Opinion of the Advocate General — ECLI:EU:C:2024:364
Date: 2024-04-25
Language of the case: French
Procedure: Reference for a preliminary ruling
Origin: France

summary, I believe that the correct interpretation of the third paragraph of Annex II to Implementing Regulation 2021/1165 leads to a finding that the concept of ‘landless livestock production’ is narrower and is not equivalent to that of ‘factory farming’. The latter term encompasses the former, so that fertilisers, soil conditioners and nutrients from factory farming, and not only those from landless livestock production, are not permitted in organic production. B. Question 2 60. The referring court submits its second question in the event that the concept of factory farming is distinct from that of landless livestock production (which, in my view, it is). By that question, the referring court seeks to ascertain which criteria must be used to determine whether livestock production is categorised as factory farming, within the meaning of Annex II to Regulation 2021/1165. 61. As I have already pointed out, the EU legislature has not defined what is meant by factory farming for the purposes of the application of Implementing Regulation 2021/1165. Despite this lack of regulation, the Court may provide the referring court with guidance for the interpretation of that term, without this amounting to the assumption for itself of legislative functions. (39) 62. Two informative texts, one drafted by the Commission and the other by an expert group assembled by the Commission, shed some light in that regard. 1. The 1995 Commission Guidelines 63. The Guidelines for the implementation of Regulation No 2092/91, drawn up by the Commission in 1995, (40) explained that the Union legislation ruled out the use of manure from factory farms on account of the intensive husbandry techniques used and the presence of undesirable residues in such manure. (41) 64. The guidelines acknowledged that ‘factory farming’ did not have a standard definition in EU law and that it fell to the Member States to define the scope of that concept. However, the Commission suggested that the concept should cover holdings which combine: – first, an installation which prevents animals from turning through 360 degrees or which keeps them predominantly in the dark or without being able to lie down, including battery rearing systems in the case of poultry or other animals, and broiler units with stocking rates over 25 kilogrammes per square metre; – second, the absence of land used for crop production which would enable the use of manure. 2. The 2021 expert group report 65. In 2021, the Commission set up an expert group to define, inter alia other tasks, the criteria for the restriction of the use of fertilisers from certain origins, which involved specifying the scope of ‘factory farming’. The report published by that group (42) states that it was unable to provide a precise definition but that it was possible to define the scope of that concept through the use of a set of indicators or criteria which point to whether or not there was factory farming. 66. The 2021 EGTOP report mentions the following criteria as pointing to factory farming: animals raised in cages (poultry, rabbits, and so forth); systems where livestock is not allowed to turn freely through 360 degrees; landless rearing systems; animals for fur production; density of animals in the feeding structures (troughs) above a certain limit; animal welfare conditions (housing systems, solid floor, lighting, and so forth); farms entailing long-distance transportation; preventive use of antibiotics; use of feed containing genetically modified organisms. 67. The 2021 EGTOP report lists the following criteria for concluding that a conventional livestock holding does not carry out factory farming: free-range rearing; fulfilment of quality schemes (such as Label Rouge, Compassion in World farming, national quality schemes, and so forth) or farm-direct selling and territorial certification (protected designation of origin, protected geographical indication) schemes; restricted use of antibiotics, similar to that in organic livestock farming; the presence of bedding materials of plant origin to increase the organic content of the soil; limitation of animal density at feeding and watering troughs; compliance with EU legislation on animal welfare; use of locally sourced raw materials. 3. Other texts and focus of the Court’s reply 68. In addition to those two texts, there are EU provisions which refer to ‘factory’ farming. That is the case of Article 4 of Directive 2011/92/EU, (43) which makes the projects listed in Annex I, including (point 17) certain ‘installations for the intensive rearing of poultry or pigs’, subject to an environmental impact assessment. (44) 69. As was explained at the hearing, those provisions of Directive 2011/92 apply to environmental impact procedures but they may be used as (approximate) indicators for determining whether the holdings concerned are factory farms. (45) 70. Based on those reference criteria, the Court may provide the referring court with information, as a guide, concerning which livestock manure is permitted in organic farming on the grounds that it does not come from a factory farm. 71. It is possible to distinguish between three types of manure: (a) that from organic livestock farming; (b) that from conventional extensive or non-factory farming; and (c) that from factory farming. (a) Manure from organic farming 72. Regulation 2018/848 provides for the preferred use in organic agriculture of manure and other fertilisers from organic farming (Annex II, Part I, point 1.9.2(c)). 