International rules and Institutions on food

Transcription

1 International rules and Institutions on food Paolo Borghi IP Erasmus Global Food Law and Quality (GFLQ) Viterbo February 4th, 2013

2 Origins of GATT, creation of the WTO, and general legal framework about food early intention of the first GATT (1947): finding a temporary, and not strictly binding, legal instrument for trade regulation Protocol of provisional application, signed in Geneva on 30 th October, 1947 (but de facto in force for nearly 50 years) negotiation rounds (foreseen by article XXVIII bis): 8 rounds since 1947 to (named GATT, followed by the year of revision: e.g. GATT 1964 ) : Uruguay Round

3 Uruguay Round ( ) Punta del Este Declaration (1986): first aim = a complete reform of the multilateral trading system, previously based only on the general principles of GATT 1947 GATT (1947 and further) replaced by a set of international agreements regulating international trade; e.g.: countervailing duties subventions sanitary and phytosanitary measures dispute settlement mechanism or a specific trade sector; e.g.: agriculture services textiles intellectual property rights, etc.

4 Uruguay Round ( ) In the new legal context, GATT is just an agreement among the others Its central role still depends on its contents: general principles General interpretative note to Annex 1A in case of a conflict between a GATT 1994 rule and a provision of an agreement in Annex 1A to the WTO chart, the provision of the special agreement shall prevail to the extent of the conflict.

5 Central role of GATT still depending on its contents: general principles A) Non discrimination: still at the heart of the GATT system reciprocity approach most favored nation clause (art. I GATT): any advantage, favor, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties express exceptions: creation and maintenance of preferential trade areas (often in favor of developing countries, GATT Article XXV, para. 5) creation and maintenance of free trade areas, or of customs unions (like the EU)

6 Central role of GATT still depending on its contents: general principles B) Non discrimination: still at the heart of the GATT system reciprocity approach national treatment clause (art. III GATT): prohibition to apply internal taxes and charges, laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products, to imported or domestic products, so as to afford protection to domestic production products imported from another contracting party shall not be subject, directly or indirectly, to internal taxes or charges of any kind in excess of those applied, directly or indirectly, to like domestic products

7 Central role of GATT still depending on its contents: general principles B) Non discrimination: still at the heart of the GATT system attempting to define what a like product is: see, e.g., the Panel report Japan Liquor Taxes II (1996): traditional approach = similar properties, end uses and usually uniform classification in tariff nomenclatures in the Panel s view, the wording makes it clear that the appropriate test to define whether two products are like or directly competitive or substitutable is the marketplace criteria on a case by case basis in order to determine whether two products are like or directly competitive or substitutable

8 Main innovation of WTO system: Understanding on rules and procedures governing the settlement of disputes (briefly Dispute Settlement Understanding, or DSU) significant improvements to the former GATT DS mechanism central role of a panel of first instance ( panel of complaints ), appointed only in relation with each dispute members of the Panel must come from countries not involved in the dispute final report has to be adopted by the WTO General Council (Dispute Settlement Body, or DSB) in order to become legally binding the DSB can decide, only by consensus, not to approve it right to appeal the report to an Appellate Body (stable body)

9 Main innovation of WTO system: Understanding on rules and procedures governing the settlement of disputes (briefly Dispute Settlement Understanding, or DSU) significant improvements to the former GATT DS mechanism a final decision (of first or of second instance) on the dispute, containing strict indications (recommendations) for the country which is found in default a legal duty of prompt compliance (implementation: DSU, Article 21, para. 1) in case the prompt compliance fails (or is impracticable ): right for the country suffering the breach to apply a predetermined retaliation

10 The Agreement on agriculture first special discipline ever of multilateral trade in agricultural and fisheries products application field: only products listed in its Annex 1 = chapters 1 to 24 of the customs Harmonized System (International Convention on the Harmonized Commodity Description and Coding System), plus some other products listed in the Annex itself lots of food and feed products: ex., meat and products thereof, crustaceans, mollusks, eggs, honey, edible vegetables and fruits (including dried fruits), coffee, tea and other spices, cereals and products of the milling industry, fats and oils, beverages and spirits, etc.

