(Reference for a preliminary ruling– Article99 of the Rules of Procedure of the Court of Justice– Quality schemes for agricultural products and foodstuffs– Regulation (EU) No1151/2012

29Pursuant to Article99 of the Court’s Rules of Procedure, where the answer to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, give its decision by reasoned order.

30That provision must be applied in the present case.

31As a preliminary point, it should be noted that, although the wording of the question referred refers only to Article9 of Regulation No1151/2012, it is apparent from the order for reference that the referring court is uncertain as to the extent of the scope of the system for the protection of designations of origin and geographical indications, as provided for by that regulation.

32Accordingly, it must be held that, by its question, the referring court asks, in essence, whether Regulation No1151/2012 must be interpreted as precluding legislation of a Member State providing for a national system for the registration and protection of geographical designations relating to agricultural products and foodstuffs falling within the scope of that regulation, which is intended to apply only to disputes relating to infringements of the rights arising from those designations between traders in that Member State which produce, in that Member State, the products in respect of which those designations were registered pursuant to that legislation.

33In that regard, it should be noted at the outset that, as is apparent from recitals13 and 14 of Regulation No1151/2012, that regulation merges into a single legal framework, in particular, the new or updated provisions of Regulation No510/2006 and the provisions of the latter regulation which are maintained, and replaces it. The case-law of the Court relating to the provisions of Regulation No510/2006 which were, in essence, reproduced in Regulation No1151/2012 is therefore still relevant to the interpretation of the equivalent provisions in the latter regulation. Similarly, since Regulation No510/2006 itself repealed and replaced Council Regulation (EEC) No2081/92 of 14July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 1992 L208, p.1), the Court’s case-law on the provisions of that regulation which were, in essence, reproduced in Regulation No510/2006, and then in Regulation No1151/2012, is also relevant to that interpretation.

34As regards the question referred, it should be noted, in the first place, that, as is apparent from the first sentence of recital20, recital24, and Article4 of Regulation No1151/2012, the purpose of that regulation is, inter alia, to ensure uniform protection, within the European Union, of designations of origin and geographical indications to which it relates; to that end, it sets out an obligation to register such designations of origin and geographical indications at EU level so that they may enjoy protection in any Member State (see, by analogy, judgment of 8September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs107 and 108).

35Regulation No1151/2012, adopted inter alia on the basis of Article43(2) TFEU, therefore constitutes an instrument of the common agricultural policy essentially intended to assure consumers that agricultural products bearing a geographical indication registered under that regulation have, on account of their provenance from a particular geographical area, certain specific characteristics and, accordingly, offer a guarantee of quality due to their geographical provenance, with the aim of enabling persons working in the agricultural sector to secure higher incomes in return for a genuine effort to improve quality and of preventing improper use of those designations by third parties seeking to profit from the reputation which those products have acquired by their quality (see, by analogy, judgment of 8September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs109 to 111 and the case-law cited), as reflected in recital18 and articles1 to 4 of that regulation.

36If the Member States were permitted to allow their producers to use, within their national territories, one of the indications or symbols which are reserved, under Article12 of Regulation No1151/2012, for designations of origin and geographical indications registered under that regulation, on the basis of a national right which might meet less stringent requirements than those laid down in that regulation for the products in question, the risk is that that quality assurance, which constitutes the essential function of designations of origin and geographical indications conferred pursuant to Regulation No510/2006, might be compromised. That also carries the risk, in the internal market, of jeopardising the aim of fair competition between producers of products bearing those indications or symbols and, in particular, would be liable to infringe the rights which ought to be safeguarded for producers who have made a genuine effort to improve quality in order to be able to use designations of origin or geographical indications registered under Regulation No1151/2012 (see, by analogy, judgment of 8September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraph112).

37That risk of damage to the central aim of ensuring the quality of the agricultural products concerned is all the more important since, unlike in the case of trade marks, no EU measure for the harmonisation of any national systems for the protection of designations of origin and geographical indications has been adopted in tandem (see, by analogy, judgment of 8September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs113).

38The conclusion must be drawn that the aim of Regulation No1151/2012 is not to establish, alongside national rules which may continue to exist, an additional system for the protection of designations of origin and geographical indications that are qualified, that is to say designations of origin and geographical indications fulfilling the criteria set out in Article5 of that regulation, but to provide a uniform and exhaustive system for the protection of such designations and indications (see, by analogy, judgment of 8September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraph114).

39The exhaustive nature of the system for the protection of designations of origin and geographical indications laid down by Regulation No1151/2012 is evidenced by the fact that the registration procedure under Regulation No1151/2012 is based on a division of powers between the Member State concerned and the Commission. In accordance with the application and registration procedure laid down in Chapter IV of Title V of Regulation No1151/2012, the decision to register an appellation of origin or a geographical indication may be taken by the Commission only if the Member State concerned has submitted to it an application to that end and such an application may be made only if that Member State has checked that it is warranted. National registration procedures are therefore incorporated in the EU decision-making procedure and constitute an essential part thereof. They do not exist independently of the system of protection established by the European Union (see, by analogy, judgment of 8September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs116 and 117 and the case-law cited).