73. Such manure and fertilisers may not come from factory farming, which cannot be categorised as organic livestock production in accordance with Regulation 2018/848 and its implementing rules. (b) Manure from conventional extensive or non-factory farming 74. As I have already explained, Article 24(1) of Regulation 2018/848 provides, by way of exception, that the Commission may authorise certain products and substances, such as fertilisers, soil conditioners and nutrients, for use in organic production, by means of a system of restrictive lists. 75. Those products and substances are listed in Annex II to Implementing Regulation 2021/1165. The third paragraph of that annex stipulates that the products and substances in question ‘may only be used according to the specifications and restrictions of use of those respective Union and national legislations’. It adds, as an additional restriction for organic farming, that the use of manure originating from factory farming is forbidden. 76. In short, that list authorises the use for the purposes of organic crop production of fertilisers and manures originating from conventional (non-organic) non-factory farming. 77. I am in no doubt that conventional extensive livestock farming comes within the category of conventional non-factory farming, so that manure from the former may be used in accordance with Annex II to Implementing Regulation 2021/1165. 78. In order to determine what is meant by ‘extensive farming’, the 1995 Commission Guidelines, which refer, in relation to beef-cattle, to Article 6(5) of Regulation No 2328/91, (46) and the criteria mentioned by the Commission for other types of livestock, in accordance with a number of EU regulations, is helpful. 79. Identification of the criteria applicable to the concept of conventional non-factory farming is more complicated. That definition is inferred a contrario from the definition of factory farming, bearing in mind that all factory farming is conventional since it does not fulfil the requirements for organic livestock production. (c) Manure from factory farming 80. I repeat that Annex II to Implementing Regulation 2021/1165 prohibits the use of manure from factory farming in organic crop production. For the purpose of interpreting ‘factory farming’, in the light of the 1995 Commission Guidelines and the 2021 EGTOP report, the following qualitative criteria, listed non-exhaustively, are relevant: – The livestock rearing system. Rearing in cages, boxes or raised decks is a feature of factory farming, (47) while free-range rearing indicates, in principle, that livestock production is not factory farming. – The mobility of the livestock. The use of systems which prevent animals from moving through 360 degrees is another feature of factory farming. Naturally, factory farming does not use grazing or transhumance, practices which are associated with extensive farming and organic production. – The availability of land on the livestock holding. If there is no land other than the land in the enclosure on the holding, it will be landless livestock production which is industrial in nature since the feed for the livestock is brought in from outside and the excrement from the livestock cannot be absorbed without risk by the soil. A livestock holding with land must comply with a minimum area per animal in order not to be a factory farm. Naturally, the density varies from one species to another and must guarantee that it is possible to obtain some of the feed for the livestock and use some of their excrement as fertiliser. – The husbandry practices and enclosure conditions on the livestock holding. The availability of water and food troughs per head of livestock and the animal welfare conditions (housing systems, solid floor, lighting, and so forth) are important. The use of slats and grids instead of a solid floor is a sign of factory farming, as is the absence of dry floors with bedding made of plant material so that the animals can rest. (48) – The type of food provided for the livestock. Food from outside the holding and the use of feed is characteristic of factory farming, as is the lack of access to pasture or roughage as food. – Disease prevention systems. The widespread use of preventative treatments using specified veterinary medicines is a sign of factory farming, in which animals are reared in cramped conditions and the risk of epidemics is higher. – The widespread use of substances to stimulate growth or production or of hormones or similar substances to control reproduction or for other purposes. (49) 81. Unlike the French Government’s suggestion, the quantitative criterion of the number of animals, unconnected to the area of the holding, does not appear to me to be sufficient by itself to define factory farming. The number of animals may be indicative of factory farming but not a criterion applicable on a standalone basis and independently of the abovementioned qualitative criteria. 