Budéjovický Budvar, národní podnik v Rudolf Ammersin GmbH.

• Jurisdiction: European Union
• Celex Number: 62001CJ0216
• ECLI: ECLI:EU:C:2003:618
• Date: 18 November 2003
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-216/01

Case C-216/01


Budějovický Budvar, národní podnik
v
Rudolf Ammersin GmbH


(Reference for a preliminary ruling from the Handelsgericht Wien (Austria))

«(Protection of geographical indications and designations of origin – Bilateral convention between a Member State and a non-member country protecting indications of geographical source from that non-member country – Articles 28 EC and 30 EC – Regulation (EEC) No 2081/92 – Article 307 EC – Succession of States in respect of treaties)»

Opinion of Advocate General Tizzano delivered on 22 May 2003

Judgment of the Court, 18 November 2003

Summary of the Judgment

1..

Agriculture – Uniform laws – Protection of geographical indications and designations of origin for agricultural products and foodstuffs – Matters covered by Regulation No 2081/92 – Provision of a bilateral agreement between a Member State and a non-member country protecting a simple and indirect indication of geographical origin – Not covered

(Council Regulation No 2081/92, Art. 2(2)(b))

2..

Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Provision of a bilateral agreement between a Member State and a non-member country protecting a simple and indirect indication of geographical origin – Justification – Condition – Lack of generic nature

(Arts 28 EC and 30 EC)

3..

Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Provision of a bilateral agreement between a Member State and a non-member country protecting a name without direct or indirect connection to the country of geographical origin – Not permissible

(Art. 28 EC)

4..

International agreements – Agreements concluded by Member States – Agreements predating the EC Treaty – Provision of bilateral agreements concluded between a Member State and a non-member country contrary to the Treaty – Application by the court of the Member State – Whether permissible – Obligation to eliminate any incompatibilities between a prior agreement and the Treaty

(Art. 307, first and second paras, EC)

1.

Regulation No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, as amended by Regulation No 535/97, does not preclude the application of a provision of a bilateral agreement between a Member State and a non-member country under which a simple and indirect indication of geographical origin from that non-member country is accorded protection in the importing Member State, whether or not there is any risk of consumers being misled, and the import of a product lawfully marketed in another Member State may be prevented. see paras 78, 103, operative part 1

2.

Articles 28 EC and 30 EC do not preclude the application of a provision of a bilateral agreement between a Member State and a non-member country, under which a simple and indirect indication of geographical origin from that non-member country is accorded protection in the importing Member State, whether or not there is any risk of consumers being misled, and the import of a product lawfully marketed in another Member State may be prevented, provided that the protected name has not, either at the date of the entry into force of that agreement or subsequently, become generic in the State of origin. see paras 102-103, operative part 1

3.

Article 28 EC precludes the application of a provision of a bilateral agreement between a Member State and a non-member country under which a name which in that country does not directly or indirectly refer to the geographical source of the product that it designates is accorded protection in the importing Member State, whether or not there is any risk of consumers being misled, and the import of a product lawfully marketed in another Member State may be prevented. see para. 111, operative part 2

4.

The first paragraph of Article 307 EC is to be interpreted as permitting a court of a Member State, subject to the findings to be made by that court having regard inter alia as to whether the Member State and the non-member country showed that they intended to apply the principle of the continuity of treaties to the bilateral instruments at issue, to apply the provisions of bilateral agreements concluded between that State and a non-member country and according protection to a name from the non-member country, even where those provisions prove to be contrary to the Treaty rules, on the ground that they concern an obligation resulting from agreements concluded before the date of the accession of the Member State concerned to the European Union. Pending the success of one of the methods referred to in the second paragraph of Article 307 EC in eliminating any incompatibilities between an agreement predating that accession and the Treaty, the first paragraph of that article permits that State to continue to apply such an agreement in so far as it contains obligations which remain binding on that State under international law. see paras 164, 173, operative part 3

JUDGMENT OF THE COURT
18 November 2003 (1)

((Protection of geographical indications and designations of origin – Bilateral convention between a Member State and a non-member country protecting indications of geographical source from that non-member country – Articles 28 EC and 30 EC – Regulation (EEC) No 2081/92 – Article 307 EC – Succession of States in respect of treaties))

In Case C-216/01,

REFERENCE to the Court under Article 234 EC by the Handelsgericht Wien (Austria) for a preliminary ruling in the proceedings pending before that court between Budějovický Budvar, národní podnik

and

Rudolf Ammersin GmbH, on the interpretation of Articles 28 EC, 30 EC and 307 EC, and 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 Council Regulation (EC) No 535/97 of 17 March 1997 (OJ 1997 L 83, p. 3),

THE COURT,,

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans (Rapporteur), C. Gulmann and J.N. Cunha Rodrigues (Presidents of Chambers), D.A.O. Edward, A. La Pergola, J.-P. Puissochet, R. Schintgen, N. Colneric and S. von Bahr, Judges, Advocate General: A. Tizzano,
Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

─

Budějovický Budvar, národní podnik, by S. Kommar, Rechtsanwalt,

─

Rudolf Ammersin GmbH, by C. Hauer, Rechtsanwalt,

─

the Austrian Government, by C. Pesendorfer, acting as Agent,

─

the German Government, by W.-D. Plessing and A. Dittrich, acting as Agents,

─

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

─

the Commission of the European Communities, by A.-M. Rouchaud, acting as Agent, and B. Wägenbaur, Rechtsanwalt,

having regard to the Report for the Hearing,

after hearing the oral observations of Budějovický Budvar, národní podnik, represented by S. Kommar; Rudolf Ammersin GmbH, represented by C. Hauer, D. Ohlgart and B. Goebel, Rechtsanwälte; and the Commission, represented by A.-M. Rouchaud and B. Wägenbaur, at the hearing on 19 November 2002,

after hearing the Opinion of the Advocate General at the sitting on 22 May 2003,

gives the following

Judgment

1

By order of 26 February 2001, received at the Court on 25 May 2001, the Handelsgericht Wien (Commercial Court, Vienna) referred to the Court for a preliminary ruling under Article 234 EC four questions on the interpretation of Articles 28 EC, 30 EC and 307 EC, and 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 Council Regulation (EC) No 535/97 of 17 March 1997 (OJ 1997 L 83, p. 3) ( Regulation No 2081/92).

2

Those questions were raised in proceedings between Budějovický Budvar, národní podnik ( Budvar), a brewery established in the town of České Budějovice (Czech Republic), and Rudolf Ammersin GmbH ( Ammersin), a company established in Vienna (Austria) which runs a drink distribution business, concerning Budvar's application for an injunction prohibiting Ammersin from marketing beer produced by the brewery Anheuser-Busch Inc. ( Anheuser-Busch), established in Saint Louis (United States), under the name American Bud on the ground that, pursuant to various bilateral agreements between the Czech Republic and the Republic of Austria, in that Member State the name Bud is reserved for beer produced in the Czech Republic.

Legal background

International law

3

Article 34(1) of the Vienna Convention on Succession of States in respect of Treaties of 23 August 1978 provides: When a part or parts of the territory of a State separate to form one or more States, whether or not the predecessor State continues to exist:

(a)

any treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed;

(b)

any treaty in force at the date of the succession of States in respect only of that part of the territory of the predecessor State which has become a successor State continues in force in respect of that successor State alone. Community law

4

The first and second paragraphs of Article 307 EC state: The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more...