Request for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 13 June 2017 — S v EA and Others
(Case C-367/17)
Language of the case: German
Referring court
Bundespatentgericht
Parties to the main proceedings
Applicant: S
Opponents: EA, EB, EC
Questions referred
Is the decision on an application lodged with the competent national authority (in this case, the Deutsches Patent- und Markenamt (German Patent and Trade Mark Office)) on 15 February 2007 for an amendment to the specification of a protected geographical indication to the effect that the slicing and packaging of the product (in this case, Schwarzwälder Schinken) may take place only in the production area to be taken on the basis of Regulation No 510/2006, 1 which was in force at the time of the application, or on the basis of Regulation No 1151/2012, 2 which is the legislation currently in force at the time of the decision?
If the decision is to be taken on the basis of Regulation No 1151/2012 which is currently in force:
2.1(a) Does the fact that incorrect transportation of the product to other areas for the purposes of further processing (slicing and packaging) may have a harmful effect on its authentic flavour, authentic quality and durability represent, from the point of view of quality assurance of the product, a sufficient product-specific justification within the meaning of Article 7(1)(e) of Regulation No 1151/2012 such that slicing and packaging may take place only in the production area?
(b) Do requirements for slicing and packaging set out in the specification which do not go beyond the applicable food hygiene standards represent, from the point of view of quality assurance of the product, a sufficient product-specific justification within the meaning of Article 7(1)(e) of Regulation No 1151/2012 such that slicing and packaging may take place only in the production area?
2.2(a) Can a sufficient product-specific justification within the meaning of Article 7(1)(e) of Regulation No 1151/2012 be seen in principle, for the rule laid down in the specification for a protected geographical indication that slicing and packaging may take place only in the production area, in the fact that the (producer) controls that are then possible in that regard in the production area (Article 7(1)(g), in conjunction with Article 36(3)(a) and Article 37, of Regulation No 1151/2012) offer a greater frequency of controls and generally a better guarantee than (abuse) controls for the purposes of Article 36(3)(b), in conjunction with Article 38, of Regulation No 1151/2012?
(b) If subquestion (a) is answered in the negative:
Is a different assessment justified if the product in question is also a product with strong supra-regional demand which is sliced and packaged to a large extent outside the production area, even if specific instances of improper use of the protected geographical indication for the purposes of Article 13 of Regulation No 1151/2012 have not been established to date?
2.3 Can a sufficient product-specific justification within the meaning of Article 7(1)(e) of Regulation No 1151/2012 be seen, for the rule laid down in a specification for a protected geographical indication that slicing and packaging may take place only in the production area, in the fact that otherwise the traceability of the further processed product cannot be guaranteed with certainty?
In this context, is it relevant that:
(a) the traceability of food, in particular that of animal origin, must be guaranteed, in accordance with Article 18(1) of Regulation (EC) No 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, 3 in conjunction with Commission Implementing Regulation (EU) No 931/2011 on the traceability requirements set by Regulation (EC) No 178/2002 of the European Parliament and of the Council for food of animal origin; 4
(b) the traceability of the product must be guaranteed through the participation of the processors of the product in legally voluntary but de facto compulsory private safeguard systems?
2.4 If any of Questions 1 to 3 is answered in the affirmative:
Can or must it be laid down in a specification for a protected geographical indication — as a less onerous measure compared to the compulsory shifting back of slicing and packaging to the production area — that the processors of the product established outside the production area must be subject in that regard to a control carried out by the authorities and bodies competent under the specification for the controls in the production area (Article 7(1)(g) of Regulation No 1151/2012)?
If the decision is to be taken on the basis of Regulation No 510/2006 (see Question 1), the referring court asks that the questions set out in 2. above be answered on the basis of Regulation No 510/2006, in particular Article 4(2)(e) of that regulation in conjunction with Article 8 and recital 8 of Commission Regulation (EC) No 1898/2006 laying down detailed rules of implementation of Council Regulation (EC) No 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs. 5
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1 Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 93, p. 12).
2 Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1).
3 OJ 2002 L 31, p. 1.
4 OJ 2011 L 242, p. 2.
5 OJ 2006 L 369, p. 1.