivalent effect to a quantitative restriction on exports within the meaning of Article 29 EC.

38.     The third point is whether, if that is so, the condition in question may be regarded as justified, and hence compatible with Article 29 EC.

39.     The fourth point is whether that condition may be relied on against economic operators when it has not been brought to their notice.

Whether the use of a PDO may be subjected to a condition that operations such as the slicing and packaging of the product be carried out in the region of production

40.     The Consorzio, Salumificio, the Spanish, French and Italian Governments and the Commission consider essentially that Regulation No 2081/92 in principle allows producers to have the use of a PDO made subject to a condition that operations such as the slicing and packaging of the product take place in the region of production.

41.     Asda and Hygrade doubt whether such a condition may be part of the Community legislation in any way. The United Kingdom Government considers that Regulation No 2081/92 does not give producers the right to prohibit the sale under a PDO of a product sliced and packaged outside the region of production.

42.     On this point, it is apparent from both the wording and the structure of Regulation No 2081/92 that the specification constitutes the instrument which determines the extent of the uniform protection given by that regulation within the Community.

43.     Article 4(1) of Regulation No 2081/92 makes eligibility to use a PDO subject to the product's compliance with a specification. Article 8 of that regulation makes the affixing of the indication ‘PDO’ on a product subject to its compliance with the regulation, and hence with the specification. Article 13 then determines the content of the uniform protection conferred on the registered name. Article 10(1) states that the function of the inspection structure put in place in each Member State is to ensure that products bearing a PDO meet the requirements laid down in the specification.

44.     In accordance with Article 4(2) of Regulation No 2081/92, the specification is to include at least the items listed non-exhaustively in that provision.

45.     It thus includes inter alia those mentioned in indents (b), (d), (e), (h) and (i) of that provision, namely:

-    a description of the product, and its principal physical, chemical, microbiological and/or organoleptic characteristics;

-    evidence that the product originates in a defined geographical area;

-    a description of the method of obtaining the product and, if appropriate, the authentic and unvarying local methods;

-    the specific labelling details relating to the indication PDO;

-    any requirements laid down by Community and/or national provisions.

46.     The specification thus contains the detailed definition of the protected product drawn up by the producers concerned, under the control of the Member State which transmits it and then of the Commission which registers the PDO, in the framework of either the ordinary procedure under Articles 5 to 7 or the simplified procedure under Article 17 of Regulation No 2081/92.

47.     That definition determines both the extent of the obligations to be complied with for the purposes of using the PDO and, as a corollary, the extent of the right protected against third parties by the effect of registration of the PDO, which lays down at Community level the rules set out or referred to in the specification.

48.     The wording of Article 4 of Regulation No 2081/92 does not exclude the application of special technical rules to operations leading to different presentations on the market of the same product, so that in each case it can satisfy the criterion of quality to which, according to the third recital in the preamble to that regulation, consumers have in recent years tended to attach greater importance, and guarantee an identifiable geographical origin, for which, according to that recital, there is a growing demand.

49.     In view of those two objectives, special technical rules may therefore be laid down for operations such as slicing and packaging the product.

50.     It must therefore be concluded that Regulation No 2081/92 must be interpreted as not precluding the use of a PDO from being subject to the condition that operations such as the slicing and packaging of the product take place in the region of production, where such a condition is laid down in the specification.

Whether the condition for the PDO ‘Prosciutto di Parma’ that the product must be sliced and packaged in the region of production constitutes a measure having equivalent effect to a quantitative restriction on exports

51.     Asda and Hygrade submit that conditions relating to the packaging of a product are capable of constituting restrictions within the meaning of Articles 28 EC and 29 EC. In particular, the application in the United Kingdom of a rule that Parma ham marketed in slices can use the PDO only if it has been sliced and packaged in the region of production is manifestly capable of directly or indirectly, actually or potentially obstructing intra-Community trade.

52.     The United Kingdom Government considers that the condition at issue in the main proceedings constitutes a quantitative restriction on exports.

53.     It is settled case-law that the prohibition of quantitative restrictions and measures having equivalent effect applies not only to national measures but also to measures adopted by the Community institutions (see, inter alia, Case C-114/96 Kieffer and Thill [1997] ECR I-3629, paragraph 27, and Case C-169/99 Schwarzkopf [2001] ECR I-5901, paragraph 37).