11 What s the subject of this agreement, exactly? Mainly economic issues of agricultural trade: three pillars : a)market access b)domestic support c)export subsidies A)MARKET ACCESS =WTO members are obliged to grant other members agricultural productions a certain level of access to their own internal agricultural market by: transforming all the barriers other than duties (non tariff barriers) into fixed customs duties ( tariffication ) lowering existing (or converted) customs duties levels according to a negotiated road map

12 tariffication (Article 4, para. 4) = duty to convert any nontariff measure into ordinary customs duties (except as otherwise provided for in some specific clauses of the Agreement), according to parameters established under Modalities (a separate operational text) any quantitative import restrictions, or variable import levies, minimum import prices, discretionary import licensing, etc., have been given a value in terms of their protectionist effect ( tariff equivalent ), then have been replaced by an equivalent customs duty reduction of duties to the extent provided by the agreement itself (by 36% on average, and by at least 15%, during the implementation period , compared to a previous base period)

13 Exceptions: special treatment ex para. 2 of Article 4 (products matching some special requirements, exempted from tariffication; or primary agricultural products being predominant staple in the traditional diet of a developing country, provided they match the conditions set out in Annex 5, Section B special safeguard clause, allowing all members to apply additional (protective) duties on imports, when these exceed a trigger level (compared with the existing market access opportunity), or when the price falls below a trigger price (Article 5, paras. No 1, 4 and 5).

14 B) DOMESTIC SUPPORT = States members to the WTO are obliged to limit the internal support to farmers nd to avoid some kind of support measures Reasons for such an obligation: influence of an uncontrolled domestic support on the international market, affecting the balance of supply and demand, potentially inducing lowered prices, production surplus, etc., and frustrating the effects of tariff reductions domestic support measures divided into three categories: 1)green box 2)amber box 3)blue box

15 1) green box = all the domestic support measures exempts from reduction commitments: inter alia, the totally decoupled measures, or having no, or at most minimal, trade distorting effects, or the measures justified by particular reasons (e.g. which are part of an environmental program, or which are necessary for social reasons, such as food security reasons, etc.) 2) blue box = in between the amber and the green: e.g. partly decoupled support measures (to be allowed only during a transition period) 3) amber box = all the domestic support measures coupled with production and/or with price ( able to affect the competition between member States)

16 the whole amber box measures applied by a member State can be expressed, in value, as the Member s AMS (aggregate measurement of support) modalities prescribed an average 20% reduction of all the amber box measures within year 2000 a 13,5% reduction was provided for developing countries no reduction had been provided for least developed countries (as listed in an Annex to the Final Act) C) REDUCTION OF SUPPORTED AGRICULTURAL EXPORTS by an average 36% of their value (compared to the average global value of supported exports in ), and by an average 21% of volume

17 non supported exports fall outside the scope of the Agreement, and aren t subject to any reduction commitments exports for the purpose of food aid to developing countries, or to least developed countries aren t subject to any reduction commitments (they re allowed, provided that they re not applied in a manner which results in (or which threatens to lead to) circumvention of export subsidy commitments expressed prohibition: non commercial transactions shall not be used to circumvent reduction commitments concerning subsidized exports

18 The Agreement on Sanitary and Phytosanitary Measures (SPS agreement) some non tariff measures are established and maintained by WTO members for sanitary (including veterinary) and/or phytosanitary reasons if the justification is genuine exempted from tariffication if the alleged reasons are false protectionism is their real disguised justification (since they can obtain the same protectionist effect as the ordinary customs duties, thus frustrating the trade liberalization which is the aim of the WTO system)

