In Case 16/83
REFERENCE to the Court under Article 177 of the EEC Treaty by the Tenth Criminal Chamber of the Landgericht München [Regional Court, Munich] II for a preliminary ruling on the interpretation of Articles 30 and 36 of the EEC Treaty in the criminal proceedings brought against
Karl Prantl
for contravention of the Weingesetz [Wine Law],
THE COURT
composed of: J. Mertens de Wilmars, President, T. Koopmans and Y. Galmot (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco, O. Due and U. Everling, Judges,
Advocate General: Sir Gordon Slynn
Registrar: P. Heim
gives the following
The facts of the case, the course of the procedure and observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community may be summarized as follows:
The Bocksbeutel bottle at the centre of this case has a characteristic bulbous shape. Quality wine psr (produced in a specified region) from Franconia, Baden-Franconia and four municipalities located in central Baden are marketed in Bocksbeutel bottles which have been used in Franconia for centuries.
In Italy, too, especially in the Trentino Alto Adige, the Bocksbeutel bottle has a tradition going back more than one hundred years.
The traditional Italian Bocksbeutel is rounder and has a shorter neck than the Franconian Bocksbeutel.
Paragraph 17 of the Wein-Verordnung [regulation on wine, liqueur wine and wine-based beverages] of
Paragraph 17 reads as follows:
The second subparagraph of Paragraph 23 of the Wein-Verordnung provides that:
Finally, Paragraph 67 (V) of the Weingesetz [Wine Law] (Bundesgesetzblatt 1977, Part I, p. 893) provides
After the entry into force of Paragraph 17 of the Wein-Verordnung protection of the Bocksbeutel bottle seems to have been somewhat weakened in the Federal Republic of Germany as a result of another judgment of the Bundesgerichtshof of
The charge against Mr Prantl is that between
In so acting lie offended against Paragraph 17 of the Wein-Verordnung and by virtue of Paragraph 67 (5), Point 2, of the Wcingesetz of
On
The Public Prosecutor appealed to the Landgericht München [Regional Court, Munich] II claiming that Paragraph 17 of the Wein-Verordnung did not have an effect equivalent to a quantitative restriction on imports and was not therefore contrary to Article 30 of the EEC Treaty.
It was also claimed that Paragraph 17 was necessary in the interests of consumer protection and fair trading.
The Landgericht München II decided that owing to their shape the Bocksbeutel bottles used by Mr Prantl looked very much like Franconian Bocksbeutel bottles and that they were traditional Bocksbeutel bottles within the meaning of Paragraph 17 of the Wein-Verordnung.
However, it raised the question whether, if Paragraph 17 of the Wein-Verordnung was contrary to Article 30 of the EEC Treaty, it was still valid by virtue of the exception laid down in Article 36 of the EEC Treaty.
By order dated
The order making the reference was registered at the Court on
In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community written observations were submitted by Karl Prantl, represented by Stock, Strohm and Reinelt, Rechtsanwälte, the Government of the Federal Republic of Germany, represented by Professor Rudolf Lukes, full professor of law, the Government of the Italian Republic, represented by Ivo M. Braguglia, Avvocato dello Stato, and by the Commission of the European Communities, represented by Richard Wainwright and Bernhard Jansen, members of its Legal Department, acting as Agents.
Pursuant to Article 95 (2) of the Rules of Procedure and upon application of the Government of the Federal Republic of Germany for the case to be decided in plenary session, the Court decided that the case should be considered by the full court.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry. However, the Court decided to ask the Commission and the Government of the Federal Republic of Germany to reply before the oral procedure to the following questions:
The Commission is asked to submit to the Court the results of its investigations (see page 12 of its written observations) into whether similar measures or customs recognized by national law exist in the other Member States.
The Commission is asked to state briefly the work undertaken and the negotiations conducted so far with a view to ensuring protection of the
The Government of the Federal Republic of Germany is asked to state the objects of the German association named on page 30 of its written observations and the reasons for which and under which legislation that association registered a collective mark.
