Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43(2) and the first paragraph of Article 118 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee⁽¹⁾,

Having regard to the opinion of the Committee of the Regions⁽²⁾,

Acting in accordance with the ordinary legislative procedure⁽³⁾,

Whereas:

1. The quality and diversity of the Union’s agricultural, fisheries and aquaculture production is one of its important strengths, giving a competitive advantage to the Union’s producers and making a major contribution to its living cultural and gastronomic heritage. This is due to the skills and determination of Union farmers and producers who have kept traditions alive while taking into account the developments of new production methods and material.

2. Citizens and consumers in the Union increasingly demand quality as well as traditional products. They are also concerned to maintain the diversity of the agricultural production in the Union. This generates a demand for agricultural products or foodstuffs with identifiable specific characteristics, in particular those linked to their geographical origin.

3. Producers can only continue to produce a diverse range of quality products if they are rewarded fairly for their effort. This requires that they are able to communicate to buyers and consumers the characteristics of their product under conditions of fair competition. It also requires them to be able to correctly identify their products on the marketplace.

4. Operating quality schemes for producers which reward them for their efforts to produce a diverse range of quality products can benefit the rural economy. This is particularly the case in less favoured areas, in mountain areas and in the most remote regions, where the farming sector accounts for a significant part of the economy and production costs are high. In this way quality schemes are able to contribute to and complement rural development policy as well as market and income support policies of the common agricultural policy (CAP). In particular, they may contribute to areas in which the farming sector is of greater economic importance and, especially, to disadvantaged areas.

5. The Europe 2020 policy priorities as set out in the Commission Communication entitled ‘Europe 2020: A strategy for smart, sustainable and inclusive growth’, include the aims of achieving a competitive economy based on knowledge and innovation and fostering a high-employment economy delivering social and territorial cohesion. Agricultural product quality policy should therefore provide producers with the right tools to better identify and promote those of their products that have specific characteristics while protecting those producers against unfair practices.

6. The set of complementary measures envisaged should respect the principles of subsidiarity and proportionality.

7. Agricultural product quality policy measures are laid down in Council Regulation (EEC) No 1601/91 of 10 June 1991 laying down general rules on the definition, description and presentation of aromatized wines, aromatized wine-based drinks and aromatized wine-product cocktails⁽⁴⁾; Council Directive 2001/110/EC of 20 December 2001 relating to honey⁽⁵⁾ and in particular in Article 2 thereof, Council Regulation (EC) No 247/2006 of 30 January 2006 laying down specific measures for agriculture in the outermost regions of the Union⁽⁶⁾ and in particular in Article 14 thereof; Council Regulation (EC) No 509/2006 of 20 March 2006 on agricultural products and foodstuffs as traditional specialities guaranteed⁽⁷⁾; Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs⁽⁸⁾; Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation)⁽⁹⁾ and in particular in Part II, Title II, Chapter I, Section I and in Section Ia, Subsection I thereof; Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products⁽¹⁰⁾; and Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks⁽¹¹⁾.

8. The labelling of agricultural products and foodstuffs should be subject to the general rules laid down in Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs⁽¹²⁾, and in particular the provisions aimed at preventing labelling that may confuse or mislead consumers.

9. The Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on agricultural product quality policy identified the achievement of a greater overall coherence and consistency of agricultural product quality policy as a priority.

10. The geographical indications scheme for agricultural products and foodstuffs and the traditional specialities guaranteed scheme have certain common objectives and provisions.

11. The Union has for some time been pursuing an approach that aims to simplify the regulatory framework of the CAP. This approach should also be applied to regulations in the field of agricultural product quality policy, without, in so doing, calling into question the specific characteristics of those products.

12. Some regulations that form part of the agricultural product quality policy have been reviewed recently but are not yet fully implemented. As a result, they should not be included in this Regulation. However, they may be incorporated at a later stage, once the legislation has been fully implemented.

13. In the light of the aforementioned considerations, the following provisions should be amalgamated into a single legal framework comprising the new or updated provisions of Regulations (EC) No 509/2006 and (EC) No 510/2006 and those provisions of Regulations (EC) No 509/2006 and (EC) No 510/2006 that are maintained.