19 Formerly, the only discipline of this matter was Article XX GATT Article XX GATT: too broad and general, and finally inappropriate for the agricultural and food sector (where science based and safety based forms of disguised protection, and of circumvention of tariff reduction commitments, are quite frequent) Application field: not peremptory (different from the Agreement on agriculture) SPS Agreement can be applied to very general categories of products (foods, beverages or feeds) need for a definition of SPS measure

20 any measure aimed at protecting animal or plant life or health from risks arising from the entry, establishment or spread of pests, diseases, disease carrying organisms or disease causing organisms any measure applied to protecting human or animal life or health from risks arising from additives, contaminants, toxins or disease causing organisms in foods, beverages or feedstuffs any measure intended to protect human life or health from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or aimed at preventing or limiting other possible damage deriving from the entry, establishment or spread of pests

21 defining what an SPS measure is, therefore, results in a substantial issue, not in a formal one: it could be qualified as an SPS measure, for example: any law, decree, regulation, mandatory requirement and procedure (including end product criteria) any prescription about processes and production methods, or about testing, inspection, certification and approval procedures, quarantine treatments any provision on relevant statistical methods, sampling procedures and methods of risk assessment any packaging and labelling requirement directly related to food safety

22 What s the purpose of this agreement, exactly? to regulate the right of the WTO members to apply legitimate and non trade distorting, or at least justified, SPS measures rules concerning SPS measures = particular expression of the non discrimination principle: the application of an unjustified SPS measure (or of a measure justified by a false sanitary reason) would be, inter alia, a breach of the national treatment clause SPS measures must be: based on sound science necessary

23 role of science: to identify if the measures can really address a certain risk to verify whether an SPS measure has been adopted in the correct way (i.e. scientifically justified) or not to check its proportionality, etc. necessary = (Article 5.6 SPS) Members shall ensure that such measures are not more trade restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility no less restrictive, but equally effective, SPS measure is available, or practicable (Article 2.2 SPS) Members are requested to implement health measures only to the extent necessary to protect human, animal or plant life or health

24 role of science: to identify if the measures can really address a certain risk to verify whether an SPS measure has been adopted in the correct way (i.e. scientifically justified) or not to check its proportionality, etc.

25 Harmonization (Article 3 SPS): presumption of legitimacy = of necessity = of scientific justification = of proportionality What does SPS Agreement mean by harmonized measure? a measure can be deemed as harmonized when it is in full compliance with the standards developed by major international organizations according to Annex A, Section 3, as of food safety, WTO members must base their action on the standards, recommendations and guidelines of the Joint FAO/WHO Codex Alimentarius commission; as of animal health, on the standards of the IOE (International Office of Epizootics); and as of plants health, on the rules issued by the Secretariat of the IPPC (International Plant Protection Convention)

26 Article 4 SPS: equivalence if an exporting country proves that the measures it applies to a certain product (case by case evaluation), prior to crossing its borders, provide a level of health protection, in relation to that product, which can be considered as equivalent to the protection level, deemed as appropriate by the importing Member, the latter must accept the measures adopted by the exporting State as sufficient on the contrary, if an importing country applies protective measures on the imported products, ignoring the exporter s attempts to prove the equivalence (provided that the importer s measures are not harmonized) such barriers must be examined: are they a disguised restriction on trade? (necessity test, scientific justification test, etc.)

27 it should explain the appropriate level of protection which its SPS measure is designed to achieve (making available any risk assessment which the SPS measure is based on, or indicating a founding international standard, guideline or recommendation) Decision on the implementation of article 4 of the Agreement on the application of Sanitary and Phytosanitary Measures, 24 th October 2001 (G/SPS/19) duty to cooperate cooperation roles: importing Member on request of the exporting Member, it should explain the objective and rationale of the SPS measure and should clearly identify the risks that its relevant pre border measure is intended to address

