Considerations on COM(2023)54 - Amendment of Council Decision (EU) 2019/1754 on the accession of the EU to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications

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dossier COM(2023)54 - Amendment of Council Decision (EU) 2019/1754 on the accession of the EU to the Geneva Act of the Lisbon Agreement on ...
document COM(2023)54 EN
date May 22, 2023
 
(1) The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of 31 October 1958 (‘the Lisbon Agreement’) is a treaty administered by the World Intellectual Property Organization (‘WIPO’). The Lisbon Agreement creates a special union (‘the Special Union’) within the framework of the Union for the Protection of Industrial Property. It is open to parties to the Paris Convention for the Protection of Industrial Property. Its contracting parties are obliged to protect on their territories the appellations of origin of products of the other contracting parties recognised and protected as such in the country of origin and registered at the International Bureau of WIPO, unless they declare within one year from the request for registration that they cannot ensure protection.

(2) Seven Member States are parties to the Lisbon Agreement, namely Bulgaria, Czechia, France, Italy, Hungary, Portugal and Slovakia. The Union itself is not a party to the Lisbon Agreement as only countries can accede to that Agreement.

(3) Following a review of the Lisbon Agreement, the WIPO Diplomatic Conference adopted the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications (‘the Geneva Act’) on 20 May 2015. The Geneva Act extends the protection of appellations of origin to all geographical indications and allows intergovernmental organisations to become contracting parties to it.

(4) By its judgment of 25 October 2017 1 , the Court held that the negotiation of the Geneva Act fell within the exclusive competence conferred on the European Union by Article 3(1) TFEU in the field of the common commercial policy referred to in Article 207(1) TFEU. 

(5) On 27 July 2018, the Commission made a proposal for a Council Decision on the accession of the European Union to the Geneva Act 2 on the basis of Articles 207 and 218(6), point (a) of the Treaty on the Functioning of the European Union (TFEU). In view of the Union’s exclusive competence as regards the negotiation of that act, that proposal provided that the Union alone would accede thereto.

(6) On 7 October 2019, the Council unanimously adopted Decision (EU) 2019/1754 3 on the accession of the European Union to the Geneva Act in accordance with Article 293(1) TFEU. Article 3 of that Decision provides that Member States which wish to do so are authorised to ratify or accede to the Geneva Act alongside the Union. Article 4 of the Decision provides that, in the Special Union, the Union and any Member State which ratifies or accedes to the Geneva Act is represented by the Commission in accordance with Article 17(1) of the Treaty of the Union (TEU). Article 4 further provides that the Union is responsible for ensuring the exercise of the rights and fulfilment of the obligations of the Union and of the Member States which ratify or accede to the Geneva Act.

(7) In a statement entered in the Council minutes relating to the adoption of Decision (EU) 2019/1754, the Commission objected to the possibility for all Member States to be authorised to ratify or accede to the Geneva Act alongside the Union. However, the Commission also stated that it would have been ready to agree that the seven Member States which are parties to the Lisbon Agreement and which have extensive intellectual property rights registered under that agreement could be authorised to accede to the Geneva Act in the interest of the Union.

(8) The Geneva Act entered into force on 26 February 2020, three months after the Union deposited its instrument of accession, bringing the number of members to the requisite five.

(9) On 17 January 2020, the Commission brought an action under Article 263 TFEU seeking the partial annulment of Decision (EU) 2019/1754. The Commission challenged that Decision before the European Court of Justice on the main grounds that the Council had violated the principle of conferral of powers and the Commission’s right of initiative, and in the alternative on the grounds of an infringement of Article 2(1) and Article 207 TFEU and the duty to state reasons.

(10) While the Commission asked the Court of Justice to annul Decision (EU) 2019/1754, in so far that it authorises all Member States to accede to the Geneva Act, it also asked the Court to maintain the effects of the decision for the seven Member States that are already members of the Lisbon Agreement. It would be contrary to the interest of the Union if the priority rights linked to the appellations of origin already registered by these Member States under the Lisbon Agreement were lost.

(11) The Court of Justice delivered its judgment on 22 November 2022 4 . The Court annulled Article 3, and to the extent that it contains references to the Member States, Article 4 of Decision (EU) 2019/1754.

(12) However, the Court judgement also acknowledges the necessity to preserve the seniority and continuity of the protection of appellations of origin registered under the Lisbon Agreement in the seven Member States that are already parties to that agreement. The Court thus declared that the effects of the annulled parts of Decision 2019/1754 should be maintained for the Member States which have already availed themselves of the authorisation to ratify or accede to the Geneva Act until the entry into force, within a reasonable period not exceeding six months, of a new Council Decision.

(13) In view of the Union’s exclusive competence and the possibility for the Union to accede to the Geneva Act, it is only in strictly justified and exceptional circumstances that Member States can be authorised, for as long as such participation is duly justified, in the interest of the Union, to accede, alongside the Union, and such accession has to remain functionally limited.

(14) Article 11 of Regulation (EU) 2019/1753 5 provides for transitional provisions for appellations of origin originating in Member States already registered under the Lisbon Agreement. On the basis of those provisions, the seven Member States that are parties to the Lisbon Agreement notified the Commission by 14 November 2022 their choice to request the international registration under the Geneva Act of appellations of origin already registered under the Lisbon Agreement.

(15) Therefore, it is appropriate to amend Decision (EU) 2019/1754 in order to authorise, in full respect of the exclusive competence of the Union, the seven Member States that are members of the Lisbon Agreement prior to the Geneva Act to also ratify or accede to the Geneva Act, to the strict extent that this is necessary to preserve, in the interest of the Union, the priority rights linked to the appellations of origin already registered by these Member States under the Lisbon Agreement.

(16) Decision (EU) 2019/1754 should therefore be amended accordingly.