First he considers it more accurate to say that the traditional Italian Bocksbeutel is only slightly rounder and has only a slightly shorter neck than the Franconian Bocksbeutel. Secondly he notes that the Landgericht neglected to state in the grounds of its order that large numbers of Bocksbeutel bottles have hitherto been imported from Trentino Alto Adige and no difficulties have been raised by the competent German authorities. Thirdly Mr Prantl maintains that the defence he advanced before the national court to the effect that Italian law allows any person to use Fourthly and lastly Mr Prantl refers to the alternative application that he submitted to the national court of first instance requesting that the reference for a preliminary ruling include the question whether Paragraph 17 of the Wein-Verordnung is contrary to Community law at least in so far as the prohibition contained therein and the related penal provisions have application even if bottles resembling Bocksbeutel bottles in which wine from Trentino Alto Adige is sold have, as in this case, clear and detailed labels which cannot cause any confusion and which make it clear to the consumer that the wine contained in them comes from regions other than those referred to in Paragraph 17 of the Wein-Verordnung.
The Court has also emphasized many times that such measures having equivalent effect do not necessarily consist exclusively of trade regulations in the strict sense.
From this Mr Prantl concludes that by its nature and effect Paragraph 17 of the Wein-Verordnung exceeds the effects intrinsic to such trade regulations.
Moreover, in its present form and construed widely without regard to the actual labelling and description of the wine, such a provision is not necessary for meeting the overriding requirements of, in particular, consumer protection and fair trading.
The first point he makes in this regard is that Article 36 of the Treaty is a derogating provision and must therefore be construed narrowly. Secondly, he contends that, although a Member State may, in order to ensure fair trading and protect consumers, adopt regulations restricting the use of specific shapes of wine bottle in order to prevent confusion as to the origin of wine, the Court has consistently held that it is necessary to investigate in particular whether the measure adopted for this purpose is absolutely necessary (and not just desirable), whether it remains justified with the passage of time and finally whether it would be impossible to replace it by another less stringent measure more in keeping with the principle of the free movement of goods within the European Community. Mr Prantl considers that, in view of the case-law of the Court, in this instance that is not the case. The provision in question does not accord with the principle of proportionality and of adopting the least drastic measures possible because the original label on the imported product provides the consumer with In the present case there can be no doubt that the detailed information and names appearing on the bottle, which all refer to Italy as being the country of origin and specifically to Trentino Alto Adige, are a sufficient indication to the consumer that the product sold in those bottles does not come from Franconia but from Trento Alto Adige. According to Mr Prantl, German competition law is one of the most rigid in the world. Unfortunately the German case-law on competition is based on the Finally, the maintenance of Paragraph 17 of the Wein-Verordnung constitutes discrimination against other Member States which could be avoided and which far exceeds the needs of consumer protection. Although the shapes of Franconian Bocksbeutel bottles are themselves not completely identical and some of them look quite different, producers of Franconian wine may use that shape of bottle without any restriction whereas wine producers in Trentino Alto Adige, who have used Bocksbeutel bottles for centuries too, are entirely prohibited from using it. This situation is all the more shocking because since the judgment of the Bundesgerichtshof -of In conclusion Mr Pianti proposes that the Court should reply in the affirmative to the first question and in the negative to the second and
As a preliminary point the German Government stresses that in proceedings under Article 177 of the Treaty the Court cannot decide whether provisions of national law are compatible with Community law.
In the present case, therefore, the Court's task is to ascertain whether the provisions of the EEC Treaty on the free movement of goods permit national legislation of the kind prohibiting the use of Bocksbeutel bottles in order to protect indirect designations of geographical origin.
The Government of the Federal Republic of Germany considers that Paragraph 17 of the Wein-Verordnung does not constitute a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty and that even if it is to be regarded as such it is justified by the derogations laid down in Article 36 of the Treaty.
