Opinion of the Advocate General — ECLI:EU:C:2024:262
Date: 2024-03-21
Language of the case: French
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-399/22 – 1 
Case C-399/22 
Request for a preliminary ruling 
Date lodged: 
15 June 2022 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer: 
9 June 2022 
Applicant: 
Confédération paysanne 
Defendants: 
Ministère de l’agriculture et de la souveraineté alimentaire 
Ministère de l’économie, des finances et de la souveraineté 
industrielle et numérique  
  
CONSEIL D’ETAT 
acting 
in a judicial capacity 
[…] 
Decision of 9 June 2022 
Having regard to the following procedure: 
By application, pleading and rejoinder, registered on 2 October 2020, 
12 November and 15 December 2021, respectively, at the Judicial Affairs 
Secretariat of the Conseil d’État, the Confédération paysanne claims that the 
Conseil d’État should: 
1) annul the implied refusal of the Minister for Agriculture and Food and the 
Minister for Economic Affairs, Finance and Recovery to issue an order 
EN 
REQUEST FOR A PRELIMINARY RULING OF 9. 6. 2022 – CASE C-399/22 
 
2  
prohibiting the importation of certain agricultural products originating in Western 
Sahara pursuant to Article 23a of the Customs Code, on the ground that that 
implied refusal is ultra vires; 
2) order the Minister for Economic Affairs, Finance and Recovery and the 
Minister for Agriculture and Food to issue, pursuant to Article 23a of the Customs 
Code, within two months from the date of the prospective decision, an order 
prohibiting the importation of cherry tomatoes and melons originating in Western 
Sahara under conditions that do not comply with EU law; 
3) in the alternative, refer to the Court of Justice of the European Union the 
questions, in the first place, whether, in the light of the separate and distinct status 
of Western Sahara, EU law, and in particular Regulations No 1308/2013, 
No 543/2011 and No 1169/2011, must be interpreted as requiring, in accordance 
with the obligation to indicate the origin of fresh fruit and vegetables on packages 
and packaging, instead of Morocco, a reference to Western Sahara, in the second 
place, whether the approval granted in that respect to the Moroccan authorities 
allows them to carry out compliance checks on produce originating in that 
territory and, in the last place, whether Council Decision (EU) 2019/217 of 
28 January 2019 on the conclusion of the agreement in the form of an Exchange 
of Letters between the European Union and the Kingdom of Morocco on the 
amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement 
establishing an association between the European Communities and their Member 
States, of the one part, and the Kingdom of Morocco, of the other part, derogates 
from the rules for determining non-preferential origin, as contained in the Union 
Customs Code and, if so, whether that decision complies with primary EU law. 
[…] 
The Confédération paysanne claims that: 
- the contested decision adversely affects it; 
- the competent ministers cannot legally refrain from exercising their powers 
under Article 23a of the Customs Code; 
- the contested decision, in so far as it refuses to refer, with regard to the 
origin of the food in question, to internationally recognised borders, both in terms 
of the provision of food information to consumers, in particular the labelling of 
fruit and vegetables, and the compliance checks and certificates of conformity for 
tomatoes and melons originating in Western Sahara, infringes Article 74 of 
Regulation No 1308/2013, Articles 3(1) and (2), 5(1) and 8 of Regulation 
No 543/2011, Regulation No 1169/2011, Article 60 of the Union Customs Code, 
Article 31 of Delegated Regulation 2015/2446 of 28 July 2015 and the position 
adopted by the European Commission; 
- it infringes Article 9[(1)](i), Article 26(2)(a) and Article 7(1)(a) of 
Regulation No 1169/2011, as interpreted in the light of the judgment of the Court 
CONFÉDÉRATION PAYSANNE 
 
3 
of Justice of the European Union in Case C-104/16 concerning the indication of 
the territory of provenance of a food, when in fact ‘national food’ for the purpose 
of Article 23a of the Customs Code falls within the scope of that regulation, the 
produce concerned is harvested in Western Sahara and the indication ‘Origin: 
Morocco’ is therefore incorrect; 
- […] 
By statements of defence, registered on 12 November 2021 and 15 February 2022, 
the Minister for Economic Affairs, Finance and Recovery contends that the 
application should be dismissed. He submits, as his principal argument, that the 
application is inadmissible, since the contested implied decision does not 
constitute an act capable of being the subject of an action on grounds of ultra 
vires, and, in the alternative, that the pleas in law raised are unfounded. 
By statement of defence registered on 15 November 2021, the Minster for 
Agriculture and Food contends that the application should be dismissed, agreeing 
with the observations made by the Minister for Economic Affairs, Finance and 
Recovery. 
