Judgment;Summary — ECLI:EU:C:2022:526
Date: 2022-07-07
Language of the case: Italian
Court formation: Second Chamber
Subject matter: Agriculture and Fisheries;Environment;Free movement of goods;Measures having equivalent effect;Approximation of laws;Quantitative restrictions;Public health
Procedure: Reference for a preliminary ruling
Origin: Italy

Anonymised version 
Translation  C-24/21 – 1 
Case C-24/21 
Request for a preliminary ruling 
Date lodged: 
14 January 2021 
Referring court:  
Tribunale ordinario di Pordenone (District Court, Pordenone, Italy) 
Date of the decision to refer: 
4 January 2021 
Applicant: 
PH 
Defendants: 
Regione Autonoma Friuli Venezia Giulia 
Direzione centrale risorse agroalimentari, forestali e ittiche – 
Servizio foreste e corpo forestale della Regione Autonoma Friuli 
Venezia Giulia 
  
[…] 
TRIBUNALE DI PORDENONE 
Civil Division 
The court […] has issued the following 
ORDER 
in the civil proceedings […] 
between 
EN 
REQUEST FOR A PRELIMINARY RULING OF 4. 1. 2021 – CASE C-24/21 
 
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PH […] 
- applicant - 
and 
REGIONE AUTONOMA FRIULIE VENEZIA GIULIA […]; 
Direzione centrale risorse agroalimentari, forestali e ittiche – Servizio foreste 
e corpo forestale della Regione Autonoma Friuli Venezia Giulia […]; 
- defendants - 
Subject matter: Opposition to administrative order imposing a fine […]. 
GROUNDS FOR THE DECISION 
By application served on Regione Friuli Venezia Giulia (Region of Friuli Venezia 
Giulia, Italy) and, following the order of 8 May 2020, on the Direzione centrale 
risorse agroalimentari, forestali e ittiche – Servizio foreste e corpo forestale della 
Regione Autonoma Friuli Venezia Giulia (Central Directorate for Agricultural, 
Food, Forestry and Fisheries Resources – Forestry Service and Forestry Corps of 
the Autonomous Region of Friuli Venezia Giulia, Italy), Mr PH, acting on his own 
behalf and as the owner and legal representative of the sole trader In Trois, 
challenged administrative order No 070440/2019 (issued following the 
investigation of 11 August 2015) requiring him to pay a fine of EUR 5 000.00 for 
infringing Article 2.1 of Legge Regionale FVG n. 5/2011 (Regional Law FVG 
No 5/2011). 
The Region of Friuli Venezia Giulia and, subsequently, the Central Directorate for 
Agricultural, Food, Forestry and Fisheries Resources brought proceedings […] 
calling into question the merits of the action. 
[…] this Court [Or.2] considered it necessary, prior to examining the substance of 
the case, to reserve the right to refer the matter to the Court of Justice of the 
European Union for a preliminary ruling. 
[…] [preliminary objections relevant only in the context of the national 
proceedings] 
As regards the reference for a preliminary ruling to the Court of Justice, the 
following points are made. 
The reference for a preliminary ruling pursuant to Article 267 TFEU allows the 
national court to raise a question before the Court of Justice of the European 
Union (‘the Court of Justice’) concerning the interpretation or validity of EU law. 
It is a fundamental mechanism to ensure uniform interpretation and application of 
EU law in all the Member States. 
REGIONE AUTONOMA FRIULI VENEZIA GIULIA 
 
