Opinion of Advocate General Campos Sánchez-Bordona delivered on 25 April 2024.

• Jurisdiction: European Union
• Celex Number: 62023CC0228
• ECLI: ECLI:EU:C:2024:364
• Date: 25 April 2024
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 25 April 2024 (1)

Case C‑228/23

Association AFAÏA

v

Institut national de l’origine et de la qualité (INAO),

intervener:

Ministre de l’Agriculture et de l’Alimentation

(Request for a preliminary ruling from the Conseil d’État (Council of State, acting as Supreme Administrative Court, France))

(Reference for a preliminary ruling – Agriculture – Organic production – Regulation (EU) 2018/848 – Use of fertilisers, soil conditioners and nutrients in organic production – Implementing Regulation (EU) 2021/1165 – Annex II – Concepts of factory farming and landless livestock production – Criteria for categorising livestock farming as factory farming for the purposes of Annex II to Implementing Regulation 2021/1165)

1. In this reference for a preliminary ruling, the Court is asked to interpret the concept of factory farming, (2) which appears in Regulation (EU) 2018/848 (3) and Implementing Regulation (EU) 2021/1165. (4)

2. The main proceedings have arisen against the background of increased organic production, (5) which is echoed in EU law. One of the issues raised concerns the fertilisation of land used for organic production, (6) which the EU legislature has yet to regulate with the necessary precision.

3. Regulation 2018/848 and Implementing Regulation 2021/1165 permit, by way of exception and subject to certain conditions, the use in organic agriculture of non-organic manure (7) from conventional livestock farming. (8) The main restriction imposed by those provisions on the use of such manure is that it must not originate from factory farming. The reference for a preliminary ruling seeks to determine, specifically, what is meant by that term.

I. Legal framework: EU law

A. Regulation 2018/848

4. In accordance with Article 4 (‘Objectives’):

‘Organic production shall pursue the following general objectives: … (b) maintaining the long-term fertility of soils; … (d) substantially contributing to a non-toxic environment; (e) contributing to high animal welfare standards and, in particular, to meeting the species-specific behavioural needs of animals; …’

5. Article 5 (‘General principles’) provides:

‘Organic production is a sustainable management system that is based on the following general principles:

(a) respect for nature’s systems and cycles and the sustainment and enhancement of the state of the soil, the water and the air, of the health of plants and animals, and of the balance between them;

…

(d) the production of a wide variety of high-quality food and other agricultural and aquaculture products that respond to consumers’ demand for goods that are produced by the use of processes that do not harm the environment, human health, plant health or animal health and welfare;

…

(g) the restriction of the use of external inputs; where external inputs are required or the appropriate management practices and methods referred to in point (f) do not exist, the external inputs shall be limited to:

(i) inputs from organic production; in the case of plant reproductive material, priority shall be given to varieties selected for their ability to meet the specific needs and objectives of organic agriculture;

(ii) natural or naturally derived substances;

(iii) low solubility mineral fertilisers;

…

(j) the observance of a high level of animal welfare respecting species-specific needs.’

6. Paragraph 3 of Article 9 (‘General production rules’) provides:

‘For the purposes and uses referred to in Articles 24 and 25 and in Annex II, only products and substances that have been authorised pursuant to those provisions may be used in organic production, provided that their use in non-organic production has also been authorised in accordance with the relevant provisions of Union law and, where applicable, in accordance with national provisions based on Union law.

…’

7. In accordance with paragraph 1 of Article 12 (‘Plant production rules’):

‘Operators that produce plants or plant products shall comply, in particular, with the detailed rules set out in Part I of Annex II.’

8. Paragraph 1 of Article 14 (‘Livestock production rules’) provides:

‘Livestock operators shall comply, in particular, with the detailed production rules set out in Part II of Annex II and in any implementing acts referred to in paragraph 3 of this Article.’

9. Article 24 (‘Authorisation of products and substances for use in organic production’) reads:

‘1. The Commission may authorise certain products and substances for use in organic production, and shall include any such authorised products and substances in restrictive lists, for the following purposes:

…

(b) as fertilisers, soil conditioners and nutrients;

…

3. The authorisation of the products and substances referred to in paragraph 1 for use in organic production shall be subject to the principles laid down in Chapter II and to the following criteria, which shall be evaluated as a whole:

…

(d) in the case of products referred to in point (b) of paragraph 1, their use is essential for building or maintaining the fertility of the soil or to fulfil specific nutritional requirements of crops, or for specific soil-conditioning purposes;

…’

10. Annex II, Part I (‘Plant production rules’) states:

‘In addition to the production rules laid down in Articles 9 to 12, the rules set out in this Part shall apply to organic plant production.

