Judgment;Summary — ECLI:EU:C:2021:279
Date: 2021-04-15
Language of the case: German
Court formation: Fourth Chamber
Subject matter: Agriculture and Fisheries;Foodstuffs;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-53/20 — 1 
Case C-53/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
3 February 2020 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
19 December 2019 
Appellant on a point of law: 
Hengstenberg GmbH & Co. KG 
Respondent on a point of law: 
Spreewaldverein e.V. 
  
Subject matter of the main proceedings 
Geographical indication of origin ‘Spreewälder Gurken’; application to amend the 
specification 
Subject matter and legal basis of the reference 
Interpretation of EU law, in particular the concept of ‘legitimate interest’ within 
the meaning of Article 49(3) and (4) of Regulation (EU) No 1151/2012; 
Article 267 TFEU 
Questions referred for a preliminary ruling 
1. In the procedure for a non-minor amendment of the specification, can any 
actual or potential — provided that it is not entirely implausible — 
economic effect on a natural or legal person be sufficient to establish the 
existence of the legitimate interest, within the meaning of Article 53(2), first 
subparagraph, in conjunction with Article 49(3), first subparagraph, and (4), 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-53/20 
 
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second subparagraph, of 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, that is necessary for the purposes of an 
opposition to the application or an appeal against the favourable decision on 
the application? 
2. If Question 1 is answered in the negative: 
In the procedure for a non-minor amendment of the specification, does a 
legitimate interest within the meaning of Article 53(2), first subparagraph, in 
conjunction with Article 49(3), first subparagraph, and (4), second 
subparagraph, of Regulation (EU) No 1151/2012 lie (only) with operators 
that produce products or foodstuffs comparable to those of operators for 
which a protected geographical indication is registered? 
3. If Question 2 is answered in the negative: 
a) As regards the requirements governing a legitimate interest within the 
meaning of Article 49(3), first subparagraph, and (4), second 
subparagraph, of Regulation (EU) No 1151/2012, must a distinction be 
drawn between the registration procedure under Articles 49 to 52 of 
Regulation 1151/2012, on the one hand, and the procedure for 
amending the specification under Article 53 of Regulation (EU) 
No 1151/2012, on the other, and, 
b) in the procedure for a non-minor amendment of the specification, does 
a legitimate interest within the meaning of Article 53(2), first 
subparagraph, in conjunction with Article 49(3), first subparagraph, 
and (4), second subparagraph, of Regulation (EU) No 1151/2012 lie 
only with producers that produce or specifically intend to produce 
products in the geographical area which comply with the product 
specification, so that ‘non-local’ operators are automatically excluded 
from claiming a legitimate interest? 
Provisions of EU law relied on 
Provisions on protected geographical indications (PGI) (geschützte geografische 
Angaben (g.g.A.)), currently governed by 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, in particular Articles 5, 49 and 53 
Provisions of national law relied on 
Gesetz über den Schutz von Marken und sonstigen Kennzeichen (Markengesetz) 
(Law on the protection of trade marks and other signs (Law on Trade Marks)), 
Paragraphs 130 to 133 
HENGSTENBERG 
 