14. In the interests of clarity and transparency, Regulations (EC) No 509/2006 and (EC) No 510/2006 should therefore be repealed and replaced by this Regulation.

15. The scope of this Regulation should be limited to the agricultural products intended for human consumption listed in Annex I to the Treaty and to a list of products outside the scope of that Annex that are closely linked to agricultural production or to the rural economy.

16. The rules provided for in this Regulation should apply without affecting existing Union legislation on wines, aromatised wines, spirit drinks, product of organic farming, or outermost regions.

17. The scope for designations of origin and geographical indications should be limited to products for which an intrinsic link exists between product or foodstuff characteristics and geographical origin. The inclusion in the current scheme of only certain types of chocolate as confectionery products is an anomaly that should be corrected.

18. The specific objectives of protecting designations of origin and geographical indications are securing a fair return for farmers and producers for the qualities and characteristics of a given product, or of its mode of production, and providing clear information on products with specific characteristics linked to geographical origin, thereby enabling consumers to make more informed purchasing choices.

19. Ensuring uniform respect throughout the Union for the intellectual property rights related to names protected in the Union is a priority that can be achieved more effectively at Union level.

20. A Union framework that protects designations of origin and geographical indications by providing for their inclusion on a register facilitates the development of those instruments, since the resulting, more uniform, approach ensures fair competition between the producers of products bearing such indications and enhances the credibility of the products in the consumers’ eyes. Provision should be made for the development of designations of origin and geographical indications at Union level and for promoting the creation of mechanisms for their protection in third countries in the framework of the World Trade Organisation (WTO) or multilateral and bilateral agreements, thereby contributing to the recognition of the quality of products and of their model of production as a factor that adds value.

21. In the light of the experience gained from the implementation of 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⁽¹³⁾ and Regulation (EC) No 510/2006, there is a need to address certain issues, to clarify and simplify some rules and to streamline the procedures of this scheme.

22. In the light of existing practice, the two different instruments for identifying the link between the product and its geographical origin, namely the protected designation of origin and the protected geographical indication, should be further defined and maintained. Without changing the concept of those instruments, some modifications to the definitions should be adopted in order to better take into account the definition of geographical indications laid down in the Agreement on Trade-Related Aspects of Intellectual Property Rights and to make them simpler and clearer for operators to understand.

23. An agricultural product or foodstuff bearing such a geographical description should meet certain conditions set out in a specification, such as specific requirements aimed at protecting the natural resources or landscape of the production area or improving the welfare of farm animals.

24. To qualify for protection in the territories of Member States, designations of origin and geographical indications should be registered only at Union level. With effect from the date of application for such registration at Union level, Member States should be able to grant transitional protection at national level without affecting intra-Union or international trade. The protection afforded by this Regulation upon registration, should be equally available to designations of origin and geographical indications of third countries that meet the corresponding criteria and that are protected in their country of origin.

25. The registration procedure at Union level should enable any natural or legal person with a legitimate interest from a Member State, other than the Member State of the application, or from a third country, to exercise their rights by notifying their opposition.

26. Entry in the register of protected designations of origin and protected geographical indications should also provide information to consumers and to those involved in trade.

27. The Union negotiates international agreements, including those concerning the protection of designations of origin and geographical indications, with its trade partners. In order to facilitate the provision to the public of information about the names so protected, and in particular to ensure protection and control of the use to which those names are put, the names may be entered in the register of protected designations of origin and protected geographical indications. Unless specifically identified as designations of origin in such international agreements, the names should be entered in the register as protected geographical indications.

28. In view of their specific nature, special provisions concerning labelling should be adopted in respect of protected designations of origin and protected geographical indications that require producers to use the appropriate Union symbols or indications on packaging. In the case of Union names, the use of such symbols or indications should be made obligatory in order to make this category of products, and the guarantees attached to them, better known to consumers and in order to permit easier identification of these products on the market, thereby facilitating checks. Taking into account the requirements of the WTO, the use of such symbols or indications should be made voluntary for third-country geographical indications and designations of origin.

