The agreement EU-Japan is ready for initialing and ratification, the European Commission announced on 18.4.18. A deep relationship without precautions, as unfortunately will be seen.
JEFTA, the EU-Japan agreement on the launch pad
On 18.4.18, the European Commission
– better late than never, after the agreement on its essential points had already been announced on 8.12.17
– released the contents of the agreement finalized in
secret
With Japan. 562 pages of clauses!
The JEFTA(Japan-EU Free Trade Agreement) will be initialed by the representatives of the parties on 11.7.18. In a very short time frame, which will be followed by the immediate start of the ratification process, before the member states and their citizens can take note of what has been negotiated on their behalf. Indeed, the Juncker Commission’s stated primary goal is to have JEFTA in place before the end of its term in spring 2019. (1)
Behind the mask of the
free trade
, JEFTA turns out to be the most important partnership agreement so far negotiated by Europe, even superior to CETA
For the impact on the relevant orders and economies. With the ambitious as well as perhaps unrealistic promise of contributing to the growth of the global economy and setting an example in international trade.
The agreement aspires to promote economic relations between Europe and Japan in the broadest sense. A strong message, to the rest of the planet, to break down — at the very least — tariff protectionism, liberalize trade and investment, and open up market opportunities on an intercontinental level.
On closer inspection, however, the understanding goes far beyond tariff issues. Its effects will also affect the financial stability of Europe and Japan, data protection and privacy, agriculture and food safety. As well as environmental protection, since JEFTA will include a specific statement of commitment on the Paris Climate Agreement. (2)
Approval of JEFTA falls under the exclusive competence of the European Union, as the investment protection and jurisdictional dispute settlement (ICS) aspects will be negotiated in a separate agreement. Consequently, its ratification does not require an affirmative vote of the parliaments of the member states. (3)
EU-Japan, relationship without precautions
The first critical issue-in form and substance-is seen in the lack of transparency in the agreement approval process. (4) To which must be added the substantial differences in approach, between EU and Japanese regulations.
The rules on GMOs (5)-as well as the standards achieved by the two systems on food safety, animal welfare and maximum residue levels (MRLs) tolerated in food-diverge more than one might think. (6)
The precautionary principle, on which the system of EU rules is based, is largely neglected by JEFTA. (7) Where there is scientific doubt about the safety of products and/or their components–for human and animal health, or the environment–it will therefore be difficult to invoke safeguard measures (except, perhaps, on Fukushima algae).
Crucial issues for the ecosystem-such as the illegal timber trade, irresponsible fishing of bluefin tuna, whaling-have then been completely ignored, despite urgings from environmental NGOs.
JEFTA, the duties on food products.
The agreement will eliminate or sharply reduce duties on several agri-food commodities, but liberalization will not be total or immediate for all products.
European wines will benefit from an immediate abolition of tariffs, hitherto among the highest on the planet, from the entry into force of the agreement. The same goes for hard cheeses, while a duty-free quota will be established for fresh cheeses.
Pork will experience a drastic tariff reduction, while beef will experience a gradual decrease, to be accomplished over 15 years.
JEFTA, poor protection of PDOs and PGIs and lies by the European Commission
Geographical Indications (e.g., PDO, PGI) will receive ‘variable geometry’ protection. JEFTA recognizes 6 percent of Europe’s Geographical Indications (GIs), 200 out of about 3,300, including Roquefort, Aceto Balsamico di Modena, Prosecco, Jambon d’Ardenne, Tiroler Speck, Polska Wódka, Irish Whiskey and several others.
Japan will have to establish a system, for the registration and protection of these GIs, with ex officio interventions or at the request of those concerned (8). In order to prevent the use of Geographical Indications that do not meet the requirements. When even mendacious geographical evocations are translated or transliterated, or accompanied by wording such as ‘type’, ‘style’, ‘imitation’ etc.