28 Decision on the implementation of article 4 of the Agreement on the application of Sanitary and Phytosanitary Measures, 24 th October 2001 (G/SPS/19) duty to cooperate cooperation roles: exporting Member it shall provide appropriate science based and technical information, to support its objective demonstration that its measure already achieves the appropriate level of protection identified by the importing Member it should indicate the founding international standards, or the relevant risk assessments on request, it should grant the importing member reasonable access to inspection, testing and other relevant procedures for the recognition of equivalence

29 results: validity assessment of the measures applied by the importing state assessment (= comparison) focused not on the overall food safety systems of the involved assessment (= comparison) specifically focused on the particular measures applied by the parties to the concerned product any evaluation must be conducted in the light of the SPS fundamental principle: the basic right of WTO members to determine their own level of health protection

30 basic right of WTO members to determine their own level of health protection counterbalance: duty to minimize negative trade effects, when determining the appropriate level of SPS protection (Article 5.4 SPS) indications of a possible SPS non compliance of a measure: a)the importing country adopts different appropriate levels of health or life protection b)the different levels are arbitrary and unjustifiable c)such measures result in a discrimination or a disguised restriction on international trade (Article 5.5, based on the non discrimination principle)

31 previously analyzed rules assume that a legitimate measure means a science based one assume that science can always determine whether a SPS measure is justified or not unfortunately, science is seldom so sure about its own results unfortunately, scientific knowledge is mostly relative in a general perspective, no scientific result can be considered as absolute and/or final e.g.: no product can be deemed as safe once and for all the only scientifically correct statement, about a certain product, is that in relation to it, no risk has been reasonably proved (US: at most, a product is generally regarded as safe )

32 what if the science is groping in the dark? should the science be simply unable to evaluate the risk: no circulation for the concerned product but scientific uncertainty (about a certain product and/or a certain risk) is a quite normal situation, during the evolution of the scientific knowledge see Article 5.7 SPS: precaution = a basis for some members rights and faculties, to enact the same SPS measures that would have been justified if they were scientifically demonstrated as necessary enhanced protection

33 enhanced protection in what sense? an attempt to preserve a value even before a possible injury occurs (better, when it is not certain that it will occur) an attempt to defend the endangered value even if the prospect is very uncertain, and even if no damage may result in the end a hypothetic comparison between action and inaction, from the point of view of the likely consequences (positive and/or negative): can the policy makers bear the risks (in terms of costs to individuals and to the civil community, both short and long term ones) of inaction?

34 scientific justification of a measure right (faculty) to adopt it scientific uncertainty about the justification of a measure right (faculty) to adopt it no difference? uncertainty: measures must be temporary, provisional measures are accompanied by a duty to research (to try to find scientific evidence) measures must be removed if the risk, after a reasonable period, has not been confirmed by new scientific data, or by a significant review of the previously available ones the importing member has finally to accept the exporter s food safety standards ( equivalence, Article 4 SPS) otherwise: automatic breach of the SPS Agreement

35 studies and jurisprudence (WTO Panels): trying to examine the juridical notion of risk, of relevant risk (e.g., by excluding the relevance of the s.c. theoretical risk ) EC Measures concerning meat and meat products (Hormones), Report of the Appellate Body, 16 th January 1998 (WT/DS26/AB/R, WT/DS48/AB/R) EC Measures affecting asbestos and asbestos containing products, Report of the Appellate Body, 12 th March 2001 (WT/DS135/AB/R) EC Measures affecting the approval and marketing of biotech products, Report of the Panel, 29 th September 2006 (WT/DS291/R, WT/DS292/R, WT/DS293/R)

36 studies and jurisprudence (WTO Panels): trying to examine the juridical notion of risk, of relevant risk scientific uncertainty does not mean a merely theoretical risk scientific uncertainty is not equal to a mere hypothesis of risk making them equal would result in pretending that a product is absolutely safe: a proof of absolute safety, instead of the absence of a proof of risk (which is the only scientifically correct perspective) making them equal would result in pretending a zero risk standard, which is not possible

