OPINION OF ADVOCATE GENERAL

MISCHO delivered on 5 December 2002 (1)

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

I ─The legislative background

A ─The relevant Community provisions

1. Under Article 28 EC, quantitative restrictions on imports and measures having equivalent effect are prohibited between Member States. Article 30 EC, however, authorises restrictions on imports between Member States which are justified on grounds of, inter alia, the protection of industrial and commercial property, on condition that they do not constitute a means of arbitrary discrimination or a disguised restriction on intra-Community trade.

(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.

3. A protected geographical indication (hereinafter PGI) is recognised at the end of the procedure provided for in Articles 5 to 7 of Regulation No 2081/92, by the adoption of a registration ruling by the Commission.

4. Article 17 of Regulation No 2081/92 provides that, within six months of the entry into force of the regulation, Member States are to 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 the regulation. The Commission registers the names referred to in paragraph 1 which comply with Articles 2 and 4. 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.

B─The relevant national provisions

II ─The pre-litigation procedure

7. The Commission found that a substantial number of French quality designations were reserved to products or foodstuffs originating in specific French regions only and, in those circumstances, sent a letter of formal notice to the French Government on 16 December 1997. The Commission stated that the labels in issue infringed Article 28 EC, inasmuch as their use was reserved to products made in specific geographical areas, excluding products from other Member States which fulfilled the objective criteria under the labels' specifications, and inasmuch as the designations in question, through their wording, rendered illusory any potential access which the products of other Member States might enjoy. In the Commission's view, reserving quality designations, in this way, to products originating in a specific geographical area cannot be justified under Article 30 EC and the protection of industrial property. The Commission pointed out that Regulation No 2081/92 harmonised the rules for the protection of a designation including a geographical description, having regard to the products falling within its scope of application.

8. The French authorities invoked political, social, economic and technical difficulties in their responses to the letter of formal notice, in order to justify the maintenance, during a transitional period, of certain labels for which no classification had been decided.

9. The Commission considered these submissions and, by letter of 28 April 1999, sent a reasoned opinion stating that by maintaining the national legal protection afforded to the designations in issue, the French Republic had failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC) and, in providing on the labelling of quality designations the wording Contrôlé par qualité-France, the French Republic had failed to fulfil its obligations under Article 2(1) of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer. (3) In that letter, the Commission called on the French Republic to adopt the measures necessary to comply with the reasoned opinion within two months of the date of its notification.

10. On 7 July 1999, the Commission received a memorandum from the French authorities in response to the reasoned opinion, announcing their intention to review the approval of the designation Salaisons d'Auvergne by removing the reference to the geographical name, to amend the rules relating to regional labels, and the intention of the president of the body Qualité-France to reformulate the presentation of its logo in order to clarify the body's functions for the consumer.

11. By letter of 5 December 2001, the French authorities transmitted a memorandum to the Commission, along with annexes, in response to the part of the reasoned opinion concerning the addition of the wording relating to the certification body Qualité-France. The French authorities, in this memorandum, informed the Commission that measures had been taken by the certification body so that the name Qualité-France would only be cited as the granter of the certification, followed by its address.

12. Further to that memorandum, the Commission withdrew the ground for complaint relating to the infringement of Article 2(1) of Directive 79/112. On the other hand, the Commission remained of the view that, as concerned the regional labels, the French Republic had not complied with the requests set down in the reasoned opinion. The Commission therefore decided to bring the present action.

III ─The written procedure and the forms of order sought

13. The Commission claims that the Court should:

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

order the French Republic to pay the costs.

14. The French Republic does not contest that its national law was not in compliance with Community law but calls on the Court to take account of the development which has taken place in the relevant law and, consequently, to consider that this has put an end to the infringement of the Treaty.

IV ─The pleas and arguments of the parties

15. In its action, the Commission considers that the conformity, with Community law, of the labels introduced by the French rules must be assessed in the light of Articles 28 EC and 30 EC, interpreted with reference particularly to the provisions of Regulation No 2081/92. In this respect, the Commission cites the Court's judgments of 7 May 1997, (4) 10 November 1992, (5) and 12 October 1978. (6)

16. As concerns the designation Salaisons d'Auvergne, the Commission points out that the French authorities had stated that this label was to be the subject of an application for registration as a PGI under Article 5 of Regulation No 2081/92. The Commission doubts however that such a label can be registered as such in so far as Regulation No 2081/92 provides for the registration only of a specific product or foodstuff, and not of 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 designation Salaisons d'Auvergne, the French authorities cannot validly rely on Article 5(5) of the said regulation, which would afford them the possibility of protecting the designation Salaisons d'Auvergne for a transitional period and at national level, pending a Community decision on its registration. The label must therefore be assessed in the light of Articles 28 EC and 30 EC.

