Slovakia fends off Hungary to keep its Tokaj wine designation

After a long, hard day's blogging, what could
be more pleasant than a glass of wine with a friend ...?

With all the excitement of the day, another IP case from the European Court of Justice (CJEU) came close to slipping through the net. Billed in the English version of the Curia website as an exciting ruling on "Agriculture and fisheries", it would have been ignored altogether were it not for a well-aimed email from scholar, Katfriend and fellow blogger Martin Husovec, who told him what it was really about.

Thursday 13/02/2014 09:30	Judgment C-31/13 P	Agriculture and fisheries Hungary v Commission Court of Justice - Third Chamber	HU	Courtroom I - Level 8
	The text is not available in English Advocate General : Cruz Villalón

The matter in question, Case C‑31/13 P, turns out to be an appeal by Hungary against a decision of the European Commission, joined by the defendant in the first instance proceedings, this being the Slovak Republic.

"The lists of quality wines psr [= produced in a specified region] published by the Commission in 2006 and 2007 in accordance with Article 54(5) of Regulation 1493/1999 on the common organisation of the market in wine included the protected designation of origin ‘Vinohradnícka oblasť Tokaj’ to describe wine from the viticultural region of Tokaj in Slovakia. This designation was registered on the basis of information provided by the Slovak authorities since it was a protected designation of origin (PDO) under Slovakian law. However, the final list of quality wines psr published in 2009 -- before the introduction of the European Union's E-Bacchus database -- referred to the PDO ‘Tokajská/Tokajské/Tokajský vinohradnícka oblast’. On 1 August 2009 the PDO ‘Tokajská/Tokajské/Tokajský vinohradnícka oblast’ was duly listed in the E-Bacchus database.

In some regions of Central Europe, protection
of wine names is always taken seriously 

In November 2009, the Slovak authorities wrote to ask the Commission to replace ‘Tokajská/Tokajské/Tokajský vinohradnícka oblasť’ with the PDOs ‘Vinohradnícka oblasť Tokaj’ or just ‘Tokaj’, explaining that those names were the ones which actually appeared in their national provisions in force on 1 August 2009. No, said the Commission: only the term ‘Vinohradnícka oblasť Tokaj’ appeared in the Slovak. Said the Commission, the term ‘Tokaj’ appeared in the national provisions, not on its own but as part of compound terms consisting of a number of words, such as ‘Vinohradnícka oblasť Tokaj’, ‘Akostné víno pochádzajúce z vinohradníckej oblasti Tokaj’ or ‘Tokajské víno’. However, in 26 February 2010 the Commission relented, taking note of further submissions from Slovakia.

In March 2010 it became apparent that, by making Slovakia happy, the Commission had stirred up the passion of the Hungarian authorities: the latter claimed that the correct designation of origin is ‘Tokajská vinohradnícka oblast’’ and not ‘Vinohradnícka oblasť Tokaj’, pointing to later Slovak legislation on wines which came into force on 1 September 2009, in which the term ‘Tokajská vinohradnícka oblast’’ appeared. Not to be outdone, in April 2010 the Slovak Parliament adopted a new law to recognise the PDO ‘Tokaj’. this new law entered into force on 1 June 2010.

Hungary brought an action before the General Court for annulment of Slovakia's PDO registration with the Commission; the Slovak Republic was granted leave to intervene in support of the Commission. Before the General Court, the Commission raised a plea of inadmissibility, claiming that the entry at issue did not constitute an ‘actionable measure’ for the purposes of Article 263 TFEU: since the protection of the protected designation of origin ‘Vinohradnícka oblast’ Tokaj’ was based on Slovak national legislation, the entry at issue was devoid of legal effects. The General Court agreed and relied on, among other things, the automatic nature of the protection in the EU of wine names already protected under Regulation No 1493/1999:

‘It follows from the automatic nature of the protection of wine names already protected under Regulation No 1493/1999, as laid down in Article 118s(1) of Regulation No 1234/2007 [establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products]… that, as regards those wine names, an entry in the E-Bacchus database is not necessary for them to benefit from protection at EU level. The wine names in question are “automatically” protected under Regulation No 1234/2007 … without that protection being dependent on their entry in the database. That entry is only a consequence of the automatic transition of the pre-existing protection from one regulatory regime to another and not a condition of that protection. Therefore, since the protected designation of origin “Vinohradnícka oblasť Tokaj” is one of the wine names already protected under Regulation No 1493/1999, its inclusion in the E-Bacchus database was not necessary for its protected designation of origin to benefit from protection at EU level.’

The General Court also found that

* ‘the Community protection of wine names established by [that regulation] was based on wine names such as they were determined by laws of the Member States in compliance with the relevant provisions of that regulation. That protection did not result from an autonomous Community procedure or even from a mechanism under which the geographical indications recognised by Member States were incorporated in a binding Community measure ...’

* this conclusion was not called into question either by the erroneous publication of the protected designation of origin ‘Tokajská/Tokajské/Tokajský vinohradnícka oblast’ in the list of quality wines psr published in the Official Journal of the European Union on 31 July 2009, or by the adoption of Slovakia's latest law.

* an erroneous publication in the ‘C’ Series of the Official Journal of the European Union ‘does not invalidate the protection granted to PDOs which benefit from protection under Slovak law, including the designation “Vinohradnícka oblasť Tokaj”’.

* regardless of the principle of sound administration obliged the Commission to verify the accuracy, timeliness, authenticity and adequacy of the information provided by the Member States, that obligation could not in any event bring about a distinct change in the situation of the interested third parties.

Today the CJEU dismissed Hungary's appeal, ordering Hungary to pay costs (except for Slovakia's own costs).  Says the IPKat, this was to be expected.  The Commission has a pretty good track record when it comes to litigation before the European Union's courts on any matter pertaining to intellectual property and, in this instance, while its errors were scarcely to be commended, there is still a gap to bridge between the propositions "The Commission made a mistake" and "The Commission's actions are of no legal effect".

The Tokaj wine-growing zone spreads across North-East Hungary and Sout-East Slovakia and, according to Wikipedia, here, it contains around 600 wineries.