Case C-207/14, Hotel Sava Rogaška – on appropriating communal mineral water [judgment 2015, ECLI:EU:C:2015:414]

Underground water can surface at different points in a landscape. Therefore, how should the law respond where a company bottles the water at one point and sells it under a brand name but at another point in the landscape there is a company that bottles the water emerging there and wants to sell it under a different brand name? Can, and how, is the latter company to exploit and market the mineral water when the EU’s ‘marketing of mineral waters’ Directive 2009/54/EC bans the marketing of ‘natural mineral water from one and the same spring under more than one trade description’?

Facts
Slovenia is a place of natural springs and thermal spas. It is also home to companies that bottle, market and sell mineral waters to consumers and industry.

In one region of Slovenia, there is a body of communal underground water which emerges at various points in the landscape. At one particular point, there is a spring and ‘Hotel Sava Rogaška’ takes its water from there. Since it also wanted to sell its water, Hotel Sava Rogaška applied to the relevant Slovenian Ministry to register the words ‘ROI Roitschocrene’ as the trade name for its water.

The Slovenian Ministry realised that the mineral water emerging at Hotel Sava Rogaška’s spring came from a body of underground water that was also emerging at a couple of other points in the landscape, and at those points the Droga Kolinska company was already selling the water under the name of ‘Donat Mg’ – a name registered for the magnesium-rich mineral water by the Ministry back in 2001. In that context, the Ministry remembered that the EU’s Directive 2009/54/EC on the exploitation and marketing of natural mineral waters (as recast in OJ [2009] L164/45), states: ‘It shall be prohibited to market natural mineral water from one and the same spring under more than one trade description’ (Article 8(2)). Consequently, the Ministry refused Hotel Sava Rogaška’s application.

Litigation ensued, and the correct interpretation of the law no longer looked so clear for the court. Slovenian law presented the initial difficulty. Despite the English version of the Directive unequivocally using the word ‘trade description’, the Slovenian implementing provision was quite different. That is to say, instead of using the equivalent words for ‘trade description’, the Slovenian legislature had used the phrase ‘legal trade mark’. Consequently, Hotel Sava Rogaška submitted that it would be possible to have the trade name of ‘ROI Roitschocrene’ on its mineral water because it would be possible for consumers to distinguish one product from another.

That issue had some bearing on the main problem, namely, how to interpret EU law. Article 8(2) of the Directive banned the marketing of ‘natural mineral water from one and the same spring’. But what did that mean in the present case when the mineral water originated in the same aquifer or body of groundwater but was being drawn from different exits?

Unfortunately, referring to other planks of EU legislation was of little or no help to answering that question. For whereas the EU’s water policy framework Directive 2000/60/EC (OJ 2000 L327/1) provided a string of technical definitions for words like ‘aquifer’ or ‘body of groundwater’, there was no coherence to be found between the English, French and German versions of the Directive. Consequently, either a literal or a systematic interpretation of the EU Directive shed no light on the matter.

Using a teleological interpretation of the exploitation and marketing Directive 2009/54/EC would put the focus on the aim of the Directive. The recitals suggested that the Directive was intended to protect consumer health, prevent consumers from being misled, and ensure fair competition.

In essence, the court wondered how to avoid the problem of misleading consumers into thinking that there were different types and brands of water when in fact the water came from the same body of underground water. Might not two names co-exist if the chemical and microbiological composition of the waters differed owing to the fact that, for example, the water had taken different routes to get to the surface, and on their respective journeys the water had percolated through different layers of rock and sediments?

Alternatively, could the following factors also be relevant: the distance between the exits, the depth of the exits, the specific qualities of the water drawn from individual exits (such as its chemical and microbiological composition), hydraulic connectivity between the exits and the confinement of the water held by the aquifer?

Since neither national nor EU legislation seemed to provide answers to these matters, it was decided to make a reference to the CJEU.

Questions Referred
According to the Curia website, the Vrhovno sodišče Republike Slovenije has asked:

1. Is Article 8(2) of Directive 2009/54/EC […] of the European Parliament and of the Council of 18 June 2009 on the exploitation and marketing of natural mineral waters to be interpreted in such as way that ‘natural mineral water from one and the same spring’ means:
a) water from one and the same point of exit, but not water that is drawn from different exits even when such water originates in the same aquifer or body of groundwater within the meaning of the definitions of ‘aquifer’ and ‘body of groundwater’ given in Directive 2000/60[/]EC […] or

b) water from one and the same point of exit, but not water that is drawn from different exits even when such water originates in the same aquifer or body of groundwater within the meaning of the definitions of ‘aquifer’ and ‘body of groundwater’ given in Directive 2000/60EC, although, in interpreting the expression, account should be taken of factors such as the distance between exits, the depth of the exits, the specific qualities of the water drawn from individual exits (such as its chemical and microbiological composition), hydraulic connectivity between exits and the confinement of the water held by the aquifer, or

c) water springing from the same aquifer or body of groundwater within the meaning of the definitions of ‘aquifer’ and ‘body of groundwater’ given in Directive 2000/60EC irrespective of whether it reaches the surface at a number of different exits, or;

d) water springing from the same aquifer or body of groundwater within the meaning of the definitions of ‘aquifer’ and ‘body of groundwater’ given in Directive 2000/60EC irrespective of whether it reaches the surface at a number of different exits, although, in interpreting the expression, account should be taken of factors such as the distance between exits, the depth of the exits, the specific qualities of the water drawn from individual exits (such as its chemical and microbiological composition), hydraulic connectivity between exits and the confinement of the water held by the aquifer?

2. If none of the suggested answers to question 1 should be correct, must the interpretation of the notion of ‘natural mineral water from one and the same spring’ take into account factors such as the distance between exits, the depth of the exits, the specific qualities of the water drawn from individual exits, hydraulic connectivity between exits and the confinement of the water held by the aquifer?