54.     Article 29 EC prohibits all 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 (see, inter alia, with respect to national measures, Case C-209/98 Sydhavnens Sten & Grus [2000] ECR I-3743, paragraph 34).

55.     As noted in paragraph 32 above, the specification of the PDO ‘Prosciutto di Parma’ expressly mentions the requirement of slicing and packaging the product in the region of production for ham marketed in slices, and refers to the Law of 13 February 1990 and the Decree of 15 February 1993 as constituting requirements laid down by national provisions within the meaning of Article 4(2)(i) of Regulation No 2081/92. In registering the PDO ‘Prosciutto di Parma’, Regulation No 1107/96 thus makes slicing and packaging in the region of production a condition for the use of the PDO ‘Prosciutto di Parma’ for ham marketed in slices.

56.     That condition has the consequence that ham produced in the region of production and fulfilling the other conditions required for use of the PDO ‘Prosciutto di Parma’ cannot be sliced outside that region without losing that designation.

57.     By contrast, Parma ham transported within the region of production retains its right to the PDO if it is sliced and packaged there in accordance with the rules referred to in the specification.

58.     Those rules thus have the specific effect of restricting patterns of exports of ham eligible for the PDO ‘Prosciutto di Parma’ and thereby establishing a difference in treatment between the domestic trade of a Member State and its export trade. They therefore introduce quantitative restrictions on exports within the meaning of Article 29 EC (see, to that effect, Case C-388/95 Belgium v Spain [2000] ECR I-3123, paragraphs 38 and 40 to 42).

59.     Accordingly, where the use of the PDO ‘Prosciutto di Parma’ for ham marketed in slices is made subject to the condition that slicing and packaging operations be carried out in the region of production, this constitutes a measure having equivalent effect to a quantitative restriction on exports within the meaning of Article 29 EC.

Whether the condition that the product is sliced and packaged in the region of production is justified

60.     The Consorzio, Salumificio, the Spanish and Italian Governments and the Commission submit that in Belgium v Spain the Court held that a measure having equivalent effect to a quantitative restriction on exports, constituted by the obligation to bottle a wine with a designation of origin in the region of production in order to be able to use the designation of origin, was justified in that its aim was to preserve the reputation of the designation by guaranteeing, in addition to the authenticity of the product, the maintenance of its qualities and characteristics. They consider that the reasoning in that judgment may be applied to the condition that Parma ham be sliced and packaged in the region of production, as that condition is justified for the purpose of guaranteeing the authenticity and quality of the product. The French Government observes that the condition makes it possible to guarantee that the product originates in the geographical area.

61.     Asda, Hygrade and the United Kingdom Government assert that the slicing and packaging operations do not affect the quality of Parma ham or damage its authenticity. On that basis, the United Kingdom Government considers that the approach adopted in Belgium v Spain, which should indeed be followed in the present case, must lead to the contrary conclusion to that reached in that judgment.

62.     It should be noted that, in accordance with Article 30 EC, Article 29 EC does not preclude prohibitions or restrictions on exports which are justified inter alia on grounds of the protection of industrial and commercial property.

63.     Community legislation displays a general tendency to enhance the quality of products within the framework of the common agricultural policy, in order to promote the reputation of those products through inter alia the use of designations of origin which enjoy special protection (see Belgium v Spain, paragraph 53). That tendency took the form in the quality wines sector of the adoption of Council Regulation (EEC) No 823/87 of 16 March 1987 laying down special provisions relating to quality wines produced in specified regions (OJ 1987 L 84, p. 59), repealed and replaced by Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine (OJ 1999 L 179, p. 1). It was also manifested, in relation to other agricultural products, in the adoption of Regulation No 2081/92, which, according to its preamble, is intended inter alia to meet consumers' expectations as regards products of quality and an identifiable geographical origin and to enable producers, in conditions of fair competition, to secure higher incomes in return for a genuine effort to improve quality.

64.     Designations of origin fall within the scope of industrial and commercial property rights. The applicable rules protect those entitled to use them against improper use of those designations by third parties seeking to profit from the reputation which they have acquired. They are intended to guarantee that the product bearing them comes from a specified geographical area and displays certain particular characteristics. They may enjoy a high reputation amongst consumers and constitute for producers who fulfil the conditions for using them an essential means of attracting custom. The reputation of designations of origin depends on their image in the minds of consumers. That image in turn depends essentially on particular characteristics and more generally on the quality of the product. It is on the latter, ultimately, that the product's reputation is based (see Belgium v Spain, paragraphs 54 to 56). For consumers, the link between the reputation of the producers and the quality of the products also depends on his being assured that products sold under the designation of origin are authentic.