1. General requirements

…

1.9 Soil management and fertilisation

…

1.9.2. The fertility and biological activity of the soil shall be maintained and increased:

…

(c) in all cases, by the application of livestock manure or organic matter, both preferably composted, from organic production.

1.9.3. Where the nutritional needs of plants cannot be met by the measures provided for in points 1.9.1 and 1.9.2, only fertilisers and soil conditioners that have been authorised pursuant to Article 24 for use in organic production shall be used, and only to the extent necessary. Operators shall keep records of the use of those products.

…’

11. Annex II, Part II (‘Livestock production rules’) states:

‘In addition to the production rules laid down in Articles 9, 10, 11 and 14, the rules laid down in this Part shall apply to organic livestock production.

1. General requirements

1.1 Except in the case of beekeeping, landless livestock production, where the farmer intending to produce organic livestock does not manage agricultural land and has not established a written cooperation agreement with a farmer as regards the use of organic production units or in-conversion production units for that livestock, shall be prohibited.

…

1.4.2.1 … organic animals shall graze on organic land …

1.6.3. The stocking density in buildings shall provide for the comfort, well-being and species-specific needs of the animals, and shall depend in particular on the species, the breed and the age of the animals. …

…

1.6.8. Cages, boxes and flat decks to raise livestock shall not be used for any livestock species.

…’

B. Implementing Regulation 2021/1165

12. Article 2 provides:

‘For the purposes of point (b) of Article 24(1) of Regulation [2018/848], only the products and substances listed in Annex II to this Regulation may be used in organic production as fertilisers, soil conditioners and nutrients for plant nutrition … provided that they are compliant with the relevant provisions of Union law …’

13. Annex II provides:

‘Fertilisers, soil conditioners and nutrients listed in this Annex may be used in organic production, provided that they are compliant with

– the relevant Union and national legislations on fertilising products, in particular, where applicable, Regulation (EC) No 2003/2003 [of the European Parliament and of the Council of 13 October 2003 relating to fertilisers (OJ 2003 L 304, p. 1)] and Regulation (EU) 2019/1009 [of the European Parliament and of the Council of 5 June 2019 laying own rules on the making available on the market of EU fertilising products and amending Regulations (EC) No 1069/2009 and (EC) No 1107/2009 and repealing Regulation No 2003/2003 (OJ 2019 L 170, p. 1)]; and

…

They may only be used according to the specifications and restrictions of use of those respective Union and national legislations. More restrictive conditions for use in organic production are specified in the right column of the tables.

Name Compound products or products containing only materials listed hereunder	Description, specific conditions and limits
Farmyard manure	product comprising a mixture of animal excrements and vegetable matter (animal bedding and feed material) factory farming origin forbidden
Dried farmyard manure and dehydrated poultry manure	factory farming origin forbidden
Composted animal excrements, including poultry manure and composted farmyard manure included	factory farming origin forbidden
Liquid animal excrements	use after controlled fermentation and/or appropriate dilution factory farming origin forbidden

…’

II. Facts, dispute and questions referred for a preliminary ruling

14. The Institut national de l’origine et de la qualité (National Institute of Origin and Quality, France; ‘the INAO’) is a public body which, under the supervision of the competent ministry, is responsible for implementing France’s policy relating to official signs identifying the quality and origin of agricultural and agri-food products.

15. In 2020, the INAO amended its ‘reading guide’ (9) to European legislation in order, inter alia, to interpret the prohibition, contained in Annex I to Regulation (EC) No 889/2008, (10) on the use on organic land of fertilisers and soil conditioners of animal origin from ‘factory farming’.

16. According to the reading guide, manure ‘from livestock raised in integral slatted or grid systems and exceeding the thresholds defined in Annex I to Directive 2011/92/EU’, as well as from ‘livestock raised in cages and exceeding’ those thresholds, is prohibited.

17. The...