Opinion of the Advocate General — ECLI:EU:C:2020:592
Date: 2020-07-16
Language of the case: French
Subject matter: Agriculture and Fisheries;Foodstuffs;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-485/18 — 1 
Case C-485/18 
Request for a preliminary ruling 
Date lodged:  
24 July 2018 
Referring court:  
Conseil d’État (France) 
Date of the decision to refer:  
27 June 2018 
Applicant:  
Société Groupe Lactalis 
Defendant:  
Premier ministre 
  
[…] [information relating to the national proceedings] The company Groupe 
Lactalis requests that the Conseil d’État [Council of State] annul, as being ultra 
vires, Decree No 2016-1137 of 19 August 2016 on the indication of the origin of 
milk and of milk and meat used as ingredients. 
It claims that the provisions at issue: 
[…] [three pleas in law rejected by the referring court in paragraphs 4 to 9] 
- infringe, together with Articles L. 412-4 and L. 412-5 of the code de la 
consummation [Consumer Code] on which they are based, Articles 9, 10, 26 and 
38 of Regulation (EU) No 1169/2011 of the European Parliament and of the 
Council of 25 October 2011, in so far as they introduce a labelling requirement 
not provided for in that regulation and infringe the free movement of goods; 
- infringe, together with Articles L. 412-4 and L. 412-5 of the Consumer 
Code, the conditions laid down by Article 39 of Regulation (EU) No 1169/2011 
[Or. 2] of the European Parliament and of the Council of 25 October 2011 for 
adopting measures requiring additional mandatory particulars for food; 
EN 
REQUEST FOR A PRELIMINARY RULING OF 27. 6. 2018 — CASE C-485/18 
 
2  
- are vitiated by an error of law, in so far as Article 6 of the contested decree 
introduces reverse discrimination adversely affecting French traders; 
- infringe, together with Articles L. 412-4 and L. 412-5 of the Consumer 
Code, the principles of entrepreneurial freedom and the free movement of goods; 
- fail to have regard for the constitutional requirement that legal rules should 
be clear and comprehensible; 
- infringe, together with Articles L. 412-4 and L. 412-5 of the Consumer 
Code, the principles of the protection of legitimate expectations and legal 
certainty, by not allowing individuals to be aware of their obligations in a clear 
and certain manner; 
- infringe the principle of the legality of criminal offences and penalties; 
- are incompatible, together with Articles L. 412-4 and L. 412-5 of the 
Consumer Code, with Article 7 of the European Convention for the Protection of 
Human Rights and Fundamental Freedoms; 
- infringe, together with Articles L. 412-4 and L. 412-5 of the Consumer 
Code, the principle of proportionality laid down in Article 5 of the Treaty on 
European Union. 
By statement of defence lodged on 21 August 2017, the Ministre de l’agriculture 
et de l’alimentation (Minister for Agriculture and Food) claims that the action 
should be dismissed. 
He submits that: 
- the applicant has a legal interest in bringing proceedings only against 
Article 1(1) and (2) and Article 3 of the decree at issue and Section II in the annex 
thereto; 
- the pleas in law raised by the applicant are unfounded. 
[…] [Or. 3] […][information relating to the national proceedings] 
1. By decree of 19 August 2016, the Premier ministre (Prime Minister) made the 
indication of the origin of milk, and of milk and meat used as ingredients in 
prepacked foods, mandatory for a trial period from 1 January 2017 to 
31 December 2018. In the light of the pleas in law raised by it, the company 
Lactalis must be regarded as seeking the annulment of that decree only in so far as 
it concerns milk and milk used as an ingredient. 
The plea of inadmissibility raised by the Minister for Agriculture and Food: 
2. The provisions of the contested decree govern labelling requirements relating to 
the indication of the origin of milk and of milk and meat used as ingredients, 
SOCIETÉ GROUPE LACTALIS 
 
