Commission Implementing Regulation (EU) 2022/2000 of 18 October 2022 entering a name in the register of Traditional Specialities Guaranteed ‘Watercress’ / ‘Cresson de Fontaine’ / ‘Berros de Agua’ / ‘Agrião de Água’ / ‘Waterkers’ / ‘Brunnenkresse’ (TSG)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to 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 (1), and in particular Article 52(3)(b) thereof,

Whereas:

(1) Pursuant to Article 50(2)(b) of Regulation (EU) No 1151/2012, the application from the United Kingdom of Great Britain and Northern Ireland (‘United Kingdom’) to register the name ‘Watercress’ / ‘Cresson de Fontaine’ / ‘Berros de Agua’ / ‘Agrião de Água’ / ‘Waterkers’ / ‘Brunnenkresse’ as a Traditional Speciality Guaranteed (TSG) was published in the Official Journal of the European Union (2).

(2) ‘Watercress’ / ‘Cresson de Fontaine’ / ‘Berros de Agua’ / ‘Agrião de Água’ / ‘Waterkers’ / ‘Brunnenkresse’ is a variant of the cress family which is grown and harvested in flowing water.

(3) The application was submitted at the time in which the United Kingdom was a Member State and, when the United Kingdom left the European Union, became an application from a third country.

(4) On 5 February 2020, the Commission received a notice of opposition, including the reasoned statement, from Germany. The Commission forwarded the notice of opposition sent by Germany to the United Kingdom on 21 February 2020.

(5) The Commission examined the opposition sent by Germany and found it admissible. The opposition claims that the application for registration of the name fails to comply with the conditions laid down in Article 18(1)(a) and (2)(b) of Regulation (EU) No 1151/2012. The German authorities consider that the plant matter may be of both wild and cultivated origin. However, the traditional method of harvesting in the wild is at odds with the specification, which refers to cultivation as the mode of production. Moreover, it was pointed out that the plant also grows alongside running water and not only in the water, and that, contrary to what is claimed, Germany had the first commercial production of watercress. In addition, the cultivation method described does not correspond to every watercress cultivation method. Germany also considers that the chemical composition of raw plant material is only partly dependent on a specific cultivation method. Furthermore, it argues that the term ‘watercress’ refers to the generally used name of this plant, what could be considered as a hint of genericity of the name.

(6) By letter of 3 April 2020, the Commission invited the interested parties to engage in appropriate consultations to seek agreement among themselves in accordance with their internal procedures.

(7) The consultation between the United Kingdom and Germany has ended on 30 June 2020 without reaching any agreement.

(8) On 25 February 2020, the Commission received the notice of opposition from the Dutch company Koppert Cress B.V.

(9) In accordance with Article 51(1) of Regulation (EU) No 1151/2012, natural or legal persons having a legitimate interest, established or resident in a Member State other than that from which the application was submitted, may only lodge a notice of opposition with the Member State in which they are established, to permit an opposition to be lodged with the Commission by that Member State, and may not lodge an opposition directly to the Commission. The Dutch company Koppert Cress B.V. is therefore not entitled to lodge an opposition directly with the Commission. The opposition of the Dutch company Koppert Cress B.V. is accordingly deemed inadmissible.

(10) On 26 February 2020, the Commission received a notice of opposition from the Netherlands. The Commission forwarded the notice of opposition sent by the Netherlands to the United Kingdom on 5 March 2020. On 21 April 2020, the Commission received the reasoned statement of opposition, within the prescribed deadline.

(11) The Commission examined the opposition sent by the Netherlands and found it admissible. The opposition claims that the application for registration of the name fails to comply with the conditions laid down in Article 18(1)(a) and (2)(b) of Regulation (EU) No 1151/2012. With regard to the method of production, the Dutch authorities consider, in particular, that if this TSG is granted, watercress produced in a different way or using growing techniques other than those described in the application for registration will no longer be able to be placed on the market. This would affect producers directly, regardless of their origin (the Netherlands or other countries where watercress is grown).

(12) Further, the opponent argued that the term ‘watercress’ refers to the generally used name of this plant what could be considered as a hint of genericity of the name. It also mentioned that cress may have different sizes and packaging methods and that the specification was at the same time very detailed and unclear.

(13) By letter of 20 June 2020, the Commission invited the interested parties to engage in appropriate consultations to seek agreement among themselves in accordance with their internal procedures.

(14) The consultation between the United Kingdom and the Netherlands ended on 28 September 2020 without reaching any agreement.

(15) On 26 February 2020, the Commission received a notice of opposition from Belgium. The Commission forwarded the notice of opposition sent by Belgium to the United Kingdom on 5 March 2020. On 24 March 2020, the Commission received the reasoned statement of opposition, within the prescribed deadline.