37 studies and jurisprudence (WTO Panels): trying to examine the juridical notion of risk, of relevant risk scientific uncertainty is, therefore, a state of the scientific knowledge (about a certain issue), where: a)some scientific information concerning the existence f a risk is resulting from studies and from experimental data b)some kind of proof has been found by the scientists c)a confirmation, which can be deemed as scientific and relatively final, is currently searched by the worldwide scientific community d)the results of such researches are not univocal, or are denied by a relevant part of the scientific community, on earnest scientific and experimental basis clearly different from a hypothetical risk

38 The Agreement on Technical Barriers to Trade (TBT agreement) what do we mean with technical barriers? mainly, technical mandatory requirements for products since they are mandatory, product s compliance can condition its presence on the marketplace Examples: mandatory dimensions of packaging use of allowed materials or substances in packaging types of packaging compliance with some voluntary harmonized rules (such as ISO norms, which means quality certifications, etc.) labeling and its mandatory contents, fixed by law

39 very frequently applied on foods a relevant matter for the food sector significant differences among WTO countries obstacles to trade possible introduction despite their no real justification simply to hinder trade aim of the TBT Agreement: to limit the use of specious requirements, starting from the statement of the basic right of WTO members to adopt technical standards whenever they deem them as appropriate to ensure their own safety level applied

40 Article 2.1 TBT: Members shall ensure that in respect of technical regulations, products imported ( ) shall be accorded treatment no less favorable than that accorded to like products of national origin and to like products originating in any other country a non discrimination principle (a national treatment duty) no technical barrier can be upheld when the reasons for their adoption no longer exist ( a scientific justification rule) no technical barrier can be upheld when the same circumstances (or objectives) can be addressed (or pursued) by less restrictive technical rules ( a necessity rule)

41 Article 2.6 TBT: central role played by the harmonization With a view to harmonizing technical regulations on as wide a basis as possible, Members shall play a full part, within the limits of their resources, in the preparation by appropriate international standardizing bodies of international standards for products for which they either have adopted, or expect to adopt, technical regulations. a reference to international bodies like Codex alimentarius (as to the food sector) is clearly implied but in the TBT Agreement, harmonization has also another meaning: Members shall ensure that their central government standardizing bodies accept and comply with the Code of Good Practice for the Preparation, Adoption and Application of Standards in Annex 3 to this Agreement

42 Codex Alimentarius 1950: The first session of the Joint FAO/WHO Expert Committee on Nutrition stated: "Food regulations in different countries are often conflicting and contradictory. Legislation governing preservation, nomenclature and acceptable food standards often varies widely from country to country. New legislation not based on scientific knowledge is often introduced, and little account may be taken of nutritional principles in formulating regulations" (FAO/WHO, 1950) for a decade: some joint FAO and WHO meetings of experts, to collect and review standards concerning specific issues (e.g., food additives)

43 Codex Commission creates and maintains the broader collection, continuously updated, of standards, recommendations and guidelines about food production, handling, trade, etc. for decades it has constituted the reference point for food businesses and lawmakers worldwide Codex alimentarius 1961: the 11th session of the Conference of FAO approved the resolution to establish the Codex Alimentarius 1963: the 16th World Health Assembly approved the establishment of the Joint FAO/WHO Food Standards Programme with the Codex Alimentarius Commission as its main organ

44 Codex alimentarius Structure of the Codex: Volumes Volume 1A General requirements Volume 1B General requirements (food hygiene) Volume 2A Pesticide residues in foods (general texts) Volume 2B Pesticide residues in foods (maximum residue limits) Volume 3 Residues of veterinary drugs in foods Volume 4 Foods for special dietary uses (including foods for infants and children) Volume 5A Processed and quick frozen fruits and vegetables Volume 5B Fresh fruits and vegetables Volume 6 Fruit juices Volume 7 Cereals, legumes and derived products and vegetable proteins Volume 8 Fats and oils and related products Volume 9 Fish and fishery products Volume 10 Meat and meat products; soups and broths

