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Tuesday, 26 June 2007

AUDACE attacks parallel trade regulation plans

The IPKat seems to have got himself on to the mailing list of AUDACE, the "Pan-european association of farmers and distributors of plant health products and veterinary medicines working together against dysfunctional factors adversely affecting the market". This organisation has issued a statement on the proposed Regulation of the European Parliament and of the Council concerning the placing of plant protection products on the market (COM (2006) 338 final). It reads as follows:


New Article '49a' proposed by the Council working group

On 23 May of this year the member States of the European Union, within the Council under German presidency, established a new consolidated version of the proposed regulation to replace directive 91/414/EEC, including Article 49a concerning "parallel trade" in plant protection products.

Already on 7 December 2001, during a meeting of the Standing Committee on Plant Health, the member state Germany had indicated that it would not take note of the guidance document SANCO/223/2000 rev.9 and that it wished to see parallel imports regulated through changes brought about in directive 91/414/EEC: the provisions for establishing identity of a product, the definition of the obligations of importers and Member States are not suitable to be dealt with in a guidance document.

AUDACE for its part had repeatedly and consistently, since the Corfu workshop in July, 2002 given the reasons for which, in its view,

1. The principle of free movement of the plant protection products (PPP) would be better regulated outside the directive, the aims and objectives of which are the protection of health and the environment

2. If it were to be otherwise, the modifications brought to the directive inevitably
had to conform to the principles of objectivity, necessity and proportionality and

3. decisions of refusal or withdrawals of marketing authorisation (MA) had to be notified in compliance with decision 3052 or with directive 98/34 for coherence.

The projected regulation, as amended, puts operators in a situation of total legal uncertainty incompatible with the founding principles of the treaty.

The fact that the proposal is silent on the practices of complete repackaging and double labelling, voluntarily on grounds relating to potential areas of conflict with trade mark right, leaves the professional importer in the certainty of systematic judicial harassment.

The fact that the proposal is silent on imports of PPP by users within the limits of their personal needs reinforces the deficit of national statutory regulations generally allowing for more repressive administrative practices.

The need to regulate these three practices - repackaging, double labelling, own use imports - is all the more pressing as recent community jurisprudence relating to pharmaceutical products (
Case C-348/04) makes it compulsory for the importer to give notice to the trade mark owner and, on demand, supply him with a specimen of the product before it is put on sale, in all cases including that of double labelling. This obligation had never been put into practice except in cases of total repackaging with re-application of the trade mark. Seasons and cycles are attributes of the plant protection market that make this measure particularly difficult to implement and in some cases totally impracticable.

On this account, AUDACE had, on 9 May sought, from the national competent authorities and from industry, that they agree with parallel importers on the conditions in which double labelling and repackaging could take place in accordance with industrial and commercial property rights and the preservation of their essential requirements.

AUDACE regrets the absence of any response from the industry (except for initiating legal actions based on
Case C-348/04 against importers for past imports) as it regrets its representative organisation ECPA did not think it useful to call on AUDACE to take part in the multi-stakeholder event it organised in Brussels on 7 June 2007".

The IPKat asks, to which ECPA does the last paragraph refer? He suspects it must mean the European Crop Protection Association rather than the Evangelical Christian Publishers Association or any of the other bodies that share the same acronym. Merpel says, if you don't like this AUDACE, try a different one here, here, here, here or here.

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