Proposal for a COUNCIL DECISION drawing up a non- exhaustive, indicative list of the names of agricultural products and foodstuffs regarded as being generic, as provided for in Article 3(3) of Council Regulation (EEC) No 2081/92
Date: 1996-03-06
Institutions: European Commission
Subjects: agricultural product, designation of origin, foodstuff, product designation

'$&ÈÈM 

COMMISSION  OF THE EUROPEAN  COMMUNITIES 

Brussels,  06.03.1996 
COM(96) 38  final 

Proposal  for a 

COUNCIL  DECISION 

drawing  up a non-exhaustive, indicative  list of the names of agricultural  products and 
foodstuffs  regarded  as being  generic,  as provided  for  in Article  3(3) of 
Council  Regulation  (EEC) No 2081/92 

(presented  by the  Commission) 

EXPLANATORY  MEMORANDUM 

I. 

Reasons  for  delay  in presenting  the  proposal 

Under  Article  3(3)  of  Regulation  (EEC)  No  2081/92  on  the  protection  of  geographical 
indications  and  designations  of  origin  for  agricultural  products  and  foodstuffs, 
the 
Commission  was  to  present  the  Council  with  a  list  of  generic  names  before  the 
Regulation  came  into  force,  on  26  July  1993. 

DG  VI  drafted  a  proposal  in  May  1993,  the  written  procedure  (E/774/93)  for  which 
should  have  been  completed  on  2  June  1993.  Mowever,  that  procedure  was  blocked;  as 
it  had  still  not  been  completed  by  20  January  1995,  it  was  terminated  when  the  new 
Commission  took  office.  This  explains  why  the  proposal  could  not  be  presented  to  the 
Council  in  time. 

Following  the  accession  of  three  new  Member  States,  the  proposal  was  updated  to  take 
account  of  their  contributions;  it  has  also  been  revised  in  the  light  of  the  remarks  of  the 
Legal  Service. 

II. 

The  justification  for  the  proposal  from  the  point  of  view  of  subsidiarity  lies  in  the  fact 
that  the  action  being  taken  is  exclusively  a  matter  for  the  Community.  It  is  required  by 
the  Council,  under  the  above-mentioned  Article  3  of  Regulation  (EEC)  No  2081/92. 

III. 

Situation,  criteria  adopted  and  specific  problems 

1. 

2. 

Council  Regulation (EEC) No  2081 /92 of  14 July  1992, which came into force  on 
26  July  1993, is intended  to provide protection  throughout  the Community  for  the 
geographical  indications and designations of origin of certain  agricultural  products 
and  foodstuffs.  To  qualify  for  such  protection,  it  must  be  proved  that  there  is a 
link  between  the  characteristics  ol  the  product  concerned  and  the  geographical 
area  from  which  it  comes.  Protection  is  granted  once  the  product  has  been 
registered  and  included  on  a  Community  list.  However,  names  which  have 
become  generic  cannot  be  registered. 

Article  3  of  Regulation  (EEC)  No  2081/92  provides  for  an  obligation  on  the 
Commission  to  present  a  proposed  list  of  generic  names  to  the  Council  in  the 
following  terms:  "Before  the  entry  into  force  of  this  Regulation,  the  Council, 
acting  by  a qualified  majority  on  a proposal  from  the  Commission,  shall  draw  up 
and  publish  in  the  Official  Journal  of  the  European  Communities  a  non-
exhaustive,  indicative  list  of  the  names  of  agricultural  products  or  foodstuffs 
which  are  within  the  scope  of  this  Regulation  and  are  regarded  under  the  terms 

of  paragraph  1 as  being  generic  and  thus  not  able  to  be  registered  under  this 
Regulation." 

In this respect, Article  3(1) of the Regulation lays down the following  definition: 
"a "name that has become generic" means the name of an agricultural  product or 
a foodstuff  which, although it relates to the place or the region where this product 
or foodstuff  was originally produced or marketed, has become the common name 
of an agricultural  product  or a  foodstuff." 

The Regulation  requires that  all  factors  be taken  into account  when  determining 
whether  a name has become generic at Community  level, such as the situation in 
the Member  State of  origin,  in areas where it  is consumed  and  in other  Member 
States, and the  relevant  national  and  Community  laws.  These criteria  are to be 
considered  together. 
It  should  be  noted  in  this  connection  that  in  its  recent 
judgment  of  10 November  1992  in  Case C-3/91  (Exportur  SA  v.  LOR  SA  and 
Confiserie du Tech), (paragraph  37). the Court took as a criterion the status of the 
name  in  the  Member  State  of  origin  with  a view  to  establishing  whether  it  had 
become  generic. 

3. 

It should be stressed that under the Regulation names which have become generic 
cannot  be registered.  As a  result,  the  issue of  generic  names  is a  sensitive one 
and  has  always  met  with  strong  reactions.  When  a  geographical  name  is 
registered,  its use is restricted  to  enterprises  in the area concerned  and  forbidden 
to  all others. 

