Judgment;Summary — ECLI:EU:C:2025:629
Date: 2025-08-01
Language of the case: French
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-772/24 – 1 
Case C-772/24 
Reference for a preliminary ruling 
Date lodged: 
7 November 2024 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer: 
6 November 2024 
Applicant: 
Association interprofessionnelle des fruits et légumes frais (Interfel) 
Defendant: 
Premier ministre 
Ministre de la transition écologique, de l’énergie, du climat et de la 
prévention des risques 
Garde des Sceaux, ministre de la Justice 
Ministre de l’Économie, des Finances et de l’Industrie 
Ministre de l’agriculture, de la souveraineté alimentaire et de la 
forêt 
  
CONSEIL D’ETAT 
[…] 
Having regard to the following proceedings: 
By an application and a further pleading, lodged on 23 August 2022 and 
13 October 2023, respectively, at the Judicial Secretariat of the Conseil d’État 
(Council of State, France), the Association interprofessionnelle des fruits et 
légumes frais asks the Council of State to: 
EN 
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(1) annul on ultra vires grounds the implied decision whereby the Prime Minister 
refused to repeal the provisions of Article 1(III)(2) of décret n° 2020-1724 du 
28 décembre 2020 relatif à l’interdiction d’élimination des invendus non 
alimentaires et à diverses dispositions de lutte contre le gaspillage (Decree 
No 2020-1724 of 28 December 2020 on banning the disposal of unsold non-food 
products and on various provisions to combat waste; ‘Decree No 2020-1724’); 
(2) order the State to pay [the costs] […]. 
The applicant argues that: 
– the provisions of Article 80 of Loi [n° 2020-105] du 10 février 2020 relative 
à la lutte contre le gaspillage et à l’économie circulaire (Law No 2020-105 of 
10 February 2020 on combating waste and on the circular economy; ‘the AGEC 
Law’), to which the regulatory provisions at issue apply, were not notified to the 
European Commission, in breach of the provisions of Directive 2015/1535 of the 
European Parliament and of the Council of 9 September 2015; 
– the provisions of Article 80 of the AGEC Law were not notified to the 
European Commission, in breach of Directive 94/62/EC of 20 December 1994 on 
packaging and packaging waste; 
– the provisions of Article 80 of the AGEC Law were adopted in breach of the 
immediate communication obligation set out in Article 44 of Regulation (EU) 
No 1169/2011 on the provision of food information to consumers; 
– Article 80 of the AGEC Law establishes a measure having equivalent effect 
to a quantitative restriction on imports, which is prohibited by Articles 34 and 35 
TFEU, and which is neither necessary, proportionate, nor objectively justified in 
relation to the overriding requirement of environmental protection; 
– the provisions of Article 80 of the AGEC Law infringe Article 18 of 
Directive 94/62/EC of 20 December 1994 on packaging and packaging waste, 
according to which Member States are not to impede the placing on the market of 
their territory of packaging which satisfies the provisions of that directive. 
By a statement of defence lodged on 30 November 2023, the Minister for 
Ecological transition and Territorial Cohesion contended that the application 
should be dismissed, arguing that the pleas raised by the applicant were 
unfounded. 
[…] [Procedural considerations] 
Having regard to: 
– European Parliament and Council Directive 94/62/EC of 20 December 1994; 
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– Regulation (EU) No 1169/2011 of the European Parliament and of the 
Council of 25 October 2011; 
– Directive 2015/1535 of the European Parliament and of the Council of 
9 September 2015; 
– French Law No 2020-105 of 10 February 2020; 
– the decision of 26 April 2023 whereby the Council of State, ruling on the 
dispute, referred the preliminary constitutionality question raised by the 
Association interprofessionnelle des fruits et légumes frais to the Conseil 
constitutionnel (Constitutional Council, France); 
– Décision n° 2023-1055 QPC du 16 juin 2023 (Decision No 2023-1055 of 
16 June 2023 on a priority question of constitutionality); 
– the code de justice administrative (French Administrative Justice Code); 
[…] 
– […] [Procedural considerations] 
Whereas: 
1 By letter of 25 April 2022, the Association interprofessionnelle des fruits et 
légumes frais submitted an application to the Prime Minister for the repeal of the 
provisions of Article 1(III)(2) of [Decree No 2020-1724]. The Prime Minister’s 
lack of response to that application gave rise to an implied rejection, which the 
applicant seeks to have annulled on ultra vires grounds. 
