delivered on 21 March 2024 (1)

Case C‑399/22

Confédération paysanne

Ministre de l’Agriculture et de la Souveraineté alimentaire,

Ministre de l’Économie, des Finances et de la Souveraineté industrielle et numérique

(Request for a preliminary ruling from the Conseil d’État (Council of State, France))

(Reference for a preliminary ruling – Consumer information on foodstuff – Country of origin labelling requirements – Fruit and vegetables harvested in Western Sahara – Member States’ competence to prohibit unilaterally the importation of products not bearing a correct ‘country of origin’ label)

1.‘The territory of Western Sahara does not belong to the Kingdom of Morocco; consequently, a label indicating that the origin of those goods is Morocco infringes EU foodstuff labelling requirements.’

2.That, in a nutshell, is the argument of the applicant before the national court. The applicant accordingly sought a decision from the ministère de l’agriculture et de la souveraineté alimentaire (Ministry of Agriculture and Food Sovereignty, France) and the ministère de l’économie, des finances et de la souveraineté industrielle et numérique (Ministry of Economics, Finance and Industrial and Digital Sovereignty, France) (‘the Ministries’) to prohibit the importation of cherry tomatoes and Charentais melons (‘the products at issue’) originating in the territory of Western Sahara that are labelled as originating in the Kingdom of Morocco.

3.The dispute raises two distinct questions.

4.The first is whether the Member States may act unilaterally in the field of the common commercial policy to prohibit the importation of certain goods from third countries. While not a novel question, in view of recent Member States’ measures against imports from Ukraine, the question is certainly topical from a broader perspective. (2)

5.The second issue to be resolved relates to the labelling of foodstuffs originating in the territory of Western Sahara. The question here is whether those products may be marketed as originating in the Kingdom of Morocco. That question may be placed within the context of the judgments in Council v Front Polisario (3) and in Western Sahara Campaign UK (4) in which the Court recognised the separate territorial status of the territory of Western Sahara. (5)

II. The legal and factual context of the present case and the questions referred for a preliminary ruling

6.Western Sahara is a territory in northwest Africa. It was colonised by the Kingdom of Spain in the 19th century. In 1963, during the context of the process of decolonisation, that territory was added by the United Nations to the list of non-self-governing territories. (6) It remains on that list to this day.

7.The process of decolonisation has not (yet) been accomplished and Western Sahara remains the only non-self-governing territory in Africa. Spain renounced its responsibility as a colonial administering power in 1976. Ever since, a conflict, including of a military nature, over the territory has persisted between the Kingdom of Morocco, which controls approximately 80% of the territory of Western Sahara and claims sovereignty over its entirety, and the Front Populaire pour la libération de la saguia-el-hamra et du rio de oro (‘Front Polisario’), which controls the remainder of the territory of Western Sahara and claims to represent the Sahrawi people. The Sahrawi people were recognised as holding the right to self-determination by the International Court of Justice in its Advisory Opinion on Western Sahara. (7)

8.The conflict in Western Sahara is not new to the Court. Recognising that the right to self-determination binds the European Union in its conduct of external relations, the Court held in Council v Front Polisario and in Western Sahara Campaign UK, that the territory of Western Sahara enjoys a status separate and distinct from that of any State, including from the Kingdom of Morocco. (8)

9.On that basis, the Court interpreted the Association Agreement and the Fisheries Partnership Agreement, (9) the territorial application of which were respectively limited to the ‘territory of the Kingdom of Morocco’ and the ‘waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco’, as not including the territory of Western Sahara or the waters adjacent thereto. (10)

10.The Council instructed the Commission to act upon the Court’s judgments in Council v Front Polisario and in Western Sahara Campaign UK. (11) The outcome of the ensuing negotiations with the Kingdom of Morocco is reflected, in one part, in an agreement extending tariff preferences to goods originating in the territory of Western Sahara, (12) and, in another, by the agreement and implementation protocol relating to sustainable fishing in the waters adjacent to Western Sahara. (13)

11.Front Polisario have challenged the decisions approving those agreements. The appeals against the judgments of the General Court, by which it annulled those decisions, (14) are pending before the Court. In parallel to the present Opinion, I will also deliver my Opinions in those two sets of appeals today. (15) However, and irrespective of whether the Court will follow my Opinions in those cases, their outcome will not affect the solution of the present case.

