Regulation (EU) 2023/2411 of the European Parliament and of the Council of 18 October 2023 on the protection of geographical indications for craft and industrial products and amending Regulations (EU) 2017/1001 and (EU) 2019/1753 (Text with EEA relevance)

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 118, first paragraph and Article 207(2) 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) On 10 November 2020, the Council adopted conclusions on intellectual property policy indicating that it was ready to consider the introduction of a system for specific protection of geographical indications for non-agricultural products, on the basis of a thorough impact assessment of its potential costs and benefits.

(2) In its Communication of 25 November 2020 entitled ‘Making the most of the EU’s innovative potential – An intellectual property action plan to support the EU’s recovery and resilience’, the Commission committed itself to considering, on the basis of an impact assessment, whether to propose a Union protection system for non-agricultural geographical indications.

(3) In its Resolution of 11 November 2021 on an intellectual property action plan to support the EU’s recovery and resilience, the European Parliament highlighted the fact that the recognition of geographical indications for non-agricultural products is relevant for the priorities of the Union programmes currently in development, underlining its support for the Commission’s initiative to establish, on the basis of a thorough impact assessment, effective and transparent protection at Union level for geographical indications for non-agricultural products, in order to align with, inter alia, the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications (4) (‘the Geneva Act’) which provides for the possibility of protecting geographical indications for both agricultural and non-agricultural products.

(4) In order for the Union to be able to exercise fully its exclusive competence in relation to the common commercial policy, and in full compliance with its commitments under the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’) of the World Trade Organization (WTO), on 26 November 2019, in accordance with Council Decision (EU) 2019/1754 (5), the Union acceded to the Geneva Act, which is administered by the World Intellectual Property Organization (WIPO). The Geneva Act offers a means of obtaining protection for geographical indications, regardless of the nature of the goods to which they apply, and therefore includes craft and industrial products. In order to fully comply with those international obligations, ensuring that there is uniform recognition and protection throughout the Union for geographical indications for craft and industrial products is a priority for the Union.

(5) For many years, protection of geographical indications has been established at Union level for wines (6) and spirit drinks (7), as well as agricultural products and foodstuffs, including aromatised wines (8). It is appropriate to provide Union protection for geographical indications for products falling outside the scope of existing Union law, while ensuring convergence. That protection should be aimed at encompassing a large variety of craft and industrial products, such as natural stones, woodwork, jewellery, textiles, lace, cutlery, glass, porcelain, and hides and skins. The introduction of such a system for the protection of geographical indications for craft and industrial products would bring benefits for consumers, by improving awareness in relation to the authenticity of products. It would also have a positive economic impact on micro- and small and medium-sized enterprises (MSMEs) by strengthening competitiveness, and it would have a general positive impact on employment, development and tourism in rural and less-developed regions. Furthermore, such a system would also facilitate access to third-country markets through trade agreements with the Union and would achieve the full potential of geographical indications for craft and industrial products.

(6) Several Member States have national systems for the protection of geographical indications for craft and industrial products. Those systems differ in terms of the scope of protection, administration and fees, and do not offer protection beyond the national territory. Other Member States do not provide for the protection of geographical indications for craft and industrial products at national level. That fragmented and complex landscape of various protection systems at Member State level might result in increased costs and legal uncertainty for producers and be a disincentive to invest in traditional crafts in the Union. The existence of a harmonised Union protection system is essential for creating the legal certainty necessary for all stakeholders, and for preventing infringements of intellectual property rights in relation to craft and industrial products, thereby allowing the Union to better protect its interests, including at international level.

(7) Making products which are strongly linked to a specific geographical area often depends on local know-how and is often based on the use of local production methods that are rooted in the cultural and social heritage of the home region of such products. Efficient intellectual property protection has the potential to contribute to increased profitability and attractiveness for traditional craft professions. Specific protection of geographical indications is recognised so as to safeguard and develop cultural heritage in the agricultural and craft and industrial sectors. Therefore, efficient procedures should be established for the registration at Union level of geographical indications for craft and industrial products, which take into account local and regional specificities. The system for the protection of geographical indications for craft and industrial products provided for in this Regulation should ensure that production and marketing traditions are maintained and enhanced.

