WRITTEN QUESTION E-0821/00 by Roberta Angelilli (UEN) to the Commission. Article 211 of the US Omnibus Appropriation Act.
Date: 2000-03-21
Institutions: European Parliament, Provisional data
Subjects: Cuba, TRIPS, United States, trade agreement (EU), trade dispute, trade-mark law

13.2.2001

EN

Official Journal of the European Communities

C 46 E/51

(cid:129) whether, before deciding to refer the case to the WTO Panel,

the appropriate
it carried out
investigations to ascertain whether Article 211,
in the context of other US laws regulating the
expropriation of goods without compensation, in effect discriminates against Cuban citizens rather
than those of the rest of the world;

(cid:129) whether it does not consider that in order not to give the impression that referral to the panel was
rather a tactical move for the benefit of a private individual and a third country, it should reopen
consultations with the United States with a view to formulating Article 211 in such a way as to
comply with the Commission(cid:146)s interpretation of the agreements on TRIPS, whilst safeguarding the
legal principle underlying it?

(2001/C 46 E/056)

WRITTEN QUESTION E-0821/00

by Roberta Angelilli (UEN) to the Commission

Subject: Article 211 of the US Omnibus Appropriation Act

(21 March 2000)

With regard to the dispute between the EU and the USA concerning Article 211 of the US Omnibus
Appropriation Act of 1998, can the Commission answer the following questions:

1. What general European interests are being defended in the dispute?

2.

3.

In a press release issued on 7 February by a French company (cid:129) Pernod Ricard (cid:129) concerning an
adverse decision of 4 February by the US Court of Appeal that company appears to be anticipating the
Commission(cid:146)s decisions. This gives the impression that an attempt is being made to manipulate the
Commission.

In view of Mr Prodi(cid:146)s commitment to upholding the principle of transparency in the actions of the
Commission and its officials, can it guarantee that it is defending truly general interests and not those
of a single economic group?

It is in the general interest that acts of confiscation without compensation for the rightful owners
should not acquire international validity. This is a principle widely recognised in European constitu-
tions which has been enforced by the courts on many occasions. Article 211 of the Omnibus Act only
reinforces this principle.

Does the Commission not consider that to make Europe take the United States to the WTO in an attempt
to revoke Article 211 may be seen as a battle to uphold the rights of the confiscator over the oppressed,
and of force over justice?

Joint answer
to Written Questions E-0820/00 and E-0821/00
given by Mr Lamy on behalf of the Commission

(14 April 2000)

The Honourable Member refers to several aspects relating to the dispute with the United States concerning
the compatibility of Section 211 of the United States Omnibus Appropriations Act 1998 with the
provisions of the Agreement on trade-related aspects of intellectual property rights (TRIPs Agreement) of
the World Trade Organisation (WTO).

As regards the recognition by countries of foreign uncompensated expropriations, the current WTO
dispute does not concern the question whether or not foreign uncompensated expropriations have to be
recognised by other third countries. In fact, American trademarks were not and could not be expropriated
by the Cuban government. Individuals and companies expropriated by the Cuban government remained
the owners of property outside Cuba. In particular, their rights in trademarks registered in the United
States were unaffected by the Cuban revolution.

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Official Journal of the European Communities

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13.2.2001

The WTO dispute rather relates to the treatment of American trademarks which were abandoned by their
previous Cuban owners and which can be registered, renewed and enforced in the United States by the
new owner only under certain conditions. These conditions are contained in Section 211 which was
adopted by the United States almost 40 years after the Cuban revolution. Section 211 does not contain or
reinforce the principle, cited by the Honourable Member, of non-recognition of foreign expropriations.

After a detailed analysis of Section 211, the Commission came to the conclusion that Section 211 violates
certain provisions of the WTO TRIPs Agreement, notably its national treatment provisions, the trademark
provisions and the enforcement provisions. This analysis was shared by all Member States.

Concerning the discriminatory effects of Section 211, the Commission would reiterate that the WTO
dispute does not concern the question of uncompensated expropriations of trademarks. The conditions for
trademark registration and enforcement contained in Section 211, in the view of the Community and its
Member States, violate the TRIPs Agreement, notably in so far as Section 211 affects only so-called
(cid:145)designated nationals(cid:146), including Cubans and Cuban companies. The United States did not demonstrate
during the WTO consultations held in September 1999 and December 1999 that similar conditions are
placed upon nationals from the United States or third countries other than Cuba.

In the WTO dispute, the main aim of the Commission remains the proper implementation and application
by the United States of the WTO TRIPs Agreement bearing in mind that Section 211 can potentially affect
all European companies dealing with Cuba. It should be in the interest of the Community and its Member
States to ensure that the provisions of the WTO TRIPs Agreement are respected by all WTO Members.

The Community and its Member States raised the incompatibility of Section 211 with the WTO TRIPs
Agreement with the United States on various occasions, including at the past three EU-US summits and in
the WTO TRIPs Council in order to find an amicable solution to the matter. However, the American
administration constantly refused to engage into any substantive discussion. The Community and its
Member States requested consultations under the WTO Dispute Settlement Understanding in July 1999.
Two rounds of consultations were held in September 1999 and December 1999, but the United States
maintain the view that Section 211 is compatible with the American international obligations.

Having evaluated the outcome of the WTO consultations and the economic and political interests involved,
the Commission came to the conclusion that the only course available to the Community and its Member
States to ensure the proper application of the WTO TRIPs Agreement by the United States in this instance
is the request for a WTO Panel.

Finally, with reference to the alleged impact on the Commission decision making procedure of the
expression by a European company of its interests in the dispute, the Commission would like to reiterate
that it remained concerned about the proper implementation and application by the United States of the
WTO TRIPs Agreement. Although Section 211 has, so far, only been applied once, it has the potential to
affect all European companies dealing with Cuba. The Commission assures the Honourable Member that it
continues to resist all attempts by any interested party to manipulate its position.

(2001/C 46 E/057)

WRITTEN QUESTION P-0829/00

by Graham Watson (ELDR) to the Commission

(10 March 2000)

Subject: Field margin regulations leading to environmental damage

More than 50 % of the field margins in my constituency (the South West of England) are over two metres.
The Commission and the Court of Auditors have recently instructed MAFF to reduce the amount of