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The decision to refer a question to the Court of Justice for a preliminary ruling lies 
with the national court (see judgments of 16 December 2008, Cartesio, C-210/06, 
and of 21 July 2011, Kelly, C-104/10). The parties may only raise a question 
before the court seeking its intervention (see order of 3 July 2014, Talasca, 
C-19/14). 
The national court, unless it is a court of last instance, is free to refer to the Court 
of Justice for a preliminary ruling, at whatever stage of the proceedings, any 
question that it considers necessary to enable it to give judgment (see judgment of 
11 September 2014, A v B and Others, C-112/13). 
This is confirmed by paragraph 12 of the ‘Recommendations to national courts 
and tribunals in relation to the initiation of preliminary ruling proceedings’ 
(2019/C 380/01) […] [Or.3] […] [text of the provision cited]. 
In the present case, Mr PH was issued with a penalty by the administrative 
authority pursuant to Article 2.1, entitled ‘Specific measures to prevent the 
unintended presence of GMOs in conventional and organic maize crops’, of 
Regional Law No 5/2011 (introduced by Article 2(26)(a) of Legge Regionale 
15/2014 (Regional Law No 15/2014)), which provides that: ‘In order to avoid the 
unintended presence of GMOs in conventional and organic maize crops in the 
territory of Friuli Venezia Giulia, characterised by production models and farm 
structures that influence the degree of admixture between transgenic and non-
transgenic crops, the cultivation of genetically modified maize shall be excluded 
in accordance with the possibility recognised in paragraph 2.4 of Commission 
Recommendation 2010/C 200/01 of 13 July 2010 on guidelines for the 
development of national co-existence measures to avoid the unintended presence 
of GMOs in conventional and organic crops. The cultivation of genetically 
modified maize shall incur a financial administrative penalty of EUR 5 000 to 
EUR 50 000 issued by the competent regional Forestry Corps.’ 
Paragraph 2.4 of Commission Recommendation 2010/C 200/01 of 13 July 2010, 
entitled ‘Measures to exclude GMO cultivation from large areas (“GM-free 
areas”)’, reads: ‘Differences in regional aspects, such as climatic conditions (that 
influence the activity of pollinators and the transport of airborne pollen), 
topography, cropping patterns and crop rotation systems or farm structures 
(including surrounding structures, such as hedges, forests, uncultivated areas and 
the spatial arrangement of fields) may influence the degree of admixture between 
GM and conventional and organic crops and the measures necessary to avoid 
unintended presence of GMOs in other crops. Under certain economic and natural 
conditions, Member States should consider the possibility to exclude GMO 
cultivation from large areas of their territory to avoid the unintended presence of 
GMOs in conventional and organic crops. Such exclusion should rest on the 
demonstration by Member States that, for those areas, other measures are not 
enough to achieve sufficient levels of purity. Moreover, the restriction measures 
should be proportionate to the objective pursued (i.e. protection of particular 
needs of conventional and/or organic farming).’ 
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Article 26a of Directive 2001/18 provides that: ‘1. Member States may take 
appropriate measures to avoid the unintended presence of GMOs in other 
products. 2. The Commission shall gather and coordinate information based on 
studies at Community and national level, observe the developments regarding 
coexistence in the Member States and, on the basis of the information and 
observations, develop guidelines on the coexistence of genetically modified, 
[Or.4] conventional and organic crops.’ 
Article 16(1) of Council Directive 2002/53/EC of 13 June 2002 on the common 
catalogue of varieties of agricultural plant species, as amended by Regulation 
(EC) No 1829/2003 of the European Parliament and of the Council of 
22 September 2003 on genetically modified food and feed, provides that: 
‘Member States shall ensure that, with effect from the publication referred to in 
Article 17, seed of varieties accepted in accordance with this Directive or in 
accordance with principles corresponding to those of this Directive is not subject 
to any marketing restrictions relating to variety.’ Article 17 of that directive 
provides that: ‘The Commission shall, on the basis of the information supplied by 
the Member States and as this is received, publish in the C series of the Official 
Journal of the European Communities under the title “Common Catalogue of 
Varieties of Agricultural Plant Species” a list of all varieties of which the seed and 
propagating material, under Article 16, are not subject to any marketing 
restrictions as regards variety …’ 
The Region of Friuli Venezia Giulia confirms that it adopted Regional Law 
No 5/2011 with a view to implementing the principle enshrined in Article 26a of 
Directive 2001/18/EC and the Recommendation of 13 July 2010, pointing out that 
Article 2.1, which establishes coexistence measures in maize crops, was 
introduced by Article 2(26)(a) of Regional Law No 15/2014, following the 
judgment of the Court of Justice of 6 September 2012, as well as the order of the 
Court of Justice of 8 May 2013 and the EU Pilot procedure initiated against Italy 
following a positive assessment by the EU. 
It should be noted at this point that the parties to the case do not dispute the fact 
that MON 810 may be freely marketed within the EU, but that – under Regional 
Law No 5/2011 – it may not be grown anywhere in the territory of the Region of 
Friuli Venezia Giulia. 
By order of 8 May 2013 in Case C-542/12, relating to a different point of law, the 
Court of Justice ruled that ‘… the questions raised must be answered by declaring 
that EU law must be interpreted as meaning that the cultivation of GMOs such as 
maize varieties MON 810 cannot be made subject to a national authorisation 
procedure, where the use and marketing of those varieties are authorised under 
Article 20 of Regulation No 1829/2003 and where those varieties have been 
entered in the common catalogue provided for in Directive 2002/53. Article 26a of 
Directive 2001/18 must be interpreted as precluding a Member State from 
opposing the cultivation on its territory of such GMOs on the ground that 
REGIONE AUTONOMA FRIULI VENEZIA GIULIA 
 
