Parties

In Case C‑285/06,

REFERENCE for a preliminary ruling under Article 234 EC from the Bundesverwaltungsgericht (Germany), made by decision of 16 March 2006, received at the Court on 3 July 2006, in the proceedings

Land Rheinland-Pfalz,

intervening party:

Vertreterin des Bundesinteresses beim Bundesverwaltungsgericht,

THE COURT (Fourth Chamber),

composed of K. Lenaerts, President of the Chamber, G. Arestis, R. Silva de Lapuerta (Rapporteur), E. Juhász and T. von Danwitz, Judges,

Advocate General: V. Trstenjak,

Registrar: J. Swedenborg, Administrator,

having regard to the written procedure and further to the hearing on 13 September 2007,

after considering the observations submitted on behalf of:

–Mr Schneider, by H. Böckel and H. Uhlmann, Rechtsanwälte,

–Land Rheinland-Pfalz, by M. Justen and C. Pause, acting as Agents,

–the Greek Government, by S. Charitaki and S. Papaioannou, acting as Agents,

–the Spanish Government, by J. Rodríguez Cárcamo, acting as Agent,

–the Italian Government, by I.M. Braguglia, acting as Agent, assisted by M. Fiorilli, avvocato dello Stato,

–the Commission of the European Communities, by F. Jimeno Fernández and F. Erlbacher, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 October 2007,

gives the following

Grounds

Legal context

Regulation No 1493/1999

‘the description, designation and presentation of products covered by this Regulation can have significant effects on their marketability; this Regulation should therefore lay down rules in this connection which take into account the legitimate interests of consumers and producers and promote the smooth operation of the internal market and the production of quality products; the fundamental principles of these rules should provide for the obligatory use of certain terms so as to identify the product and provide consumers with certain important items of information and the optional use of other information on the basis of Community rules or subject to rules concerning the prevention of fraudulent practices’.

‘1. Rules relating to the description, designation and presentation of certain products covered by this Regulation, and the protection of certain particulars and terms are set out in this Chapter and in Annexes VII and VIII. The rules shall take into account, in particular, the following objectives:

(a) the protection of the legitimate interests of consumers;

(b) the protection of the legitimate interests of producers;

(c) the smooth operation of the internal market;

(d) the promotion of the production of quality products.

(a) making the use of certain terms compulsory;

(b) permitting the use of certain terms, subject to conditions;

(c) permitting the use of other terms, including information which may be useful for consumers;

(d) governing protection and control arrangements for certain terms;

(e) governing the use of geographical indications and traditional terms;

…’

‘The description and presentation of the products referred to in this Regulation, and any form of advertising for such products, must not be incorrect or likely to cause confusion or to mislead the persons to whom they are addressed, particularly as regards:

– the information provided for in Article 47. This shall apply even if the information is used in translation or with a reference to the actual provenance or with additions such as “kind”, “type”, “style”, “imitation”, “brand” or the like;

…’

‘1. The labelling of the products obtained in the Community may be supplemented by the following particulars, under conditions to be determined:

…

(b) in the case of table wines with geographical indication and quality wines psr [produced in specified regions]:

…

– other traditional terms in accordance with the provisions laid down by the Member State of production,

…

…

Regulation No 753/2002

‘This Regulation should comply with the objectives of protecting the legitimate interests of consumers and producers, ensuring the smooth operation of the internal market and promoting the production of quality products as laid down in Article 47(1) of Regulation … No 1493/1999. …

…

The use and regulation of certain terms (other than designations of origin) to describe quality wine sector products is a long-established practice in the Community. Such traditional expressions can evoke in the minds of consumers a production or ageing method or a quality, colour or type of wine or a particular event linked to the history of the wine. So as to ensure fair competition and avoid misleading consumers, a common framework should be laid down for registering and protecting such traditional expressions.’

‘1. For the purposes of Annex VII(B)(3) to Regulation … No 1493/1999, the labelling of the products covered by that Annex may be supplemented by other particulars provided that there is no risk that such particulars might mislead those to whom they are addressed, particularly by creating confusion with the compulsory particulars referred to in paragraph A(1) or the optional particulars referred to in paragraph B(1) of that Annex.

…’

‘For the purposes of the fifth indent of point B(1)(b) of Annex VII to Regulation … 1493/1999, “other traditional terms” means additional terms traditionally used in producer Member States to designate, in the case of wines referred to in this Title, the production or ageing method or the quality, colour, type of place, or a particular event linked to the history of the wine concerned and defined in a Member State’s legislation for the purposes of designating the wines concerned originating in its territory.’

