AGREEMENT

between the European Community and the Republic of Croatia on the reciprocal recognition, protection and control of designations for spirits and aromatised drinks

Article 1

Objectives

1. The Contracting Parties hereby agree, in accordance with the principles of non-discrimination and reciprocity, to recognise, protect and control designations for spirits and aromatised drinks originating in their territory on the basis of the conditions laid down herein.

2. The Contracting Parties shall take all general and specific measures necessary to ensure that the obligations laid down by this Agreement are fulfilled and that the objectives set out in this Agreement are attained.

Article 2

Scope and coverage

This Agreement applies to the following products:

(a) spirit drinks as defined:

- for the Community, in Council Regulation (EEC) No 1576/89 of 29 May 1989 laying down general rules on the definition, description and presentation of spirit drinks(1),

- for Croatia, in regulations on the quality of spirits (OJY No 16/8 and 63/88) and also in the Law on wine (Narodne novine No 96/96) and in regulations based on the Law on wine (Narodne novine No 96/96, 7/97, 117/97, 57/00),

and falling within heading No 2208 of the International Convention on the Harmonised Commodity Description and Coding System, done at Brussels on 14 June 1983;

(b) aromatised wines, aromatised wine-based drinks and aromatised wine-product cocktails, hereinafter called "aromatised drinks", as defined:

- for the Community, in Council Regulation (EEC) No 1601/91 of 10 June 1991 laying down general rules on the definition, description and presentation of aromatised wines, aromatised wine-based drinks and aromatised wine-product cocktails(2),

- for Croatia, in regulations on the quality of spirits (OJY No 16/8 and 63/88) and also in the Law on wine (Narodne novine No 96/96) and in regulations based on the Law on wine (Narodne novine No 96/96, 7/97, 117/97, 57/00),

and covered by heading Nos 2205 and ex 2206 of the International Convention on the Harmonised Commodity Description and Coding System, done at Brussels on 14 June 1983.

Article 3

Definitions

For the purposes of this Agreement:

(a) "spirit drink originating in", followed by the name of one of the Contracting Parties, means a spirit drink produced in the territory of that Party;

(b) "aromatised drink originating in", followed by the name of one of the Contracting Parties, means an aromatised drink produced in the territory of that Party,

(c) "description" means the words used on labelling, on any documents accompanying spirits or aromatised drinks during transport, on commercial documents, particularly invoices and delivery notes, and in advertising;

(d) "homonymous" shall mean the same protected name, or a protected name so similar as to be likely to cause confusion, to denote different places of origin, or different spirit or aromatised drinks originating in the respective territories of the Contracting Parties;

(e) "labelling" means all descriptions and other references, signs, symbols, illustrations or trade marks identifying spirits and aromatised drinks and appearing on the container, including the sealing device or the tag attached thereto, and the sheathing covering the neck of bottles;

(f) "presentation" means the words or signs used on containers, including their closure, on the labelling and on the packaging;

(g) "packaging" means the protective wrappings such as paper, straw wrapping of all kinds, cartons and cases, used in the transport of one or more containers and/or in their presentation for sale to the final consumer;

(h) "trade mark" shall mean:

- a trade mark registered in terms of the legislation of a Contracting Party,

- a common law trade mark which is recognised under the law of a Contracting Party, and

- a well-known trade mark referred to in Article 6 bis of the Paris Convention for the Protection of Industrial Property (1967).

TITLE I

RECIPROCAL PROTECTION OF DESIGNATIONS OF SPIRITS AND AROMATISED DRINKS

Article 4

Principles

1. Without prejudice to Articles 22 and 23 of the Agreement on trade-related aspects of intellectual property rights (hereinafter called "the TRIPs Agreement") set out in Annex 1C to the Agreement establishing the World Trade Organisation, the Parties shall take all the necessary measures, in accordance with that Annex, to ensure reciprocal protection of the designations referred to in Article 5 and used to describe spirits and aromatised drinks originating in the territory of the Parties. To that end, each Party shall provide the interested parties with the appropriate legal means for preventing the use of a designation to identify spirits or aromatised drinks not originating in the geographical area indicated by the designation in question or in the place where the designation in question is traditionally used.

2. In Croatia, the protected Community designations:

- may not be used otherwise than under the conditions laid down in the laws and regulations of the Community, and

- shall be reserved exclusively for the spirits and aromatised drinks originating in the Community to which they apply.

3. In the Community, the protected Croatian designations:

- may not be used otherwise than under the conditions laid down in the laws and regulations of Croatia, and

- shall be reserved exclusively for the spirits and aromatised drinks originating in Croatia to which they apply.

4. The protection provided for in this Agreement shall prohibit in particular any use of protected designations for spirits and aromatised drinks which do not originate in the geographical area indicated by the designation in question or in the place where the designation in question is traditionally used, and shall apply even when:

- the true origin of the spirits and aromatised drinks is indicated,

- the geographical indication in question is used in translation,

- the name is accompanied by terms such as "kind", "type", "style", "imitation", "method" or other expressions of the sort.

