Foreign cheese producers may not challenge protection of EMMENTALER

The Swiss Federal Supreme Court has dismissed appeals by German and French parties of a decision to grant the appellation EMMENTALER for cheese protected status in Switzerland (Cases 2A.159/2006 and 2A.153/2006).

The Emmentaler cheese, with its typical holes, derives its name from the Emmental valley in the Swiss canton of Berne. On July 26 2002 the Federal Office for Agriculture granted the association Emmentaler Switzerland's request to register EMMENTALER as a protected appellation of origin in Switzerland.

Various foreign dairy unions or cheese producers challenged the decision, but the Federal Office for Agriculture dismissed their oppositions. The Board of Appeals of the Federal Department of Economic Affairs subsequently held that these foreign parties were not entitled to appeal the decision further. However, one German and two French parties appealed this latter decision to the Swiss Federal Supreme Court, which confirmed the previous decision.

According to the court, the mere fact that one party took part in opposition proceedings does not automatically entitle that party to appeal the opposition decision. Moreover, according to the Swiss Law on Administrative Proceedings, in order to be entitled to appeal a party must be aggrieved by the impugned decision and have legal interest to reverse or abolish the decision.

The court found that the union of German milk producers did not produce any cheese or export cheese to Switzerland. Therefore, it was questionable whether this party was aggrieved. Furthermore, one of the French cheese producers did not export or sell any cheese in Switzerland. Accordingly, the court held that it was not more aggrieved than any other foreign cheese producer. The second French appellant, a private association made up of three associations of milk producers, was not entitled to file an appeal either. The court held that even though the appellant purported to sell 2.7 tonnes of cheese in Switzerland in 2003, this amount was insignificant when compared to the 250,000 tonnes of Emmentaler cheese produced each year by just one of the three associations.

The court went on to say that Switzerland already made concessions with regard to the use of the EMMENTALER denomination. Foreign cheese producers of certain countries may use the name EMMENTALER on cheese produced outside Switzerland, as long as the product also clearly displays the country of origin in the same font, size and colours as those used for the denomination EMMENTALER. This was stipulated in a bilateral agreement between Germany and Switzerland concerning the protection of appellations of origin and other geographical indications. Furthermore, the Stresa Cheese Agreement (presently valid in Switzerland, Austria, Denmark, France, Italy and the Netherlands), explicitly regulates the use of appellations of origin and denominations of cheese, is also applicable.

Accordingly, the court held that under prevailing bilateral agreements it was open to German cheese producers to name their cheese German Emmentaler or Allgäuer Emmentaler and to sell it in Switzerland. The decision to grant protected appellation of origin status to EMMENTALER in Switzerland did not change anything for German cheese producers and exporters, as they were not allowed to sell Emmentaler cheese produced in Germany without a mention of the country of origin. Similarly, the court held that the French producers could still sell their cheese under the name Emmental français in accordance with the Stresa Cheese Agreement.

The decisions emphasized two important points. Firstly, the entry of the protected appellation of origin (PAO) EMMENTALER into the Swiss PAO register does not affect foreign producers or exporters of cheese as they were not allowed to produce and offer cheese under the name Emmentaler alone. Secondly, a foreign enterprise in a member country of the Stresa Cheese Agreement or a corresponding bilateral agreement is still allowed to produce Emmentaler cheese and name it accordingly, but it must always clearly indicate the country of origin of the cheese. However, the court did not consider what would happen if the international and bilateral agreements were to be terminated.

Marco Bundi, Meisser & Partners, Klosters