Order No. 0035 of 2021

IDENTIFIER
62021CO0035 | ECLI:EU:C:2022:84
LANGUAGE
English
ORIGIN
BGR
COURT
Court of Justice of the European Union
ADVOCATE GENERAL
Emiliou
AG OPINION
NO
REFERENCES MADE
2
REFERENCED
0
DOCUMENT TYPE
Order

Judgment



Provisional text

ORDER OF THE COURT (Tenth Chamber)

9 February 2022 (*)

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Quality schemes for agricultural products and foodstuffs – Regulation (EU) No 1151/2012 – Designations of Origin and Geographical indications – Article 9 – Transitional national protection – Geographical indication designating an agricultural product, registered under the legislation of a Member State and protected at national level)

In Case C‑35/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria), made by decision of 29 December 2020, received at the Court on 19 January 2021, in the proceedings

‘Konservinvest’ OOD

v

‘Bulkons Parvomay’ OOD,

THE COURT (Tenth Chamber),

composed of I. Jarukaitis (Rapporteur), President of the Chamber, M. Ilešič and Z. Csehi, Judges,

Advocate General: N. Emiliou,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        ‘Konservinvest’ OOD, by Y. Ivanova et P. Angelov, advokati,

–        ‘Bulkons Parvomay’ OOD, by M. Georgieva-Tabakova, advokat,

–        the European Commission, initially by M. Konstantinidis, I. Naglis and by G. Koleva, and subsequently by M. Konstantinidis and G. Koleva, acting as Agents,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        This request for a preliminary ruling concerns the interpretation of Article 9 of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1).

2        The request has been made in proceedings between ‘Konservinvest’ OOD and ‘Bulkons Parvomay’ OOD (‘Bulkons’) concerning Konservinvest’s use of trade marks which allegedly infringe Bulkons’ rights to the geographical indication ‘Lyutenitsa Parvomay’.

 Legal context

 European Union law

 Regulation (EC) No 510/2006

3        Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 93, p. 12), as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1) (‘Regulation No 510/2006’), provided, in the second subparagraph of Article 5(8) thereof, that the Republic of Bulgaria and Romania were to introduce the laws, regulations or administrative provisions necessary to comply with paragraphs (4) to (7) of Article 5 not later than one year after the date of accession.

4        Article 5(11) of Regulation No 510/2006 also provided:

‘In the case of Bulgaria and Romania, the national protection of geographical indications and designations of origin existing on the date of their accession may continue for twelve months from the date of their accession.

Where an application for registration under this Regulation is forwarded to the Commission by the end of the abovementioned period such protection shall cease on the date on which a decision on registration under this Regulation is taken.

The consequences of such national protection, where a name is not registered under this Regulation, shall be the sole responsibility of the Member State concerned.’

5        That regulation was repealed and replaced, with effect from 3 January 2013, by Regulation No 1151/2012.

 Regulation No 1151/2012

6        According to recitals 13 to 15, 17, 18, 20 and 24 of Regulation No 1151/2012:

‘(13)      … the following provisions should be amalgamated into a single legal framework comprising the new or updated provisions of [Council] Regulations (EC) No 509/2006 [of 20 March 2006 on agricultural products and foodstuffs as traditional specialities guaranteed (OJ 2006 L 93, p. 1)] and [No 510/2006] and those provisions of [Regulations No 509/2006 and No 510/2006] that are maintained.

(14)      In the interests of clarity and transparency, Regulations [No 509/2006 and No 510/2006] should therefore be repealed and replaced by this Regulation.

(15)      The scope of this Regulation should be limited to the agricultural products intended for human consumption listed in Annex I to the Treaty and to a list of products outside the scope of that Annex that are closely linked to agricultural production or to the rural economy.

(17)      The scope for designations of origin and geographical indications should be limited to products for which an intrinsic link exists between product or foodstuff characteristics and geographical origin. …

(18)      The specific objectives of protecting designations of origin and geographical indications are securing a fair return for farmers and producers for the qualities and characteristics of a given product, or of its mode of production, and providing clear information on products with specific characteristics linked to geographical origin, thereby enabling consumers to make more informed purchasing choices.

