BPatG rejects amendments to PGI “Hessischer Apfelwein” specifications not to undermine traditional methods and area of production

Amending specifications (a registration document that sets the GI’s name, area and methods of production) has been allowed since the first GI Regulation, Regulation (EC) No 1992/2006. Under Art. 24 of the current Regulation (EU) 2024/1143, amendments can be broadly classified into three categories: (i) temporary ones (for instance, to cope with the COVID-19 lockdown); (ii) minor amendments (now known as ‘standard’), to be decided at the national level; and (iii) Union amendments, requiring an opposition procedure at the European Union (EU) level.

While specifications’ amendments are frequent, few cases on the matter reach the courts, which prompted this Kat to delve into the ruling.

Hessian apple wine (‘Hessischer Apfelwein’) is a protected geographical indication (PGI) from the German Federal State of Hesse.

In 2005, the association of Hessischer Apfelwein producers filed an application to register this PGI to the German Patent and Trademark Office (DPMA, it being the competent authority for EU GIs from Germany). Local authorities and fruit wine producers seconded the statements found in the application: the Hessischer Apfelwein’s special quality and its typical bitter taste relies on the preferrable use of Hessian wine apples from orchards. In 2007, the DPMA validated the application and transferred it to the European Commission, which registered it in 2010.

According to the registration file from 2010 (known as the ‘Single Document’), PGI ‘Hessischer Apfelwein’ is a fermented product made from 100% apple juice, the fermentation, clarification and bottling of which takes place exclusively in Hesse. Hessischer Apfelwein is made from 97% of apples, preferably from orchards, characterized by a high acidity (at least 6 g/l). The 2010 Single Document also states that the aim of the wineries is to make the apple wine almost exclusively from Hessian apples. Hessian apples are represented by over 2,000 different apple varieties, which is a special feature of the Hessian apple wine.

In February 2015, the Hessian Ministry of Consumer Protection ran controls of the local wineries and found out that the three major producers of PGI ‘Hessischer Apfelwein’ failed to declare sugar additives and used fewer Hessian apples than required by the PGI specifications.

One month later, in March 2015, the association of producers applied to the DPMA for an amendment of the PGI’s specifications. This was approved in 2018. Post-2018, specifications are less focused on the importance of apple orchards and of the multi-variety selection of apples as the characteristic feature of the Hessischer Apfelwein. They also now allow for the addition of sugar, previously prohibited in the production of the Hessischer Apfelwein.

In 2021, the association of producers once again applied to the DPMA with an amendment request, for a total of 16 amendments. The association of producers claimed that the new amendments were minor and only served to clarify the wording. The request suggested deleting mentions of the apples’ variety and of their Hessian origin, as well as altering production processes.

The DPMA rejected this application in its entirety. In the DPMA’s view, the new specifications would break away from traditional methods and area of production: not even the smallest number of apples would originate from Hesse, or even from orchards. Mono-variety of apples would also be allowed, instead of the traditional mix of multiple varieties that gave the product its characteristic taste. The amendments would also delete the requirement of the apples’ acidity, with the argument of this being a consequence of climate change.

Dissatisfied with the outcome, the association of producers appealed to the BPatG – to a mixed result. The association claimed there is an inconsistency in practice at the EU level: in a parallel case, the European Commission did allow “Prosciutto di Parma”, a GI from Italy, to amend its specification and include new pig breeds. The association thus requested that the amendments were to be treated as “Union” ones, transferred to the Commission for final consideration. In the alternative, the association requested that the case be returned to the DPMA for a re-examination. The association also suggested a referral to the Court of Justice of the European Union (CJEU), which was denied, although the BPatG’s ruling does not elaborate on what this referral would be covering.

In its ruling, the BPatG rejected 7 out of 16 draft amendments, and returned the rest of them to the DPMA for a re-examination. The court noted that the DPMA cannot reject the amendments in their entirety but should have analysed each of them individually. The BPatG carefully examined all the 16 draft amendments one by one, comparing them with the previous versions of the specifications. The court also relied on statements done by public authorities and local producers during the registration process as to what authentic raw materials and methods of production would be.

The BPatG rejected those amendments that suggested using apple juice concentrate instead of pure juice and deleting the requirement to preferably use apples from orchards of Hessian origin. The court found that this would lead to a product made of apple juice concentrate from any part of the world and, as a result, the link to the geographical origin would be lost.

The court also ruled that, while the amendments that risk voiding the link with the geographical area are to be ultimately decided at the EU level (Art. 24(3)(b) Regulation 2024/1143), DPMA is still competent for the national phase of the procedure and may reject such amendments without them being transferred to the Commission.

In a way very similar to patents, specifications define the scope of GI protection: it is based on the information from this document that producers would either be eligible for a GI seal or be sued for infringement.

Nevertheless, few countries seem to treat specifications as the legal document that they are. This Kat does not want to point her paw, but she has seen GIs changing historical references after an unsuccessful trial, adding localities that would normally be outside of the traditional area of production due to political necessities, or abandoning the traditional form of the product — without national authorities saying a word.

In the case of Germany, this stricter approach may be explained by the fact that GIs currently fall under the authority of a patent office. It appears that German authorities are now planning to transfer the competence over agricultural GIs to the Federal Office of Agriculture and Food. This Kat hopes, however, that a thorough examination will remain the characteristic feature of German GIs!