THE EUROPEAN COMMUNITY,
hereinafter referred to as "the Community",
and
THE REPUBLIC OF SOUTH AFRICA,
hereinafter referred to as "South Africa",
hereinafter referred to as "the Contracting Parties",
WHEREAS the Agreement on Trade, Development and Cooperation between the European Community and its Member States, of the one part, and the Republic of South Africa, of the other part, has been signed on 11 October 1999, hereinafter referred to as the "TDC Agreement", and entered into force provisionally on 1 January 2000,
DESIROUS of creating favourable conditions for the harmonious development of trade and the promotion of commercial cooperation in the spirits sector on the basis of equality, mutual benefit and reciprocity,
RECOGNISING that the Contracting Parties desire to establish closer links in this sector which will permit further development at a later stage,
RECOGNISING that due to the long standing historical ties between South Africa and a number of Member States, South Africa and the Community use certain terms, names, geographical references and trade marks to describe their spirits products, farms and practices, many of which are similar,
RECOGNISING that the Contracting Parties have different internal requirements and definitions for spirits that should not be prejudiced by this Agreement,
RECALLING their obligations as parties to the Agreement establishing the World Trade Organisation (hereinafter referred to as the "WTO Agreement"), and in particular the provisions of the Agreement on the Trade Related Aspects of Intellectual Property Rights (hereinafter referred to as "the TRIPs Agreement"),
HAVE AGREED AS FOLLOWS:
ARTICLE 1
Objectives
1. The Contracting Parties shall, on the basis of non-discrimination and reciprocity, facilitate and promote trade in spirits produced in South Africa and the Community, on the conditions provided for in this Agreement.
2. The Contracting Parties shall take all general and specific measures necessary to ensure that the obligations laid down by this Agreement are fulfilled and that the objectives set out in this Agreement are attained.
ARTICLE 2
Scope and coverage
This Agreement applies to spirits falling under heading 22.08 of the International Convention on the Harmonised Commodity, Description and Coding System ("Harmonised System"), done at Brussels on 14 June 1983, which are produced in such a manner that they conform to the applicable legislation regulating the production of a particular type of spirit in the territory of a Contracting Party.
ARTICLE 3
Definitions
For the purposes of this Agreement, unless otherwise provided in this Agreement:
(a) "originating" means when used in relation to the name of one of the Contracting Parties, that a spirit is produced entirely within the territory of that Contracting Party;
(b) "geographical indication" means an indication, including an "Appellation of Origin", as defined in Article 22(1) of the TRIPs Agreement, which is recognised in the laws and regulations of a Contracting Party for the purpose of the identification of a spirit originating in the territory of that Contracting Party;
(c) "homonymous" means the same geographical indication or an indication so similar as to be likely to cause confusion, to denote different places, procedures or things;
(d) "description" means the words used to describe spirits on a label, or on the documents accompanying the transport of spirits, on commercial documents, particularly invoices and delivery notes, and in advertising, and "describe" has a similar meaning;
(e) "labelling" means all descriptions and other references, signs, designs, geographical indications or trade marks which distinguish spirits and which appear on the container, including its sealing device or the tag attached to the container and the sheathing covering the neck of bottles;
(f) "Member State" means a Member State of the Community;
(g) "presentation" means the words or signs used on containers, including their closure, on the labelling and the packaging;
(h) "packaging" means the protective wrappings, such as papers, straw envelopes of all kinds, cartons and cases, used in the transport of one or more containers or for presenting them with a view to sale to the final consumer;
(i) "produced" means the entire distillation and maturation process in making spirits;
(j) "trade mark" means:
(i) a trade mark registered in terms of the legislation of a Contracting Party or a Member State,
(ii) a common law trade mark which is recognised under the law of a Contracting Party or a Member State, and
(iii) a well-known trade mark referred to in Article 6 bis of the Paris Convention (1967);
(k) "identification" means, when used in relation to geographical indications, the use of geographical indications for the purpose of describing or presenting spirits.
ARTICLE 4
General rules on importation and marketing
Unless otherwise provided in this Agreement, importation and marketing shall be conducted in compliance with the laws and regulations applying in the territory of the Contracting Party concerned.
TITLE I
RECIPROCAL PROTECTION OF SPIRITS NAMES AND
RELATED PROVISIONS ON DESCRIPTION AND PRESENTATION
ARTICLE 5
Principles
1. The Contracting Parties shall ensure, in accordance with this Agreement, the reciprocal protection of the names referred to in Article 6 which are used for the identification of spirits originating in the territories of the Contracting Parties. For this purpose, each Contracting Party shall provide the appropriate legal means to ensure effective protection.