12.In the present case, the applicant in the main proceedings before the national court is Confédération paysanne, a French agricultural union. It sought from the Ministries an order prohibiting the importation of the products at issue harvested in the territory of Western Sahara. Those products are imported and marketed in France with a label indicating the Kingdom of Morocco as their place of origin. (16) The applicant claims that this is contrary to the EU foodstuff labelling requirements that mandate the labelling of a product’s correct country of origin. The applicant submits that, when the products at issue are imported into France, they wrongly indicate the Kingdom of Morocco instead of the territory of Western Sahara as their country of origin. Their importation should, therefore, be prohibited.

13.Considering the Ministries as having implicitly rejected that request, the applicant filed an action before the Conseil d’État (Council of State).

14.The referring court is of the view that the applicable rules require that the country or territory of origin of a food product be indicated. That requirement, constituting an element of the marketing of food products, would, in principle, have to be met at the moment of importation. However, the referring court also notes that the applicable regulations do not expressly confer upon Member States the power to adopt measures prohibiting the importation of products which do not comply with that origin labelling requirement. Moreover, the referring court considers that, in light of the Court’s judgments in Council v Front Polisario and in Western Sahara Campaign UK, the question arises as to whether the EU rules on foodstuff labelling must be interpreted as requiring that products originating in the territory of Western Sahara cannot refer to the Kingdom of Morocco as the country of origin but must instead make reference to the territory of Western Sahara.

15.In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must the provisions of Regulation No 1169/2011, Regulation No 1308/2013, Regulation No 543/2011 and Regulation No 952/2013 be interpreted as authorising a Member State to adopt a national measure prohibiting the importation, from a specific country, of fruit and vegetables that infringe Article 26 of Regulation No 1169/2011 and Article 76 of Regulation No 1308/2013 for failing to indicate the country or territory from which they actually originate, in particular where that failure is significant and it is difficult to verify the origin once the produce enters the EU?','prefix':'(1)','indentation':2,

(2)If the first question is answered in the affirmative, must the Agreement in the form of an Exchange of Letters, approved by the Council Decision of 28 January 2019, amending Protocols 1 and 4 to the Euro-Mediterranean Agreement of 26 February 1996 establishing an association between the European Union and its Member States, and Morocco, be interpreted as meaning that, for the purpose of applying Articles 9 and 26 of Regulation (EU) No 1169/2011 and Article 76 of Regulation (EU) No 1308/2011, on the one hand, fruit and vegetables harvested in Western Sahara have Morocco as the country of origin and, on the other, the Moroccan authorities have the power to issue the certificates of conformity provided for by Regulation No 543/2011 to fruit and vegetables harvested in Western Sahara?

(3)If the second question is answered in the affirmative, does the Council Decision of 28 January 2019 approving the agreement in the form of an Exchange of Letters comply with Articles 3(5) and 21 TEU and the customary international law principle of self-determination set out, in particular, in Article 1 of the United Nations Charter?

(4)Must Articles 9 and 26 of Regulation (EU) No 1169/2011 and Article 76 of Regulation (EU) No 1308/2011 be interpreted as meaning that, at the stages of importation and sale to the consumer, the packaging of fruit and vegetables harvested in Western Sahara cannot indicate Morocco as the country of origin but must indicate the territory of Western Sahara?’

16.Written observations were submitted to the Court by the Confédération paysanne, the French Government, the Council and the Commission. Those parties also presented oral argument at the hearing that took place on 24 October 2023.

