Opinion of the Advocate General — ECLI:EU:C:2024:704
Date: 2024-09-05
Language of the case: French
Procedure: Reference for a preliminary ruling
Origin: France

Summary  C-438/23 – 1 
Case C-438/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
13 July 2023 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer: 
12 July 2023 
Applicants: 
Association Protéines France 
Union végétarienne européenne 
Association végétarienne de France 
Beyond Meat Inc. 
Defendant: 
Ministre de l’Économie, des Finances et de la Souveraineté 
industrielle et numérique 
  
Subject matter and circumstances of the dispute 
1 Three separate applications for annulment have been lodged with the Conseil 
d’État (Council of State, France) by (i) Association Protéines France, (ii) Union 
végétarienne européenne and Association végétarienne de France, and (iii) the 
company Beyond Meat. A number of companies active on the vegetable protein-
based foods market have intervened in support of the application of Association 
Protéines France, including the company Beyond Meat. 
2 The applicant companies ask the Council of State to annul as ultra vires décret no 
2022-947 du 29 juin 2022 relatif à l’utilisation de certaines dénominations 
employées pour désigner des denrées comportant des protéines végétales (Decree 
No 2022-947 of 29 June 2022 on the use of certain names to designate foods 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-438/23 
 
2  
containing vegetable proteins; ‘Decree No 2022-947’). That decree applies Article 
L. 412-10 of the code de la consummation (Consumer Code), resulting from 
Article 5 of the loi du 10 juin 2020 relative à la transparence de l’information sur 
les produits agricoles et alimentaires (Law of 10 June 2020 on the transparency of 
information on agricultural and food products; ‘the Law of 10 June 2020’). 
3 The Council of State has decided to join the three applications. 
Legal framework 
A. Relevant European Union law 
Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 
25 October 2011 on the provision of food information to consumers 
4 Under Article 38 of Regulation No 1169/2011: 
‘1. As regards the matters specifically harmonised by this Regulation, Member 
States may not adopt nor maintain national measures unless authorised by Union 
law. Those national measures shall not give rise to obstacles to free movement of 
goods, including discrimination as regards foods from other Member States. 
2. Without prejudice to Article 39, Member States may adopt national measures 
concerning matters not specifically harmonised by this Regulation provided that 
they do not prohibit, impede or restrict the free movement of goods that are in 
conformity with this Regulation.’ 
5 Under Article 1(1) (Subject matter and scope) of Regulation No 1169/2011: 
‘1. This Regulation provides the basis for the assurance of a high level of 
consumer protection in relation to food information, taking into account the 
differences in the perception of consumers and their information needs whilst 
ensuring the smooth functioning of the internal market.’ 
6 Under Article 3(1) (General objectives) of that regulation: 
‘1. The provision of food information shall pursue a high level of protection of 
consumers’ health and interests by providing a basis for final consumers to make 
informed choices and to make safe use of food, with particular regard to health, 
economic, environmental, social and ethical considerations.’ 
7 Under Article 7 (Fair information practices) of that regulation: 
‘1. Food information shall not be misleading, particularly: 
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(a) as to the characteristics of the food and, in particular, as to its nature, identity, 
properties, composition, quantity, durability, country of origin or place of 
provenance, method of manufacture or production; 
… 
(d) by suggesting, by means of the appearance, the description or pictorial 
representations, the presence of a particular food or an ingredient, while in 
reality a component naturally present or an ingredient normally used in that food 
has been substituted with a different component or a different ingredient. 
2. Food information shall be accurate, clear and easy to understand for the 
consumer. 
… 
4. Paragraphs 1, 2 and 3 shall also apply to: 
(a) advertising; 
(b) the presentation of foods, in particular their shape, appearance or packaging, 
the packaging materials used, the way in which they are arranged and the setting 
in which they are displayed.’ 
8 According to Article 9 of that regulation (List of mandatory particulars): 
‘1. In accordance with Articles 10 to 35 and subject to the exceptions contained in 
this Chapter, indication of the following particulars shall be mandatory: 
(a) the name of the food: 
…’ 
9 Under Article 17(1) and (5) (Name of the food) of that regulation: 
‘1. The name of the food shall be its legal name. In the absence of such a name, 
the name of the food shall be its customary name, or, if there is no customary 
name or the customary name is not used, a descriptive name of the food shall be 
provided. 
… 
5. Specific provisions on the name of the food and particulars that shall 
accompany it are laid down in Annex VI.’ 