It  follows  from  these arrangements  that  declaring  a name to be  generic  has very 
important  consequences,  particularly  of  an  economic  nature,  which  affect  the 
interests of private  individuals.  Great caution  should accordingly  be exercised in 
this area and  Article  3 should  be applied  in an unbiased  and  objective  fashion. 

As a result,  in order to gain as comprehensive  an overall  view as possible  of the 
situation  before  making  proposals concerning  generic  names  in accordance  with 
Article  3(3)  referred  to above, the Commission considered  it vital  to  request  the 
cooperation  of  the  Member  States.  By  letter  of  22 July  1992  and  reminder  of 
12 November,  and  by  letter  of 23 March  1995 to the three  new Member  States, 
it  requested  that  lists  of  names  of  products  which  the  Member  States  regard  as 
likely  to be recognized  as generic  names  should  be  forwarded  to  it. 

4. 

The  lists  notified  differ  substantially  as  regards  the  names  suggested  and  the 
number thereof, which reflects the divergent, or even (in certain cases) conflicting, 
approaches of the Member States.  In addition, the lists forwarded  by the Member 
States provide no information  enabling applications to be assessed on the basis of 
the  criteria  set out  in Article  3(1) of the  Regulation. 

Under these circumstances, the Commission has drawn up an initial  list of names 
which may at first sight be regarded  as generic on the basis of lists forwarded  by 
the  Member  States  and  applying,  as  far  as  possible,  the  criteria  laid  down  in 
Article  3(1) of the Regulation, by taking into account the relevant  legislation and 
suggestions from  the Member  State of origin  and the other  Member  States. 

The Commission has therefore  selected  as potentially  generic names which meet 
the  following  conditions: 

(a) 

They  have been  put  forward  by at  least eight  Member  States. 

Where  a  majority  of  Member  States  has  not  requested  that  a  name  be 
declared  generic,  it  Cannot  easily  be presumed  prima  facie  that  the  name 
has become the common  name of a product  across the  Community. 

(b) 

The  Member  State  of  origin  is  a  Contracting  Party  to  the  International 
Convention of Stresa and/or has itself included the name in the list sent to 
the  Commission. 

The Convention  of Stresa does not explicitly  declare the cheeses listed in 
Annex  II  thereto  to  be  generic.  However,  it  does  lay  down  their 
production  method  and  permits  their  production  outside  the  Contracting 
Party where the name originates.  The fact that the Member State of origin 
is a Contracting  Party to the Convention  is a prima facie  indication that it 
has agreed  for  decades that the name can be used by third  parties.  It can 
therefore  be assumed that the name has become the common name for the 
cheese  in the meantime. 

The Court of Justice (in Exportur,  37) made extending national  protection 
of a name to other Member  States conditional on the fact that the name in 
question  had  not  become  generic  in the  Member  State  of origin. 

It  can  be  acknowledged  prima  facie  that  any  Member  State  which 
considered  one of  its own  names a likely  candidate  for  protection  would 
not  propose that  it be declared  generic. 

(c) 

The names are not protected by international  agreements (bilateral or other 
conventions)  in Member  States other  than the  Member  State  of  origin. 

The  said  international  agreements are  regarded  as extending  outside  its 
territory  the  protection  of  names belonging  to  a Member  State  of  origin. 
They  include  clauses which  prohibit  the  protected  names  from  becoming 
generic.  Even where conditions (a) and/or (b) above are fulfilled,  it would 

be difficult  to maintain the resulting prima facie case if the names referred 
to were protected by these agreements. 

The list proposed  in the Annex  is therefore  of necessity  short. 

5. 

The name  "Feta" 

The  name  "Feta"  was  communicated  by  the  Greek  Government  for  registration 
under  the  Regulation  as  a  designation  of  origin,  and  Commission  departments 
have  received  many  strongly-worded  responses  to  the  question  whether  it  has 
become a generic  name. It is therefore  essential to proceed  with extreme  caution 
when dealing with this name, and indeed to back up any decision taken with very 
convincing  evidence,  since the  economic  interests at stake are considerable. 

In view of the traditional  practice of the Courts in Great Britain and  Germany in 
cases  of  this  type,  which  consists  in  conducting  a  survey  to  determine  public 
opinion  on  the  matter,  a  Eurobarometer  survey  of  consumers  in  the  twelve 
Member  States of the Union  at that  date  was carried  out  in May  1994. 

Under  Regulation  (EEC) No 2081/92, for  a name to be declared  generic, it must 
have  become  the  common  name  of  a  product,  i.e.  it  now  means  the  product  as 
such, without  the public being aware of a reference  to the geographical  origin of 
the  product. 

The  conclusions of  the survey, which  reflect  the  public  perception  of  the  name 
"Feta"  in the  Union,  are  as  follows. 

(a) 

The name "Feta" is not well  known  in the Union  (only one person in five 
had  heard  of it). 

According to legal tradition  in Great Britain and German)', with which the 
Legal  Service of the Commission concurs, ignorance of a name cannot be 
invoked  as an argument  for  that  name's being generic. 