2 Under Article 80 of the AGEC Law, ‘by 1 January 2022 at the latest, the affixing 
of labels directly on fruit or vegetables shall be discontinued, with the exception 
of labels that can be composted with home compost waste and are made entirely 
or partly of biosourced materials’. Under Article R. 543-73 of the code de 
l’environnement (French Environmental Code), in the version resulting from 
Article 1(III)(2) of [Decree No 2020-1724], ‘the following acts shall be 
punishable by the fine provided for in respect of Class 3 infractions: … (4) 
affixing a label directly to fruit or vegetables – with the exception of those labels 
that can be composted with home compost waste and are made entirely or partly 
of biosourced materials – thus disregarding Article 80 of Law No 2020-105 of 
10 February 2020 on combating waste and on the circular economy’. 
The pleas alleging failure to notify the European Commission of Article 80 of the 
AGEC Law: 
3 First, Article 5(1) of Directive (EU) 2015/1535 of the European Parliament and of 
the Council of 9 September 2015 laying down a procedure for the provision of 
information in the field of technical regulations and of rules on Information 
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Society services sets out as follows: ‘Subject to Article 7, Member States shall 
immediately communicate to the Commission any draft technical regulation, 
except where it merely transposes the full text of an international or European 
standard, in which case information regarding the relevant standard shall suffice; 
they shall also let the Commission have a statement of the grounds which make 
the enactment of such a technical regulation necessary, where those grounds have 
not already been made clear in the draft. …’ Article 1(1)(f) of that directive 
defines a technical regulation as ‘technical specifications and other requirements 
or rules on services, including the relevant administrative provisions, the 
observance of which is compulsory, de jure or de facto, in the case of marketing, 
provision of a service, establishment of a service operator or use in a Member 
State or a major part thereof, as well as laws, regulations or administrative 
provisions of Member States, except those provided for in Article 7, prohibiting 
the manufacture, importation, marketing or use of a product or prohibiting the 
provision or use of a service, or establishment as a service provider’. 
Article 7(1)(a) exempts measures by which Member States ‘comply with binding 
Union acts which result in the adoption of technical specifications or rules on 
services’ from notification. 
4 Although Article 80 of the AGEC Law provided for ending, with effect from 
1 January 2022, the sale on French territory of fruit or vegetables on which labels 
are affixed, except for those labels that can be composted with home compost 
waste and are made entirely or partly of biosourced materials, the contested 
provisions of Article 1(III)(2) of [Decree No 2020-1724], for their part, merely 
state that failure to comply with that obligation is punishable by the fine provided 
for in respect of Class 3 infractions, without actually laying down any technical 
regulation. In those circumstances, given that on the date on which the contested 
decree was adopted the rule laid down by Article 80 of the AGEC Law had been 
notified under [Directive 2015/1535], as is apparent from the documents in the 
case file, the applicant does not have any grounds to claim that the decree, which 
was not itself notified on that basis, is devoid of legal basis. 
5 Secondly, Article 44 of Regulation (EU) No 1169/2011 on the provision of food 
information to consumers sets out the following: ‘1. Where foods are offered for 
sale to the final consumer or to mass caterers without prepackaging … (a) the 
provision of the particulars specified in point (c) of Article 9(1) is mandatory; (b) 
the provision of other particulars referred to in Articles 9 and 10 is not mandatory 
unless Member States adopt national measures requiring the provision of some or 
all of those particulars or elements of those particulars. 2. Member States may 
adopt national measures concerning the means through which the particulars or 
elements of those particulars specified in paragraph 1 are to be made available 
and, where appropriate, their form of expression and presentation. 3. Member 
States shall communicate to the Commission the text of the measures referred to 
in point (b) of paragraph 1 and in paragraph 2 without delay.’ As the provisions of 
Article 80 of the AGEC Law are not intended to define the procedures by which 
the particulars or elements of the particulars provided for in Articles 9 and 10 of 
that regulation must be communicated to the final consumer, they do not fall 
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within the scope of the provisions of Article 44 of Regulation (EU) No 1169/2011. 