17. As concerns the other different regional labels, the Commission recalls that while Article L.115-23-1 of the Law states that the label ... shall not contain any geographical indication not registered as a protected geographical indication, it nevertheless establishes a transitional period of eight years from the date of publication of the Law, during which products and foodstuffs which qualified, prior to the publication of [that law], for a label ... may continue to bear a [reserved] geographical indication of origin without being entitled to a protected geographical indication. The Commission submits that it is aware of the potential technical difficulties which might be faced by economic operators and the competent regional authorities in connection with the reform of the rules relating to the labels. However, the Commission cannot allow an eight year transitional period, which constitutes an infringement of Articles 28 EC and 30 EC.

18. The Commission is of the view that the French provisions which establish the designation Salaisons d'Auvergne and the regional labels may affect the free movement of goods between Member States, particularly inasmuch as those provisions favour the marketing of goods of national origin to the disadvantage of imported goods. The application of those provisions creates and maintains, in itself, discrimination between those two categories of goods.

19. The designation Salaisons d'Auvergne and the French regional labels are aimed at informing the consumer that the product bearing them comes from a specific region, by providing information to him on the source of agricultural products or foodstuffs. None the less, after the entry into force of Regulation No 2081/92, the purpose of which is precisely to define, exclusively, the conditions under which a designation establishing a link between agricultural products or foodstuffs and a specific geographical origin may be protected, the protection of designations of origin and geographical indications can, henceforth, be carried out only in the circumstances outlined by the regulation.

21. The Commission accordingly concludes that, inasmuch as the designation Salaisons d'Auvergne and the regional labels have not been registered under Regulation No 2081/92 and inasmuch as they do not constitute indications of provenance either, it is not possible to rely on Article 30 EC to attempt to justify the obstacle to intra-Community trade brought about by those labels.

22. In its defence, the French Government concedes that the designation Salaisons d'Auvergne is not compatible with Community law and states that it will be removed by decree.

23. In respect of the Savoie regional label, the French Government points out that the designations tomme de Savoie, emmental de Savoie and pommes et poires de Savoie were registered as PGI 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 Regulation No 2081/92 (7)

and that the designations jambon de Savoie and saucisson sec de Savoie are the subject of two applications, currently under way, for PGI registration. Finally, the designations jésus, rosette, pur jus de pomme de Savoie and plants de vigne de Savoie are to be abolished by a decree in the process of being drafted.

In the case of the Franche-Comté regional label, the French Government submits that no amendment of existing national law is required. Indeed, the designation morbier au lait cru was approved as a designation of origin (appellation d'origine contrôlée) by Decree of 22 December 2000 (8) on the designation of origin Morbier. An application for registration under Article 5 of Regulation No 2081/92 was sent to the Commission on 24 November 2000. The other products covered by the label are all the subject of an application, currently under way, for PGI registration.

Concerning the Corse regional label, the French Government observes that it appears never to have been used and is moreover to be abolished.

The French Government explains, as to the Midi-Pyrénées regional label, that the only products concerned are produits de palmipèdes gras. A decree repealing the provisions on force-fed duck products is currently being drafted.

As for the Normandie regional label, the French Government observes that the specifications of the products concerned were subject to a series of assessments, and have been approved as PGI or as agricultural labels without a geographical indication, so that making national law consistent with Community law does not require the repeal of any text.

As regards the Nord-Pas-de-Calais regional label, the French Government states that, for the products fromage vieux Lille or fromage gris de Lille, bières spéciales du Nord, and langue de Valenciennes à la Lucullus, applications for PGI registration are being assessed. The provisions of national law concerning the other products marketed under this label are in the process of being repealed.

The French Government explains, concerning the Ardennes de France regional label, that the designations jambon sec des Ardennes, noix des Ardennes and boudin blanc de Rethel qualify for a PGI under Commission Regulation (EC) No 2036/2001 of 17 October 2001 supplementing the Annex to Regulation (EC) No 2400/96 on the entry of certain names in the Register of protected designations of origin and protected geographical indications provided for in Regulation (EEC) No 2081/92 (9). As for the products porcs des Ardennes and boudin blanc à l'oignon de la Vallée de la Meuse, two applications for PGI registration are being considered. A decree is being drafted in order to repeal the provisions relating to the other designations, namely saucisson sec, fromage de Rocroi, galette au sucre, gâteau mollet and cidre.

