BGH: Black Forest ham - not only packaged in the Black Forest

Black Forest ham may also be sliced and packaged outside the Black Forest, the Federal Supreme Court ruled in the final case in the long-standing packaging dispute over Black Forest ham. The BGH combined this ruling with a leading decision on protected geographical indications.

Black Forest ham may be called Black Forest ham even if it was not cut and packaged in the Black Forest, the Federal Supreme Court ruled in the packaging dispute about Black Forest ham (I ZB 72/19).

Black Forest Ham packaging dispute since 2005

The legal dispute, with which the Black Forest Ham Producers’ Association wanted to place its internationally known product under stronger production protection (as a protected geographical indication for the production area), has been conducted through many instances since 2005.

In December 2018, it was also already heard by the highest European court (ECJ). The ECJ had ruled that Black Forest ham must be sliced and packaged in the Black Forest – as the protection association demanded – if this was a necessary and proportionate means of quality assurance. For this examination and decision, the case was referred back to the national courts in Germany.

In this regard, the Federal Patent Court (BPatG) then ruled in 2019 that it is not necessary for quality assurance of Black Forest ham that it is cut and packaged exclusively in the Black Forest. The BPatG considered only two measures as product-specific measures for Black Forest ham, namely the limitation of the slice thickness to a maximum of 1.3 mm applicable to this ham and an obligatory intermediate cleaning/disinfection of the slicing plant. However, both of these measures could also be carried out elsewhere than in the region of origin and could also be verified at any time.

BGH now finally ends case ‘ Black Forest Ham ‘

Nevertheless, an appeal was allowed, and so the case was also submitted to the Federal Supreme Court (Bundesgerichtshof, BGH), which has now finally ended this legal dispute with its decision I ZB 72/19. Black Forest ham does not have to be cut in the Black Forest, the BGH ruled, and combined this ruling with a leading principle on a protected geographical indication.

Leading principle ‘ Black Forest Ham ‘

According to this leading principle ‘ Schwarzwälder Schinken ‘, an amendment of the specification tying an award of a Protected Geographical Indication to a specific production area can be justified if one of three grounds for justification is given: preservation of quality or guarantee of origin or guarantee of control.

When examining the preservation of quality, the decisive factor is whether the limitation to the region of origin is necessary and justified on a product-specific basis. Only if this requirement would be exposed to increased risks in case of processing outside the region of production compared to other comparable products, the requirement is justified.

And the BGH also considers the presentation (here: cutting and packaging) in the region of production to be justified only if the specification provides for controls to guarantee the origin of the product, which can more effectively only be carried out in the region of production.

According to the BGH, this also applies to the presentation of a product covered by a protected geographical indication if the controls guarantee the specification for this protected geographical indication and would lead to less guarantee of quality and authenticity elsewhere.

BGH upholds the BPatG ruling of 2019

However, this was not the case in the Schwarzwälder Schinken (engl.: Black Forest Ham) case, the Federal Supreme Court ruled, confirming the contested decision of the BPatG. According to the Federal Patent Court’s findings, the special abuse control that the protection association claimed for its new protected status – unlike the controls provided for in the specification for the protected designation of origin “Prosciutto di Parma” with regard to authenticity, quality, hygiene and labelling of the product – did not require any product-specific expertise.

The BGH thus refers to authoritative ECJ rulings in which the ECJ had interpreted the packaging issue restrictively. In the cases “Proscuitto di Parma” and “Grana Padano” (judgement of 20.05.2003, Cases C-108/01 and C-469/00), the ECJ allowed the processing steps of slicing and packaging by specification only in the region of origin.

However, the BGH ruled that this was different in the case of Black Forest ham. Checks on authenticity, quality, hygiene and labelling cannot be carried out less effectively for Black Forest ham outside the region of origin and, moreover, do not provide an effective guarantee of authenticity.

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