Production criteria protected in landmark ham and cheese cases

In Consorzio del Prosciutto di Parma and Salumificio S Rita SpA v Asda Stores Ltd (the Parma ham Case) and Ravil SARL v Bellon Import SARL (the Grana Padano Case), the European Court of Justice (ECJ) has found that the production requirements specified to ensure the quality and reputation of a product registered with a protected designation of origin (PDO) can, in some instances, justify a restriction on the free movement of goods in the European Union.

Pursuant to Council Regulation 2081/92 and Commission Regulation 1107/96, PDOs can be registered with the EU Commission, specifying the materials, processes, techniques and locations required for a product to be granted the designation. For businesses, PDOs constitute industrial and commercial property rights that protect those entitled to use them against improper use by third parties seeking to profit from the reputation that the PDO has acquired. For consumers, the PDO is a guarantee that the product in question comes from a specified geographical area and displays particular characteristics.

Both Parma ham and Grana Padano are registered PDOs in Italy. The specifications for both require that in order to be granted the PDO, the products must, among other things, be sliced or grated and packaged in the region of production. In the Parma ham Case, the fact that the defendants - Asda Stores and Hygrade Foods Ltd - were slicing and packaging Parma ham in the United Kingdom and not Italy meant that the ham could not carry the PDO. In Grana Padano, Ravil was grating and packaging Grana Padano in France and, as such, could not lawfully use the PDO. The defendants - Bellon Import and Biraghi SpA - contended that limitation on the use of the PDO amounted to a quantitative restriction on exports within the meaning of Article 29 of the EC Treaty.

In both cases, the ECJ held that the restrictions were a breach of Article 29, but the restrictions could be justified on the grounds that the PDO specifications include express references to technical procedures that were being infringed. The procedures constitute important operations which, if not carried out, may damage the quality and authenticity and therefore the reputation of the PDO in question. Thus, the court ruled against the defendants who had not complied with the strict letter of the PDO specifications.

However, since the Italian legislation implementing the above-mentioned PDO regulations (which contain the specifications) was not widely available in the Italian language - and was not available at all in English - the House of Lords in Parma ham referred a question to the ECJ as to whether legislation that is only published in one language and not easily accessible meets the EU transparency requirement, namely that an EU citizen should have at his/her disposal cheap and simple access to a legal text so as to know his/her rights.

The ECJ found that the Italian legislation was not transparent, and that by virtue of the principle of legal certainty, adequate publicity must be given to any prohibitions (eg, the express details of the specifications) that parties seek to rely upon in national courts.

Rohan Massey, McDermott Will & Emery, London