Explanatory Memorandum to COM(2018)365 - Action of the Union following its accession to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2018)365 - Action of the Union following its accession to the Geneva Act of the Lisbon Agreement on Appellations of Origin and ... |
|---|---|
| source | COM(2018)365  |
| date | 27-07-2018 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
This proposal is related to the Commission proposal for a Council Decision on the Union's accession to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications (the 'Geneva Act').
The aim of this Commission proposal is to ensure the legal framework for effective participation of the Union in the WIPO Lisbon Union once the Union will have become a Contracting Party to the Geneva Act.
Article 9 of the Geneva Act establishes a commitment for each Contracting Party to protect registered appellations of origin and geographical indications on its territory, within its own legal system and practice but in accordance with the terms of this Act, subject to any refusal, renunciation by the Contracting Party of origin, invalidation or cancellation that may become effective with respect to its territory. Article 6 (5) (a) of the Geneva Act provides that a registered appellation of origin or geographical indication shall, in each Contracting Party that has not refused protection in accordance with Article 15, or that has sent to the International Bureau of the World Intellectual Property Organization a notification of grant of protection in accordance with Article 18, be protected from the date of the international registration. Rule 9(1) (b) of the Common Regulations under the Lisbon Agreement and the Geneva Act of the Lisbon Agreement (the 'Common Regulations') specifies that the refusal shall be notified within a period of one year from the receipt of the notification of international registration under Article 6 i. In the case of Article 29 i, this time limit may be extended by another year.
Against this background, upon becoming a Contracting Party to the Geneva Act, the Union should submit a list of EU geographical indications drawn from the EU registers for geographical indications (to be agreed with EU Member States) for protection under the Lisbon system. This list should be established in close consultation with the Member States, following this established practice and methodology which is used for some of the bilateral international agreements on Geographical indications which the EU has concluded (taking into account production value and export value, protection under other agreements as well as current or potential misuse in the third countries concerned, and balance between Member States), taking into account the scope of Geographical indications registered by third country Lisbon members. After the Union's accession to the Lisbon Union, applications for the international registration of additional geographical indications protected and registered in the Union shall be possible on the Commission's initiative or at the request of a Member State or of an interested group of producers.
Appropriate procedures for the assessment by the Commission of appellations of origin and geographical indications originating in third Contracting Parties and registered in the International Register, and for the related opposition procedure should be put in place, taking into account specificities of the Geneva Act.
Enforcement by the Union of appellations of origin and geographical indications originating in third Contracting Parties and registered in the International Register shall be in accordance with Chapter III of the Geneva Act. Article 14 of the Geneva Act in particular requires each Contracting Party to make available effective legal remedies for the protection of registered appellations of origin and registered geographical indications and provide that legal proceedings for ensuring their protection may be brought by a public authority or by any interested party, whether a natural person or a legal entity and whether public or private, depending on its legal system and practice. Coexistence of prior trade marks and an appellations of origin or geographical indications registered in the International Register which are granted protection or used in the Union should be possible where the conditions laid down in the second paragraph of Article 15 of Regulation (EU) 1151/2012 of the European Parliament and of the Council of 21 November 2012 are fulfilled mutatis mutandis.
Seven EU Member States are members of the Lisbon Union and as such have accepted protection of third-country names. In order to provide for them the means to fulfil their international obligations assumed before the accession of the Union to the Lisbon Union a transitional arrangement should be put into place which should produce effects at national level only, and have no effect on intra-Union or international trade.
It appears equitable that the fees to be paid under the Geneva Act and the Common Regulations for filing an application with the International Bureau for the international registration of an appellation of origin or a geographical indication as well as the fees to be paid in respect of other entries in the International Register and for the supply of extracts, attestations, or other information concerning the contents of this international registration should be borne by the Member State in which the appellation of origin or the geographical indication is originating.
• Consistency with existing policy provisions in the policy area
Regarding agricultural products, the EU has established uniform and exhaustive GI protection systems for wines (1970), spirits (1989), aromatised wines (1991) and other agricultural products and foodstuffs (1992). Through these systems, protected names for the products covered enjoy farreaching protection throughout the EU, based on a single application process. The key provisions are currently laid down for wine in Regulation (EU) No. 1308/2013 of 17 December 2013, for aromatised wines in Regulation (EU) No. 251/2014 of 26 February 2014, for spirits in Regulation (EC) No. 110/2008 of 15 January 2008, and for agricultural products and foodstuffs in Regulation (EU) No. 1151/2012 of 21 November 2012.