(20)      A Union framework that protects designations of origin and geographical indications by providing for their inclusion on a register facilitates the development of those instruments, since the resulting, more uniform, approach ensures fair competition between the producers of products bearing such indications and enhances the credibility of the products in the consumers’ eyes. …

(24)      To qualify for protection in the territories of Member States, designations of origin and geographical indications should be registered only at Union level. With effect from the date of application for such registration at Union level, Member States should be able to grant transitional protection at national level without affecting intra-Union or international trade. …’

7        Article 1 of Regulation No 1151/2012, entitled ‘Objectives’, provides in paragraph 1 thereof:

‘This Regulation aims to help producers of agricultural products and foodstuffs to communicate the product characteristics and farming attributes of those products and foodstuffs to buyers and consumers, thereby ensuring:

(a)      fair competition for farmers and producers of agricultural products and foodstuffs having value-adding characteristics and attributes;

The measures set out in this Regulation are intended to support agricultural and processing activities and the farming systems associated with high quality products, thereby contributing to the achievement of rural development policy objectives.’

8        The first subparagraph of Article 2(1) of that regulation, which defines the scope of the regulation, provides:

‘This Regulation covers agricultural products intended for human consumption listed in Annex I to the Treaty and other agricultural products and foodstuffs listed in Annex I to this Regulation.’

9        Title II of that regulation, entitled ‘Protected designations of origin and protected geographical indications’, contains Articles 4 to 16 thereof. Article 4 of that regulation, entitled ‘Objective’, states:

‘A scheme for protected designations of origin and protected geographical indications is established in order to help producers of products linked to a geographical area by:

(a)      securing fair returns for the qualities of their products;

(b)      ensuring uniform protection of the names as an intellectual property right in the territory of the Union;

(c)      providing clear information on the value-adding attributes of the product to consumers.’

10      Article 5 of Regulation No 1151/2012, entitled ‘Requirements for designations of origin and geographical indications’, provides in paragraphs 1 and 2 thereof:

‘1.      For the purpose of this Regulation, “designation of origin” is a name which identifies a product:

(a)      originating in a specific place, region or, in exceptional cases, a country;

(b)      whose quality or characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors; and

(c)      the production steps of which all take place in the defined geographical area.

2.      For the purpose of this Regulation, “geographical indication” is a name which identifies a product:

(a)      originating in a specific place, region or country;

(b)      whose given quality, reputation or other characteristic is essentially attributable to its geographical origin; and

(c)      at least one of the production steps of which take place in the defined geographical area.’

11      Article 9 of that regulation, entitled ‘Transitional national protection’, provides:

‘A Member State may, on a transitional basis only, grant protection to a name under this Regulation at national level, with effect from the date on which an application is lodged with the Commission.

Such national protection shall cease on the date on which either a decision on registration under this Regulation is taken or the application is withdrawn.

Where a name is not registered under this Regulation, the consequences of such national protection shall be the sole responsibility of the Member State concerned.

The measures taken by Member States under the first paragraph shall produce effects at national level only, and they shall have no effect on intra-Union or international trade.’

12      Article 12 of that regulation, entitled ‘Names, symbols and indications’, is worded as follows:

‘1.      Protected designations of origin and protected geographical indications may be used by any operator marketing a product conforming to the corresponding specification.

3.      … The indications “protected designation of origin” or “protected geographical indication” … may appear on the labelling.

4.      In addition, the following may also appear on the labelling: depictions of the geographical area of origin, as referred to in Article 5, and text, graphics or symbols referring to the Member State and/or region in which that geographical area of origin is located.

…’

13      Chapter IV of the Regulation, which is set out under Title V entitled ‘Common provisions’, lays down the application and registration procedures applicable, inter alia, to designations of origin and geographical indications.

 Bulgarian law

 Law on trade marks and geographical designations

14      The Zakon za markite i geografskite oznachenia (Law on trade marks and geographical designations) (DV No 81 of 14 September 1999), in the version in force at the material time (‘the ZMGO’), provided, in Article 51(1) to (3):

‘(1)      Geographical designation means a designation of origin and a geographical indication.

(2)      The designation of origin is the name of a country, region or particular place of that country, used to describe a product originating in that country, region or particular place, the quality or characteristics of which are essentially or exclusively due to the geographical environment, including natural and human factors.

(3)      The geographical indication is the name of a country, region or particular place of that country, used to describe a product originating in that country, region or locality and the quality, reputation or other characteristic of which may be attributed to that geographical origin.’

15      Article 53(1) and (2) of the ZMGO stated:

‘(1)      Legal protection of the geographical designation is granted by registration of that designation to the Patent Office.