2. The protected names:
(a) with regard to Community names:
(i) are exclusively reserved in South Africa to the spirits originating in the Community to which they apply, and
(ii) may not be used otherwise than under the conditions laid down in the laws and regulations of the Community;
(b) with regard to South African names:
(i) are exclusively reserved in the Community to the spirits originating in South Africa to which they apply, and
(ii) may not be used otherwise than under the conditions laid down in the laws and regulations of South Africa.
3. The protection provided for in this Agreement shall prohibit in particular any use of indications protected by virtue of this Agreement for spirits which are not originating in the geographical area indicated, even when:
(a) the true origin of the spirits is indicated;
(b) the geographical indication is used in translation;
(c) the indications are accompanied by expressions such as "kind", "type", "style", "imitation", "method" or the like.
4. In the case of homonymous geographical indications:
(a) where such indications protected by virtue of this Agreement are homonymous, protection shall be granted to each indication, provided it has been used traditionally and consistently and the consumer is not misled as to the true origin of the spirits;
(b) where such indications protected by virtue of this Agreement are homonymous with the name of a geographical area outside the territory of the Parties, the latter name may be used to describe and present spirits produced in the geographical area to which the name refers, provided the name is traditionally and consistently used, its use for that purpose is regulated by the country of origin and consumers are not misled into believing that the spirit originates in the territory of the Party concerned.
5. The Contracting Parties may determine the practical conditions of use under which the homonymous names referred to in paragraph 4 will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.
6. The provisions of this Agreement shall in no way prejudice the right of any person to use, in the course of trade, their name or the name of their predecessor in business, except where such name is used in such a manner as to mislead consumers.
7. Nothing in this Agreement shall oblige a Contracting Party to protect a name of the other Contracting Party which is not or ceases to be protected in its country of origin or which has fallen into disuse in that country.
8. At the request of either of the two Parties, the Joint Committee referred to in Article 17 shall examine the cases to be settled on the basis of exchanged registers of South Africa and the Community and its Member States.
On the basis of this examination, the Parties shall agree not later than 30 September 2002 that:
(a) a settlement has to be decided for a case if:
(i) a trademark of a product of one Party is identical with, or similar to a geographical indication or other name of the other Party protected under this Agreement, and
(ii) the use of such trademarks of a product is misleading to the public as to the true place of origin of that product;
or
(b) the case is to be considered as non-conflictual.
Where point (a) applies, the Parties shall agree on elimination and allow for a reasonable transitional period where coexistence is possible.
ARTICLE 6
Protected names
The following names are protected with regard to spirits:
(a) originating in the Community :
(i) references to the name of the Member State in which the spirits originates,
(ii) the geographical indications referred to in the Annex,
(iii) the specific denominations "Grappa", "Ouzo/Oýæï", "Korn", "Kornbrand", "Jägertee", "Jagertee", "Jagatee" and "Pacharan";
(b) originating in South Africa:
(i) the name "South Africa" or other names used to indicate this country,
(ii) the geographical indications referred to in the Annex.
ARTICLE 7
Transitional provisions regarding
certain specific denominations
Notwithstanding the protection provided for in Articles 5 and 6, the Contracting Parties agree that, after a transitional period of 5 years, the denominations referred to in Article 6(a)(iii) will not be used to denominate any spirits produced in South Africa and the only products authorised to be sold under those denominations on the South African market will be those originating in the Community. This undertaking, including the verification of third country imports which it implies, will be implemented on a mutual understanding that the principle of the protection of such spirit denominations conforms to TRIPs rules.
ARTICLE 8
Exports
The Contracting Parties shall take the measures necessary to ensure that, in cases where spirits originating in the Contracting Parties are exported and marketed outside of their territories, the protected names of one Contracting Party referred to in Article 6 are not used to describe and present spirits originating in the other Contracting Party.
ARTICLE 9
Extension of protection
To the extent that the relevant legislation of each Contracting Party so allows, the benefit of the protection given by this Agreement shall be extended to natural and legal persons, bodies corporate and to federations, associations and organisations of producers, traders or consumers whose headquarters are in the other Contracting Party.
ARTICLE 10
Enforcement
1. If the appropriate competent body designated in accordance with Article 14 becomes aware that the description or presentation of spirits, particularly on labels or in official or commercial documents or in advertising, is in breach of this Agreement, the Contracting Parties shall apply the necessary administrative measures and/or initiate legal proceedings as appropriate in order to combat unfair competition or to prevent in any other way the improper use of a protected name.
2. The measures and proceedings laid down in paragraph 1 shall be taken in particular in the following cases:
(a) where the translation of descriptions provided for by Community or South African legislation into the language or languages of the other Contracting Party results in the appearance of a word which is liable to be misleading as to the origin, nature or quality of the spirits thus described or presented;
(b) where descriptions, trade marks, names, inscriptions or illustrations which directly or indirectly give false or misleading information as to the provenance, origin, nature, vine variety or material qualities of spirits appear on containers or packaging, in advertising, or in official or commercial documents relating to spirits whose names are protected under this Agreement;
(c) where, for packaging, containers are used which are misleading as to the origin of spirits.