III. Analysis

17.As explained above, the present reference for a preliminary ruling is treated concurrently with two sets of appeals on which I am also delivering my Opinion today. (17) One of the two appeals concerns the validity of the preferential treatment granted to, inter alia, the products at issue imported into the European Union from the territory of Western Sahara. (18)

18.Whatever the outcome of those appeals, the two questions on which the Court has requested that I focus my analysis, namely Questions 1 and 4 as referred, remain relevant. (19)

19.I will address those two questions in turn. With regard to Question 1, I will assess whether the Member States have the competence under EU law to prohibit unilaterally the importation of certain goods into the European Union which allegedly do not bear a correct country of origin label. (20) In relation to Question 4, as referred, I will consider whether the products at issue should indicate Western Sahara as their country of origin, and whether they may also indicate the Kingdom of Morocco as their country of origin.

20.Before venturing into the substance of Question 1, I consider it necessary to reformulate it. That is because the referring court explains the need for guidance on Question 1 by reference to the Food Information to Consumers Regulation, (21) the Agricultural Products Regulation, (22) the General Fruit and Vegetable Marketing Regulation, (23) and the Union Customs Code (24) as potential legal bases for the unilateral prohibition of imports that is sought by the applicant.

A ban on the importation of certain products is a policy measure governing trade in goods, (25)

a matter that, according to Article 207(1) TFEU, falls within the scope of the common commercial policy. Indeed, in its reference for a preliminary ruling, the referring court explains that the measure sought by the applicant does not concern a sales or marketing ban of the products at issue in France. Instead, the applicant requested the French authorities to impose unilaterally an import ban of those products originating in Western Sahara owing to the alleged violation of EU foodstuff labelling requirements.

a matter that, according to Article 207(1) TFEU, falls within the scope of the common commercial policy. Indeed, in its reference for a preliminary ruling, the referring court explains that the measure sought by the applicant does not concern a sales or marketing ban of the products at issue in France. Instead, the applicant requested the French authorities to impose unilaterally an import ban of those products originating in Western Sahara owing to the alleged violation of EU foodstuff labelling requirements.

22.As the common commercial policy is an exclusive EU policy, (26) France does not have the competence to impose an import ban unless empowered or requested to do so by the European Union.

22.As the common commercial policy is an exclusive EU policy, (26) France does not have the competence to impose an import ban unless empowered or requested to do so by the European Union.

23.With the exception of the Union Customs Code, all other regulations mentioned by the referring court relate to EU foodstuff labelling on the EU market. Moreover, those regulations were not enacted on the basis of the provisions of the Treaties governing trade with third countries and the common commercial policy (Articles 206 or 207 TFEU), again except for the Union Customs Code. They were instead enacted on the basis of the articles governing agriculture (Article 43 TFEU) and the internal market (Article 114 TFEU).

23.With the exception of the Union Customs Code, all other regulations mentioned by the referring court relate to EU foodstuff labelling on the EU market. Moreover, those regulations were not enacted on the basis of the provisions of the Treaties governing trade with third countries and the common commercial policy (Articles 206 or 207 TFEU), again except for the Union Customs Code. They were instead enacted on the basis of the articles governing agriculture (Article 43 TFEU) and the internal market (Article 114 TFEU).

24.Given that they do not regulate trade with third countries, the Food Information to Consumers Regulation, the Agricultural Products Regulation, and the General Fruit and Vegetables Marketing Regulation cannot empower France to adopt the requested measure. In any event, none of those regulations authorise the Member States to prohibit unilaterally the importation of non-conforming products. (27)

24.Given that they do not regulate trade with third countries, the Food Information to Consumers Regulation, the Agricultural Products Regulation, and the General Fruit and Vegetables Marketing Regulation cannot empower France to adopt the requested measure. In any event, none of those regulations authorise the Member States to prohibit unilaterally the importation of non-conforming products. (27)

25.In order to provide the referring court with a useful answer, I therefore suggest reformulating Question 1 to ask instead whether EU law, in particular the Union Customs Code, authorises a Member State to adopt a national measure prohibiting the importation of fruit and vegetables that do not bear a correct country of origin label.

