AG Campos Sánchez-Bordona opines that the Commission may disagree with national authorities on GI applications (C‑579/23 P)

In a rare annulment action on geographical indications (GI), the Court of Justice of the European Union (CJEU) is set to decide on the scope of European Commission’s competences when examining GI applications (case C-579/23 P). Advocate General (AG) Campos Sánchez-Bordona has recently delivered his Opinion in the case. 

Background

The dispute [covered by The IPKat here after the ruling in T-34/22] starts in 2014 with the registration of three protected designations of origin (PDOs) for cold cuts from the French island of Corsica: “Jambon sec de Corse”, “Lonzo de Corse” and “Coppa de Corse”. “De Corse” stands for “from Corsica” in French.

In 2015, the Consortium of Corsican Butchers (PGIs Consortium), whose products did not meet the requirements of the three PDOs, applied for several Protected Geographical Indications (PGIs), including “Jambon sec de l’Île de Beauté”, “Coppa de l’Île de Beauté”, and “Lonzo de l’Île de Beauté”. “l’Île de Beauté”, the Island of Beauty, is a paraphrase used in France to refer to Corsica. In 2018, the French authorities approved the three PGI applications (national stage of registration) and transferred them to the European Commission (Union stage of registration).

Producers of the earlier PDOs challenged this decision of the French authorities in front of the French Supreme Administrative Court (Conseil d’Etat), alleging that the three PGI applications are an evocation of the three PDOs. The Conseil d’Etat rejected their pleas.

Yet, the European Commission decided to deny the registration of the three PGIs, despite having received an opinion from the French government alleging that there was no conflict between the two groups of names. The Commission found that the later names are an evocation of the earlier PDOs. In so doing, the Commission relied on Art. 7(1) “Product specifications” Regulation (EU) 1151/2012. Art. 7(1) mandates each GI to comply with a product specification (a registration file that defines a GI’s name, area and methods of production). In the view of the Commission, the examination of whether an application complies with Art. 7(1) also includes the examination of whether the chosen name is evoking other earlier GIs, as per Art. 13(1)(b).

The PGIs Consortium appealed this decision to the General Court, alleging that the Commission exceeded its competences (1) by conducting its own analysis and disregarding that of the French authorities and that of the Conseil d’Etat, and (2) by incorporating evocation into its examination of PGI specifications.

The General Court (T-34/22, only available in French) rejected the PGIs Consortium’s arguments. The Court ruled that the Commission is not bound by the earlier assessment of national authorities when examining GI applications: Arts. 50(1) and 52(1) of Regulation No 1151/2012 grant the Commission an autonomous margin of appreciation of the applications and also allow it to incorporate Art. 13(1) into the examination.

The PGIs Consortium appealed to the CJEU (C‑579/23 P). AG Campos Sánchez-Bordona delivered its Opinion earlier this summer, essentially advising the CJEU to uphold the reasoning of the General Court.

AG Opinion in C-579/23 P

Commission’s competences when examining GI applications

Relying on the CJEU’s ruling in C‑785/18 on amendments to GI specifications, the AG first reminded that the national stage of proceedings is substantive in its own right, produces legal effects for applicants and third parties, and can be challenged in front of the national courts.

At the same time, the Union stage of registration, conducted by the Commission, is also substantive in its own right. If one were to conclude otherwise, “[t]he procedure for the registration of PGIs established by Regulation No 1151/2012 would cease to be a true composite procedure [as] its European stage [would be] weakened by drastically reducing the powers of the Commission” (para. 64). Thus, the Commission’s competence under Regulation No 1151/2012 goes beyond a mere formal examination and, once the examination is completed, the Commission may disagree with national authorities and reject the application.

Commission’s competences to independently analyse evocation when examining GI applications

In the view of AG, the examination of product specifications pursuant Art. 7(1) also incorporates an analysis of whether the name applied for infringes earlier GIs under Art. 13(1)(b). Allowing the registration of a name that evokes an earlier GI would render the protection of such earlier GI ineffective (para. 75).

The AG also opined that, unlike what was alleged by the PGIs Consortium, the Commission may disagree with the national authorities as to whether evocation occurs in a GI application (para. 76). Moreover, evocation being a question of fact, the AG argued that the General Court’s assessment cannot be reviewed on appeal. In the alternative, the AG suggested that the CJEU confirms the existence of evocation and, thus, the Commission’s decision to deny the three PGI applications.

Thoughts

While the case is based on the now repealed Regulation (EU) 1151/2012, AG Campos Sánchez-Bordona suggested that the provisions of the new Regulation (EU) 2024/1143 in this area do not substantially differ. The CJEU’s ruling will thus impact the set-up of the new GI system.

In the run-up to Regulation (EU) 2024/1143, the Commission’s suggestion to delegate examination to the European Union Intellectual Property Office (EUIPO) was successfully opposed by associations of GI producers and certain members of the European Parliament. One of the counter-arguments to the critics back then was that the Commission’s (or the EUIPO’s) role in examination is rather formalistic. With the forthcoming ruling in C‑579/23 P, the Commission (for wines, spirits and agricultural products) and the EUIPO (for non-agri products) may see their competences expanded.