(2)      Legal protection includes the prohibition of:

1.      any commercial use of the geographical designation of products which are comparable to the registered product in so far as such use exploits the reputation of the protected designation;

2.      any misuse, imitation of the geographical designation, even if the true origin of the product is indicated or if its use is translated or accompanied by a term such as “style”, “kind”, “type”, “imitation” or similar;

3.      any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, whether appearing on inner or outer packaging, advertising material or documents relating to the product concerned, which indication is liable to convey a false impression as to its origin;

4.      any other practice liable to mislead the consumer as to the true origin of the product.’

16      Under Article 76 of the ZMGO:

‘(1)      Actions for infringement of rights under this Law may be actions:

1.      for a declaration that an infringement has occurred;

2.      seeking an injunction prohibiting the infringement;

3.      for compensation for the loss suffered;

4.      seeking to obtain the seizure and removal from circulation of the goods which are the subject of the offence, and of the means used to commit it.

(2)      Concurrently with the action referred to in paragraph 1, the applicant may apply to the courts for:

3.      the publication, at the defendant’s expense, of the operative part of the judgment in two daily newspapers, and during a timezone of a national television broadcaster, determined by the court.’

17      The ZMGO was abolished on 22 December 2019 (DV No 98 of 13 December 2019).

 Transitional and final provisions of the Law amending and supplementing the ZMGO

18      The transitional and final provisions of the Law amending and supplementing the ZMGO (DV No 61 of 24 July 2018) provide, in Article 8 thereof:

‘(1)      Holders of rights over geographical designations registered in respect of agricultural products or foodstuffs falling within the scope of Regulation [No 1151/2012] may not bring actions in respect of infringements committed up to the entry into force of the present Law.

(2)      Proceedings relating to administrative offences may not be initiated for infringements occurring prior to the entry into force of the present Law of rights over geographical designations registered for agricultural products or foodstuffs falling within the scope of Regulation [No 1151/2012].’

 The dispute in the main proceedings and the question referred for a preliminary ruling

19      On 12 February 1999, Konservinvest, a company with its administrative and registered office in Bulgaria, obtained registration of the complex trade mark ‘K Konservinvest Parvomayska lyutenitsa’ at the Patent Office of the Republic of Bulgaria (‘the Office’) for the designation of the product ‘lyutenitsa’. On 3 May 2005, it also obtained registration of the composite mark ‘Parvomayska lyutenitsa Rachenitsa’, applied for on 15 May 2003, to designate the same product. For those two marks, the elements ‘parvomayska lyutenitsa’ are not protected.

20      By decision of the President of the Office of 3 July 2013, Bulkons, a company which also has its registered office and administrative office in Bulgaria, under the ZMGO, which was then in force, was registered as the user of the geographical indication ‘Lyutenitsa Parvomay’ (‘the geographical indication at issue’), designating the product ‘lyutenitsa’, Parvomay being a Bulgarian municipality. The application for registration of that geographical indication had been filed by Bulkons on 14 March 2013.

21      Konservinvest brought an action before the administrative courts for annulment of that decision, on the ground that the President of the Office was not competent to register a geographical indication relating to an agricultural product, since such a registration was governed by Regulation No 1151/2012 and was possible only at EU level, in accordance with the procedure laid down in that regulation. By judgment of 12 July 2017, the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) dismissed that action, taking the view that that regulation did not apply to the dispute since the contested registration did not seek to obtain the protection granted by it.

22      In addition, Bulkons brought joint actions before the Sofiyski gradski sad (Sofia City Court, Bulgaria) against Konservinvest under Article 76(1), subparagraphs 1 to 3, read in conjunction with, inter alia, Article 76(1), subparagraph 4, and Article 76(2), subparagraph 3, of the ZMGO. By those decisions, it sought, inter alia, a declaration that its rights over the geographical indication at issue had been infringed by Konservinvest’s use of a number of commercial trade marks, including those identified in paragraph 19 of the present order, to designate the product ‘lyutenitsa’; that Konservinvest be ordered to cease the infringement and to pay it compensation for the damage suffered in the amount of 636 284.16 Bulgarian leva (BGN) (approximately EUR 325 000), and to order the seizure and destruction (‘the removal from circulation’) of the products constituting an infringement.

23      By judgment of 30 November 2017, the Sofiyski gradski sad (Sofia City Court) dismissed those actions on the ground that they related to a product to which Regulation No 1151/2012 directly applies and that that regulation requires the geographical names of agricultural products and foodstuffs to be registered with the Commission.