65.     The specification of the PDO ‘Prosciutto di Parma’, by requiring the slicing and packaging to be carried out in the region of production, is intended to allow the persons entitled to use the PDO to keep under their control one of the ways in which the product appears on the market. The condition it lays down aims better to safeguard the quality and authenticity of the product, and consequently the reputation of the PDO, for which those who are entitled to use it assume full and collective responsibility.

66.     Against that background, a condition such as at issue must be regarded as compatible with Community law despite its restrictive effects on trade if it is shown that it is necessary and proportionate and capable of upholding the reputation of the PDO ‘Prosciutto di Parma’ (see, to that effect, Belgium v Spain, paragraphs 58 and 59).

67.     Parma ham is consumed mainly in slices and the operations leading to that presentation are all designed to obtain in particular a specific flavour, colour and texture which will be appreciated by consumers.

68.     The slicing and packaging of the ham thus constitute important operations which may harm the quality and hence the reputation of the PDO if they are carried out in conditions that result in a product not possessing the organoleptic qualities expected. Those operations may also compromise the guarantee of the product's authenticity, because they necessarily involve removal of the mark of origin of the whole hams used.

69.     By the rules it lays down and the requirements of the national provisions to which it refers, the specification of the PDO ‘Prosciutto di Parma’ establishes a set of detailed and strict rules regulating the three stages which lead to the placing on the market of prepackaged sliced ham. The first stage consists of boning the ham, making bricks, and refrigerating and freezing them for slicing. The second stage corresponds to the slicing operations. The third stage is the packaging of the sliced ham, under vacuum or protected atmosphere.

70.     Three main rules must be observed during the industrial process.

71.     First, after checking the authenticity of the hams used, a selection must be made from them. Only hams which satisfy additional, more restrictive conditions, relating in particular to weight, length of aging, water content, internal humidity rate and lack of visible faults, may be sliced and packaged. Further selections are made at the various stages of the process, if anomalies in the product which cannot be detected before boning or slicing appear, such as dots resulting from micro-haemorrhages, areas of blankness in the muscle or the presence of excess intra-muscular fat.

72.     Second, all operators in the region of production who intend to slice and package Parma ham must be approved by the inspection structure, which also approves the suppliers of packaging.

73.     Third, representatives of the inspection structure must be present at each of the three stages in the process. They monitor permanently compliance with all the requirements of the specification, including the marking of the product at each stage. When the operations are completed, they certify the number of packages produced.

74.     During the various stages there are technical operations and strict checks relating to authenticity, quality, hygiene and labelling. Some of these require specialist assessments, in particular during the stages of refrigeration and freezing of the bricks.

75.     In this context, it must be accepted that checks performed outside the region of production would provide fewer guarantees of the quality and authenticity of the product than checks carried out in the region of production in accordance with the procedure laid down in the specification (see, to that effect, Belgium v Spain, paragraph 67). First, checks performed in accordance with that procedure are thorough and systematic in nature and are done by experts who have specialised knowledge of the characteristics of Parma ham. Second, it is hardly conceivable that representatives of the persons entitled to use the PDO could effectively introduce such checks in other Member States.

76.     The risk to the quality and authenticity of the product finally offered to consumers is consequently greater where it has been sliced and packaged outside the region of production than when that has been done within the region (see, to that effect, Belgium v Spain, paragraph 74).

77.     That conclusion is not affected by the fact, pointed out in the present case, that the ham may be sliced, at least under certain conditions, by retailers and restaurateurs outside the region of production. That operation must in principle be performed in front of the consumer, or at least the consumer can require that it is, in order to verify in particular that the ham used bears the mark of origin. Above all, slicing and packaging operations carried out upstream of the retail sale or restaurant stage constitute, because of the quantities of products concerned, a much more real risk to the reputation of a PDO, where there is inadequate control of the authenticity and quality of the product, than operations carried out by retailers and restaurateurs.