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Brief description of the facts and the procedure 
1 Since 19 March 1999, the designation ‘Spreewälder Gurken’ has been registered 
as a protected geographical indication for fresh and processed vegetables in the 
register of protected designations of origin and protected geographical indications 
kept by the Commission of the European Union. 
2 The application for registration stated, inter alia, that over 70% of the processed 
product consists of gherkins grown in the Spreewald economic area in accordance 
with controlled integrated production methods, that fresh onions, fresh dill, herbs 
and horseradish are used in the product to obtain the desired flavour, and that 
processing in the Spreewald economic area is of particular importance because the 
traditional preservation and processing methods can be guaranteed there. 
3 The applicant (and respondent on a point of law; ‘respondent’), in which all 
producers of ‘Spreewälder Gurken g.g.A.’ are organised as members, manages the 
protected geographical indication. On 18 February 2012, it applied to the 
Deutsches Patent- und Markenamt (German Patent and Trade Mark Office; 
‘DPMA’) for an amendment of the specification. The amendment is concerned 
primarily with making it permissible to use other additives and to use 
preservatives.  
4 The application for amendment of the specification was published in the DPMA’s 
Markenblatt (Trade Mark Journal) of 22 August 2014. By document of 
16 October 2014, the appellant on a point of law (‘appellant’) lodged an 
opposition. By decision of 10 September 2015, the DPMA found that the 
application for amendment was in accordance with Regulation (EU) 
No 1151/2012. The Bundespatentgericht (Federal Patent Court) dismissed the 
appeal brought against that decision and granted leave to bring an appeal on a 
point of law before the Bundesgerichtshof (Federal Court of Justice). 
5 The Bundespatentgericht (Federal Patent Court) held that the appeal was 
inadmissible, since the appellant’s legitimate interest had not been affected. It 
stated that, in that regard, a distinction is to be drawn between an application for 
registration and an application to amend the specification. Non-local operators, 
who are not permitted to use the protected designation anyway, have no legitimate 
interest in an amendment of the specification. The mere fact that an operator 
trades in products bearing a protected geographical indication is not as such 
capable of establishing the existence of a legitimate interest. Any alleged 
devaluation of the protected geographical indication or damage to the reputation 
or prestige of the product concerns only producers established in the geographical 
area of origin. Moreover, it stated that the appeal is unfounded also on the ground 
that the specification currently in force does not support the inference of a general 
prohibition against additives. Even if the application for amendment led to 
‘essential changes’ within the meaning of Article 53(2), [fourth] subparagraph, of 
Regulation (EU) No 1151/2012, these would be entirely objectively justified. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-53/20 
 
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Brief description of the grounds for the reference 
6 The requested amendment of the specification has been governed by Regulation 
(EU) No 1151/2012 since its entry into force, in conjunction with the national 
implementing provisions contained in the Markengesetz (Law on Trade Marks). 
7 Article 49(3), first subparagraph, of Regulation (EU) No 1151/2012 states that, as 
part of the scrutiny, the Member State is to initiate a national opposition procedure 
that ensures adequate publication of the application for registration of protected 
designations of origin and protected geographical indications, and provides for a 
reasonable period within which any natural or legal person having a legitimate 
interest and established or resident on its territory may lodge an opposition to the 
application. In accordance with Article 53(2), first subparagraph, of Regulation 
(EU) No 1151/2012, applications for amendments to a specification that are not 
minor are also to follow the procedure laid down in Article 49 of Regulation (EU) 
No 1151/2012. If the proposed amendments are minor, a simplified procedure is 
carried out in the Member State and at EU level; there is no opposition procedure. 
8 For the purposes of the appeal proceedings, it is to be assumed that the requested 
amendments of the product specification are not minor. In accordance with the 
relevant provisions of the Markengesetz (Law on Trade Marks) in conjunction 
with the first sentence of Article 9(2) of Regulation (EC) No 510/2006, in force at 
the time the application was made, the DPMA initiated the procedure for non-
minor amendments. 
9 In accordance with the Markengesetz (Law on Trade Marks), which transposes the 
relevant provisions of EU law, any person having a legitimate interest who is 
established or resident in the territory of the Federal Republic of Germany may 
lodge an opposition to the application for registration of a protected geographical 
indication, within two weeks of its publication, with the DPMA. The same applies 
mutatis mutandis to applications for specification amendments that are not minor. 
If the DPMA adopts a decision finding that the application for amendment of the 
specification meets the requirements laid down in Regulation (EU) No 1151/2012 
and the provisions enacted to give effect to it, persons who have lodged an 
opposition to the application within the prescribed time limit or whose legitimate 
interests are affected by the decision [granting the application for amendment] on 
account of the amended particulars are entitled to appeal against that decision. 
Those conditions are met. The appellant lodged an opposition within the 
prescribed time limit. 
10 However, the Bundespatentgericht (Federal Patent Court) rightly assumed that the 
appellant must also show that its legitimate interest is affected by the DPMA’s 
decision granting the application for amendment of the specification. This follows 
from Article 49(4), second subparagraph, of Regulation (EU) No 1151/2012. 
11 The answer to the question that must next be answered by the national authorities, 
which is to say what is meant by a ‘legitimate interest’ that confers standing to 
HENGSTENBERG 
 