40In that context, it is important, first, to note that Article9 of Regulation No1151/2012 provides, in essence, that Member States may grant, under their sole responsibility, transitional national protection until a decision is taken on the application for registration under that regulation or until that application is withdrawn. A provision of that kind would be meaningless if the Member States were able in any event to retain their own systems of designations of origin and geographical indications within the meaning of Regulations No1151/2012 and have them coexist with those regulations (see, by analogy, judgment of 8September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs118 and 120).

41Secondly, contrary to what Bulkons claims, in essence, before the Court, the fact that Regulation No1151/2012 does not reproduce the transitional arrangements laid down in Article5(11) of Regulation No510/2006 in favour of the Republic of Bulgaria and Romania following their accession to the European Union in respect of national geographical indications and designations of origin existing on the date of that accession does not in any way mean that Regulation No1151/2012 was based on the exhaustive nature of the system for the protection of designations of origin and geographical indications previously laid down by Regulation No510/2006.

42The transitional arrangements laid down in that provision reproduced, in essence, the transitional arrangements which had previously been laid down for national designations of origin and geographical indications existing in the 10States which acceded to the European Union on 1May 2004. Those arrangements had been considered not as a factor determining the exhaustive nature of the system of protection provided for in Regulation No510/2006, but only as a factor confirming the exhaustive nature thereof (see, to that effect, judgment of 8September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs124 to 128).

43It is the very nature of the system of protection established by Regulation No510/2006, and previously by Regulation No2081/92, resulting from its objective of ensuring uniform protection, within the Community, of the geographical names which it covered and thus to ensure equal competition between producers of products bearing those names, for the benefit of both those producers and consumers, which led the Court to conclude that Regulation No510/2006 provided for a uniform and exhaustive system of protection of such names, precluding the parallel existence of national rules for the protection of geographical indications and designations of origin, within the meaning of the latter regulation (see, to that effect, judgment of 8September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs107 to 114). As has been held in paragraphs34 to 38 of the present order, Regulation No1151/2012 pursues, as regards the protection of designations of origin and geographical indications of agricultural products and foodstuffs for which it provides, the same objective.

44It must also be stated that the transitional provision laid down in Article5(11) of Regulation No510/2006 was not reproduced in Regulation No1151/2012 simply because the period laid down therein had expired and that, consequently, that provision had become devoid of purpose, since the Member States referred to in that provision had, at the end of that period, been fully required to comply with the provisions of Regulation No510/2006, now reproduced in Regulation No1151/2012.

45In that regard, and taking into account the doubts expressed by the referring court and the observations lodged by Bulkons before the Court, it should be noted that, in accordance with the second paragraph of Article288 TFEU, a regulation such as Regulation No1151/2012 is binding in its entirety and directly applicable in all Member States. Further, the principle of the primacy of EU law, which establishes the pre-eminence of EU law over the law of the Member States, requires all Member State bodies to give full effect to the various provisions of EU law, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of the Member States (see, by analogy, judgment of 2April 2020, CRPNPAC and Vueling Airlines, C‑370/17 et C‑37/18, EU:C:2020:260, paragraph74 and the case-law cited).

46In order to ensure the effectiveness of all provisions of EU law, the principle of the primacy of EU law thus requires national courts to interpret, so far as possible, their domestic law in a manner consistent with EU law (judgments of 24June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph57, and of 21October 2021, ZX (Adjustment of the indictment), C‑282/20, EU:C:2021:874, paragraph39).

47It is only where it is unable to interpret national law in compliance with the requirements of EU law, that the national court, which is called upon within the exercise of its jurisdiction to apply provisions of EU law, is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently; it is not necessary for that court to request or await the prior setting aside of such provision by legislative or other constitutional means (see, to that effect, judgments of 24June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph58 and the case-law cited, and of 21October 2021, ZX (Adjustment of the indictment), C‑282/20, EU:C:2021:874, paragraph40).

48Thus, where it is impossible to give a consistent interpretation, any national court, hearing a case within its jurisdiction, must, as an organ of a Member State, disapply any provision of national law which is contrary to a provision of EU law with direct effect in the case pending before it (see, to that effect, judgments of 24June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph61 and the case-law cited, and of 21October 2021, ZX (Adjustment of the indictment), C‑282/20, EU:C:2021:874, paragraph41).

49In the second place, as regards the rules to be applied on the market of a Member State, it should be noted that, although the purpose of Regulation No1151/2012 is to provide for a uniform and exhaustive system of protection for designations of origin and geographical indications for agricultural products and foodstuffs falling within its scope, that exclusivity does not preclude the application of a system of protection of geographical names falling outside its scope (see, by analogy, judgment of 8May 2014, Assica and Kraft Foods Italia, C‑35/13, EU:C:2014:306, paragraph28 and the case-law cited).

