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Preliminary draft law on Protected Designations of Origin and Protected Geographical Indications at a supra-regional level.Spain is a country with significant historical and cultural diversity, which is reflected in the recognition of a large number of foods with individual quality characteristics due to the geographical area from which they originate, in particular in the form of Protected Designations of Origin (PDO) and Protected Geographical Indications (PGI)
PDOs and PGIs may be considered to be a contributing element to the differentiation of the production which helps to increase the competitiveness of the agro-food industries, fundamentally through the promotion of these products by consumers, while at the same time being a key instrument in the development and sustainability of the rural fabric and establishing itself as a hallmark of the image of Spanish products abroad.
The first protected designations in Spain date from 1932, at which time our country was granted the first legal framework in this area, the Statute on Wine, by Decree of 8 September, later elevated to the status of a law, by the Law of 26 May 1933, which only covered wine. Later, the national framework was amended by Law 25/1970, of 2 December, on the Statute on Vines, Wines and Alcohols, which extended the model to cover all other foods. Finally, Law 24/2003, of 10 July, on Vines and Wines, constituted the last national legislation specifically for wine. In the same way, the judgment of the Constitutional Court (STC 112/1995) may be cited, in which, in order to ensure a clear distribution of responsibilities between the Autonomous Communities and the State in this area, states that "The State may of course issue basic or full standards as applicable, where the Autonomous Communities do not have exclusive jurisdiction. It may also order designations of origin covering the territories of several Autonomous Communities, which obviously can only be done by the general State bodies".
But policy developments in this field have not been confined to Spain, as the European Union has put in place since the 1990s, in a progressive and constantly evolving manner, a legal framework for the recognition, protection and control of PGIs and PDOs with a common and harmonised approach for all Member States, but without maintaining a certain degree of subsidiarity. This approach to EU legislation, where the European Commission has become a key player, has gone beyond the approach set out in national law.
The involvement of the operators is required to support the common model, in particular through the bodies responsible for managing the PGIs and PDOs, which must have their own legal personality separate from the government, but with a direct collaborative relationship. In this regard, appropriate and necessary collaboration in the management of the protection status may require the allocation of public functions within the management entities, for which reason the text provides for the establishment of public law corporations. In fact, the bill itself creates 8 public law corporations for a corresponding number of Regulatory Boards, that are considered to be decentralised government bodies at the time of adoption of this law, and that have expressly requested access to this legal formula.
Furthermore, recognition, management and support of the protection status alone is not sufficient to ensure the proper functioning of the system; it is also important to ensure that sufficient and accurate information is given to consumers, and that fair competition between operators is respected. This need is reflected in the inclusion of specific checks on PDOs and PGIs in the general Community regulatory framework of official controls on feed and food, Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules.
The new requirements under EU legislation on official controls, particularly for PGIs and PDOs, together with the many changes in the agro-food sector, justify the need to establish a new single national regulatory framework, repealing the existing one and which includes a new legal system that would apply to those statuses whose jurisdiction extends to more than one Autonomous Community and clearly defines the functions of their management entities and the exercise of official control by the competent authority.
In this regulation, the verification of compliance with the mandatory requirements for the marketing of the products in question is essential, as it is a key element in ensuring legal certainty for the various operators and fulfilling the expectations of consumers.
For this purpose, the law regulates and implements the powers attributed by the legal framework within the Spanish Government to the Ministry of Agriculture, Food and the Environment regarding agricultural and food products covered by a PDO or PGI, in particular those relating to official controls, without prejudice to the powers that other ministerial departments may have.
Some of these official control functions shall be performed by the autonomous body of the Agency for Food Information and Control. Law 12/2013, of 2 August, on measures to improve the functioning of the food chain and creating the Agency for Food Information and Control, must be amended in order to assign these new functions to said body, with the goal ofcreating a fee that can be charged for carrying out these inspection and control functions and which is authorised by EU legislation.
Also, in accordance with the provisions of EU legislation, this law provides for the possibility of delegating specific tasks related to official controls to control bodies operating as product certification bodies, provided that these meet certain conditions relating in particular to their technical expertise, objectivity and express authorisation by the competent authority.
The Law consists of five chapters in total.
Chapter I sets out general provisions on the object and scope of the law, in addition to its aims and the basic definitions that are necessary for its application.
In Chapter II on cooperation between public authorities, the aim is to strengthen the instruments for cooperation between public authorities, drawing on the experience of recent years. Under the principle of voluntariness, the aim is to facilitate the collective implementation of actions, in order to make more efficient use of the resources of the system for control of PGIs and PDOs, which will no doubt lead to improvements for the whole sector without the need for additional resources.
