With a recent judgement in Case C-485/18, the CJEU ruled on the mandatory indication of the country of origin or place of provenance of foods, in respect of the possibility for a Member State to require additional mandatory information as compared with those provided for in Regulation No 1169/2011.
The CJEU judgement was issued in the context of a dispute between Lactalis and the French authorities, concerning the legality of Decree No. 2016-1137 on the indication of the origin of milk, and of milk and meat used as ingredients. Lactalis brought an action against the French Council of State seeking the annulment of this decree for the infringement of Articles 26, 38 and 39 of Regulation No 1169/2011 (the “Regulation”). The Council of State decided to stay the proceedings and refer a request to the CJEU for a preliminary ruling concerning the interpretation of these provisions.
Through the main question, the referring Court asks whether the mandatory indication of the country of origin or place of provenance of milk (including milk used as an ingredient) shall be regarded as a ‘matter specifically harmonised’ by the Regulation; if so, whether this harmonisation precludes a Member State from adopting measures requiring additional mandatory particulars.
In this respect, the CJEU noted that Article 9 of the Regulation, that establishes the list of particulars which must mandatorily appear on foods, does include the indication of the country of origin or place of provenance of a food where provided for in Article 26. The latter provision states that the indication of the country of origin or place of provenance is mandatory «where failure to indicate this might mislead the consumer as to the true country of origin or place of provenance of the food». Therefore, the matter at issue falls within those specifically harmonised by the Regulation according with its Article 38.1. In addition, since Article 26 generically refers to the term “food”, also milk and milk used as an ingredient are subject to that specific harmonisation.
As regards to the question whether that specific harmonisation prevents Member States from requiring additional information, the CJEU stated that they might do so pursuant to Article 39(1) of the Regulation, based on which Member States may require additional mandatory particulars for the protection of consumers.
In that regard, the referring Court asks whether Article 39 must be interpreted as meaning that, in the event of national measures that are justified, in light of paragraph 1 of that article, on grounds of the protection of consumers, the two criteria set out in paragraph 2 of that article must be considered in combination. In fact, the latter provision states that «where Member States introduce additional measures concerning the mandatory indication of the country of origin or place of provenance of foods», they shall prove a link between certain qualities of the food and its origin or provenance; in addition, Member States shall provide the Commission with «evidence that the majority of consumers attach significant value to the provision of that information».
On that subject, the CJEU replied that it is necessary to examine those two requirements successively: firstly, the proven link between certain qualities of a given food and its origin or provenance. Subsequently, and solely where the existence of such a link has been established, it can be assessed «whether it has been proven that the majority of consumers attach a significant value to that information». Therefore, the CJEU continues, Member States shall not make mandatory the indication of the country of origin or place of provenance of a food based only on the subjective association that the majority of consumers may make between that origin or provenance and certain qualities of the food. In fact, this «may suggest that that food possesses special qualities linked to its origin or provenance, even though the existence of a proven link between such qualities and the origin or provenance has not been objectively established».
Finally, still in reference to Article 39, the referring Court asks whether the concept of the “quality of a food” includes the resilience of the food to transportation and the risk of deterioration during transit so that resilience can be taken into account in respect of the existence of a proven link between the quality of a food and its provenance. The CJEU replied that the concept at issue does not include all the characteristics of a food, but only the qualities involving its origin or provenance in order to distinguish this food from similar foods that, due to their different origin or different provenance, do not possess them. Consequently, the resilience to transportation and the risk of deterioration during transit cannot be classified as an issue of “quality” pursuant to Article 39 and shall not be taken into account in respect of the existence of a possible proven link between the quality of a food and its origin or provenance.