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Michel Barnier and David Davis 12.10.2017

Parma ham, Cognac and Roquefort cheese could become caught up in  a political side-show  in the Brexit talks following a European Commission  position paper on intellectual property rights (IPR). The issue relates to Geographical Indications, which are specific  rights pertaining to these and other food and wine products, and a demand from the EU for new British legislation.  The timing  of the demand  -  in a  position paper on IP rights -  is curious, and it has exposed an unexpected sensitivity in the Brexit negotiations.  Why you might ask, does this matter at all?

What has happened?

The rights – known as Geographical Indications  (GIs) -  are a special  type of intellectual property rights that protect EU food, wine and agricultural products whose ‘brand’ is connected to a local area.  GIs protect the producers  against counterfeiting or passing off  by similar products from elsewhere. A number of British food products enjoy the protection of GIs and have done so for the past 10 years under EU law.  They  include Welsh lamb, Melton Mowbray pork pies and Cornish pasties.

Post-Brexit,  Geographical Indications claimed by localities in the EU27 Member States may possibly not be recognised in the UK – unless the government includes them in specific legislation to maintain protection.

Hence, the EU position paper on IPR  homes in on Geographical Indications as something  that needs special attention. The EU priority is  to ensure that  IP rights that currently apply across the whole of the EU, will continue in force in the UK, and that they will do so  for both  EU and UK rights-holders.  In the paper, the EU has asked  Britain to maintain protection for GIs  after Brexit putting in place specific  legislation that will offer comparable protection to EU law.  This demand has puzzled some observers, as here in the Financial Times .

 Why do Geographical  Indications  matter?

 Geographical Indications  carry great sensiitivity in the European Union, precisely because they protect culinary delicacies and wines  that are not only economically important in certain areas, but are core to the European identity such as Parma ham or Champagne.  These food products and wines are like a precious  diamond in the crown. Therefore, the EU likes to ensure protection for them in its trade agreements.

It is the usual practice of EU trade negotiators to insist on  Geographical Indications  being included in an agreement, as they did in the case of the Anti-Counterfeiting Trade Agreement (ACTA). Latest ACTA leaks: EU boasts of 'innovative' Internet enforcement   Geographical Indications are also incorporated into the international agreement on IP Enforcement known as TRIPs. GI’s would be expected to  form part of a new UK-EU free  trade agreement, probably within a dedicated chapter on intellectual property rights.  

EU protection of GIs dates back to 1992 and a landmark legal ruling known as the Cassis de Dijon case. The ruling  meant that goods legally produced and marketed in one Member State could be sold in all others. Soon after that ruling, the EU adopted the first legisalative instrument to protect geographic indications for agricultural products. 

This was updated in 2006, when a new Regulation was passed by the Council of Ministers (Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indication and destinations of origin for agricultural products and foodstuffs ) This Regulation 510/2006  established a common framework across all 28 Member States for the registration and recognition of GIs. It provides for two forms of the right: Protected Designations of Origin (PDO) covers foodstuffs produced and processed in a given geographic area using recognised know-how, and  Protected Geographical Indications (PGI) which protect foods where one of the production stages is linked to an area. Another Regulation adopted in 2007 (1234/2007) covered wines. The Regulations were updated in 2012 and 2013 by the European Parliament.

On that basis, the EU demand  should be no surprise.  However, as we know, there are no formal talks on trade yet and recent developments suggest they could be some way off. What’s interesting is why the EU has  raised the GI issue  now. 

The risk of losing protection

There is a risk that the ongoing protection of GIs, especially those in the EU27, will be lost. Brexit will create uncertainty for foods and wines that are protected by registered GIs. The current system relies on mutual recognition of GIs once the rights have been registered with the European Commission. This system breaks down under Brexit.

There is a question mark as to whether the UK will recognise European products protected by registered GIs. There is a further question as the validity of British GIs registered under the EU system. Furthermore, what is the system for registering new GIs in Britain?

Why the need for  British legislation?

The problem for the EU is that protection of GIs has never been directly implemented in British law. As they were brought into EU law via Regulations, the EU instruments were directly applicable in Britain so there was no need for a domestic law to be passed.

Under the EU Withdrawal Bill (also known as the Repeal Bill) these Regulations should be automatically converted into British law. The Bill is currently before the Westminster parliament but its timetable has been delayed.

However, the conversion into British law  via the Repeal bill  does  not ensure the ongoing  recognition of GIs protecting foostuffs originating the EU27. We are leaving the system of mutual recognition, and so it seems that the conversion may only protect British GIs.  In other words,  Parma ham or Champagne risk losing their special IP protection  in the UK post-Brexit.

An alternative scenario is that British GIs are no longer effective at all, because they would have been registered with  the European Commission.

 Moreover, these  will  be among  of thousands of such Regulations being converted into British law. As such, they could be subject to amendment by the government without Parliamentary scrutiny unsing the controversial Henry VIII powers that are also in the EU Withdrawal Bill. This presents a risk. In theory, a British Minister could abolish  Geographical Indications in list in  a Statutory Instrument  and Parliament would simply nod it through under a simple  procedure where it just gives assent.

So the EU wants an assurance. This is the reason for its request that the British government should legislate to maintain the protection for  Geographical Indications after 29 March 2019.

It does look a little like the EU is trying to make its case early, and it  reveals a sensitivity that risks becoming a cause célébre within the Brexit talks if it is not resolved.

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See my previous article on the UK-US trade talks IP Brexit: Will Liam Fox protect the Cornish pasty?

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Iptegrity.com is the website of Dr Monica Horten. She is  a trainer & consultant on Internet governance policy, published author& Visiting Fellow at the London School of Economics & Political Science. She served as an independent expert on the Council of Europe Committee on  Internet freedom. She has worked on CoE, EU and UNDP funded projects in eastern Europe and beyond.  She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy (and now Brexit). Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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