10. Article 24 of Regulation 753/2002, entitled ‘Protection of traditional terms’, states:

‘1. For the purposes of this Article, “traditional terms” means the additional traditional terms referred to in Article 23, the terms referred to in Article 28 and the traditional specific terms referred to in Article 14(1), first subparagraph, point (c), Article 29 and Article 38(3).

(a) all misuse, imitation or evocation, even if the protected term is accompanied by an expression such as “kind”, “type”, “style”, “imitation”, “brand” or similar;

(b) any other unwarranted, false or misleading indication as to the nature or essential qualities of the wine on the inner or outer packaging, advertising material or any documents relating to it;

(c) any other practice liable to mislead the public, in particular to give the impression that the wine qualifies for the protected traditional term.

…’

The protection of a traditional term shall apply only for the language(s) in which it appears in Annex III.

Each traditional term listed in Annex III shall be linked to one or more categories of wine. These categories are:

(a) quality liqueur wines psr and liqueur wines with a geographical indication; in this case the protection of a traditional term shall apply only to the designation of liqueur wines;

(b) quality sparkling wines psr (including quality sparkling wines psr of the aromatic type); in this case the protection of a traditional term shall apply only to the designation of sparkling wines and aerated sparkling wines;

(c) quality semi-sparkling wines psr and semi-sparkling wines with a geographical indication; in this case the protection of a traditional term shall apply only to the designation of semi-sparkling wines and aerated semi-sparkling wines;

(d) quality wines psr not covered by (a), (b) or (c) above and table wines with a geographical indication; in this case the protection of a traditional term shall apply only to the designation of wines other than liqueur wines, sparkling wines, aerated sparkling wines, semi-sparkling wines and aerated semi-sparkling wines;

(e) grape must in fermentation intended for direct human consumption with a geographical indication; in this case the protection of a traditional term shall apply only to the designation of grape must in fermentation;

(f) wine of overripe grapes with a geographical indication; in this case the protection of a traditional term shall apply only to the designation of wine of overripe grapes.

(a) be specific in itself and precisely defined in the Member State’s legislation;

(b) be sufficiently distinctive and/or enjoy an established reputation on the Community market;

(c) have been traditionally used for at least 10 years in the Member State in question;

(d) be used for one or more Community wines or categories of Community wine.

…

(a) the facts justifying recognition of each term;

(b) the traditional terms included in their legislation that meet the above requirements and the wines for which they are reserved;

(c) any traditional terms that cease to be protected in the country of origin.

…’

11. Annex III to Regulation No 753/2002 contains the list of traditional terms referred to in Article 24 of that regulation. That annex includes, in particular:

– for Greece, in Greek, the additional traditional terms: ‘Ειδικά Επιλεγμένος (Grand reserve)’, ‘Επιλογή ή Επιλεγμένος (Reserve)’ and ‘Παλαιωθείς επιλεγμένος (Old reserve)’,

– for Spain, in Spanish, the additional traditional terms ‘Gran Reserva’ and ‘Reserva’,

– for Italy, in Italian, the additional traditional term ‘Riserva’,

– for Austria, in German, the additional traditional term ‘Reserve’, and

– for Portugal, in Portuguese, the additional traditional terms ‘Reserva’, ‘Reserva velha’ (or ‘grande reserva’) and ‘Super Reserva’.

The dispute in the main proceedings and the questions referred

12. Mr Schneider is the owner of a vineyard in Rhineland-Pfalz, registered in the companies register under the name ‘Consulat des Weins’.

15. By decision of 19 May 2003 the Aufsichts- und Dienstleistungsdirektion Trier rejected Mr Schneider’s complaint in which he stated that he was prepared to use the German terms ‘Reserve’ or ‘Privat-Reserve’ as a substitute for the French equivalents. In a letter dated 21 May 2003 the Aufsichts- und Dienstleistungsdirektion stated that the term ‘Privat-Reserve’ could not be accepted either.

16. By judgment of 29 January 2004 the Verwaltungsgericht (Administrative Court) Neustadt an der Weinstraβe dismissed the appeal brought by Mr Schneider against those decisions.

17. By judgment of 21 September 2004 the Oberverwaltungsgericht (Higher Administrative Court) Rheinland-Pfalz dismissed the appeal brought by Mr Schneider against that judgment.