In particular, this chapter deals with the various cases in which the relationship between the Spanish Government and the Autonomous Communities is made clear. It is based on respect for the scope of each authority and relationship formulas are put in place, such as the need to obtain a prior report from any authority that could be affected by the decisions or actions of another authority, cooperation agreements and, if applicable, the formation of committees for the management of common interests, particularly in the area of official control of PDOs and PGIs, and sanctioning procedures for offences listed under this law.
The collaboration extends to particularly sensitive areas of public action, such as those involving performance of inspection duties.
As this law aims to foster cooperation, it contains a provision stating that specific cooperation bodies in the area of PDOs and PGIs may be created by agreement of the Sectoral Conference on Agriculture and Rural Development.
Chapter III defines the system for the protection of PDOs and PGIs at State level. The general principles of the system are defined and the affected products are identified in accordance with applicable EU legislation. Also, the content and scope of protection granted to protected names associated with a PGI and PDO is regulated, indicating that the protection extends from production to all stages of marketing, presentation, advertising, labelling and other commercial documents of the products concerned.
On the other hand, management entities, known as Regulatory Boards, for PDOs and PGIs whose jurisdiction extends to more than one Autonomous Community, are regulated, and shall have their own legal personality and a governing body, in which all economic interests involved in the production of the product are represented equally, and be authorised by the Ministry ofAgriculture, Food and the Environment. The law provides for the possibility of setting up these entities as public law corporations to which the performance of certain public functions can be attributed.
Chapter IV deals with general aspects of the system for the control of PDOs and PGIs, which provides guarantees for economic operators and consumers. It isthus explicitly established that the Ministry ofAgriculture, Food and the Environment is responsible for the verification of compliance with the specifications before the placing on the market of PDOs and PGIs whose jurisdiction extends to more than one Autonomous Community. In compliance with EU legislation, the right to delegate certain control tasks to control bodies operating as product certification bodies will be granted.
Finally, Chapter V establishes the applicable penalties under the State's jurisdiction in the area of control of PGIs and PDOs, listing the offences that are classified as minor, serious or very serious, and fixing the level of the penalties to be applied in each case. It also identifies the holders of the power to initiate, process and resolve disciplinary proceedings, as well as interim measures to be taken if necessary.
On the other hand, the law, while repealing title II - System for the protection of the origin and quality of wines - of Law 24/2003, of 10 July, on Vines and Wines, and other provisions of the same legal text on this issue, as it contains much that is not considered to be compatible with Council Regulation (EC) No 491/2009 of 25 May 2009 amending Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products, in the second and third supplementary provisions, the information concerning the characteristics of wines and the regulation of traditional terms for wines continues to be legally binding, in a manner consistent with the provisions of EU regulations on these issues, as contained in said regulations and in Commission Regulation (EC) No 607/2009 of 14 July 2009, laying down certain detailed rules for the implementation of Council Regulation (EC) No479/2008 as regards protected designations of origin and geographical indications, traditional terms, labelling and presentation of certain wine sector products.
This text has been subject to the procedure pursuant to Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, and to Royal Decree 1337/1999 of 31 July regulating the provision of information in the field of technical standards and regulations and of rules on Information Society services, which incorporates this Directive into Spanish law.
CHAPTER I
General provisions
Article1. Object and scope of application
This law aims to establish the legal framework, complementary to EU legislation, for the Protected Designations of Origin (hereinafter PDOs) and Protected Geographical Indications (hereinafter PGIs), as provided for in Article 10 of this law, whose jurisdiction extends to more than one Autonomous Community (hereinafter at a supra-regional level), with particular attention given to official control prior to placing on the market.
Article2.Purposes.
The purposes of the Act are to:
a) Regulate the ownership, use, management and protection of PDOs and PGIs connected to an origin whose jurisdiction extends to more than one Autonomous Community, regardless of the nature of the product covered, as well as the applicable legal framework for its control.
b) Ensure the protection of PDOs and PGIs as intellectual property rights by the measures provided for in this law.
c) Protect the rights of producers and consumers by ensuring compliance with the general principle of veracity and demonstrability of the information given on the labelling of the products covered by a PDO or PGI whose jurisdiction extends to more than one Autonomous Community.
Article3.Definitions.
For the purpose of this law, the following definitions are laid down:
a) Specifications: normative document setting out the requirements to be met by a product from a PDO or PGI, also referred to as "technical file" for geographical indications of spirit drinks.
b) Operator: the natural or legal person responsible for ensuring that their products meet the criteria stated in the specifications before placing them on the market, as well as the provisions of this law.
