Hambush by Consorzio del Prosciutto di Parma

The Corporate Department of RadcliffesLeBrasseur has achieved the unusual distinction of appearing before the European Court of Justice on behalf of its client, the Parma Ham Association, or Consorzio del Prosciutto di Parma ("Consorzio"), in a claim against the British supermarket chain, Asda Stores Limited ("Asda"). One of the Firms’ consultants, Arturo Barone, appeared as Advocate before the European Court which upheld the right of Consorzio to prevent the slicing and packaging of Parma Ham in any area of the EU outside the traditional region in Italy where Parma Ham is produced except as against economic operators.

The case revolved around the world-famous ham specially prepared in Parma from pigs reared in northern and central Italy. Parma Ham is so specialised that its name, production and sale are governed by Italian legislation entitled "Protection of denomination of origin ‘Prosciutto di Parma’", and enforced through Consorzio.

The Italian law contains provisions for the production of Parma Ham, and the authenticity of Parma Ham must by law be guaranteed by a mark, ie. the "corona ducale", to appear on the product regardless of the form in which it is sold.

The claim against Asda arose because Hygrade Foods Ltd ("Hygrade"), a supplier to Asda, imported ham from Parma but sliced and packaged it in Wiltshire. The imported hams from Parma would bear the "corona ducale", however the final package of sliced ham would not bear the brand mark required under Italian law. Concerned about the authenticity and reputation of their product, Consorzio sought injunctions in the UK courts in 1997 against Asda Supermarkets and Hygrade to prevent this practice from taking place, on the grounds that it breached the rules which applied to Parma Ham.

The applications were dismissed at the Court of First Instance and the Court of Appeal. On an appeal by Consorzio to the House of Lords, reference to the European Court of Justice was made on the interpretation of the relevant regulations on the protection of geographical designations of origin for agricultural products and foodstuffs. In April 2002 the Advocate General gave a preliminary opinion in favour of Asda, as he considered the proposed restrictions on production to be anticompetitive. However in May this year the ECJ gave a ruling to the contrary, that Parma Ham must be sliced and packaged in the region of its production. The only exception is in the case of ham imported from Parma which is sliced in front of the customer, who can still then be guaranteed of its authenticity. No ruling against Asda however was made by the European Court since the restrictions had not been sufficiently advertised under the procedures for registering the PDO.

This ECJ’s decision was based on the fact that the name "Parma Ham" was registered as a "protected designation of origin" ("PDO") under Council Regulation (EEC) No. 2081/92, a regulation binding and directly applicable in all Member States. A PDO restricts the processing of products, since it is the name used to describe an original product whose characteristics arise from a particular environment. Many British products are also similarly protected, such as Cheddar Cheese, Cornish Clotted Cream, and Jersey Royal Potatoes. Registered names cannot be used to label products which do not conform to very specific and stringent criteria.

The ECJ agreed that the maintenance of quality, authenticity and reputation of Parma Ham requires strict control over the entire process, to include slicing and packaging.