Consequently, the applicant cannot rely, in support of its action, on the fact that 
those legislative provisions were not communicated to the European Commission 
on that basis. 
6 Thirdly, Article 16 of European Parliament and Council Directive 94/62 sets out 
the following: ‘1. Without prejudice to Directive 83/189/EEC, before adopting 
such measures, Member States shall notify the drafts of measures which they 
intend to adopt within the framework of this Directive to the Commission, 
excluding measures of a fiscal nature, but including technical specifications linked 
to fiscal measures which encourage compliance with such technical specifications, 
in order to permit the latter to examine them in the light of existing provisions 
following in each case the procedure under the above Directive. 2. If the proposed 
measure is also a technical matter within the meaning of Directive 83/189/EEC, 
the Member State concerned may indicate, when following the notification 
procedures referred to in this Directive, that the notification is equally valid for 
Directive 83/189/EEC.’ The purpose of that obligation imposed on Member States 
is to enable the Commission to be informed of national measures in the field of 
packaging and packaging waste, in order to be able to assess whether or not the 
draft measures submitted to it are compatible with EU law and, where appropriate, 
to draw the appropriate legal conclusions from them. By judgment of 
21 December 2023, Papier Mettler Italia (C-86/22, EU:C:2023:1023), the Court 
of Justice of the European Union ruled, however, that such an obligation 
constitutes a mere obligation imposed on the Member States to inform the 
Commission, failure to have regard to which cannot constitute a substantial defect 
leading to the measures that Member States intend to adopt being inapplicable, 
with the result that they are unenforceable against individuals. It also stated that 
Article 16 of that directive cannot be relied on before a national court in order to 
obtain the annulment of rules that have not been notified or a ruling that they are 
unenforceable. It follows that the applicant cannot rely, in support of its action, on 
the failure to notify the European Commission of the provisions of Article 80 of 
the AGEC Law. 
The plea alleging infringement of [Directive 94/62]: 
7 On the one hand, Article 1 of European Parliament and Council Directive 94/62 of 
20 December 1994 on packaging and packaging waste ‘aims to harmonise 
national measures concerning the management of packaging and packaging waste 
in order, on the one hand, to prevent any impact thereof on the environment of all 
Member States as well as of third countries or to reduce such impact, thus 
providing a high level of environmental protection, and, on the other hand, to 
ensure the functioning of the internal market and to avoid obstacles to trade and 
distortion and restriction of competition within the Community’. The scope of 
Directive 94/62 is defined in Article 2, paragraph 1 of which provides that the 
directive ‘covers all packaging placed on the market in the Community and all 
packaging waste, whether it is used or released at industrial, commercial, office, 
shop, service, household or any other level, regardless of the material used’. The 
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concept of packaging is defined in Article 3(1) of Directive 94/62[, as amended by 
Directive 2004/12/EC]: ‘For the purposes of this Directive: 1. “packaging” shall 
mean all products made of any materials of any nature to be used for the 
containment, protection, handling, delivery and presentation of goods, from raw 
materials to processed goods, from the producer to the user or the consumer. 