25.In order to provide the referring court with a useful answer, I therefore suggest reformulating Question 1 to ask instead whether EU law, in particular the Union Customs Code, authorises a Member State to adopt a national measure prohibiting the importation of fruit and vegetables that do not bear a correct country of origin label.

Assessment

Assessment

26.As I have explained in point 21 of this Opinion, trade in goods is a matter of the common commercial policy. That policy must be governed by uniform principles. (28)

26.As I have explained in point 21 of this Opinion, trade in goods is a matter of the common commercial policy. That policy must be governed by uniform principles. (28)

27.Under Article 3(1)(e) TFEU, the European Union has exclusive competence in the area of the common commercial policy. That means that only the European Union can legislate and adopt legally binding acts relating to trade in goods with third countries. (29)

27.Under Article 3(1)(e) TFEU, the European Union has exclusive competence in the area of the common commercial policy. That means that only the European Union can legislate and adopt legally binding acts relating to trade in goods with third countries. (29)

28.The corollary of that competence allocation is that the Member States are precluded from acting in the field of international trade unless specifically empowered to do so by the European Union, or where they implement EU acts.

28.The corollary of that competence allocation is that the Member States are precluded from acting in the field of international trade unless specifically empowered to do so by the European Union, or where they implement EU acts.

29.The question before the Court is therefore whether EU primary or secondary law confers autonomous powers on the Member States to put in place the type of unilateral measure requested by the applicant.

29.The question before the Court is therefore whether EU primary or secondary law confers autonomous powers on the Member States to put in place the type of unilateral measure requested by the applicant.

30.At the level of EU primary law, the answer is no. The Treaties do not provide for a provision empowering the Member States to put in place unilateral measures that restrict or suspend trade with a third State or territory. (30)

30.At the level of EU primary law, the answer is no. The Treaties do not provide for a provision empowering the Member States to put in place unilateral measures that restrict or suspend trade with a third State or territory. (30)

31.I consider the logic behind that approach to lie first and foremost in the danger of distorting the essential character of the powers of the European Union and its institutions, as provided for in the Treaty. (31)

31.I consider the logic behind that approach to lie first and foremost in the danger of distorting the essential character of the powers of the European Union and its institutions, as provided for in the Treaty. (31)

32.Second, such measures would pose a threat to the uniformity of the European Union’s external trade policy, thereby undermining one of the foundational principles on which the common commercial policy is based. (32)

32.Second, such measures would pose a threat to the uniformity of the European Union’s external trade policy, thereby undermining one of the foundational principles on which the common commercial policy is based. (32)

33.Finally, beyond the European Union’s external appearance as a reliable trading partner, there is a risk of exposure to liability before the WTO Dispute Settlement Body. (33)

33.Finally, beyond the European Union’s external appearance as a reliable trading partner, there is a risk of exposure to liability before the WTO Dispute Settlement Body. (33)

34.At the level of EU secondary law, the answer is more nuanced.

34.At the level of EU secondary law, the answer is more nuanced.

35.There is at least one precedent for the circumstances in which the European Union allows Member States to maintain, subject to certain conditions, specific national measures that, strictly speaking, interfere with the competence allocation under the common commercial policy. (34) That, however, is rare.

35.There is at least one precedent for the circumstances in which the European Union allows Member States to maintain, subject to certain conditions, specific national measures that, strictly speaking, interfere with the competence allocation under the common commercial policy. (34) That, however, is rare.