18. Mr Schneider therefore lodged an appeal on a point of law (‘Revision’) before the referring court.

1.‘1. Is Article 47(2)(b) and (c) of Regulation … No 1493/1999 in conjunction with the fifth indent of point (B)(1)(b) and point (B)(3) of Annex VII to that regulation and Article 23 of Regulation … No 753/2002 to be interpreted as meaning that a particular which refers to the production or ageing method or the quality of the wine is permitted only as a regulated ‘optional particular’ in accordance with the fifth indent of point (B)(1)(b) of Annex VII to Regulation … No 1493/1999 under the conditions provided for therein and in Article 23 of Regulation … No 753/2002, and not as an ‘other particular’ in accordance with point (B)(3) of Annex VII to Regulation … No 1493/1999?

2.Is Article 24(2)(a) of Regulation … No 753/2002 to be interpreted as meaning that imitation or evocation exists only if it is in the same language as that of the protected traditional term?

3.Is Article 24(2) of Regulation … No 753/2002 to be interpreted as meaning that the traditional terms listed in Annex III are protected only with regard to wines from the same producer Member State as the protected traditional term?’

The questions referred

The first question

21. Article 47(2)(a) to (c) of Regulation No 1493/1999 provides that rules relating to the description, designation and presentation of certain products covered by that regulation, and the protection of certain particulars and terms are to include, in particular, provisions making the use of certain terms compulsory (compulsory particulars) and provisions permitting the use of certain terms, subject to conditions, and the use of other terms, including information which may be useful for consumers (optional particulars).

22. In that regard, the fifth indent of point (B)(1)(b) of Annex VII to that regulation states that, in the case of table wines with geographical indication and quality wines produced in specified regions, the labelling of the products obtained in the Community may be supplemented by other traditional terms under conditions to be determined and in accordance with the provisions laid down by the Member State of production.

23. For the purposes of the application of that provision, Article 23 of Regulation No 753/2002 provides a definition of ‘other traditional terms’.

24. It is apparent from the reference for a preliminary ruling that, in the view of the national court, the terms at issue in the main proceedings do not constitute other traditional terms within the meaning of Article 23 of Regulation No 753/2002 and the fifth indent of point (B)(1)(b) of Annex VII to Regulation No 1493/1999, since those terms have not been defined in the German legislation.

25. The question to be examined is therefore whether use of the terms at issue in the main proceedings may be permitted under point (B)(3) of Annex VII to Regulation No 1493/1999.

26. Under that provision, the labelling of certain wines may be supplemented by other particulars.

27. As is apparent from Article 6(2) of Regulation No 753/2002, such particulars may relate to the nature, identity, quality, composition, origin or source of the product concerned or the products used to make it.

29. It follows that, although it is not excluded that the use of a particular relating to the production or ageing method or the quality of a wine may be permitted under point (B)(3) of Annex VII to Regulation No 1493/1999, that cannot be the case if there is a risk that it will mislead the persons to whom it is addressed by creating confusion between that particular and the other traditional terms referred to in the fifth indent of point (B)(1)(b) of Annex VII and Article 23 of Regulation No 753/2002.

30. A contrary interpretation would amount to depriving the protection granted to traditional terms by Article 24 of Regulation No 753/2002 of all effectiveness.

31. It is for the national court to assess whether the terms in issue in the main proceedings are likely to give rise to such a risk.

Consequently, the answer to the first question must be that Article 47(2)(c) of Regulation No 1493/1999, in conjunction with point (B)(3) of Annex VII thereto and Article 6(1) of Regulation No 753/2002, is to be interpreted as meaning that the use of a particular relating to the production or ageing method or the quality of a wine may be permitted under those provisions only if there is no risk that it will mislead the persons to whom it is addressed by creating confusion between that particular and the other traditional terms referred to in the fifth indent of point (B)(1)(b) of Annex VII to Regulation No 1493/1999 and Article 23 of Regulation No 753/2002. It is for the national court to assess whether the terms in issue in the main proceedings are likely to give rise to such a risk.

The second question

33. By its second question the national court asks, in essence, whether imitation or evocation of a traditional term within the meaning of Article 24(2)(a) of Regulation No 753/2002 exists only if the language used is the same as the language in which that term is given in Annex III to that regulation or whether that may also be the case where the term in question is translated into a language other than that in which the term is given in that annex.

34. Under Article 47(2)(d) of Regulation No 1493/1999, rules relating to the description, designation and presentation of certain products covered by that regulation, and the protection of certain particulars and terms include, in particular, provisions governing protection and control arrangements for certain terms.

