27 November 2011

GI Management and Traditional Knowledge

The European Court of Auditors, the European Commission's financial watchdog (broadly equivalent to Australia's ANAO), has released a 49 page special report (ECA No 11/2011) [PDF] regarding the design and management of the EU geographical indications regime. In essence it asks whether the design allows the scheme to be effective.

The European geographical indications regime aims to protect product names that are registered as 'Protected Designation of Origin' (PDO) or 'Protected Geographical Indication' (PGI).

PDO describes products claimed as having characteristics resulting essentially from the geographical area and the knowhow of the producers in the area of production. All stages of the production take place in that geographical area; there must be a close link between the products’ features and their geographical origin. Examples are 'Queso Manchego', 'Prosciutto di Parma' and 'Grana Padano'.

PGI relates to products having specific characteristics or reputation associating them with a given geographical area where at least one stage of the production takes place. If the products are processed, the raw materials may come from other geographical areas. Examples include Bayerisches Bier , Scotch Beef and Pruneaux d’Agen.

As of 2010, some 964 product names were registered in Europe: 502 as a PDO and 462 as a PGI. The Commission has a target of 1,100 GI names by the end of 2012.

PDO and PGI products may be recognised through specific EU symbols (intended to provide a guarantee that the products relate to a particular geographical area. The estimated aggregate wholesale value of EU GI is €15 billion per year (claimed as equivalent to 2.5% of the expenditure for food consumption in the EU).

The Court comments that -
The scheme also provides a potential economic opportunity for farmers and producers of food and can have a positive impact on the rural economies of the EU’s regions, as well as offer an impetus for safeguarding local culture and tradition and provide consumers with the opportunity to be more aware of the origin of the products they consume.
The ECA performance audit assessed whether the Commission manages the GI scheme "in a way that would allow it to be effective in meeting its objectives".

The audit featured three criteria -
  • the robustness of the control system defined, 
  • the attractiveness of the scheme to potential applicants 
  • consumers’ awareness of it.
It concluded that clarification is needed on a number of issues. There is no clear strategy for promoting and raising awareness of the scheme amongst both producers and consumers.

In particular -
• the legal provisions do not lay down minimum requirements for Member States’ checks on product specifications;
• the regulation does not clearly define the Member States’ obligation to carry out checks to prevent and detect disallowed practices;
• most of the national authorities accordingly do not carry out regular checks in view of detecting and suppressing these practices;
• the Commission does not monitor closely the implementation of the GI scheme in the Member States;
• No audits on the GI scheme have been carried out so far;
• the potential applicants are often not aware of the scheme or are discouraged by the lengthy application procedures;
• consumer recognition of the scheme and its symbols is very low.
The report notes that -
detection and suppression of cases of disallowed practices on a regular basis. They usually carry out checks aimed at the detection and suppression of disallowed practices concerning PDO and PGI products only in order to address denunciations or as a secondary part of hygiene and safety checks related to foodstuffs. Where such checks are carried out, the visits to the Member States and the online survey showed a difference in the coverage of PDO and PGI products from other countries. In a number of Member States, the checks exclude such products and only national produc ts are covered.
Recommendations by the ECA for improvement of the GI scheme are -
• The Commission should set out minimum requirements concerning checks on product specifications and lay down clear rules for a control system that provides for regular checks to detect and suppress disallowed practices.
• The Commission should also develop a strategy for raising awareness of the GI scheme among potential applicants and consumers and for exploring more effective means of promoting the GI scheme to them.
The report coincides with release on SSRN of 'The Mismatch of Geographical Indications and Innovative Traditional Knowledge' (Victoria University of Wellington Legal Research Paper No. 35) by Susy Frankel, whose work has been noted elsewhere in this blog

She argues that -
geographical indications cannot deliver the protection for traditional knowledge that indigenous peoples seek. There are three broad ways in which the protection of GIs appears to offer the possibility of providing legal mechanisms to protect traditional knowledge. These are the collective nature of the protection, the indefinite availability of GIs and the connection that GI owners associate between their products and their land. Those seeking protection of traditional knowledge also seek a collective and an indefinite interest and frequently the relationship between their knowledge and the land is important for indigenous peoples. Yet these similarities are superficial. GIs protect names and are used by western farmers and sometimes rural communities to promote their products. This article concludes that GIs cannot deliver the protection that indigenous peoples seek in order to benefit from their traditional knowledge.