Northern Foods Plc v The Department for Environment, Food and Rural Affairs & Anor

Under Council Regulation 2081/92, the geographical area specified for a protected geographical indication need not be identical to the specific place from which the product historically originated. Articles 2.2(b) and 4.2 permit those concepts to differ, so the defined area may be geographically wider than the place of origin where the specification establishes the required link. A Member State must check that an application is justified before forwarding it to the Commission. The national court may review that decision for legality. Where the court reaches a firm conclusion on the Community-law issue, a reference is not required merely because an alternative interpretation is arguable.

Northern Foods challenged Defra’s decision to forward the Melton Mowbray Pork Pie Association’s application for registration of “Melton Mowbray Pork Pie” as a protected geographical indication under Council Regulation 2081/92. The proposed geographical area extended beyond Melton Mowbray into parts of several counties. The central issue was whether the defined geographical area under Articles 2.2(b) and 4.2 had to be identical to the specific place or geographical origin of the product.

The claim was heard as a rolled-up application for permission and substantive judicial review. The court also considered whether a reference to the European Court was appropriate.

1. Judicial review and statutory duty. Defra was required to check whether the application was justified before forwarding it to the Commission. The national courts were entitled to review the legality of that decision. The court applied the reasoning in Cark Kűhne GmbH & Co.KG and Others v Jűtro Konservenfabrik GmbH & Co.KG [2001] ECR I-9517.
2. Construction of the Regulation. The terms “originating”, “originate” and “origin” referred to the historical origin of the pork pies. However, the “defined geographical area” was not necessarily the same as the “specific place” or geographical origin. The comparison between Articles 4.2(d) and 4.2(f) supported the conclusion that the Regulation contemplated two different concepts. The area could therefore be wider than the place of origin.
3. The examples of existing registrations and Commission practice did not prove that those registrations were correct, but showed that the claimant’s construction was novel and had not previously been accepted. The issue of genericity under Article 3 was not raised and did not arise for decision.
4. The court had reached a firm conclusion on the merits and therefore declined to make a reference under Article 234 of the EC Treaty. The application for permission was granted, but the substantive application for judicial review was dismissed. Permission to appeal was refused. Defra and the interested party were awarded their costs. In deciding the latter order, the court applied the principle in Bolton Metropolitan District Council v the Secretary of State 1 Weekly Law Reports 1176 that an interested party may recover costs where it has a separate interest requiring representation.

The judgment describes an earlier judicial review which was compromised between Northern Foods and Defra. This claim concerned Defra’s subsequent decision to forward the application to the Commission.

• High Court (Administrative Court): permission granted at the rolled-up hearing; judicial review dismissed. Permission to appeal refused.