10 Under point 4 of Part A (Mandatory particulars accompanying the name of the 
food) of Annex VI (Name of the food and specific accompanying particulars) to 
that regulation: 
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‘4. In the case of foods in which a component or ingredient that consumers expect 
to be normally used or naturally present has been substituted with a different 
component or ingredient, the labelling shall bear – in addition to the list of 
ingredients – a clear indication of the component or the ingredient that has been 
used for the partial or whole substitution: 
(a) in close proximity to the name of the product; and 
(b) using a font size which has an x-height of at least 75% of the x-height of the 
name of the product and which is not smaller than the minimum font size required 
in Article 13(2) of this Regulation.’ 
Relevant judgments of the Court of Justice 
11 In the judgment of 1 October 2020, Groupe Lactalis (C-485/18, EU:C:2020:763), 
the Court of Justice ruled that no provision of Regulation No 1169/2011 listed the 
‘matters specifically harmonised’ referred to in Article 38(1) of that regulation 
and that, in the light of that expression, the identification of those matters must be 
carried out in strict conformity with the wording of that regulation (paragraph 25). 
12 In the judgment of 1 December 2022, LSI – Germany (C-595/21, 
EU:C:2022:949), the Court ruled that the provisions of point 4 of Part A of 
Annex VI to Regulation No 1169/2011 were intended, in essence, to supplement 
those of Article 7 of that regulation by means of special labelling requirements, in 
order to protect consumers from being defrauded by incorrect information 
(paragraph 31). 
Commission notice on questions and answers on the application of Regulation 
(EU) No 1169/2011 of the European Parliament and of the Council on the 
provision of food information to consumers (2018/C 196/01) 
B. Provisions of national law relied on 
13 Under Article L. 412-10 of the Consumer Code (inserted by Article 5 of the Law 
of 10 June 2020): 
‘The names used to designate foods of animal origin cannot be used to describe, 
market or promote foods containing vegetable proteins. A decree shall determine 
the proportion of vegetable proteins beyond which such names cannot be used.’ 
14 Under Article 1 of Decree No 2022-947: 
‘[This decree shall apply] to foods manufactured in the national territory 
containing vegetable proteins’. 
15 Under Article 2(3) and (4) of that decree: 
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‘It shall be prohibited to use, in order to designate a processed product containing 
vegetable proteins: 
… 
(3) A name using terminology specific to butchery, charcuterie or fish products; 
(4) A name of a food of animal origin as used commercially.’ 
16 Under Article 3 of that decree: 
‘By way of derogation from the provisions of Article 2, the name of a food of 
animal origin may be used: 
(1) For foods of animal origin containing vegetable proteins in a set proportion 
where the presence of such proteins is laid down by regulation or mentioned in 
the list annexed to this decree; 
…’ 
17 Under Article 5 of that decree: 
‘Products legally manufactured or marketed in another Member State of the 
European Union or in Turkey, or legally manufactured in another State which is a 
party to the Agreement on the European Economic Area, are not subject to the 
requirements of this decree.’ 
18 Article 7 of the decree provides for the administrative penalties incurred for any 
non-compliance with the rules laid down therein. 
Arguments of the parties 
A. Main arguments of the applicants (and interveners) 
19 The applicants (and interveners) maintain that the contested decree is unlawful 
and rely on a number of pleas in law in that regard. They claim in particular that 
the contested decree: 
– was adopted following an unlawful procedure, because it was not properly 
notified to the European Commission in accordance with the specific 
notification procedure laid down in Article 45 of Regulation No 1169/2011; 
– infringes the clear labelling requirement laid down in Regulation 
No 1169/2011, the objective, of constitutional status, of intelligibility and 
accessibility of the measure, and the principle that offences and penalties must 
have a proper legal basis; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-438/23 
 
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– is unlawful because Article L. 412-10 of the Consumer Code, which the 
contested decree applies, establishes a general prohibition contrary to 
Article 5(5) of Directive 2005/29/EC of 11 May 2005 concerning unfair 
business-to-consumer commercial practices in the internal market; 
– constitutes a misuse of powers, since it was allegedly adopted in order to 
protect consumers, on the basis in particular of Article 38 of Regulation 
No 1169/2011, whereas it was intended in reality to protect the interests of 
meat producers, under Regulation No 1169/2011. 