(8) Uniform protection throughout the Union for intellectual property rights related to geographical indications can create incentives for the production of quality products, contribute to the fight against counterfeiting, ensure the wide availability of quality products for consumers and contribute to the creation of valuable and sustainable jobs, including in rural and less-developed regions, which would help counter depopulation trends. In particular, in view of the potential of such protection to contribute to the creation of sustainable and highly skilled jobs in rural and less-developed regions, producers should aim at creating a substantial proportion of the value of the product designated by a geographical indication within the defined geographical area. The requirements that a given quality, reputation or other characteristic of a product is to be essentially attributable to its geographical origin and that the product is to originate in a defined geographical area, as established in this Regulation, reinforce the understanding that a substantial proportion of the value of the product designated by the geographical indication is to be created inside the given geographical area. Those requirements should ensure that only products with a strong link to the geographical area can benefit from the protection provided for in this Regulation.

(9) It is therefore necessary to ensure fair competition for producers of craft and industrial products in the internal market; to ensure that reliable information pertaining to such products is available to consumers; to safeguard and develop cultural heritage and traditional know-how; to ensure that geographical indications for craft and industrial products are registered efficiently, at both Union and international level; to provide for effective controls and enforcement in relation to geographical indications for craft and industrial products throughout the internal market, including in electronic commerce; and to establish a link with the international registration and protection system based on the Geneva Act.

(10) The tasks assigned by this Regulation to Member State authorities, the Commission and the European Union Intellectual Property Office established by Regulation (EU) 2017/1001 of the European Parliament and of the Council (9) (‘the Office’) could require the processing of personal data, in particular where it is necessary to identify applicants in procedures for registration, amendment of the product specification or cancellation of the registration, opponents, or beneficiaries of a transitional period granted by way of derogation from the protection of a registered geographical indication. Processing of such personal data is therefore necessary for the performance of a task carried out in the public interest. Any processing and making public of personal data received in the course of the procedures under this Regulation, for example for the purposes of registration, including opposition, amendment of the product specification, cancellation of the registration, controls and the granting of a transitional period, should respect fundamental rights, including the right to respect for private and family life and the right to protection of personal data under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (‘the Charter’). In that context, Regulation (EU) 2016/679 of the European Parliament and of the Council (10) and Directive 2002/58/EC of the European Parliament and of the Council (11) place certain obligations on Member States, while Regulation (EU) 2018/1725 of the European Parliament and of the Council (12) places certain obligations on the Commission and the Office. Where the Commission and the Office jointly determine the purposes and means of the data processing, they should be considered joint controllers.

(11) Geographical indications for craft and industrial products which have a given quality, reputation or other characteristic linked to their place of production, confer a collective right that can be exercised by all eligible producers in a defined geographical area that are willing to adhere to a product specification, in accordance with this Regulation. Producers acting collectively have more market power than individual producers and can make use of synergies when managing their geographical indications. Geographical indications reward producers for their efforts to produce a diverse range of quality products. Applications for registration of geographical indications should therefore be submitted by producer groups.

(12) In certain geographical areas there might only be one producer willing to submit an application for the registration of a name as a geographical indication. Therefore, it should also be possible for a single producer to be considered an applicant. However, a single producer should not be allowed to define the geographical area by reference to its own land or workshop. The geographical area should always refer to a particular part of a territory and not to private property boundaries.

(13) It should also be possible for a local or regional authority designated by a Member State or a private entity designated by a Member State to be an applicant. In such cases, the application should state the reasons for such designation.

(14) In addition, a local or regional entity of the Member State from where the respective producer group or single producer originates should be allowed to provide assistance to that producer group or single producer in the preparation of the application and in the first phase of the registration procedure. The assistance could include advice and the sharing of documents, contacts and information.

(15) The system for the protection of geographical indications for craft and industrial products laid down in this Regulation is aimed at enabling consumers to make more informed purchasing choices and, in this context, labelling and advertising help consumers to identify quality products on the market correctly. Intellectual property rights related to geographical indications help operators and companies to valorise their intangible assets. To avoid creating unfair competition and to uphold the internal market, any producer, including a third-country producer, should be able to use a registered geographical indication and to market products designated by such a geographical indication throughout the Union, including in electronic commerce, provided that the product concerned complies with the corresponding product specification and that the producer is subject to controls.

