Syndicat interprofessionnel de défense du fromage Morbier v Société Fromagère du Livradois SAS.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2020:1043
• Date: 17 December 2020
• Docket Number: C-490/19
• Celex Number: 62019CJ0490
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

17 December 2020 (*)

(Reference for a preliminary ruling – Agriculture – Protection of geographical indications and designations of origin for agricultural products and foodstuffs – Regulation (EC) No 510/2006 – Regulation (EU) No 1151/2012 – Article 13(1)(d) – Practice liable to mislead the consumer as to the true origin of the product – Reproduction of the shape or appearance of a product which has a protected name – Protected designation of origin (PDO) ‘Morbier’)

In Case C‑490/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Cour de cassation (Court of Cassation, France), made by decision of 19 June 2019, received at the Court on 26 June 2019, in the proceedings

Syndicat interprofessionnel de défense du fromage Morbier

v

Société Fromagère du Livradois SAS,

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, K. Lenaerts, President of the Court, acting as a Judge of the Fifth Chamber, M. Ilešič, C. Lycourgos and I. Jarukaitis (Rapporteur), Judges,

Advocate General: G. Pitruzzella,

Registrar: M. Krausenböck, Administrator,

having regard to the written procedure and further to the hearing on 18 June 2020,

after considering the observations submitted on behalf of:

– the Syndicat interprofessionnel de défense du fromage Morbier, by J.-J. Gatineau, avocat,

– the Société Fromagère du Livradois SAS, by E. Piwnica, avocat,

– the French Government, by C. Mosser and A.-L. Desjonquères, acting as Agents,

– the Greek Government, by G. Kanellopoulos, E. Leftheriotou and I.-E. Krompa, acting as Agents,

– the European Commission, by D. Bianchi and I. Naglis, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 17 September 2020,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 13(1) of Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 93, p. 12) and the same article 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 (OJ 2012 L 343, p. 1).

2 The request was submitted in proceedings between the Syndicat interprofessionnel de défense du fromage Morbier (‘the Syndicat’) and the Société Fromagère du Livradois SAS concerning an infringement of the protected designation of origin (PDO) ‘Morbier’ and acts of unfair and ‘parasitic’ competition (free-riding) alleged against the Société Fromagère du Livradois SAS.

Legal context

EU law

3 Recitals 4 and 6 of Regulation No 510/2006, which was repealed by Regulation No 1151/2012, stated:

‘(4) In view of the wide variety of products marketed and the abundance of product information provided, the consumer should, in order to be able to make the best choices, be given clear and succinct information regarding the product origin.

…

(6) Provision should be made for a Community approach to designations of origin and geographical indications. A framework of Community rules on a system of protection permits the development of geographical indications and designations of origin since, by providing a more uniform approach, such a framework ensures fair competition between the producers of products bearing such indications and enhances the credibility of the products in the consumer's eyes.’

4 Article 13(1) of the regulation is worded as follows:

‘Registered names shall be protected against:

(a) any direct or indirect commercial use of a registered name in respect of products not covered by the registration in so far as those products are comparable to the products registered under that name or in so far as using the name exploits the reputation of the protected name;

(b) any misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated or accompanied by an expression such as “style”, “type”, “method”, “as produced in”, “imitation” or similar;

(c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the product concerned, and the packing of the product in a container liable to convey a false impression as to its origin;

(d) any other practice liable to mislead the consumer as to the true origin of the product.

…’

5 Recitals 18 and 29 of Regulation No 1151/2012 state:

‘(18) The specific objectives of protecting designations of origin and geographical indications are securing a fair return for farmers and producers for the qualities and characteristics of a given product, or of its mode of production, and providing clear information on products with specific characteristics linked to geographical origin, thereby enabling consumers to make more informed purchasing choices.

…

(29) Protection should be granted to names included in the register with the aim of ensuring that they are used fairly and in order to prevent practices liable to mislead consumers …’

6 Article 4 of that regulation, entitled ‘Objective’, provides:

‘A scheme for protected designations of origin and protected geographical indications is established in order to help producers of products linked to a geographical area by:

(a) securing fair returns for the qualities of their products;

(b) ensuring uniform protection of the names as an intellectual property right in the territory of the Union;

(c) providing clear information on the value-adding attributes of the product to consumers.’

7 Article 5(1)(a) and (b) of that regulation, which essentially reproduces the wording of Article 2(1)(a) and (b) of Regulation No 510/2006, provides as follows:

‘For the purpose of this Regulation, “designation of origin” is a name which identifies a product:

(a) originating in a specific place, region or, in exceptional cases, a country;

(b) whose quality or characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors …’.

8 The wording of Article 13(1) of the regulation reproduces, in essence, that of Article 13(1) of Regulation No 510/2006. Except that at the end of points (a) and (b) the words ‘including when those products are used as an ingredient’ have been added.

9 Pursuant to Commission Regulation (EC) No 2400/96 of 17 December 1996 on the entry of certain names in the ‘Register of protected designation of origin and protected geographical indications’ provided for in Council Regulation (EEC) No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 1996 L 327, p. 11), as amended by Commission Regulation (EC) No 1241/2002 of 10 July 2002 (OJ 2002 L 181, p. 4), the name ‘Morbier’ was entered in the Register of protected designation of origin and protected geographical indications, annexed to that regulation, as a PDO.

10 The description of the product contained in the specification in Commission Implementing Regulation (EU) No 1128/2013 of 7 November 2013 approving minor amendments to the specification for a name entered in the register of protected designations of origin and protected geographical indications (Morbier (PDO)) (OJ 2013 L 302, p. 7) is as follows:

‘“Morbier” is a cheese made from raw cow’s milk, with an uncooked pressed paste, in the shape of a flat cylinder 30 to 40 centimetres in diameter, 5 to 8 centimetres high, weighing 5 to 8 kg, with flat sides and a slightly convex heel.

Throughout each slice the cheese has a continuous, joined, horizontal, central black mark.

Its rind is natural, rubbed, of regular appearance, smeared, and bears the imprint of the frame of the mould. Its colour is beige to orange with shades of orangey brown, orangey red and orangey pink. Its paste is homogeneous and ivory to pale yellow in colour, with frequently a number of scattered openings the size of a redcurrant or small flattened bubbles. It is soft to the touch, smooth and melting and not very sticky in the mouth and its texture is smooth and fine. The taste is clear with hints of milk, caramel, vanilla and fruit. With ageing, the aromatic range becomes enriched by roasted, spicy and vegetable nuances. The flavours are balanced. The cheese has a minimum fat content of 45...