[…] [Procedural considerations at national level] 
Having regard to the other documents in the file; 
Having regard to: 
- […] 
- the Treaty on European Union; 
- the Treaty on the Functioning of the European Union, in particular 
Article 267 thereof; 
- the Euro-Mediterranean Agreement of 26 February 1996 establishing an 
association between the European Communities and their Member States, of the 
one part, and the Kingdom of Morocco, of the other part; 
- Council Decision (EU) 2019/217 of 28 January 2019 on the conclusion of 
the agreement in the form of an Exchange of Letters between the European Union 
and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-
Mediterranean Agreement establishing an association between the European 
Communities and their Member States, of the one part, and the Kingdom of 
Morocco, of the other part; 
- Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 
laying down detailed rules for the application of Council Regulation (EC) 
No 1234/2007 in respect of the fruit and vegetables and processed fruit and 
vegetables sectors; 
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- Regulation (EU) No 116/2011 of the European Parliament and of the 
Council of 25 October 2011 on the provision of food information to consumers; 
- Regulation (EU) No 952/2013 of the European Parliament and of the 
Council of 9 October 2013 laying down the Union Customs Code; 
- Regulation (EU) No 1308/2013 of the European Parliament and of the 
Council of 17 December 2013 establishing a common organisation of the markets 
in agricultural products, which replaced Regulation (EC) No 1234/2007; 
- Commission Delegated Regulation (EU) No 2015/2446 of 28 July 2015; 
- Commission Implementing Regulation (EU) No 2017/892 of 13 March 2017 
laying down rules for the application of Regulation (EU) No 1308/2013 of the 
European Parliament and of the Council with regard to the fruit and vegetables 
and processed fruit and vegetables sectors; 
- […] 
- the Customs Code; 
- […] 
[…] 
Whereas: 
1 The Confédération paysanne requested that the Minister for Economic Affairs, 
Finance and Recovery issues, pursuant to Article 23a of the Customs Code, an 
order prohibiting the importation of cherry tomatoes and Charentais melons 
harvested in the territory of Western Sahara, on the ground that this territory does 
not belong to the Kingdom of Morocco and that, consequently, the labelling 
indicating that the origin of those goods is Morocco infringes the provisions of EU 
law relating to the provision of information to consumers on the origin of fruit and 
vegetables offered for sale. It requests the annulment, on grounds of ultra vires, of 
the implied refusal by those two ministers of its application. 
2 Under Article 23a of the Customs Code: ‘Subject to the application of 
international agreements, the importation of food, materials and products of all 
types and of any origin, that do not meet the legislative or regulatory 
requirements laid down in terms of the marketing or sale of national food, 
materials or similar products, may be prohibited or regulated by joint decrees 
issued by the Minister for Economic Affairs and Finance, the Minister responsible 
for resources and the Minister for Agriculture responsible for combatting fraud.’ 
The plea of inadmissibility put forward by the Minister for Economic Affairs, 
Finance and Recovery: 
3 […]. [Consideration of national law not relevant to the action] 
CONFÉDÉRATION PAYSANNE 
 
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The legality of the refusal by the Minister for Economic Affairs, Finance and 
Recovery and the Minister for Agriculture and Food to prohibit the importation of 
fruit and vegetables originating in Western Sahara: 
4 […] 
5 […] [Considerations of national law not relevant to the action] 
6 [T]he Confédération paysanne claims that the contested decision infringes 
Articles 74 and 76 of [Regulation No 1308/2013], Articles 3(1), 3(2), 5(1) and 8 
of [Regulation No 543/2011], Article 26 of [Regulation No 1169/2011], Article 60 
of the Union Customs Code, Article 31 of [Delegated Regulation No 2015/2446] 
and the position adopted by the Commission, in so far as it refuses to refer, with 
regard to the origin of the food in question, to internationally recognised borders, 
both in terms of the provision of food information to consumers, in particular the 
labelling of fruit and vegetables, and the compliance checks and certificates of 
conformity for tomatoes and melons originating in Western Sahara. It claims, in 
addition, that the contested decision infringes Article 9(1), Article 26(2)(a) and 
Article 7(1)(a) of Regulation No 1169/2011, as interpreted in the light of the 
judgment of the Court of Justice of the European Union in Case C-104/16 
concerning the indication of the territory of provenance of a food, when in fact 
‘national food’ for the purpose of Article 23a of the Customs Code falls within the 
scope of that regulation, the produce concerned is harvested in Western Sahara 
and the indication ‘Origin: Morocco’ is therefore incorrect. 
7 […]. 
8 Under Article 9 of [Regulation No 1169/2011]: ‘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: … (i) the country of origin or place of 
provenance where provided for in Article 26; …’. In accordance with Article 26 of 
that regulation: ‘… 2. Indication of the country of origin or place of provenance 
shall be mandatory: (a) where failure to indicate this might mislead the consumer 
as to the true country of origin or place of provenance of the food, in particular if 
the information accompanying the food or the label as a whole would otherwise 
imply that the food has a different country of origin or place of provenance; …’. 
