CELEX: 51996PC0038
Language: sv
Date: 1996-03-06
Title: Förslag till rådets beslut om upprättande av en icke uttömmande vägledande förteckning över namn på jordbruksprodukter och livsmedel som betraktas som generiska enligt artikel 3.3 i rådets förordning (EEG) nr 2081/92

EUROPEISKA GEMENSKAPERNAS KOMMISSION
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                                                 Bryssel den 06.03.1996
                                                 KOM(96) 38 slutlig

                                  Förslag till

                              RÅDETS BESLUT

  om upprättande av en icke uttömmande vägledande förteckning över namn på
jordbruksprodukter och livsmedel som betraktas som generiska enligt artikel 3.3 i
                      rådets förordning (EEG) nr 2081/92

                          (framlagt av kommissionen)
 ---pagebreak---  ---pagebreak---                                  EXPLANATORY MEMORANDUM

I.     Reasons, for delay in present ins 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. However, 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.     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.

       2.     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
 ---pagebreak--- 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.

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.

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.
 ---pagebreak--- 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 o[ origin.
       They include clauses which prohibit the protected names from becoming
       generic. Even where conditions (a) and/or (b) above are fulfilled, it would
 ---pagebreak---             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 yery
     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.
 ---pagebreak---  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.

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.
 ---pagebreak---      a name not included is this list could well be considered generic at some future
     time.

7.   In addition, names will be regarded in future as generic within the meaning of
     Regulation (EEC) No 2081/92 on condition that the application for registration has
     been rejected, either in the normal course of events (Articles 6(2) and 17(2)) or
     after lodgment of an objection (Article 7(5)(b) of Regulation (EEC) No 2081/92)
     because the name has become generic.
 ---pagebreak---                                  RÅDETS BESLUT
    om upprättande av en icke uttömmande vägledande förteckning över namn på
  jordbruksprodukter och livsmedel som betraktas som generiska enligt artikel 3.3 i
                        rådets förordning (EEG) nr 2081/92

EUROPEISKA UNIONENS RÅD HAR FATTAT DETTA BESLUT

med beaktande av Fördraget om upprättandet av Europeiska gemenskapen,

med beaktande av kommissionens förslag1,,

med beaktande av rådets förordning (EEG) nr 2081/92 av den 14 juli 1992 om skydd för
geografiska och ursprungsbeteckningar för jordbruksprodukter och livsmedel2, särskilt
artikel 3.3 i detta, och

med beaktande av följande:

Enligt artikel 3.3 i förordning (EEG) nr 2081/92 bör rådet upprätta en icke uttömmande
vägledande förteckning över namn på jordbruksprodukter och livsmedel som omfattas av
ovan nämnda förordning och som betraktas som generiska, före ikraftträdandet av ovan
nämnda förordning.

HÄRIGENOM FÖRESKRIVS FÖLJANDE.

                                         Artikel I

Följande icke uttömmande vägledande förteckning med beteckningar som blivit generiska
har upprättats:

       Brie
       Camembert
       Cheddar
       Edamer
       Emmentaler
       Gouda

                                         Artikel 2

Detta beslut riktar sig till medlemsstaterna.

       EGTnr
       EGT nr L 208, 24.7.1992, s. 1.

                                                     5
 ---pagebreak---                                                                     ISSN 1024-4506

                                                          KOM(96) 38 slutlig

                                               DOKUMENT

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                                     Katalognummer : CB-CO-96-049-SV-C

                                                               ISBN 92-78-00176-7

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