• In the case of Case C-309/89 Codorniu [1994] ECR I-1853 2, the intellectual property right affected by Article 173 of the EEC Treaty (now Article 263 TFEU) was found to be of individual concern. The conditions of admissibility of action were considered here.

Facts of Case C-309/89 Codorniu [1994] ECR I-1853 2

  • The regulation under Article 173 of the EEC Treaty (now Article 263 TFEU) made it so that the use of the term ‘crémant’ for sparkling wines was a right reserved for when they were manufactured in the Member States of France or Luxembourg
  • Spanish manufacturer Codorniu held a trademark which included the word ‘crémant’, this regulation would prevented their use and so, they challenged the validity of the Article regulation

Issues in Case C-309/89 Codorniu [1994] ECR I-1853 2

  • Firstly, was the claim admissible? Did Codorniu have a claim the Court should hear?
  • Secondly, if yes, should the regulation be allowed or was this unjust to the Spanish manufacturer?

Held by the European Court of Justice

  • Claim is admissible as the regulation was of individual concern to Codorniu, and after deliberation it was held that the contested provision was to be void.

Findings of the Court

To be able to give judgment, the Court of Justice had to see whether the claim should be allowed; the Council (arguing against) believed it to be inadmissible. However, the Court found there was an admissible claim – there was individual concern.

  • “Although it is true that according to the criteria in the second paragraph of Article 173 of the Treaty the contested provision is, by nature and by virtue of its sphere of application, of a legislative nature in that it applies to the traders concerned in general, that does not prevent it from being of individual concern to some of them” [19]

This claim differentiated from other traders as Codorniu was prevented from using their trademark – a specific right

  • “By reserving the right to use the term “crémant” to French and Luxembourg producers, the contested provision prevents Codorniu from using its graphic trade mark.” [21]
  • “It follows that Codorniu has established the existence of a situation which from the point of view of the contested provision differentiates it from all other traders.” [22]

Applying context, the European Court of Justice found that the regulation was unfair on the Spanish manufacturer who’s use was traditionality

  • “It is common ground that the first national measures providing in France and Luxembourg for the use of the term “crémant” as a “traditional description” were adopted in 1975. Codorniu, however, has been traditionally using its graphic trade mark containing the words “Gran Crémant” to designate a quality sparkling wine psr since at least 1924.” [31]
  • “In those circumstances the reservation of the term “crémant” for quality sparkling wines psr manufactured in France and Luxembourg cannot validly be justified on the basis of traditional use, since it disregards the traditional use of that mark by Codorniu.” [32]

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