35. The first indent of Article 48 of Regulation No 1493/1999 provides that the description and presentation of the products referred to in that regulation, and any form of advertising for such products, must not be incorrect or likely to cause confusion or to mislead the persons to whom they are addressed, particularly as regards the information provided for in Article 47 of that regulation, and states that that provision is to apply even if the information is used in translation or with a reference to the actual provenance or with additions such as ‘kind’, ‘type’, ‘style’, ‘imitation’, ‘brand’ or the like.

36. The traditional terms listed in Article 24(2)(a) of Regulation No 753/2002 form part of such information and enjoy the protection provided for in that provision.

37. Under Article 24(2)(a) of Regulation No 753/2002, the traditional terms listed in Annex III to that regulation are to be reserved for the wines to which they are linked and are to be protected against all misuse, imitation or evocation.

38. It is true that the second subparagraph of Article 24(4) states that the protection of a traditional term is to apply only for the language(s) in which it appears in Annex III.

39. However, it cannot be ruled out that the translation of a traditional term into a language other than the one in which that term is given in Annex III may constitute an imitation or evocation of a traditional term, within the meaning of Article 24(2)(a) of Regulation No 753/2002, which might cause confusion or mislead the persons to whom that translation is addressed.

40. An interpretation to the contrary of Article 24(2)(a) of Regulation No 753/2002 would risk disregarding the objective of protecting the legitimate interests of consumers laid down in Article 47(1) of Regulation No 1493/1999 and would thus be contrary to the requirement set out in recital 4 in the preamble to Regulation No 753/2002.

41. In addition, such an interpretation would run counter to the actual wording of the first indent of Article 48 of Regulation No 1493/1999, which provides expressly that that provision applies even if traditional terms are used in translation.

42. In that case, it must be ensured, in particular, that such a translation is not likely to cause confusion or to mislead the persons to whom it is addressed.

43. It is for the national court to examine whether that is the case in the dispute before it.

Consequently, in answer to the second question, Article 24(2)(a) of Regulation No 753/2002 is to be interpreted as meaning that there may be imitation or evocation of a traditional term within the meaning of that provision where that term is translated into a language other than that in which that term is given in Annex III to that regulation, if that translation is likely to cause confusion or to mislead the persons to whom it is addressed. It is for the national court to examine whether that is the case in the dispute before it.

The third question

45. By its third question, the national court asks, in essence, whether a traditional term listed in Annex III of Regulation No 753/2002 is protected only with regard to wines from the same producer Member State as that traditional term, or whether that term is also protected with regard to wines from other producer Member States.

46. According to recital 50 in the preamble to Regulation No 1493/1999 and Article 47(1)(a) and (c) thereof, rules relating to the description, designation and presentation of certain products covered by that regulation, and the protection of certain particulars and terms, laid down in the context of the common organisation of the market in wine, seek, inter alia, to ensure the protection of the legitimate interests of consumers and to promote the smooth operation of the internal market.

47. In accordance with recital 4 in its preamble, Regulation No 753/2002 should comply with those objectives.

48. In that context, as is apparent from recital 18 in the preamble thereto, that regulation lays down a common framework for registering and protecting certain traditional expressions so as to ensure fair competition and avoid misleading consumers.

50. Article 24(3) states that trade marks used to describe a wine on its labelling may not contain traditional terms listed in Annex III unless the wine qualifies for such a traditional term.

51. The third subparagraph of Article 24(4) provides that each traditional term listed in Annex III is to be linked to one or more categories of wine.

52. Under Article 24(5)(d), to qualify for inclusion in the annex in question, a traditional term must be used for one or more Community wines or categories of Community wine.

54. Those categories, which are listed in the third subparagraph of Article 24(4), are, as is apparent from the actual wording of Article 24(5)(d), categories of Community wine.

55. On that basis, those categories cannot therefore be regarded as relating only to wine from a single producer Member State but must, on the contrary, be regarded as being used for wine from all of the producer Member States.

56. In those circumstances, the protection of a traditional term within the meaning of Article 24 of Regulation No 753/2002 operates both with regard to wines of the same category/categories from the same producer Member State as that traditional term and with regard to wines of the same category/categories from other producer Member States.

57. A contrary interpretation would amount to depriving the protection of traditional terms, guaranteed by Article 24(2), of its effectiveness, and would run counter to the objectives of the protection of the legitimate interests of consumers and the smooth operation of the internal market pursued by Regulations Nos 1493/1999 and 753/2002.

58. Consequently, the answer to the third question must be that Article 24(2) of Regulation No 753/2002 is to be interpreted as meaning that a traditional term listed in Annex III to that regulation is protected both with regard to wines of the same category/categories from the same producer Member State as that traditional term and with regard to wines of the same category/categories from other producer Member States.

Costs

59. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules: