The Court of Justice of the European Union is still to decide on the level of protection to be granted to Modena IGP balsamic vinegar. According to the advocate general, it does not extend to the words ‘vinegar’ and ‘balsamic’, when lacking a legal reference evoking the Emilian capital.
The casus belli
The case began with a warning sent by the Consortium for the Protection of Modena's balsamic vinegar to Balema GmbH, a German company that for a quarter of a century has been manufacturing balsamic vinegar-based products in Baden-Württemberg. The Consortium contested the use of the terms ‘deutscher balsamico’ and ‘balsamico’ on German labels, arguing that this constitutes an unlawful evocation of the Protected Geographical Indication.
Defeated in the first instance judgment, Balema GmbH filed an appeal. And the appellate judge recognized its actual possibility to use the denomination ‘balsamico’ on vinegar-based products produced in Germany. Excluding that this constitutes a violation of the prohibition of usurpation, evocation or imitation of protected designations of origin in the EU. (1)
The Supreme Court of the Federal Republic of Germany, the Bundesgerichtshof – consulted by the Modena protection consortium, has then referred a preliminary legal question to the European Court of Justice (European Court of Justice, ECJ). To obtain an official – legally binding at EU level – interpretation regarding the extent of protection to be granted to the individual words composing the geographical indication under judgment.
The preliminary legal question
Balsamic vinegar of Modena PGI has been registered since 2009 in the European register of PDO and PGI, the so-called Door. In good company with the most precious balsamic vinegar traditional of Modena PDO and the less famous traditional balsamic vinegar of Reggio Emilia PDO, both registered in 2000. (2)
With the preliminary question, the Bundesgerichtshof asks whether the protection granted to the protected geographical indication 'balsamic vinegar of Modena' should also apply to the individual terms 'vinegar' and 'balsamic', as well as to the phrase 'balsamic vinegar'. Or whether they – when free of geographic references – can be considered generic.
The issue is decisive, since accepting the second hypothesis means recognizing the legitimacy of using the individual words, and the term 'balsamic vinegar', to designate products different from those subject to the European protection regime. (3)
The advocate general's conclusions
The advocate general Gerard Hogan – in his conclusions filed on 29.7.19 – displayed biblical and theatrical references, citing Shakespeare and Wagner. (4) Also citing Latin and ancient Greek, as well as modern languages, to argue a thesis not without controversies and differing jurisprudential precedents.
EU Regulation 1151/12 defines as 'generic terms' the 'names of products that, although referring to the place, region or country where the product was originally obtained or marketed, have become the common name of a product in the Union' (art.3.6). The Court of Justice has thus recognized the generic nature of the term 'Edam' (despite the registration of the 'Edam Holland PGI'), but denied it in the apparently similar case of feta.
In the case of feta, the judges in Luxembourg examined data showing that the labels used in various Member States allude to Greek cultural traditions and civilization. Concluding that consumers in such Member States perceive feta as a cheese associated with Greece, even if produced in other Member States. (5)
In the case of ‘Vinegar’ and ‘Balsamic’, the advocate general recognizes that it is ‘possible’ that the European consumer associates these words with the traditional Modenese product. However, he points to a lack of evidence, stating that thorough market analyses would be necessary to understand how these terms are perceived by the average normally informed, reasonably attentive and prudent consumer.
Thus, in the absence of evidence, the advocate general theorizes that the Court must decide exclusively on the basis of Regulation EC 583/09, through which the PGI of Modena was registered. And since this provision is in turn lacking in specifying the extent of protection, ‘the individual non-geographical terms of the compound denomination, even when used together, as well as their translation, may be used within the Community territory in compliance with the principles and rules applicable in the Community legal system’.
If the Court of Justice accepts the advocate general’s thesis, anyone in Europe will be able to produce and/or market imitations of the typical Modenese product, to the detriment of the (increasingly weak) protection regime for PDO and PGI.
Dario Dongo and Marina De Nobili
Notes
(1) Cf. EU Reg. 1151/12, art.13.1.b. To deepen the concept of ‘evocation’, see the previous articles https://www.greatitalianfoodtrade.it/etichette/dop-la-corte-di-giustizia-ue-chiarisce-il-divieto-di-evocazioni, https://www.foodagriculturerequirements.com/archivio-notizie/domande-e-risposte/olio-extravergine-d-oliva-100-siciliano-risponde-l-avvocato-dario-dongo
(2) Cf. EU Reg. 1151/12, art.13.1
(3) See Reg. EC 583/09, concerning the registration of a denomination in the register of protected designations of origin and protected geographical indications [Balsamic Vinegar of Modena (PGI)]
The traditional balsamic vinegars of Modena and Reggio Emilia PDO have instead been registered with Reg. EC 813/00, which completes the annex of Commission Reg. EC No 1107/96 concerning the registration of geographical indications and designations of origin under the procedure provided for in Article 17 of Reg. EEC No. 2081/92
(4) Case C-432/18, conclusions of Advocate General Gerard Hogan, 29.7.19, on https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A62018CC0432
(5) Joined Cases C‑ 465/02 and C‑ 466/02, Germany and Denmark/Commission, ECJ judgment 25.10.05, EU:C:2005:636, points 88 and 94
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT – Food Times) and Égalité.
Graduated in law in Trento, pursuing a master in food law at Roma Tre. Passionate about food and wine, between culture and tradition.