36.What is more common are specific instruments allowing the European Union to adopt certain safeguard measures in relation to trade with third States or territories. (35) In those instances, the European Union may put into place certain measures to regulate the release of non-EU products in the customs territory of the European Union and, if necessary, (36) only in part thereof. (37)

36.What is more common are specific instruments allowing the European Union to adopt certain safeguard measures in relation to trade with third States or territories. (35) In those instances, the European Union may put into place certain measures to regulate the release of non-EU products in the customs territory of the European Union and, if necessary, (36) only in part thereof. (37)

37.It is true, as the French Government submits, that both the Basic Import Regulation and the Union Customs Code contain provisions that provide for the possibility of Member States to introduce unilateral trade measures in exceptional cases. Thus, Article 24(2)(a) of the Basic Import Regulation provides that ‘this Regulation shall not preclude the adoption or application by Member States of … prohibitions, quantitative restrictions or surveillance measures on grounds of public morality, public policy or public security’. Similarly, pursuant to Article 134(1) of the Union Customs Code, ‘goods brought into the customs territory of the Union … may be subject to customs controls’ and, ‘where applicable, they shall be subject to such prohibitions and restrictions as are justified on grounds of, inter alia, public morality, public policy or public security.’

37.It is true, as the French Government submits, that both the Basic Import Regulation and the Union Customs Code contain provisions that provide for the possibility of Member States to introduce unilateral trade measures in exceptional cases. Thus, Article 24(2)(a) of the Basic Import Regulation provides that ‘this Regulation shall not preclude the adoption or application by Member States of … prohibitions, quantitative restrictions or surveillance measures on grounds of public morality, public policy or public security’. Similarly, pursuant to Article 134(1) of the Union Customs Code, ‘goods brought into the customs territory of the Union … may be subject to customs controls’ and, ‘where applicable, they shall be subject to such prohibitions and restrictions as are justified on grounds of, inter alia, public morality, public policy or public security.’

38.However, it is clear that those provisions do not constitute a standing authorisation, at the level of EU secondary law, to introduce unilateral measures to suspend imports for alleged breaches of EU food labelling requirements.

38.However, it is clear that those provisions do not constitute a standing authorisation, at the level of EU secondary law, to introduce unilateral measures to suspend imports for alleged breaches of EU food labelling requirements.

39.First, the type of measures envisaged by Article 24(2)(a) of the Basic Import Regulation must be applied erga omnes in so far as they are directed against WTO members and thus concern all imports of the product concerned, irrespective of origin. (38) The type of measure sought from France against products originating solely from the Kingdom of Morocco, a WTO member, cannot accordingly fall within the scope of that provision.

39.First, the type of measures envisaged by Article 24(2)(a) of the Basic Import Regulation must be applied erga omnes in so far as they are directed against WTO members and thus concern all imports of the product concerned, irrespective of origin. (38) The type of measure sought from France against products originating solely from the Kingdom of Morocco, a WTO member, cannot accordingly fall within the scope of that provision.

40.Moreover, the measures envisaged in Article 24(2)(a) of the Basic Import Regulation must be imposed, inter alia, ‘on grounds of public morality, public policy or public security’. That provision accordingly enables an interference with the freedom to trade (39) for specific reasons of general interest that are comparable to those set out in Article 36 TFEU. (40)

40.Moreover, the measures envisaged in Article 24(2)(a) of the Basic Import Regulation must be imposed, inter alia, ‘on grounds of public morality, public policy or public security’. That provision accordingly enables an interference with the freedom to trade (39) for specific reasons of general interest that are comparable to those set out in Article 36 TFEU. (40)

41.I do not exclude the possibility that the concept of ‘public morality’ in particular, which denotes beliefs of right and wrong by a particular community, could cover false or misleading labelling of food products.

41.I do not exclude the possibility that the concept of ‘public morality’ in particular, which denotes beliefs of right and wrong by a particular community, could cover false or misleading labelling of food products.

42.However, in view of the narrow interpretation that must be given to the types of derogations envisaged by Article 24(2)(a) of the Basic Import Regulation, (41) I am not convinced that a breach of EU harmonised marketing standards may constitute a reason to restrict the importation of a particular type of product into a single Member State.

42.However, in view of the narrow interpretation that must be given to the types of derogations envisaged by Article 24(2)(a) of the Basic Import Regulation, (41) I am not convinced that a breach of EU harmonised marketing standards may constitute a reason to restrict the importation of a particular type of product into a single Member State.