(16) The Commission examined the opposition sent by Belgium and found it admissible. The opposition claims that the application by the United Kingdom threatens the interests of the sector in Belgium and the application for registration of the name fails to comply with the conditions laid down in Article 18 of Regulation (EU) No 1151/2012. With regard to the method of production, the Belgian authorities argue, in particular, that the product is produced commercially in various ways with no particular restrictions on the production method. Belgium considers the description of the application is both very specific and fairly vague and possibly open to further interpretation - neither of which is desirable to be imposed on cultivation.

(17) By letter of 23 June 2020, the Commission invited the interested parties to engage in appropriate consultations to seek agreement among themselves in accordance with their internal procedures.

(18) The United Kingdom and Belgium reached an agreement, which was notified to the Commission on 28 September 2020, within the prescribed deadline.

(19) The United Kingdom and Belgium concluded that the protection of the term ‘Watercress’ / ‘Cresson de Fontaine’ / ‘Berros de Agua’ / ‘Agrião de Água’ / ‘Waterkers’ / ‘Brunnenkresse’ (TSG) should be granted with some modifications to the product specification, including amendments to the description of the product to allow for variations as to the size of harvested product, as well as amendments to the description of the production method to accommodate for variations in traditional types of production bed, to allow for local variations in preferred plant densities and in respect of how the harvested product is marketed, and to simplify the difference between watercress and land grown cress.

(20) As it complies with the provisions of Regulation (EU) No 1151/2012 and EU legislation, the content of the agreement concluded between the United Kingdom and Belgium should be taken into account.

(21) The information published in accordance with Article 50(2) of Regulation (EU) No 1151/2012 has been subject to non-substantial changes in result of the agreement between the United Kingdom and Belgium.

(22) The applicant claims that despite the partly unfruitful consultations, the term ‘Watercress’ / ‘Cresson de Fontaine’ / ‘Berros de Agua’ / ‘Agrião de Água’ / ‘Waterkers’ / ‘Brunnenkresse’ should be protected because it complies with the requirements for registration of a TSG and it reflects the tradition of growing watercress in flowing water. Furthermore, the application is supported by Belgian Spanish, French and Portuguese producers.

(23) The Commission has assessed the arguments exposed in the reasoned statements of opposition in the light of Regulation (EU) No 1151/2012, taking into account the results of the consultations carried out between the applicant and the opponents, and it has concluded that the names ‘Watercress’ / ‘Cresson de Fontaine’ / ‘Berros de Agua’ / ‘Agrião de Água’ / ‘Waterkers’ / ‘Brunnenkresse’ should be registered.

(24) The oppositions are based on Article 21(1)(a) and (b) and on Article 18(1), (2) and (4) of Regulation (EU) No 1151/2012.

(25) As regards the incompatibility with the terms of Article 21(1)(b) of Regulation (EU) No 1151/2012, the opponents have demonstrated the potential economic damage that the registration of ‘Watercress’ / ‘Cresson de Fontaine’ / ‘Berros de Agua’ / ‘Agrião de Água’ / ‘Waterkers’ / ‘Brunnenkresse’ would cause, as an identical name is used for similar products existing on the German market for products that do not follow the same method of production.

(26) As regards the non-compliance with the conditions laid down in Article 18, in accordance with Articles 18(1)(a) and 18(2)(b) of Regulation (EU) No 1151/2012, the name ‘Watercress’ / ‘Cresson de Fontaine’ / ‘Berros de Agua’ / ‘Agrião de Água’ / ‘Waterkers’ / ‘Brunnenkresse’ is eligible for registration as TSG if it results from a mode of production, processing or composition corresponding to traditional practice for that product or foodstuff and it can be registered if it identifies the traditional character or specific character of the product. It has been established that this name has been used for centuries to define this specific product and it identifies the traditional and specific character of the product, being a plant which is cultivated, grown and harvested in flowing water. Therefore, the name complies with the requirements of Regulation (EU) No 1151/2012.

(27) As regard the claim on genericity, Regulation (EU) No 1151/2012 does not contain a prohibition of registering generic names as TSG. It excludes, however, in accordance with Article 18(4) thereof, that a name is registered if it refers only to claims of a general nature used for a set of products, or to claims provided for by particular Union legislation. The opponents have not given enough evidence that the name to be registered does refer to claims of a general nature used for a set of products.

(28) In conclusion, the name proposed for registration complies with the requirements of registration as TSG under Regulation (EU) No 1151/2012. However, it has been demonstrated that an identical name is widely used for similar products on the German market, which do not follow the same production method provided for in the product specification.