24      Bulkons’ appeal against that judgment was upheld by the Sofiyski Apelativen sad (Court of Appeal, Sofia, Bulgaria), by judgment of 28 February 2019, which upheld the actions brought by that company in their entirety. That court held that those actions were admissible, since Article 8(1) of the transitional and final provisions of the Law amending and supplementing the ZMGO was not applicable to the dispute before it, and well founded, since the ZMGO and Regulation No 1151/2012 governed different relationships and guaranteed parallel protection of different rights.

25      Konservinvest brought an appeal on a point of law against that judgment before the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria), the referring court. The referring court states that it must assess the admissibility of Bulkons’ actions and that, to that end, it must determine whether the geographical indication at issue is protected under Bulgarian law.

26      In that regard, it states that, in accordance with that legislation, the registration of a geographical indication with the Office, including for agricultural products and foodstuffs, affords it national protection allowing for a judicial sanction if use of that indication is made by an unauthorised person. That geographical indication ensures consumers of the high quality of the goods designated by it and describes the specific characteristics thereof. It also creates an obstacle to a deterioration in that quality resulting from production of those goods by unregistered producers.

27      In the light of developments in international and EU legislation on the protection of geographical names of agricultural products and foodstuffs whose quality and unique character are associated with certain regions of the European Union, and taking into account Article 9 and recitals 15 and 24 of Regulation No 1151/2012, the referring court considers it possible that the registration and legal protection of those products may be precluded at national level. It takes the view, however, that where the dispute is between local producers of a single agricultural product concerning a geographical indication which has obtained only national registration and where the infringements at issue occur in that Member State, the possibility of registering agricultural products and foodstuffs falling within the scope of Regulation No 1151/2012 only at national level and of benefiting from specific protection only within that Member State is not expressly precluded by EU law.

28      In those circumstances, the Varhoven kasatsionen sad (Supreme Court of Cassation) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Does Article 9 of [Regulation No 1151/2012] allow, outside the cases of transitional protection provided for in that provision, a national system for the registration and protection of geographical indications for agricultural products and foodstuffs covered by that regulation, and does that provision leave Member States free to apply at national level other rules that are applicable in parallel (similar to the parallel system for trade marks) in order to settle legal disputes concerning infringements of the right to such a geographical indication between local traders who produce and market agricultural products and foodstuffs covered by [Regulation No 1151/2012] within the Member State in which the geographical indication was registered?’

 Consideration of the question referred

29      Pursuant to Article 99 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.

30      That provision must be applied in the present case.

31      As a preliminary point, it should be noted that, although the wording of the question referred refers only to Article 9 of Regulation No 1151/2012, 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.

32      Accordingly, it must be held that, by its question, the referring court asks, in essence, whether Regulation No 1151/2012 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.

33      In that regard, it should be noted at the outset that, as is apparent from recitals 13 and 14 of Regulation No 1151/2012, that regulation merges into a single legal framework, in particular, the new or updated provisions of Regulation No 510/2006 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 No 510/2006 which were, in essence, reproduced in Regulation No 1151/2012 is therefore still relevant to the interpretation of the equivalent provisions in the latter regulation. Similarly, since Regulation No 510/2006 itself repealed and replaced Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 1992 L 208, p. 1), the Court’s case-law on the provisions of that regulation which were, in essence, reproduced in Regulation No 510/2006, and then in Regulation No 1151/2012, is also relevant to that interpretation.

34      As regards the question referred, it should be noted, in the first place, that, as is apparent from the first sentence of recital 20, recital 24, and Article 4 of Regulation No 1151/2012, 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 8 September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs 107 and 108).

35      Regulation No 1151/2012, adopted inter alia on the basis of Article 43(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 8 September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs 109 to 111 and the case-law cited), as reflected in recital 18 and articles 1 to 4 of that regulation.

36      If 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 Article 12 of Regulation No 1151/2012, 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 No 510/2006, 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 No 1151/2012 (see, by analogy, judgment of 8 September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraph 112).

37      That 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 8 September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs 113).

38      The conclusion must be drawn that the aim of Regulation No 1151/2012 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 Article 5 of that regulation, but to provide a uniform and exhaustive system for the protection of such designations and indications (see, by analogy, judgment of 8 September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraph 114).

39      The exhaustive nature of the system for the protection of designations of origin and geographical indications laid down by Regulation No 1151/2012 is evidenced by the fact that the registration procedure under Regulation No 1151/2012 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 No 1151/2012, 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 8 September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs 116 and 117 and the case-law cited).