20 They also plead infringement of the provisions on the free movement of goods 
and of Article 39 of Regulation No 1169/2011, since the contested decree requires 
vegetable protein-based products manufactured and marketed in France to be 
provided with additional mandatory particulars concerning the indication of the 
country of origin without any justification and increases the administrative burden 
on the same products manufactured elsewhere in the European Union, but 
marketed in France. They submit that it therefore constitutes a measure having 
equivalent effect to a quantitative restriction on imports within the meaning of 
Article 34 TFEU or a measure having equivalent effect to a quantitative restriction 
on exports within the meaning of Article 35 TFEU. Moreover, they maintain that 
the regulatory authority has not established that such a measure having equivalent 
effect to a quantitative restriction is proportionate to the objective pursued of 
clarifying the information provided to consumers and that there were no other 
more appropriate means of fulfilling that objective. 
21 More fundamentally, the applicants submit, in the first place, that the contested 
decree, by prohibiting the use of the names of foods of animal origin to designate 
vegetable protein-based foods, infringes Article 38(1) of Regulation 
No 1169/2011, since it deals with a matter specifically harmonised by Articles 7 
and 17 of that regulation in conjunction with point 4 of Part A of Annex VI 
thereto. 
22 In the second place, the applicants submit, in the alternative, that the contested 
decree infringes Articles 9 and 17 of Regulation No 1169/2011, because, in the 
absence of a legal name prescribed by national or European provisions, producers 
of vegetable protein-based foods are prohibited from designating their products by 
their customary name, whether it be a name whose use appeared prior to the 
publication of the decree or appears subsequently, or a descriptive name. 
23 In support of that plea, the applicants, finding that no legal name for vegetable 
protein-based foods is provided for by national law or EU law, claim that the 
producers and distributors of such foods are thereby prevented from using names 
authorised by Regulation No 1169/2011 for presenting and marketing their 
products and note that the Commission had itself pointed out, in its observations 
in response to the prior notification of the draft decree drawn up on 1 October 
2021 in the context of the procedure laid down in Article 5 of Directive (EU) 
2015/1535 of the European Parliament and of the Council of 9 September 2015 
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laying down a procedure for the provision of information in the field of technical 
regulations and of rules on Information Society services, and in connection with 
Regulation No 1169/2011, that some of the terms whose use is prohibited by the 
draft decree had been widely used in recent years on the EU market to describe 
vegetable-based products and that consumers had familiarised themselves with 
those types of products and those names. 
B. Ministre de l’Économie, des Finances et de la Souveraineté industrielle 
et numérique (Minister for Economic Affairs, Finance, and Industrial and 
Digital Sovereignty) 
The Minister for Economic Affairs, Finance, and Industrial and Digital 
Sovereignty contends that the applications should be dismissed. He maintains that 
the pleas in law relied on by the applicants and interveners are unfounded. 
Assessment of the Council of State 
24 The Council of State rejects the pleas alleging irregular notification to the 
European Commission of the contested decree, finding that it was properly 
notified. 
25 The Council of State rejects the pleas alleging infringement of the clarity 
requirement, the objective, of constitutional status, of intelligibility and 
accessibility of the measure and the principle that offences and penalties must 
have a proper legal basis, finding that the provisions of the contested decree in 
question are sufficiently clear and intelligible. 
26 As regards the alleged infringement of the provisions on the free movement of 
goods, the Council of State considers that, since the contested decree applies only 
to products manufactured in the national territory, its purpose or effect cannot be 
to obstruct the importation of goods to France from another Member State. 
Moreover, in the light of the material in the file, the contested decree does not 
have the purpose or effect of restricting exports of French products abroad. The 
Council of State has therefore rejected the plea alleging infringement of Article 34 
or 35 TFEU. 
27 As regards the alleged infringement of Directive 2005/29, the Council of State 
considers that the contested decree does not have the purpose or effect of 
supplementing, for the purposes of Article 5 of that directive, the single list, 
annexed thereto, of those commercial practices which are in all circumstances to 
be regarded as unfair, and that the pleas alleging infringement of that directive 
must therefore be rejected. 
The alleged infringement of Regulation No 1169/2011 
28 The Council of State points out that it follows from the provisions of the contested 
decree that the regulatory authority, with the objective pursued by Regulation 
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No 1169/2011 of protecting consumers against misleading names, intended to 
prohibit the use of names designating products of animal origin to describe, 
market or promote foods containing vegetable proteins. That prohibition applies 
not only where additional indications are provided in close proximity to those 
names in order to inform consumers of the partial or whole substitution of the 
vegetable proteins in the composition of those foods, but also where such 
indications are placed beside those names. In the first case, the contested decree 
imposes limits on the proportion of vegetable proteins below which the name is 
still authorised. 
