Explanatory Memorandum to COM(2020)213 - Conclusion of the Agreement with the government of China on cooperation on, and protection of, geographical indications

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dossier COM(2020)213 - Conclusion of the Agreement with the government of China on cooperation on, and protection of, geographical indications.
source COM(2020)213 EN
date 27-05-2020


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

On 10 September 2010 the Council authorised the opening of negotiations 1 on an agreement with China to obtain the highest possible level of protection for the geographical indications coming within the scope of the Agreement and to provide instruments to counter deceptive practices and the wrongful uses of geographical indications.

On the basis of these directives, the Commission has negotiated with the People’s Republic of China an ambitious and comprehensive agreement on cooperation on, and protection of, geographical indications.

Following the conclusion of these negotiations in November 2019, the Council has adopted the Council Decision on the signing, on behalf of the European Union,
of the Agreement between the European Union and the government of the People's Republic of China on cooperation on, and protection of, geographical indications.

Following the signature of the agreement, the Commission is putting forward the following proposal for Council decision:

Proposal for a Council Decision on the conclusion of the Agreement between the European Union and the government of the People's Republic of China on cooperation on, and protection of, geographical indications.

The attached proposal for a Council Decision constitutes the legal instrument for the conclusion of the Agreement between the European Union and the government of the People's Republic of China on cooperation on, and protection of, geographical indications.

• Consistency with existing policy provisions in the policy area

The conclusion of the Agreement fits into the overall EU strategy of promoting the EU geographical indication policy. The initiative aims to provide a high level of protection, at least at article 23 TRIPS+ level, to a list of EU geographical indications in the People’s Republic of China and Chinese geographical indications in the EU. The initiative will give producers of products bearing geographical indications a competitive advantage

• Consistency with other Union policies

The conclusion of a bilateral agreement on geographical indications with the People’s Republic of China is in line with the EU’s external actions and in particular with the Union objectives regarding the EU strategy of promoting the policy of geographical indications.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The EU-China agreement on Geographical Indications is to be concluded by the Union pursuant to a decision of the Council based on Article 207(3) and the first subparagraph of Article 207 i, as well as Article 218(6) TFEU, following the European Parliament’s consent.

In addition, Article 218(7) TFEU has been added as a legal basis as it is appropriate for the Council to authorise the Commission to approve the position of the Union on certain modifications to the EU-China agreement on geographical indications given that it provides for expedited and/or simplified procedures to approve such modifications.

• Subsidiarity (for non-exclusive competence)

The Agreement between the European Union and the government of the People's Republic of China as presented to Council does not cover any matters that fall outside of the EU’s exclusive competence.

• Proportionality

This proposal is in line with the vision of the Europe 2020 strategy and contributes to the EUs trade and development objectives.

• Choice of the instrument

This proposal is in accordance with Article 218 TFEU, which envisages the adoption by the Council of decisions on international agreements. There exists no other legal instrument that could be used in order to achieve the objective expressed in this proposal.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

Not applicable.

• Stakeholder consultations

Not applicable.

• Collection and use of expertise

Not applicable.

• Impact assessment

Not applicable.

• Regulatory fitness and simplification

Not applicable.

• Fundamental rights

Not applicable.

4. BUDGETARY IMPLICATIONS

The proposal does not affect the protection of fundamental rights in the Union.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

The Agreement between the European Union and the government of the People's Republic of China on cooperation on, and protection of, geographical indications includes institutional provisions that lay down a joint Committee with the purpose of monitoring the implementation of the Agreement and of intensifying the co-operation and dialogue on geographical indications.

The Joint Committee shall also see to the proper functioning of this Agreement and may consider any matter related to its implementation and operation.•Explanatory documents (for directives)

Not applicable.

• Detailed explanation of the specific provisions of the proposal

The EU-China agreement on geographical indications establishes the conditions for a high level of protection on the Chinese market for the proposed geographical indications.

In line with the objectives set by the negotiating directives, the Commission secured:

A TRIPs-plus level of protection to EU geographical indications following the entry into force of the Agreement which provides protection against translation, transcription or transliteration, and against the use of the said geographical indications  accompanied by expressions such as 'kind', 'type', 'style', 'imitation' or the like in respect of a non-originating product .


The protection of 175 additional geographical indications within four years of the entry into force and a mechanism to add more geographical indications thereafter;


The geographical indications will co-exist with the legitimate earlier trademarks of which the vast majority belong to the legitimate owners of Europe.