EU‐Australia FTA: Challenges and potential points of convergence for negotiations in geographical indications

• DOI: http://doi.org/10.1111/jwip.12163
• Published date: 01 July 2020
• Date: 01 July 2020
• Author: Elyse Kneller

J World Intellect Prop. 2020;23:546–578.wileyonlinelibrary.com/journal/jwip546

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© 2020 John Wiley & Sons Ltd

DOI: 10.1111/jwip.12163

ORIGINAL ARTICLE

EU‐Australia FTA: Challenges and potential

points of convergence for negotiations in

geographical indications

Elyse Kneller

Faculty of Law and Criminology, Gent, Belgium

Correspondence

Elyse Kneller, Begijnhoflaan 73, Gent,

9000, Belgium.

Email: kneller.e@gmail.com

Abstract

Since June 18, 2018, the European Union (EU) and

Australia have been negotiating an ambitious and com-

prehensive free trade agreement (FTA). This paper ex-

amines how geographical indications (GIs) are likely to

fare in those negotiations, given that Australia and the

EU have historically clashed over agricultural policy in

international trade and have opposing legal approaches

to protecting GIs, apart from wines. Specifically, this pa-

per is concerned with the main challenges facing the EU

and Australia on GI‐related matters, as well as the main

areas of convergence between both Parties. It begins

with an outline of the EU and Australia's current GI

legislative frameworks, before exploring both Party's

respective interests for including them in the intellectual

property chapter of the FTA. Then, it identifies and

analyses the main challenges confronting the GI discus-

sions and concludes by determining the main potential

points of convergence. This paper is relevant to under-

stand the current relationship between the EU and

Australia on GIs, the relative stakes for concluding am-

bitious GI provisions in the FTA, and the retrospective

Abbreviations: CAP, Common Agricultural Policy; CJEU, Court of Justice of the European Union; CTM, certification trademark; EC, European Community;

EPA, Economic Partnership Agreement; EU, European Union; FTA, free trade agreement; GI, geographical indication; IP, intellectual property; MS,

member states of the European Union; TM, trademarks; TRIPS, trade‐related aspects of intellectual property; WTO, World Trade Organisation.

comparison of GI reform after this agreement has been

implemented.

KEYWORDS

Australia, continents, European Union, geographical indications,

international trade, key topics, regions or location

1|INTRODUCTION

In November 2015, the Australian Government together with the European Union (hereinafter EU) agreed to work

towards the launch of negotiations for a comprehensive free trade agreement (hereinafter FTA), to deepen the

relationship established in the 2008 EU‐Australia Partnership Framework (EEAS, 2009; European Commission,

2015a). On June 18, 2018, these FTA negotiations launched with strong bilateral ambitions for improved market

access, economic growth, job opportunities and a commitment to a positive trade agenda (DFAT, 2018;2018;

European Commission, 2018a). Since the launch of negotiations, the EU and Australia have regularly participated in

bilateral rounds of discussions to consolidate textual proposals and finalise the text of the FTA. The reports of the

sixth round of negotiations (DFAT, 2020; European Commission, 2020, p. 1), which took place from February 10 to

14, 2020, indicate that in some respects, negotiators started to agree in principle on parts of the text.

Historically, the trade and economic relationship between the EU and Australia has not been smooth sailing

(Elijah, Kenyon, Hussey, & Van der Eng, 2017, p. 2). Despite the most obvious constraint of distance, the major

source of tension that dominated the relationship for several decades was the EU's Common Agricultural Policy

(hereinafter CAP; Yencken, 2015, p. 426). Introduced in 1962 by the European Community (hereinafter EC) at that

time, the CAP did not have an impact on Australia until 1973 when the UK acceded to the EC and as a result,

restricted Australia's deep access to Britain's agricultural market (Yencken, 2018, p. 587). Coupled with the strong

presence of the EC's export‐subsidised agricultural goods on the international market, Australia was a key op-

ponent to the EC's CAP over many years and governments (Yencken, 2018). This issue has been described as “one

single focus of intense conflict”which “has eclipsed all other aspects of the relationship for many decades”

(Murray & Bruna Zolin, 2012, p. 186).

Thus, with the EU's CAP reforms in 1992, which considerably reduced protectionist measures and restricted

export subsidies, the ties between the EU and Australia improved (Elijah et al., 2017, p. 2). This was made clear by

the successful conclusion of the Uruguay Round of the General Agreement on Tariffs and Trade in 1994 that not

only boosted Australia's exports to the EU, but also set the tone for stronger multilateral cooperation based on

trade liberalisation and rules‐based trade (Yencken, 2018, p. 588). Both the EU and Australia were proponents and

even considered as “allies”for the Doha Round of multilateral negotiations that launched in 2001 (Nicolaj, 2012),

committed to further strengthening the new disciplines of the World Trade Organisation (hereinafter WTO), which

posed the greatest barriers to trade liberalisation, namely, “behind the border”obstacles of services, intellectual

property (hereinafter IP), labour standards, investment and competition policy (Elijah et al., 2017, p. 3).

