Denmark lost a dispute regarding Feta cheese produced only for export from the territory of the EU

The European Court has ruled in the case C‑159/20 the European Commission v the Kingdom of Denmark which closed the door to one of the few misunderstandings regarding the scope of geographical indication protection in the EU.

In the case at hand, Greek complained before the Commission that cheese manufacturers from Denmark use the protected geographical indication Feta by labeling their products as ‘Danish Feta’ and ‘Danish Feta cheese’. Denmark refused to prohibit such use on its territory stating that the production was only for export purposes not for sale on the territory of the EU. According to the Kingdom, this type of GI use was not prohibited by the EY Regulations.

The European Commission disagreed and initiated a lawsuit against Denmark. The Advocate General issued its opinion that reasonings are now upheld by the Court.

According to the Court’s decision:

Recital 18 of Regulation No. 11512012 states that the specific objectives of PDO and PGI protection are to ensure fair income for farmers and producers according to the qualities and characteristics of a given product or its production method and to provide clear information about products with specific characteristics related to geographic origin, thereby enabling consumers to make more informed purchasing choices.

In addition, it follows from the Court’s practice that the purpose of the PDO and PGI protection system is mainly to guarantee consumers that agricultural products bearing a registered name have certain specific characteristics due to their origin in a certain geographical area and therefore provide a guarantee of quality due to their geographical origin in order to allow agricultural operators who have made a genuine effort to improve quality to receive higher incomes in return and to prevent third parties from unfairly benefiting from the reputation, related to the quality of those products (judgments of 17 December 2020, Syndicat interprofessional de défense du Fromage Morbier, C‑490/19, EU:C:2020:1043, paragraph 35 and the case-law cited and by the analogy of 9 September 2021, Comité Interprofessionnel du Vin de Champagne, C‑783/19, EU:C:2021:713, paragraph 49).

Since the Kingdom of Denmark points out that it follows from these objectives that Regulation No 1151/2012 is aimed at introducing a system of protection of PDOs and PGIs for products placed on the internal market because the said users are those in the Union, it should be noted that this regulation clearly applies to these users and not to users in third countries. Indeed, that regulation, adopted on the basis of Article 118 TFEU, concerns the functioning of the internal market and, as that Member State points out, is aimed at the integrity of the internal market and consumer information in the Union.

It should also be noted that the objective of informing consumers and the objective of guaranteeing a fair income for producers in accordance with the qualities of their products are interrelated, since informing consumers is aimed in particular, as is clear from the case law, at this to allow agricultural operators who have made real efforts to improve quality to receive higher incomes in return.

However, as follows from recital 18 and from Article 4(a) of Regulation No 1151/2012, the objective of guaranteeing fair income to producers in accordance with the qualities of their products is itself an objective pursued by that regulation. This also applies to the purpose of ensuring the respect of intellectual property rights enshrined in Article 1, letter c) of this Regulation.

It is clear, however, that the use of the PDO ‘Feta’ to designate products produced in the territory of the Union which do not comply with the product specification of that PDO affects the two stated objectives, even if those products are intended for export to third countries.

Finally, as regards compliance with the principle of legal certainty, it should be noted that, undoubtedly, Regulation No. 1151/2012 does not explicitly state that it also applies to products produced in the Union for the purpose of export to third countries. However, in view in particular of the general and unequivocal nature of Articles 13, 36, and 37 of Regulation No 1151/2012, which do not provide for an exception to such products, and the fact that the said objectives are clearly stated in Articles 1 and 4 of that Regulation, Article 13(3) thereof appears clear and unequivocal in so far as it obliges Member States to take appropriate administrative and judicial measures to prevent or suspend the use of a PDO or a PGI to designate products produced on their territory that do not comply of the applicable product specification, including where these products are intended for export to third countries.

Based on the stated considerations, the Court decided:

By failing to prevent or stop the use by Danish milk producers of the Protected Designation of Origin (PDO) ‘Feta’ to designate cheese that does not comply with the product specification of that PDO, the Kingdom of Denmark has failed to fulfill its obligations under Article 13(3) 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.

(unofficial translation)

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