78.     Consequently, the condition of slicing and packaging in the region of production, whose aim is to preserve the reputation of Parma ham by strengthening control over its particular characteristics and its quality, may be regarded as justified as a measure protecting the PDO which may be used by all the operators concerned and is of decisive importance to them (see, to that effect, Belgium v Spain, paragraph 75).

79.     The resulting restriction may be regarded as necessary for attaining the objective pursued, in that there are no alternative less restrictive measures capable of attaining it.

80.     The PDO ‘Prosciutto di Parma’ would not receive comparable protection from an obligation imposed on operators established outside the region of production to inform consumers, by means of appropriate labelling, that the slicing and packaging has taken place outside that region. Any deterioration in the quality or authenticity of ham sliced and packaged outside the region of production, resulting from materialisation of the risks associated with slicing and packaging, might harm the reputation of all ham marketed under the PDO ‘Prosciutto di Parma’, including that sliced and packaged in the region of production under the control of the group of producers entitled to use the PDO (see, to that effect, Belgium v Spain, paragraphs 76 and 77).

81.     Accordingly, the fact that the use of the PDO ‘Prosciutto di Parma’ for ham marketed in slices is conditional on the slicing and packaging operations being carried out in the region of production may be regarded as justified, and hence compatible with Article 29 EC.

Whether the condition of slicing and packaging in the region of production can be relied on against economic operators

Observations submitted to the Court

82.     The Consorzio and Salumificio consider that the condition of slicing and packaging in the region of production laid down by the specification of the PDO ‘Prosciutto di Parma’ may be relied on before national courts. They submit that an operator may plead his ignorance of that condition, derived from measures and provisions to which he does not have access, only if a penalty is sought to be imposed on him. In agreement with the Italian Government, they consider that an operator cannot, on the other hand, rely on his ignorance of the condition where, as in the main proceedings, what he is asked to do is merely in future to cease selling Parma ham sliced and packaged outside the region of production. They add that, in any event, Asda and Hygrade had no difficulty in the main proceedings in freely and lawfully obtaining and using all the necessary information and documents, in particular an English-language version of the specification, available since 1997.

83.     The French Government submits that, pursuant to Article 249 EC, any individual may rely directly on a Community regulation in civil proceedings before a national court.

84.     The Commission states that the fact that the specification was not published follows from the economy of Regulation No 2081/92 and the specific registration procedure applied. The national court's question touches the very essence of the legislation and calls into question the entire registration procedure laid down by Regulation No 2018/92. The non-publication of the specification results from a deliberate choice on the part of the Community legislature in connection with the simplified procedure. That procedure collects together all the designations already protected by national legislations. The names registered pursuant to that procedure were already well known not only to the public but also, probably, to economic operators, whether they were importers, distributors or retailers. It may also be supposed that those operators marketed the products concerned before registration of the PDO. The intention of the Community legislature was solely to give the names already protected at national level the benefit of Community protection, after verification by the Commission that they complied with the terms and conditions of Articles 2 and 4 of Regulation No 2081/92.

85.     Asda and Hygrade submit that a measure which has not been published in the Official Journal of the European Communities cannot be applied against an individual where, as in the main proceedings, he has no legal right to obtain a copy of the measure, whether in his own or another language. Notwithstanding the principle of the direct effect of regulations under Article 249 EC, a Community measure is capable of creating individual rights only if it is sufficiently clear, precise and unconditional. The scope and effect of a Community provision must be clear and foreseeable to individuals, otherwise the principle of legal certainty and the principle of transparency are breached. The rules laid down must enable the persons concerned to know the precise extent of the obligations imposed on them. Failure to publish a measure prevents the obligations laid down by that measure from being imposed on an individual. Furthermore, an obligation imposed by Community law must be easily accessible in the language of the Member State in which it is to be applied. In the absence of an official translation, a Community measure cannot block the rights of individuals in the context of either civil or criminal proceedings. If the Consorzio were authorised to obtain, before a national court, compliance with an unpublished specification, the principles of legal certainty and transparency would be breached. Consequently, the provisions relating to that specification cannot have direct effect.