(29) Therefore, in accordance with Article 18(3) of Regulation (EU) No 1151/2012, in order to be distinguished from comparable products or products that share an identical or similar name with the name ‘Watercress’ / ‘Cresson de Fontaine’ / ‘Berros de Agua’ / ‘Agrião de Água’ / ‘Waterkers’ / ‘Brunnenkresse’, this name, once registered as TSG, should always be accompanied by the claim ‘made following the tradition of’ the Member State or third country whose tradition in producing watercress is reflected in the product specification. The Member States are the following: Belgium, Spain, France, The Netherlands and Portugal. The third country is the United Kingdom.

(30) Therefore, this name should not be protected as such but only in conjunction with the claim ‘made following the tradition of’, alternatively or cumulatively (and/or), Belgium, Spain, France, The Netherlands, Portugal, and the United Kingdom.

(31) Extensively, ‘Watercress’ should be accompanied by the claim ‘made following the tradition of the United Kingdom’ or ‘made following the tradition of Belgium’ or ‘made following the tradition of Spain’ or ‘made following the tradition of France’ or ‘made following the tradition of The Netherlands’, or ‘made following the tradition of Portugal’ or ‘made following the tradition of’ followed by the names of all or some of these Member States or third country.

(32) ‘Cresson de Fontaine’ should be accompanied by the claim ‘produit selon la tradition de la France’ or ‘produit selon la tradition de la Belgique’ or ‘produit selon la tradition de l’Espagne’ or ‘produit selon la tradition des Pays Bas’ or ‘produit selon la tradition du Portugal’ or ‘produit selon la tradition du Royaume-Uni’ or ‘produit selon la tradition de’ followed by the names of all or some of these Member States or third country.

(33) ‘Berros de Agua’ should be accompanied by the claim ‘elaborado según la tradición de España’ or ‘elaborado según la tradición de Bélgica’ or ‘elaborado según la tradición de Francia’ or ‘elaborado según la tradición de los Países Bajos’ or ‘elaborado según la tradición de Portugal’ or ‘elaborado según la tradición del Reino Unido’ or ‘elaborado según la tradición de’ followed by the names of all or some of these Member States or third country.

(34) ‘Agrião de Água’ should be accompanied by the claim ‘produzido segundo a tradição de Portugal’ or ‘produzido segundo a tradição de Bélgica’ or ‘produzido segundo a tradição de Espanha’ or ‘produzido segundo a tradição de França’ or ‘produzido segundo a tradição des Países Baixos’ or ‘produzido segundo a tradição de Reino Unido’ or ‘produzido segundo a tradição de’ followed by the names of all or some of these Member States or third country.

(35) ‘Waterkers’ should be accompanied by the claim ‘vervaardigd volgens de traditie van België’ or ‘vervaardigd volgens de traditie van Spanje’ or ‘vervaardigd volgens de traditie van Frankrijk’ or ‘vervaardigd volgens de traditie van Nederland’ or ‘vervaardigd volgens de traditie van Portugal’ or ‘vervaardigd volgens de traditie van Verenigd Koninkrijk’ or ‘vervaardigd volgens de traditie van’ followed by the names of all or some of these Member States or third country.

(36) ‘Brunnenkresse’ should be accompanied by the claim ‘hergestellt nach der Tradition Belgiens’ or ‘hergestellt nach der Tradition Spaniens’ or ‘hergestellt nach der Tradition Frankreichs’ or ‘hergestellt nach der Tradition der Niederlande’ or ‘hergestellt nach der Tradition Portugals’ or ‘hergestellt nach der Tradition Vereinigten Königreichs’ or ‘hergestellt nach der Tradition’ followed by the names of all or some of these Member States or third country.

(37) As a consequence, the name ‘Watercress’, ‘Cresson de Fontaine’, ‘Berros de Agua’, ‘Agrião de Água’, ‘Waterkers’ and ‘Brunnenkresse’ should be allowed to continue to be used for products that do not comply with the product specification of ‘Watercress’ / ‘Cresson de Fontaine’ / ‘Berros de Agua’ / ‘Agrião de Água’ / ‘Waterkers’ / ‘Brunnenkresse’‘made following the tradition of’ Belgium, Spain, France, The Netherlands, Portugal and the United Kingdom, within the territory of the Union, provided that the principles and rules applicable in its legal order are respected.

(38) In the light of the above, the name ‘Watercress’ / ‘Cresson de Fontaine’ / ‘Berros de Agua’ / ‘Agrião de Água’ / ‘Waterkers’ / ‘Brunnenkresse’, should be entered in the register of traditional specialities guaranteed.

