When European administrative law meets food law

02 December 2014

In Case T-354/13, the General Court has deemed a request to cancel a name entered in the register of protected designations of origin and protected geographical indications ("PGI") as inadmissible as it was not an administrative decision that could be challenged before the Court.

"Kołocz śląski/kołacz śląski" designates a type of Polish cake that is covered by a PGI since the adoption of the Commission Implementing Regulation No 733/2011 which entered into force on the 16th of August 2011.

A German sector organization, named the Central Association of German Artisanal Bakeries (Zentralverband des Deutschen Bäckerhandwerks eV; CAGAB) disagreed with the Polish cake being granted a PGI, and lodged a request to cancel it.  The request was filed before the German Patent and Trade Mark Office ("DPMA") on 1 February 2012.
In this case, the procedure entailed that the claim would be transferred to the German Ministry of Justice, and submitted by the latter to the Directorate-General Agricultural and Rural Development of the EU Commission in order to obtain an opinion on the request.  By letter of 8 April 2013, the Commission informed the German Ministry of Justice that it considered the request inadmissible.

CAGAB was informed of this opinion, and on 4 July 2013 lodged an application for annulment of the EU Commission's alleged decision with the General Court.
In a judgment of 10 September 2014, the General Court however dismissed CAGAB's claim, holding that the challenged act, i.e., the letter of the 8  April 2013, did not constitute an act which the Court is empowered to review the legality of under Article 263 TFEU.  The Court held that the challenged act had only a preparatory character and did not constitute a final decision of the Commission, since it had not yet produced any legal effects for the parties involved.  The Court referred to settled case-law which states "in principle an act is open to review only if it is a measure definitively laying down the position of the Commission […] on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision" (see e.g., Case 60/81, IBM v Commission [1981] ECR 2639, paragraph 10).  Measures of a preliminary or purely preparatory nature cannot be the subject of an action for annulment.

The final decision rejecting the request to cancel the registration of the PGI "Kołocz śląski/kołacz śląski" was taken on 14  November 2013, four months after that the request to annul the decision of admissibility of the Commission was lodged.  On 17 January 2014, the plaintiff filed again an action (T-49/14) to annul this decision, which is still pending.

The case is a reminder that it is of utmost importance to have a clear understanding of what constitutes a final decision in the sense of Article 263 TFEU in order to decide filing an application for annulment before the General Court.  Challenging the right decision helps to avoid  launching proceedings that are bound to fail.