The European Court of Justice (ECJ) last week brought to a close one of the most controversial disputes over geographical indications (GIs), removing the right of any non-Greek EU producers to use the name Feta for cheese.
Though the jurisdiction of the ECJ covers only the EU, the decision in favour of Greece in Federal Republic of Germany and Kingdom of Denmark v Commission of the European Communities on October 25 supports the European Commission's wider plans in the WTO to achieve global protection for Feta as a European GI.
Feta is included in a list of 41 names which the Commission submitted to the WTO agricultural round under the Doha negotiations, seeking their protection as GIs for the exclusive use of EU producers. The so-called claw-back proposal is criticized by many WTO countries for disregarding the generic status that several names on the list have reached in other countries.
Concluding the dispute which started almost 20 years ago, the ECJ last week rejected arguments by Denmark and Germany that the name Feta had become generic, confirming the Commission's position that it was a protected designation of origin for a type of cheese produced in Greece.
The decision is a big setback for non-Greek Feta producers in the EU. "This ruling is legal nonsense," said Hans Bender, director of the Danish Dairy Board – which argued in favour of the generic status of Feta. "This is extraordinary and very worrying."
The Court decided that Feta fulfilled the requirements of a designation of origin under EU law because the name referred to an agricultural or food product from a defined geographical area in Greece and reflected characteristics specific to that area and the production, processing and preparation methods used there.
The ruling means that all non-Greek EU Feta producers will have to change the name of their cheese by 2007. Names such as "Feta-style cheese" or any other names referring to Feta, will not be allowed. Those unwilling to change the Feta name will risk losing their business.
"Now the gates are wide open for all products to be protected as designations of origins, such as Emmenthal for Swiss cheese, or Gouda. It means total uncertainty for the dairy and food sector and entails complications in the EU in the future," said Bender.
Bender criticized the ECJ for overturning its own ruling in 1999, in which the Court sided with Denmark, Germany and France and cancelled a 1996 registration of Feta as a Greek designation of origin based on insufficient scientific evidence to justify registration. This was followed by a detailed EU-wide scientific study, requested by the Commission, which concluded that Feta was non-generic because production of traditional Feta was concentrated in Greece. In October 2002, the Commission declared the legality of the registration of Feta as a designation for Greek cheese. Denmark and Germany appealed again, stressing they had legally produced Feta cheese for decades and that the name had become generic.
The ECJ last week acknowledged that some European countries had a strong history of producing Feta cheese, with production in France and Denmark going back as far as the early 1930s, and in Germany to 1972. "Although the production in the other countries has been relatively large and of substantial duration, the Court notes ... that the production of feta has remained concentrated in Greece," the ECJ ruled. It found that more than 85% of consumption of Feta per person and per year in the EU took place in Greece.
Rejecting the generic nature of the name, the Court further ruled that the labels used by non-Greek EU producers on their Feta cheese often referred to Greece, either in words or by the colour scheme they used. It also noted that Danish law referred to Danish Feta, and not Feta, suggesting that it was the Danish version of an otherwise Greek cheese.
The weight of the Feta ruling is shown in the ECJ's decision to hear the case as a full court in its Grand Chamber, with 13 judges, led by ECJ president Vassilios Skouris from Greece.
The Feta case goes back to 1987 when Greece first decided that Feta should designate only its cheese. The Commission first registered it as a designation of origin in 1996, when the EU Regulation on geographical indications was adopted.