CHAPTER II
Cooperation between public authorities
Article4.Principles of action.
1. In its relations with the Autonomous Communities, the Spanish Government and its associated or subordinate public bodies shall act in compliance with the provisions of Articles 3 and 4 of Law 30/1992, of 26 November, on the Legal System of Public Authorities and the Common Administrative Procedure.
2. In any cases where decisions or actions taken by a particular authority may affect the powers of other authorities, the former should obtain a report from the latter before finding a solution.
Article5.Cases involving several competent authorities.
When the territories of several autonomous communities are affected and said autonomous communities and the Spanish Government must act, the authorities concerned may set up collaboration procedures that they consider effective for the adequate exercise of the respective powers, which may provide for the appointment of a single body to deal with the corresponding administrative procedures.
Article6.Cooperation agreements.
The competent public authorities may conclude cooperation agreements and establish a common organisation for managing them in accordance with the provisions of Article 6.5 of Law 30/1992, of 26 November.
The common organisation shall take on the specific tasks expressly determined by the cooperation agreement and may be granted the necessary powers by the competent authorities for optimum performance of the tasks of these authorities, particularly in the area of official control of PGIs and PDOs and the disciplinary proceedings for infringements listed in this law.
Article7.Collaboration in the performance of inspection duties.
The public authorities and their associated or subordinate public bodies shall provide the information requested by the relevant inspection services when required to do so and in accordance with the rules applicable in each case, and shall also provide the necessary collaboration.
With regard to inspection and control, the competent public authorities may request the necessary support from any other authority, as well as from the law enforcement bodies and agencies at State, autonomous community or local level.
Article8.Cooperation bodies in the area of Protected Designations of Origin and Protected Geographical Indications.
Under Article 5 of Law 30/1992, of 26 November, by agreement of the Sectoral Conference on Agriculture and Rural Development, those committees and groups that are necessary for cooperation in the area of PGIs and PDOs may be created.
CHAPTERIII
Protection of the Protected Designations of Origin and Protected Geographical Indications.
Article9. General Objectives.
The following are the general objectives of PDOs and PGIs, without prejudice to the provisions of directly applicable EU legislation:
c) To protect the rights of producers and consumers by ensuring compliance with the general principle of veracity and demonstrability of the information given on the labelling of agricultural and food products covered by a PDO or PGI.
b) To guarantee the specific nature of the agricultural or food products covered by a PDO or PGI and their protection, maintaining their diversity and commercial reputation.
c) To provide operators with a means for product differentiation, as an additional element to help strengthen fair and effective competition in the sector.
Article10. Protected Designations of Origin and Protected Geographical Indications.
For the purposes of this law, the following PDOs and PGIs laid down by EU legislation are considered:
a) the Protected Designations of Origin and Protected Geographical Indications for wine sector products.
b) Geographical indications for spirit drinks.
c) Geographical indications for flavoured wines, flavoured wine-based drinks and flavoured cocktails made from wine sector products.
d) The Protected Designations of Origin and Protected Geographical Indications for other agricultural products and foodstuffs.
Article11. Cross-border Designations of Origin andGeographical Indications.
1. In the case of PDOs or PGIs whose jurisdiction affects the national territory and also another EU Member State or States, the relationship with the competent authorities of the other Member State(s) shall be the responsibility of the Spanish Government through the appropriate channels.
2. The appropriate cooperation procedures shall be arranged by the Spanish Government and the autonomous communities affected by a cross-border geographical indication.
3. When taking the appropriate decisions, the Spanish Government shall consult with the affected autonomous communities.
Article12. Ownership, use and management of protected names.
1. Names that are protected due to being associated with a PDO or PGI are public domain goods that may not be subject to individual acquisition, transfer, sale or levy.
2. The use of any protected names shall not be refused to any natural or legal person who complies with the requirements established for each PDO or PGI, except where they have incurred the penalty of a temporary or permanent loss of the use of the protected name or for any other legally established reason.
Article13. Protection.
1. Without prejudice to the protection offered by EU legislation, names that are protected due to being associated with a PDO or PGI shall not be used to designate other comparable products which are not covered.
2. Protection shall extend from production to all stages of marketing, to the presentation, advertising, labelling and commercial documents of the products concerned. The protection shall apply against any misuse, imitation or evocation and implies prohibition on using any other false or misleading indication as to the provenance, geographical origin, nature or essential qualities of the products on the container or packaging, in the advertising material or in documents relating to these products.