40      In that context, it is important, first, to note that Article 9 of Regulation No 1151/2012 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 No 1151/2012 and have them coexist with those regulations (see, by analogy, judgment of 8 September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs 118 and 120).

41      Secondly, contrary to what Bulkons claims, in essence, before the Court, the fact that Regulation No 1151/2012 does not reproduce the transitional arrangements laid down in Article 5(11) of Regulation No 510/2006 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 No 1151/2012 was based on the exhaustive nature of the system for the protection of designations of origin and geographical indications previously laid down by Regulation No 510/2006.

42      The 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 10 States which acceded to the European Union on 1 May 2004. Those arrangements had been considered not as a factor determining the exhaustive nature of the system of protection provided for in Regulation No 510/2006, but only as a factor confirming the exhaustive nature thereof (see, to that effect, judgment of 8 September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs 124 to 128).

43      It is the very nature of the system of protection established by Regulation No 510/2006, and previously by Regulation No 2081/92, 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 No 510/2006 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 8 September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraphs 107 to 114). As has been held in paragraphs 34 to 38 of the present order, Regulation No 1151/2012 pursues, as regards the protection of designations of origin and geographical indications of agricultural products and foodstuffs for which it provides, the same objective.

44      It must also be stated that the transitional provision laid down in Article 5(11) of Regulation No 510/2006 was not reproduced in Regulation No 1151/2012 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 No 510/2006, now reproduced in Regulation No 1151/2012.

45      In 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 Article 288 TFEU, a regulation such as Regulation No 1151/2012 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 2 April 2020, CRPNPAC and Vueling Airlines, C‑370/17 et C‑37/18, EU:C:2020:260, paragraph 74 and the case-law cited).

46      In 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 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 57, and of 21 October 2021, ZX (Adjustment of the indictment), C‑282/20, EU:C:2021:874, paragraph 39).

47      It 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 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 58 and the case-law cited, and of 21 October 2021, ZX (Adjustment of the indictment), C‑282/20, EU:C:2021:874, paragraph 40).

48      Thus, 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 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 61 and the case-law cited, and of 21 October 2021, ZX (Adjustment of the indictment), C‑282/20, EU:C:2021:874, paragraph 41).

49      In 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 No 1151/2012 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 8 May 2014, Assica and Kraft Foods Italia, C‑35/13, EU:C:2014:306, paragraph 28 and the case-law cited).

50      In that regard, it is apparent from recital 17 and Article 5(1) and (2) of Regulation No 1151/2012 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 7 November 2000, Warsteiner Brauerei, C‑312/98, EU:C:2000:599, paragraph 43 and the case-law cited, and of 8 May 2014, Assica and Kraft Foods Italia, C‑35/13, EU:C:2014:306, paragraph 29).

51      Accordingly, 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 No 1151/2012 in so far as it relates to designations of origin and geographical indications (see, to that effect, judgment of 8 May 2014, Assica and Kraft Foods Italia, C‑35/13, EU:C:2014:306, paragraph 30 and the case-law cited).

52      Consequently, 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 8 May 2014, Assica and Kraft Foods Italia, C‑35/13, EU:C:2014:306, paragraph 31).

53      However, 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 No 1151/2012. 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 8 May 2014, Assica and Kraft Foods Italia, C‑35/13, EU:C:2014:306, paragraphs 33 to 35).

54      In the present case, it is apparent from the order for reference that, in accordance with Article 51(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 Article 51(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 Article 5(1)(a) and (b) and of Article 5(2)(a) and (b) of Regulation No 1151/2012, respectively.

55      In 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.

56      It 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 paragraph 52 of the present order, but qualified geographical designations, within the meaning of the case-law referred to in paragraph 38 of the present order, similar to designations of origin and geographical designations whose protection is provided for by Regulation No 1151/2012, which it is nevertheless for the referring court to determine.

57      It 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 No 1151/2012, as stated in recital 15 and defined in Article 2 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.

58      In 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 No 1151/2012, may not coexist with the system of protection for designations of origin and geographical indications laid down by that regulation.

59      In 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 No 1151/2012. Consequently, in accordance with the case-law referred to in paragraph 53 of the present order, such a system cannot be regarded as complying with the requirements of EU law.

60      In the light of all of the foregoing, the answer to the question referred is that Regulation No 1151/2012 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.

 Costs

61      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs 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.

[Signatures]


*      Language of the case: Bulgarian.


Citations

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