Case Name: APEDA v. Rice Exporters Association of Pakistan

Citation: European Commission PGI Proceedings — Application No. PGI-EU-2562 EU Official Journal C 340, 11 September 2020

Forum: European Commission (Directorate-General for Agriculture and Rural Development)

Coram: European Commission Officials acting under Regulation (EU) No 1151/2012 on Quality Schemes for Agricultural Products and Foodstuffs; no judicial bench constituted — proceedings are administrative in nature before the Quality Policy Division.

Abstract

This comment looks at the proceedings of the European Commission that challenge the registration of Basmati rice in Europe, a process in which India and Pakistan argue.This comment addresses the European Commission Proceedings that contest the registration of Basmati rice in Europe. It states that the territorial logic of GI law is inadequate to accommodate post-colonial, transboundary heritage and suggests a co-ownership regime as a doctrinal development that is required.

Introduction

Basmati rice is not of Indian origin. Nor is it the property of Pakistan. It is part of the Indo-Gangetic plains which was an agro-ecological belt which was split by the 1947 Radcliffe Line but could not be split agronomically. Now the European Commission is faced with the problem of deciding if either country is entitled to the exclusive right to use ‘Basmati’ in the EU market, on the basis of that historical indivisibility.

APEDA filed India’s unilateral PGI application in July 2018 and it was published in the EU Official Journal on 11 September 2020. In March 2021, Pakistan’s opposition was admitted as substantively admissible. As of 2021, negotiations had completely failed. Pakistan submitted its own application to the European Commission for the registration of its GI in January 2024, covering an area of production that included areas where there is dispute between India and Pakistan regarding the territorial jurisdiction. India raised objections to aspects of the application, both in procedural and substantive terms. The application was then opposed by Italy, and this decision was upheld in September 2024. The two applications are pending with the European Commission.

Facts and Issues

The long kernel, the aroma through the 2-acetyl-1-pyrroline compound and the lack of sticky consistency of the basmati rice is attributed to the Indo-Gangetic plains alluvial soil, the river systems of the Himalayan region and the temperature variations of the plains throughout the day. Such conditions prevail along the India-Pakistan border. This area of cultivation was split in 1947, and each of its successor nations has exported Basmati to the world markets. In the EU, the world’s second largest rice import market, Basmati rice enjoys a high price premium. Currently about 60-65% of the EU market is occupied by India and if PGIs were given exclusivity then Pakistan may be banned from selling the product under the PGI name.

The Legal Issues presented here are:  

(i) Whether the quality and reputation of Basmati be considered essentially linked to India only

(ii) Whether there is any room for a transboundary GI from a non-Member State in the EU Regulation 1151/2012

(iii) Whether a transboundary GI from a non-Member State can be accommodated, what would be its possible pathway? 

European Union’s Commission’s Legal Framework

The basic principle of GI law is that quality or reputation is mainly defined by a geographical origin. This origin presupposed in the TRIPS Agreement, Article 22, and in Regulation 1151/2012, Article 5, reflects a modern state’s territory. This assumption is true for Champagne, where the production area has traditionally been the same as the administrative area of France. This won’t work for Basmati, which has a quality-conferring ecology that is parochial.

India’s invocation of Feta (Joined Cases C-465/02 and C-466/02) is distinguishable in that the Court of Justice accepted Feta’s Greek PDO as the product was historically limited to a fixed political geography to which it was never divided. Such an integrity cannot be found in Basmati. The Pisco example is more apt: the EU allowed for separate registration for both Peru and Chile as ‘Peruvian Pisco’ and ‘Chilean Pisco’, even though the objective was to allow for recognition of their shared heritage without resolution of the claim of exclusivity. It sets a precedent rather than solves a more fundamental doctrinal issue – whether exclusive national ownership is the proper legal status for transboundary cultural products in the first place.

The European Commission framework Reasoning

While a final decision has not yet been taken, Regulation (EU) No. 1151/2012 gives some indication of the legal arguments that will help guide the Commission. According to the Regulation, a protected geographical indication must have a demonstrable link between its quality or reputation, or other characteristics and the geographical origin. The Commission is thus required to consider not only the presumably historical claims to cultivation, but whether the geographical origin claimed in the application is sufficient to explain the reputation which has been attached to the denomination “Basmati”.

The admissibility of Pakistan’s opposition proves that the Commission takes the issue of origin and reputation seriously and assumes that it is truly contested. The Commission’s decision to accept the opposition was a concession that there is some evidence that the reputation, which the Commission places on Basmati, may not be limited to one country. The proceedings consequently pose a more general question of interpretation that is whether the geographical origin criterion in EU legislation can be made to fit with products that originated in the historical production area, although not necessarily in the present-day countries involved.

The Commission’s strategy therefore seems to be in line with two conflicting goals. First, it aims to keep the integrity of the GI system by linking protected names with identifiable places of origin. Second, it must not provide protection in a way that unduly denies protection to producers who can show a legitimate historical and geographical connection to the product. The forthcoming proceedings are thus a challenge on the flexibility of the EU GI framework in the face of transboundary heritage products.

Analysis and Impact 

The EU GI framework has one major drawback: Geographical origin and political borders are considered synonymous. It is useful for products that are limited to one state but not so good for transnational products like Basmati, which benefits from a common agro-ecological region. Joint applications are practical but limited by the possibility that they may require political agreement which may be impossible. Lack of co-registration also leads to uncertainty for producers. The final ruling will have implications for India’s export goals, Pakistan’s market access as well as the future of EU GI law and its ability to move beyond the territorial scope to cover shared heritage.

Conclusion

The Basmati proceedings reveal a basic conflict in geographical indication legislation between territorial sovereignty and common heritage. While GI protection aims to safeguard the relationship between product and place, Basmati’s reputation falls under a cultural and ecological region which transcends the India-Pakistan border. The conflict is thus not only about the use of the designation “Basmati” and about the possibility of recognising a geographically shared yet politically divided “heritage” under GI law. Such a purely territorial concept can lead to GIs becoming instruments of geopolitical competition. In any case, the proceedings highlight the need to allow transboundary heritage products to be dealt with by international GI regimes.

REFERENCES

TRIPS Agreement (Articles 22–24) WTO – TRIPS Agreement Text

Regulation (EU) No. 1151/2012 on Quality Schemes for Agricultural Products and Foodstuffs EUR-Lex – Regulation (EU) No. 1151/2012

Official Journal of the European Union, C 340, 11 September 2020 (Publication of India’s Basmati PGI Application) EU Official Journal C 340 (11 September 2020)

European Commission – GI Opposition Proceedings (Basmati Application) European Commission GI Register (eAmbrosia)

Case C-465/02 and C-466/02, Germany and Denmark v Commission (Feta Case) CURIA – Feta Judgment (Joined Cases C‑465/02 & C‑466/02)

Geneva Act of the Lisbon Agreement (2015) WIPO – Geneva Act of the Lisbon Agreement

Dev Gangjee, Relocating the Law of Geographical Indications (Cambridge University Press, 2012)
Cambridge University Press – Relocating the Law of Geographical Indications

International Trade Effect of Geographical Indications: A Case Study of Basmati Rice Exports from India, P. A. Lakshmi Prasanna and J. Rajashekar Reddy https://journals.sagepub.com/doi/10.1177/09713441251389664

WIPO – Geographical Indications: An Introduction WIPO Geographical Indications Introduction

APEDA – Basmati Rice Information and Documentation APEDA Basmati Rice Portal