3. Paragraphs 1 and 2 shall be without prejudice to the possibilities of the persons and entities referred to in Article 9 to take appropriate actions in the Contracting Parties, including recourse to the courts.
ARTICLE 11
Other internal legislation and
international agreements
Unless otherwise agreed between the Contracting Parties, this Agreement shall not preclude any more extensive protection afforded, now or in the future, to names protected by this Agreement, by the Contracting Parties under their internal legislation or other international agreements.
TITLE II
IMPORT CERTIFICATION REQUIREMENTS
ARTICLE 12
Certification documents and analysis report
South Africa shall authorise the importation in its territory of spirits in accordance with the rules governing the import certification documents and analysis reports as provided for in its internal legislation.
ARTICLE 13
Safeguard provisions
1. The Contracting Parties reserve the right to introduce temporary additional import certification requirements in response to legitimate public policy concerns, such as health or consumer protection or in order to act against fraud. In this case, the other Contracting Party shall be given adequate information in sufficient time to permit the fulfilment of the additional requirements.
2. The Contracting Parties agree that such requirements shall not extend beyond the period of time necessary to respond to the particular public policy concern in response to which they were introduced.
TITLE III
MUTUAL ASSISTANCE BETWEEN ENFORCEMENT AUTHORITIES
ARTICLE 14
Enforcement authorities
1. Each Contracting Party shall designate the bodies to be responsible for the application of this Agreement. Where a Contracting Party designates more than one competent body, it shall ensure the coordination of the work of those bodies. For this purpose, a single liaison authority shall be designated.
2. The Contracting Parties shall inform one another of the names and addresses of the bodies and authorities referred to in paragraph 1 not later than two months after this Agreement comes into force. There shall be close and direct cooperation between those bodies.
3. The bodies and authorities referred to in paragraph 1 shall seek ways of improving assistance to each other in the application of this Agreement in order to combat fraudulent practices.
ARTICLE 15
Infringement
1. If one of the bodies or authorities designated in accordance with Article 14 has reason to suspect that:
(a) spirits being or having been traded between South Africa and the Community, does not comply with this Agreement or with provisions laid down in the laws and regulations of the Contracting Parties; and
(b) this non-compliance is of particular interest to the other Contracting Party and could result in administrative measures or legal proceedings being taken;
it shall immediately inform the competent bodies and the liaison authority of the other Contracting Party.
2. The information to be provided in accordance with paragraph 1 shall be accompanied by official, commercial or other appropriate documents. There should also be an indication of what administrative measures or legal proceedings may, if necessary, be taken. The information shall include, in particular, the following details of the spirits concerned:
(a) the producer and the person who has power of disposal over these spirits;
(b) the composition of these spirits;
(c) the description and presentation of these spirits; and
(d) details of the non-compliance with the rules concerning production and marketing.
TITLE IV
MANAGEMENT OF THE AGREEMENT
ARTICLE 16
Tasks of contracting parties
1. The Contracting Parties shall, either directly or through the Joint Committee established pursuant to Article 17, maintain contact on all matters relating to the implementation and the functioning of this Agreement.
2. In particular, the Contracting Parties shall:
(a) amend the Annex and Protocol by mutual decision to take account of any amendments to the laws and regulations of the Contracting Parties;
(b) mutually determine the practical conditions referred to in Article 5(5);
(c) inform each other of the intention to decide new regulations or amendments of existing regulations of public policy concern, such as health or consumer protection, with implications for the spirits sector;
(d) inform each other of legislative measures, administrative measures and judicial decisions concerning the application of this Agreement and inform each other of measures adopted on the basis of such decisions.
ARTICLE 17
Joint committee
1. A Joint Committee shall be established, consisting of representatives of the Community and South Africa. It shall meet at the request of one of the Contracting Parties and in accordance with the requirements for implementing the Agreement alternately in the Community and in South Africa convened at a time and place mutually determined by the Contracting Parties.
2. The Joint Committee shall see to the proper functioning of this Agreement and shall examine all questions which may arise in implementing it.
In particular, the Joint Committee may make recommendations which would contribute to the attainment of the objectives of this Agreement.
3. The Joint Committee shall facilitate contacts and exchanges of information to optimise the functioning of this Agreement.
4. The Joint Committee shall put forward proposals on issues of mutual interest in the spirits sector.
TITLE V
GENERAL PROVISIONS
ARTICLE 18
Transit small quantities
Titles I and II shall not apply to spirits:
(a) which are in transit through the territory of one of the Contracting Parties, or
(b) which originate in the territory of one of the Contracting Parties and which are consigned in small quantities between those Contracting Parties under the conditions and according to the procedures provided for in the Protocol.