• Consistency with other Union policies
The proposal is consistent with the EU's general policy to promote and enhance the protection of geographical indications through bilateral, regional and multilateral agreements.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
Considering the subject matter of the Treaty, the Regulation should be based on Article 207 of the Treaty on the Functioning of the European Union.
• Subsidiarity (for non-exclusive competence)
The Union has exclusive competence to conclude the Geneva Act of the Lisbon Agreement. This follows from the ruling of the European Court of Justice of 25 October 2017 in case C-389/15 - Commission vs. Council - which clarified that the draft revised Lisbon Agreement, i.e. the Geneva Act, is essentially intended to facilitate and govern trade between the European Union and third States and, secondly, that it is such as to have direct and immediate effects on such trade, so that its negotiation fell within the exclusive competence which Article 3(1) TFEU confers on the European Union in the field of the common commercial policy envisaged in Article 207(1) TFEU.
According to Article 5(3) of the Treaty of the European Union (TEU), the subsidiarity principle does not apply to areas of exclusive EU competence.
• Proportionality
The proposed measures do not go beyond what is necessary to achieve the objective of enabling the Union to participate in the Lisbon Union in a way which will ensure efficient protection of EU geographical indications.
• Choice of the instrument
A Regulation of the European Parliament and of the Council is the appropriate legal instrument for the implementation of the membership of the European Union in the Lisbon Union as it ensures the legislative prerogatives of both institutions.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
• Stakeholder consultations
The Roadmap on EU accession to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications was published on 21 December 2017 with a deadline for stakeholder comments until 18 January 2018. 8 comments were received within the deadline. All except one were basically positive regarding the initiative and supported EU accession. Three comments expressed the view that the EU should advance the discussion on recognition and protection of non-agricultural geographical indications. Two comments were against a shortlist as all of the Union's geographical indications should be eligible for protection under the Geneva Act.
• Collection and use of expertise
The study of October 2012 done by AND International on the 'Value of production of agricultural products and foodstuffs, wines, aromatised wines and spirits protected by a geographical indication (GI)' (ec.europa.eu/agriculture/external-studies) identified a number of benefits of the EU's GI policy for consumers (quality assurance), producers (openness of the system to all producers complying with quality requirements; fair competition; price premium; efficient protection), society at large (link of valuable products to rural areas; preserving tradition; reconnection of producers and consumers) and the environment (Linking traditional products with landscapes and farming systems). Evaluating economic data on each of 2768 GIs registered in the EU 27 from 2005 to 2010, the study found in particular that on average, the price of a GI product is 2.23 times the price of a comparable non-GI product. The sales value of EU GIs (all sectors) was €54.3 billion in 2010 (5.7% of the total EU food and drink sector); the estimated EU GI exports value is € 11.5 billion (15% of EU food and drink industry exports).
• Impact assessment
The Better Regulation requirements for the initiative do not include an impact assessment, an implementation plan or a public consultation.
The Guidelines on Better Regulation clarify that an impact assessment should be carried out only when it is useful, to be assessed on a case-by-case basis. In principle, no impact assessment is needed, when there is little or no choice available for the Commission. This is the case here as accession to the Geneva Act of the Lisbon Agreement is warranted in view of the Union's exclusive competence for the matters covered by the Geneva Act, and as this step would also be the logical conclusion following the review process of the Lisbon system in which the EU has engaged. The measures proposed in the present draft Regulation are necessary in order to ensure the appropriate application of the Geneva Act by the European Union.
