Japan – Mozzarella di Bufala Campana PDO ‘evocation’ case

In light of the next application of the EU-Japan free trade agreement, this Q&A between a Member of the EU Parliament (MEP) and the EU Commission, raise a curious case of evocation of a PDO (Protected Designation of Origin, recognized under Reg. EU 1151/2012).

Question for written answer E-001489-19 – 25th March 2019

The Consortium for the Protection of Mozzarella di Bufala Campana PDO, acting in its watchdog capacity, is speaking out against a Tokyo-based cheese factory producing cow’s milk mozzarella marketed under the label ‘Mu Mu Mozzarella Tokyo Dop’, which, together with the buffalo’s head company logo, manifestly brings to mind Mozzarella di Bufala Campana PDO.

The EU-Japan trade agreement, which entered into force on 1 February 2019, ought to make for greater protection of intellectual property rights, and that includes automatic recognition of PGIs and PDOs registered in the EU.

1. Does the Commission consider the above facts to amount to a clear case of ‘evocation’ — according to the definition given in several Court of Justice rulings — of ‘Mozzarella di Bufala Campana PDO’?

2. Does the EU-Japan trade agreement explicitly call for Japan to take administrative measures in response to complaints about product labelling, especially when this is likely to mislead consumers?

3. What steps can the Commission take within its specific area of responsibility to ensure that the ‘Mozzarella di Bufala Campana’ PDO is legally protected on the Japanese market in accordance with the EU-Japan trade agreement?

(1) Judgments of 4 March 1999, Cambozola, C-87/97, EU:C:1999:115, paragraph 25; 26 February 2008, Commission v Germany, C-132/05, EU:C:2008:117, paragraph 44; and 21 January 2016, Verlados, C-75/15, EU:C:2016:35, paragraph 21.

Answer given by Mr Hogan on behalf of the European Commission

The EU-Japan Economic Partnership Agreement (EPA) ensures the protection in the territory of Japan of the EU geographical indications (GIs) listed in its Annex 14-B. The Italian GI ‘Mozzarella di Bufala Campana’ is listed in Annex 14-B and thus protected in Japan under the EPA since 1 February 2019.

SubSection 3 of Chapter 14 of the EPA applies to the recognition and protection of GIs for agricultural products, which originate in the EU, and contains a prohibition to mislead the Japanese consumer as to the true origin of products. Thus, the EU GI in question referred to by the Honourable Member is protected against potential evocation in Japan. Article 14.28 provides administrative enforcement of the protection of GIs listed in Annex 14-B.

The Commission has been made aware of the presence on the Japanese market of the product labelled ‘Mu Mu Mozzarella’ and is currently investigating and making inquiries on this particular matter with a view to exhaustively and appropriately assess the factual and legal elements.

In case an infringement is identified, it will take all necessary actions to ensure the respect of obligations under the EPA by the Japanese authorities.

In my opinion from this answer 3 key facts emerge:

  1. the EU understanding of the concept of evocation is very broad and includes any similarity in words, pictorials or names. In this sense also the recent case of the Court of Justice about Queso Manchego PDO and the image of Don Quixote de La Mancha on a “non-PDO” cheese from Spain (C-614/17);
  2. despite the heavy protection granted to GIs (geographical indications) in Europe, in third countries they are mostly treated as common trademarks. Therefore, the only way to contrast misleading products in such countries is administrative cooperation;
  3. despite the common opinion, to agree on a list of protected GIs is possibly the best viable approach at the moment. Especially when two strong economies are negotiating, will be an utopia to impose – from the EU side – the complete recognition of hundreds of GIs, potentially conflicting with local trademarks. While on the contrary, agree on a list of protected ones allow the EU to have solid basis to activate the administrative cooperation and eventually re-negotiate the agreement at a later stage.

(Source: EU Parliament)

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EU DG Health and Food Safety audit in Sweden – Unexpected flaws in microbial safety of food of non-animal origin

Here below the summary of a recent audit of the EU Commission services on the Swedish official control system for food of non animal origin (in particular frozen food and sprouts/seeds for sprouting). Beside the detected shortcomings, is quite unusual to notice that from internal audits from 2014 and from EU Commission audit in 2015, nothing or little improvements have been made.

“This report describes the outcome of a DG Health and Food Safety audit in Sweden which took place from 18 September to 27 September 2018 under the provisions of Regulation (EC) No 882/2004 of the European Parliament and the Council of 29 April 2004.

The objectives of the audit were to assess:

 the system of official controls in the area of food hygiene to prevent microbiological contamination in the production of food of non-animal origin, notably as frozen products and sprouts and seeds intended for sprouting;

 the extent to which the corrective actions submitted to the Commission services in response to the recommendations of the previous Directorate-General for Health and Food Safety audit report of 2015 have been implemented and their effectiveness in addressing the identified shortcomings.

Overall, a risk-based control system for official controls on food of non-animal origin is in place. There is a system for registering primary producers and for the approval of sprout-producing establishments. This facilitates the implementation of a risk-based approach to official controls including microbial risks associated with food of non-animal origin.

Regarding official samples, the appropriate laboratory capability and capacity is available.

Significant shortcomings were identified in relation to the registration of food business operators and approval of sprout-producing establishments. The approval system does not ensure that noncompliances have been rectified before that approval is granted. In addition, the official control system presents a number of gaps, notably related to provision of specific instructions, technical support and staff training. As a result, official controls cannot be implemented correctly and effectively, resulting in poor controls. This impacts on the enforcement, where non-compliances are hardly detected and when detected are rarely followed-up.

A number of these shortcomings were equally reflected in the outcome of an internal audit performed by the Central Competent Authority
in June 2018, and which found little corrective action since the previous internal audit, in 2014.

Thus, non-compliant products might be undetected and the correct application of the relevant legislation might not be enforced, resulting in placing on the market of non-compliant products which may present a health risk.

In respect of the follow-up to the previous audit, certain actions have not been effective in addressing the identified shortcomings. Overall, the audit had to conclude that there has been limited improvement compared to what was found previously.”

(Source: DG Sante website)