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Wednesday, 10 July 2013

OQT joins PGI, PDO and TSG in EU

The IPKat approves greatly of initiatives taken by his readers. Earlier today this Kat praised their parodistic lyrics; now he praises their commitment to the IP community.  The author of the post below is Andrea Tosato,a Visiting Research Fellow at King's College, London.  After checking this weblog to see if it had reported on Regulation 1151/12 on quality schemes for agricultural products and foodstuffs (which it hadn't) and then emailing the IPKat to ask whether perhaps such a report was lurking in some part of the blog archive where it couldn't be found (which it wasn't), Andrea took up the Kat's challenge and wrote a helpful little note on this exciting piece of Euro-legislation himself. And here it is:
On 3 January 2013, Regulation 1151/12 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs came into force, repealing and replacing Regulations 509/06 and 510/06. The Regulation revises the legal regime for Protected Denomination of Origin (PDO), Protected Geographical Indications (PGI), Traditional Specialities Guaranteed (TSG), and introduces Optional Quality Terms (OQT). Quality schemes for wines and spirits fall outside the remit of this legislative act. 
In contrast with past legislation governing EU quality schemes, the European Parliament had an active role in crafting the Regulation, as it was enacted pursuant to the ordinary legislative procedure (Art. 294 TFEU); this is a welcome democratic change stemming from the institutional reforms brought by the Lisbon Treaty.   
The Regulation grants ample powers to the Commission to adopt both implementing and delegated acts; thus, the new legislative framework cannot be yet considered complete. Nevertheless, without any pretence of compiling an exhaustive analysis, the following are some of the most significant reforms introduced by the Regulation: 
* Consolidated Legislative Framework. The Regulation introduces a new structure for the legal framework governing EU quality schemes. Title I, Title V and Title VI of the new legislation are common to PDO, PGI and TSG schemes, establishing a normative backbone which comprises, inter alia, the rules governing controls, registrations, amendments, cancellations and definitions. By contrast, Title II, III, and IV contain provisions specific to PDO and PGI, TSG and OQT respectively.

"This little PGI went
to market ..."
* PDO, PGI (arts 4-16) The PDO and PGI schemes remain largely unaltered. milieu. However, the definition of PGI has been modified to read as follows “‘geographical indication’ is a name which identifies a product … whose given quality, reputation or other characteristics is essentially attributable to its geographical origin”. The word “essentially” was not present in the previous legislation, raising a question as to whether the Regulation intends to loosen the required link between PGI products and their

* TSG (arts 17-26). The Regulation revises the protection requisites which foods must satisfy to be eligible for a TSG, seeking to clarify them. The new legislation also restructures the protection regime of this quality scheme, abolishing the pre-existing two-tiered system. Under the previous legislation, a TSG product could be registered either without reservation of name (Tier 1) or, provided that it satisfied additional requisites, with reservation of name (Tier 2); Tier 1 has been removed, leaving a slightly amended Tier 2 to become the standard protection regime.

"Mountain product":
a self-assembly kebab
* OQT (arts 27-34). OQTs are a new quality scheme introduced by the Regulation. Their declared purpose is to “facilitate the communication within the internal market of the value-adding characteristics or attributes of agricultural products”. To be eligible as an OQT a  locution must a) relate to a characteristic of one or more categories of products, or to a farming or processing attribute which applies in specific areas; b) adds value to the product as compared to products of a similar type; and c) have a European dimension. The Regulation establishes “Mountain Product” as the first OQT and sets out the conditions for its use. The new legislation also provides that the Commission will submit a report by 4 January 2014, concerning the desirability of a “Product of Island Farming” OQT. Notably, OQTs can be employed alongside PDO, PGI or TSG names (e.g. Parmiggiano Reggiano, Mountain Product).

* Procedural simplifications (arts 48-54). The Regulation reforms the rules governing applications, oppositions, amendments and cancellations for the PDO, PGI and TSG schemes. The underlying substance is left unchanged; the reforms seek to reduce the time necessary to perform this procedural operation. 
* Member States controls (arts 13(3), 24(2), 34, 35-40). Under the Regulation, Member States are responsible for carrying two types of controls. They must: i) verify that PDO, PGI, TSG and OQT products comply with the corresponding registered specification; and ii) monitor the use of registered names to describe products placed on the market. Thus, the Regulation places Member States under a duty to ensure that PDO, PGI, and TSG product names registered under EU quality schemes are not infringed, taking legal action when necessary.

* Groups (arts 45). The Regulation now entitles groups that have obtained the registration of a PDO, PGI or TSG to monitor, promote their products and take action to ensure adequate legal protection. 
In conclusion, the Regulation confirms the pre-existing legal regime for the PDO and PGI schemes. On one hand, it further solidifies this body of rules; on the other, it fails to address any of the problematic issues which have emerged in several CJEU cases. 
The reforms concerning the TSG are more intriguing. This scheme has enjoyed limited success in the past; it remains to be seen whether the new rules established by the Regulation will bring new life to this scheme. 
The creation of the OQT scheme expresses the EU policy choice to expand further  the scope of the legislation regulating food names and attributes. The introduction of this scheme was well received by stakeholders, yet its impact will need to be appraised over the course of time.

Commentators in the past have highlighted how EU quality schemes comprise both a public and private law soul; the choice to establish ex officio Member State protection for EU quality schemes accentuates this peculiarity and is sure to stimulate further debate on this topic. 


Anonymous said...

Shouldn't the word "milieu" be at the end of the PDO, PGI subparagraph?

Also, why the mixed fonts?!

Darren Smyth said...

The Anony-mouse has just crept in to inform this Kat as follows:

With respect to the GI regulation 1151/2012, Article 13.3 (enforcement) has not been enacted in the UK, and so these rights exist, but cannot be enforced domestically by the TSA (even though a private cause of action exists I believe). Similarly, under the old regulation, there was no provision for the UK TSA to enforce. Defra lauds ever new UK PDO / PGI / TSG, but is silent on enforcement.

Anonymous said...

@Darren Smyth

1) Could you provide the source for the UK opt-out to art. 13(3)? As there is no enactment required for a Regulation, an express opt out during negotiations would have been necessary; I was unaware of any Member State exercising an opt-out during this process. I am quite surprised by your statement.

2) Even if the UK had opted out of art. 13(3), the duty on Member States to act ex-officio to protect PDO, PGI, and TSG registered names is generally enshrined in art 38. Thus, unless there is an opt out for this provision as well, the UK is the same position as all other Member States.

Darren Smyth said...

In reply to last anonymous, it is not my comment, so I cannot provide the source. But what I was informed was "not enacted" not "opted out". I have no more information than in the comment that I posted.

Anonymous said...

@Darren Smyth
"A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States" (art 288TFEU).
There is no such thing as "enacting" an EU Regulation.

Member States can avoid being subject to EU Regulations only by way of an opt-out.
To my knowledge, there were no opt-outs relating to Regulation 1151/12. As such, the UK is subject to all the obligations established therein.

Furthermore, as previously mentioned, ex officio protection of PDO, PGI and TSG name is enshrined not just in art. 13(3) but in several other provisions of Regualtation 1151/12, as stated in the post.

Darren Smyth said...

To the last anonymous - please explain how you consider that a provision "Member States shall take appropriate administrative and judicial steps to prevent or stop the unlawful use of protected designations of origin and protected geographical indications, as referred to in paragraph 1, that are produced or marketed in that Member State" can be directly applicable without any action from the member state concerned. Where do the "appropriate administrative and judicial steps" come from?

I think you are missing the point of the comment.

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