45 Codex alimentarius Structure of the Codex: Volumes Volume 11 Sugars, cocoa products and chocolate and miscellaneous products Volume 12 Milk and milk products Volume 13 Methods of analysis and sampling Example: Volume 1A General Requirements 1. General Principles of the Codex Alimentarius2. Definitions for the Purpose of Codex Alimentarius3. Code of Ethics for International Trade in Foods4. Food Labelling5. Food Additives including the General Standard for Food Additives6. Contaminants in Food including the General Standard for Contaminants and Toxins in Foods7. Irradiated Foods8. Food Import and Export Food Inspection and Certification Systems

46 Codex alimentarius Structure of the Commission: Committees General Subject Committees: relevance for all Commodity Committees and, since this work applies across the board to all commodity standards, General Subject Committees are sometimes referred to as "horizontal committees". There are nine such committees: General Principles,hosted by France Food Labelling,hosted by Canada Methods of Analysis and Sampling,hosted by Hungary Food Hygiene,hosted by the US Pesticide Residues,hosted by the Netherlands Food Additives and Contaminants,hosted by the Netherlands Import/Export Inspection and Certification Systems,hosted by Australia Nutrition and Foods for Special Dietary Uses,hosted by Residues of Veterinary Drugs in Food,hosted by the US

47 Codex alimentarius Structure of the Commission: Committees Commodity Committees: responsibile for developing standards for specific foods or classes of food (often referred to as "vertical" committees). There are 16 such committees: Fats and Oils,hosted by the United Kingdom Fish and Fishery Products,hosted by Norway Milk and Milk Products, hosted by New Zealand Fresh Fruits and Vegetables,hosted by Mexico Cocoa Products and Chocolate,hosted by Switzerland Sugars,hosted by the United Kingdom Processed Fruits and Vegetables,hosted by the US Vegetable Proteins, hosted by Canada Cereals, Pulses and Legumes,hosted by the United States Processed Meat and Poultry Products,hosted by Denmark Soups and Broths,hosted by Switzerland Meat Hygiene,hosted by New Zealand Natural Mineral Waters,hosted by Switzerland

48 Codex alimentarius Statutes: Revision of Codex standards: The Commission and its subsidiary bodies are committed to revision of Codex standards and related texts as necessary to ensure they are consistent with and reflect current scientific knowledge. Each member of the Commission is responsible for identifying and presenting to the appropriate committee any new scientific and other relevant information that may warrant revision of existing Codex standards or related texts. voluntary application as an effect of the WTO Agreements (namely, of the SPS and the TBT Agreements) almost legally binding

49 Codex alimentarius Statutes: Revision of Codex standards: The Commission and its subsidiary bodies are committed to revision of Codex standards and related texts as necessary to ensure they are consistent with and reflect current scientific knowledge. Each member of the Commission is responsible for identifying and presenting to the appropriate committee any new scientific and other relevant information that may warrant revision of existing Codex standards or related texts. voluntary application as an effect of the WTO Agreements (namely, of the SPS and the TBT Agreements) almost legally binding

50 Finally the names! What s in a name? That which we call a rose, and by any other name would smell as sweet. (W. Shakespeare, Romeo and Juliet) Shakespeare was an incredible writer and poet but a very, very bad trader in trading experience, names are very important, since they can be fundamental to attract customers trademarks, geographical indications generally IP rights

51 The TRIPS Agreement (Trade Related aspects of IP rights) some very general principles in Part I; for example: purposes of international protection of IP: to contribute to technological innovation, and to the diffusion of technological knowledge for the mutual advantage of producers and users protecting health and nutrition could imply decisions that affect, together with IP rights, vital economic and social sectors, and may require appropriate measures to prevent abuse of IP rights a national treatment clause and a most favored nation clause (non discrimination) apply also to IP rights