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seek judicial review, cannot be inferred from the provisions of EU law and calls 
for clarification from the Court of Justice of the European Union.  
12 It follows from the case-law of the Court of Justice of the European Union, the 
constitutional traditions common to the Member States and Articles 6 and 13 of 
the ECHR that it must in principle be possible to obtain a judicial review (see 
Court of Justice, judgments of 3 December 1992, Oleificio Borelli v Commission, 
C-97/91, EU:C:1992:491, paragraph 14, and of 6 December 2001, Carl Kühne 
and Others, C-269/99, EU:C:2001:659, paragraph 57, order of 30 January 2002, 
La Conqueste v Commission, C-151/01 P, EU:C:2002:62, paragraph 46, and 
judgment of 2 July 2009, Bavaria and Bavaria Italia, C-343/07, EU:C:2009:415, 
paragraph 57). It follows that access to judicial review is also necessary in relation 
to a measure such as an application for amendment of a specification which 
constitutes a necessary step in the procedure for the adoption of an EU measure. 
National courts called upon to rule on the lawfulness of an application for 
registration of a protected geographical indication or — as in this instance — for 
amendment of a specification must do so on the same terms as those by which 
they review any other definitive measure adopted by the same national authority 
which is capable of adversely affecting the rights of third parties under EU law. 
An action brought for that purpose must therefore be regarded as admissible even 
if the domestic rules of procedure do not provide for this in such a case (see the 
judgments in Oleificio Borelli v Commission, paragraph 13, and Carl Kühne and 
Others, paragraph 58, and the order in La Conqueste v Commission, 
paragraph 47). 
13 The referring court takes the view that it does not follow from the foregoing that 
Article 49(4), second subparagraph, of Regulation (EU) No 1151/2012 imposes a 
requirement to provide for the right to bring an actio popularis. In accordance 
with Article 12(1) of Regulation (EU) No 1151/2012, however, the protected 
geographical indication may be used by any operator marketing a product 
conforming to the corresponding specification. This raises the question as to 
whether, in the procedure for a non-minor amendment of a specification, any 
actual or potential — provided that it is not entirely implausible — economic 
effect on a natural or legal person may be sufficient to establish the existence of 
the legitimate interest, within the meaning of Article 49(3), first subparagraph, and 
(4), second subparagraph, of Regulation (EU) No 1151/2012, that is necessary for 
the purposes of an opposition to the application or an appeal against the 
favourable decision on the application (Question 1). 
14 Militating against such a broad definition of legitimate interest, in the view of the 
referring court, is the fact that this would render the requirement of a ‘legitimate’ 
interest meaningless because the right to lodge an opposition and bring an appeal 
would be insufficiently circumscribed.  
15 The restriction of the right to lodge an opposition and bring an appeal which 
Article 49(3), first subparagraph, and (4), second subparagraph, of Regulation 
(EU) No 1151/2012 seeks to apply by imposing the requirement of a legitimate 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-53/20 
 
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interest could be taken into account by the fact that such a legitimate interest lies 
(only) with operators producing products or foodstuffs comparable to those for 
which a protected geographical indication is registered (Question 2). A potential 
basis for determining who such operators having a legitimate interest are might be 
the particular type of competitive relationship that is relevant under the law on fair 
trading practices. Regard would thus have to be had to whether those lodging an 
opposition, on the one hand, and producers from the geographical area, on the 
other hand, are competitors attempting to sell similar goods or services within the 
same circle of final consumers, and, therefore, whether the competitive conduct of 
one is capable of adversely affecting the other, in other words by hindering or 
disrupting sales. 
16 Such an interpretation is supported by the need to protect fair competition. It is 
true that the objective of Regulation (EU) No 1151/2012, according to 
Article 1(1)(a) thereof, is to ensure fair competition for farmers and producers of 
agricultural products and foodstuffs having value-adding characteristics and 
attributes. Such (justified) support for a particular group of farmers and producers 
must not, however, confer an unfair competitive advantage over farmers and 
producers not forming part of that group. In the interests of the protection of fair 
competition, such competitors must be able to bring administrative or judicial 
proceedings where there is a risk that products to which a geographical indication 
of origin may be affixed no longer deliver the promises made to consumers about 
them in the product specification. 
17 The appellant has conclusively argued that the product specification amendment 
sought by the respondent means that, contrary to the connection with the 
geographical area that justifies protection and is described in the product 
specification, products carrying the protected geographical indication would no 
longer be processed according to ‘traditional preservation and processing 
methods’ and this would have economic consequences for the appellant. If that 
objection were well founded (a question not for that matter material to the right to 
appeal), this would mean that producers established in the geographical area 
would benefit from a competitive advantage. Unlike the competitive advantage 
conferred on them by Regulation (EU) No 1151/2012, which is based on the 
particular nature of the products, a competitive advantage of this kind would be 
unfair. Such an amendment of the specification would allow producers from the 
geographical area to affix to their gherkins the promotional indication 
‘Spreewälder Gurken’ and thus to reference the traditional methods of 
preservation and processing that justify that designation, even though the methods 
employed would not (any longer) be traditional. 
18 The fact that the protected geographical indication affords protection only to 
certain beneficiaries does not mean that non-beneficiaries cannot call that 
protection into question. Thus, in a similar manner, an action for revocation of a 
trade mark can be brought by anyone; it does not even require a legitimate 
interest. Moreover, the geographical designation not only confers rights, it also 
obliges producers to comply with the requirements set out in the specification. 
HENGSTENBERG 
 