50In that regard, it is apparent from recital17 and Article5(1) and (2) of Regulation No1151/2012 that the system of protection provided for in that regulation for designations of origin and geographical indications relates merely, respectively, to designations of origin concerning products for which there is a direct link between, on the one hand, the quality or characteristics thereof, and on the other, their geographical place of origin, as well as to geographical indications concerning products for which there is a direct link between, on the one hand, a specific quality, reputation or other characteristic thereof, and on the other, their geographical origin (see, by analogy, judgments of 7November 2000, Warsteiner Brauerei, C‑312/98, EU:C:2000:599, paragraph43 and the case-law cited, and of 8May 2014, Assica and Kraft Foods Italia, C‑35/13, EU:C:2014:306, paragraph29).

51Accordingly, names of geographical origin serving only to highlight the geographical origin of a product, regardless of the particular characteristics of that product, do not fall within the scope of Regulation No1151/2012 in so far as it relates to designations of origin and geographical indications (see, to that effect, judgment of 8May 2014, Assica and Kraft Foods Italia, C‑35/13, EU:C:2014:306, paragraph30 and the case-law cited).

52Consequently, the system of protection that may be applied, should the case arise, on the market of a Member State to a geographical name which has not obtained a Community registration is that provided for geographical names relating to products for which there is no specific link between their characteristics and their geographical origin (judgment of 8May 2014, Assica and Kraft Foods Italia, C‑35/13, EU:C:2014:306, paragraph31).

53However, in order for such a system to be applicable, it must comply with the requirements of EU law. In that regard, it is necessary that its application does not compromise the objectives of Regulation No1151/2012. In view of the scope of that regulation, this entails that the protection granted by the national scheme concerned need not have the effect of guaranteeing to consumers that the products which enjoy that protection have a specific quality or characteristic, but only of ensuring that those products come from the geographical area concerned. Moreover, it is necessary that that application does not contravene the provisions of the FEU Treaty relating to the free movement of goods (see, to that effect, judgment of 8May 2014, Assica and Kraft Foods Italia, C‑35/13, EU:C:2014:306, paragraphs33 to 35).

54In the present case, it is apparent from the order for reference that, in accordance with Article51(1) of the ZMGO, the term ‘geographical designation’ covers both ‘designations of origin’ and ‘geographical indications’, within the meaning of that law, and that, according to Article51(2) and (3) respectively, each of those types of designation is intended to be used to designate products for which there is a direct link between, on the one hand, their quality, reputation or other characteristics and, on the other hand, their geographical origin. The wording of those two provisions corresponds, moreover, in essence, to that of Article5(1)(a) and (b) and of Article5(2)(a) and (b) of Regulation No1151/2012, respectively.

55In addition, the referring court states that a geographical indication, within the meaning of that law, gives consumers guarantees of a high quality of the designated product, describes the specific qualities thereof and creates an obstacle to the deterioration of that quality resulting from production of the same product by unregistered producers.

56It is therefore apparent that the geographical names at issue in the main proceedings are not simple geographical designations within the meaning of the case-law referred to in paragraph52 of the present order, but qualified geographical designations, within the meaning of the case-law referred to in paragraph38 of the present order, similar to designations of origin and geographical designations whose protection is provided for by Regulation No1151/2012, which it is nevertheless for the referring court to determine.

57It is apparent, moreover, from the order for reference and, in particular, from the wording of the question referred that the scope of the national legislation at issue in the main proceedings covers ‘agricultural products and foodstuffs’ which fall within the scope of Regulation No1151/2012, as stated in recital15 and defined in Article2 thereof, which, moreover, is illustrated by the dispute in the main proceedings, in which it is not disputed that the product at issue falls within that scope.

58In those circumstances, and subject to the checks which it is for the referring court to carry out, such a national system for the registration and protection of geographical designations, relating to agricultural products and foodstuffs falling within the scope of Regulation No1151/2012, may not coexist with the system of protection for designations of origin and geographical indications laid down by that regulation.

59In that regard, the fact that such a national system of registration and protection of qualified geographical designations is intended to be applied only in order to govern the relations between traders in the Member State concerned which produce, in the territory of that Member State, the products for which those designations were registered under domestic legislation, and, consequently, applies only on the national market of that Member State, does not make it possible to conclude that such coexistence is permitted. Such a system, since its effect is not exclusively to guarantee to consumers that the products concerned come from the geographical area concerned, but also to ensure that those products have a specific quality or characteristic, undermines the objectives of Regulation No1151/2012. Consequently, in accordance with the case-law referred to in paragraph53 of the present order, such a system cannot be regarded as complying with the requirements of EU law.

60In the light of all of the foregoing, the answer to the question referred is that Regulation No1151/2012 must be interpreted as precluding legislation of a Member State providing for a national system for the registration and protection of qualified geographical designations relating to agricultural products and foodstuffs falling within the scope of that regulation, which is intended to apply only to disputes relating to infringements of the rights arising from those designations between traders from that Member State which produce, in that Member State, the products for which those designations have been registered under that regulation.