European Commission not bound by earlier assessment of national authorities when examining GI applications

Earlier this month, the General Court ruled that the European Commission is not bound by the earlier assessment of national authorities when examining applications for geographical indications (T-34/22, so far only available in French). The dispute behind this ruling related to two groups of charcuterie products originating from France.

National stage of the registration

In 2014, “Jambon sec de Corse”, “Lonzo de Corse” and “Coppa de Corse” were registered as protected designations of origin (PDOs). Jambon sec, lonzo and coppa are varieties of cold cuts that are traditional in the French island of Corsica (but also in other areas of France and in Italy, respectively). “De Corse” stands for “from Corsica” in French.

In 2015, the Consortium of Corsican Butchers applied to register seven protected geographical indications (PGIs). Among others, the list included “Jambon sec de l’Île de Beauté”, “Coppa de l’Île de Beauté”, and “Lonzo de l’Île de Beauté”. The Island of Beauty, “l’Île de Beauté”, is a popular French nickname for Corsica. In 2018, the French authorities pre-approved the seven applications and transferred them to the European Commission for their registration as PGIs.

Unhappy with the outcome of the national registration stage, producers of the three earlier PDOs challenged the pre-approval decision of the French authorities before the Conseil d'État (the French Supreme Administrative Court). The three earlier PDOs claimed that “Île de Beauté” is an evocation of “Corse”. Therefore, there is a confusion between the three designations applied for as PGIs and the three earlier PDOs.

In late 2019 – early 2020, the Conseil d'État rejected these challenges. In the opinion of the Conseil d'État, there is no risk of confusion [in the words of the court] as “Jambon sec de l’Île de Beauté” and the two other designations would not trigger the image of the three earlier PDOs in the mind of the consumer. This is because PDOs and PGIs are two different rights that accord two different types of protection [this Kat notes: there are numerous studies showing a low consumer awareness of what PDOs and PGIs are, let alone the difference between them. Moreover, the scope of protection for PDOs and PGIs is exactly the same].

EU stage of registration

In the meantime, the European Commission examined the PGI applications that it had received from France. The Commission had several exchanges with the French authorities as to whether France considered these PGI applications eligible for protection in light of the earlier PDOs. According to the French authorities, the two groups of products were clearly different, and the designations seemed sufficiently distinct too.

Eventually, the Commission rejected the three PGI applications on the ground that those designations were used in breach of Article 13 of Regulation No 1151/2012 (mainly, the norm prohibiting evocation). Thus, they did not comply with the eligibility requirements for registration under Article 7(1)(a) “Product specification” of said regulation.

Article 7(1) mandates each geographical indication to comply with a product specification that, under Article 7(1)(a), includes a name to be protected as a PDO or a PGI. Building on its obligation to examine the application’s compliance with Art. 7(1), the Commission opined that it would also examine whether the chosen name infringed the protection against evocation referred to in Article 13(1)(b).

The Commission did register the remaining four PGIs from the same applicants, as they were not in conflict with the earlier PDOs.

General Court’s ruling

The Consortium of Corsican Butchers appealed this decision to the General Court. The Consortium relied on two main arguments.

First, the Commission allegedly exceeded its competences by conducting its own analysis in replacement of the one from the French authorities. According to the Consortium, the Commission’s competences are limited to ensuring the absence of manifest error and the completeness of the PGI file. Moreover, the Consortium contested the Commission’s decision to incorporate evocation into the analysis of product specifications.

The General Court rejected this line of reasoning. According to the Court, Articles 50(1) and 52(1) of Regulation No 1151/2012 grant the Commission an autonomous margin of appreciation of the applications it receives from national authorities. In its analysis, the Commission is not bound by the assessment of the said authorities or of national courts. Moreover, Article 52(1) does permit the Commission to apply Article 13(1)(b) as part of the registration procedure. Allowing the registration of a PGI when it is evocative of a registered PDO would deprive Article 13(1)(b) of its effectiveness: once a PGI is registered, the earlier PDO will no longer be entitled to rely on Article 13(1)(b) to claim protection against evocation.

Second, the Consortium also claimed that the Commission should have taken account of the fact that the French authorities and the Conseil d’État clearly confirmed that the PGI applications were eligible and met the requirements, while the assessment made by the Commission was incorrect. By this, the Consortium essentially contested the Commission’s conclusion that its applications were evocative of the three earlier PDOs. Instead, the Consortium suggested relying on the conclusions of national authorities and national courts (who denied the existence of evocation), as they would be better placed to evaluate evocation among the French-speaking public.

Here, too, the General Court sided with the Commission. The Court started by recalling that the Commission has an autonomous margin of appreciation regarding its decision to register a denomination as a PDO or PGI.

The Court then restated the interpretative guidelines as to the concept of “evocation” from the earlier jurisprudence of the Court of Justice. In essence, evocation requires that – between the contested name and a geographical indication – there is a sufficiently clear and direct link in the mind of an average European consumer, who is reasonably well informed and reasonably observant and circumspect. This can be achieved through visual or aural similarity, or conceptual proximity.

The Court rejected the applicants’ argument that there is no evocation because PDO and PGI products are targeted at different consumers. According to the PGI applicants, their consumers would not be even able to afford products under the PDO label. The Court opined that, even if this was true, it would not be sufficient to counteract the similarities between the earlier PDOs and the PGI applications.

The Court then agreed with the Commission that there is a conceptual proximity. This is because “Corse” and “Île de Beauté” are deemed to be synonyms and designate the same geographical area. This demonstrates a risk of evocation between the three earlier PDOs and the three PGI applications.

Thus, the Commission’s decision to deny registration was found to be correct and the Consortium’s appeal was dismissed.