29 Thus, by way of illustration, the contested decree prohibits the use of the names ‘ 
steak’ or ‘sausage’, without further indication, in order to designate a ‘steak’ or 
‘sausage’ in which the animal proteins are replaced by vegetable proteins, but 
nonetheless authorises those same names where the proportion of vegetable 
proteins remains below a limit determined in the decree. That decree also 
prohibits the use of the names ‘soya steak’ or ‘vegetable sausage’, owing to the 
use of the words ‘steak or ‘sausage’ in designating products of animal origin, in 
order to designate foods in which the animal proteins are replaced by vegetable 
proteins. 
30 The Council of State considers that the pleas in law put forward by the applicants 
raise a number of questions relating to the interpretation of Regulation 
No 1169/2011. More particularly, those pleas raise the issue of whether the 
matters dealt with by the contested decree (namely the prohibition on the use of 
names of foods of animal origin to designate vegetable protein-based foods) have 
been specifically harmonised, within the meaning of Article 38(1) of that 
regulation, by Articles 7 and 17 thereof, in conjunction with point 4 of Part A of 
Annex VI thereto. If the matters dealt with by the contested decree have been 
specifically harmonised, the question arises as to the consequences of such 
harmonisation. However, in the absence of specific harmonisation, the question 
arises whether the contested decree infringes the provisions of Articles 9 and 17 of 
Regulation No 1169/2011. 
31 The Council of State takes the view that those questions are decisive for the 
resolution of the dispute which it has to decide upon and present serious difficulty. 
It therefore considers that it must refer them to the Court of Justice pursuant to 
Article 267 TFEU. 
Questions referred for a preliminary ruling 
32 Consequently, the Council of State refers the following questions to the Court of 
Justice for a preliminary ruling: 
1. Must the provisions of Article 7 of Regulation (EU) No 1169/2011, which 
require consumers to be provided with information that does not mislead them as 
to the identity, nature and properties of foods, be interpreted as meaning that they 
specifically harmonise, within the meaning of and for the application of 
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Article 38(1) of that regulation, the matter of the use of names of products of 
animal origin from the butchery, charcuterie and fish sectors to describe, market 
or promote foods containing vegetable proteins which may mislead the consumer, 
thereby preventing a Member State from acting in that matter by adopting national 
measures regulating or prohibiting the use of such names? 
2. Must the provisions of Article 17 of Regulation (EU) No 1169/2011, which 
provide that the name by which the food is identified is, in the absence of a legal 
name, to be its customary name or a descriptive name, in conjunction with point 4 
of Part A of Annex VI thereto, be interpreted as meaning that they specifically 
harmonise, within the meaning of and for the application of Article 38(1) of that 
regulation, the matter of the content and use of names, other than legal names, 
designating foods of animal origin to describe, market or promote foods 
containing vegetable proteins, including in the case of whole substitution of 
ingredients of vegetable origin for all the ingredients of animal origin constituting 
a food, thereby preventing a Member State from acting in that matter by adopting 
national measures regulating or prohibiting the use of such names? 
3. If Question 1 or Question 2 is answered in the affirmative, does the specific 
harmonisation carried out, within the meaning of and for the application of Article 
38(1) of Regulation (EU) No 1169/2011, by the provisions of Articles 7 and 17 of 
that regulation, in conjunction with point 4 of Part A of Annex VI thereto, 
prevent: 
(a) a Member State from adopting a national measure providing for the 
imposition of administrative penalties in the event of non-compliance with the 
requirements and prohibitions resulting from the provisions of that regulation? 
(b) a Member State from adopting a national measure determining the 
proportions of vegetable proteins below which the use of names, other than legal 
names, designating foods of animal origin to describe, market or promote foods 
containing vegetable proteins would still be authorised? 
4. If Questions 1 and 2 are answered in the negative, do the provisions of 
Articles 9 and 17 of Regulation (EU) No 1169/2011 authorise a Member State: 
(a) to adopt a national measure determining the proportions of vegetable 
proteins below which the use of names, other than legal names, designating foods 
of animal origin is permitted for the purpose of describing, marketing or 
promoting foods containing vegetable proteins? 
(b) to adopt a national measure prohibiting the use of certain customary or 
descriptive names, including where they are accompanied by additional 
indications ensuring that the consumer is provided with information in good faith? 
(c) to adopt the measures referred to in Question 4(a) and (b) only in respect of 
products manufactured in its territory, without, in that case, infringing the 
principle of proportionality of those measures?