86.     The United Kingdom Government observes that Regulation No 1107/96 merely mentions that the name ‘Prosciutto di Parma’ is a PDO. Nothing in that PDO indicates that an operator who has purchased Parma ham cannot slice and package it for sale to the consumer. Nothing in the nature of the operations draws the operator's attention to the fact that the PDO ‘Prosciutto di Parma’ may not be used for slices cut outside the region of production from a ham lawfully bearing the PDO. Any prohibition of using the PDO ‘Prosciutto di Parma’ must be transparent and easily accessible. The principles of transparency and accessibility are complied with only if the restriction may be determined easily on the basis of official publications of the Community.

Findings of the Court

87.     In accordance with the second paragraph of Article 249 EC, a regulation, which is a measure of general application, is binding in its entirety and directly applicable in all Member States.

88.     As such, it creates not only rights but also obligations for individuals, on which they may rely against other individuals before national courts.

89.     Nevertheless, the requirement of legal certainty means that Community rules must enable those concerned to know precisely the extent of the obligations which they impose on them (see Case C-209/96 United Kingdom v Commission [1998] ECR I-5655, paragraph 35).

90.     Regulation No 2081/92 states, in the 12th recital in its preamble, that to enjoy protection in every Member State designations of origin must be registered at Community level, with entry in a register also providing information to those involved in trade and to consumers.

91.     However, where the simplified procedure is adopted, it does not provide for publication of the specification or extracts from the specification.

92.     Regulation No 1107/96 merely provides that the name ‘Prosciutto di Parma’ is to be registered as a PDO under Article 17 of Regulation No 2081/92.

93.     The effect of that registration is to lay down at Community level the conditions set out or referred to in the specification, in particular the condition that slicing and packaging operations be carried out in the region of production. That condition implies for third parties a negative obligation, breach of which may give rise to civil or even criminal penalties.

94.     As all the parties who have expressed a view on this point acknowledged during the procedure, the protection conferred by a PDO does not normally extend to operations such as slicing and packaging the product. Those operations are prohibited to third parties outside the region of production only if a condition to that effect is expressly provided for in the specification.

95.     In those circumstances, the principle of legal certainty required that the condition in question be brought to the knowledge of third parties by adequate publicity in Community legislation, which could have been done by mentioning that condition in Regulation No 1107/96.

96.     As it was not brought to the knowledge of third parties, that condition cannot be relied on against them before a national court, whether for the purposes of criminal penalties or in civil proceedings.

97.     It cannot be argued that publication of the conditions in the specification was not necessary in the context of the simplified procedure under Article 17 of Regulation No 2081/92 since the names registered were already well known to the public and to economic operators and the intention of the Community legislature was solely to extend to Community level a protection which already existed at national level.

98.     Prior to Regulation No 2081/92, designations of origin were protected by national provisions which were published and applied, in principle, only on the territory of the Member State which had adopted them, subject to international conventions extending protection to the territory of other Member States by common agreement of the contracting parties. Subject to that reservation, it cannot be presumed that in consequence of such a situation the conditions relating to those designations of origin were necessarily known to the public and to economic operators throughout the Community, including details of the precise extent of protection defined by specifications and national provisions of a technical nature, drawn up in the national language of the Member State concerned.

99.     It must therefore be concluded that the condition that the product must be sliced and packaged in the region of production cannot be relied on against economic operators, as it was not brought to their attention by adequate publicity in Community legislation.

Costs

100.     The costs incurred by the United Kingdom, Spanish, French and Italian 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,

in answer to the question referred to it by the House of Lords by order of 8 February 2001, hereby rules:

1.    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, as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, must be interpreted as not precluding the use of a protected designation of origin from being subject to the condition that operations such as the slicing and packaging of the product take place in the region of production, where such a condition is laid down in the specification.

2.    Where the use of the protected designation of origin ‘Prosciutto di Parma’ for ham marketed in slices is made subject to the condition that slicing and packaging operations be carried out in the region of production, this constitutes a measure having equivalent effect to a quantitative restriction on exports within the meaning of Article 29 EC, but may be regarded as justified, and hence compatible with that provision.

3.    However, the condition in question cannot be relied on against economic operators, as it was not brought to their attention by adequate publicity in Community legislation.

Rodrígues IglesiasPuissochet Wathelet

SchintgenTimmermans Gulmann

EdwardJann Skouris

MackenColneric

von BahrCunha Rodrigues

Delivered in open court in Luxembourg on 20 May 2003.

R. Grass G.C. Rodríguez Iglesias

RegistrarPresident

1: Language of the case: English.


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