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obtaining a national authorisation would constitute a coexistence measure to avoid 
the unintended presence of GMOs in other [Or.5] crops’ (paragraph 33). 
For the sake of completeness, it must be acknowledged that by Commission 
[Implementing] Decision of 3 March 2016, the ban on the cultivation of 
genetically modified maize MON 810 throughout Italy was decided (Article 1: 
‘The cultivation of genetically modified maize (Zea mays L.) MON 810 shall be 
prohibited in the territories listed in the Annex to this Decision’. Italy is included 
on that list in Annex 1, point 8). However, that decision is subsequent to the date 
of the infringement alleged against Mr PH and the subject of these proceedings, 
since the investigation report dates back to 11 August 2015. 
Given the above, in the light of the petitum [annulment of the contested measure] 
and the causa petendi [infringement of various provisions of EU and national law] 
of the action brought by Mr PH, the question arises as to whether the ban imposed 
by Article 2.1 of Regional Law No 5/2011, which introduces coexistence 
measures that amount to a ban on cultivating maize variety MON 810 in the 
territory of the Region of Friuli Venezia Giulia, is consistent with or contrary to 
the overall scheme of Directive 2001/18, particularly in the light of Regulation 
(EC) No 1829/2003 and Recommendation [2010]/C 200/01. 
The question also arises as to whether the ban on the cultivation of genetically 
modified maize MON 810, the marketing of which within the EU still seems to be 
permitted, could constitute a measure having equivalent effect, understood as ‘all 
trading rules enacted by Member States which are capable of hindering, directly 
or indirectly, actually or potentially, intra-community trade’ (judgment of 11 July 
1974, Dassonville, 8/74), thus contrary to Articles 34, 35 and 36 TFEU. 
It therefore appears necessary to refer to the Court of Justice of the European 
Union for a preliminary ruling the questions set out in the operative part of this 
order, for the specific reasons given above. 
These proceedings shall be stayed pending the decision of the Court of Justice. 
FOR THESE REASONS 
Having regard to Article 267 TFEU, 
The following questions are referred to the Court of Justice of the European Union 
for a preliminary ruling: 
1. Is the ban imposed by Article 2.1 of Legge Regionale Friuli Venezia 
Giulia n. 5/2011, which introduces coexistence measures that amount 
to a ban on cultivating maize variety MON 810 in the territory of the 
region of Friuli Venezia Giulia (Italy), consistent with or contrary to 
the overall scheme of Directive 2001/18, particularly in the light of 
Regulation (EC) No 1829/2003 and Recommendation [2010]C 
200/01? 
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2. Does that ban also constitute a measure having equivalent effect and is 
it thus contrary to Articles 34, 35 and 36 TFEU? 
[…] [Or.6] […] 
Pordenone, 4 January 2021 
[…]