29. Protection should be granted to names included in the register with the aim of ensuring that they are used fairly and in order to prevent practices liable to mislead consumers. In addition, the means of ensuring that geographical indications and designations of origin are protected should be clarified, particularly as regards the role of producer groups and competent authorities of Member States.

30. Provision should be made for specific derogations that permit, for transitional periods, the use of a registered name alongside other names. Those derogations should be simplified and clarified. In certain cases, in order to overcome temporary difficulties and with the long-term objective of ensuring that all producers comply with the specifications, those derogations may be granted for a period of up to 10 years.

31. The scope of the protection granted under this Regulation should be clarified, in particular with regard to those limitations on registration of new trade marks set out in Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks⁽¹⁴⁾ that conflict with the registration of protected designations of origin and protected geographical indications as is already the case for the registration of new trade marks at Union level. Such clarification is also necessary with regard to the holders of prior rights in intellectual property, in particular those concerning trade marks and homonymous names registered as protected designations of origin or as protected geographical indications.

32. Protection of designations of origin and geographical indications should be extended to the misuse, imitation and evocation of the registered names on goods as well as on services in order to ensure a high level of protection and to align that protection with that which applies to the wine sector. When protected designations of origin or protected geographical indications are used as ingredients, the Commission Communication entitled ‘Guidelines on the labelling of foodstuffs using protected designations of origin (PDOs) or protected geographical indications (PGIs) as ingredients’ should be taken into account.

33. The names already registered under Regulation (EC) No 510/2006 on 3 January 2013 should continue to be protected under this Regulation and they should be automatically included in the register.

34. The specific objective of the scheme for traditional specialities guaranteed is to help the producers of traditional products to communicate to consumers the value-adding attributes of their product. However, as only a few names have been registered, the current scheme for traditional specialities guaranteed has failed to realise its potential. Current provisions should therefore be improved, clarified and sharpened in order to make the scheme more understandable, operational and attractive to potential applicants.

35. The current scheme provides the option to register a name for identification purposes without reservation of the name in the Union. As this option has not been well understood by stakeholders and since the function of identifying traditional products can be better achieved at Member State or regional level in application of the principle of subsidiarity, this option should be discontinued. In the light of experience, the scheme should only deal with the reservation of names across the Union.

36. To ensure that names of genuine traditional products are registered under the scheme, the criteria and conditions for registration of a name should be adapted, in particular those concerning the definition of ‘traditional’, which should cover products that have been produced for a significant period of time.

37. To ensure that traditional specialities guaranteed comply with their specification and are consistent, producers organised into groups should themselves define the product in a specification. The option of registering a name as a traditional speciality guaranteed should be open to third-country producers.

38. To qualify for reservation, traditional specialities guaranteed should be registered at Union level. The entry in the register should also provide information to consumers and to those involved in the trade.

39. In order to avoid creating unfair conditions of competition, any producer, including a third-country producer, should be able to use a registered name of a traditional speciality guaranteed, provided that the product concerned complies with the requirements of the relevant specification and the producer is covered by a system of controls. For traditional specialities guaranteed produced within the Union, the Union symbol should be indicated on the labelling and it should be possible to associate it with the indication ‘traditional speciality guaranteed’.

40. In order to protect registered names from misuse, or from practices that might mislead consumers, their use should be reserved.

41. For those names already registered under Regulation (EC) No 509/2006 that, on 3 January 2013, would otherwise not be covered by the scope of this Regulation, the terms of use laid down in Regulation (EC) No 509/2006 should continue to apply for a transitional period.

42. A procedure should be introduced for registering names that are registered without reservation of name pursuant to Regulation (EC) No 509/2006, enabling them to be registered with reservation of name.

43. Provision should also be made for transitional measures applicable to registration applications received by the Commission before 3 January 2013.

