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Geographical Indications: The Brexit Dimension

The forthcoming departure of the UK from the European Union represents (among many other things) an interesting test of the international resilience of the EU’s GI legislation.

The UK, as a non-member state, will have no a priori obligation to retain recognition of the EU’s plethora of GIs within its own agri-food market. After Brexit, it could potentially disassociate itself with the EU’s legislative framework for GIs, other than to the extent required to remain in compliance with the WTO TRIPS agreement.

Alternatively, it may opt to maintain full recognition of the EU scheme, in return for continuing full recognition by the EU of the UK’s own GIs. The place at which the UK ends up on the spectrum between these two extremes will say much about the intrinsic value to be placed on the whole notion of agri-food geographical indications.

The British government has never identified itself explicitly as an enthusiast for the GI model, perhaps in deference to its strong cultural links with ‘New World’ opponents to the scheme such as the US and Australia.

But it does nevertheless currently have 69 agri-food products (not including wines and spirits) registered with the EU as protected GIs (25 PDOs, 40 PGIs, and four TSGs).

This is a higher number than any other non-Mediterranean member state other than Germany, and illustrates the extent to which regional authorities and food businesses have been active in the last 25 years in seeking recognition for their own food and drink specialities.

Moreover, as of Autumn 2017 at least 12 additional food names from the UK were at various stages in the process to gain GI recognition at EU level, one of which, the ‘Traditional Welsh Caerphilly’ cheese was added to the EU’s PGI register in late January.

Mutual recognition of GIs?

It therefore seems most likely that the UK will seek to negotiate a deal with the EU which allows mutual recognition of GIs on either side, as this will represent continuation of the status quo. But this remains one of many aspects of Brexit that has yet to be clarified.

“The UK’s imminent exit from the EU may have an impact on the ability to utilise the existing EU geographical indication schemes,” commented the UK’s Food and Drink Federation, when contacted by IEG Policy for its views on the subject.

“Defra [the UK’s Department for the Environment, Food and Rural Affairs] recognises the benefits of protecting traditional and geographical food products and also has a strong desire to promote UK food and drink as part of its export ambitions. As always FDF will work with stakeholders on behalf of the sector and consumers to protect our fine food and drink heritage and future,” it continued.

If there is no specific agreement on mutual GI recognition, it should remain possible, and relatively straightforward, for the UK to re-register its GIs as a third country using the EU GI system. As already noted, no fewer than nine non-EU countries already have their agri-food product names protected on the EU register, while 13 third countries have wines and /or spirits registered.

Re-registration or re-classification of the existing UK GIs on the EU database will of course be simplified if the UK commits to register all existing EU GIs on an equivalent UK database. There appears to be little reason why the UK would be unprepared to take such a step, unless there were to be a move by any part of the UK agri-food industry to ‘de-recognise’ any existing EU GI terms.

For example, the UK dairy sector could conceivably seek to re-appropriate the term “Feta” for its own cheesemakers – having lost the ability to use this term when Greece registered it as a PDO in 2002.

But the UK government will be wary of taking any such step, as it will be aware that any move to de-register an EU GI will inevitably be met by a retaliatory de-listing on the EU side. It will therefore almost certainly prefer to keep Pandora’s box firmly closed and accept like-for-like recognition of existing GI terms.

The UK has already indicated that, as a default, it will incorporate into UK law all legal provisions with an EU origin at the point of Brexit (as part of the so-called Great Repeal Bill’). This is likely to cover acceptance of existing GIs registered in the EU-27.

However, mutual acceptance of the status quo at the UK’s point of departure will only be the starting point for resolution to the Brexit issue. Questions which will then need to be resolved include the following:

What happens when the EU approves new GIs after Brexit?

Will the UK automatically accept new GIs as valid in the UK once they are registered in the EU? Given that the UK will no longer have a voice in approving such applications, this seems unlikely. In all probability, a new UK approvals body will need to be created to authorise new GIs in the UK (possibly UKAS, the UK’s National Accreditation Body) - and European food businesses may have to go through an entirely separate and duplicate registration process to get their GIs approved in the UK. Those producing smaller local products, with no real aspiration to export to the UK market, may decide not to bother, thus creating the first divergences in the GI databases controlled by the EU-27 on the one hand and the UK on the other.

What happens when the UK approves new GIs?

EU law currently states that non-EU products applying for EU GI status must already be protected in their country of origin. British producers seeking GI protection for agri-food products will thus need to apply to the new UK approvals body in the first instance, but would then, in all probability, have to make a parallel application to the European Commission in order to extend their protection to the market of the EU-27. Again, this will make GI registration more expensive and time-consuming than at present, and some producers may choose not to bother.

What happens when either the EU, or the UK, strikes trade deals with third countries which include protection of GIs?

The EU has a very active agenda of seeking to embed mutual recognition of GIs as an integral part of new trade deals with third countries. After Brexit, it can be assumed that UK products will no longer feature on the list of names for which the EU seeks protection for new trade deals, and the EU is also likely formally to revoke its request for protection for such names in the case of existing trade deals. Britain will therefore have to make its own provisions to safeguard against ‘piracy’ of its most cherished food names on third country markets.

The UK also has clear ambitions to negotiate trade deals with third countries once it leaves the EU, and has targeted in particular those countries in the so-called ‘Anglosphere’ – the US, Canada, Australia and New Zealand – where the protection of food names originating in Europe is a particularly sore point.

It is quite possible that one or more of these trade partners might seek to make it an explicit point of any trade deal with the UK that Britain should accept the import of products which are produced in the ‘New World’ country in question under a name for which the EU claims unique marketing rights.

The UK would then need to decide whether the commercial and political benefit of acceding to such a request would outweigh the diplomatic fallout of over-riding any post-Brexit agreement to keep the EU’s GIs protected on the UK market.

This article is the online version of Chapter Six of a new Special Report published by IEG Policy, titled ‘Geographical Indications: Agri-Food Heritage & Global Trade’. Subscribers can download the report from the Resources> Reports section in the left hand menu.  

Non-subscribers can now download the report by following this link.


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