A cheese produced by Mr Bigi in Italy is not covered by the transitional system of derogations under the Regulation on PDOs, which covers only products originating in Member States other than the one applying for registration of the PDO in question.
Mr Bigi, the legal representative of Nuova Castelli SpA, was subject to criminal proceedings before the Tribunale di Parma, following a complaint by the Consorzio del Parmigiano Reggiano, for producing a dried, grated pasteurised cheese in powder form, made from a mixture of several cheeses, which does not comply with the specification for the Protected Designation of Origin (PDO) "Parmigiano Reggiano" (in force since 1996), the sale of which is prohibited in Italy. That cheese, intended exclusively for marketing outside Italy, particularly in France, bears a label on which the word "parmesan" is clearly marked and which states clearly its actual origin.
The system of Community protection for designations of origin, set up by a Council Regulation of 1992, entails that, from the time a PDO is registered, any use of that name for products which do not comply with the specification for that PDO is, generally, prohibited. That system also provides for transitional derogations: Member States may allow the use of certain registered names for products which do not comply: a firm which has legally marketed products under the same name for 5 years before the date of registration may continue to do so for a further five years, provided that the labelling clearly indicates the true origin of the product. This is in order to allow producers who have been using such names for a long time a period of adjustment to prevent adverse effects on them, while protecting consumers and safeguarding fair competition.
The Tribunale di Parma sought a ruling from the Court of Justice as to the scope of the system of derogations covering products which do not comply with specifications.
As well as Italy, Germany, Greece, Austria, France and Portugal submitted observations in this case.
First, in reply to an objection raised by Germany, the Court of Justice points out that it is far from clear that the designation "Parmesan" has become generic.
The Court therefore assesses whether the transitional system may be applied to products which do not comply with the specification for a PDO and which originate in the Member State which obtained the registration of that PDO.
It bases its assessment on the objective of that system of derogations and points out that its implementation depends on the desire of each Member State to maintain within its national territory, for a limited period and subject to certain conditions, the national system prior to Community protection.
The Court points out that this system of derogations only concerns PDOs obtained under a simplified procedure (which presupposes that the products were already protected legally in the State, even before Community protection) and only applies to products originating in States other than that which has applied for registration.
Once a Member State has applied for registration of a name as a PDO, products which do not comply with the specification for that name cannot be legally marketed in that State.
Moreover, they cannot be marketed in other Member States either, as that would prejudice consumer protection and fair competition.
That is because the mere mention of the true origin of a product which does not comply with the specification for a PDO might mislead a consumer in any event. A product marketed in a State other than that which applied for registration of the PDO, by an undertaking from the State where the product with a PDO originates, would appear the same as the product covered by the registration, but would not correspond to the PDO. Such an indication of its origin might also create unfair conditions of competition on a market other than that of the PDO product, benefiting the manufacturer of a product not complying with the specification and disadvantaging other producers.
Consequently, Mr Bigi cannot rely on the transitional system of derogations.
The following notes are added: