CELEX: 62011TJ0481
Agriculture
Common organisation of the markets
Fruit and vegetables sector
Citrus fruits
Action for annulment
Confirmatory measure
New and substantial facts
Admissibility
Conditions for marketing
Provisions concerning marking
Indications of preserving agents or other chemical substances used in post-harvest processing
Standard recommendations adopted by the United Nations Economic Commission for Europe

Background to the dispute
Article 113 of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (
OJ 2007 L 299, p. 1
), which is part of Title II ‘Rules concerning marketing and production’, as amended by Council Regulation (EC) No 361/2008 of 14 April 2008 (
OJ 2008 L 121, p. 1
), provides as follows:
‘1.   Provision may be made by the Commission for marketing standards for one or more of the products of the following sectors:
…
(b)
fruit and vegetables;
(c)
processed fruit and vegetables; …
2.   The standards referred to in paragraph 1:
(a)
shall be established taking into account, in particular:
(i)
the specificities of the products concerned;
(ii)
the need to ensure the conditions for a smooth disposal of those products on the market;
(iii)
the interest of consumers to receive adequate and transparent product information including, in particular for products of the fruit and vegetables and processed fruit and vegetables sectors, the country of origin, the class and, where appropriate, the variety (or the commercial type) of the product;
…
(v)
as regards the fruit and vegetables and the processed fruit and vegetables sectors, the Standard recommendations adopted by the UN-Economic Commission for Europe (UN/ECE).
(b)
may in particular relate to … labelling.’
Furthermore, under Article 113a(2) of the Single CMO Regulation, inserted by Regulation No 361/2008, ‘[t]he marketing standards [laid down for the fruit and vegetables and processed fruit and vegetables sectors] shall apply at all marketing stages including import and export unless otherwise provided for by the Commission’.
Moreover, Article 121 of the Single CMO Regulation, as amended by Regulation No 361/2008, provides as follows:
‘The Commission shall establish the detailed rules for the application of this Chapter, which may in particular relate to:
(a)
marketing standards referred to in Articles 113 and 113a including rules on:
(i)
derogations or exemptions from the application of the standards;
(ii)
presentation of particulars required by the standards as well as on marketing and labelling:
(iii)
the application of the standards to products imported into, or exported from, the Community;
…’
It should be noted, in that regard, that Article 4 of the Single CMO Regulation provides as follows:
’Save as otherwise provided for by this Regulation, where powers are conferred upon the Commission, it shall act in accordance with the procedure referred to in Article 195(2).’
For its part, Article 195 of the Single CMO Regulation, as amended by Council Regulation (EC) No 491/2009 of 25 May 2009 (
OJ 2009 L 154, p. 1
), provides as follows:
‘Committee
1.   The Commission shall be assisted by the Management Committee for the Common Organisation of Agricultural Markets …
2.   Where reference is made to this paragraph, Articles 4 and 7 of Decision 1999/468/EC shall apply.
The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.
…’
Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (
OJ 1999 L 184, p. 23
) was repealed under Article 12 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (
OJ 2011 L 55, p. 13
), which entered into force, under Article 16 thereof, on 1 March 2011. In accordance with Article 13(1)(b) and (e), respectively, of that regulation, Article 5 thereof, with the exception of the second and third subparagraphs of Article 5(4), is to apply instead of Article 4 of Decision 1999/468, to which Article 195 of the Single CMO Regulation refers, and Article 10 of Regulation No 182/2011 is to apply instead of Article 7 of Decision 1999/468.
Article 5 of Regulation No 182/2011 provides, in particular, that a committee which falls within its scope is to deliver its opinion by the majority laid down in Article 16(4) and (5) of the TEU and, where applicable, Article 238(3) of the TFEU, for acts to be adopted on a proposal from the European Commission, and that the votes of the representatives of the Member States within the committee are to be weighted in the manner set out in those articles. Where the committee delivers a positive opinion, the Commission is to adopt the draft implementing act. If the committee delivers a negative opinion, the Commission is not, in principle, to adopt the draft implementing act. Where an implementing act is deemed to be necessary, the chair may either submit an amended version of the draft implementing act to the same committee within two months of delivery of the negative opinion, or submit the draft implementing act within one month of such delivery to the appeal committee for further deliberation. Lastly, where no opinion is delivered, the Commission may, in principle, adopt the draft implementing act, except in the cases provided for in the second subparagraph of Article 5 of Regulation No 182/2011.
For its part, Article 10 of Regulation No 182/2011 concerns the requirement for the Commission to keep a register of committee proceedings and to publish an annual report on those proceedings, and the rights of the European Parliament and of the Council of the European Union to have access to the information and documents contained in the register held by the Commission.
It is, in particular, on the basis of Article 121(a) of the Single CMO Regulation that the Commission adopted Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors. Recital 56 to that regulation states that the Management Committee for the Common Organisation of Agricultural Markets (‘the management committee’) has not delivered an opinion within the time limit set by its Chairman.
Article 3 of Regulation No 543/2011 provides as follows:
‘1.   The requirements of Article 113a(1) of [the Single CMO] Regulation … shall be the general marketing standard. The details of the general marketing standard are set out in Part A of Annex I to this Regulation.
Fruit and vegetables not covered by a specific marketing standard shall conform to the general marketing standard. However, where the holder is able to show that the products are in conformity with any applicable standards adopted by the [UNECE], they shall be considered as conforming to the general marketing standard.
2.   The specific marketing standards referred to in Article 113(1)(b) of [the Single CMO] Regulation … are set out in Part B of Annex I to this Regulation as regards the following products:
…
(b)
citrus fruit;
…’
Part B 2 of Annex 1 to Regulation No 543/2011 contains, according to its title, the ‘[m]arketing standard for citrus fruit’. Point VI thereof, entitled ‘Provisions concerning marking’, provides as follows:
‘Each package must bear the following particulars, in letters grouped on the same side, legibly and indelibly marked, and visible from the outside.
…
D. Commercial specifications
…
—
When used, mention of the preserving agent or other chemical substances used at post-harvest stage.’
It is the annulment of that provision which is sought in the present action (‘the contested provision’).
The United Nations Economic Commission for Europe (UNECE) was set up in 1947 by Resolution 36 (IV) of 28 March 1947, by the United Nations Economic and Social Council (ECOSOC). It currently brings together 56 countries from Europe (including all the Member States of the European Union), from the Commonwealth of Independent States and from North America. As the European Union is not a member of the United Nations, nor is it a member of UNECE. However, it acts as an observer within UNECE.
Within UNECE there is a Working Party on Agricultural Quality Standards (‘the working party’), which is responsible, in particular, for defining common standards for perishable foodstuffs.
In 1958, the working party adopted the Geneva Protocol on standardisation of fresh fruit and vegetables and dry and dried fruit (revised in 1964 and 1985, ‘the Geneva Protocol’). Point I of that protocol provides as follows:
‘Each product for which commercial quality standards are established shall be defined in a relevant standard by the name of the genus and species to which it belongs (Latin botanical reference followed, as the case may be, by the author’s name). …
However, a group of products may be the subject of a more general standard in so far as the characteristics of the products permit.’
Under point IX of the Geneva Protocol, the working party is responsible, in particular, for drafting new individual standards and, when necessary, amending the existing standards. Under point X of the Geneva Protocol, the working party is also responsible for drawing up the clauses of an international agreement calculated to confer a definite status on the standards laid down for fruit and vegetables within the UNECE framework.
Procedure and forms of order sought
The Kingdom of Spain brought this action by application lodged at the Registry of the General Court on 6 September 2011.
By separate document lodged at the Court Registry on 28 November 2011, the Commission raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the General Court. By order of the General Court of 13 July 2012, the decision on the objection of inadmissibility was reserved until final judgment.
Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Eighth Chamber, to which the present case was accordingly allocated.
On a proposal from the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 64 of its Rules of Procedure, requested the parties to respond in writing to several questions and to produce certain documents. The parties complied with that request within the prescribed period.
At the hearing held on 18 June 2014, the parties presented oral argument and their replies to the questions from the General Court. At the hearing, the Court set a time-limit for the parties to include in the file a copy of the Geneva Protocol and decided not to close the oral procedure until it had been included in the file. The parties complied with the Court’s request within the prescribed period and, on 26 June 2014, after a copy of the Geneva Protocol was placed on the file, the oral procedure was closed by decision of the President of the Eighth Chamber.
The Kingdom of Spain claims that the Court should:
—
annul the contested provision;
—
order the Commission to pay the costs.
The Commission contends that the Court should:
—
dismiss the action as inadmissible or, in the alternative, as unfounded;
—
order the Kingdom of Spain to pay the costs.
Admissibility
The Commission submits that the action is inadmissible, since the contested provision is a purely confirmatory measure and therefore may not be challenged by an action for annulment brought on the basis of Article 263 TFEU.
In the Commission’s view, the requirement to refer to the post-harvest processing carried out on citrus fruit is not new, but has appeared in EU legislation since 1971. Provisions which are, in essence, identical to the contested provision were already laid down in several regulations prior to 2002. Since 2002, the wording of the relevant applicable provision has been identical to that of the contested provision.
That is also the case as regards the fourth indent of point VI D of the Annex to Commission Regulation (EC) No 1799/2001 of 12 September 2001 laying down the marketing standard for citrus fruit (
OJ 2001 L 244, p. 12
), as amended by Commission Regulation (EC) No 2010/2002 of 12 November 2002 (
OJ 2002 L 310, p. 3
), and the fourth indent of point VI D of Part B2 of Annex I to Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector, as amended by Commission Regulation (EC) No 1221/2008 of 5 December 2008 (
OJ 2008 L 336, p. 1
). Furthermore, the context of the adoption of the contested provision is no different from the situation prevailing at the date of entry into force of Regulation No 2010/2002.
In that regard, it is necessary to point out, at the outset, that it is clear from the actual wording of Article 263 TFEU, as from its aim which is to guarantee legal certainty, that a measure which has not been challenged within the time-limit for bringing proceedings becomes definitive. That definitive nature concerns not only the measure itself, but also any later measure which is merely confirmatory. That approach, which is justified by the requirement of legal stability, applies to individual measures as well as those which have a legislative character, such as a regulation. It should none the less be stated, with regard to legislative measures such as regulations, that, where a provision in such a measure is amended, a fresh right of action arises, not only against that provision alone, but also against all the provisions which, even if not amended, form a whole with it (judgment in Case
C-299/05
Commission
v
Parliament and Council
[2007] ECR I-8695
, paragraphs 29 and 30; judgments in Case
T-257/04
Poland
v
Commission
[2009] ECR II-1545
, paragraph 70, and of 2 October 2009 in Joined Cases T‑300/05 and T‑316/05
Cyprus
v
Commission
, not published in the ECR, paragraph 258).
As regards the circumstances in which a measure is regarded as merely confirmatory of a previous measure, it is clear from the settled case-law that that is the case if the measure at issue contains no new factor as compared with the previous measure and was not preceded by a re-examination of the circumstances of the person to whom that measure was addressed (judgments in Case
T-186/98
Inpesca
v
Commission
[2001] ECR II-557
, paragraph 44; Case
T-12/08 P
M
v
EMEA
[2009] ECR-SC I-B-1-31 and II-B-1-159
, paragraph 47, and of 15 September 2011 in Case T‑407/07
CMB and Christof
v
Commission
, not published in the ECR, paragraph 89).
That case-law, which relates to individual measures, must be applied also in the case of legislative measures, as there is no justification for drawing a distinction between those measures. It should, furthermore, be noted that, in
Cyprus
v
Commission
, cited in paragraph 27 above (paragraph 276), the Court concluded that the provision at issue in that case was confirmatory of an identical earlier provision, having found that its adoption had not been preceded by a re-examination of the circumstances.
Clearly, the issue of whether a measure is confirmatory does not even arise in cases where the content of the subsequent measure is different from that of the earlier measure. It should be pointed out, however, that purely drafting changes, which do not affect the substance of the content of the measure at issue, do not preclude that measure from being classified as confirmatory. Thus, in its judgment in
Cyprus
v
Commission
, cited in paragraph 27 above (paragraph 270), the Court ruled that ‘the expiry of the time-limit for bringing proceedings [had to] be invoked against the action for annulment brought against an amended provision not only where that provision reproduc[ed] that contained in the measure in relation to which the time-limit for bringing proceedings [had] expired, but also where, although the new drafting [was] different …, its substance [was] not affected’.
The case-law referred to in paragraph 28 above thus relates to a situation in which the content of the contested measure (in other words, in the case of a legislative measure, the wording of the provision concerned) is, in essence, identical to that of the earlier measure.
The question which therefore arises is under what circumstances there is a ‘re-examination’, with the result that a subsequent measure, the content of which is identical, in essence, to that of an earlier measure, cannot be classified as confirmatory of that earlier measure.
In that regard, it cannot be accepted that a mere verification of the matters of fact or law which justified the adoption of a measure, carried out by the author of that measure before again confirming its content, constitutes a re-examination, for the purposes of the case-law cited in paragraph 28 above. In his Opinion in Case
294/84
Adams and Others
v
Commission
[1986] ECR 977, 978
and 981, Advocate General Slynn also took the view that merely taking a ’second look’ at the matters of fact or law which justified the adoption of a measure did not constitute a re-examination which precluded the existence of a confirmatory measure.
It is also necessary to point out that, it is settled case-law that the existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become definitive (see judgment in
Inpesca
v
Commission
, cited in paragraph 28 above, paragraph 47, and judgment in
M
v
EMEA
, cited in paragraph 28 above, paragraph 49 and the case-law cited). If a measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes a decision taken on the basis of the supposed substantial new facts and thus contains a new factor as compared with the previous decision (see judgment in
Inpesca
v
Commission
, cited in paragraph 28 above, paragraph 46 and the case-law cited).
Thus, after reconsideration, based on substantial new facts, of a decision which has become definitive, the institution concerned must take a new decision, the legality of which may where necessary be challenged before the EU judicature. However, in the absence of substantial new facts, the institution is not required to reconsider its earlier decision (judgments in
Inpesca
v
Commission
, cited in paragraph 28 above, paragraph 48, and
M
v
EMEA
, cited in paragraph 28 above, paragraph 51).
It is apparent from that case-law that a measure is regarded as adopted after a re-examination of the circumstances, which prevents it from being confirmatory in nature, where that measure was adopted either at the request of the person concerned, or at the initiative of its author, on the basis of substantial factors which were not taken into account at the time of adoption of the preceding measure. It is precisely because those factors had not been taken into account at the time of adoption of the earlier measure that they are new.
However, if the matters of fact or law on which the new measure is based are not different from those which justified the adoption of the preceding measure, that new measure is purely confirmatory of the preceding measure.
As regards the circumstances under which factors may be classified as new and substantial, a factor must be classified as new both where that factor did not exist at the time of adoption of the earlier measure (see, in that regard, judgment in
M
v
EMEA
, cited in paragraph 28 above, paragraph 53 and the case-law cited; see also, in that regard, order of the Court in Case
T-308/02
SGL Carbon
v
Commission
[2004] ECR II-1363
, paragraph 57) and where that factor already existed when the earlier measure was adopted but, for whatever reason, including a failure by the author of that measure to act diligently, was not taken into consideration at the time of its adoption (see, in that regard, judgment in
Adams and Others
v
Commission
, cited in paragraph 33 above, paragraph 15, and judgment in Case
T-82/92
Cortes Jimenez and Others
v
Commission
[1994] ECR-SC I-A-69 and II-237
, paragraph 16).
As regards the substantial nature of a factor for the purposes of the case-law referred to above, to be substantial in nature, that factor must be capable of substantially altering the legal situation as considered by the authors of the earlier measure (see, in that regard, order in
SGL Carbon
v
Commission
, cited in paragraph 38 above, paragraph 58 and the case-law cited). In other words, the factor concerned must be capable of substantially altering the conditions which governed the earlier measure, such as, in particular, a factor that raises doubts as to the merits of the approach adopted by that measure (see judgment in
M
v
EMEA
, cited in paragraph 28 above, paragraph 54 and the case-law cited).
It should also be pointed out that it must be possible to request the review of a measure which depends on whether the factual and legal circumstances which led to its adoption continue to apply, in order to establish whether its retention is justified (see, in that regard, judgments in
M
v
EMEA
, cited in paragraph 28 above, paragraphs 64 to 66, and Case
T-306/10
Yusef
v
Commission
[2014] ECR, paragraphs 62 and 63). A re-examination seeking to verify whether a previously-adopted measure remains justified in the light of a change in the legal or factual situation which has taken place in the meantime leads to the adoption of a measure which is not purely confirmatory of the earlier measure, but constitutes a measure open to challenge which could be the subject of an action for annulment under Article 263 TFEU (see, in that regard, judgment in Case C-362/08 P
Internationaler Hilfsfonds
v
Commission
[2010] ECR I-669
, paragraphs 56 to 62).
In the present case, as pointed out by the Commission, the wording of the contested provision is identical to that of the earlier provision, which it replaced, namely that of the fourth indent of point VI D of part B 2 of Annex I to Regulation No 1580/2007, as amended by Regulation No 1221/2008. That latter provision was itself identical to that of the fourth indent of point VI D of the Annex to Regulation No 1799/2001, as amended by Regulation No 2010/2002. In other words, there has been no change to the wording of the contested provision since 2002.
Therefore, it is necessary to ascertain, in the light of the considerations set out in paragraphs 28 to 40 above, whether, nevertheless, the contested provision was adopted following a re-examination of the situation, in which case it cannot be regarded as purely confirmatory and could be the subject of an action for annulment.
The Court considers that that is the case on the following grounds.
First, the contested provision, to a certain extent, depends on the circumstances which led to its adoption continuing to apply. In an age of constant scientific developments, it can legitimately be argued that the options for the post-harvest treatment of citrus fruit and the preserving agents or other chemical substances used are likely to change significantly and on a regular basis. In those circumstances, it is logical to expect a periodic review of the applicable measures, in order to verify whether they remain justified in the light of any change in the legal or factual situation which has taken place in the meantime. The intention of the authors of the contested provision does indeed appear to have been to carry out such a verification, rather than simply a recasting of existing provisions.
In that regard, it should be noted that recital 2 to Regulation No 543/2011 points out, in particular, that ‘it is appropriate to incorporate all the implementing rules in a new Regulation [covering the fruit and vegetables and processed fruit and vegetables sectors] together with the amendments necessary in the light of experience’.
It is therefore apparent from this that by adopting Regulation No 543/2011, the Commission not only had the intention to consolidate into one text all the implementing rules already in force, but also intended to take advantage of that opportunity to make any ‘amendments necessary in the light of experience’. That latter intention serves as evidence that the adoption of the contested provision, like any other provision of Regulation No 543/2011, may have been preceded by a re-examination of the circumstances for the purposes of the case-law cited in paragraph 28 above.
Secondly, it is necessary to point out that, after the adoption of Regulation No 1221/2008, which was the last measure, before the adoption of Regulation No 543/2011, to include a provision identical to the contested provision, there was a change in the relevant factual and legal circumstances which, where appropriate, could have resulted in an amendment of the contested provision and which, for that reason, required a re-examination of the circumstances.
It is necessary, in that regard, to point out that, under Article 113(2)(a)(v) of the Single CMO Regulation (see paragraph 1 above), marketing standards for products are established by the Commission taking into account, in particular, ‘the Standard recommendations adopted by the [UNECE]’ (see paragraphs 13 to 16 above).
The parties agree that the relevant standard in the present case is UNECE Standard FFV 14 concerning the marketing and commercial quality control of citrus fruit. It was adopted by the working party and has been amended on several occasions.
Paragraph VI of the 2000 edition of UNECE Standard FFV-14, entitled ‘UNECE Standard FFV-14 concerning the marketing and commercial quality control of citrus fruit moving in international trade between and to UNECE Member States’, contained provisions concerning the marking of packages: the latter must, according to that standard, ‘bear [certain particulars] in letters grouped on the same side, legibly and indelibly marked, and visible from the outside’. The fourth indent of Point VI D of that standard entitled ‘Commercial specifications’, provided that the packages should ‘where appropriate, indicate the use of the preserving agent or chemical substance used, in so far as its use [complied] with the legislation of the importing country’. No changes were made to the provisions referred to above in the 2004 edition of UNECE Standard FFV-14.
However, the 2009 edition of UNECE Standard FFV-14 made amendments to those provisions. Point VI of the 2009 edition of UNECE Standard FFV-14, entitled ‘UNECE Standard FFV-14 concerning the marketing and commercial quality control of citrus fruit’ provided that packages were to ‘bear [certain particulars] in letters grouped on the same side, legibly and indelibly marked, and visible from the outside’. The sixth indent of Point VI D of that standard, entitled ‘Commercial specifications’, provided that packages should indicate the ‘post-harvest treatment (optional, based on the national legislation of the importing country)’.
Point VI of the 2010 edition of UNECE Standard FFV-14 (the version of that standard which was applicable at the time of adoption of Regulation No 543/2011) reproduces, as regards marking, the 2009 UNECE Standard FFV-14, the only difference being that it refers to the marking of ‘packages’ [‘emballages’, in French] while the 2009 Standard referred to the marking of ‘packages’ [‘colis’, in French]. It therefore provides that ‘packages’ [‘emballages’] must ‘bear [certain particulars] in letters grouped on the same side, legibly and indelibly marked, and visible from the outside’. The sixth indent of Point VI D, entitled ‘Commercial specifications’, provides that ‘packages’ [‘emballages’] must indicate the ‘post-harvest treatment (optional, based on the national legislation of the importing country)’.
Thus, it is clear from this that, according to the 2000 and 2004 editions of UNECE Standard FFV-14, if a preserving agent or, more generally, a chemical substance has been used on citrus fruit (and provided that such use complied with the legislation of the importing country), information relating to that use must be provided on the packages containing the citrus fruit in question. However, under the 2009 and 2010 editions of the same standard, it is necessary to indicate such use only where required by the legislation of the importing country. In other words, if the legislation of the importing country concerned authorises the use of the preserving agent or of the chemical substance at issue without requiring information relating to its use to be shown on the packages of the citrus fruit concerned, the 2009 and 2010 editions of UNECE Standard FFV-14 do not require such an indication either.
The parties differ on the question of how the new wording of UNECE Standard FFV-14, in its 2009 and 2010 editions, should be understood. The Commission interprets it as a ‘failure to take a decision on the issue of the requirement to refer to the post-harvest processing of citrus fruit and, therefore, as a refusal by the UNECE to recommend such a reference’. According to the Commission, ‘the “choice” to which the recommendation refers is addressed solely to the importing States, and not to operators’. In the Commission’s view, the amendment of UNECE Standard FFV-14 ‘is purely formal in nature and does not affect the substance’. It thus considers that ‘that amendment does not misrepresent the facts’ which form the context of the adoption of the contested provision.
For its part, the Kingdom of Spain submits that the standards adopted by the UNECE are meant both for the States participating in the working party and for all those which adopt them on their own initiative. It considers, therefore, that ‘the optional marking of post-harvest treatment is a requirement to be complied with by all the persons to whom the standard is addressed, in each country adopting it’. In its reply, the Kingdom of Spain goes further and complains that the Commission misinterpreted UNECE Standard FFV-14, according to which it leaves UNECE Member States the option of whether or not to provide labelling for the post-harvest treatment of citrus fruit, whereas, in its view, ‘the option at issue … is intended for the operators’.
In order to rule on the admissibility of the action, it is not necessary to reach a decision, at this stage, either on the precise interpretation of the 2009 and 2010 editions of that standard, or on the issue of whether it is intended exclusively for UNECE Member States or also for operators. Those issues have some importance in relation to the substance of the case and it is in that context that it will be necessary, where appropriate, to analyse them.
For the purposes of analysing the admissibility of the action, it is sufficient to point out that the wording of UNECE Standard FFV-14 has, since 2009, that is to say after the adoption of Regulation No 1221/2008 (which contained a provision identical to the contested provision), been subject to amendments which did not relate solely to its drafting. While the earlier editions provided, unequivocally, that packages containing citrus fruit were to bear particulars concerning post-harvest treatment, since the 2009 edition, the standard at issue has merely provided for an option in that regard, ‘based on the national legislation of the importing country’. Contrary to the Commission’s assertions, that is clearly not an amendment of a purely formal nature.
Even if it is accepted that the Commission was not required to amend the relevant EU legislation in line with the amendment of UNECE Standard FFV-14, it was certainly obliged to take that amendment into account, as required by Article 113(2)(a)(v) of the Single CMO Regulation and, consequently, it had, at least, to re-examine the appropriateness of such an amendment. However, such a re-examination means that the contested provision, while identical in content to the relevant provision previously in force, is not confirmatory of the latter.
Thirdly and lastly, as is clear from the information placed on the file by the parties, from their written responses to the questions put to them by the Court in the context of a measure of organisation of procedure, and from the explanations provided by the parties at the hearing, the course of the procedure which led to the adoption of the contested provision confirms that a re-examination of the factual and legal circumstances indeed took place.
As was confirmed by the parties, the draft implementing regulation laying down detailed rules for the application of the Single CMO Regulation which, subsequently and following amendments, was adopted by the Commission as Regulation No 543/2011, was reviewed by the Commission’s experts group for the standardisation of fruit and vegetables (‘the experts group’). The draft sent to that group and examined by it, included in the file by the Kingdom of Spain, contained a provision which provided that the particulars concerning the post-harvest treatment of citrus fruit were optional [‘post-harvest treatment (optional)’, according to the original English version of that document]. Also in that draft, a provision identical to the contested provision had been crossed out, undoubtedly to show that the intention was to remove it and to replace it with the new provision referred to above. At the hearing, in response to a question by the Court, the Commission confirmed that the draft produced by the Kingdom of Spain was that which had been sent to the experts group. It did, however, state that the wording of the relevant provision of that draft, which was different from that of the contested provision, was the result of an ‘error’ it had made.
It is also clear from the documents placed on the file by the parties and from the explanations given by the latter both in their written pleadings and at the hearing, that a draft regulation containing a provision identical to that referred to in paragraph 60 above had been sent, on 6 April 2011, to the management committee, in order for it to be reviewed at the meeting of 13 April 2011. The Kingdom of Spain produced, as an annex to the application, a copy of that draft. However, on 11 April 2011, the Commission sent the management committee an amended version of its draft, which, that time, contained a provision identical to the contested provision. In its written pleadings, the Commission confirmed the substantive accuracy of that information, but it pointed out, also with regard to that draft, that the wording of the relevant provision had been the result of an ‘error’, which it had corrected as soon as it had become aware of it.
The Kingdom of Spain also produced, as an annex to the application, copies of the letters sent by two Spanish ministries to the Commission following the management committee meeting of 13 April 2011, to express their disagreement with its proposal for a regulation, as well as the Commission’s responses to those letters. On 4 May 2011, the Director-General for Trade and Investment of the Spanish Ministry of Industry, Tourism and Commerce sent the Director-General of the Commission’s Directorate-General for Health and Consumers a letter in which he claimed that it had been agreed within the experts’ group that the regulation to be adopted by the Commission would be in line with the new wording of UNECE Standard FFV-14, according to which indications of the preserving agents or other chemical substances used at post-harvest stage was optional.
That Spanish official sent another letter, also dated 4 May 2011, to the Director-General of the Commission’s Directorate-General for Agriculture and Rural Development. In addition, the Director-General for Agricultural Resources and Animal Husbandry of the Spanish Ministry of the Environment and Rural and Marine Affairs also sent a letter, dated 3 May 2011, to the Director-General of the same Commission Directorate-General.
The Director-General of the Directorate-General for Agriculture and Rural Development responded to the two letters referred to above in two letters dated respectively 14 and 30 June 2011. Those two letters, drafted respectively in English and in Spanish, were identical in content. The letters state that the Commission’s draft regulation updated 10 specific marketing standards, in the light of the latest UNECE standards. As regards the marketing standard for citrus fruit, it is pointed out that the labelling requirement relating to post-harvest treatment was introduced by Regulation No 1799/2001 and that ‘[it] has been applied so far without any major problems for the food business operators’. The letter also adds that the ‘Commission services consider that the deletion of this labelling requirement is not justified and it would raise legitimate objections as regards the correct implementation of the legislation on food additives’.
For his part, the Director-General of the Directorate-General for Health and Consumers responded to the letter which was sent to him by the Director-General for Commerce and Investments of the Spanish Ministry of Industry, Tourism and Commerce (see paragraph 62 above) in a letter of 29 June 2011, in which he stated that the content of the letter which he had received was identical to that of the letter sent by the same Spanish official to the Director-General of the Directorate-General for Agriculture and Rural Development and merely referred to the latter’s response of 14 June 2011.
It is clear from all of the foregoing information that, when drafting the draft regulation which, subsequently and following amendments, was adopted as Regulation No 543/2011, the Commission services initially aligned it with the version of UNECE Standard FFV-14 in force and sought to insert, into the regulation which the Commission was to adopt, a provision which was identical to that standard.
However, the view was subsequently taken that that wording of the relevant provision would conflict with other considerations, including those relating to ‘the correct implementation of the legislation on food additives’, alluded to by the Director-General of the Directorate-General for Agriculture and Rural Development in his letter referred to in paragraph 64 above. The Court considers that that is what the Commission meant when it stated that the original wording of the relevant provision of its draft legislation was the result of an ‘error’. Accordingly, on 11 April 2011, a new draft, in which the relevant provision reverted to the version already in force, was sent to the Member States for the purpose of the management committee meeting.
It follows that the adoption of the contested provision was preceded by a re-examination of the circumstances, within the meaning of the case-law cited in paragraph 28 above, which, according to that case-law, means that that provision cannot be regarded as merely confirmatory of the identical earlier provisions.
The earlier provisions, while identical in content to the contested provision, merely transposed into EU law the version of UNECE Standard FFV-14 in force. It was only at the time of adoption of the contested provision that the Commission, which, initially, sought to amend the relevant provision of EU law to keep in aligned with the standard at issue, subsequently analysed whether it could, or even should, move away from that standard, in particular in order to ensure ‘the correct implementation of [EU] legislation on food additives’. Having answered that question in the affirmative, it did not change the provision at issue and departed, for the first time since 2002 at least, from the wording of UNECE Standard FFV-14.
In other words, the contested provision was adopted following the examination of an issue which had not been examined previously. That examination is a new and substantial factor, taken into account at the time of the adoption of the contested provision while it had not been taken into account at the time of the adoption of the earlier identical provisions, which means that the contested provision is not merely confirmatory of the earlier provisions, but is a measure open to challenge.
Therefore, the present action is admissible and must be examined as to its substance.
Substance
In support of its action, the Kingdom of Spain raises five pleas in law, alleging, first, infringement of the principle of the hierarchy of norms, secondly, a misuse of powers, thirdly, a failure to state reasons, fourthly, infringement of the principle of equal treatment and fifthly, infringement of the principle of proportionality.
The first plea, alleging infringement of the principle of the hierarchy of norms
The Kingdom of Spain argues that by adopting, in the form of the contested provision, a marketing standard that differs from UNECE Standard FFV-14, the Commission infringed Article 113(2)(a) of the Single CMO Regulation and, consequently, the principle of the hierarchy of norms. It also relies, in that context, on recital 6 to Regulation No 543/2011, under which ‘[i]n order to avoid unnecessary barriers to trade, where specific marketing standards are to be laid down for individual products, these standards should be those as set out in the standards adopted by the [UNECE]’.
It must be recalled that, in accordance with the principle of the hierarchy of norms, an implementing regulation may not derogate from the rules contained in the act to which it gives effect (see judgment in Case
T-576/08
Germany
v
Commission
[2011] ECR II-1578
, paragraph 100 and the case-law cited).
In that regard, it should be pointed out that under Article 113(2)(a)(v) of the Single CMO Regulation, the ’Standard recommendations adopted by the [UNECE]’ constitute only one of the factors which the Commission must take into account when it provides for marketing standards for one or more products. Thus, the wording alone of that provision does not in any way indicate that the standards established by the Commission must be identical to those established by the UNECE.
Furthermore, there is nothing in the arguments put forward by the Kingdom of Spain or in the information in the file which is capable of justifying a different conclusion, according to which, despite its clear and unambiguous terms, the provision referred to above should be interpreted as meaning that, at the time of adoption of a marketing standard for one or more products, the Commission is required to transpose in its original form the corresponding UNECE standard.
In particular, it is clear from the minutes of the working party meeting held in Geneva from 4 to 8 May 2009, a copy of which was included in the file by the Commission as an annex to its defence, that the standards adopted by the UNECE are not binding even for UNECE Member States. Paragraph 78 of those minutes points out that the secretariat of the working party explained to the meeting participants that ‘the standards developed at UNECE … [were] only recommendations and [could not] be imposed [on] States. States themselves decide what standards to use at the national or regional level’.
Furthermore, at the hearing, in response to a question by the Court, both the Kingdom of Spain and the Commission confirmed that the UNECE standards were not binding, even for UNECE Member States.
It follows that the adoption of a standard by UNECE entails no obligation for the EU Member States, all of which are UNECE Member States.
In the light of those considerations, Article 113(2) of the Single CMO Regulation should be interpreted, in accordance with its clear and unambiguous wording, as meaning that the Commission has discretion when adopting, at EU level, marketing standards for one or more products. Since, in regard to the common agricultural policy, the case-law recognises the Community institutions as having a discretionary power which reflects their responsibilities in this matter (see judgment in Case
T-219/04
Spain
v
Commission
[2007] ECR II-1323
, paragraph 105 and the case-law cited), it should be concluded that the discretion available to the Commission, under the abovementioned provision, is also broad. However, under that provision, it is for the Commission, when exercising that broad discretion, to take into account, inter alia, standards adopted within the UNECE. Furthermore, the non-binding nature of those standards explains the use of the term ’Standard recommendations’ in that provision.
Consequently, since the Commission was not required, under the abovementioned provision of the basic regulation, to adopt, at EU level, a marketing standard for citrus fruit using wording identical to that of UNECE Standard FFV-14, it cannot be criticised for having infringed the basic regulation and, therefore, the principle of the hierarchy of norms.
As regards the Kingdom of Spain’s argument based on the wording of recital 6 to Regulation No 543/2011 (referred to in paragraph 73 above), it should be stated, first of all, that that is a recital to Regulation No 543/2011 itself and not a higher-ranking norm, such as the Single CMO Regulation. Accordingly, there can, in any event, be no question of an infringement of the principle of the hierarchy of norms.
Be that as it may, it should be noted that the expression ’should be’, used in recital 6 to that regulation cannot be interpreted as meaning that the standards adopted by the Commission must have exactly the same content as those adopted by the UNECE.
Furthermore, it should be pointed out that, according to the settled case-law, an implementing regulation must be given, if possible, an interpretation consistent with the provisions of the basic regulation (judgments in Case
C-90/92
Dr Tretter
[1993] ECR I-3569
, paragraph 11, and Case
C-61/94
Commission
v
Germany
[1996] ECR I-3989
, paragraph 52).
However, in the present case, as has already been pointed out, Article 113(2) of the Single CMO Regulation, which is the basic regulation, requires the Commission, when adopting marketing standards for specific products, to take several factors into account, the UNECE standards being only one of those factors. If the Commission, when it adopted Regulation No 543/2011, had sought to reproduce in their original form all of the relevant UNECE standards without taking into account any other factors that might support a different content for any particular standard to be adopted, it would have infringed the basic regulation. It cannot, therefore, be accepted that that was its intention when it adopted Regulation No 543/2011. Recital 6 to that regulation must, rather, be understood as meaning that, where specific marketing standards are to be laid down for individual products, they must be based on the standards adopted by the UNECE, with any necessary amendments, required to take account of the other factors referred to in Article 113(2) of the Single CMO Regulation.
In its reply the Kingdom of Spain adds that, in so far as the Commission submits in its written pleadings (see, in that regard, paragraph 54 above) that no substantive amendment has been made to UNECE Standard FFV-14, it is clear that the Commission has failed to fulfil its obligation, under Article 113(2)(a)(v) of the Single CMO Regulation, to take account of that amendment. The Kingdom of Spain also relies, in the same context, on the Commission’s view that the option laid down in the standard in question is addressed solely to the importing States, a view which the Kingdom of Spain considers to be erroneous, as has been pointed out in paragraph 55 above.
Those arguments cannot succeed, at least in the context of the first plea, alleging infringement of the principle of the hierarchy of norms.
There is no doubt that, when drafting the contested provision, the Commission took account of UNECE Standard FFV-14, as required by Article 113(1)(a)(v) of the Single CMO Regulation. This is illustrated by the fact, relied on by the Kingdom of Spain, that the Commission’s first draft of what became the contested provision contained a provision which was identical to the relevant provision of UNECE Standard FFV-14 (see paragraphs 60 and 61 above). Consequently, the Commission cannot be criticised for having failed to fulfil its obligation to take account of the standard at issue.
As regards the Commission’s allegedly erroneous view that the standard at issue is addressed solely to the States and not, as the Kingdom of Spain appears to argue, also to operators, it is sufficient to point out, in the context of the present plea, that any misunderstanding by the Commission of the content of the standard at issue cannot, in any event, constitute infringement, by the Commission, of the principle of the hierarchy of norms. Such an error, if it has been committed, could, however, justify the annulment of the contested provision as a result of a manifest error on the part of the Commission in the exercise of the discretion available to it under Article 113(2)(a)(v) of the Single CMO Regulation. However, the issue of whether the Commission’s assessment is vitiated by a manifest error will be examined in the context of the fifth plea. The arguments presented by the Kingdom of Spain in support of that plea require such a review by the Court and it is in that context that it is also necessary to examine whether the Commission correctly understood the content of the relevant provision of UNECE Standard FFV-14.
In the light of all those considerations, the first plea must be rejected.
The second plea, alleging misuse of powers
By the second plea, put forward in the alternative in the event that the Court does not uphold the first plea, the Kingdom of Spain complains that the Commission misused its powers, in so far as, in the Kingdom of Spain’s view, the Commission adopted the contested provision for an end other than that stated. The Kingdom of Spain relies, in that regard, on four elements, namely: first, the wording of recital 6 to Regulation No 543/2011 (see paragraph 73 above); secondly, the amendment of the draft Commission regulation, during the travaux préparatoires for its adoption and the explanations allegedly put forward by the Commission to justify it; thirdly, the content of the letters referred to in paragraphs 64 and 65 above; and fourthly, the content of the labelling requirement laid down in the contested provision which, according to the Kingdom of Spain, is ’selective in nature’.
In particular, according to the Kingdom of Spain, the justification given by the Commission to justify maintaining the labelling requirement laid down in the contested provision relates to a specific substance, that is ortho-phenylphenol, and its sodium salt, known as ’sodium o-phenylphenate’ (together, ‘OPP’). However, in the view of the Kingdom of Spain, in so far as OPP falls within the scope of the legislation on food additives, it should appear in that legislation. The Kingdom of Spain also considers that the requirement laid down by the contested provision is selective in nature, in so far as it does not apply to all fruit and vegetables.
The Kingdom of Spain submits, in that regard, that implementation of the legislation on food additives is a purpose unrelated to the implementing powers conferred on the Commission by Article 113 of the Single CMO Regulation. It infers from this that the Commission acted for an end other than that stated in the contested measure. Furthermore, it acted for purposes other than those set out in Regulation No 543/2011 and in Article 113 of the Single CMO Regulation, which conferred on it competence to adopt the contested provision.
The Kingdom of Spain also argues that the establishment of marketing standards is a tool which forms part of the common organisation of agricultural markets, laid down in Article 40 TFEU, for the purpose of achieving the objectives of common agricultural policy laid down in Article 39 TFEU. Even though the case-law accepts that efforts to attain objectives of the common agricultural policy cannot disregard requirements relating to the public interest such as the protection of consumers or protection of the health and life and humans and animals, such a consideration cannot allow the Commission to introduce a general and absolute requirement with no specific legal basis. The introduction of such a requirement is possible only under Article 169 TFEU, which provides in paragraph 1 that ‘[i]n order to promote the interests of consumers and to ensure a high level of consumer protection, the Union shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests’. However, that article grants no direct powers to the Commission. In the Kingdom of Spain’s view, that is further evidence of the misuse of powers for which it criticises the Commission.
In that regard, it is necessary, as a preliminary point, to recall the settled case-law, according to which a measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see judgment in Case
C-442/04
Spain
v
Council
[2008] ECR I-3517
, paragraph 49 and the case-law cited).
However, in the present case, none of the evidence relied on by the Kingdom of Spain in its arguments seeks to demonstrate that the contested provision was adopted for an end other than that stated or to evade a procedure specifically prescribed by the Treaty.
As regards the Kingdom of Spain’s argument based on the wording of recital 6 to Regulation No 543/2011, it has already been pointed out in paragraph 85 above that the expression ’should be’ cannot be understood as meaning that the Commission sought to adopt in their original form all the relevant UNECE standards, with no possibility of amendment. In any event, whatever the Commission’s intentions were at the time of adopting Regulation No 543/2011, that recital does not demonstrate that it was pursuing an end other than that stated, that is to say determining specific marketing standards for certain products, including citrus fruit.
As regards the second and third elements relied on by the Kingdom of Spain, it is true that they demonstrate that, when adopting the contested provision, the Commission took into consideration, in particular, OPP, which, for a long time, was covered by the legislation on food additives. However, there is nothing to confirm the claim made by the Kingdom of Spain (see paragraph 93 above) that the contested provision seeks to implement that legislation.
In that context, it should be pointed out that it is clear from the wording of Article 113(2)(a)(iii) of the Single CMO Regulation that the marketing standards which the Commission may provide for are established taking account, in particular, of ‘the interest of consumers to receive adequate and transparent product information’. Furthermore, as the Kingdom of Spain itself acknowledges, according to the case-law of the Court of Justice, efforts to achieve objectives of the common agricultural policy cannot disregard requirements relating to the public interest such as the protection of consumers or the protection of the health and life of humans and animals, requirements which the EU institutions must take into account in exercising their powers (judgments in Case
68/86
United Kingdom
v
Council
[1988] ECR 855
, paragraph 12, and Case
C-180/96
United Kingdom
v
Commission
[1998] ECR I-2265
, paragraph 120).
Contrary, therefore, to what the Kingdom of Spain appears to argue, it cannot be accepted that the Commission misused the procedure relating to the adoption of marketing standards in accordance with Article 113 of the Single CMO Regulation, in order to enact a provision designed to protect consumers, the adoption of which does not fall within its powers. The argument that the Commission has no specific legal basis for enacting a provision such as the contested provision, since its adoption is possible only under Article 169 TFEU, which confers no direct powers on the Commission (see paragraph 94 above), must be rejected for the same reason.
It follows that, in any event, the arguments considered above cannot demonstrate that the adoption of the contested provision constitutes a misuse of powers, which is the sole subject-matter of the present plea.
It is indeed true that the Commission itself points out, in its written pleadings, that its ‘official position’ as regards the reasons justifying the adoption of the contested provision, which is identical to the preceding analogous provision, despite the intervening amendment of UNECE Standard FFV-14, is that which is set out in the letter referred to in paragraph 64 above. Consequently, although, as the Kingdom of Spain appears to claim, that position is based on an error of law relating to the requirements of the ‘legislation on food additives’, such an error could justify the annulment of the contested provision. Indeed, the Commission itself acknowledges that such an error, if confirmed, could lead to the annulment of the contested provision. It submits, however, that any such annulment would be based on a manifest error of assessment or an infringement of the principle of proportionality.
Therefore, like the question referred to in paragraph 89 above and for the same reasons as those cited in that paragraph, the question raised in paragraph 102 above will be analysed in the context of examination of the fifth plea.
The fourth element relied on by the Kingdom of Spain, based on the content of the contested provision, also fails to establish a misuse of powers by the Commission. Providing for a labelling requirement for all substances used in the post-harvest treatment of citrus fruit, for reasons which, in essence, concern only one of those substances, OPP, and restricting that requirement only to citrus fruit and not to other fruit could, where appropriate, justify annulment of the contested provision on grounds of a manifest error of assessment or an infringement of the principles of equal treatment or proportionality, but does not constitute even an indication of misuse of powers. They are, once again, arguments which should be examined in the context of the analysis of the fourth and fifth pleas.
In the light of all of those considerations, the second plea must be rejected.
The third plea, alleging infringement of the obligation to state reasons
The Kingdom of Spain criticises the Commission for infringing the obligation to state reasons, on account of the discrepancy which exists, in its view, between recital 6 to Regulation No 543/2011 and the contested provision (see also paragraph 73 above). The Kingdom of Spain considers that the statement of reasons for the contested provision is, indeed, clear, but that it is ambiguous, in so far as, while, in accordance with UNECE Standard FFV-14, the imposition of a labelling requirement concerning the post-harvest treatment of citrus fruit is optional, Regulation No 543/2011 fails to set out the reasons which led the Commission to depart from that standard and to introduce, by means of the contested provision, a general and unconditional labelling requirement. That requirement was introduced without any justification, which constitutes an infringement of the obligation to state reasons, as set out in the second paragraph of Article 296 TFEU and the relevant case-law.
In that regard, it should be pointed out that it is settled case-law that the statement of reasons required by Article 296 TFEU must be appropriate to the nature of the act at issue. It must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the EU courts to exercise their power of review. However, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment in Case
C-310/04
Spain
v
Council
[2006] ECR I-7285
, paragraph 57 and the case-law cited). This is
a fortiori
the case where the Member States have been closely associated with the process of drafting the contested measure and are thus aware of the reasons underlying that measure (see judgment in Case
C-301/97
Netherlands
v
Council
[2001] ECR I-8853
, paragraph 188 and the case-law cited).
Furthermore, where, as in the present case, a measure is intended to have general application, the preamble may be limited to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, on the other (judgments in
Netherlands
v
Council
, cited in paragraph 107 above, paragraph 189, and in
Spain
v
Council
, cited in paragraph 107 above, paragraph 59).
Moreover, the Court has repeatedly held that if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made (see judgment in
Netherlands
v
Council
, cited in paragraph 107 above, paragraph 190 and the case-law cited). That is all the more so where the EU institutions enjoy a wide margin of discretion in their choice of the means necessary to achieve a complex policy such as, in the present case, the common agricultural policy (see judgment in
Netherlands
v
Council
, cited in paragraph 107 above, paragraphs 191 and 192 and the case-law cited).
In the present case, it should be noted, at the outset, that the Kingdom of Spain’s entire line of argument is based on a reading of recital 6 to Regulation No 543/2011 which, as has already been explained in paragraphs 83 to 85 above, is erroneous.
For the reasons set out in paragraphs 83 to 85 above, that recital should not be understood as meaning that it is necessary to ensure that EU marketing standards, adopted by the Commission, are identical to those adopted by the UNECE. If the Commission were to do so, it would infringe its duty under Article 113(2)(a) of the Single CMO Regulation to take account, when adopting such standards, of factors other than the standards adopted by the UNECE, also referred to in that provision. Therefore, as was also pointed out above, that recital should be understood as meaning that the Commission sought, when adopting marketing standards at EU level, to ensure that they were broadly in line with those adopted by the UNECE, in other words, to ensure that, unless otherwise required, EU marketing standards should have the same scope and the same content as those adopted by the UNECE and should be aligned with them.
That reading of recital 6 to Regulation No 543/2011 is confirmed by an overall comparison between, first, the 2010 edition of UNECE Standard FFV-14 and, secondly, the EU marketing standard for citrus fruit, as laid down by that regulation. Such a comparison reveals that, although the EU marketing standard broadly follows the structure and presentation of UNECE Standard FFV-14 (2010 edition), there are several differences in the detail between the two standards, ranging from simple minor drafting differences to substantive differences, of which the difference between the contested provision and the corresponding provision of UNECE Standard FFV-14 is only one example. In particular, as the Kingdom of Spain itself points out, it should be noted that pomelos, grapefruit and limes are excluded from the scope of the EU marketing standard, as established by Regulation No 543/2011, whereas they are all covered by UNECE Standard FFV-14.
It follows that there is no inconsistency between what is stated in recital 6 to Regulation No 543/2011 and the Commission’s choice to include, in the new EU standard, the contested provision, identical to the earlier corresponding provisions, despite the amendment which had been made in the meantime to the corresponding provision of UNECE Standard FFV-14. The Kingdom of Spain’s argument that the statement of reasons for the contested provision is ‘ambiguous’ cannot, therefore, be accepted.
Furthermore, in the light of the case-law cited in paragraphs 108 and 109 above, the Commission cannot be criticised for infringing the obligation to state reasons on the basis that it failed to set out, in the various recitals to Regulation No 543/2011, the specific reasons why it had decided to include, in the marketing standard relating to citrus fruit, the contested provision, which is different from the corresponding provision of UNECE Standard FFV-14. In view of the numerous differences between the EU marketing standard for citrus fruit, adopted by that regulation, and UNECE Standard FFV-14 (see paragraph 112 above), it is, undoubtedly, excessive to require the Commission to provide a specific justification for each difference.
The conclusion referred to in paragraph 114 above is all the more compelling since the Kingdom of Spain was given the opportunity, as confirmed by the information on which it itself relied (see paragraphs 64 and 65 above), to ascertain the reasons which justified the Commission’s decision not to adopt, at EU level, the amendment of the provision relating to labelling in UNECE Standard FFV-14.
More generally, and taking into account the fact that the contested provision forms part of the EU marketing standard relating to citrus fruit, which is a measure intended for general application, it should be noted that the general situation which led to the adoption of specific marketing standards, including that relating to citrus fruit, and the general objectives which that measure is intended to achieve are evidenced with sufficient clarity by recitals 5 and 6 to Regulation No 543/2011, as required by the case-law cited in paragraph 108 above. It should be noted, in that regard, that the Kingdom of Spain did not put forward any other complaint against that statement of reasons, except for the alleged inconsistency between the wording of recital 6 to that regulation and the content of the contested provision.
The Kingdom of Spain also relies on the judgments of the Court of Justice in
Diversinte and Iberlacta
(Joined Cases
C-260/91 and C-261/91 [1993] ECR I-1885
, paragraphs 11 and 12) and the Court in
Hungary
v
Commission
(Case
T-310/06 [2007] ECR II-4619
, paragraphs 83 and 84), both of which found that the regulations at issue in those cases were vitiated by a failure to state reasons.
However, as the Commission rightly points out, the facts of the cases which gave rise to those two judgments are entirely different from those of the present case, such that no useful lesson can be drawn from them for the present case.
The judgment in
Diversinte and Iberlacta
, cited in paragraph 117 above (paragraphs 11 and 12), was concerned with a provision with retroactive effect for which the case-law requires a specific justification in the statement of reasons for the contested measure, as is clear from paragraph 10 of that judgment. However, in the present case, it is not claimed that the contested provision has retroactive effect.
As regards the judgment in
Hungary
v
Commission
, cited in paragraph 117 above (paragraphs 82 to 88), the Court held in that judgment that certain provisions of the regulation at issue in that case were to be annulled on the ground of failure to state reasons, since that regulation gave no indication of the reasons why the new measures introduced by those provisions should apply immediately. However, that finding by the Court must be placed in its context, set out in paragraphs 66 to 72 of that judgment, from which it is clear that the introduction of the disputed measures had infringed the legitimate expectations of the producers affected by them. It is clear that paragraphs 82 to 88 of the judgment in question set out a ground included only for the sake of completeness, in so far as the Court had already ruled, in paragraph 72 of that judgment, that the provisions at issue in the regulation concerned were to be annulled on the ground of infringement of the producers’ legitimate expectations.
However, in the present case, the Kingdom of Spain did not even claim that the contested provision infringed the legitimate expectations of the citrus fruit producers, the sector operators or any other category of persons concerned.
Having regard to the foregoing considerations, the third plea must be rejected as unfounded.
The fourth plea, alleging infringement of the principle of equal treatment
By its fourth plea, the Kingdom of Spain criticises the Commission for infringing the principle of equal treatment and non-discrimination between producers, laid down in Article 40(2) TFEU. The Kingdom of Spain submits, in essence, that all the producers of the various fruit and vegetables are in a comparable situation in terms of the possibility that their products may be subject to post-harvest treatments. The Kingdom of Spain refers, in that regard, to several examples of substances which are applied post harvest, in particular, to seed fruits (apples and pears), stone fruits, bananas and potatoes.
However, of the 10 specific marketing standards adopted by Regulation No 543/2011, only that relating to citrus fruit imposes, through the contested provision, a labelling requirement for preserving agents and the other chemical substances used in post-harvest treatment. It follows, according to the Kingdom of Spain, that the contested provision is a discriminatory measure which is detrimental to citrus fruit producers, and which is not based on any objective justification. The labelling which was made mandatory by the contested provision conveys to the consumer the message that citrus fruit are the only fruits to be treated with chemical products post harvest. That erroneous impression is detrimental to the marketing and consumption of those fruit and places them in an unfavourable competitive position.
The second subparagraph of Article 40(2) TFEU, relied on by the Kingdom of Spain, provides that the common organisation of markets, established as part of the EU common agricultural policy, must exclude any discrimination between producers or consumers within the Union.
According to the settled case-law, the prohibition of all discrimination in the context of the common agricultural policy set out in that provision is merely a specific expression of the general principle of equal treatment, which requires that comparable situations not be treated differently and different situations not be treated alike unless such treatment is objectively justified (see judgment in Case
C-365/08
Agrana Zucker
[2010] ECR I-4341
, paragraph 42 and the case-law cited). It is clear, thus, from the case-law that, if the examination of the provisions of a measure shows a difference in treatment which is arbitrary, that is a difference which is devoid of adequate justification and not based on objective criteria (judgments of the Court of Justice in Case
106/81
Kind
v
EEC
[1982] ECR 2885
, paragraph 22, and Case
C-370/88
Marshall
[1990] ECR I-4071
, paragraph 24; judgment of the Court in Case
T-52/99
T. Port
v
Commission
[2001] ECR II-981
, paragraph 82), that measure must be annulled, for infringement of the prohibition on discrimination referred to in the second subparagraph of Article 40(2) TFEU, unless the difference in treatment is objectively justified (judgment in Case
C-280/93
Germany
v
Council
[1994] ECR I-4973
, paragraph 67, and
Spain
v
Commission
, cited in paragraph 80 above, paragraph 106).
A breach of the principle of equal treatment as a result of different treatment presumes that the situations concerned are comparable, having regard to all the elements which characterise them. The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject-matter and purpose of the European Union act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (judgment in Case
C-127/07
Arcelor Atlantique et Lorraine and Others
[2008] ECR I-9895
, paragraphs 25 and 26 and the case-law cited). For the EU legislature to be accused of breaching the principle of equal treatment, it must have treated comparable situations differently, thereby subjecting some persons to disadvantages as opposed to others (see judgment in
Arcelor Atlantique et Lorraine and Others
, cited above, paragraph 39 and the case-law cited).
It is clear from a reading of Regulation No 543/2011 and, furthermore, it is not disputed by the Commission, that, as the Kingdom of Spain points out, none of the other standards established by that regulation contains a provision similar to the contested provision. It cannot be denied that the labelling requirement imposed by the contested provision only with regard to the citrus fruit referred to in that provision entails a disadvantage for the producers of those fruit, as compared with the producers of other fruit or vegetables.
None the less, in the light of the case-law cited in paragraph 126 above, in order to determine whether that fact constitutes an infringement of the principle of equal treatment and non-discrimination, it is necessary to identify the subject-matter and purpose of the contested provision and to examine whether the situations of the producers of the citrus fruit referred to in the contested provision and that of the producers of other fruit or vegetables are comparable, in the light of that factor.
There is no doubt that the objective pursued by the contested provision is to ensure that consumers are better informed about the citrus fruit covered by it, by drawing their attention, where relevant, to the fact that the fruit which they have bought and are about to eat has been treated with preserving agents or other chemical substances post harvest.
In that regard, it is a matter of common knowledge deriving from common experience that, in terms of any treatment of their external surface using a preserving agent or any other chemical, fruit and vegetables can be divided into two broad categories. The first includes those whose skin or peel is not very thick, and so does not prevent a substance from penetrating into the fruit or vegetable concerned; those fruit and vegetables are, furthermore, often, even exclusively, also consumed with their skins. The second includes those whose peel is sufficiently thick to prevent the penetration within of substances on their surface and which are consumed after peeling, meaning that their peel is discarded rather than consumed.
Since, for fruit and vegetables that fall within the second category, their peel prevents the substances used during treatment of the surface from penetrating within and is not itself consumed, it can logically be concluded, as the Commission also points out, that it is possible to authorise, for those fruit and vegetables, the use, in particular in post-harvest surface treatment, of substances whose use is not authorised for fruit and vegetables in the first category, or to authorise the use, for fruit and vegetables in the second category, of higher doses of the substances authorised for all fruit and vegetables, based on the premise that the residues of the substances used on the fruit and vegetables in the second category will remain on the peel, which will be discarded, and will not be ingested by the consumer.
That consideration is confirmed by a reading of Commission Regulation (EU) No 304/2010 of 9 April 2010 amending Annex II to Regulation (EC) No 396/2005 of the European Parliament and of the Council as regards maximum residue levels for 2-phenylphenol in or on certain products (
OJ 2010 L 94, p. 1
), which concerns the maximum residue levels for OPP. For citrus fruit, that regulation set a maximum residue level ‘valid until 30 September 2012 pending the submission and evaluation of two additional residue trials’ at least 50 times higher than that for other fruits or vegetables.
However, it should also be pointed out that, within the second of the categories referred to in paragraph 131 above, citrus fruit constitute a specific and particular sub-category. Whilst, as a general rule, the peel of citrus fruit is not consumed with the pulp, but is discarded, as is the case with various other fruit (bananas, watermelons, melons), it is common knowledge, as the Commission rightly points out, that their peel has a specific culinary use, for making jams, liqueurs (such as limoncello) or for adding flavour to certain culinary preparations such as biscuits or soups.
Accordingly, whilst it is possible to start from the premise that the peel of a citrus fruit will not be directly consumed with its flesh and thus to authorise, for citrus fruit, treatments which are authorised only for fruit and vegetables falling within the second category referred to in paragraph 131 above, it is also necessary to point out that, unlike in the case of the other products falling within that category, the consumer may wish to use their peel in the manner stated in paragraph 134 above and, thus, to consume it. It is therefore necessary, in the case of citrus fruit, to inform the consumer that the citrus fruit which they have obtained, whilst being entirely suitable for normal consumption, has been subject to a post-harvest treatment which may have an impact on the use of its peel for culinary purposes. It does not appear, and the Kingdom of Spain has not claimed, that a similar requirement exists in the case of other fruit and vegetables whose peel is not consumed.
It follows from this that, as a result of the abovementioned particularities of citrus fruit, their producers are in a different situation from that of producers of other fruit and vegetables, as regards the objective of the information provided to consumers on the substances used during post-harvest treatment. Consequently, the Commission cannot be criticised for infringing the principle of equal treatment and non-discrimination, on the ground that the contested provision covers only citrus fruit and not other fruit and vegetables.
In that regard, the Kingdom of Spain points out that the contested provision is not applicable to all citrus fruit, as pomelos, grapefruit and limes are excluded from its scope (see paragraph 112 above).
However, that fact cannot lead to a different conclusion, in so far as it is not clear from the documents in the file and is not, furthermore, claimed by the Kingdom of Spain that the peel of those three citrus fruit can also be used for the purposes referred to in paragraph 134 above. Moreover, when questioned on the reasons justifying the exclusion of those three citrus fruit from the specific standard for citrus fruit established by Regulation No 543/2011, the parties stated that that exclusion was, in particular, justified by their negligible sales volumes in Europe.
The Kingdom of Spain also points out that other fruits can also be used, like citrus fruit, in culinary preparations or for making jams or liqueurs. However, that argument is irrelevant. What matters in respect of the citrus fruit covered by the contested provision is the fact that such use represents a radical departure from the usual consumption of those fruit: whereas, normally, the peel of those fruit is discarded and is not consumed, that is not the case where they are used for the abovementioned purposes. The Kingdom of Spain gave no examples of another fruit whose peel is normally discarded without being consumed but which is used for culinary purposes.
The Kingdom of Spain’s argument that the labelling made mandatory by the contested provision is liable to give the erroneous impression that only citrus fruit are treated with chemical substances post harvest and, thus, to place the producers of such fruit at a competitive disadvantage as compared with the producers of other fruit (see paragraph 124 above) is also not relevant in the context of an alleged infringement of the principle of equal treatment and non-discrimination.
That argument does not call into question the conclusion that the producers of the citrus fruit referred to in the contested provision are not in a situation comparable to that of the producers of other fruit and vegetables. It seeks to dispute the appropriateness and necessity of the measure concerned and thus aims, in reality, to allege an infringement of the principle of proportionality (which is the subject-matter of the fifth plea) and, more generally, to allege a manifest error of assessment by the Commission. That argument should therefore be examined in the context of the fifth plea, as it is irrelevant in the context of the present plea.
This also applies to many of the arguments put forward, with regard to the fourth plea, by the Kingdom of Spain in its reply. They also seek to demonstrate that the contested provision unfairly places citrus fruit producers at a competitive disadvantage and, more generally, to call into question the appropriateness and necessity of the measure introduced by that provision.
In conclusion, the fourth plea must be rejected as unfounded for the reasons set out above.
The fifth plea, alleging infringement of the principle of proportionality
By its fifth plea, the Kingdom of Spain argues that the labelling requirement imposed by the contested provision does not comply with the requirements of the principle of proportionality. Furthermore, it submits that the Commission’s analysis, which led it to adopt the contested provision, is based on inaccurate databases, which are neither consistent nor capable of justifying the maintenance of the labelling requirement laid down in that provision.
The Kingdom of Spain points out, in that regard, that the Commission successively put forward, during the travaux préparatoires for the adoption of Regulation No 543/2011, two justifications for the adoption of the contested provision: first, it referred to the ’specific system of rules’ relating to OPP and, secondly, it relied, more generally, on compliance with the requirements imposed by EU legislation on food additives.
However, in the Kingdom of Spain’s view, neither of those two justifications is valid. There is no provision in EU law that requires use of the substances at issue to be indicated on a label either for fresh fruit and vegetables in general or for citrus fruit in particular.
The Kingdom of Spain points out, in that regard, that post-harvest treatments of fruit, like other treatments with plant protection products, are strictly regulated under Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (
OJ 1991 L 230, p. 1
) [replaced, since 13 June 2011, by Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (
OJ 2009 L 309, p. 1
)] and under Regulation No 396/2005. That is a specific legislative framework, based on exhaustive toxicological studies, which ensures that those substances are safe for consumers and guarantees strict safety standards, in particular by setting maximum limits applicable to residues.
It is true that Regulation No 396/2005 does not impose any labelling requirement as regards the use of pesticides, but it imposes other obligations in order to ensure that consumers are adequately informed. Accordingly, the Kingdom of Spain takes the view that if the EU legislature had considered it necessary to provide special labelling drawing attention to the use of plant protection products, it would have imposed a corresponding requirement.
There are also other chemical substances used on various fruits at the post-harvest stage. They are additives and are subject to the corresponding legislation, namely Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (
OJ 2000 L 109, p. 29
). However, under Article 6(2)(a) of that directive, fresh fruit and vegetables which have not been peeled, cut or similarly treated are exempt from the requirement to list the ingredients on the labelling.
As regards, in particular, OPP, the Kingdom of Spain points out that, since its incorporation into the scope of Directive 91/414, it no longer forms part of the group of food additives. A maximum residue limit has been set in relation to it (see paragraph 133 above). Consequently, it is no longer possible to impose a labelling requirement with regard to that specific substance. The provisional nature of the maximum residue limit relating to it is not a valid argument for imposing such a requirement, since Regulation No 396/2005 refers to a large number of active substances and does not require special labelling for any of them.
As a preliminary point, it should be noted that, although the present plea, according to its heading in the application, alleges infringement of the principle of proportionality, the arguments put forward under that heading by the Kingdom of Spain seek to demonstrate not only infringement of that principle but, more generally, a manifest error of assessment by the Commission.
Next, it should be pointed that, according to the settled case-law, in accordance with the principle of proportionality, which is one of the general principles of EU law, the acts adopted by EU institutions must not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous; and the disadvantages caused must not be disproportionate to the aims pursued. As regards judicial review of the implementation of that principle, bearing in mind the wide discretion enjoyed, where the common agricultural policy is concerned, by the Community legislature, the Commission in the present case (see paragraph 81 above), the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue (see judgment in
Spain
v
Council
, cited in paragraph 107 above, paragraphs 97 and 98 and the case-law cited). That is acknowledged, furthermore, by the Kingdom of Spain in the application.
However, even where wide discretion is granted to the Commission by the case-law, the exercise of that discretion is not excluded from review by the courts of the Union. It is clear from the settled case-law that, in the context of such a review the courts of the Union must verify that the relevant procedural rules have been complied with, that the facts admitted by the Commission have been accurately stated and that there has been no manifest error of appraisal or misuse of powers. In particular, in order to establish whether the competent institution has committed a manifest error of appraisal, the courts of the Union must determine whether that institution examined, carefully and impartially, all the relevant facts of the individual case, facts which support the conclusions reached (see judgment in Case
C-77/09
Gowan Comércio Internacional e Serviços
[2010] ECR I-3533
, paragraphs 56 and 57 and the case-law cited).
However, in the application, the Kingdom of Spain specifically submits that the Commission’s analysis in the present case is based on ‘inaccurate data’. It is therefore necessary, for the purposes of examining the present plea, to assess, as a first step, whether the basic information on which the Commission based its analysis, is erroneous. In particular, in that context, it is necessary to examine whether the Commission’s understanding of the content of UNECE Standard FFV-14 is correct (see paragraph 89 above). It is also necessary to examine the parties’ arguments relating to any specific requirements resulting from the various provisions adopted with regard to OPP, since the Kingdom of Spain claims, in that regard, that the Commission misunderstood the relevant legislative framework (see paragraph 150 above).
Next, as a second step, it is necessary to examine, where appropriate, whether the contested provision is a measure which is manifestly inappropriate in relation to the objective which the Commission sought to pursue, in which case an infringement of the principle of proportionality would be established.
The content of UNECE Standard FFV-14 (2009 and 2010 editions)
As was pointed out in paragraphs 51 and 52 above, the 2009 and 2010 editions of UNECE Standard FFV-14 state that, respectively, the ‘packages’ of citrus fruit must indicate the ‘post-harvest treatment (optional, based on the national legislation of the importing country)’. As was also pointed out above (see paragraphs 54 and 55 above), the parties disagree on the interpretation of that reference.
In particular, the Kingdom of Spain claims that the Commission wrongly interpreted the standard in question, in so far as the Commission considered that that standard gave the States the option of whether or not to provide labelling concerning the post-harvest treatment of citrus fruit, whereas, in the Kingdom of Spain’s view, that option was intended for operators.
That argument cannot be accepted. It is indeed true that the UNECE standards are publicly accessible, which means that anyone who so wishes, including operators in the citrus fruit sector, may take the requirements of those standards into account and comply with them voluntarily. It is nevertheless the case that, under point VII of the Geneva Protocol, it is for each Government ‘accepting this Protocol’ to undertake to take ‘the necessary steps under its domestic law to adapt its commodity standards’, referring, in that regard, ‘to the individual standards to be prepared’, such as, in the present case, UNECE Standard FFV-14, it being noted that this is not a legally-binding requirement (see paragraph 77 above).
It follows that where, according to such a standard, a measure is optional, it is necessarily an option left to the discretion of the States whose Governments have accepted the Geneva Protocol. In reality, such an option amounts to the absence of a recommendation by the UNECE in relation to a specific measure, the decision as to whether or not to adopt the measure at issue having been left to the discretion of each State in its assessment of the relevant facts.
The Kingdom of Spain also points out that the contested provision goes beyond the power recognised by UNECE Standard FFV-14, in so far as, under Article 113a(2) of the Single CMO Regulation (see paragraph 2 above), it applies at all marketing stages, including the export stage, and does not refer only to imports.
If that assertion is to be understood as meaning that the Kingdom of Spain claims that the content of UNECE Standard FFV-14, by referring to the ‘national legislation of the importing country’, precludes the imposition of such a requirement by the legislation of the exporting country, such an argument cannot succeed.
As is clear from what is set out in paragraphs 13 to 14 above, one of the principal objectives pursued by the UNECE, in particular in the drafting of standards such as the UNECE Standard FFV-14 at issue in the present case, is the promotion of the economic integration of its members. In particular, the harmonisation of marketing standards clearly seeks to avoid the creation of unnecessary barriers to trade, resulting from differences between the marketing standards established by the various States.
However, a provision which makes specific marking obligatory for certain products may constitute such a barrier only if it is imposed by the importing country. If the importing country does not require specific marking for the products concerned, it will clearly not oppose their importation from another country, even if they are marked according to the requirements of the legislation of that latter country (the exporting country).
It is clear from this that, in a case such as that at issue, the marketing standard adopted by the UNECE does not and must not refer to the legislation of the exporting country. Consequently, where UNECE Standard FFV-14 states that the indication of post-harvest treatment of citrus fruit is optional, based on the national legislation of the importing country, such a provision cannot be understood as a recommendation to exporting countries not to require such an indication by means of their national legislation. It means, simply, that the importing country has the option to require such an indication, even if it is not required by the legislation of the country exporting the products.
In other words, the Commission cannot be criticised for having failed to follow, when adopting the contested provision, a recommendation set out in UNECE Standard FFV-14, irrespective of the non-binding nature of such standards. Nor can it be criticised for misinterpreting the content of that standard or, therefore, for committing a manifest error of assessment on that ground.
The provisions relating to OPP
Next, it is necessary to examine the issue of the provisions authorising the use of OPP for the treatment of citrus fruit and, where appropriate, of other fruit and vegetables, to the extent that the parties make differing assertions in that regard. Any misunderstanding, by the Commission, of the scope and the content of the relevant provisions and the obligations arising from them would affect its assessment of the appropriateness of adopting the contested provision and could justify annulment of the latter.
The use of OPP was authorised for the first time under Council Directive 67/427/EEC of 27 June 1967 on the use of certain preservatives for the surface treatment of citrus fruit and on the control measures to be used for the qualitative and quantitative analysis of preservatives in and on citrus fruit (
OJ 1967 148, p. 1
). Article 1(2) of that directive amended Section I of the Annex to Council Directive 64/54/EEC of 5 November 1963 on the approximation of the laws of the Member States concerning the preservatives authorised for use in foodstuffs intended for human consumption, in order to add to it an entry relating, in particular, to OPP. As is clear from Article 1 of the latter directive, its annex included preservatives which the Member States could authorise for the protection of foodstuffs intended for human consumption (foodstuffs). The entry relating to OPP, added by Directive 67/427, provided that it could be used ‘exclusively for surface treatment of citrus fruit’ and, furthermore, stated that the treatment was to be indicated ‘in the retail trade, by some visible indication giving the consumer clear information’.
Directive 91/414 referred, under Article 1(1) thereof, to the authorisation, placing on the market, use and control of plant protection products in commercial form and the placing on the market and control within the Community of active substances intended for a use specified in Article 2(1) of that directive. Under Article 2(1) of that directive, the expression ‘plant protection products’ referred to active substances intended, in particular, to preserve plant products, in so far as such substances or products are not subject to special provisions on preservatives. It is precisely because OPP was, at the time, subject to such specific provisions (namely those in Directive 64/54, as amended by Directive 67/427) that it did not fall within the scope of Directive 91/414.
Directive 64/54 was repealed, from 25 March 1995, under Article 8(1) of European Parliament and Council Directive 95/2/EC of 20 February 1995 on food additives other than colours and sweeteners (
OJ 1995 L 61, p. 1
), which replaced it. Directive 95/2 also included, in its annex, an entry relating to OPP. That specified that it was authorised only for the surface treatment of citrus fruits and set a maximum authorised quantity. However, it did not include a provision similar to that in Directive 64/54, as amended by Directive 67/427, under which that treatment was to be indicated on the labelling. It should, however, be pointed out that, as stated by the Commission, such an obligation was laid down, at the time, in the specific EU standard on citrus fruit, adopted by Commission Regulation (EEC) No 920/89 of 10 April 1989 laying down quality standards for carrots, citrus fruit and dessert apples and pears and amending Commission Regulation No 58 (
OJ 1989 L 97, p. 19
).
The Commission explained in its written submissions that OPP is not used only as a preserving agent for fruit, but also to disinfect warehouses, and that the sector operators had requested its evaluation on the basis of Directive 91/414. The Commission therefore decided to propose its removal from the annex to Directive 95/2 so that OPP could be included on the list of authorised substances contained in Annex I to Directive 91/414.
The Commission’s proposal resulted in the adoption of Directive 2003/114/EC of the European Parliament and of the Council of 22 December 2003 amending Directive 95/2 (
OJ 2004 L 24, p. 58
). Under Article 1(3) and the third paragraph of point B of the annex to that directive, the listing relating to OPP, contained in the annex to Directive 95/2, was deleted. However, a footnote in that part of the annex to Directive 2003/114 stated as follows: ‘The deletion of [OPP] shall enter into force as soon as requirements for the labelling of foodstuffs treated with these substances become applicable by virtue of Community legislation on maximum residue limits for pesticides.’
It should, furthermore, be pointed out that Article 3 of Directive 2003/114 expressly repealed Directive 67/427. However, that repeal manifestly did not concern Article 1(2) of that directive, which amended Directive 64/54 (see paragraph 168 above). That provision had already been repealed, with the rest of Directive 64/54, by Directive 95/2. The repeal laid down in Article 3 of Directive 2003/114 applied to the other provisions of Directive 67/427, relating to the detailed rules for the taking of samples of citrus fruit for the testing of preservatives (see, in particular, Article 2 of and annex to Directive 67/427).
The Commission also points out that the footnote at issue in paragraph 171 above did not appear in its draft directive, but was introduced under an amendment by Parliament, accepted by the Council. According to the Commission, its introduction ‘created a delicate situation since, on the one hand, the condition [introduced by that footnote] could not be met literally in the absence of a legal basis in the legislation on maximum levels of pesticide residues and that, on the other hand, it was necessary to authorise the inclusion of OPP on the list of active substances authorised under Directive [91/414], as the sector operators had already incurred significant costs in the context of the evaluation procedure’. The Commission explains that, ‘[u]nder those circumstances, [it] decided in 2009 to adopt a pragmatic position and to take the view that the legislature’s intention to maintain the requirement to refer to the use of OPP … was met by the existence of the marketing standard on citrus fruit, which applied that requirement to all post-harvest treatments’.
Indeed, under Commission Directive 2009/160/EU of 17 December 2009 amending Council Directive 91/414 to include 2-phenylphenol as active substance (
OJ 2009 L 338, p. 83
), OPP was included on the list of plant protection products covered by Directive 91/414.
The Kingdom of Spain argues that it would have been possible to define the labelling conditions for OPP in the context of legislation relating to pesticides. That opportunity was not seized, and it is no longer possible to justify the contested provision by relying on the footnote which appears in the annex to Directive 2003/114.
However, it should be pointed out that, in the context of the present case, the Court is required to rule neither on whether the condition laid down in Directive 2003/114 for the deletion of OPP from the list of food additives was met nor on whether Directive 2009/160, which included it on the list of plant protection products covered by Directive 91/414, is unlawful.
What matters, for the purposes of the present case, is the fact that the Commission considered that the footnote which appears in the annex to Directive 2003/114 demonstrated the EU legislature’s intention to lay down a labelling requirement for foodstuffs treated using OPP and that it took that element into account when adopting the contested provision. Where, in his letter referred to in paragraph 64 above, the Director General of the DG for Agriculture and Rural Development pointed out that the repeal of the labelling requirement laid down by the contested provision ‘would raise legitimate objections as regards the correct implementation of the legislation on food additives’, it was clear that he was referring, specifically, to the EU’s intention expressed in the footnote referred to above, which appeared in a text that formed part of EU legislation on food additives.
Those points having been made, it becomes clear that the Commission cannot be criticised for misunderstanding the legislature’s intention in this matter. That intention is clear from the footnote at issue, the wording of which is not at all ambiguous. Therefore, also in that regard, there is nothing to support a finding that the Commission made a manifest error of assessment.
Furthermore, it is not necessary to determine whether, as the Kingdom of Spain appears to argue, the Commission could have removed the labelling requirements laid down in the contested provision without infringing either Directive 2003/114 or another provision of EU law. It is sufficient to point out that the Commission, which has broad discretion in the matter, decided not to remove it.
Compliance with the principle of proportionality
Accordingly, it remains to be considered whether the contested provision complies with the principle of proportionality, that is to say, in view of the case-law cited in paragraph 152 above, whether or not it is manifestly inappropriate in relation to the objective pursued.
The objective pursued by the contested provision is that referred to in paragraph 130 above; it seeks to ensure that consumers are better informed about the citrus fruit at issue, by drawing their attention to the fact that those fruit have been subject to post-harvest treatment with preserving agents or other chemical substances.
It is true that the argument summarised in paragraph 124 above, according to which the mandatory labelling of citrus fruit places their producers at a competitive disadvantage to the producers of other fruit or vegetables, appears to support the view that the measure introduced by the contested provision is inappropriate in relation to that objective.
However, that argument starts from the premise that consumers are not aware that all fruit and vegetables are subject to treatments by various substances, whether they are classified as preserving agents, food additives, or plant protection products. It must be stated that this premise is erroneous.
It is the Kingdom of Spain itself which relies, in its written pleadings, on a survey published in 2010, according to which, when consumers were asked about a list of potential food-related problems, 31% of the those questioned cite pesticides as posing the greatest risk.
Furthermore, it is well known that, for almost all fruit and vegetables, there are special labels to indicate that they are organic and that they have not been treated with chemical substances. Consumers are therefore, in general, aware of the fact that fruit and vegetables which do not carry such a label are likely to have been subject to such treatment. It cannot, therefore, be accepted that, on noticing the special marking for citrus fruit, consumers will, by contrary inference, conclude that other fruit and vegetables which are not marked in that way have not been treated with chemical substances.
The Kingdom of Spain also submits that since the contested provision also covers citrus fruit intended for export, it places citrus fruit from the European Union at a competitive disadvantage in the markets of third countries under whose legislation there is no requirement for labelling similar to that required by the contested provision. In those markets, citrus fruit from the EU compete with citrus fruit from other countries, whose legislation also does not require such labelling. Consumers in the importing country concerned may, thus, have the false impression that products from third countries must be preferable to those from the EU, since, unlike the latter, they have not been treated with chemical substances post harvest.
In that regard, it should be pointed out that, under Article 38 of the Charter of Fundamental Rights of the European Union, ‘Union policies shall ensure a high level of consumer protection’. However, neither that provision nor Article 169 TFEU (see paragraph 94 above) distinguishes between consumers within and outside the EU. Consequently, where the Commission considers that a measure such as, in the present case, the labelling of citrus fruit relating to any post-harvest treatment is necessary to ensure that consumers are adequately protected, it is not acceptable for it to distinguish between consumers within and outside the EU, by imposing such a requirement with regard to products intended for the first group, but not with regard to those intended for the second group.
Furthermore, a uniform and high level of consumer protection, both within and outside the EU, forms part of the reputation for quality and reliability of products from the EU and contributes towards maintaining, or even strengthening, their position on international markets. That, moreover, was, in essence, the point made by the Commission when it was questioned at the hearing on the reasons which led it not to exclude from the scope of the contested provision citrus fruit intended for export to a country whose legislation does not require marking such as that required by that provision. It should also be pointed out that the Kingdom of Spain failed to put forward any specific argument capable of calling into question the foregoing considerations.
In the event of harm to the health of consumers outside the EU as a result of a lack of marking relating to the post-harvest treatment of citrus fruit originating in the EU, it is likely that the reputation for quality and reliability of products from the EU would be damaged. It follows that the Kingdom of Spain’s argument summarised in paragraph 186 above cannot succeed.
Having regard to all of the foregoing considerations, it must be concluded that the Commission, when adopting the contested provision, cannot be criticised for making a manifest error of assessment or infringing the principle of proportionality. Consequently, the fifth plea must be rejected, and the action as a whole must be dismissed.
Costs
Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Kingdom of Spain has been unsuccessful, it must be ordered to pay the costs, since the Commission has applied for costs.

On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:

1.
Dismisses the action;

2.
Orders the Kingdom of Spain to pay the costs.

Delivered in open court in Luxembourg on 13 November 2014.
[Signatures]
(
*1
)	Language of the case: Spanish.