To support this contention the Government of the Federal Republic of Germany advances three arguments based on the precise scope of the legislation, on the meaning that must be attributed to the concept of a measure having an effect equivalent to a quantitative restriction on imports and finally on an analysis of Paragraph 17 of the Wein-Verordnung having regard to the criteria thus derived.
The first point it makes in this regard is that the relevant German legislation on wine does not prevent wine from other Member States, including Italian red wine from Trentino Alto Adige, from being marketed in the Federal Republic of Germany, nor does it prevent such wine from being marketed in containers habitually used for that purpose.
The sole object of the legislation is to prohibit marketable wine, bottled and labelled in the usual or in any other form, from being sold in the Federal Republic of Germany in forms of presentation which represent an indirect designation of origin for wine produced in a specified region and which are thus a sign of quality.
Consequently, the provisions at issue do not constitute an obstacle to the free movement of goods but merely prevent
The second point made by the Government of the Federal Republic of Germany is that in the present case Mr Prantl is charged with bottling and marketing wines in bottles which, according to the regional health authority for South Bavaria, were made as traditional Bocksbeutel bottles in the Federal Republic of Germany or Austria and which thus represent an indirect designation of origin for wine produced in Franconia and in some localities of Baden.
Therefore, unlike in the
More specifically, the Government of the Federal Republic of Germany points out that Paragraph 17 of the Wein-Verordnung specifies the conditions which the presentation of wine must satisfy by virtue of Paragraph 46 of the Weingesetz as well as Article 43 of Council Regulation (EEC) No 355/79 of
Designations of geographical origin are an important category of marks in commerce and serve to protect consumers and the public interest, for they help to identify highly characterized products by their visual impact and are a means of ensuring market transparency.
Moreover, in principle it is accepted in German case-law that the traditional Bocksbeutel bottle is an indirect indication of origin and quality for Franconian wine, in this respect confirming the results of an opinion poll carried out in the Federal Republic of Germany.
Finally, the Government of the Federal Republic of Germany points out that in its judgment of
In the view of the Government of the Federal Republic of Germany a national measure whose'sole purpose is to protect an indirect indication of geographical origin and which does not. adversely affect fair trading in the Community does not constitute a measure having, equivalent effect within the meaning of Article 30
In its view the concept of a measure having equivalent effect must in fact be considered with reference to the EEC Treaty, secondary Community law, the case-law of the Court and academic legal writing.
First, it is clear from the provisions of the Treaty that a national measure constitutes a measure having an effect equivalent to a quantitative restriction only if it is liable to affect intra-Community trade, if it produces effects otherwise than in a general and nonspecific way and if it is of a nature such as to restrict that trade.
Secondly, by analogy with Community competition law, the prohibition of national measures having an effect equivalent to quantitative restrictions does not apply to every national measure but account must be taken of the effect they have on trade.
Thirdly, it would be practically impossible to apply Article 30
The conclusion it reaches is that
The Government of the Federal Republic of Germany considers that this directive demonstrates that only national measures capable of affecting trade must be regarded as measures having an effect equivalent to quantitative restrictions.
The first observation it makes in this regard is that it is clear from the eighth, ninth, tenth and eleventh recitals in the preamble to the directive that measures which apply equally to national and imported products are not in principle measures having equivalent effect unless their restrictive effect exceeds the effects intrinsic to such measures or if imports are made impossible or more difficult or costly than the disposal of domestic production and this is not necessary for attaining an objective which must be legitimate and impossible to attain by means less restrictive to trade in goods.
In the second place it considers that the measures having equivalent effect listed in Articles 2 and 3 of the directive demonstrate that not all measures must be regarded as measures having an effect equivalent to quantitative restrictions but rather that it is necessary to apply criteria relating to the assessment of the adverse effect which the measure in question has on trade.
The conclusion reached by the Government of the Federal Republic of Germany is that the concept of a measure having an effect equivalent to a quantitative restriction on imports covers only measures which, after proper assessment, are shown to be liable to affect trade.