(39) The consolidated product specification including the reference to the claims and the not substantial changes to the specification agreed between the United Kingdom and Belgium should be published for information only.

(40) The measures provided for in this Regulation are in accordance with the opinion of the Agricultural Product Quality Policy Committee,

HAS ADOPTED THIS REGULATION:

Article 1

The name Watercress’ / ‘Cresson de Fontaine’ / ‘Berros de Agua’ / ‘Agrião de Água’ / ‘Waterkers’ / ‘Brunnenkresse’ (TSG) is registered.

The name in the first paragraph identifies a product from Class 1.6. Fruit, vegetables and cereals fresh or processed set out in Annex XI to Commission Implementing Regulation (EU) No 668/2014 (3).

Article 2

‘Watercress’ shall be accompanied by the claim ‘made following the tradition of the United Kingdom’ or ‘made following the tradition of Belgium’ or ‘made following the tradition of Spain’ or ‘made following the tradition of France’ or ‘made following the tradition of The Netherlands’‘made following the tradition of Portugal’ or ‘made following the tradition of’ followed by the names of all or some of these Member States or third country.

‘Cresson de Fontaine’ shall be accompanied by the claim ‘produit selon la tradition de la France’ or ‘produit selon la tradition de la Belgique’ or ‘produit selon la tradition de l’Espagne’ or ‘produit selon la tradition des Pays Bas’ or ‘produit selon la tradition du Portugal’ or ‘produit selon la tradition du Royaume-Uni’ or ‘produit selon la tradition de’ followed by the names of all or some of these Member States or third country.

‘Berros de Agua’ shall be accompanied by the claim ‘elaborado según la tradición de España’ or ‘elaborado según la tradición de Bélgica’ or ‘elaborado según la tradición de Francia’ or ‘elaborado según la tradición de los Países Bajos’ or ‘elaborado según la tradición de Portugal’‘elaborado según la tradición del Reino Unido’ or ‘elaborado según la tradición de’ followed by the names of all or some of these Member States or third country.

‘Agrião de Água’ shall be accompanied by the claim ‘produzido segundo a tradição de Portugal’ or ‘produzido segundo a tradição de Bélgica’ or ‘produzido segundo a tradição de Espanha’ or ‘produzido segundo a tradição de França’ or ‘produzido segundo a tradição des Países Baixos’ or ‘produzido segundo a tradição de Reino Unido’ or ‘produzido segundo a tradição de’ followed by the names of all or some of these Member States or third country.

‘Waterkers’ shall be accompanied by the claim ‘vervaardigd volgens de traditie van België’ or ‘vervaardigd volgens de traditie van Spanje’ or ‘vervaardigd volgens de traditie van Frankrijk’ or ‘vervaardigd volgens de traditie van Nederland’ or ‘vervaardigd volgens de traditie van Portugal’ or ‘vervaardigd volgens de traditie van Verenigd Koninkrijk’ or ‘vervaardigd volgens de traditie van’ followed by the names of all or some of these Member States or third country.

‘Brunnenkresse’ shall be accompanied by the claim ‘hergestellt nach der Tradition Belgiens’ or ‘hergestellt nach der Tradition Spaniens’ or ‘hergestellt nach der Tradition Frankreichs’ or ‘hergestellt nach der Tradition der Niederlande’ or ‘hergestellt nach der Tradition Portugals’ or ‘hergestellt nach der Tradition Vereinigten Königreichs’ or ‘hergestellt nach der Tradition ’ followed by the names of all or some of these Member States or third country.

Article 3

The name ‘Watercress’, ‘Cresson de Fontaine’, ‘Berros de Agua’, ‘Agrião de Água’, ‘Waterkers’ and ‘Brunnenkresse’ may continue to be used for products that do not comply with the product specification of ‘Watercress’ / ‘Cresson de Fontaine’ / ‘Berros de Agua’ / ‘Agrião de Água’ / ‘Waterkers’ / ‘Brunnenkresse’‘made following the tradition of’ Belgium, Spain, France, The Netherlands, Portugal and the United Kingdom within the territory of the Union, provided that the principles and rules applicable in its legal order are respected.

Article 4

The consolidated product specification is set out in the Annex to this Regulation.

Article 5

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 18 October 2022.

For the Commission The President Ursula VON DER LEYEN

(1) OJ L 343, 14.12.2012, p. 1.

(2) OJ C 401, 27.11.2019, p. 8.

(3) Commission Implementing Regulation (EU) No 668/2014 of 13 June 2014 laying down rules for the application of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs (OJ L 179, 19.6.2014, p. 36).