CELEX: 51996PC0038
Language: en
Date: 1996-03-06
Title: 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

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                        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)
 ---pagebreak---  ---pagebreak---                                 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.      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.
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.
 ---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 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
 ---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 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.
 ---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.
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,
 ---pagebreak--- a name not included7 is this list coufif weîïfeeconsidered 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.
 ---pagebreak---                                   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
        OJ No         ,           , p.
2
        O J N o L 208, 24.7.1992, p.l.
 ---pagebreak---                                      Article 2
This Decision is addressed to the Member States.
 ---pagebreak---  ---pagebreak---                                                                    ISSN 0254-1475
                                                             COM(96) 38 final
                                              DOCUMENTS
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