Opinion of Mr Advocate General Van Gerven delivered on 22 February 1989

1 Original language: Dutch.

2 The first of those decisions also concerns certain expenditure for 1982 but in respect of which the Commission expressed reservations in the same year. There is no disagreement between the parties with regard to that question of fact.

3 Point 3.1.16 of the Summary Report for 1983, Doc 1/165/86; in the Summary Report for 1984 and 1985, the Commission refers to the same point in its statement of reasons.

4 Of course, it is not possible to deduce an argument in support of the view that the two types of cheese are different from the mere fact that Padano refers to a part of the Po valley in Italy. Just as Padano refers to the Po valley, Edam and Gouda refer to towns in the Netherlands. None the less, in its judgment of 22 September 1988 in Case 286/86 Deserbais [1988] ECR 4907, the Court recognized as self-evident that Member States other than the Netherlands, and therefore towns other than Edam, could produce Edam-type cheese.

5 In the relevant Community regulations, Parmigiano Reggiano, another type of cheese with an Italian designation of origin, is accorded the same status as Grana Padano. This dispute is not concerned with that cheese and (apart from certain references in the regulations) I do not propose to take it into account. A difference concerning legal status, which the Court is not required to deal with in this case, is the fact that Parmigiano Reggiano in contrast to Grana Padano enjoys protection as a type of cheese and as a designation of origin under the Stresa Convention of 1 June 1951, which has Been signed by a number of Member States including Italy and Denmark (on that Convention, see — most recently — the Court's judgment of 22 September 1988 in Case 286/86 Deserbais [1988] ECR 4907, paragraph 18).

6 OJ, English Special Edition 1968 (I), p. 176.

7 OJ, English Special Edition 1968 (I), p. 251.

8 OJ, English Special Edition 1968 (II), p. 382.

9 For a recent assessment of the Italian legislation, sec: La Villa, in Cohen Jehoram (ed.): Protection of geographic denominations of goods and services 1980, p. 37 et seq., especially at p. 53. The author, like the Commission in this case, refers to Presidential Decree No 1269 of 30 October 1955, published in Gazzetta ufficiale della Repubblica italiana (GURI), 1955, No 295, p. 4401. According to that decree, the designation Grana Padano is reserved, in connection with Law No 125 of 10 April 1954 entitled Tutela delle denominazioni di origine e tipiche dei formaggi (published in GURI, 1954, No 99, p. 1294) and on the initiative of the Comitato nazionale per la tutela delle denominazioni di oricine e tipiche dei formaggi, set up in accordance with Article 4 of that law (see GURI, 1955, No 187, p. 2896), to the types of cheese produced within the territory of the following provinces: Alessandria, Asti, Cuneo, Novara, Tonno, Vercelli, Bergamo, Brescia, Como, Cremona, Mantova, on the left bank of the River Po, Milano, Pavia, Sondrio, Varese, Trento, Padova, Rovigo, Treviso, Venezia, Verona, Vicenza, Bologna, on the right bank of the River Reno, Ferrara, Forlì, Piacenza and Ravenna.

10 Article 2(1)(b), first indent, of Regulation No 1107/68 of the Commission of 27 July 1968 on detailed rules of application for intervention on the market in Grana Padano and Parmigiano Reggiano cheeses provides as follows: the Member States shall take all measures necessary to ensure that... undertakings process only milk originating from their own collection area. According to the Commission's contention, which has not been challenged, that indent refers to Presidential Decree No 1269 of 30 October 1955, mentioned in the preceding footnote, which defines the areas in which Grana Padano must be produced. That decree also lays down a quality standard or the milk to be used (milk which is produced by cows whose basic feed consists of green or preserved fodder, is obtained by milking twice a day and, after it has been allowed to settle, is partially skimmed by hand). The conclusion can be drawn from the existence of that provision concerning the milk to be used and from the definition of designations of origin (denominazioni di origine) in Article 1 of that decree and of type designations (denominazioni tipiche) in Article 2, the sole difference between the two lying in the influence which the production areas (le zone di produzione) are considered to expert on the requirements for designations of origin, that the milk to be used must come from the listed areas. That conclusion is supported by the definitions of denominazioni di origine and denominazioni tipiche in Article 2 of Law No 125, referred to in the preceding footnote, which lays down that the product characteristics which the types of cheese in question must exhibit in order to qualify for a designation of origin are determined primarily by the particular state of the production area, and in order to qualify for a type designation, by specific methods of production.

11 OJ, English Special Edition 1968 (I), p. 234.

12 The last two are Commission Regulation (EEC) No 1654/78 of 14 July 1978 fixing the refunds on milk and milk products exported in the natural state (OJ L 192, 15.7.1978, p. 5) and Regulation (EEC) No 2033/79 of 18 September 1979, bearing the same title (OJ L 235, 19.9.1979, p. 5).

13 Regulation No 2822/79 of 14 December 1979 (OJ L 320, 15.12.1979, p. 20).

14 OJ L 4, 8.1.1982, p. 15.

15 Annex to Commission Regulation (EEC) No 3631/85 of 23 December 1985 amending the nomenclature of goods for the external trade statistics of the Community and statistics of trade between Member States (Nimexe), OJ L 353, 30.12.1985, p. 3, in particular at p. 36.

