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“Black Forest Ham II (Schwarzwälder Schinken II)”

Decision of the Federal Supreme Court of Germany (Bundesgerichtshof) 3 September 2020 – Case No. I ZB 72/19

  1. a)

    An amendment to the specification linking the granting of a protected geographical indication (PGI) to packaging in the region of production is justified only if one of the three grounds for justification referred to in Art. 7(1)(e) of Regulation (EU) No. 1151/2012 – to safeguard quality or to ensure origin or to ensure control – applies.

  2. b)

    When examining whether the safeguarding of the quality of the product at issue (here: ham covered by the PGI “Black Forest Ham”) requires the requirement of packaging (here: slicing and packaging) in the region of production (here: in the Black Forest), the decisive factor is whether this requirement is justified for the specific product. A product-specific justification only applies if the product in question is exposed to increased risks during processing outside the region of production as compared to other comparable products, which can be effectively countered with the measures provided for.

  3. c)

    The requirement of packaging in the region of production is justified from the point of view of guaranteeing the origin and traceability of the product only if the specification provides for checks to guarantee the origin of the product which can be carried out more effectively inside the region of production than outside it.

  4. d)

    The requirement that a product covered by a PGI is packaged in the region of production is justified where it serves the purpose of ensuring effective control of the specification for that PGI. These must be such checks that, if effected outside the region of production, would provide fewer guarantees as to the quality and authenticity of that product than checks carried out in the region of production in compliance with the procedures laid down in the specification.

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Notes

  1. 1.

    Translator’s note: The German term is Aufmachung, which is the term also used in the relevant EU Regulation. The English term in the EU Regulation is “packaging”. We have adopted this term here. However, this decision states that Aufmachung “includes” packaging.

  2. 2.

    Translator’s note: The CJEU uses “similar” at this point, but the Regulation speaks of “comparable”. The German texts use “vergleichbar” (in English “comparable”) in both cases. We have opted for the term used in the English text to which reference is made.

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Official headnotes. Translated from the German by David Wright.

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Regulation (EU) No. 1151/2012, Art. 7(1)(e). “Black Forest Ham II (Schwarzwälder Schinken II)”. IIC (2021). https://doi.org/10.1007/s40319-021-01086-2

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Keywords

  • Packaging and slicing in the region of production
  • Justified requirement for protection
  • Grounds for justification
  • Guarantee of origin and traceability
  • Safeguard quality, ensure origin, ensure control
  • Protected geographical indication (PGI)