43.Indeed, as the French Government has explained, it is clear that the liberalisation of imports of goods from third countries by means of the Basic Import Regulation and the Union Customs Code cannot be viewed as also having the aim or effect of liberalising the subsequent marketing of those imports.

43.Indeed, as the French Government has explained, it is clear that the liberalisation of imports of goods from third countries by means of the Basic Import Regulation and the Union Customs Code cannot be viewed as also having the aim or effect of liberalising the subsequent marketing of those imports.

44.That is only logical since, in the lifecycle of a product imported for sale on the European Union market, the importation stage takes place prior to the marketing stage.

44.That is only logical since, in the lifecycle of a product imported for sale on the European Union market, the importation stage takes place prior to the marketing stage.

45.Granted, both of those stages may form each other’s ‘necessary complement’. (42)

45.Granted, both of those stages may form each other’s ‘necessary complement’. (42)

46.However, the successful customs clearance of a product does not necessarily imply compliance with the rules on consumer labelling; and vice versa: as the Court noted in its judgment in Expo Casa Manta, ‘just as a product lawfully manufactured within the Community may not be placed on the market on that ground alone, the lawful importation of a product does not imply that it will automatically be allowed onto the market’. (43)

46.However, the successful customs clearance of a product does not necessarily imply compliance with the rules on consumer labelling; and vice versa: as the Court noted in its judgment in Expo Casa Manta, ‘just as a product lawfully manufactured within the Community may not be placed on the market on that ground alone, the lawful importation of a product does not imply that it will automatically be allowed onto the market’. (43)

47.But even if it was (wrongly) assumed that the customs clearance of a product implies compliance with consumer labelling rules, the measure envisaged by the applicant would, in any event, be ineffective, since the products at issue, where imported through other Member States, could still be marketed to the French consumer.

47.But even if it was (wrongly) assumed that the customs clearance of a product implies compliance with consumer labelling rules, the measure envisaged by the applicant would, in any event, be ineffective, since the products at issue, where imported through other Member States, could still be marketed to the French consumer.

48.In this context, I do not consider it justified that a Member State can rely on the ground of public morality to restrict unilaterally the importation of certain products from third States (and thereby disrupt the intra-EU circulation of that product) on the pretext of remedying an alleged breach of EU harmonised marketing standards.

48.In this context, I do not consider it justified that a Member State can rely on the ground of public morality to restrict unilaterally the importation of certain products from third States (and thereby disrupt the intra-EU circulation of that product) on the pretext of remedying an alleged breach of EU harmonised marketing standards.

49.Second, the customs supervision envisaged by Article 134(1) of the Union Customs Code does not act as a self-standing empowerment to authorise Member States to introduce, inter alia, import bans for certain products.

49.Second, the customs supervision envisaged by Article 134(1) of the Union Customs Code does not act as a self-standing empowerment to authorise Member States to introduce, inter alia, import bans for certain products.

50.Rather, the concept of customs supervision envisages a certain type of legal status for products imported into the European Union. It is on the basis of that status that the national customs authorities then carry out customs controls. (44) Those controls include the verification of the treatment imposed on the goods at issue (for example, their preferential tariff treatment) and compliance with the obligations imposed on the relevant importer (for example, the payment of customs and import duties).

50.Rather, the concept of customs supervision envisages a certain type of legal status for products imported into the European Union. It is on the basis of that status that the national customs authorities then carry out customs controls. (44) Those controls include the verification of the treatment imposed on the goods at issue (for example, their preferential tariff treatment) and compliance with the obligations imposed on the relevant importer (for example, the payment of customs and import duties).