3 
define the [Or. 4] geographical and material scope of that obligation and provide 
for control measures and penalty arrangements. Article 3 of that decree states that 
the indication of the origin means the indication of the country of collection and 
the country of packaging or processing and that, where the collection, packaging 
and processing take place in the same country, the indication of that country 
suffices. In addition, that article provides that, by way of derogation, where milk 
or milk used as an ingredient in dairy products has been collected, packaged and 
processed in one or more EU Member States, the indication of origin may be 
given as ‘Origin: EU’ and, where it has been collected, packaged and processed in 
one or more countries not belonging to the European Union, the indication may be 
given as ‘Origin: Non-EU’. Article 4 of the decree also provides that, where the 
indication of origin leads to the indication of more than one Member State, the 
indication of those names of those countries may be replaced by the indication 
‘EU’ or, where it leads to the indication of more than one third country, by the 
indication ‘Non-EU’. Lastly, where the indication of origin leads to the indication 
of one or more Member States and one or more third countries, the indication of 
those countries may be replaced by the indication ‘EU or Non-EU’. 
3. Apart from the provisions of Article 1(I)(3), Article 2, Articles 4, 5 and 8 in so far 
as they refer to Article 2, Articles 6 to 11 in so far as they apply to meat, and the 
provisions of Section I in the annex to the decree, the company Lactalis is entitled 
to seek the annulment of the provisions of the decree to the extent to which they 
concern milk. The Minister for Agriculture and Food is not, therefore, justified in 
claiming that the company Lactalis is entitled only to seek the annulment of 
Article 1(1) and (2) and Article 3 of the decree at issue and Section II in the annex 
thereto which concern milk and milk used as an ingredient. 
Formal legality: 
4. […] [Or. 5]  
[…] [Or. 6] […] [passage concerning the rejection, by the referring court, of the 
first three pleas for annulment] 
Substantive legality: 
10. Under Article 26 of Regulation [(EU) No 1169/2011] of 25 October 2011: ‘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; ... 5. By 
13 December 2014, the Commission shall submit reports to the European 
Parliament and the Council regarding the mandatory indication of the country of 
origin or place of provenance for the following foods: ... (b) milk; (c) milk used as 
an ingredient in dairy products; ... 7. The reports referred to in paragraphs 5 and 
6 shall take into account the need for the consumer to be informed, the feasibility 
REQUEST FOR A PRELIMINARY RULING OF 27. 6. 2018 — CASE C-485/18 
 
4  
of providing the mandatory indication of the country of origin or place of 
provenance and an analysis of the costs and benefits of the introduction of such 
measures, including the legal impact on the internal market and the impact on 
international trade. The Commission may accompany those reports with 
proposals to modify the relevant Union provisions...’. As provided in Article 38 of 
that regulation: ‘1. As regards the matters specifically harmonised by this 
Regulation, Member States may not adopt or maintain national measures unless 
authorised by Union law. Those national measures shall not give rise to obstacles 
to free movement of goods, including discrimination as regards foods from other 
Member States. 2. Without prejudice to Article 39, Member States may adopt 
national measures concerning matters not specifically harmonised by this 
Regulation provided that they do not prohibit, impede or restrict the free 
movement of goods that are in conformity with this Regulation’. Under Article 39 
of that regulation: ‘1. In addition to the mandatory particulars referred to in 
Article 9(1) and in Article 10, Member States may, in accordance with the 
procedure laid down in Article 45, adopt measures requiring additional 
mandatory particulars for specific types or categories of foods, justified on 
grounds of at least one of the following: (a) the protection of public health; (b) the 
protection of consumers; (c) the prevention of fraud; (d) the protection of 
industrial and commercial property rights, indications of provenance, registered 
designations of origin and the prevention of unfair competition. 2. By means of 
paragraph 1, Member States may introduce measures concerning the mandatory 
indication of the country of origin or place of provenance of foods only where 
there is a proven link between certain qualities of the food and its origin or 
provenance. When notifying such measures to the Commission, Member States 
shall provide evidence that the majority of consumers attach significant value to 
the provision of that information’. 
11. The applicant company submits, principally, that, in the light of the combined 
provisions of Articles 26 and 38 of Regulation [(EU) No 1169/2011] of 
25 October 2011, the contested decree could not introduce labelling requirements 
relating to the mandatory indication of the country of origin or place of 
provenance of milk and milk used as an ingredient in certain [Or. 7] dairy 
products and, in the alternative, that, if the decree can be regarded as having been 
adopted for the purposes of applying Article 39 of that regulation, it does not 
satisfy the condition laid down in Article 39(2) thereof concerning the existence of 
a proven link between certain qualities of the food and its origin or provenance. 
12. The response to this twofold plea in law, in the light of the exchange of views 
during the preparatory inquiry held on 19 January 2018, depends on whether 
Article 26 of Regulation No 1169/2011 of the European Parliament and of the 
Council of 25 October 2011, which provides, inter alia, for the Commission to 
submit reports to the European Parliament and the Council regarding the 
mandatory indication of the country of origin or place of provenance for milk and 
milk used as an ingredient, must be regarded as having specifically harmonised 
that matter within the meaning of Article 38(1) of that regulation and whether it 
precludes Member States from adopting measures requiring additional mandatory 
SOCIETÉ GROUPE LACTALIS 
 