5. In cases of homonymous designations for spirits and aromatised drinks, protection shall be accorded to each designation. The Stabilisation and Association Committee may determine by way of decision the practical conditions under which the homonymous designations in question are to be differentiated from each other, taking into account the need to treat the producers concerned fairly and to avoid misleading the consumer.

6. The provisions of this Agreement shall in no way prejudice the right of any person to use, for trade purposes, their own name or the name of the person whose business they have taken over, provided that such names are not used in a way that misleads consumers.

7. Nothing in this Agreement shall oblige a Party to protect any designation of the other Party which is not protected or ceases to be protected in its country of origin or which has fallen into disuse in that country.

8. The Contracting Parties hereby waive their right to invoke Article 24(4) to (7) of the TRIPs Agreement in order to refuse to grant protection to designations from the other Party.

Article 5

Protected designations

The following designations shall be protected:

(a) as regards spirit drinks originating in the Community, the designations listed in list 1;

(b) as regards spirit drinks originating in Croatia, the designations listed in list 2;

(c) as regards aromatised drinks originating in the Community, the designations listed in list 3;

(d) as regards aromatised drinks originating in Croatia, the designations listed in list 4.

Article 6

Trade marks

1. The registration of a trade mark for a spirit or aromatised drink which contains or consists of a designation as referred to in Article 5 shall be refused or, at the request of an interested party, be invalidated, with respect to such spirits not originating in the place indicated by the designation.

2. Notwithstanding paragraph 1, a trade mark registered in good faith by 31 December 1995 at latest may be used until 31 December 2005, provided it has been used effectively without interruption since its registration.

Article 7

Exports

The Parties shall take all measures necessary to ensure that, in cases where spirits or aromatised drinks originating in the territory of the Parties are exported and marketed outside their territory, the designations of one Party protected under this Agreement are not used to designate and present spirits or aromatised drinks originating in the other Party.

Article 8

Extension of protection

To the extent that the relevant legislation of the Parties allows, the benefit of the protection afforded by this Agreement shall cover natural and legal persons and federations, associations and organisations of producers, traders and consumers whose head offices are located in the territory of the other Party.

Article 9

Enforcement

1. If the appropriate competent authority, designated in accordance with Article 11, becomes aware that the description or presentation of a spirit drink or aromatised drink, in particular on the labelling, in official or commercial documents or in advertising, is in breach of this Agreement, the Parties shall apply the necessary administrative measures and/or shall initiate suitable legal proceedings with a view to combating unfair competition or preventing the wrongful use of the protected designation in any other way.

2. The measures and proceedings referred to in paragraph 1 shall be taken in particular in the following cases:

(a) where the translation of designations provided for by Community or Croatian legislation into the language or languages of the other Contracting Party results in the appearance of a word which is liable to be misleading as to the origin, nature or quality of the spirits or aromatised drinks thus identified;

(b) where descriptions, trade marks, words, inscriptions or illustrations which directly or indirectly give false or misleading information as to the origin, nature, material qualities of the spirit drink or aromatised drink appear on containers or packaging, in advertising or in official or commercial documents relating to designations protected under this Agreement;

(c) where, for packaging, containers are used which are misleading as to the origin of the spirit drink or aromatised drink.

3. The application of paragraphs 1 and 2 shall not prejudice the possibilities of the persons and entities referred to in Article 8 to take appropriate actions in the Contracting Parties, including recourse to the courts.

Article 10

Other internal legislation and international agreements

Unless otherwise agreed by the Contracting Parties, this Agreement shall not preclude any more extensive protection afforded, now or in the future, to designations protected by this Agreement by the Contracting Parties under their internal legislation or other international agreements.

TITLE II

CONTROLS AND MUTUAL ASSISTANCE BETWEEN COMPETENT AUTHORITIES

Article 11

Enforcement authorities

1. The Contracting Parties shall each designate the authorities responsible for the enforcement of this Agreement. Where a Contracting Party designates more than one competent authority, it shall ensure the coordination of the work of these authorities. For this purpose, a single authority shall be designated.

2. The Parties shall inform one another of the names and addresses of the above authorities not later than two months after this Agreement comes into force. These authorities shall cooperate closely and directly with each other.

Article 12

Infringement

1. If one of the authorities referred to in Article 11 has reason to suspect that:

(a) a spirit drink or aromatised drink as defined in Article 2, being or having been traded between Croatia and the Community, does not comply with this Agreement or with provisions, laid down in the laws and regulations of the Contracting Parties, applicable to spirits and aromatised drinks, and

(b) this non-compliance is of particular interest to the other Contracting Party and could result in administrative measures and/or legal proceedings being taken,

it shall immediately inform the Commission and the relevant authority or authorities of the other Party.

2. The information to be provided in accordance with paragraph 1 shall be accompanied by official, commercial or other appropriate documents, with details of any administrative measures or legal proceedings that may, if necessary, be taken. The information shall include, in particular, the following details concerning the spirits or aromatised drink in question:

(a) the producer and the person who has power of disposal over the spirits or aromatised drink;

(b) the composition and organoleptic characteristics of that drink;

(c) its description and presentation;

(d) details of the non-compliance with the rules concerning production and marketing.