51.Furthermore, the type of measure that is controlled by customs supervision must itself be established by EU or implementing Member State law. Those are the types of prohibitions and restrictions to which the second sentence of Article 134(1) of the Union Customs Code refers. (45)

51.Furthermore, the type of measure that is controlled by customs supervision must itself be established by EU or implementing Member State law. Those are the types of prohibitions and restrictions to which the second sentence of Article 134(1) of the Union Customs Code refers. (45)

52.In the present case, however, the applicant does not point to any provision of EU or implementing Member State law that would empower France to adopt the measures sought from the Ministries. (46)

52.In the present case, however, the applicant does not point to any provision of EU or implementing Member State law that would empower France to adopt the measures sought from the Ministries. (46)

53.It therefore follows that neither the Union Customs Code nor the Basic Import Regulation in themselves can be relied on to authorise the French Government to put in place a unilateral import ban on certain products originating in the territory of Western Sahara for not displaying a correct country of origin label.

53.It therefore follows that neither the Union Customs Code nor the Basic Import Regulation in themselves can be relied on to authorise the French Government to put in place a unilateral import ban on certain products originating in the territory of Western Sahara for not displaying a correct country of origin label.

Consequently, I propose that the Court answer Question 1 in the negative.

Consequently, I propose that the Court answer Question 1 in the negative.

B. Question 4

55.In Question 4, the referring court asks, in essence, whether the relevant rules on EU foodstuff labelling should be interpreted as meaning that, at the stages of importation and sale to the consumer, the packaging of fruit and vegetables harvested in Western Sahara must not indicate Morocco as the country of origin, but must instead indicate the territory of Western Sahara.

56.In their written observations to the Court, both the French Government and the Commission challenge the admissibility of that question. Both argue that the resolution of the dispute before the referring court is limited to determining the legality of the Ministries’ implied decision not to prohibit unilaterally imports of the products at issue from the territory of Western Sahara. The determination of that dispute does not therefore require the answer to the question of whether products imported from Western Sahara should indicate that territory as its origin.

57.To my mind, it not obvious from the referring court’s reference that an interpretation of the rules on EU foodstuff labelling for the products at issue bears no relation to the actual facts of the main action or its purpose.

58.Article 267 TFEU establishes the procedure for direct cooperation between the Court of Justice and the courts of the Member States. (47) In that procedure, which is based on a clear separation of functions, it is the national court that determines which elements of EU law it requires for the resolution of the dispute before it, since it is also that court alone that bears the responsibility for the decision to be taken. (48) A national court’s questions thus enjoy a presumption of relevance, with the Court in principle bound to give a ruling. (49)

59.The Court may refuse to rule on a question referred to it by a national court only where it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (50)

60.In the present case, even though Question 1 relates only to the ban on imports, it is not clear that the measure sought before the referring court was not supposed to cover both the stage of importation and the making available of the products concerned to the consumer on the French market. Question 4 is also posed in the referring court’s order in such a way as to refer to both of those stages.

61.Although I take the position that those two stages cannot be conflated (see also point 44 of this Opinion), it is clear that the applicant’s request, whether it is well founded or not, also relates to the satisfaction of EU foodstuff labelling requirements for the products at issue. That element therefore appears useful for the referring court’s task of deciding on the legality of the implied decision at issue. Furthermore, the referring court considers that it has the power, under national law, to prescribe ex officio the measure requested by the applicant, without further qualifying the situations in which that measure may be ordered. It appears to be for that reason, too, that the referring court deems it necessary to assess the merits of the applicant’s case, which extends to the issues raised in Question 4.

62.Question 4 is therefore admissible.

63.Question 4 is worded in such a way as to enquire whether EU law imposes both negative and positive obligations for the correct labelling of the products at issue when originating in the territory of Western Sahara. The referring court asks whether EU foodstuff labelling requirements prohibit a country of origin label featuring/indicating the Kingdom of Morocco and whether they instead require the indication of the territory of Western Sahara as the country of origin.

64.I propose that the relevant EU foodstuffs labelling rules indeed require that products originating in the territory of Western Sahara must indicate that territory as their country of origin (the positive obligation), to the exclusion of other territorial references (the negative obligation). Those products cannot, therefore, bear any reference to the Kingdom of Morocco.