The Government of the Federal Republic of Germany considers that it is clear from a study of the case-law of the Court and in particular from the decisions which it cites (Joined Cases
The Government of the Federal Republic of Germany considers that, though academic legal writers are not unanimous about the criteria for distinguishing a measure equivalent to a quantitative restriction, they do attach great importance to the adverse effect that a measure has on the market.
According to the Government of the Federal Republic of Germany, the rule in question does not affect trade, either actually or potentially, for the purposes of Article 30 of the Treaty because it prohibits only an indirect indication of origin confined to wine produced in a limited geographical area and having certain characteristic properties from being used for other domestic or foreign wine.
The provision does not restrict the marketing of wine produced in any particular winegrowing area of the Community or the bottling or sale of wine from other areas in the customary containers or in containers specially made for this purpose.
Article 30
Such an interpretation is, moreover, borne out by the preamble to and the provisions of Council Regulation (EEC) No 337/79 of
The provision in question applies to domestic and foreign products alike and, according to the eighth recital in the preamble to the directive, is therefore lawful in principle.
Furthermore, the provision has no effect over and above that which it is intended to have, namely the protection of the traditional Bocksbeutel bottle as an indirect indication of origin, nor does it prevent wine produced in other areas of the Community from being marketed, or make imports impossible or more difficult or costly than the disposal of domestic products.
Lastly, tlie German rules on wine accord with Article 2 (3) (s) of the directive which provides that national provisions restricting the use of names indicative of origin or source, and therefore of a product's provenance from a specific area, do not constitute measures having equivalent effect.
In addition, unfair competition is prohibited by the domestic law of all the Member States as well as by international treaties such as for instance the bilateral agreements concluded between Member States for the protection of indications of origin and source and the Madrid Arrangement of
The provision in question does not hinder fair trading which is the only kind of trading protected by the Treaty; it is merely intended to prevent unfair practices such as the use of an indirect indication of a product's origin for other products from other areas.
The measure is therefore
Lastly, the rule at issue is not out of proportion to its purpose, for opinion polls carried out in the Federal Republic of Germany show that a label alone, stating the product's name, would not prevent confusion if the traditional Bocksbeutel bottle were used for other wines.
Besides, such a practice would be likely to create a contradiction between the indication regarding the product's origin indirectly provided by the shape of the bottle and the indication given on a label.
In the view of the Government of the Federal Republic of Germany, it is clear from its foregoing observations that the rule at issue cannot be replaced by another provision less restrictive of intra-Community trade.
After setting out in detail the draft regulations on which the Commission has worked since 1975 with a view to protecting the use of the
As a preliminary point the Government of the Federal Republic of Germany stresses that in its view there are at present no definitive rules of Community law which would preclude Article 36 from being invoked in justification of the national measure.
The applicable Community Regulations (Nos 337/79, 343/79 and 355/79) contain only general rules prohibiting wine from being marketed with misleading names or put up in a misleading way and there are no Community rules governing the special situation where wine is misleading put up in traditional Bocksbeutel bottles serving as an indirect indication of origin.
Furthermore, there are no Community rules regarding the penalties to be imposed in cases where wine is put up in a manner likely to mislead so that the imposition of the penalties laid down by the German wine legislation and under German private law is not ruled out by Community law.
In any event the Government of the Federal Republic of Germany considers that the relevant German wine legislation is justified under Article 36 of the Treaty on the grounds of public policy and the protection of industrial and commercial property and because it cannot be considered a means of arbitrary discrimination or a disguised restriction on trade between Member States.
Hence the fact that a Member State makes a particular practice subject to prosecution brings the relevant legislative provision within the ambit of its public policy.
To support that argument the Government of the Federal Republic of Germany, recalling the argument advanced in part 1 (b), contends that a consumer who is only vaguely aware that the use of the traditional Bocksbeutel is an indirect indication of origin for wine produced in Franconia. may act upon a
To support that argument the Government of the Federal Republic of Germany repeats the arguments advanced in part 1 (b)
The first point made by the Government of the Federal Republic of Germany in this regard is that the putting up of wine in traditional Bocksbeutel bottles as an indirect designation of origin is an industrial or commercial property right belonging to the wine producers in the specific geographical area to which the mark relates.
