Plus d’un an s’est écoulé depuis que Donald Trump a imposé des droits de douane draconiens à ses partenaires commerciaux (« Liberation Day »), forçant nombre d’entre eux à négocier d’accords « réciproques » afin d’éviter des répercussions douanières préjudiciables. Ces accords, outre la suppression des droits de douane sur les importations en provenance des États-Unis et le démantèlement de diverses barrières non tarifaires, engagent également les partenaires à exclure certains pays (à savoir la Chine) de leurs chaînes d’approvisionnement.
La Chine n’était pas la seule cible. Les États-Unis ont également utilisé ces accords pour tenter de faire reculer le projet de longue date de l’Union Européenne visant à protéger ses indications géographiques (IG) à l’échelle mondiale. Des dizaines de pays ont signé des accords de libre-échange avec l’UE, dont la plupart protègent ses appellations emblématiques. Cela irrite les producteurs américains de fromage et de viande qui souhaitent continuer à utiliser ce qu’ils considèrent comme des noms génériques sur les marchés internationaux.
L’article complet de John Clarke est disponible ci-dessous (en Anglais uniquement)
The US in its “reciprocal” framework agreements has therefore introduced commitments aimed to prevent the EU from securing protection in other countries’ markets, or even cancelling protection where already granted. The War on Terroir is not over.
The standard provision of these Agreements – with Cambodia, Malaysia, Indonesia, Argentina and others – is as follows
In cases where (country X) protects or recognises a term that identifies a good as a geographical indication, but where there is no given quality, reputation or other characteristic of the good that is essentially attributable to its geographical origin, (country X) shall permit the use of the term in connection with US goods.
This is then followed by an Article specifically on cheese and meat terms, saying that country X
Shall not restrict market access due to the mere use of the individual cheese and meat terms listed in Annex II
The Annex of the agreements then typically list around 40 cheese names and 10 or so meat names which can be used by US producers marketing their goods in the partner country, irrespective of whether that country may have previously protected such names as GI’s.
How seriously does this undermine the protection of European GIs on these markets? To recall Mark Twain’s quote about Wagner’s music “It’s not quite as bad as it sounds”. Most of the 50 names are either common terms (eg, mozzarella, tomme, chevre, burrata, blue, chorizo, kielbasa), and accordingly non-protectable per se; or are names for which the EU does not anyway seek protection, even internally – names like cheddar, camembert, brie or edam. Some of this second category are protected GIs when combined with another term e.g ‘Camembert de Normandie’ or ‘Brie de Meaux’, but their protection in isolation is not sought. While the EU is not necessarily delighted about this category of non-protected terms being relegated to generic status (implying they can never be protected in future even if circumstances change), it does not change much on the ground.
There are however a handful of names in the US annexes which are protected European GIs: Feta, Gorgonzola, Fontina, Havarti, Asiago etc. Most of these are also protected in the EU’s existing Free Trade Agreements with e.g. Chile, Vietnam, Singapore, Japan and Mercosur (which provisionally entered into force on 1 May), or should be protected in Agreements being negotiated or pending approval e.g. with Mexico, India, Malaysia, Indonesia, Thailand and Philippines.
There is thus a risk of legal conflict between the FTA protection of EU GI’s and the US’s “reciprocal” agreements that remove that protection, declaring the terms generic for the purpose of US exports.
The US-Indonesia agreement goes even further, declaring that even for names protected as GIs, the US may practice “evocation”; ie on its products or packaging imply that it is the real (EU) GI, for example through the use of blue and white flags or Greek lettering on US “feta” cheese. This despite the fact that the EU-Indonesia FTA, whose entry into force is imminent, prohibits evocation by non-European GI producers. A legal conflict is in the making.
Similarly, in the US Agreement with Argentina, the commitment to allow US to use names protected by the EU-Mercosur Agreement creates a blatant legal conflict. Argentina’s Congress, when it approves the US Agreement, must either reject that provision or pass it knowing fully that it is illegal and will trigger litigation. The Vienna Convention on the Law of Treaties which provides generally that a more recent Treaty replaces previous ones does not apply here.
If Argentina toes the US line and breaches the Mercosur Agreement – which has to undergo a very tricky European Parliament ratification next year – either Parliament will not ratify, or the EU will challenge Argentina’s breach via the dispute settlement provisions of the Agreement, withdrawing trade concessions on, I predict, Argentine beef exports to Europe. A very bad start to this FTA.
The EU must be vigilant therefore to ensure its FTA partners do not breach the terms of their FTAs in any subsequent agreements with the USA. For the numerous EU FTAs under negotiation or not yet ratified – Mercosur, Mexico, Malaysia, Thailand, India, Philippines – the EU must warn these countries that failure to protect EU GIs may put their approval in jeopardy.
A particular situation arises with China and Mexico. Trump went recently to China for a Summit. Access of US agrifood was on the agenda. Trump will, if he had the time or interest, have asked China to deny protection to certain EU GIs already protected under the 2021 bilateral EU-China GI agreement, or scheduled for protection this year in the second phase of that Agreement. China must continue to resist this as a matter of credibility: this is one of the remaining areas where it works cooperatively with the EU in an otherwise difficult relationship.
Similarly, as the US renegotiates in the weeks ahead the US-Mexico-Canada FTA, Mexico must be careful not to bow to US pressure to deny protection to EU cheeses, meats or wines slated for protection in the modernised EU-Mexico agreement just signed by the EU and about to be ratified by the European Parliament. If GI protection were denied this could lead to EP rejection of the treaty.
For the EU, GIs have a political and cultural importance that far outweighs their economic value. They are at the heart of Europe’s culture, and a massively successful export. Any attempt by the US to remove their protection in markets around the world will trigger a strong reaction from Europe – one that its partners should avoid.