82. Point 17 of Annex I to Directive 2011/92 certainly lays down thresholds per number of animals for the purposes of making intensive poultry and pig farms subject to an environmental impact assessment. However, just because a livestock holding is large in size does not necessarily mean that it is a factory farm, although it will need to have extensive land not to be such a farm. (50) In any event, a large livestock farm is likely to have a high environmental impact and therefore Directive 2011/92 provides that the environmental impact of such farms must be assessed, which is not the case of small farms even if they are factory farms. V. Conclusion 83. In the light of the foregoing considerations, I propose that the Court of Justice reply to the Conseil d’État (Council of State, acting as Supreme Administrative Court, France) as follows: The third paragraph of Annex II to Commission Implementing Regulation (EU) 2021/1165 of 15 July 2021 authorising certain products and substances for use in organic production and establishing their lists is to be interpreted as meaning that: – The concept of ‘landless livestock production’ is narrower and is not equivalent to that of ‘factory farming’, in which it is included. Fertilisers, soil conditioners and nutrients from factory farming and, a fortiori, those from landless livestock production may not be used in organic crop production. – To categorise a livestock holding as a ‘factory farm’, for the purposes of the third paragraph of Annex II to Implementing Regulation 2021/1165, it is possible to use, inter alia, the following qualitative criteria: the livestock rearing system, the degree of movement available to the livestock, the availability of land on the livestock holding and the density of animals on that land, the husbandry practices and enclosure conditions on the livestock holding, the type of food provided for the livestock, the disease prevention systems and the use of chemical substances to stimulate growth or control reproduction. 1 Original language: Spanish. 2 The Spanish version of Implementing Regulation (EU) 2021/1165 uses the term ‘ganadería intensiva’ (intensive production), but most of the language versions refer to ‘ganadería industrial’ (factory farming). I shall use the latter term in my Opinion, since I believe that the two terms have the same meaning in the context of that regulation. 3 Regulation of the European Parliament and of the Council of 30 May 2018 on organic production and labelling of organic products and repealing Council Regulation (EC) No 834/2007 (OJ 2018 L 150, p. 1). 4 Commission Implementing Regulation of 15 July 2021 authorising certain products and substances for use in organic production and establishing their lists (OJ 2021 L 253, p. 13). 5 The proportion of agricultural land in the European Union which is used for organic production increased by more than 50% in the period 2012-2020. In 2020, 9.1% of the agricultural area of the European Union was cultivated organically, a proportion which, in 2021, the European Commission proposed to increase by 25% between then and 2030. In addition, retail sales of organic products doubled in the European Union between 2015 and 2020. See the data in the Market brief on organic farming published by Commission in January 2023, available at: https://agriculture.ec.europa.eu/news/organic-farming-eu-decade-growth-2023-01-18_es?etrans=es#more. 6 Farms practising organic agriculture need organic matter to fertilise the soil. The use of manure was the traditional method of doing this until the spread of chemical fertilisers, but these are not permitted in organic agriculture, in which the main source of fertilisation continues to be manure. 7 Most organic livestock farms are extensive, which means that excrement from the livestock is largely spread over the land and is impossible to collect, with the exception of excrement which accumulates in installations that are used as shelter for the livestock. The availability of organic manure is, therefore, limited and insufficient to create enough fertilisers for organic agriculture. 8 Conventional livestock farming means livestock production which is not organic, that is, which does not meet the conditions laid down by Annex II to Regulation 2018/848. 9 Guide de lecture pour l’application des règlements (CE) No 834/2007 … et (CE) No 889/2008 (Reading guide for the implementation of Regulations No 834/2007 and No 889/2008). Available at: https://www.inao.gouv.fr/content/download/1352/13877/version/18/file/GUIDE-de-LECTURE-RCE-BIO%202020-01.pdf. 10 Commission Regulation of 5 September 2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007 on organic production and labelling of organic products with regard to organic production, labelling and control (OJ 2008 L 250, p. 1). 