ARTICLE 19
Territorial application
This Agreement shall apply, on the one hand, to the territories in which the Treaty establishing the European Community is applied and under the conditions laid down in that Treaty, and, on the other hand, in respect of South Africa, to the territories as defined in the South African Constitution.
ARTICLE 20
Failure to comply
1. If a Contracting Party is of the opinion that the other Contracting Party has failed to fulfil an obligation under this Agreement, it shall submit a written notice to this effect to the other party. This notice may request the party to enter into consultations within a specified period.
2. The Contracting Party which requests the consultations shall provide the other Contracting Party with all the information necessary for a detailed examination of the case in question.
3. In cases where any delay could endanger human health or impair the effectiveness of measures to control fraud, appropriate interim protective measures may be taken, without prior consultation, provided that consultations are held as soon as possible after the taking of these measures.
4. If, following the consultations provided for in paragraphs 1 and 3, the Contracting Parties have not reached agreement:
(a) the Contracting Party which requested the consultations or which took the measures referred to in paragraph 3 may take appropriate protective measures so as to permit the proper application of this Agreement;
(b) each Party may invoke the dispute settlement procedure set out in Article 21.
ARTICLE 21
Dispute settlement procedure
1. A Contracting Party may refer any dispute relating to the application or interpretation of this Agreement to a body which meets with the approval of the other Contracting Party.
2. The body referred to in paragraph 1 may settle the dispute by means of a decision.
3. Each Contracting Party shall be bound to take the measures involved in carrying out the decision referred to in paragraph 2.
4. In the event that it is not possible to settle the dispute in accordance with paragraph 2, either Contracting Party may notify the other of the appointment of an arbitrator, whereafter the other Contracting Party must appoint a second arbitrator within two months after receiving such notice.
5. Arbitrators appointed in accordance with paragraph 4 shall appoint a third arbitrator to consider the dispute together with the other two arbitrators.
6. The three arbitrators shall take a decision on the basis of a majority within a maximum period of 12 months.
7. Each Contracting Party shall be bound to take the measures involved in carrying out the decision referred to in paragraph 6.
ARTICLE 22
Future developments
1. The Contracting Parties at any time amend this Agreement in order to enhance the level of cooperation in the spirits sector.
2. Within the framework of this Agreement, either of the Contracting Parties may put forward suggestions for widening the scope of their cooperation, taking into account the experience gained in its application.
3. South Africa recognises the importance that the Community attaches to its system of protection of "traditional expressions". The Community recognises that South Africa has fundamental concerns about the nature, scope and applicability of this system. The Contracting Parties agree to continue to work together on this issue in the context of the Wine and the Spirits Agreements bearing in mind the future outcome of multilateral negotiations in this area. The Contracting Parties agree to examine the objective, principles and application to certain specific cases of a system that would apply to the Parties. Any agreement arising out of this provision will be incorporated in this Agreement.
ARTICLE 23
Marketing of pre-existing stocks
1. Spirits which, at the time of or prior to the entry into force of this Agreement, have been produced, described and presented in accordance with the internal laws and regulations of the respective Contracting Party, but in a manner prohibited by this Agreement, may be marketed under the following conditions:
Where products are described and labelled using geographical indications protected by this Agreement, they may continue to be marketed:
(i) by wholesalers or producers, for a period of three years,
(ii) by retailers, until stocks are exhausted.
2. Spirits produced, described and presented in accordance with this Agreement when they are marketed and whose description or presentation ceases to conform to the Agreement following an amendment thereto may be marketed until stocks are exhausted unless otherwise agreed by the Contracting Parties.
ARTICLE 24
ANNEX AND PROTOCOL
The Annex and the Protocol to this Agreement shall form an integral part thereof.
ARTICLE 25
Authentic languages
This Agreement is drawn up in duplicate in the Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish languages and the official languages of South Africa, other than English, namely Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, isiNdebele, isiXhosa and isiZulu, each of these texts being equally authentic.
ARTICLE 26
Entry into force - notice
1. This Agreement shall enter into force on the first day of the month following that during which the Contracting Parties have notified each other of the completion of the necessary procedures.
2. If pending the entry into force of this Agreement, the Contracting Parties decide to apply it provisionally, all references to the date of entry into force, with the exception of the reference in paragraph 3, shall be deemed to refer to the date such provisional application takes effect.
3. Either Contracting Party may terminate this Agreement at any time after its entry into force under paragraph 1, by giving one year's written notice to the other Contracting Party.
Done at Paarl on the twentieth day of December in the year two thousand and one.