CJEU: Commission could disagree with national authorities on GI applications under Regulation 1151/2012 (but not under Regulation 2024/1143)

As this Kat reported here and here, the dispute revolves around GIs for Corsican cold cuts. In 2014, three Protected Designations of Origin (PDOs) were registered for “Jambon sec de Corse”, “Lonzo de Corse”, and “Coppa de Corse”. In 2015, the Consortium of Corsican Butchers (PGIs Consortium) 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”.

French authorities approved the PGI applications in 2018, but producers of the earlier PDOs challenged this decision. The French Supreme Administrative Court rejected their claims. French authorities informed the Commission of this ruling. The Commission, however, denied the registration of the PGIs, finding that the PGIs applied for were an evocation of the earlier PDOs. The Commission based its decision on Article 7(1) of Regulation (EU) 1151/2012, interpreting it to include examination of potential evocation claims.

The PGIs Consortium appealed to the General Court, arguing that the Commission exceeded its competence. The General Court rejected these arguments (T-34/22, only available in French), ruling that the Commission has autonomous authority in examining GI applications.

Last June, AG Campos Sánchez-Bordona advised the CJEU to uphold the General Court’s reasoning [see The IPKat here]. In so doing, the AG noted that, while the case relies on the now repealed Regulation (EU) 1151/2012, the new Regulation (EU) 2024/1143 does not substantially differ in this regard.

By its judgment, the CJEU dismissed the appeal of the PGI Consortium, hence confirming that the Commission was right in denying their registration.

First, with regard to the Commission’s competences to disregard the opinion of French authorities, the Court noted that Regulation (EU) 1151/2012 mandates the Commission to “scrutinise” applications and to be responsible for “decision-making” on registration: both of those terms mean that the Commission’s mandate may not be limited to merely confirming that there are no manifest errors in the applications. Instead, with the view of achieving a uniform GI system, the Commission has the power to ensure a uniform application of the conditions for registration, which allows it to disagree with national authorities (paras. 38-42).

Second, the Commission is required to verify that the name for which registration is sought does not undermine the protection enjoyed by a registered PDO or PGI (para. 58). This includes assessing the risk of evocation, if necessary. The factual assessment remains within the competence of the General Court.

Third, considering that the Commission has discretion when scrutinising applications for registration, it is also entitled to disregard any national ruling on the matter (paras. 68-69).

Fourth, price difference between the PDOs and the products applied for [one being expensive and the other one not] “is not, in itself, decisive for the purpose of eliminating evocation” [why would it be, thinks this Kat, if evocation does not require the consumer to be misled on the true origin of the product].

The CJEU thus dismissed the PGI Consortium’s appeal.

Although the CJEU’s ruling essentially echoes the AG Opinion, one important piece is missing. While the AG believes that the now repealed Regulation 1151/2012 and the new Regulation 2024/1143 do not sufficiently differ in respect of what was at issue here, the CJEU makes no reference whatsoever to the new Regulation. The Court’s guidance as to the Commission’s competences thus only applies to Regulation 1151/2012.

In fact, unlike its predecessor, Regulation (EU) 2024/1143 includes extensive provisions as to how the competences are distributed between the national and the Union stages of registration.

Under its Art. 15, the Commission shall check that the GI application contains the required information and does not contain manifest errors. This wording substantially differs from how the procedure used to be regulated under Art. 50 Regulation 1151/2012, whereby the Commission was to check whether the GI application “met[] the conditions of the respective scheme”. Moreover, the new Art. 15 requires the Commission to “tak[e] into account the outcome of the national examination and opposition procedure carried out by the Member State concerned”.

Under Art. 16, if the national registration is challenged in front of national courts, the Member State shall inform the Commission accordingly. The Commission is then allowed to suspend examination upon a request from a Member State. If the national registration is subsequently invalidated by a national court, that Member State “shall consider appropriate action such as withdrawal or modification of the application for registration at Union stage, as necessary”.

It seems that these provisions were written with the Corsican litigation in mind: GI-intensive Member States (with France being their leader) are well-set on preserving their interests when it comes to local traditional products.