Recognized GIs will be protected in all cases where the public is misled-in labeling and advertising-about the actual origin of the product. (9) No new trademarks may be registered that may create confusion with the GIs recognized in JEFTA, but these must coexist with the trademarks already used or registered ‘in good faith,’ if they are identical or similar to our PDOs and PGIs. (10)
19 are Italy ‘s ‘relatively protected PDOs and PGIs (including Balsamic Vinegar of Modena, Traditional Balsamic Vinegar of Modena, Mela Alto Adige, Asiago, Fontina, Gorgonzola, Grana Padano, Parmigiano Reggiano, Pecorino Romano and Taleggio’, 26 are Italian wine names (e.g., Chianti, Chianti Classic, Prosecco, Conegliano- Prosecco). (11)
The European Commission’s claim that ‘these products will enjoy the same level of protection in Japan as they currently enjoy in the EU is false.’ Whereas:
– trademarks already used ‘in good faith’ before the agreement came into force, as noted above, are considered legitimate even if they usurp that 6 percent of European PDOs and PGIs that Japan recognizes,
– brands that usurp our GIs, even, will be allowed to be kept on the market without even the obligation to indicate the true origin of the relevant products, for a transitional period of 7 years (foods) and 5 years (wines), (12)
– Italy ‘ s most famous PDO and PGI cheeses(Asiago, Fontina, Grana Padano, Mozzarella di Bufala Campana, Parmigiano Reggiano, Pecorino Toscano and Taleggio) will still be allowed to be ‘packaged’ (i.e. grated, sliced, packaged) in the Rising Sun, for a transitional period of 7 years, (13)
– even worse, JEFTA definitively legitimizes the usurpation of the names of Italy’s most famous cheeses. Insight to follow.
JEFTA, green light to counterfeit Italian PDO cheese and PGI mortadella
The names of Italy’s best-known PDO cheeses(Grana Padano, Mozzarella di Bufala Campana, Pecorino Romano, Pecorino Toscano , and Provolone Valpadana) and Mortadella Bologna IGP are ‘relatively protected’ by JEFTA only as compound names.
Green light to the usurpation of the names ‘Grana’ (just don’t add ‘Padano’), ‘Mortadella’ (changing the name of the city that follows) and so on. In blatant contrast to the level of protection affirmed in Europe as early as the Stresa Convention in 1951 and consolidated by the Court of Justice. (14)
The Commission also betrayed French cheeses-French Emmental, protected only as ‘Emmental de Savoie,’ Brie (only ‘Brie de Meaux’) and Cambembert (only ‘Camembert de Normandie‘)-and British Cheddar, protected as ‘West Country farmhouse Cheddar cheese’).
Parmesan then finds here the legitimacy that Big Food – Kraft Food, in particular, its top producer in the world – has invoked for decades in every context, including the Codex Alimentarius. In fact, the agreement introduces the right of any person to use or register in Japan a trademark containing the term Parmesan for hard cheeses, ‘except where such use deceives the public as to the geographical origin of the good.’ A joke, indeed a tragedy.
Commission lies and the protection of PDOs in Europe
The lies of the European Commission-in narrating that our Geographical Indications are subject to the same level of protection accorded them in the EU-are all the more serious in light of the Court of Justice’s ruling on the Parmesan case.
Indeed, the Court of Justice in Luxembourg, in 2002, clarified that the name
Parmesan
‘constitutes a faithful translation of the PDO “Parmigiano Reggiano”. (15) And therefore, the name Parmesan can only be allowed on products that meet the specification of Parmigiano Reggiano PDO, as they are registered and controlled by the relevant Consortium.
The EU-Japan agreement, on closer inspection, does not provide any protection for Geographical Indications against consumer deception related to the product name. Provided that, when the 7-year transitional period for food expires, one has the foresight to add-perhaps in a corner of the back label, amid other entries-that the origin of ‘Parmigiano Pisano’ is different.