Article 1 of the Paris Convention for the Protection of Industrial Property (as revised at Stockholm on
The protection afforded covers, besides the indirect indication of origin in a limited geographical area and the characteristic wine produced there, the business premises and equipment and business activity of every producer in that area.
In Community law industrial and commercial property comprises in addition
Since Paragraph 17 protects such marks and that right, the provision is therefore also justified in Community law as well.
In the view of the Government of the Federal Republic of Germany, there can be no doubt that bottle shapes
According to a Commission proposal for a Council regulation on the Community trade mark, such shapes are also to be permitted to be used as trade marks.
If used together with additional distinctive features by third parties an indication of source would no longer have the same expressive force and the vety nature of the distinctive mark would be affected.
Secondly, the Government of the Federal Republic of Germany points out that on
Consequently the value of the German association's mark would also be diminished if the traditional Bocksbeutel bottle could be used for wines from another source.
The Government of the Federal Republic of Germany contends that the rule in question involves no discrimination between national and foreign products and since it applies without distinction to all traders, whatever their nationality, cannot be regarded as a disguised restriction on trade between Member States.
What is more, the rule in question, which is merely intended to ensure fair trading and protect the interests of consumers, does not restrict trade between Member States in wine put up either in the usual or in specially-shaped containers.
For all those reasons the Government of the Federal Republic of Germany considers that the questions submitted by the Landgericht should be answered as follows :
The Government of the Italian Republic is of the view that Paragraph 17 of the Wein-Verordnung has an effect equivalent to a quantitative restriction on imports, prohibited by Article 30 of the Treaty and which is not covered by the provisions of Article 36.
In the first place the disputed provision prohibits the use of the Bocksbeutel bottle for wines imported from other Member States or for German wines produced in various regions. Secondly, although the disputed provision does not absolutely prohibit the importation of wine from other Member States, it none the less prohibits the marketing of such wines in the Federal Republic of Germany when they are presented for sale in bottles resembling the Thirdly, the Government of the Italian Republic refers to the case-law of the Court in which it has been held that national measures which impose a certain form of presentation for the marketing of a product fall within the scope of Article 30 of the Treaty (judgment of
The Government of the Italian Republic is of the view that despite the vagueness of the order for reference, the national court probably intended to refer to consumer protection and fair trading.
However, in its opinion, those exceptions cannot be relied upon in the present case.
As the Court held in its judgment of Thus, when a wine is produced in the Community in accordance with those rules, it should be able to circulate freely in all the Member States without the possibility of that freedom of movement being hindered by national measures relating to the determination of the shape of the bottle. Support is lent to that argument by Article 18 of Commission Regulation (EEC) No 997/81 which protects the use of the bottle known as the The Government of the Italian Republic concludes that according to the Community rules, it is above all compliance with the requirements as to the information and details to be shown on the label which enables the consumer to be protected and ensures fair trading. It is not therefore possible to permit other methods of protection unilaterally laid down by Member States, even a national measure which is less For the above reasons the Government of the Italian Republic suggests that the questions submitted by the court making the reference be answered as follows:
Since 1974, in the context of the common organization of markets, there have existed rules relating to the description and presentation of wines and grape musts (Council Regulation (EEC) No 2133/74 of Furthermore, Commission Regulation (EEC) No 1608/76, adopted for the implementation of Regulation No 2133/74, was replaced by Commission Regulation (EEC) No 997/81 of At present, only the bottle known as the According to the Commission it follows that the The Commission states that, in the context of that implementing regulation, it submitted several proposals whose purpose was to ensure the protection of Although one of those proposals was approved by the majority of Member States, it did not however receive the endorsement of the German Government and, since the withdrawal of that proposal, there have been exchanges of views on the subject which have not led to any concrete result. The Commission summarizes the provisions of Paragraph 17 of the Wein-Verordnung and the judgments of the Bundesgerichtshof which have clarified the scope of the protection accorded to the Bocksbeutel bottle. The Commission concludes that the characteristic feature of the German regulation which protects Bocksbeutel bottles lies in the fact that it protects the producers of a whole region of the German market against competitors from all other winegrowing regions. That protection is therefore considerably more extensive than that which certain producers might obtain individually for the presentation or the shape of certain wine bottles by the effect of legislation relating to the protection of trade marks and designs. Such individual protection, therefore, consists only of an application for an injunction in civil law based upon the registration of the trade mark or design and capable of being brought against an illegal use of a Bocksbeutel bottle.