Under Article 76 of [Regulation No 1308/2013]: ‘1. In addition, where relevant, 
to the applicable marketing standards referred to in Article 75, products of the 
fruit and vegetables sector which are intended to be sold fresh to the consumer 
may only be marketed if they are sound, fair and of marketable quality and if the 
country of origin is indicated. 2. The marketing standards referred to in 
paragraph 1, as well as any marketing standard applicable to the fruit and 
vegetables sector laid down in accordance with this subsection, shall apply at all 
marketing stages including import …. 3. The holder of products of the fruit and 
vegetables sector covered by marketing standards shall not display such products, 
offer them for sale or deliver or market them in any manner within the Union 
other than in conformity with those standards and shall be responsible for 
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ensuring such conformity. …’. Commission Implementing Regulation 
No 543/2011, which provides for a general marketing standard for all fruit and 
vegetables, including melon, and lays down a specific standard for tomatoes, 
includes in the mandatory information to be in included on packaging, invoices 
and accompanying documents at the retail sale stage, on the one hand, the 
identification of the name and address of the packer and dispatcher and, on the 
other, the full name of the country of origin of the produce and, ‘optionally’, in 
respect of tomatoes, the ‘district where grown’. Article 134 of [Regulation 
No 952/2013] provides: ‘1. Goods brought into the customs territory of the Union 
shall, from the time of their entry, be subject to customs supervision and may be 
subject to customs controls. Where applicable, they shall be subject to such 
prohibitions and restrictions as are justified on grounds of, inter alia, public 
morality, public policy or public security, the protection of the health and life of 
humans, animals or plants, the protection of the environment, the protection of 
national treasures possessing artistic, historic or archaeological value and the 
protection of industrial or commercial property, including controls on drug 
precursors, goods infringing certain intellectual property rights and cash, as well 
as to the implementation of fishery conservation and management measures and 
of commercial policy measures. They shall remain under such supervision for as 
long as is necessary to determine their customs status and shall not be removed 
therefrom without the permission of the customs authorities. Without prejudice to 
Article 254, Union goods shall not be subject to customs supervision once their 
customs status is established. Non-Union goods shall remain under customs 
supervision until their customs status is changed, or they are taken out of the 
customs territory of the Union or destroyed’. 
9 It follows from all those provisions that the requirement that the country or 
territory of origin must be indicated, the purpose of which is to provide 
information to the consumer and thus constitutes an element of a marketing 
standard, must, in principle, be met upon importation. However, none of the 
regulations expressly confer upon the Member States the power to adopt 
measures, whether general or individual, to prohibit the importation of produce 
which does not comply with such a requirement whereas such a measure, in 
particular where there is a significant lack of awareness of importation conditions 
making it difficult to carry out the numerous downstream checks once the produce 
has been introduced into the territory of the EU, could justify, at national level, the 
adoption of a prohibition on fruit and vegetables from a specific country. 
Accordingly, the response to the pleas raised by the Confédération paysanne in its 
application depends, in the first place, on whether the provisions of Regulation 
No 1169/2011, Regulation No 1308/2013, Regulation No 543/2011 and 
Regulation No 952/2013 must be interpreted as authorising a Member State to 
adopt a national measure prohibiting the importation of fruit and vegetables 
originating from a specific country that infringe Article 26 of Regulation 
No 1169/2011 and Article 76 of Regulation No 1308/2013 for failing to indicate 
the country or territory from which they actually originate, in particular where that 
failure is significant and it is difficult to verify the origin once the produce enters 
the EU. 
