On 21 September 2012, the Belgian Council of State - Belgium's highest administrative Court - rejected an application for annulment of a Walloon Governmental Decree of 7 October 2010 (the "Decree") that granted a protected geographical indication ("PGI") to several types of dried sausages sold under the names “Saucisson d’Ardenne”, “Petit Saucisson d’Ardenne”, “Collier d’Ardenne”, and “Pipe d’Ardenne”. According to the Council of State's decision, only dried sausages produced in the Ardenne region can be named “Saucisson d’Ardenne”.
The Decree was challenged by two Flemish companies, TerBeke-Pluma and Guina. Both companies manufacture dried sausages in Flanders and commercialize their products under the name “Saucisson d’Ardenne”. They claimed that the name “Saucisson d’Ardenne” had become generic and did not fulfil the requirements to qualify as a PGI. While Guina's application is still pending, the Council of State's Decree of 21 September 2012 rejected TerBeke's allegations on a number of interesting grounds.
First, the Council of State recalled that a name that has become generic may indeed not be registered as a PGI. Pursuant to Article 3.1 of Council Regulation n°510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, a name should be qualified as generic when that name has become the common name of an agricultural product or a foodstuff in the Community. In determining whether this is the case requires all relevant factors account. These may include consumer perception of the name, the existing situation in the Member States and areas where the product is consumed, as well as any relevant national or Community laws.
Having carried out such an analysis in the present case, the Council of State concluded that the denomination “Saucisson d’Ardenne” has not become generic in the sense of Article 3.1 for several reasons:
i. There is a historical link between the Ardenne region and "Saucisson d'Ardenne", notably due to the influence of the Ardenne climate on the characteristics of the product;
ii. This link is not broken by the fact that it is possible to reproduce artificially the conditions in which a local product is originally manufactured, such that it is irrelevant that, (i) trainee butchers in Flemish schools receive an introduction to the manufacture of "Saucisson d'Ardenne", and (ii) that 90% of "Saucisson d'Ardenne" are claimed to be manufactured outside the Ardenne region (TerBeke also failed to submit any item of evidence to support this assertion); and
iii. The "Saucisson d’Ardenne" shares a close bond with the "Jambon d'Ardenne", which has benefited from the protection of a designation of origin since 1974.
Confirming that a reputation linked to a geographical origin is also a relevant criterion for assessing and determining the recognition of a PGI, the Council of State further reasoned that the number of (small) producers established in Ardenne and the reputation of the salted meats produced in this area must prevent the denomination "Saucisson d'Ardenne" from being qualified as generic.
Finally, the Council of State confirmed that the way the denomination is perceived by the consumers is also relevant to assess the generic character of a denomination. In this case, the fact that consumers consider the link with the Ardenne region as a criteria in is choosing the product was thus held as a further indication that the denomination has become generic.
For the same reasons, the Council also dismissed TerBeke's claim that the denomination "Saucisson d'Ardenne" does not meet the requirements for a PGI classification under Article 2.1.b of Regulation n° 510/2006. This Article provides that a "geographical indication" designates the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff, that: (i) originates in that region, specific place or country; (ii) possesses a specific quality, reputation or other characteristics attributable to that geographical origin; and (iii) is produced and/or processed and/or prepared in the defined geographical areas.
Guina's application will be examined in the coming weeks. If the Council of State confirms its earlier decision (which seems likely given that both applications are being examined by the same Chamber of the Council of State), the file will then be sent to the European Commission for the definitive registration of "Saucisson d'Ardenne" as a PGI (European phase). At that stage, Flemish companies will no longer be allowed to produce "Saucisson d'Ardenne" in Flanders.
Belgian Council of State, 21 September 2012, case nr. 220.695, ICIP, 2012, nr. 1, page 18.
The Council of State handed down a first decision in this matter on 22 January 2013 (decision n° 22.180 available at www.raadvst-consetat.be). This judgment does not rule on the merits of the case and has reopened the debates.