As for the Limousin regional label, the French Government states that the Limousin indication of origin is used only for those products qualifying for a PGI. Consequently, making national law consistent with Community law does not require the repeal of any text.

As regards the Languedoc-Roussillon regional label, the French Government submits that the only products bearing a reference to the Languedoc region are volailles du Languedoc, which are registered as a PGI under Regulation 1107/96. The specifications of other poultry products have been approved without a geographical reference and are the subject of an application for PGI registration under the designation volailles de Cévennes. Use of the term Languedoc-Roussillon is therefore consistent with Community legislation.

Finally, concerning the Lorraine regional label, the French Government points out that the products bearing wording under this label are Mirabelles de Lorraine and Bergamotes de Nancy, which were registered as PGI under Regulation No 1107/96. Use of the term Lorraine is therefore in compliance with Community legislation.

The Commission, in its reply, takes formal note that the French Government concedes that the designation Salaisons d'Auvergne is not compatible with Community law and that the government therefore acknowledges its failure to fulfil its obligations under Article 28 EC. As for the other regional labels, the Commission notes that the French Government, as of the date of its written pleadings, acknowledges that it has continued to fail to fulfil its obligations under Article 28 EC by maintaining the legal protection afforded to those designations.

The French Government, in its rejoinder, states that after adoption of a new domestic legal framework, the relevant labels and designations are as follows: The Decree of 12 August 2002 of the Minister for Agriculture, Food, Fisheries and Rural Affairs and of the Secretary of State for Small and Medium-Sized Enterprises, Trade, Craft Industries, Liberal Professions and Consumer Affairs, amending decrees relating to regional labels (JORF of 11 September 2002, p. 15051), brings about the following amendments:

─ it abolishes the designation Salaisons d'Auvergne;

as for the Savoie regional label, it abolishes the designations jésus, rosette, pur jus de pomme de Savoie and plants de vigne de Savoie;

as regards the Franche-Comté regional label, the indication morbier au lait cru no longer appears on the list of protected labels;

it abolishes the Midi-Pyrénées regional label;

concerning the Nord-Pas-de-Calais regional label, only those products for which an application for PGI registration is underway remain on the list of protected products;

as concerns the Ardennes de France regional label, the provisions on the designations saucisson sec, fromage de Rocroi, galette au sucre, gâteau mollet and cidre are repealed.

The Corse regional label is abolished by another decree, of 12 August 2002 of the Minister for Agriculture, Food, Fisheries and Rural Affairs, which repeals a general regulation concerning agricultural labels. (10)

As for the Lorraine regional label, the products bearing wording under this label have been registered as PGI by Regulation No 1107/96.

Finally, the French Government states that, as concerns the Normandie, Limousin and Languedoc-Roussillon regional labels, bringing national law into line did not require any amendment.

Assessment

It is for the Commission to check whether the provisions of those decrees have made French legislation consistent with Community law.

It is apparent, in any event, that the said decrees were adopted after the expiry of the period laid down by the reasoned opinion.

In that regard, according to settled case-law, cited again by the Court in a recent judgment, (11) 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. (12)

Furthermore, as the Court also pointed out in the judgment Commission v Spain, (13) it is settled case-law that a Member State may not rely on provisions, practices or circumstances in its own legal order to justify failure to implement a directive within the prescribed period. (14)

Since the infringement asserted by the Commission has thus been made out, it must be granted the form of order sought.

Conclusion

In view of the foregoing, I suggest that the Court:

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

─ order the French Republic to pay the costs.

Original language: French.

OJ 1992 L 208, p. 1.

OJ 1979 L 33, p. 1.

Joined Cases C-321/94 to C-324/94 Pistre and Others [1997] ECR I-2343.

Case C-3/91 Exportur [1992] ECR I-5529.

Case 13/78 Eggers [1978] ECR 1935.

OJ 1996 L 148, p. 1.

JORF of 30 December 2000, p. 20944.

OJ 2001 L 275, p. 9.

JORF of 11 September 2002, p. 15051.

Case C-352/01 Commission v Spain [2002] ECR I-10263, paragraph 6.

The Court refers, in particular, to Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26.

Cited above in footnote 11, paragraph 8.

The Court refers, in particular, to Case C-276/98 Commission v Portugal [2001] ECR I-1699, paragraph 20.