CONFÉDÉRATION PAYSANNE 
 
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10 In addition, ruling on the question whether the Association Agreement between 
Morocco and the European Union, and various subordinate agreements, apply to 
Western Sahara, the Court of Justice, by judgments of 21 December 2016, 
Council v Front Polisario (C-104/16 P) and of 27 February 2018, Western Sahara 
Campaign UK (C-266/16), held on the basis of the principle of self-determination 
and the principle of the relative effect of treaties that Western Sahara could not be 
considered as forming part of Morocco for the purpose of those rules. However, 
following those judgments, the European Union and the Kingdom of Morocco 
concluded an agreement in the form of an Exchange of Letters, approved by 
Council Decision of 28 January 2019, amending Protocols 1 and 4 to the Euro-
Mediterranean Agreement relating to the regime applicable to the importation, 
into the European Union, of agricultural products originating in Morocco and to 
the definition of the concept of ‘products originating’, to extend to products 
originating in Western Sahara the benefits of the tariff preferences granted to 
products originating in Morocco and exported into the EU. Although that 
agreement was annulled by the General Court by judgment of 29 September 2021 
in Case T-279/19, the effects of that agreement were maintained in order preserve 
the European Union’s external action and the legal certainty of the commitments 
to which it has consented, in particular until the delivery of the judgment of the 
Court of Justice ruling on the appeal brought by the Commission against the 
judgment of the General Court. In those circumstances, if the question set out in 
paragraph 9 above is answered in the affirmative, the response to the pleas raised 
by the Confédération paysanne depends, in the second place, on whether that 
agreement in the form of an Exchange of Letters must be interpreted as meaning 
that, for the purpose of applying Articles 9 and 26 of Regulation (EU) 
No 1669/2011 and Article 76 of Regulation (EU) No 1308/2011, on the one hand, 
fruit and vegetables harvested in Western Sahara have Morocco as the country of 
origin and, on the other, the Moroccan authorities have the power to issue the 
certificates of conformity provided for by Regulation No 543/2011 to fruit and 
vegetables harvested in Western Sahara. 
11 If the question set out in paragraph 10 is answered in the affirmative, the response 
to the pleas raised in the application depends, in the third place, on whether the 
Council Decision of 28 January 2019 approving the agreement in the form of an 
Exchange of Letters complies with Articles 3(5) and 21 TEU and the customary 
international law principle of self-determination set out, in particular, in Article 1 
of the United Nations Charter. 
12 Lastly, the response to the pleas raised in the application depends, in the fourth 
place, on whether, in the light of the Court’s analysis of the situation in that 
territory in its judgments of 21 December 2016, Council v Front Polisario 
(C-104/16 P) and of 27 February 2018, Western Sahara Campaign UK (C-266/16) 
and the answers to the previous questions, Articles 9 and 26 of Regulation (EU) 
No 1669/2011 and Article 76 of Regulation (EU) No 1308/2011 must be 
interpreted as meaning that, at the stages of importation and sale to the consumer, 
the packaging of fruit and vegetables harvested in Western Sahara cannot indicate 
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Morocco as the country of origin but must indicate the territory of Western 
Sahara. 
13 Those questions, which are decisive to the outcome of the proceedings pending 
before the Conseil d’État, […] present a serious difficulty. It is therefore necessary 
to refer the questions to the Court of Justice of the European Union for a 
preliminary ruling under Article 267 TFEU and, until the Court has given a ruling 
in that regard, to stay the proceedings in respect of the application brought by the 
Confédération paysanne. 
D E C I D E S: 
Article 1: The proceedings on the application by the Confédération paysanne are 
stayed pending a ruling from the Court of Justice of the European Union on the 
following questions: 
1. Must the provisions of Regulation No 1169/2011, Regulation 
No 1308/2013, Regulation No 543/2011 and Regulation No 952/2013 
be interpreted as authorising a Member State to adopt a national 
measure prohibiting the importation, from a specific country, of fruit 
and vegetables that infringe Article 26 of Regulation No 1169/2011 
and Article 76 of Regulation No 1308/2013 for failing to indicate the 
country or territory from which they actually originate, in particular 
where that failure is significant and it is difficult to verify the origin 
once the produce enters the EU? 
2. If the first question is answered in the affirmative, must the agreement 
in the form of an Exchange of Letters, approved by the Council 
Decision of 28 January 2019, amending Protocols 1 and 4 to the Euro-
Mediterranean Agreement of 26 February 1996 establishing an 
association between the European Union and its Member States, and 
Morocco, be interpreted as meaning that, for the purpose of applying 
Articles 9 and 26 of Regulation (EU) No 1669/2011 and Article 76 of 
Regulation (EU) No 1308/2011, on the one hand, fruit and vegetables 
harvested in Western Sahara have Morocco as the country of origin 
and, on the other, the Moroccan authorities have the power to issue the 
certificates of conformity provided for by Regulation No 543/2011 to 
fruit and vegetables harvested in Western Sahara? 
3. If the second question is answered in the affirmative, does the Council 
Decision of 28 January 2019 approving the agreement in the form of 
an Exchange of Letters comply with Articles 3(5) and 21 TEU and the 
customary international law principle of self-determination set out, in 
particular, in Article 1 of the United Nations Charter? 
4. Must Articles 9 and 26 of Regulation (EU) No 1669/2011 and 
Article 76 of Regulation (EU) No 1308/2011 be interpreted as meaning 
that, at the stages of importation and sale to the consumer, the 
CONFÉDÉRATION PAYSANNE 
 
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packaging of fruit and vegetables harvested in Western Sahara cannot 
indicate Morocco as the country of origin but must indicate the 
territory of Western Sahara? 
[…] [Procedural requirements]