After four years, Parma ham producers finally got a result in their battle against Asda’s sale of Parma ham which was not sliced and packaged in the Parma region. But a final twist favoured the UK retailer.
Who: ASDA Stores Limited and Consorzio Del Prosciutto Di Parma
Where: The European Court of Justice
When: May 2003
The long-running saga of ASDA's fight to be able to slice and package Parma Ham in the UK came to an end in the European Court of Justice. The proceedings had originally started in November 1997. The Parma Ham producers' beef was that the ham should be sliced and packaged in the Parma area. This, they said, was part of the specification lodged with the relevant EU authorities when "Prosciutto Di Parma" achieved "Protected Designation of Origin" status.
However, the "slicing and packaging in Parma" requirement was not apparent from the central register of PDOs kept by the European Union. Accordingly, Tesco defended on the basis that they could not be bound by a particular part of the specification which was not on general view. They also argued that it was in-appropriate and disproportionately restrictive for any PDO status to require that a food that was otherwise produced in accordance with the PDO specification, was also sliced and packaged in a particular way.
Previously in the saga, the Parma Ham producers had also sued for passing off and invited trading standards officers in the UK to bring proceedings under the Trade Descriptions Act. By the time the case got to the ECJ, however, only the PDO issues were at stake, and the outcome was a mixed one for both parties.
On the one hand, the ECJ found in favour of the ham producers by pronouncing that if they wanted to describe their products as Parma Ham, Asda did have to ensure that it was sliced and packaged in the Parma area. They saw no reason why slicing and packaging should not be part of a PDO specification. Parma Ham, the ECJ judges said, is consumed mainly in slices and the operations leading to that are all designed to achieve a specific flavour, colour and texture which will be appreciated by consumers.
The slicing and packaging of the product thus constituted important operations which might harm the quality and hence the reputation of the PDO if they were carried out in conditions that resulted in a product not possessing the "organoleptic" qualities expected. The operations might also compromise the guarantee of the product's authenticity, because they necessarily involved removal of the mark of origin from the whole hams used. In consequence, the condition of slicing and packaging in the region of production was justified as a measure protecting the PDO.
So far so good for the prosciutto producers. However, then came Asda's big moment.
The ECJ noted that under the PDO regulation number 2081/92, to enjoy protection in every member state, designations of origin must be registered at community level, with the entry in the register also providing information to those involved in trade and consumers. The relevant EU regulations in this case were the blanket Council regulation 2081/92, laying down the framework for protection and requiring that relevant foods comply with their "specification," and regulation 1107/96 which made "Prosciutto Di Parma" a PDO. This was done by way of a simplified procedure. This allowed names previously protected by national laws to acquire EU protection without the need for publication of the specification.
In his provisional opinion on the case, the Advocate General had felt that the absence of the full specification from the register was no excuse for Asda. He said they could quite easily have made further enquiries and discovered the slicing and packaging requirements. The ECJ, however, took a different view. It felt that particularly because slicing and packaging was not normally part of a PDO specification, it was not fair to impose it on "economic operators" if insufficient steps had been taken to give the specification adequate publicity. The requirement of legal certainty, the ECJ judgment continued, meant that Community rules must enable those concerned to know precisely the extent of the obligations which were imposed on them and this could have been done by mentioning the slicing and packaging requirement in the relevant part of regulation number 1107/96. This was not done, and so the requirement was not historically binding on Asda.
Why this matters:
Stefano Fanti, managing director of the Parma Ham Consortium, said that he was delighted at the ECJ's ruling, and claimed it was "an important day for the producers of Parma Ham and all the owners of PDO products in Europe". On the other hand, the failure to include the full specification in the relevant EU regulation seems to have been a crass error which allowed Asda to come out of this case ahead on points. One imagines that the mistake will long since have been rectified so that in future the world can be saved from Parma Ham which has not been sliced or packaged in the correct geographical location.