11 A professional organisation set up to defend the collective interests of organic fertiliser producers. 12 AFAÏA also requested that the INAO be ordered to amend the reading guide within one month of the notification of its decision and to accompany that amendment with publicity measures explaining that the new interpretation relating to the definition of livestock manure was no longer applicable or in force. 13 Council Regulation of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (OJ 2007 L 189, p. 1). 14 Paragraph 3 of the order for reference states that the INAO published on its website a new reading guide, applicable from 1 January 2022, paragraph 192 of which reproduces the earlier interpretation of the concept of ‘factory farming’. 15 It points out that the concept is found in most language versions of Implementing Regulation 2021/1165, notably the English version, but that the Danish, Dutch and Portuguese versions refer instead to the concept of ‘landless livestock production’. 16 It specifies that this is a ‘product comprising a mixture of animal excrements and vegetable matter (animal bedding and feed material)’. 17 In the latter case, ‘use after controlled fermentation and/or appropriate dilution’ is permitted, but the prohibition on factory farming origin is retained. 18 See footnotes 21 to 24 to this Opinion. 19 It follows from the need for the uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union. Judgments of 23 April 2020, Associazione Avvocatura per i diritti LGBTI (C‑507/18, EU:C:2020:289, paragraph 31); of 2 June 2022, HK/Danmark and HK/Privat (C‑587/20, EU:C:2022:419, paragraph 25); and of 30 March 2023, Hauptpersonalrat der Lehrerinnen und Lehrer (C‑34/21, EU:C:2023:270, paragraph 40). 20 That is, by reference to its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part. Judgments of 23 April 2020, Associazione Avvocatura per i diritti LGBTI (C‑507/18, EU:C:2020:289, paragraph 32); of 2 June 2022, HK/Danmark and HK/Privat (C‑587/20, EU:C:2022:419, paragraph 26); of 30 March 2023, Hauptpersonalrat der Lehrerinnen und Lehrer (C‑34/21, EU:C:2023:270, paragraph 41); and of 8 June 2023, UFC – Que choisir and CLCV (C‑407/21, EU:C:2023:449, paragraph 24). 21 The term ‘factory farming’ is used by the French (‘provenance d’élévage industriel interdite’), English (‘factory farming origin forbidden’), Italian (‘proibito se proveniente da allevamenti industriali’), Romanian (proveniența din ferme industriale este interzisă’), German (‘Erzeugnis darf nicht aus industrieller Tierhaltung stammen’), Polish (‘Zakazane są produkty pochodzące z chowu przemysłowego’) and Lithuanian (‘medžiagos, gautos pramoninės žemdirbystės būdu, draudžiamos’) versions. 22 The Bulgarian (‘забранен е произходът от интензивни животновъдни стопанства’), Spanish (‘prohibida la procedencia de ganaderías intensivas’) and Greek (‘η προέλευση από εντατικοποιημένη εκτροφή απαγορεύεται’) versions refer to ‘intensive farming’. 23 The Czech version (‘Nesmí pocházet z velkochovu’) refers to ‘large-scale livestock farming’. 24 The Danish (‘ikke fra jordløst husdyrbrug’), Dutch (‘Het product mag niet afkomstig zijn van niet-grondgebonden veehouderij’) and Portuguese (‘Proibidos os produtos provenientes das explorações pecuárias “sem terra”’) versions refer to ‘landless livestock production’. 25 Judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi (C‑561/19, EU:C:2021:799, paragraph 43). 26 Judgments of 27 March 1990, Cricket St Thomas (C‑372/88, EU:C:1990:140, paragraph 18), and of 26 January 2021, Hessischer Rundfunk (C‑422/19 and C‑423/19, EU:C:2021:63, paragraph 65). 27 One example of factory farming are so-called macro-farms, which are characterised by the concentration of a large number of animals on a holding with insufficient land to produce their food and to absorb their excrement without any risk. 28 That is, where the farmer intending to produce organic livestock does not manage agricultural land and has not established a written cooperation agreement with another farmer as regards the use of organic production units for that livestock. 29 Again, macro-farms rearing pigs or chickens are an example of this type of livestock farming which is both intensive and landless. 30 Where the density of livestock per hectare is very high, food is brought in from outside and may be genetically modified, while the land does not have the capacity to absorb the effluent from the livestock without any risk. 31 Council Regulation of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs (OJ 1991 L 198, p. 1). 