Consorzio Del Prosciutto Di Parma v. Asda Stores Limited and Others

A court of final instance must seek a preliminary ruling where the resolution of proceedings depends upon the interpretation or validity of Community instruments and the answer is not acte clair. A national court has no jurisdiction to declare an act of a Community institution invalid.

Where a protected designation of origin is registered by reference to a product specification, uncertainty about whether the resulting Community right restricts the subsequent slicing, repackaging and relabelling of an authentic product may require a reference. The reference may encompass direct enforceability, the scope of the specification, exhaustion of rights, proportionality and whether unpublished restrictions are sufficiently accessible.

The Parma Ham Association and a representative producer sought injunctions restraining Asda Stores Ltd and Hygrade Foods Ltd from selling sliced ham as Parma ham. The ham was authentic and had been produced and branded in Parma, but Hygrade sliced and packaged it in Wiltshire without the ducal-coronet mark required by the product specification and Italian rules.

A deputy High Court judge held that the appellants had no enforceable European law right, and the Court of Appeal affirmed that decision. The appeal concerned whether Council Regulation (EEC) No 2081/92, read with Commission Regulation (EC) No 1107/96 and the Parma ham specification, created a valid and directly enforceable Community right restricting such sales.

1. Disposition. The House unanimously directed that a question be referred to the European Court of Justice. Lord Hoffmann formulated a general question asking whether the Council and Commission Regulations, read with the Parma ham specification, created a valid Community right directly enforceable to restrain the sale as Parma ham of authentic ham subsequently sliced, packaged and labelled outside the specification. Lord Nicholls, Lord Hope, Lord Clyde and Lord Scott agreed that a reference was necessary.

2. Lord Hoffmann's view of direct enforceability. Lord Hoffmann considered that the registered designation conferred an exclusive Community right enforceable in national courts. Articles 4(1) and 8 of Council Regulation (EEC) No 2081/92 supplied a clear prohibition, while articles 10 and 11 regulated authorised producers and did not exhaust the means of enforcing the right against outsiders. Lord Hope agreed with Lord Hoffmann's speech, but both concluded that this interpretation was not acte clair.

3. Scope of the specification. Lord Hoffmann considered that the specification's labelling rules, including the connected slicing and packaging controls, defined the protected product. Those controls allowed authenticity to be guaranteed after a ham had been sliced and pre-packaged. In his view, the respondents were infringing a valid Community right.

4. Transparency and validity. Lord Hoffmann regarded the specification as sufficiently ascertainable and the transparency challenge as an unarguable attack upon the validity of the Community scheme. He also considered the controls neither ultra vires nor manifestly disproportionate. Lord Scott disagreed that the transparency objection was unarguable. He considered that citizens should be able to arrange their affairs by reference to accessible laws and that supplying the specification during litigation did not cure its prior inaccessibility.

5. Lord Scott's additional reasons for reference. Lord Scott considered it uncertain whether the specification governed alterations made after a compliant product had left the authorised producer. He also regarded the Community doctrine concerning exhaustion of intellectual property rights and repackaging as potentially relevant. The Court of Justice should therefore determine whether an authentic and compliant product could retain its designation after unauthorised slicing, repackaging or both.

1. House of Lords: Unanimously referred a question of Community law to the European Court of Justice and did not finally determine the appeal: [2001] UKHL 7.
2. Court of Appeal: Affirmed the deputy High Court judge's decision that the appellants had no enforceable European law right. No citation is stated in the judgment.
3. High Court, Chancery Division: Mr Lawrence Collins QC, sitting as a deputy High Court judge, refused the claimed protection under European law. No citation is stated in the judgment.