The European Court of Justice has given its ruling today in Case C‑132/05, Commission of the European Communities, supported by the Czech Republic and the Italian Republic v Germany, supported by Denmark and Austria.

In brief, the Commission asked the German authorities to give clear instructions to the government bodies responsible for the combating of fraud to bring to an end the marketing on German territory of products designated as ‘Parmesan’ which did not comply with the specification for the PDO ‘Parmigiano Reggiano’ (since the term ‘Parmesan’, according to the Commission, was a translation of the PDO ‘Parmigiano Reggiano’, its use infringed the PDO). The German Government refused: in its view, while the term ‘Parmesan’ had historical roots in the region of Parma, it had become a generic name for hard cheeses of diverse origins, grated or intended to be grated, distinct from the PDO ‘Parmigiano Reggiano’. Accordingly its use infringed no PDO rights. The Commission disagreed and commenced these proceedings.

The European Court of Justice rejected the argument that a PDO enjoys protection only in the exact form in which it is registered. It accepted that PDOs could become generic (citing the examples of Camembert and Brie), but concluded that Germany had not proved that Parmesan had itself become generic: unauthorised use of the term was thus an infringement. The court nonetheless dismissed the Commission's action. It stated:

"73 ... there is no such obligation [on the Member States to take on their own initiative the measures necessary to penalise infringements] under Article 10 of Regulation No 2081/92.

74 ... in order to ensure the effectiveness of the provisions of Regulation No 2081/92, Article 10(1) ... provides that the Member States shall ensure that inspection structures are in place not later than six months after its entry into force. They are therefore obliged to create such structures.

75 Nevertheless, Article 10(4) ..., by providing that ‘[i]f a designated inspection authority and/or private body in a Member State establishes that an agricultural product or a foodstuff bearing a protected name of origin in that Member State does not meet the criteria of the specification, they shall take the steps necessary to ensure that this Regulation is complied with …’, indicates that the designated inspection authority and/or private body in a Member State is that of the Member State from which the PDO comes.

76 The reference to the ‘producers or processors subject to their control’ in Article 10(3) ..., like the producers’ right of access to the inspection system provided for in Article 10(6) and their obligation under Article 10(7) to bear the costs of the inspections, confirm that Article 10 of Regulation No 2081/92 concerns the obligations of the Member States from which the PDO comes.

77 That interpretation is further reinforced by the provisions of Articles 4(2)(g) in conjunction with Article 5(3) and (4) ..., which require that the application for registration includes the specification, that that application is addressed to the Member State in which the geographical area is located, and that the specification includes ‘details of the inspection structures provided for in Article 10’.

78 It follows that the inspection structures whose task it is to ensure compliance with the PDO specification are those of the Member State from which the PDO in question comes. The responsibility for monitoring compliance with the specification when the PDO ‘Parmigiano Reggiano’ is used therefore does not lie with the German inspection authorities.

79 ... Article 13(1)(b) ... requires that registered names be protected against any ‘misuse, imitation or evocation, even if the true origin of the product is indicated or if the protected name is translated or accompanied by an expression such as “style”, “type”, “method”, “as produced in”, “imitation” or similar’.

80 Nevertheless, the Commission has not demonstrated that the Federal Republic of Germany has failed to comply with the obligations under Regulation No 2081/92, and it has not furnished proof that measures such as those referred to in paragraph 63 above were not taken or were not such as to protect the PDO ‘Parmigiano Reggiano’.

81 ... the Commission has not established that, by formally refusing to proceed against the use on its territory of the name ‘Parmesan’ on the labelling of products which do not comply with the requirements of the specification for the PDO ‘Parmigiano Reggiano’, the Federal Republic of Germany has failed to fulfil its obligations under Article 13(1)(b) ...".