The matter at hand
Following an application by ‘S’, the name ‘Schwarzwälder Schinken’ has been registered as a protected geographical indication (‘PGI’). By application to the DPMA, the German IP Office, ‘S’ sought a number of amendments to the specification of the PGI, including the addition of a requirement to slice and package a PGI-certified product in its geographical area of production.
‘EC’, a large distributor of meat-based products who slices and packages ‘Schwarzwälder Schinken’ outside of the production area, lodged an objection against the application.
In the subsequent proceedings, the German Bundespatentgericht asks, in essence, whether Article 7(1)(e) of the PGI and PDO RegulationCouncil Regulation [EU] No 1151/2012 of 21 November 2012 on quality schemes for agricultural products and foodstuffs (and Article 4(2)(e) of its predecessor, Regulation 510/2006) must be interpreted as meaning that the requirement to package a PGI-certified product in its geographical area of production is justified if its objective is to avoid the risk incurred by transportation, slicing or packaging outside of that area as regards the quality of the product, to guarantee a greater efficiency of controls in that area and ensure that product traceability is better ensured.
The judgment of the ECJ
As the ECJ notes, Article 7(1)(e) of the PGI and PDO RegulationCouncil Regulation [EU] No 1151/2012 of 21 November 2012 on quality schemes for agricultural products and foodstuffs requires that the specification of a PGI must contain ‘information concerning packaging, if the applicant group so determines and gives sufficient product-specific justification as to why the packaging must take place in the defined geographical area to safeguard quality, to ensure the origin or to ensure control, taking into account Union law, in particular that on the free movement of goods and the free provision of services’. As already found in Consorzio del Prosciutto di Parma (C‑108/01), this implies that a requirement to slice and package a PGI-certified product in its geographical area is only compatible with EU law, “if it is shown that it is necessary and proportionate and capable of safeguarding the quality of the product at issue, guaranteeing its origin or ensuring the control of the specification of that PGI“ (paragraph 26).
The ECJ then goes on to address these three possible justifications (paragraphs 27 through 35), before concluding that it is for the national court to assess whether the requirements to slice and package a PGI product in a defined geographical area is duly justified by one of these objectives (paragraph 36).
With regard to safeguarding the quality of the product at issue, the ECJ considers that the requirement to slice and package a PGI product in a defined geographical area is “relevant solely if the packaging of that product outside of its geographical area of production entails increased risks regarding the quality of that product and not if other similar products are exposed to the same risks” (paragraph 28). It continues by stating that “the fact that the instructions […] regarding the slicing and packaging are either customary in the ham trade, or do not go beyond the criteria currently in force regarding food hygiene does not confirm or preclude, as such, the emergence of increased risks in case of packaging outside of the area of production of a PGI-certified product” (paragraph 29).
As regards the objective to guarantee product origin, the ECJ considers that “it follows from the request for a preliminary ruling that that argument was mentioned by S in a general manner, without any detailed justification, and that it is not subsequently demonstrated that the packaging in the geographical area of production is necessary to guarantee the origin of the product” (paragraph 31).
Then, lastly, as regards the objective to ensure an efficient control of the respect of the specification, the ECJ refers to Consorzio del Prosciutto di Parma (C‑108/01), where it was found that, where "the different steps of the slicing and packaging [give] rise to very precise technical and control interventions, on the authenticity, quality, hygiene and labelling, some of which require specialised assessments, controls performed outside of the area of production provide less guarantees of the quality and authenticity of that product than those performed in the area of production according to the procedure provided in the specification” (paragraph 33) The ECJ concludes that in the present case, by contrast, the instructions are considered by the referring court to be customary in the ham trade or not going beyond the currently enforceable criteria concerning food hygiene (paragraph 35).