However, due tothe continual deadlock of these multilateraldiscussions to create deepand effective integration

in these areas, the EU and Australia have both set about the conclusion of bilateral and plurilateral FTAs with their

leading trading partners. Since 2003, Australia has committed itself to an open global economy by emphasising the

reduction of nontariffbarriers in ten progressive FTAs with Singapore,Chile, China, Thailand, Japan, Malaysia,Korea,

United States, Association of Southeast Asian Nations (including New Zealand) and finally, the Comprehensive and

Progressive Agreement for Trans‐Pacific Partnership (TPP) in December, 2018. Similarly, the EU adopted a new

direction in trade policy in 2006 with its Global Europe strategy (European Commission, 2006). This strategy re-

cognised the potentialof bilateral and regional FTAs to pave a faster pathto “openness and integration”in the world

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economy that could serve as a “steppingstone”for stronger cooperation at the multilateral level (European Com-

mission, 2006, p. 8). As a result, the EU has concluded ambitious trade agreements with Singapore, South Korea,

Vietnam, Canada and Japan, and is in the process of negotiating others, including with New Zealand (European

Commission, 2019). The EU's Trade for All policy strategy in 2015 further reiterated the importance of moving

forward withthese bilateral trade agreements,especially in the Asia‐Pacificregion, to tackle persistent barriersto EU

exports and to secure protection for social and environmental trade matters (European Commission, 2015a,p.31).

It is, therefore, in this context that Australia and the EU began negotiations of a deep and comprehensive FTA,

as “like‐minded partners”, protecting and promoting a rules‐based international order (Greiner, 2017, p. 48;

European Commission, 2018b). One must only look at the recent momentum against liberalised trade, such as the

United States' withdrawal from the Transatlantic Trade and Investment Partnership and the TPP, punitive tariff

increases between the world's largest trading blocs and even Brexit, to understand that the EU‐Australia FTA is a

powerful symbol of international cooperation, based on fair and mutually beneficial trade. It is also an ambitious

agreement. The negotiating mandates do not only tackle traditional regulation of trade in goods, services and

investment, but target, inter alia, high standards on sanitary and phytosanitary measures, IP, government pro-

curement, competition, trade and sustainable development, and good regulatory practice (Council of the European

Union, 2018; DFAT, 2018b). Both Australia and the EU's reports of each round of negotiations illustrate that both

Parties have been making strong progress to agree on a lot of these matters (see DFAT, 2020; European Com-

mission, 2020). That is not to say nonetheless, that the EU‐Australia FTA negotiations are immune from any

challenges. Scholars have identified potential obstacles in matters over agriculture, investor‐state dispute settle-

ment, IP, services in the digital age, government procurement, as well as sustainable development and conditions of

human rights (Drake‐Brockman & Messerlin, 2018; Elijah et al., 2017; EU Leadership Forum, 2018; McKenzie,

2018). It is outside the scope of this paper to address all of these matters.

This paper will rather focus on Geographical Indications (hereinafter GIs) that are to be included in the IP

chapter of the FTA. Similar to trademarks (hereinafter TMs) that help consumers distinguish the commercial origin

of a product, GIs are signs that communicate a product's geographical origin (Gutierrez, 2005, p. 31). In addition to

that, they also identify the quality and reputation of agricultural goods that are “derived from a combination of

unique regional, environmental and human influences, such as climate, soil, plants and special methods of pro-

duction”(Murphy, 2003, pp. 1185–1186). It is a commonly held view, at least from the perspective of Europe, that

the fundamental principle behind GIs is that a geographical area is essential to a reputable product (Raustiala &

Munzer, 2007, p. 338). This implies that producers outside the delineated area should not be permitted to use the

name of the GI region in marketing or on product labels (Raustiala & Munzer, 2007).

GIs are protected under the WTO's Agreement on Trade‐Related Aspects of Intellectual Property Rights of

(1994) (hereinafter TRIPS). TRIPS defines GIs as “indications which identify a good as originating in the territory of

a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the

good is essentially attributable to its geographical origin”(Agreement on TRIPS of 1994, Article 22(1)).

The main reason why this paper will concentrate on GIs in the EU‐Australia FTA negotiations is because they

are particularly contentious. The EU Trade Commissioner, Malmström (2018), acknowledged that GIs were likely to

be the most “difficult”aspect in the negotiations. Not only do the EU and Australia stand in sharp contrast to each

other over basic principles in GI registration and protection, but GIs are strongly linked to the EU and Australia's

long‐held source of conflict over agriculture policy and international trade. Since TRIPS, GIs have occupied a

general impasse between “old world”and “new world”countries, to which primarily the EU and Australia re-

spectively fall into (Raustiala & Munzer, 2007, p. 339). This divide is centred over the old world's increasing demand

of protection for local traditions and culture in a competitive and globalising world, against the new world's

concerns that GIs stifle international competition and are merely disguised subsidies for farmers and rural com-

munities (Raustiala & Munzer, 2007). Considering, the EU has explicitly linked the need to protect GIs inter-

nationally with the reforms of the CAP as one justification for less export subsidies to farmers and a way for the

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