There would be a number of advantages in case of EU membership. It would ensure that current and future GIs registered at EU level but not registered by the 7 EU Member States in the Lisbon Union could become eligible for protection in the Lisbon system. EU GIs could in principle gain rapid, high level, indefinite protection in all current and future parties to the Geneva Act. The established multilateral register would increase the reputation of European GIs due to the wide geographic extent of protection under the Geneva Act. Improved international GI protection resulting from EU accession is expected to consolidate and potentially expand the positive impacts of GI protection on inclusive growth and employment in high added value production in the agricultural sector, on trade and investment flows, competitiveness of business and SMEs in particular, as well as for the functioning of the internal market and competition, and for the protection of IPR. Farmers' and food producers' intellectual property in their GI-protected products is vulnerable to exploitation and loss, especially in global markets. EU accession to the Lisbon system would help rural stakeholders protect at global level what is valuable at local level, thus countervailing the usual globalisation trend toward uniform commodity standards and downward pressure on agricultural product prices. In the current political and economic uncertainties, this would provide a visible demonstration to the rural community that the EU is acting to defend and protect their interests across the world. As the Geneva Act is broadly equivalent to EU legislation on GI protection for agricultural products, it is not expected that EU accession will require significant adjustments of the substance of this legislation.
From an administrative point of view, the Geneva Act provides a single set of rules for obtaining protection in all members and therefore a simpler and more efficient mechanism compared to the current EU practice of dealing with a variety of local procedures through bilateral agreements. In commercial policy terms, it will demonstrate the EU's responsible leadership role promoting multilateralism. EU accession is not expected to create additional costs or burdens on EU operators or EU Member States wanting to have GIs protected in the Lisbon system as compared to the status quo. On the contrary, it is expected to even result in a reduced level of these administrative costs and burdens.
For businesses, EU accession will entail no additional adjustment, compliance or transaction costs or administrative burdens other than potential individual examination fees which Lisbon Members may apply but which will be diminished by the savings resulting from the international procedure.
The Geneva Act allows for accession of the EU together with its Member States. However, in view of the uniform and exhaustive nature of the EU GI protection system for agricultural products, any AOs or GIs submitted for protection by the seven EU Member States in the Lisbon system (currently around 800) and eligible for protection under EU legislation should no longer be protected under national legislation, but exclusively through EU legislation. This will also be the case regarding protection of GIs originating in, and submitted for protection by, third country Lisbon members. As a consequence, EU accession will result in less administrative burden of participation in the Lisbon system for EU Member States.
Notably, once the EU has joined, there will be the option of referring to the Lisbon system register rather than negotiating in detail the bilateral protection of GIs. This would be in line with practice in other areas of Intellectual Property Rights (IPR) where the EU engages its partners to join and comply with international agreements on IPR such as the Berne Convention on Copyright and the Madrid protocol on Trade Marks, rather than creating a web of divergent undertakings that can confuse stakeholders.
Accession of the EU will likely give an incentive for more third countries to join the Lisbon system, since this would give them access to protection across the whole Lisbon Union, and they could benefit from an efficient examination procedure for individual GIs in case of equivalence of their system to that of the EU.
EU accession may in particular have positive effects for developing countries which consider joining the Geneva Act as their GIs could gain protection in the EU through the Lisbon system. The interest of the 17-member African IP office, OAPI, to join Lisbon is propitious and evidence of the attraction of the GI instrument to protect developing country farmers' rights and traditional value.
As regards potential disadvantages, these could be seen in the as yet limited membership of the Lisbon system, the concern that progress on GIs in the WTO might be put even further out of reach; scepticism of some EU Member States towards EU accession, and uncertainty in respect of financial impacts. However, the modernized system under the Geneva Act should be more attractive for potential new members; progress in WIPO might even have a positive repercussion on GI discussions in the WTO by creating appropriate synergies and bringing the revised Lisbon Agreement closer to the WTO process; EU member States with reservations about the Lisbon system will not be required to join; and Lisbon members have made progress in their efforts towards ensuring financial sustainability of the Lisbon system.
On balance, the advantages of EU accession to the Geneva Act of the Lisbon Agreement outweigh the disadvantages. In order to achieve EU accession to the Lisbon System, the Commission will have to prepare a proposal for the legal acts needed for accession of the EU to the Geneva Act of the Lisbon Agreement and its implementation.
• Regulatory fitness and simplification
• Fundamental rights
The Union's participation in the Lisbon Union as a Contracting Party to the Geneva Act will be in accordance with Article 17 (2) of the Charter of Fundamental Right of the European Union, which provides that intellectual property shall be protected.
4. BUDGETARY IMPLICATIONS
See Financial Statement annexed.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
• Explanatory documents (for directives)
• Detailed explanation of the specific provisions of the proposal
Not applicable