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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QeA EU Commission to EU Parliament – Allergens declaration on non pre-packed food

A useful reminder of the Commission on a principle that was not so clearly expressed into the legislation and still is not accepted by all the mass caterers and restaurants. See the last sentence in bold.

Question for written answer to the Commission – 5th June 2018 

Some of my constituents have alerted me to the fact that some Member States are apparently not requiring allergen information to be provided in restaurants and other food outlets. In order to determine whether these states are in breach of EC law, clarification is needed on the interpretation of Regulation (EU) No 1169/2011 on the provision of food information to consumers, which sets out the EU’s rules on consumer information on allergens in non-prepacked food.

On 13 July 2017, the Commission issued a notice updating allergen information requirements.

Under Article 9(1) of Regulation (EU) No 1169/2011, food business operators are required to provide allergen information, including for non-prepacked food.

Article 44 authorises Member States to adopt national measures concerning the means through which this information is made available. Member States are required to notify the Commission when such measures have been adopted.

Given that the regulation is being applied differently from one Member State to another:

  1. Is the Commission assessing the national measures in order to determine whether they are consistent with the meaning and purpose of the regulation and whether Member States have gone beyond the terms of authorisation granted to them?
  2. What are the criteria for assessing how well consumers are being alerted to the presence of allergens?
  3. Can Member States, in the context of their national measures, choose to disregard the obligations set out in Article 13 of the regulation in the case of non-prepacked food and provide allergen information only when requested by consumers?

Answer given by Mr Andriukaitis on behalf of the Commission – 16th July

Under Regulation (EU) No 1169/2011 on the provision of food information to consumers, Member States may adopt national measures concerning the means through which information on allergens on non-prepacked foods is to be made available.

In principle, all means of communication as regards the provision of allergen information are allowed to enable the consumer to make an informed choice, e.g. a label, other accompanying material, or any other means including modern technology tools or verbal communication (i.e. verifiable oral information). In this respect, the majority of the Member States have already adopted such national rules following their prior notification to the Commission.

In the context of the aforesaid notifications, the draft national measures in question have been evaluated by the Commission in the light of the relevant EU provisions, including Article 13 of the regulation.

In particular, it has been assessed whether the information on allergens is available and easily accessible, so the consumer is informed that the non-prepacked food raises issues relating to allergens and intolerances. In this context, it is not compliant with the EU legislation to provide allergen information only upon request by the consumer.

(Source: EU Parliament)