Thus, and although the court making the reference has limited itself to asking the Court of Justice about the compatibility of the disputed provisions with Articles 30 and 36 of the EEC Treaty, in the Commission's view it appears necessary to give the national court a comprehensive account of the relevant provisions of Community law in the context of the collaboration between the courts of Member States and the Court of Justice which is provided for by Article 177 of the Treaty.
In support of its contention, the Commission sets out an argument in four stages.
The Commission is of the view that, subject to any provision to the contrary, it may be inferred that from the time of its entry into force the Community regulation excludes the retention in force of internal provisions in the area concerned.
It adds that after Regulation No 2133/74 had established, for the first time, general rules for the designation and presentation of wines, which were complemented by implementing provisions in Regulation No 1608/76, it was for the Community authorities alone to decide upon the retention of the national rules in force in the sector concerned, if necessary on a provisional basis.
The Commission has used that power in an exhaustive manner by adopting Regulation No 997/81 which replaced Regulation No 1608/76.
The Commission cites two facts which in its view support and confirm that statement. On the one hand the fact that Article 18 of Regulation No 997/81 includes a provision which protects the
Thus the Member States no longer have the power to make access to the market subject to provisions which are stricter than those laid down by the relevant Community law.
Such is the case of Paragraph 17 of the Wein-Verordnung and Paragraph 67 of the German Weingesetz, the combined provisions of which limit the use of the Bocksbeuţel bottle and provide penalties for any infringement of that rule and which, consequently, restrict access to the market in a way which is neither provided for nor authorized by the provisions of the common organization of the market in wine.
The aforementioned regulations give in minute detail all the rules applicable to labelling, provisions to which the Court of Justice ascribes decisive importance with regard to guaranteeing fair trading and consumer protection, as it decided in its judgment of
In conclusion, the Commission believes that it must be admitted that the present rules of Community law are exhaustive and that there is no room for internal rules designed to protect the goods in question.
It is therefore only at the level of Community law that provisions, in addition to those in force relating to the
In the opinion of the Commission, the Member States therefore are no longer competent to adopt or to retain in force provisions on the use of containers which enable wines to be distinguished with regard to their quality or origin.
