1.16. The representative of the European Union said that his delegation appreciated the Chair's efforts, patience and guidance for delegations in developing the draft composite text which had now been circulated to the entire membership. Completing the program established at the end of 2010 and developing the draft that was being circulated had not always been easy, but he believed that the outcome fairly reflected the views expressed throughout the consultation process. This was also the reason why the draft contained a substantial number of brackets. This Special Session meeting was a good opportunity to share the outcome of the informal consultations with the rest of the membership and to ensure full transparency. His delegation was ready to explain the proposals on the table, to answer any question and to consider any suggestion to improve the quality and the clarity of the text. It was also important to note that the composite draft was a work-in-progress document and that the readability of the draft and the clarity of the text would certainly need to be improved. Nevertheless, at this stage, the draft reflected the main approaches that had been discussed during the consultations.
1.17. He said that it was apparent from the draft that the EU's approach was fully in line with the communication from July 2008 when there had been broad consensus among two thirds of the Membership on the approach described in document TN/C/W/52 ("W/52"). Mindful of the efforts all Members of the coalition had made to agree on a common platform, the EU's approach in the draft composite text faithfully transposed the W/52 principles. That being said, the EU was of course open to improving the language to clarify any doubt that could arise. Although his delegation had understood that this meeting was not intended as a drafting session, it was his impression after the last intervention that the EU's proposal was still unclear to some delegations. He would therefore like to clarify the ideas behind the EU's drafting proposals as they appeared in the draft composite text.
1.18. Regarding the preamble, he said that, as currently it was still unclear what exact structure, format or instrument would embody the result of these negotiations his delegation did not see a need for a preamble. However, once the content of the legal text had become clear, and if Members still felt the need, his delegation would be prepared to consider the content of a preamble.
1.19. Regarding participation in the Register, the question of whether participation should be voluntary or mandatory had been extensively discussed in previous meetings of the Special Session and in the current process. The EU's position remained clear and unchanged. The Register was to be a multilateral system – otherwise it would have been specified as "plurilateral" – and, in principle, all WTO Members should be part of the system. The idea that a voluntary Register would be an adequate S&D measure has been rejected by both developing and least developed countries. The rationale of the EU's position was clear from the proposed draft in B1 and in D1: Members "may" notify a GI and "shall" consult the Register and take its information into account when making a decision on GIs and trademarks. The principle has been extracted from these two paragraphs and recalled in the specific paragraph A1 related to participation. This also strictly reflected the position established in TN/C/W/52. While it had been argued in the past that the Register should be voluntary because of costs and burdens to Members, it was now clear from the proposal on the table that the Register that was being proposed would entail very limited costs or administrative burdens to Members.
1.20. Concerning notification and registration, he said that the main idea in paragraph B1 was that, in line with TRIPS Article 22.1, Members would be able to notify GIs to the Register which were protected in their respective territories. Members would only notify GIs that were protected domestically, according to the domestic rules implementing the TRIPS Agreement. In order to address concerns over the transparency and reliability of the register his delegation had suggested including in the draft a few elements to ensure that the register would provide reliable information. However, knowing that such provisions also had to fit into all Member's legal systems, the drafting had tried to cater for such differences. For instance, information on the date of protection received in the country of origin or the date when such protection ceased was considered useful and should be communicated to the Register, only if that was available under the respective domestic systems. If not, then obviously there was no obligation to notify such information. This was the case in the EU: there was no date of expiration of a GI protected under the GI legislation and there was therefore no obligation to notify this information. The provisions on updating the register related to modifications that might be made to the register information and to the possible removal of a previously notified GI.
1.21. He said that, although his delegation had explained on numerous occasions the objective of the proposal and the intended effects of the register, it was ready to further clarify should there be any remaining doubts. It was also useful to recall what effects the Register did not have. The Register did not grant automatic protection. It did not change the current rules in the TRIPS Agreement on protection or the exceptions available. It was up to the domestic authorities in each Member to apply the TRIPS Agreement and its domestic legislation. The Register did not change the means of protection used by Members. The content of the register would be taken into account by the domestic authorities in charge of taking a decision in a specific case. This is why the Register would not create additional burdens or costs: authorities would look at it as part of their existing domestic processes.
1.22. He said that the effect was simple: if there was no proof to the contrary, the GI was considered a GI as complying with the TRIPS definition. Two of the three proposals in the composite draft text referred to the concept of prima facie evidence. This was not a new legal term or an unknown concept. Domestic authorities would be the ones to decide whether they had proof to the contrary regarding whether or not a term met the GI definition within the normal procedures already available in each WTO Member. With regard to the draft composite text on genericness, the objective was simply that those relying on that exception had to substantiate their assertion. Interventions during previous TRIPS Special Sessions had confirmed that Members were already operating in such a way: exceptions invoked had to be substantiated. This simply encapsulated a general principle of good administration and common procedural requirements in Members' systems.
1.23. With respect to concerns regarding a possible extra-territorial effect of such a proposal he said that his delegation's proposal did not contradict the principle of territoriality: the domestic authorities were the ones that would take the decisions: they would decide if there was proof that the term in question was not a GI, and they would then decide whether or not the GI should be protected according to their own domestic rules. The register would not affect the ability of domestic authorities to decide that a term was generic in their territories or that prior rights applied. The current approach of simple effects had gathered the broad support of two thirds of the Membership in TN/C/W/52 and the drafting in the composite text reflected this approach.
1.24. On costs and fees, he said that they had not yet been fully assessed, which was why the provisions were meant to remind Members to tackle this point once the exact shape of the Register was known. His delegation, just like other Members, aimed at a simple and easy to use system as foreseen on the basis of TN/C/W/52.
1.25. With respect to the provisions on S&D, he said that GIs had the potential to transform traditional know-how into intellectual capital and that this was precisely why GIs offered an interesting asset to DCs and LDCs. The link between agricultural products' quality and reputation and their territorial origins offered a means to promote small businesses, exports and rural development. DCs and LDCs had a natural advantage in that regard and many examples and practical experiences of producers confirmed that GIs were an asset for DCs and LDCs. The development characteristics of GIs were often mentioned by a wide range of sources which highlighted a number of benefits linked to the overall sustainability of a territory: the emphasis on localised production fostering rural integration because producers, traders, exporters and supply chains interacted at local or regional level; the positive impact on job development; the development strategies for multifunctional rural development, including regional cooperation between local partners; the positive identity of regions leading to development of tourism, improvement in the general infrastructure and in rural services. It was therefore no accident that TN/C/W/52 had attracted the support of a large number of DCs and LDCs.
1.26. He said that, as clearly established in TN/C/W/52, provisions on S&D were an important element of the proposed draft, and the EU was fully in line with that approach.