44. A second tier of quality systems, based on quality terms which add value, which can be communicated on the internal market and which are to be applied voluntarily, should be introduced. Those optional quality terms should refer to specific horizontal characteristics, with regard to one or more categories of products, farming methods or processing attributes which apply in specific areas. The optional quality term ‘mountain product’ has met the conditions up to now and will add value to the product on the market. In order to facilitate the application of Directive 2000/13/EC where the labelling of foodstuffs may give rise to consumer confusion in relation to optional quality terms, including in particular ‘mountain products’, the Commission may adopt guidelines.

45. In order to provide mountain producers with an effective tool to better market their product and to reduce the actual risks of consumer confusion as to the mountain provenance of products in the market place, provision should be made for the definition at Union level of an optional quality term for mountain products. The definition of mountain areas should build on the general classification criteria employed to identify a mountain area in Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF)⁽¹⁵⁾.

46. The added value of the geographical indications and traditional specialities guaranteed is based on consumer trust. It is only credible if accompanied by effective verification and controls. Those quality schemes should be subject to a monitoring system of official controls, in line with the principles set out in Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules⁽¹⁶⁾, and should include a system of checks at all stages of production, processing and distribution. In order to help Member States to better apply provisions of Regulation (EC) No 882/2004 for the controls of geographical indications and traditional specialities guaranteed, references to the most relevant articles should be mentioned in this Regulation.

47. To guarantee to the consumer the specific characteristics of geographical indications and traditional specialities guaranteed, operators should be subject to a system that verifies compliance with the product specification.

48. In order to ensure that they are impartial and effective, the competent authorities should meet a number of operational criteria. Provisions on delegating some competences of performing specific control tasks to control bodies should be envisaged.

49. European standards (EN standards) developed by the European Committee for Standardisation (CEN) and international standards developed by the International Organisation for Standardisation (ISO) should be used for the accreditation of the control bodies as well as by those bodies for their operations. The accreditation of those bodies should take place in accordance with Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products⁽¹⁷⁾.

50. Information on control activities for geographical indications and traditional specialities guaranteed should be included in the multiannual national control plans and annual report prepared by the Member States in accordance with Regulation (EC) No 882/2004.

51. Member States should be authorised to charge a fee to cover the costs incurred.

52. Existing rules concerning the continued use of names that are generic should be clarified so that generic terms that are similar to or form part of a name or term that is protected or reserved should retain their generic status.

53. The date for establishing the seniority of a trade mark and of a designation of origin or a geographical indication should be that of the date of application of the trade mark for registration in the Union or in the Member States and the date of application for protection of a designation of origin or a geographical indication to the Commission.

54. The provisions dealing with the refusal or coexistence of a designation of origin or a geographical indication on the ground of conflict with a prior trade mark should continue to apply.

55. The criteria by which subsequent trade marks should be refused or, if registered, invalidated on the ground that they conflict with a prior designation of origin or geographical indication should correspond to the scope of protection of designation of origin or a geographical indication laid down.

56. The provisions of systems establishing intellectual property rights, and particularly of those established by the quality scheme for designations of origin and geographical indications or those established under trade mark law, should not be affected by the reservation of names and the establishment of indications and symbols pursuant to the quality schemes for traditional specialities guaranteed and for optional quality terms.

57. The role of groups should be clarified and recognised. Groups play an essential role in the application process for the registration of names of designations of origin and geographical indications and traditional specialities guaranteed, as well as in the amendment of specifications and cancellation requests. The group can also develop activities related to the surveillance of the enforcement of the protection of the registered names, the compliance of the production with the product specification, the information and promotion of the registered name as well as, in general, any activity aimed at improving the value of the registered names and effectiveness of the quality schemes. Moreover, it should monitor the position of the products on the market. Nevertheless, these activities should not facilitate nor lead to anti-competitive conduct incompatible with Articles 101 and 102 of the Treaty.

58. To ensure that registered names of designations of origin and geographical indications and traditional specialities guaranteed meet the conditions laid down by this Regulation, applications should be examined by the national authorities of the Member State concerned, in compliance with minimum common provisions, including a national opposition procedure. The Commission should subsequently scrutinise applications to ensure that there are no manifest errors and that Union law and the interests of stakeholders outside the Member State of application have been taken into account.