16 Article 19(1) provides as follows: the general rules for the interpretation of the Common Customs Tariff and the special rules for its application shall apply to the tariff classification of products covered by this regulation; the tariff nomenclature resulting from application of this regulation shall be incorporated in the Common Customs Tariff.

17 No support was in faci provided under the intervention system: supra, point 4.

18 As from the same date other Italian Grana-type cheeses, in particular Grana Veneziano and Grana Lombardo (which, as was stated at the hearing, are said to account for approximately 5% of Italian production), could still qualify only for the lower refund on the same fooling as non-Italian Grana-type cheeses.

19 In order to reinforce its argument a contrario, Denmark refers to the case of Prosciutto di Parma and Prosciutto di San Daniele, two types of ham protected in Italy by a designation of origin for which there is a special system of refunds based on regulations expressly adopted by the Commission and not simply on different tariff headings in an annex (see Commission Regulation (EEC) No 3037/87 of 9 October 1987 fixing the export refunds on pigmeat, OJ L 288, 10.10.1987, p. 13). However, that comparison is not of great value since there is for those products only a system of refunds and not an intervention system.

20 See the judgment of 25 November 1986 in Joined Cases 201 and 202/85 Klensch [1986] ECR 3477, paragraph 21, in which the Court stated that when it is necessary to interpret a provision of secondary Community law, preference should as far as possible be given to the interpretation which renders the provision consistent with the Treaty; in this case regard must be had specifically to the requirement not to discriminate between producers within the Community which is laid down in Article 40(3) of the EEC Treaty.

21 A possible factor here, as the Danish Government has itself pointed out in iti application, is that in the dairy sector in Denmark there is also an intervention system which refers to national quality or approval standards for a certain type of butter (lurmærket).

22 In that connection reference may be made to Article 33 of Regulation No 804/68 which permits by way of a general provision (that is therefore also applicable to export refunds) appropriate account to be taken at the same time of agricultural and commercial policy objectives. However, I can find little or no basis in the case-law of the Court to substantiate the existence of an intrinsic connection, as emphasized by the Commission, between intervention mechanisms ana refunds. The Court does acknowledge the existence of a connection between export refunds and import levies with a view to combating abuses (see the judgment of 7 July 1981 in Case 158/80 Rtwe [1981] ECR 1805, paragraph 22). However, the Court does not acknowledge the existence of any such connection between refunds and monetary compensatory amounts (see the judgmcnt of 5 March 1980 in Case 38/79 Butler- und Eitrzenlnle Nordmark[1980] ECR 643, paragraphs 7 to 9). Some support for the view that there is a link between intervention mechanisms and refunds is provided by paragraph 10 of the Court's judgment of 4 March 1980 in Case 49/79 /W[1980] ECR 569: the prices obtained by individual producers are indirectly determined by the combination of intervention in the market ano the arrangements for the Community's external trade ... .

23 Notwithstanding the preparatory work carried out at the Commission's behest (Eugen Ulmer: The law on unfair competition in the Member States of the EEC, Part I: comparative survey, 1965, Study undertaken at the request of the Commission of the European Communities by the Max-Planck-Institut für ausländisches und internationales Patent-, Urheber- und Wettbewerbsrecht, München, in particular No 432), no harmonization has been achieved with regard to designations of origin, indications of provenance and so on (see Written Question No 250/86, OJ C 290, 17.11.1986, p. 36). Designations of origin exist in the legal systems of some Member States, and to a lesser extent or not at all in that of others (see in that regard: Jean Pierre Cochet: La notion d'appellation d'orìgine en droit communautaire, 1985, and Klaus-Jürgen Kraatz: Der Schutz geographischer Weinbezeichnungen im Recht der Europäischen Gemeinschaften, 1980).

24 Wine constitutes an exception to the lack of harmonization of the laws on designations of origin. As a supplement to the common organization of the market in wine (as most recently regulated by Council Regulation (EEC) No 337/79 of 5 February 1979, OJ L 54, 5.3.1979, p. 1), which encompasses the pricing and intervention system for table wine, the Council adopted on the same day Regulation (EEC) No 338/79 laying down special provisions relating to quality wines produced in specified regions (OJ L 54, 5.3.1979, p. 48); according to Article 16 of that regulation, Community law accords protection to traditional designations such as —in the case of Italy — denominazione di origine controllata and denominazione di origine controllata e garantita. The Court's judgment of 12 July 1984 in Case 49/83 Luxembourg v Commission [1984] ECR 2931, paragraph 13 deals with the difference between the systems established by those two regulations.

25 Judgment of 7 February 1984 in Case 237/82 Jongeneel [1984] ECR 483, paragraph 13.

26 Judgment of 22 September 1988 in Case 268/86 Deserbais [1988] ECR 4907, paragraph 11 of the decision.

27 Apart from the two judgments referred to in the two preceding footnotes, reference must be made in this connection to the Court's judgment of 20 February 1975 in Case 12/74 Commission v Germany [1975] ECR 181.

28 Judgments of 13 July 1978 in Case 8/78 Milac (1978] ECR 1721, paragraph 18, second pan, of 13 December 1984 in Case 106/83 Sermide [1984] ECR 4209, paragraph 28, and of 20 September 1988 in Case 203/86 Spain v Council [1988] ECR 4563, paragraph 25.

29 Judgment of 2 February 1988 in Case 61/86 United Kingdom v Commission [1988] ECR 431, paragraph 14.