The ECJ is set to release its long-awaited decision on the “Parmesan” designation in coming weeks, putting an end to the five-year battle between the European Commission and the Federal Republic of Germany over the protection enjoyed by the genuine Italian cheese in European Community countries.

The Protected Designation of Origin (PDO) of “Parmigiano Reggiano” has now been registered for over ten years, pursuant to Art. 2 and Title A of the Annex to Commission Regulation (EC) No 1107/96 of 12 June 1996. The proceedings in question (C-132/05) commenced at the beginning of 2003 when, following a complaint filed by several economic operators, the German authorities ignored the European Commission’s request to give clear instructions to the government agencies responsible for prosecuting fraud in order to halt all sales of cheese designated as “Parmesan” in Germany, which did not conform to the mandatory specification for the PDO.

The German government refused to prosecute, contending that the term “Parmesan”, although originating in the region of Parma, had become generic and would be different from the designation “Parmigiano Reggiano”. Therefore, it argued, its use in relation to cheese not conforming to the registered specifications would not constitute a breach of the provisions of Council Regulation (EC) no. 510/2006 (formerly Council Regulation (EEC) no. 2081/92; herein referred to as the “Regulation”) on the protection of geographical indications and designations of origin for agricultural products and foodstuffs.

Given this refusal, the Commission in 2005 brought an action against the Federal Republic of Germany before the ECJ for violation of its obligations under Art. 13 (1)(b) of the Regulation, according to which PDOs are 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”. The European Commission based its action on the assumption that, given that the designation “Parmesan” in relation to cheese not conforming to the relevant PDO specifications constitutes a breach of the above provision, the German government also committed a breach of the obligations deriving from EU membership by omitting and/or refusing to prosecute the same breach by commercial operators.

An opinion issued by Advocate General of the ECJ Jan Mazák in June last year confirmed that the designation “Parmesan” cannot be used in relation to cheese that is not “Parmigiano Reggiano”, as this designation at the very least evokes the PDO “Parmigiano Reggiano”, thus falling within the scope of protection granted by the Regulation to the relevant PDO. Consequently, the use of the designation “Parmesan” in relation to cheeses not complying with the “Parmigiano Reggiano” PDO specification, must be regarded as an act of infringement. Additionally, the Advocate General held the view that Germany failed to show that the designation “Parmesan” had become generic. However, regarding the question of whether Germany failed to fulfil its obligations under Community law by formally refusing to prosecute sales of cheese in Germany bearing an infringing designation, the Advocate General concluded that in his opinion Germany cannot be held guilty, as “Member States have [..] a discretion as to whether to carry out inspections in a given case and then to take measures if they find goods which infringe the PDO” . In the view of the Advocate General, therefore, Germany was not obligated to prosecute ex officio the producers who had infringed the PDO.

In short, according to the Advocate General, the Regulation does not clearly contemplate an obligation by Member States to act ex officio against economic operators who usurp a PDO. If this opinion is followed by the ECJ, the associations or consortia in charge of the defence, safeguard and promotion of PDOs (and GI’s) may not be able to rely upon the assistance of governments to protect their rights; instead, they – like trade mark holders – would have to count upon their own resources to prosecute PDO violations.

In the meantime, producers of a certain hard, granular cheese, both inside the Parma region and outside it, continue to eagerly await the ECJ’s decision.