5 
particulars on the basis of Article 39 of that regulation. Where national measures 
are justified on grounds of the protection of consumers in the light of 
Article 39(1), the question also arises as to whether the two criteria laid down in 
Article 39(2) concerning, first, the proven link between certain qualities of the 
food and its origin or provenance and, second, the evidence that the majority of 
consumers attach significant value to the provision of that information must be 
read in combination, in particular whether the examination of the proven link can 
be based solely on subjective elements relating to the value that the majority of 
consumers attach to the link between certain qualities of the food and its origin or 
provenance. In addition, the question arises, to the extent to which the qualities of 
the food appear to include all the factors contributing to the quality of the food, as 
to whether considerations relating to the resilience of the food to transportation 
and the risk of deterioration during journeys may be taken into account when 
examining whether there is a proven link between certain qualities of the food and 
its origin or provenance for the purposes of applying Article 39(2). Lastly, the 
question arises as to whether the assessment of the conditions laid down in 
Article 39 presupposes that the qualities of the food are regarded as being unique 
on account of its origin or provenance or as being guaranteed by reason of that 
origin or provenance and, in the latter case, notwithstanding the harmonisation of 
health and environmental standards applicable within the European Union, 
whether the indication of origin or provenance can be more precise than the 
indications ‘EU’ or ‘Non-EU’. 
13. Those questions, which are crucial for the outcome of the proceedings, raise a 
serious difficulty. Accordingly, it is necessary to submit a request to the Court of 
Justice of the European Union for a preliminary ruling pursuant to Article 267 
TFEU, and the application submitted by the company Groupe Lactalis is to be 
stayed pending the ruling of the Court of Justice. 
THE CONSEIL D’ÉTAT DECIDES: 
Article 1: The application submitted by the company Groupe Lactalis is stayed 
pending a ruling from the Court of Justice of the European Union on the following 
questions: [Or. 8]  
- Must Article 26 of Regulation No 1169/2011 of the European Parliament 
and of the Council of 25 October 2011, which provides, inter alia, for the 
Commission to submit reports to the European Parliament and the Council 
regarding the mandatory indication of the country of origin or place of provenance 
for milk and milk used as an ingredient, be regarded as having specifically 
harmonised that matter within the meaning of Article 38(1) of that regulation and 
does it preclude Member States from adopting measures requiring additional 
mandatory particulars on the basis of Article 39 of that regulation? 
- In the event that the national measures are justified on grounds of the 
protection of consumers in the light of Article 39(1), should the two criteria laid 
down in Article 39(2) concerning, first, the proven link between certain qualities 
REQUEST FOR A PRELIMINARY RULING OF 27. 6. 2018 — CASE C-485/18 
 
6  
of the food and its origin or provenance and, second, the evidence that the 
majority of consumers attach significant value to the provision of that information 
be read in combination, and, in particular, can the examination of the proven link 
be based solely on subjective elements relating to the value that the majority of 
consumers attach to the link between certain qualities of the food and its origin or 
provenance? 
- To the extent to which the qualities of the food appear to include all the 
factors contributing to the quality of the food, can considerations relating to the 
resilience of the food to transportation and the risk of deterioration during 
journeys be taken into account when examining whether there is a proven link 
between certain qualities of the food and its origin or provenance for the purposes 
of the application of Article 39(2)? 
- Does the assessment of the conditions laid down in Article 39 presuppose 
that the qualities of the food are regarded as being unique on account of its origin 
or provenance or as being guaranteed by reason of that origin or provenance and, 
in the latter case, notwithstanding the harmonisation of health and environmental 
standards applicable within the European Union, can the indication of origin or 
provenance be more precise than the indications ‘EU’ or ‘Non-EU’? 
[…] [Or. 9] […] [information relating to the national proceedings]