Category Archives European Courts

The Court of Justice for the European Union has held that techniques to edit an organism’s genes without inserting foreign DNA—such as CRISPR/Cas9—result in the creation of genetically modified organisms (GMOs) subject to the EU GMO Directive. Confédération paysanne v. Premier ministre, No. C-528/16 (CJEU, entered July 25, 2018). The plaintiff, a French agricultural union, argued that French legislation exempting organisms produced with mutagenesis techniques such as CRISPR from GMO regulation conflicts with EU legislation governing GMOs. The court found that the mutagenesis techniques “alter the genetic material of an organism in a way that does not occur naturally, within the meaning of that provision. It follows that organisms obtained by means of techniques/methods of mutagenesis must be considered to be GMOs within the meaning of [the GMO Directive].”

The Court of Justice of the European Union (CJEU) has held that the name of German whisky Glen Buchenbach may mislead consumers into believing the product is manufactured in Scotland. Scotch Whisky Assoc. v. Klotz, No, C-44/17 (CJEU, entered June 7, 2018). CJEU clarified EU law on registered geographical indications, holding that an "indirect commercial use" can occur if the product at issue includes an element either identical or phonetically and visually similar to the registered indication but does not occur if the "element is liable to evoke in the relevant public some kind of association with the indication concerned or the geographical area relating thereto." CJEU remanded the case to German court for a final determination, which may consider a magistrate's preliminary finding that "'glen' does not have a sufficiently clear and direct link with the protected geographical indication in question."

An EU magistrate has returned a preliminary ruling in a dispute between the Scotch Whisky Association and a German manufacturer of a spirit called “Glen Buchenbach” that may hinder the trade group's claim of infringement of the registered geographical term “Scotch Whisky.” Scotch Whisky Ass’n, The Registered Office v. Klotz, No. C-44/17 (opinion of advocate general issued February 22, 2018). The trade group argues that the use of the Gaelic term “Glen” is both an indirect commercial use and an evocation of the registered geographical indication, amounting to a false and misleading indication of origin of the product. Noting that at least three whiskies produced outside of Scotland include "glen" as part of their names, the magistrate found that "‘Glen’ does not have a sufficiently clear and direct link with the protected geographical indication in question.” The indirect use of a registered geographical indication, the court found, “requires the disputed…

An Italian appeals court has reportedly voided a fine of €550,000 previously levied on Lidl Stiftung & Co. KG for selling bottles of mislabeled olive oil. The court ruled that Italy’s Antitrust Authority (AGCM) failed to explain why the company's actions were negligent when the agency imposed the fine, which resulted from tests determining that bottles of Primadonna olive oil labeled as extra virgin contained only virgin olive oil. Although the Administrative Court of Lazio confirmed the product only met standards for virgin olive oil, it also determined that Lidl had demonstrated a normal degree of diligence in its control measures and verification systems.

The European Court of Justice has ruled that “Champagner Sorbet,” a frozen drink product made in Belgium and sold in Aldi stores, does not infringe the protected designation of wines made in the Champagne region of France. Comité Interprofessionel du Vin du Champagne v. Aldi Süd Dienstleistungs-GmbH & Co. OHG, No. C-393/16 (E.C.J., entered December 20, 2017). The Champagne producers group won an initial injunction, but an appeals court in Germany referred the issue for a preliminary ruling. Among its ingredients, Champagner Sorbet contains 12 percent Champagne. The court ruled that use of part of a protected designation of origin (PDO) term for the name of a product is not “misuse, imitation or evocation” if the product contains the protected ingredient. Here, the court found, Aldi used part of the PDO to “claim openly a gustatory quality connected with it.” As long as the product has, “as an essential characteristic,…

Greek officials have reportedly charged seven people with criminal fraud and money laundering related to the sale of adulterated olive oil. The group allegedly added green dyes to sunflower seed oil then sold it off-market as extra-virgin olive oil. Most of the oil was sold in Greece or exported to Germany and other EU countries using invoices that were later destroyed. The Greek police reportedly became aware of the sale of adulterated oil when olive oil producers told the Hellenic Food Authority that their producer codes were being used on packages and products they did not sell.

The Court of Justice of the European Union (ECJ) has issued a ruling that may result in price-fixing fines of up to $5 million for 18 endive producers alleged to have created a “complex and continuous cartel” intended to enforce minimum producer prices. President of the Autorité de la concurrence v. Assoc. des producteurs vendeurs d’endives, No. C-671/15 (E.C.R., entered November 14, 2017). The dispute began in 2007 after French officials for consumer affairs and fraud prevention referred an investigation of industry practices to the French Competition Authority (FCA). After an appeals court reversal holding that the producers had not engaged in price-fixing, FCA brought an appeal in cassation; that court stayed proceedings and asked the ECJ for a preliminary ruling on the matter. ECJ held that practices related to the collective fixing of prices, control of products or exchanges of strategic trade information violate the Treaty on the Functioning…

Scotland’s Crown Office reportedly will not prosecute Errington Cheese for the death of a three-year-old linked to an outbreak of E. coli in 2016. A March 2017 Health Protection Scotland report apparently found Errington’s unpasteurized Dunsyre Blue cheese to be the “likely” source of the outbreak and the cause of the child’s death. The Crown Office reportedly concluded that the child died from complications of an E. coli infection, but it decided not to pursue criminal action. After the outbreak, a local council government banned the sale of some of Errington’s artisanal sheep’s-milk cheese, and the company reportedly plans to challenge the ban in early 2018.

The European Court of Justice (ECJ) has ruled that all online and mail-order sellers of organic products—including small producers and sellers that would otherwise be exempt from the requirements—must obtain sales permits to avoid fraud and mislabeling and maintain “consumer confidence” in products labeled as organic. Kamin und Grill Shop GmbH v. Zentrale zur Bekampfung unlauteren Wettbewerbs eV, No. C-289/16 (ECJ, entered October 12, 2017). Kamin, a mail-order and internet business, began marketing spice mixes in 2012 that it labeled as organic. A German consumer advocacy group challenged the sales, and the German Bundesgerichtshof (Federal Court of Justice) referred the case to ECJ. The court found that in the case of online or mail-order retail sales, product storage and delivery by intermediaries created a risk of re-labeling, exchange or contamination so the “direct” sales exemption for small, face-to-face sellers should not be construed broadly.

The European Court of Justice (ECJ) has determined that member states cannot invoke the “precautionary principle” to restrict the cultivation and sale of crops developed from genetically modified organisms (GMOs) if the European Commission has not determined that the crops “are likely to constitute a serious risk to human health, animal health or the environment.” Case C-111/16, Italy v. Fidenato (E.C.J., entered September 13, 2017). The ruling responded to a request from an Italian court overseeing the prosecution of three farmers accused of growing GMO maize in violation of Italian law. The district court judge stayed the criminal proceedings to ask the ECJ whether Italy had the authority to ban the crop despite EC approval of its cultivation and sale. In 2013, Italy asked the European Commission to adopt emergency measures allowing member states to apply a “precautionary principle” and implement risk-management measures where “the possibility of harmful effects on…

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