It takes the view that, according to the case-law of the Court (judgment of
The Commission points out that Paragraph 17 of the Wein-Verordnung, according to the interpretation which the national court seeks to give it and which, moreover, may not be in conformity with that of the Bundesgerichtshof, is also applicable to wine originating from other Member States put up in bottles which closely resemble the That provision therefore imposes a marketing prohibition on a foreign producer who wishes to export wine contained in bottles of that type to the Federal Republic of Germany. Other Member States, in particular Italy, authorize the distribution of wine contained in such bottles whatever its origin. From this the Commission concludes that producers in those Member States, in order to be able to market their wines in the Federal Republic of Germany, must therefore provide a special presentation for the German market. Such an obligation to use a special bottling procedure involves additional costs for those producers. That excess cost may be of such a nature as to lead them to refrain from exporting to that country and to lead to a partitioning of the German market. The Commission adds that, by virtue of Article 30 of the Treaty, Member States are not free unilaterally to lay down rules for the presentation of wine imported from other Member States which have an effect equivalent to a quantitative restriction upon imports. Referring to the case-law of the Court (judgments of The Commission then undertakes an examination of the question whether overriding requirements connected with fair trading and with the protection of the consumer against abuses may justify the adoption of the provision in question. It emphasizes that although a Member State may lawfully take action to prevent the public from being misled, it is necessary that that concern should not involve the enactment of unilateral measures which unduly restrict the free movement of goods. That would be the case in particular if other less drastic measures would enable the same result to be achieved. The Commission observes on this point that it would suffice to make the labelling of products subject to appropriate conditions in order to achieve the required objective, namely the protection of consumers. In the circumstances of the present case, the Commission is of the view that, even if the bottles concerned in the proceedings against Mr Prantl strongly resemble the traditional The Commission concludes that in those circumstances, neither fair trading nor consumer protection authorizes a Member State unilaterally to establish its own rules relating to the shape of the bottles in which wine is imported from other Member States. The Commission states that the provisions of Article 36 of the Treaty, which are to be strictly interpreted, are not applicable in the present case since fair trading and consumer protection do not come within the exceptions listed in Article 36 but, on the contrary, must be assessed directly in the context of the application of Article 30 (reference to the judgment of the Court of For those reasons the Commission suggests that the questions referred by the national court be answered as follows :
In reply to Question 2 relating to the work carried out and the negotiations undertaken to date with a view to ensuring protection for the Bocksbeutel bottle, the Commission gave a very full summary of the negotiations and other efforts undertaken between 1974 and 1983 with a view to providing protection for that bottle. It concludes that it may be observed that the failure of negotiations on the protection of the Bocksbeutel bottle in 1976, when the prospects of reaching an agreement were good, is attributable to the position taken at that time by the German Government. The subsequent attempts which were made in order to reach agreement, particularly in 1980, demonstrated that the respective positions of other interested Member States had also hardened, so much so that in the meantime it had not been possible to reach a consensus.
The objective of that association is
The use of the Bocksbeutel bottle for a wine of different origin constitutes an infringement of Paragraph 3 of the German Law of
A collective mark may be registered by associations which have legal capacity and which pursue industrial or commercial objectives pursuant to Paragraph 17
Thereafter the collective mark no longer serves to distinguish goods originating from a particular commercial undertaking but to distinguish the goods of all of the members of the association. According to German law that presupposes that the mark constitutes a flat surface, as that law does not provide trade mark protection for three-dimensional figures.
Consequently the Bocksbeutel bottle may not be protected as a bottle but solely as a reproduction presenting a flat surface.
At the hearing on
The Advocate General delivered his opinion at the sitting on
The second subparagraph of Paragraph 23 provides that:
does not constitute a national measure capable of having an appreciable effect on intra-Community trade; applies to national and imported products alike; makes only the use of traditional Bocksbeutel bottles an offence and normally does not therefore affect importers using similar bottles if these are only slightly different from the traditional bottles; and is justified on the grounds of consumer protection and fair trading, as the traditional Bocksbeutel must be regarded as an indirect designation of geographical origin.
or dealers cannot be justified on grounds of public policy, whether or not the legislation carries penal sanctions; nor can they be justified by the protection of industrial and commercial property on the ground that such a bottle is traditionally used by national producers if identical or similar bottles are used in another Member State in accordance with a fair and traditional practice for marketing wines produced in that State.
On those grounds,
THE COURT,
in answer to the questions submitted to it by the Landgericht München II by order of
nor can they be justihed by the protection of industrial and commercial property on the ground that such a bottle is traditionally used by national producers if identical or similar bottles are used in another Member State in accordance with a fair and traditional practice for marketing wines produced in that State.
Mertens de Wilmars
Koopmans
Galmot
Pescatore
Mackenzie Stuart
O'Keeffe
Bosco
Due
Everling
Delivered in open court in Luxembourg on
J. A. Pompe
Deputy Registrar
J. Mertens de Wilmars
President