The Council of State in France definitively rejects illicit evocations of ‘Camembert de Normandie,’ whose name is exclusively reserved for cheeses registered as AOP(Appellation d’origine contrôlée, or PDO, PDO). (1)
This confirms the ban on indicating the geographical reference ‘Fabriqué en Normandie‘ (‘Made in Normandy‘) on the label of other Camembert (not AOP/DOP/PDO), as it may be misleading to consumers. A defeat for Lactalis and other large dairies.
1) ‘Camembert de Normandie AOP’ or Camembert ‘Fabriqué en Normandie‘?
Camembert de Normandie AOP is a cheese made from raw milk from cows raised exclusively in the production area and under the conditions set out in the specification for the EU-wide protected designation of origin. (2)
Some large dairies in turn produce an industrial version of Camembert, in the same region. However, without submitting to the production specification or registering in the AOP quality system.
Camembert ‘Fabriqué en Normandie‘ therefore means only that the dairy is located in one of the region’s five departments, regardless of the origin of the milk. Which is often pasteurized rather than processed raw.
2) Reg. EU 1151/2012, on quality schemes for agricultural products and foodstuffs
‘Registered names [such as PDO and PGI, ed.] are protected against:
(a) any direct or indirect commercial use of a registered name for products that are not the subject of registration, if those products are comparable to the products registered under that name or the use of that name enables the exploitation of the reputation of the protected name, including when such products are used as an ingredient,
(b) any usurpation, imitation, or evocation, even if the true origin of the goods or services is indicated or if the protected name is a translation [e.g., Parmesan, ed.] or is accompanied by expressions such as “style,” “type,” “method,” “in the manner,” “imitation,” or the like, even where such goods are used as an ingredient,
(c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product used on the wrapping or packaging, in advertising material or on documents relating to the product in question, as well as the use, for packaging, of containers that are likely to mislead as to its origin,
(d) any other practice likely to mislead the consumer as to the true origin of the product‘ (reg. EU 1151/12, Article 13.1).
DGCCRF, fraud repression intervention
The DGCCRF – Direction générale de la concurrence, de la consommation et de la répression des fraudes, at the French Ministry of the Economy – published a decision on 9.7.20 where it clarified that:
- the use of the words ‘Fabriqué en Normandie‘ on a Camembert cheese that does not comply with the specification of the AOP (PDO) may constitute a violation of reg. EU 1151/2012, (3) Article 13, as well as the Intellectual Property Code (Article L. 722),
- the above rules apply to both products placed on the EU market and those exported to countries with reciprocity agreements with the EU. Indeed everywhere, it is worth adding, after the 14.7.22 ruling of the European Court of Justice (ECJ) on the fake ‘Made in Denmark‘ feta, (4)
- operators concerned were therefore enjoined to adjust their labels accordingly, by 31.12.20. With a call to notify the relevant authorities of ‘the status of remaining label stock, as well as packaging purchase invoices.’
3) France, Council of State. Failed evocations
The Union of Camembert Producers of Normandy-where the presence of the giant Lactalis stands out-has appealed to the Council of State. Seeking the annulment of the decision 9.7.20 of the Fraud Repression Department (DGCCRF), on the grounds of excess of power, and the recognition of the possibility of bearing the words‘made in Normandy‘ on cheeses not registered as AOP (PDO).
However, the Council of State in Paris was strict in its ruling, citing both reg. EU 1151/2012, both to the French Rural Code. Where it is stated that ‘The use of indications of origin or provenance shall not be such as to:
- Misleading the consumer about the characteristics of the product,
- misappropriate or weaken the reputation of a name recognized as an appellation of origin or registered as a geographical indication or traditional specialty guaranteed, or more generally,
- undermine, particularly through the misuse of a geographical indication in a sales designation, the specificity of the protection reserved for designations of origin, geographical indications and traditional specialties guaranteed‘ (Rural Code, Article L. 643-2, first paragraph).
3.1) Address of the responsible operator
The French administrative judge also made it clear that the prohibition on indicating the words ‘Fabriqué en Normandie‘ in no way prevents the producers concerned from appropriately indicating the name and address of the responsible operator. (5)
The plaintiff union is therefore not entitled to argue, according to the State Council, that the DGCCRF’s decision does not comply with the consumer information requirements for food products set forth in Reg. EU 1169/11 (Food Information Regulation).
4) Conclusions
‘In light of the above, and in the absence of serious doubts about the interpretation of the Union law invoked, there is no need to refer a question to the Court of Justice of the European Union for a preliminary ruling.’
Dura lex sed lex
. In the European Union, operators have no room to usurp or evoke registered protected designations of origin (PDOs) and protected geographical indications (PGIs). Beyond rare exceptions (6,7).
Dario Dongo
Notes
(1) Conseil d’État. Judgment 22.7.22 no. 447234, https://www.conseil-etat.fr/fr/arianeweb/CE/decision/2022-07-22/447234 in the case Syndicat normand des fabricants de camembert v. DGCCRF (direction générale de la concurrence, de la consommation et de la répression des fraudes), ministère de l’économie
(2) The specification for Camembert de Normandie AOP (PDO) also prescribes a six-month grazing period for the cows, which must be 50 percent Normandy breed, and a special forming of the cheese processing boiler
(3) Dario Dongo. PDO, EU Court of Justice clarifies ban on evocations. GIFT (Great Italian Food Trade). 3.5.19
(4) Marta Strinati. Counterfeit feta, the Court of Justice condemns Denmark. GIFT (Great Italian Food Trade). 19.7.22
(5) Responsible operator address, lawyer Dario Dongo replies. FARE (Food and Agriculture Requirements). 15.5.20
(6) Dario Dongo. DOP ingredients. GIFT (Great Italian Food Trade). 2.1.18
(7) Dario Dongo. Balsamic vinegar of Modena, green light to imitations from EU Court of Justice. GIFT (Great Italian Food Trade). 5.12.19
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
