48. The representative of New Zealand, providing her delegation's initial comments at this stage, said that her delegation tended to the view that Article 23.4 did not envisage a system as complex and legally ambitious as that set out in the EC proposal. While in the preamble of the proposal emphasis was placed by the European Communities on the administrative and straightforward character of the proposal, she noted that further into the document questions arose as to whether the proposal was in fact of the nature envisaged by Article 23.4. Giving specific comments on the operative text, she referred, first, to section I.1, second dash point. Her delegation was not clear on the intention behind the reference to "proof of compliance" with the definition of geographical indications given in Article 22.1 and would be interested to know what the European Communities envisaged as appropriate proof of compliance. There would appear to be the potential for extensive debate among different Members as to what constituted appropriate proof of compliance. In this context, it also needed to be recalled that the obligation to provide "legal means" to interested parties to protect geographical indications was a matter for Members to determine. Looking at section I.2 regarding geographical indications protected under regional and multilateral agreements, it was not clear to her delegation whether proof of compliance would be required for these types of geographical indications along the same lines as under section I.1. If not, this would appear – for reasons that remained unclear – to privilege geographical indications appearing in multilateral and bilateral agreements. With regard to section II, "Notification", the reference to the lists of names "to be protected" under the register seemed unclear. Article 23.1 and other provisions of the TRIPS Agreement focused on Members providing the legal means for protection of geographical indications within their own territories. Her delegation had noted the suggestion in section III of the proposal for the establishment of the concept of an "opposition" procedure. The relationship between such procedures and the normal dispute settlement procedures under the provisions of the DSU remained unclear. Under the DSU any Member was free to argue that a Member was not adequately applying the geographical indications provisions of the TRIPS Agreement. Was the suggestion here that opposition procedures, once implemented, somehow prevented recourse to the DSU? If this was the intention, it would raise some fundamental issues. Section IV, "Negotiations Between Parties", dealing with homonymous geographical indications and prior use of trademarks, also raised a number of questions. The proposal, by requiring Members to undertake negotiations, did not appear to reflect Article 23.3 which, instead, obliged each Member to determine the practical considerations for differentiating homonymous geographical indications. With regard to trademarks, whilst the TRIPS Agreement dealt with trademarks and gave Members certain rights which could limit geographical indications protection in certain cases, her delegation did not see any provisions in the TRIPS Agreement requiring international negotiations on trademarks and their status. Moving on to section V, "Legal Implications", her delegation would be grateful if the European Communities could clarify the apparent inconsistency in the proposal between its voluntary nature, as stated in section I, which referred to those "Members wishing to avail themselves of the … facility", and the fact that, under section V, the full and indefinite protection which would flow from the facility would in fact be provided in all WTO Members. It seemed slightly odd to her delegation that those Members who did not elect to participate in the system would be subject to a new raft of legal obligations. Section V.2, with its reference to "reasoned opposition", raised issues regarding dispute settlement. In whose eyes was the opposition reasoned? Was her delegation's understanding correct that the European Communities wanted a sui generis dispute settlement system, applying to certain categories of disputes on geographical indications, which could possibly circumscribe the current recourse available under the DSU? If so, this would be, as far as her delegation knew, the first case since the conclusion of the Uruguay Round where a category of provisions was separated out and dealt with through separate means to the DSU. In addition to the concerns of general principle her delegation had with the new dispute settlement process envisaged in the EC proposal, she also thought it led to some rather strange practical results. For example, the implication of section V.3 regarding the refusal of recognition was not clear to her delegation. It seemed to suggest that, even where it was judged that a particular geographical indication did not qualify for the register, only those countries who had objected to a particular geographical indication being registered would be able to refuse it protection. This meant that, in effect, there would be two separate categories of geographical indications: those on the register that all Members would be required to give some form of total protection and others, rejected for inclusion on the register, that all Members except those that had opposed registration were nonetheless obliged to give total protection. Further clarification as to what was intended in this regard would be appreciated. Aspects of section VI, "Publication", under which the Secretariat would publish and update lists, would be useful in terms of registration and notification of those geographical indications protected within Members. This notification and dissemination of information was the type of activity her delegation felt that Article 23.4 envisaged. However this section had to be seen in light of the other provisions, which assumed that the inclusion of a certain geographical indication on these lists would have important legal implications for all Members. Finally, she noted that the EC proposal dealt with both wines and spirits, and on an equivalent basis. The Singapore Ministerial Declaration, the Report of the Council for TRIPS in 1996 and the minutes of the February 1997 meeting of the Council referred to preliminary work being undertaken on issues relevant to a system for spirits, and without prejudice to the rights and obligations of Members of the TRIPS Agreement and the specific provisions of the built-in agenda. This language should be accurately reflected in any work in this area. She also wished to underline that there was currently no mandate to extend discussions in this area to other goods.
