The highest German civil court – the Federal Supreme Court of Germany (BGH) – has ruled that Schwarzwälder Schinken (“Black Forest Ham”) may be sliced and packaged outside the Black Forest without losing the right to use the according protected geographical indication (judgment of 3/09/2020, file number: I ZB 72/19).

The long-standing packaging dispute started in 2005 when the Black Forest Ham Producers’ Association intended to put the product under stronger protection. Given the increasing demand for sliced versions of the product, the Producers Association applied for altered specifications which demanded that commercial slicing and packaging has to take place in the region of the Black Forest. Several producers raised objections, inter alia a producer which sliced and packed its ham outside the Black Forest in Lower Saxony.

Altered specifications led to dispute

Since then, the case has been litigated through the various levels of jurisdiction. In 2017, the German Federal Patent Court (BPatG) raised some specific questions to the Court of Justice of the European Union. In its judgment of 19/12/2018 (file number: C-367/17), the CJEU stated that the ham has to be sliced and packaged in the Black Forest only if this is necessary and proportionate for quality assurance. Based on this guidance the Federal Patent Court (BPatG) of Germany considered only two measures being necessary: (i) the limitation of the thickness of the slices being max. 1.3 mm and (ii) an obligatory intermediate disinfection of the slicing plant. The judges took the view that both measures can be performed outside the region of origin without any risk to the quality or verification of the quality.  

The Black Forest Ham Producers’ Association appealed to the Federal Supreme Court (BGH) which affirmed the prior decision of the BPatG. The court ruled that the processing and packaging of a product can be performed outside the region if this does not harm the preservation of quality or the guarantee of origin or control. When examining the preservation of quality, it is decisive whether the limitation to the region of origin is necessary and justified on a product-specific basis. Only if the fulfilment is at risk if not performed inside the territory, one may claim that these activities take place in the specific region.

Slicing and packaging outside the Black Forest?

The court held that the special abuse control demanded for the award of Schwarzwälder Schinken does not require a product-specific expertise. To justify the decision, the BGH referred to prior CJEU rulings in which the Court of Justice of the European Union had interpreted the packaging issue in the past. In the cases “Prosciutto di Parma” and “Grana Padano” (judgment of 20/05/2003, Cases C-108/01 and C-469/00), it allowed the processing steps of slicing and packaging by specification only in the region of origin. However, the BGH stated that different rules are applicable for the Black Forest Ham as the requirements as to authenticity, quality, hygiene and labelling can be carried out effectively outside the region of origin.