In his view, the protection arising from a protected designation of origin does not extend to the requirement that slicing or grating and packaging take place in the region of production.
Regulation No 2081/92 introduced Community rules on the protection of geographical indications and designations of origin for agricultural products and foodstuffs. The protection is founded on the particular link between the characteristics of a product and its geographical origin. A protected designation of origin may be used only in so far as the product conforms with a specification. The specification includes, amongst other particulars, a precise description of the product, details bearing out the link with the geographical environment, and any requirements laid down by Community and/or national provisions.
Designations of origin which were already protected in the various Member States before Regulation No 2081/92 entered into force were registrable under a simplified procedure. Under that method, the designations of origin Prosciutto di Parma and Grana Padano, which were protected in Italy, were entered in the register kept by the Commission through the adoption of Regulation No 1107/96. The specifications for those designations of origin refer to the Italian legislation and provide that the slicing of ham or the grating of cheese and the packaging must take place in the respective regions of production.
Asda Stores Limited sells packets of ham described as 'Parma ham' in its supermarkets in England. It obtains those goods from Hygrade Foods Limited which itself acquires the ham from Cesare Fiorucci SpA, a company resident in Italy. The ham is imported - boned - into the United Kingdom and sliced and packaged by Hygrade.
In November 1997 the Consorzio del Prosciutto di Parma commenced proceedings in the English courts, seeking various injunctions. The case subsequently came before the House of Lords as final court of appeal. The House of Lords stayed proceedings and submitted a reference to the Court of Justice of the European Communities.
In July 1990 Ravil, a company resident in France, obtained a "licence" from the Grana Padano Producers' Association to distribute grated Grana Padano in France under the designation "fresh grated Grana Padano". Since then it has imported whole Grana Padano cheeses from Italy and grated and distributed them in France.
Biraghi, a company resident in Italy, produces cheese there and puts cheese including Grana Padano on the market. Bellon Import and Biraghi France are both companies resident in France and are the exclusive importers for France of goods produced by Biraghi. They brought an action against Ravil before the Tribunal de commerce (Commercial Court), Marseilles.
The case came before the Cour de Cassation (Court of Cassation) as final court of appeal. The Cour de Cassation stayed proceedings and likewise submitted a reference to the Court of Justice.
The two cases are essentially concerned with the question whether the Community regulations referred to above can protect:
Advocate General Alber delivered his Opinion today.
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 Advocate General finds first of all that the specifications submitted by Italy certainly include the requirement for slicing or grating and packaging to take place in the region of production.
The Advocate General then examines whether the principle of the free movement of goods is infringed by the regulation adopted in 1996 in so far as it protects the requirements that Parma ham must be sliced and Grana Padano must be grated in the region of production.
After establishing that the free movement of goods is restricted, he examines whether that restriction might be justified on the grounds of protection of industrial property. Designations of origin are industrial property. The restriction would be justified if slicing or grating in the region of production were essential in order to preserve commercially material characteristics acquired by the ham or cheese during production.
The Advocate General agrees with the argument that special expertise is required for the slicing or grating. He points out, however, that this know-how can perfectly well also be applied outside the region of production: people who assist in the production and processing of a product can gain the appropriate specialised knowledge in the region of production and specialists can move away from that region.
Similar considerations also apply, according to the Advocate General, to the technical equipment of the businesses entrusted with the slicing or grating.
Finally, the Advocate General refers to the fact that, according to the specifications, it is also permissible to sell hams whole for slicing by retailers in another Member State; as a rule the retailers have not been trained in the Parma area and they do not normally slice the ham in front of the customer, who consequently does not notice in the least the certification mark affixed to the ham (whether because of the distance or because the mark is no longer there at all, or only in part, as a large part of the ham has already been sliced up). Similarly, the cheese may be exported whole and grated by consumers themselves.
The Advocate General thus comes to the conclusion that the slicing or grating and packaging cannot be regarded as measures which serve to protect commercially material characteristics of the ham or cheese.
According to the Advocate General, therefore, the Community regulation adopted in 1996 should be declared invalid in so far as it reserves the protected designation of origin "Prosciutto di Parma" for ham sliced and packaged in the Parma area and reserves the protected designation of origin "Grana Padano" for cheese grated and packaged in its region of production.
N.B.: The judges of the Court of Justice will now begin their deliberation in these cases. Judgment will be delivered later.