Opinion of the Advocate General — ECLI:EU:C:2005:175
Date: 2005-03-17
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Foodstuffs;Consumer protection;Approximation of laws
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Spain

Summary of the Judgment 1. Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation at the end of the period laid down in the reasoned opinion (Art. 226 EC) 2. Agriculture — Common agricultural policy — Organic production method of agricultural products and indications referring thereto on agricultural products and foodstuffs — Regulation No 2092/91 — Indications referring to that production method — Use of those indications and of their derivatives for products not produced by such a method — Use of the terms ‘biológico’ and ‘bio’ in Spain — Permitted in the version amended by Regulation No 1804/1999 (Council Regulation No 2092/91, as amended by Council Regulation No 1804/1999, Art. 2) 3. Actions for failure to fulfil obligations — Proof of failure — Burden of proof on the Commission — Presumptions — Not permissible (Art. 226 EC) 1. The question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion. Subsequent changes cannot be taken into account by the Court. (see para. 31) 2. The list of indications referring to the organic production method set out in Article 2 of Regulation No 2092/91 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs, as amended to include livestock production by Regulation No 1804/1999, is by no means exhaustive. It follows that the Member States may, where current usage changes in their territory, add expressions other than those set out in that list to their national legislation to refer to the organic production method. As regards Spanish, since the expression ‘ecológico’ alone, encompassing the derivative ‘eco’, is included in the list set out in Article 2 of that regulation, the Spanish Government cannot be criticised for failing to prevent producers of products which are not organically-produced from using other expressions such as ‘biológico’ or ‘bio’. It further does not follow from the wording of that article that the derivative ‘bio’ must, because it is mentioned in that Article 2 as a usual derivative, be accorded specific protection in all Member States and in all languages, including those in respect of which, on the list in that article, terms are mentioned which do not correspond to the French expression ‘biologique’. (see paras 34-36) 3. In an action for failure to fulfil obligations, it is for the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission which must provide the Court with the evidence necessary for the Court to establish that the obligation has not been fulfilled, and it may not rely on any presumption. (see para. 41)