(b)  Most of the consumers who knew or had heard of Feta thought that it was 

a product  originating  in Greece. 

In  view  of  the  foregoing,  it  would  appear  that  the  name  "Feta"  has not  become 
the  generic  name  of  a product,  but that  it continues  to connote  Greek  origin  for 
most  of  those  who  know  it.  If  this  is  so,  the  name  "Feta"  does  not  match  the 
definition  of  a generic  name  in Article  3(1)  of  Regulation  (EEC) No 2081/92. 

The  question was also put to the Scientific Committee assisting the  Commission 
with  the  application  of  Regulation  (EEC)  No  2081  92,  which  delivered  the 
following opinion. 

1. 

In  the  light  of  the  information  presented  by  the  Commission,  and  in 
particular the results>of the opinion  survey, the Committee takes the view 
that the name  "Feta" has not  become a generic name. However,  it  should 
be  stressed  that  the  Committee  considered  only  the  question  whether 
"Feta" was a generic name (unanimous opinion of seven voting members), 
without prejudice to the question of products legally existing on the market 
in  Member  States  other  than  Greece, or  in third  countries.  Article  13 of 
Regulation (EEC) No 2081 /92 provides that products may continue to use 
registered  names  for  a period  of  up to five years. 

The  Committee  draws  a  clear  distinction  between  generic  names  on  the 
one hand, and the names of products legally marketed on the other. As the 
public  may understand  certain  names to refer  to a product  with a  specific 
geographical  origin,  even when  those names are legally  used  in trade  for 
products  of other  origins, the rules  distinguish  between  arrangements  for 
generic  names  (which  may  not  be  registered)  and  those  for  expressions 
legally  used  in trade (which  can continue to be used temporarily  once the 
name  has been registered). 

2. 

In  view  of  the  specifications  presented  by  the  Greek  Government,  the 
name  "Feta"  qualifies  as  a  designation  of  origin  within  the  meaning  of 
Article  2(3)  of  Regulation  (EEC)  No  2081/92  (4  votes  for,  3  against, 7 
voting  members). 

Consequently,  on the basis of the results of the survey  and  of the opinion  of the 
Scientific Committee, the name "Feta" has not become generic within the meaning 
of  Article  3 of the  Regulation,  and  it is not  included  in the  Decision. 

6. 

It  was  not  considered  necessary  to  draw  up this  list  by  means  of  a  Regulation. 
As the  list  is indicative,  a Decision  would  appear  to  suffice. 

The  list  must  of  necessity  be  indicative  without  having  legal  implications  erga 
omnes  given  that  a definitive  decision  on  the  generic  nature  of  a name  must  be 
made only as part of a procedure  where exercise of the various rights in question 
is  guaranteed,  such  as  that  provided  for  in  the  Regulation  in  respect  of 
registration. 

On  the  other  hand,  the  list  must  be  non-exhaustive  in  so  far  as  it  is  not  the 
intention to  identify  all  names that  might be declared  generic; as a consequence, 

a  name not included7 is this list coufif weîï fee considered genenc at some  future 
têne: 

In  addition, names win  be regarded  in  future  as generic  within  the meaning  of 
Regulation (BEC) No 2081/92 ©n condition that the appti cation for registration has 
been rejected, either in the normal  course of events (Articles 6(2) anê  17(2)) or 
after lodgment of an objection^ Article 7 ( 5 p) of Regulation (EEC) No  2081/92) 
because the name has Become generic. 

COUNCIL  DECISION 
drawing  up a non-exhaustive,  indicative  list of the names of agricultural  products and 
foodstuffs  regarded  as being  generic, as provided  for  in Article  3(3) of 
Council  Regulation  (EEC) No 2081/92 

THE  COUNCIL  OF THE  EUROPEAN  UNION, 

Having  regard  to the Treaty  establishing the  European  Community, 

Having  regard  to the proposal  from  the  Commission1, 

Having  regard  to  Council  Regulation  (EEC)  No  2081/92  of  14  July  1992  on  the 
protection of geographical  indications and designations of origin for agricultural products 
and  foodstuffs",  and  in particular  Article 3(3) thereof, 

Whereas,  pursuant  to  Article  3(3)  of  Regulation  (EEC)  No 2081/92,  before  that 
Regulation  enters  into  force  the  Council  is  to  draw  up a non-exhaustive,  indicative  list 
of the  names of  agricultural  products  and  foodstuffs  which  fall  within  the  scope of that 
Regulation  and  which  are  regarded  as being generic, 

HAS ADOPTED  THIS  DECISION: 

Article 1 

The  following  non-exhaustive,  indicative  list shall  be regarded  as names that  have 
become  generic. 

-  Brie 
-  Camembert 
-  Cheddar 
-  Edam 
-  Emmentaler 
-  Gouda 

1 
2 

OJ No 
, p. 
, 
O J N oL  208, 24.7.1992,  p.l. 

This Decision  is addressed  to the Member  States. 

Article 2 

ISSN 0254-1475 

COM(96) 38  final 

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