“Non-returnable” items used for the same purposes shall also be considered to 
constitute packaging. “Packaging” consists only of: (a) Sales packaging or 
primary packaging, i.e. packaging conceived so as to constitute a sales unit to the 
final user or consumer at the point of purchase; (b) grouped packaging or 
secondary packaging, i.e. packaging conceived so as to constitute at the point of 
purchase a grouping of a certain number of sales units whether the latter is sold as 
such to the final user or consumer or whether it serves only as a means to 
replenish the shelves at the point of sale; it can be removed from the product 
without affecting its characteristics; (c) transport packaging or tertiary packaging, 
i.e. packaging conceived so as to facilitate handling and transport of a number of 
sales units or grouped packagings in order to prevent physical handling and 
transport damage. Transport packaging does not include road, rail, ship and air 
containers. The definition of “packaging” shall be further based on the criteria set 
out below. The items listed in Annex I are illustrative examples of the application 
of these criteria. (i) Items shall be considered to be packaging if they fulfil the 
abovementioned definition without prejudice to other functions which the 
packaging might also perform, unless the item is an integral part of a product and 
it is necessary to contain, support or preserve that product throughout its lifetime 
and all elements are intended to be used, consumed or disposed of together. (ii) 
Items designed and intended to be filled at the point of sale and “disposable” items 
sold, filled or designed and intended to be filled at the point of sale shall be 
considered to be packaging provided they fulfil a packaging function. (iii) 
Packaging components and ancillary elements integrated into packaging shall be 
considered to be part of the packaging into which they are integrated. Ancillary 
elements hung directly on, or attached to, a product and which perform a 
packaging function shall be considered to be packaging unless they are an integral 
part of this product and all elements are intended to be consumed or disposed of 
together. …’ Annex I to Directive 94/62, [as amended by Directive 2004/12,] 
which lists examples of categories of items which may or may not constitute 
packaging on the basis of the various criteria referred to in Article 3(1) of that 
directive, states, as regards criterion (iii), that ‘packaging’ includes ‘labels hung 
directly on or attached to a product’. Finally, under Article 18 of […] that same 
directive, ‘Member States shall not impede the placing on the market of their 
territory of packaging which satisfies the provisions of this Directive’. 
8 On the other hand, the Court of Justice ruled, in its judgment of 14 December 
2004, Commission v Germany (C-463/01, EU:C:2004:797), that the requirements 
on the composition of packaging and its capacity to be reused or recovered are 
fully harmonised by Directive 94/62. 
9 The purpose of Article 80 of the AGEC Law is to prohibit the offering for sale on 
French territory of fruit and vegetables on which labels are affixed, except for 
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those labels that can be composted with home compost waste and are made 
entirely or partly of biosourced materials. Having regard to the wording of 
Article 3 of [Directive 94/62], it could be considered that such labels placed 
directly on fruit and vegetables do not constitute packaging within the meaning of 
that directive, since they do not fully meet the definition given in that article, or 
the three criteria which complement it. However, Annex I to that directive 
explicitly describes labels hung directly on or attached to a product as packaging, 
by way of illustration of the criterion set out in point (iii) of the third subparagraph 
of paragraph 1 of Article 3 of that directive. The question thus arises as to whether 
it follows from Annex I to that directive that any label hung directly on or 
attached to a product necessarily constitutes packaging within the meaning of that 
directive, or whether that classification must be assessed in the light of the 
definition and the three criteria laid down in Article 3 thereof, in which case such 
labels constitute packaging only if they are to be used for the containment, 
protection, handling, delivery and presentation of goods, from the producer to the 
user or the consumer, unless they are an integral part of that product and all 
elements are intended to be consumed or disposed of together. The question will 
continue to be relevant after the adoption of the regulation on packaging and 
packaging waste, amending Regulation (EU) 2019/1020 and Directive (EU) 
2019/904, and repealing Directive 94/62/EC, the text of which was adopted by the 
European Parliament at first reading in April 2024, which essentially reproduces 
the definition of packaging in [Directive 94/62] and its annexes, specifying in the 
new annex that packaging includes ‘labels hung directly on or attached to a 
product including sticky labels attached to fruits and vegetables’. 
10 That question is decisive for resolving the dispute before the Council of State and 
presents a serious problem. It is therefore necessary to refer the matter to the 
Court of Justice of the European Union pursuant to Article 267 TFEU and to stay 
the proceedings on the application lodged by the Association interprofessionnelle 
des fruits et légumes frais until the Court has given its ruling. 
D E C I D E S: 
Article 1: The proceedings in application No […] are stayed pending a ruling by 
the Court of Justice of the European Union on the following question: Are labels 
directly affixed to fruit and vegetables always to be considered packaging within 
the meaning of Article 3 of European Parliament and Council Directive 94/62/EC 
of 20 December 1994 on packaging and packaging waste and of Annex I thereto? 
Article 2: […] [Decisions on procedure] 
[…] 
[Dates of deliberation and delivery of judgment] 
[…] 
[Signatures] 
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[…] 
[Closing formulae]