The Advocate General of the European Court ĆAPETA has given an opinion on Case C‑159/20 European Commission v Kingdom of Denmark.
This case concerns the issue of enforcement of geographical indication rights in Denmark related to the Greek Feta cheese.
In the present case, by bringing an action under Article 258 TFEU, the European Commission asks the Court to declare that the Kingdom of Denmark has breached its obligations under Article 13 of Regulation No 1151/2012 by failing to prevent or stop the use of the name ‘Feta’ on the cheese produced in Denmark intended for export to third countries. The Commission also claims that the Kingdom of Denmark has breached its obligations of sincere cooperation arising under Article 4(3) TEU, either alone or in conjunction with Articles 1(1) and 4 of Regulation No 1151/2012.
‘Feta’ is a type of cheese, traditionally produced from sheep’s, or sheep’s and goat’s, milk in parts of Greece. For those who want to learn more about ‘Feta’, I refer to the poetic description offered by Advocate General Ruiz-Jarabo Colomer, as I could not put it in better words myself. (4) Importantly for the case at issue, since 2002, the name ‘Feta’ is registered as a protected designation of origin (‘PDO’) under EU law.
On the basis of Regulation No 1151/2012, registration of the name ‘Feta’ as a PDO means that it can be used only for cheese originating in the specified geographical area in Greece and complying with the product specification in Regulation No 1829/2002.
Article 13(3) of Regulation No 1151/2012 obliges the Member States to take the necessary measures to prevent or stop the unlawful use of registered PDOs on their territory. The Commission, supported by the Hellenic Republic and the Republic of Cyprus, claims that the Kingdom of Denmark has breached that obligation by not preventing or stopping the use of the name ‘Feta’ for cheese produced in Denmark and intended to be exported to third countries.
The Kingdom of Denmark does not deny that it does not prevent or stop the producers on its territory from using the name ‘Feta’ if their products are intended to be exported to third countries. It considers, however, that Regulation No 1151/2012 applies only to products sold in the EU, and does not cover exports to third countries. In its view, therefore, the use of the name ‘Feta’ for cheese produced in Denmark, but destined only for export to the markets of third countries where the name ‘Feta’ is not protected on the basis of an international agreement does not amount to an infringement of Regulation No 1151/2012. Therefore, failure to prevent or stop the use of the name ‘Feta’ for exported cheese does not breach the obligation under Article 13(3) of Regulation No 1151/2012 because such an obligation does not arise under that provision.
In essence, the main dispute between the parties to the present case is about whether the relevant EU law prevents the use of the name ‘Feta’ for products exported to third countries which are not produced in accordance with the product specification of ‘Feta’ as a registered PDO.
To be clear, the dispute is not about the competences of the EU. The Kingdom of Denmark does not claim that the EU lacks competence to legislate with a view to prohibiting the use of the name ‘Feta’ for exported products. It only claims that, under current legislation, the EU legislature did not choose to prohibit such use.
Consequently, the present case requires the Court to interpret the scope of application of Regulation No 1151/2012. The prerequisite for that is an understanding of the underlying reason and purpose of protection of geographical indications, and more precisely of PDOs, as intended by the EU legislature. This case also raises some important questions concerning the principle of sincere cooperation laid down in Article 4(3) TEU in the context of infringement actions brought against the Member States.
The Advocate General’s opinion:
In the light of the foregoing considerations, I propose that the Court should:
1. Declare that, by failing to prevent or stop the use by Danish producers of the registered name ‘Feta’ for cheese intended for export to third countries, the Kingdom of Denmark has failed to fulfil its obligations under Article 13 of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs;
2. Dismiss the action as to the remainder;
3. Order the European Commission and the Kingdom of Denmark each to bear their own costs; and
4. Order the Hellenic Republic and the Republic of Cyprus each to bear their own costs.