59. Registration as designations of origin, geographical indications and traditional specialities guaranteed should be open to names that relate to products originating in third countries and that satisfy the conditions laid down by this Regulation.

60. The symbols, indications and abbreviations identifying participation in a quality scheme, and the rights therein pertaining to the Union, should be protected in the Union as well as in third countries with the aim of ensuring that they are used on genuine products and that consumers are not misled as to the qualities of products. Furthermore, in order for the protection to be effective, the Commission should have recourse to reasonable budget resources on a centralised basis within the framework of Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD)⁽¹⁸⁾ and in accordance with Article 5 of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy⁽¹⁹⁾.

61. The registration procedure for protected designations of origin, protected geographical indications and traditional specialities guaranteed, including the scrutiny and the opposition periods, should be shortened and improved, in particular as regards decision making. The Commission, in certain circumstances acting with the assistance of Member States, should be responsible for decision-making on registration. Procedures should be laid down to allow the amendment of product specifications after registration and the cancellation of registered names, in particular if the product no longer complies with the corresponding product specification or if a name is no longer used in the market place.

62. In order to facilitate cross-border applications for joint registration of protected designations of origin, protected geographical indications or traditional specialities guaranteed, provision should be made for appropriate procedures.

63. In order to supplement or amend certain non-essential elements of this Regulation, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission in respect of supplementing the list of products set out in Annex I to this Regulation; establishing the restrictions and derogations with regard to the sourcing of feed in the case of a designation of origin; establishing restrictions and derogations with regard to the slaughtering of live animals or with regard to the sourcing of raw materials; laying down rules which limit the information contained in the product specification; establishing the Union symbols; laying down additional transitional rules in order to protect the rights and legitimate interests of producers or stakeholders concerned; laying down further details on the eligibility criteria for the names of traditional specialities guaranteed; laying down detailed rules relating to the criteria for optional quality terms; reserving an additional optional quality term, laying down its conditions of use and amending those conditions; laying down derogations to the use of the term ‘mountain product’ and establishing the methods of production, and other criteria relevant for the application of that optional quality term, in particular, laying down the conditions under which raw materials or feedstuffs are permitted to come from outside the mountain areas; laying down additional rules for determining the generic status of terms in the Union; laying down rules for determining the use of the name of a plant variety or of an animal breed; defining the rules for carrying out the national objection procedure for joint applications concerning more than one national territory; and for complementing the rules of the application process, the opposition process, the amendment application process and the cancellation process in general. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

64. In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission as regards laying down rules on the form of the product specification; laying down detailed rules on the form and content of the register of protected designations of origin and protected geographical indications; defining the technical characteristics of the Union symbols and indications as well as the rules on their use on products, including the appropriate linguistic versions to be used; granting and extending transitional periods for temporary derogations for use of protected designations of origin and protected geographical indication; laying down detailed rules on the form and content of the register of traditional specialities guaranteed; laying down rules for the protection of traditional specialities guaranteed; laying down all measures relating to forms, procedures and other technical details for the application of Title IV; laying down rules for the use of optional quality terms; laying down rules for the uniform protection of indications, abbreviations and symbols referring to the quality schemes; laying down detailed rules on the procedure, form and presentation of applications for registration and of oppositions; rejecting the application; deciding on the registration of a name if an agreement has not been reached; laying down detailed rules on the procedure, form and presentation of an amendment application; cancelling the registration of a protected designation of origin, a protected geographical indication or a traditional speciality guaranteed; and laying down detailed rules on the procedure and form of the cancellation process and on the presentation of the requests for cancellation. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers⁽²⁰⁾.

65. In respect of establishing and maintaining registers of protected designations of origin, protected geographical indications and traditional specialties guaranteed, recognised under this scheme; defining the means by which the name and address of product certification bodies are to be made public; and registering a name if there is no notice of opposition or no admissible reasoned statement of opposition or in the case there is one the agreement has been reached, the Commission should be empowered to adopt implementing acts without applying Regulation (EU) No 182/2011,

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