Facts
The Federal Office for Agriculture filed an appeal against a judgment of the Administrative Court of the Canton of Bern, which had allowed A.X. and B.X. as well as the R. Dairy Cooperative to use the protected designation of origin "Gruyère" for Gruyère cheese produced in their cheese factory under certain conditions.
The dispute revolved around the question of whether the respondents met the requirements of the specification for the use of the protected designation of origin "Gruyère", particularly with regard to the frequency of milk deliveries.
The Federal Supreme Court had to decide whether the Administrative Court had rightly reviewed the specification for its constitutionality as a preliminary question and whether the conditions for the use of the protected designation of origin were lawful.
Considerations
The Federal Supreme Court concluded that the Administrative Court had rightly reviewed the specification for its constitutionality as a preliminary question. Although the specification has rather the character of a generally abstract regulation that requires implementation in individual cases, a preliminary review is permissible, as the circle of addressees is open and legal certainty is not jeopardized.
With regard to the conditions for the use of the protected designation of origin, the Federal Supreme Court came to the conclusion that the requirement of twice-daily milk delivery cannot be justified solely on milk hygiene grounds, but can be justified as an additional quality requirement if it corresponds to the regional conditions. However, since in the present case the exception has become the rule in the Canton of Bern, it violates the…