In Europe – on the contrary – the Court of Justice has clarified the inadmissibility of evocation, which occurs when ‘the term used to designate a product incorporates a part of a protected name, so that the consumer, in the presence of the name of the product, is induced to have in mind, as a reference image, the merchandise that benefits from the name’. (16)
And again, evocation is not allowed in the EU, which is carried out ‘even in the absence of any likelihood of confusion between the products in question, since what matters is, in particular, that an association of ideas is not created in the public as to the origin of the product, nor that an operator unduly exploits the reputation of the protected geographical indication‘. (17)
In conclusion, the EU-Japan agreement permanently undermines the protection of all protected Geographical Indications. Which remain essentially unprotected, among other things, whenever the counterfeiter creates an illicit association of ideas about the origin of the product. (18)
Dario Dongo and Giulia Torre
Notes
(1) Thus the press release 18.4.18
http://europa.eu/rapid/press-release_IP-18-3325_en.htm
(2) Cf. JEFTA agreement, art. 16.4, on. http://trade.ec.europa.eu/doclib/docs/2017/december/tradoc_156423.pdf
(3) See Court of Justice opinion 16.5.17 no. 2/15
(4) In Europe, the draft agreement was not made available until after the official announcement of its finalization in December 2017
(5) GMOs are entrenched in the Japanese market, and the rules for them are quite different from ours. Specific information is limited to a few foods, and the tolerance of ‘accidental’ contamination with genetically modified materials is 5 percent (0.9 percent in Europe). See https://gain.fas.usda.%20Biotechnology%.pdf
(6) The final report Trade Sustainability Impact Assessment of the Free Trade Agreement between the European Union and Japan (TSIA), in May 2016, reports that ‘Japan’s use of fertilisers and pesticides per square kilometre of agricultural land remains well above the OECD averages‘ (p.227)
(7) A mention of the precautionary principle was originally contained in the European proposal of the chapter on regulatory cooperation, but it is not included in the final text of the agreement. The only remaining indirect reference is in the Trade and Sustainable Development chapter (Art. 9), with tenuous reference to theprecautionary approach
(8) JEFTA, Article 14.23.1, System of protection of geographical indication.
(9) Art. 14.25.1, Scope of protection of geographical indication
(10) Art. 14.27
Relationship
with trademarks.
The approach is similar to that agreed upon in CETA
(11) Annex XY,
List of Geographical indications for products as referred to in Article
24. Cf. http://trade.ec.europa.eu/doclib/docs/2018/january/tradoc_156549.pdf
(12) Agreement, Art. 14.29, Exceptions
(13) If as long as such goods are destined for the market of Japan (JEFTA, Art. 14.25.5)
(14) See on this point the judgment of 12.9.07, Case T-291/03, which annulled the decision of the Court of Appeals becauseit ‘erred in finding that the name “grana” was generic and that the existence of the PDO “Grana Padano” did not preclude the registration of the trademark GRANA BIRAGHI‘ (para. 89)
(15) EU Court of Justice, ECJ, Case C-66/00, judgment 25.6.02, para. 20
(16) ECJ, Case C-87/97, Consorzio per la tutela del formaggio Gorgonzola vs. Kaserei Champignon Hofmeister and Bracharz, judgment 5.3.99, para. 25
(17) ECJ, Case C-56/16 concerning IG Porto, judgment 14.9.17, para. 123. In line with what has already been expressed in Case C-75/15, Viiniverla, judgment 21.1.16, paragraph 45
(18) Where, on the other hand, the Court of Justice has affirmed in Europe the illegality of the evocation of Gorgonzola(Cambozola) and Calvados (Verlados).Cf. ECJ, case C-87/97, ruling 5.3.99, and case C-75/15, ruling 21.1.16
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
Graduated in law, master in European Food Law, she deals with agro-food, veterinary and agricultural legislation. She is a PhD in agrisystem.