TITLE III

MANAGEMENT OF THE AGREEMENT

Article 13

Working group

1. A working group functioning under the auspices of a special Committee on Agriculture to be created in accordance with Article 115 of the Stabilisation and Association Agreement shall be established.

2. The working group shall see to the proper functioning of this Agreement and shall examine all questions which may arise in implementing it. In particular, the working group may make recommendations which would contribute to the attainment of the objectives of this Agreement.

Article 14

Tasks of the Contracting Parties

1. The Contracting Parties shall, either directly or through the working group referred to in Article 13, maintain contact on all matters relating to the implementation and the functioning of this Agreement.

2. In particular, the Contracting Parties shall:

(a) establish and amend by decision of the Stabilisation and Association Committee the lists referred to in Article 5 and the Protocol to this Agreement, to take account of any amendments to the laws and regulations of the Contracting Parties;

(b) inform each other of the intention to decide new regulations or amendments of existing regulations of public policy concern, such as health or consumer protection, with implications for the spirits and aromatised drinks market;

(c) notify each other of judicial decisions concerning the application of this Agreement and inform each other of measures adopted on the basis of such decisions.

3. Within the framework of this Agreement, either of the Contracting Parties may put forward suggestions for widening the scope of their cooperation in the spirits and aromatised drinks market, taking into account the experience gained in its application.

4. Decisions taken under paragraph 2(a) shall be binding on the Parties which shall take the measures necessary to implement the decisions taken.

TITLE IV

GENERAL PROVISIONS

Article 15

Transit - small quantities

This Agreement shall not apply to spirits and aromatised drinks which:

(a) pass in transit through the territory of one of the Contracting Parties, or

(b) originate in the territory of one of the Contracting Parties and which are consigned in small quantities between those Contracting Parties under the conditions and according to the procedures provided for in the Protocol.

Article 16

Territorial application

This Agreement shall apply, on the one hand, to the territories to which the Treaty establishing the European Community applies and under the conditions laid down in that Treaty and, on the other hand, to the territory of the Republic of Croatia.

Article 17

Failure to comply

1. The Contracting Parties shall enter into consultations if either considers that the other has failed to fulfil an obligation under this Agreement.

2. The Contracting Party which requests the consultations shall provide the other with all information necessary for a detailed examination of the case in question.

3. In cases where any delay could endanger human health or impair the effectiveness of measures to control fraud, appropriate interim protective measures may be taken, without prior consultation, provided that consultations are held immediately after such measures are taken.

4. If, following the consultations provided for in paragraph 1 and 3, the Contracting Parties have not reached agreement, the Party which has requested the consultations or taken the measures referred to in paragraph 3 may take appropriate safeguard measures so as to permit the proper application of this Agreement.

Article 18

Marketing of pre-existing stocks

1. Spirits and aromatised drinks which, at the time of entry into force of this Agreement, have been legally produced, described and presented, in accordance with the internal laws and regulations of the Contracting Parties, but which may be prohibited by this Agreement, may be marketed by wholesalers for a period of one year from the entry into force of the Agreement and by retailers until stocks are exhausted. From the entry into force of this Agreement, spirits and aromatised drinks included herein may no longer be produced outside the limits of their regions of origin.

2. Spirits and aromatised drinks produced, described and presented in accordance with this agreement whose description and presentation cease to comply with this Agreement following an amendment thereto may continue to be marketed until stocks are exhausted, unless otherwise agreed by the Contracting Parties.

(1) OJ L 160, 12.6.1989, p. 1. Regulation as last amended by Regulation (EC) No 3378/94 of the European Parliament and of the Council (OJ L 366, 31.12.1994, p. 1).

(2) OJ L 149, 14.6.1991, p. 1. Regulation as last amended by Regulation (EC) No 2061/96 of the European Parliament and of the Council (OJ L 277, 30.10.1996, p. 1).

Protocol to the Agreement between the European Community and the Republic of Croatia on the reciprocal recognition, protection and control of designations for spirits and aromatised drinks

THE CONTRACTING PARTIES HEREBY AGREE AS FOLLOWS:

Pursuant to Article 15(b) of the Agreement, the following shall be considered to be small quantities of spirits and aromatised drinks:

1. quantities in labelled containers of not more than 5 litres fitted with a non-reusable closing device where the total quantity transported, whether or not made up of separate consignments, does not exceed 10 litres;

2. (a) quantities contained in the personal luggage of travellers in quantities not exceeding 10 litres;

(b) quantities sent in consignments from one private individual to another in quantities not exceeding 10 litres;

(c) quantities forming part of the belongings of private individuals who are moving house;

(d) quantities imported for the purpose of scientific or technical experiments, subject to a maximum of 1 hectolitre;

(e) quantities imported for diplomatic, consular or similar establishments as part of their duty-free allowance;

(f) quantities held on board international means of transport as victualling supplies.

The case of exemption referred to in paragraph 1 may not be combined with one or more of the cases of exemption referred to in paragraph 2.