A producer of cheese may not, in the Advocate General's view, exploit its geographical proximity to the place of production of a cheese having a Protected Designation of Origin even if the cheese is intended to be marketed exclusively in another Member State.
Under Community law, where the characteristics of agricultural products and foodstuffs have a particular connection with their geographical origin, it is possible to register geographical indications and designations of origin at Community level. The purpose of such registration is to protect consumers and to ensure fair competition.
"Parmigiano Reggiano" has been registered as a Protected Designation of Origin (PDO) since 1996.
Nuova Castelli SpA of Reggio Emilia, of which Mr Bigi is the person vested with legal representation, has, for some time, produced in Italy a dried, grated, pasteurised cheese in powder form, which is made using a mixture of several types of cheese of various origins, and which is marketed exclusively outside Italy, in particular, in France. That product is sold with a label on which the word "Parmesan" is prominently marked, although it does not contain any "Parmigiano Reggiano" whatsover.
In 1999, on the initiative of the Consorzio del Formaggio Parmigiano Reggiano, a quantity of that cheese was seized at the premises of an exporter in Parma and criminal proceedings were brought for fraudulent trading and selling products with misleading indications.
In his defence, Mr Bigi submitted that Community law precludes the prohibition in Italian law of the production in Italy of a cheese called "Parmesan" where that cheese is exclusively intended to be exported to, and marketed in, Member States other than Italy.
The Parma court submitted questions to the Court of Justice of the European Communities on the interpretation of that Community legislation.
The German, Austrian, Greek and Italian Governments, and the Consorzio del Formaggio Parmigiano Reggiano submitted observations.
The Advocate General's Opinion is not binding on the Court. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the case assigned to them.
The Community regulation protects registered names as well as their various translations.
Contrary to the submissions of the German and Austrian Governments, the Advocate General considers that the noun "Parmesan" is the faithful translation in several languages of the Italian "Parmigiano" taken in isolation. In his view, it expresses the historic, cultural, legal and economic reality attaching to the registered name and to the product covered by that registration (that is, "Parmigiano Reggiano"). Therefore, because of that cheese's renown, the term "Parmigiano" suffices to refer to the product itself, and constitutes the essential component of the PDO "Parmigiano Reggiano".
According to the Advocate General the protection attaching to the PDO, "Parmigiano Reggiano", therefore, extends to its translation, "Parmesan".
The regulation, however, provides a transitional scheme of exemption, which - in certain circumstances - allows producers to use registered names for products which do not have the characteristics of the PDO for a limited period and provided that the true origin of the product is clearly marked on the label. The intention is to grant producers an adjustment period, without causing them loss, whilst protecting consumers and ensuring free competition.
The Advocate General, none the less, takes the view that the Member State that applied for registration of a PDO may prohibit the commercial use of that designation in respect of a product manufactured in its territory, which is not covered by registration, but which is comparable to the registered product, even if the product in question is intended to be marketed exclusively abroad.
In practice, an undertaking such as Castelli, established in Italy, the Member State that applied for registration of "Parmigiano Reggiano", may be prohibited from manufacturing ordinary "Parmesan" in Italy, even if that cheese is intended solely for export.
Long before the adoption of the Community regulation there were specific penalties and even criminal sanctions under Italian law in this type of case. There is, therefore, no reason to grant a special exemption, and to allow an undertaking such as Castelli an adjustment period.
The Advocate General considers that the requirements of consumer protection and ensuring fair competition are met where a producer situated in the State of registration of the PDO is not permitted to exploit its geographical proximity to the place of production of the PDO.