52 WTO members may implement in their law more extensive protection than is required by the TRIPs Agreement (TRIPs is just a de minimis protection standard) definitions of different kinds of IP rights (e.g.: copyright and related rights, trademarks, geographical indications, industrial designs, patents, etc.) the legal protection afforded to WTO members by previous international agreements dealing with IP (such as Paris Convention (1967), Berne Convention (1971), and Rome Convention ) is recognized as binding also under TRIPS the obligations arising from those conventions cannot be waived by TRIPs

53 Part II of TRIPS: minimum protection standards with regard to availability, purpose and use of IP rights (what kind of signs can be protected as trademarks, and the minimum rights granted to owners) peculiarity of food marketing strategies, used worldwide mostly on wines and spirits: ad hoc discipline of geographical indications (GIs) (Article 22 TRIPS) Since it protects IP rights already protected also by a series of previously existing international conventions what s the value added innovation of TRIPS? enforcement tools

54 enforcement tools Article 42 TRIPS: WTO members are obliged to make civil judicial procedures concerning the enforcement of IP rights equally available to all (domestic and foreign) right holders all (domestic and foreign) defendants shall have the right to a timely and sufficiently detailed written notice Article 41.2 TRIPS procedures concerning the enforcement of IP rights must be fair and equitable, and not unnecessarily complicated or costly, nor entail unreasonable time limits or unwarranted delays but, most of all

55 enforcement tools according to previous conventions in force, regulating IP rights, they were endowed only with the ordinary international law sanctions (e.g. unilateral retaliation) as an effect of the formal recognition of the protection: they re now subject to the WTO dispute settlement mechanism, and to all its legal instruments so many WTO members: various kinds, techniques and levels of protection: some have laws specifically designed for Gis (ex. EU) others apply their trademark rules, as such, to Gis (ex.: US) some have established a public register of protected names others prefer a judicial case by case approach

56 necessity to establish a base of common principles concerning IP protection, to reduce some of the difficulties arising from those differences inside the EU: no room for national discipline of Gis any domestic law must be read in accordance with the EU discipline on PDOs and PGIs no overlap is allowed only when there s no link between the characteristics of the product and its geographical provenance, a national law could discipline a geographical name (s.c. Warsteiner principle, but something new coul be found inside the new quality package issued by the EU)

57 both EU definitions of PDOs and of PGIs fall within the TRIPs definition of GIs Article 22.1 TRIPS: indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin Discipline: WTO members are expected to prevent any fraudulent use of GIs on food, and forced to: a)introduce disciplines that do not permit such use, where there is an actual and practical risk of misleading consumers b)punish, by means of an effective system, whoever makes such a illicit use

58 Articles 22 and 23 TRIPS: additional protection for wines and spirits for those products, WTO members shall prevent any misleading use of GIs, even when the risk of consumer deception is merely theoretical and abstract the use of expressions such as kind, type, style, imitation and similar, clearly warning a careful consumer that he is not purchasing the original product is forbidden the use of such expressions on the label of a food product other than wines and spirits is allowed as an effect: full only for wines and spirits

59 moreover commitment for negotiations aimed at increasing the protection of individual geographical indications under Article 23 (see e.g. the project of a multilateral register of Gis, proposed by the EU, currently discussed in the framework of the WTO Doha round, but de facto stalled: many WTO countries seem more interested in a less regulated framework ) Article 24.4: protection except for designations already protected as a trademark by the legislation of a WTO member state, and for GIs that have become the common name of a product in the territory of a member

60 in the TRIPS: those concerning GIs are perhaps the most controversial ones of the whole agreement: unfinished discussion in the context of the multilateral trade negotiations matter of an important WTO dispute conclusions: EU had to review its former discipline on PDOs and on PGIs, by adopting EC Regulation No. 510/2006, especially with regard to rules on GIs for products imported from third countries

61 and finally LET S GO FOR A DINNER! no matter if the foods have a PDO the only important thing is they don t deserve any SPS measure!