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That obligation serves at least, among other purposes, to ensure fair competition 
and must be capable of being enforced by competitors not making their products 
in the geographical area.  
19 Finally, a distinction might conceivably be drawn between the requirements 
governing a legitimate interest in the registration procedure, on the one hand, and 
in the context of an amendment of the specification, on the other, on the basis that, 
in the case of an application for amendment, only producers who produce or 
specifically intend to produce products in the geographical area which comply 
with the product specification are to be regarded as having a legitimate interest 
(Question 3). 
20 The Bundespatentgericht (Federal Patent Court) proceeded on the premiss of just 
such a distinction between registration procedure and amendment procedure and 
assumed that, in the context of the registration procedure, the effects of which are 
far-reaching, the legitimate interest must be interpreted broadly. In the case of an 
amendment of the specification, on the other hand, non-local operators 
automatically have no legitimate interest because they are excluded from using the 
protected geographical indication. 
21 That distinction could be precluded not least by the clear wording of the 
regulation. With regard to the procedure applicable to non-minor amendments of 
the product specification, Article 53(2), first subparagraph, of Regulation (EU) 
No 1151/2012 refers to the registration procedure provisions contained in 
Articles 49 to 52 of Regulation (EU) No 1151/2012, without defining the concept 
of ‘legitimate interest’ differently for the purposes of the amendment procedure. 
What is more, such a distinction would make it possible (in abuse of the law) to 
register a geographical indication with an initially complex or strict product 
specification, and then, later, to ‘soften’ that specification in an amendment 
procedure during which non-local operators would no longer be able to lodge an 
opposition. This too — notwithstanding that such an application is subject to two 
stages of official scrutiny, before the national patent office and the 
Commission — militates against an interpretation of the concept of ‘legitimate 
interest’ in the amendment procedure that differs from that applicable in the 
context of the registration procedure. 
22 It is also not clear why, in the case of applications for amendment, only locally 
established producers should have a legitimate interest, and, consequently, the 
right to lodge an opposition and an appeal. In particular, a comparison with trade 
mark law as relied on by the applicant is not convincing in this regard. It is true 
that protected geographical indications are protected under trade mark law (see 
Court of Justice, judgments of 10 November 1992, Exportur, C-3/91, 
EU:C:1992:420, paragraph 37 et seq., of 20 May 2003, Ravil, C-469/00, 
EU:C:2003:295, paragraph 49, and of 20 May 2003, Consorzio del Prosciutto di 
Parma and Salumificio S. Rita, C-108/01, EU:C:2003:296, paragraph 64). 
However, unlike in the context of trade mark rights, where licensees or resellers 
do not usually have any influence over the quality of products marketed under the 
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trade mark, the protection of geographical indications is justified by the product’s 
connection with the geographical area (see Article 5(2) of Regulation (EU) 
No 1151/2012), which is reflected and laid down in the product specification. The 
essential characteristics of the product bearing the geographical indication are 
prescribed by the product specification. Consequently, the registration of a 
protected geographical indication establishes not only rights but also the 
obligation to comply with certain requirements, first and foremost those set out in 
the product specification. Operators whose products are produced in the 
geographical area, carry the protected geographical indication and are advertised 
on the basis of that indication must adhere to the requirements of the product 
specification (see also in this regard recital 47 of Regulation (EU) No 1151/2012). 
In that case, however, ‘non-local’ operators too must be able to oppose a product 
specification amendment which carries a risk that the quality or reputation of the 
product will no longer be attributable to its geographical origin, contrary to 
Article 5(2) of Regulation (EU) No 1151/2012.