32 Council Regulation of 15 July 1991 on improving the efficiency of agricultural structures (OJ 1991 L 218, p. 1). Pursuant to Article 6(5) of that regulation, aid for investments relating to the beef sector, other than aid for safeguarding the environment, ‘shall be restricted to livestock enterprises where the beef-cattle stocking rate does not, at the end of the plan, exceed three livestock units (LU) per hectare of total forage area used for feeding the cattle …’ 33 ‘Organic production is an overall system of farm management and food production that combines best environmental and climate action practices, a high level of biodiversity, the preservation of natural resources and the application of high animal welfare standards and high production standards in line with the demand of a growing number of consumers for products produced using natural substances and processes …’ 34 ‘The observance of high standards for health, the environment and animal welfare in the production of organic products is intrinsic to the high quality of those products …’ 35 See judgments of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others (C‑426/16, EU:C:2018:335, paragraphs 63 and 64), and of 17 December 2020, Centraal Israëlitisch Consistorie van België and Others (C‑336/19, EU:C:2020:1031, paragraphs 41 and 42). 36 Judgment of 26 February 2019, Œuvre d’assistance aux bêtes d’abattoirs (C‑497/17, EU:C:2019:137, paragraph 38). 37 Judgment of 29 April 2021, Natumi (C‑815/19, EU:C:2021:336, paragraphs 70 and 71): ‘… Regulation 2018/848 and that draft implementing regulation, including its annexes … show the trend in the area of organic food towards limiting the addition of non-organic substances to organic food’. 38 According to those data, 75% of the manure from porcine animals and 40% of the manure from birds comes from conventional non-factory farms. 39 The Court is clearly not the right institution to lay down rules on the definition of factory farming, in the absence of impact studies enabling the consequences of one or other option to be identified, and nor does it have experts with knowledge of that sector. The Commission stated at the hearing that work is underway towards the drafting of a provision which defines the term. 40 Guidelines for the use of livestock excrements in organic farming (Annex II, part A, to Regulation (EEC) Nº 2092/91), which are available at: https://www.phosphorusplatform.eu/images/download/Commission%20EU%20COM%20Guidelines%20excrements%20organic%20farming%20-%20Factory%20Farming%20VI568495-EN%20Rev5PPQPPEN955684R5.pdf). 41 The guidelines stated that, by contrast, the Union legislation allowed the unrestricted use of manure from extensive livestock farming, owing to the low risk that these contain undesirable residues because of the use of fodder and grazing and because of the use of a method of recovering excrements (in principle, a mixture of straw and animal manure in farm buildings) which causes a certain amount of deterioration of the organic matter. 42 Expert Group for Technical Advice on Organic Production (EGTOP), Factory Farming (the use of fertilisers from conventional animal husbandry in organic plant and algae production). Final Report, May 2021, available at: https://agriculture.ec.europa.eu/document/download/f01f8898-f797-4587-bbdc-cd5c7545af1d_en?filename=egtop-report-on-factory-farming_en.pdf. The ‘2021 EGTOP report’. 43 Directive of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1). 44 These are defined as installations with more than: (a) 85 000 places for broilers, 60 000 places for hens; (b) 3 000 places for production pigs (over 30 kg); or (c) 900 places for sows. 45 See, however, point 82 of and footnote 50 to this Opinion. 46 In accordance with that provision, aid granted for investments relating to the beef sector, other than aid for safeguarding the environment, is to be restricted to livestock enterprises where the beef-cattle stocking rate does not, at the end of the plan, exceed three livestock units (LU) per hectare of total forage area (the maximum stocking rates of 3 LU/ha and 2.5 LU/ha were authorised for 1994 and 1995 respectively) used for feeding the cattle. Annex 1 to Regulation No 2328/91 contains the table for converting cattle, equines, sheep and goats into livestock units (LU) (referred to in Article 6(5) and Article 19(1)(a) of that regulation): bulls, cows and other bovine animals over two years, equines over six months = 1.0 LU; bovine animals from six months to two years = 0.6 LU; sheep = 0.15 LU, and goats = 0.15 LU. 47 Point 1.6.8 of Part II of Annex II to Regulation 2018/848 states that, in organic farming, ‘cages, boxes and flat decks to raise livestock shall not be used for any livestock species’. 48 It should be recalled that, according to the INAO reading guide, manure ‘from livestock raised in integral slatted or grid systems and exceeding the thresholds defined in Annex I to Directive 2011/92/EU’, as well as from ‘livestock raised in cages and exceeding’ those thresholds, is prohibited. 49 Points 1.5.1.3 and 1.5.1.4 of Annex II to Regulation 2018/848 prohibit the use of those products in organic farming. 50 As AFAÏA stated at the hearing, a pig farm is not a factory farm because it has, for example, more than 900 places for breeding sows and it does not cease to be a factory farm because it has 899 places, in accordance with the thresholds laid down in Annex I to Directive 2011/92. An extensive pig farm with more than 900 Iberian breeding sows in a large meadow in Extremadura (Spain) or the Alentejo (Portugal) does not constitute a factory farm. However, a holding with 800 breeding sows in a landless installation may be factory farming, even though it does not require an environmental impact assessment.