The analysis that will lead me to that conclusion is structured as follows: first, I shall establish that the general and/or specific rules on EU foodstuff labelling, as applicable to the products at issue, mandate a country of origin label in the first place (a). Then, I shall make clear that the territory of Western Sahara can be considered a country of origin within the meaning of those rules (b). Third, I shall explain why omitting Western Sahara as the country of origin of the products at issue risks misleading the EU consumers in their choices (c). Finally, I shall consider whether the EU rules on foodstuff labelling prohibit an additional reference to the Kingdom of Morocco (d).

(a) The law on EU foodstuff labelling

(1) General rules applicable to foodstuff

66.The Food Information to Consumers Regulation seeks to empower consumers through ‘correct, neutral and objective’ information ‘to make informed choices’ in relation to food they consume, (51) and to prevent any practices that may mislead consumers. (52) For that purpose, it requires ‘clear, comprehensible and legible labelling of foods’. (53)

67.Part of the information that (generally) must be provided to the consumer is the ‘country of origin’ or ‘place of provenance’. (54) This refers to the place from which the foodstuff at issue comes. (55)

68.That requirement is an expression of the principle prohibiting misleading food information. (56)

69.The focus of the Food Information to Consumers Regulation is thus specifically on protecting the consumer from a lack of or incorrect information that risks misleading the consumer as to the true origin of the product. (57)

70.I will return to the importance of the element of risk in misleading the consumer below (point 102 et seq. of this Opinion); however, it is first necessary to determine what specific requirements derive from the law on fruit and vegetable labelling for the products at issue in this case.

(2) Specific requirements for fruit and vegetables

71.Adopted as additional rules to the Food Information to Consumers Regulation, (58) the Agricultural Products Regulation and the General Fruit and Vegetables Marketing Regulation lay down marketing requirements for fruit and vegetables. (59)

72.The marketing rules of the Agricultural Products Regulation must be complied with in order for a product to be marketed to consumers on the EU market. (60) The EU legislature considers that compliance with those standards ‘is in the interest of producers, traders and consumers’. (61)

73.One of the marketing rules laid down by the Agricultural Products Regulation is that the place of farming and/or country of origin must be indicated. (62)

74.That indication is required for fruit and vegetables that are intended for sale fresh to the consumer. (63)

75.The requirement to indicate the origin of fruit and vegetables applies at all marketing stages, including the importation of fruit and vegetables. (64) A trader of fruit and vegetables cannot ‘offer them for sale or deliver or market them in any manner within the Union other than in conformity with those standards’. (65)

76.The Agricultural Products Regulation is further implemented by the General Fruit and Vegetables Marketing Regulation, (66) which sets out the general and specific marketing standards applicable to fruit and vegetables in detail. (67)

77.Cherry tomatoes are subject to specific marketing standards. (68) Those include a mandatory country of origin label. (69) That label may be complemented by an optional specification of the ‘district where [the tomatoes were] grown, or [a] national, regional or local place name.’ (70)

78.Charentais melons are subject to the General Fruit and Vegetables Marketing Regulation’s general marketing standards. (71) Those, too, require a mandatory country of origin label. (72) However, unlike for the case of cherry tomatoes, that regulation does not refer to the addition of a more detailed origin specification.

79.Those requirements are subject to conformity checks, which apply at all stages of marketing. (73)

80.As the Commission explained at the hearing, a finding of non-conformity leads to the prohibition on the moving of non-conforming products without authorisation from the competent inspection body. Those products must then be brought into conformity with the General Fruit and Vegetables Marketing Regulation. Should that not be possible, the relevant authorities may require that the products be sent to animal feed, industrial processing, any other non-food use, or even for destruction. (74)

81.It follows that the general and specific marketing standards applicable to the products at issue mandate the country of origin labelling of those products.

(b) Western Sahara as the country of origin for fruit and vegetables grown in that territory

82.The above explanation on the general and specific rules applicable to EU foodstuff labelling makes it clear that the EU legislature mandates that the products at issue indicate their country of origin.