(16) A name of a product should be eligible for protection as a geographical indication if the product complies with three cumulative requirements: the product should be rooted in or originate in a specific place, region or country; a given quality, the reputation or other characteristic of the product should be essentially attributable to its geographical origin; and at least one of the production steps should take place in that geographical area. To fulfil those requirements, it needs to be demonstrated that the geographical origin is an essential factor for the given quality, reputation or other characteristic of the product. Those requirements are in line with the requirements for geographical indications as set out in the Geneva Act and in the Union legislation on the protection of geographical indications for agricultural products, foodstuffs, wines and spirit drinks. However, products that are contrary to public policy should not be the subject of a protected geographical indication. The need to apply that public policy exception should be assessed on a case-by-case basis, and the exception should be applied in accordance with the Treaty on the Functioning of the European Union (TFEU) and the relevant case law of the Court of Justice of the European Union.

(17) The production step or production steps indicated in the product specification are those which confer a given quality, reputation or other characteristic on the product. Human or natural factors, or a combination of those factors, determine if a production step is relevant for it to be included in the product specification. Products primarily produced outside the given geographical area and only transported there for packaging or for a production step that could be carried out elsewhere without entailing a significant difference in the given quality, reputation or other characteristic of the product, should not qualify for protection. That principle would make it possible to prevent low-quality products without unique characteristics and produced almost entirely outside the given geographical area from being sold as products designated by a geographical indication.

(18) MSMEs often have limited resources to deal with administrative tasks. The competent authority of the Member State from where the applicant originates should endeavour to assist, at the request of the applicant, in the preparation of the single document provided for in this Regulation, in line with its administrative practice. Where a Member State decides to use the direct registration procedure provided for in this Regulation ('direct registration procedure’), the Office, in close cooperation with the single point of contact of the Member State concerned, should endeavour to provide assistance with the single document. Any assistance provided by the authorities or the Office should be without prejudice to the applicant remaining responsible for the single document.

(19) To obtain protection as geographical indications, names should be registered at Union level only. The standard procedure for the registration of a geographical indication under this Regulation should comprise two phases. Member States should be responsible for the first phase (‘national phase’) and the Office should be responsible for the second phase (‘Union phase’). Where a Member State has been granted a derogation from that standard procedure, it should be possible for an applicant from that Member State to submit an application directly to the Office through the direct registration procedure. The protection granted under this Regulation upon registration should be equally available to geographical indications for products originating in third countries (‘third-country geographical indications’) that fulfil the corresponding requirements and that are protected in the third country of origin. The Office should carry out the corresponding procedures for third-country geographical indications.

(20) Member States should provide for efficient, predictable and expeditious administrative procedures. Information about those procedures, including any applicable deadlines and the overall length of the procedures, should be publicly available. The Member States, the Commission and the Office should cooperate within the Advisory Board, established pursuant to this Regulation (‘the Advisory Board’), to share best practices with a view to promoting the efficiency of those procedures.

(21) The procedures for registration, including opposition, amendment of the product specification, cancellation of the registration and appeal in respect of geographical indications originating in the Union should be carried out by the Member States and the Office and those procedures should fulfil transparency requirements. The Member States and the Office respectively should be responsible for the distinct phases of those procedures. Member States should be responsible for the national phase, which consists of receiving the application from the applicant, examining it, managing the national opposition procedure and, following the positive completion of the national phase, submitting the application to the Office to launch the Union phase. Member States should establish the detailed procedural arrangements for the national phase. Those arrangements should include consultations between the applicant and any national opponents, as well as the submission by the applicant of a report on the outcome of those consultations, and on any modifications made to the application. Moreover, the admissibility of the opposition and the reasons for refusing registration in the national phase should be aligned with those in the Union phase. The Office should be responsible for examining applications in the Union phase, managing the opposition procedure and granting or refusing registration. The Office should also carry out the corresponding procedures for third-country geographical indications.

(22) The Office should encourage parties to make use of alternative dispute resolution, such as mediation, with a view to reaching a friendly settlement. To that end, the Office should offer the parties the opportunity to make use of those services in the procedures available at Union level. The Office should provide those services itself, but the parties should also have the possibility of making use of other mediation services.