62023CC0240
OPINION OF ADVOCAT GENERAL
RICHARD DE LA TOUR
delivered on 18 June 2024 (
1
)
Case C‑240/23
Herbaria Kräuterparadies GmbH
v
Freistaat Bayern
(Request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Germany))
(Reference for a preliminary ruling – Agriculture and fisheries – Organic production and labelling of organic products – Regulation (EU) 2018/848 – Rules on organic production – Article 16 – Article 33 – Labelling – Organic production logo of the European Union – Conditions of use – Articles 45 and 48 – Import of equivalent organic products originating from a third country recognised on the EU market – Reference to organic production – Charter of Fundamental Rights of the European Union – Article 20 – Equal treatment)
I. Introduction
1.
Since 2012, Herbaria Kräuterparadies GmbH (‘Herbaria’) has disputed the decision of Freistaat Bayern (Land of Bavaria, Germany) prohibiting it from using the reference to the organic production method in the labelling, advertising and marketing of a mixture of fruit juice and herb extracts which contains, in addition to the organic products, non-plant vitamins and ferrous gluconate not coming from organic farming.
2.
A first judgment of the Court of Justice confirmed the Land of Bavaria’s interpretation that the organic production logo of the European Union and any reference to organic production could not be used in such a situation. (
2
) Herbaria accepted that decision and relies on a breach of equality between its product and a similar American product to which non-organic non-plant vitamins and ferrous gluconate are added, but which is recognised as originating from organic production in the United States of America and which, on that basis, may be marketed on the territory of the European Union with the organic production logo of the European Union by reason of the recognition of the United States as a third country whose rules on production and control are equivalent.
3.
The request for a preliminary ruling concerns the interpretation, first, of Article 16(1), Article 30(1), Article 33(1), Article 45(1) and Article 48(1) of, and of Annex II, Part IV, point 2.2.2(f) to, Regulation (EU) 2018/848 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, (
3
) and, second, of Article 20 of the Charter of Fundamental Rights of the European Union. (
4
)
4.
The request will allow the Court to clarify the use that must be made of the organic production logo of the European Union in the event of imports of products originating from organic farming. I shall propose that the Court’s answer should be that products imported pursuant to Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91, (
5
) and Regulation 2018/848 may bear that logo, together, in the same visual field, with compulsory indications of the origin of the raw materials and country of origin of the compliance control, without that constituting a breach of the principle of equality protected by Article 20 of the Charter.
II. Legal framework
A.
Regulation No 834/2007
5.
Recitals 1 and 33 of Regulation No 834/2007 stated:
‘(1)
[T]he organic production method … plays a dual societal role, where it on the one hand provides for a specific market responding to a consumer demand for organic products, and on the other hand delivers public goods contributing to the protection of the environment and animal welfare, as well as to rural development.
…
(33)
Organic products imported into the European [Union] should be allowed to be placed on the [Union] market as organic, where they have been produced in accordance with production rules and subject to control arrangements that are in compliance with or equivalent to those laid down in [Union] legislation. In addition, the products imported under an equivalent system should be covered by a certificate issued by the competent authority, or recognised control authority or body of the third country concerned.’
6.
Article 19 of that regulation, entitled ‘General rules on the production of processed food’, provided, in paragraph 2(b):
‘The following conditions shall apply to the composition of organic processed food:
…
(b)
only additives, processing aids, flavourings, water, salt, preparations of micro-organisms and enzymes, minerals, trace elements, vitamins, as well as amino acids and other micronutrients in foodstuffs for particular nutritional uses may be used, and only in so far as they have been authorised for use in organic production in accordance with Article 21.’
7.
Article 23 of Regulation No 834/2007, entitled ‘Use of terms referring to organic production’, provided, in paragraph 1:
‘For the purposes of this Regulation a product shall be regarded as bearing terms referring to the organic production method where, in the labelling, advertising material or commercial documents, such a product, its ingredients or feed materials are described in terms suggesting to the purchaser that the product, its ingredients or feed materials have been obtained in accordance with the rules laid down in this Regulation. In particular, the terms listed in the Annex, their derivatives or diminutives, such as “bio” and “eco”, alone or combined, may be used throughout the [European Union] and in any [Union] language for the labelling and advertising of products which satisfy the requirements set out under or pursuant to this Regulation.
In the labelling and advertising of live or unprocessed agricultural products terms referring to the organic production method may be used only where, in addition, all the ingredients of that product have also been produced in accordance with the requirements laid down in this Regulation.’
8.
Article 24 of that regulation, entitled ‘Compulsory indications’, was worded as follows:
‘1.   Where terms as referred to in Article 23(1) are used:
(a)
the code number referred to in Article 27(10) of the control authority or control body to which the operator who has carried out the most recent production or preparation operation is subject, shall also appear in the labelling;
(b)
the Community logo referred to in Article 25(1) as regards pre-packaged food shall also appear on the packaging;
(c)
where the Community logo is used, an indication of the place where the agricultural raw materials of which the product is composed have been farmed, shall also appear in the same visual field as the logo and shall take one of the following forms, as appropriate:
–
“EU Agriculture”, where the agricultural raw material has been farmed in the EU,
–
“non-EU Agriculture”, where the agricultural raw material has been farmed in third countries,
–
“EU/non-EU Agriculture”, where part of the agricultural raw materials has been farmed in the [European Union] and a part of it has been farmed in a third country.
…
The use of the Community logo as referred to in Article 25(1) and the indication referred to in the first subparagraph shall be optional for products imported from third countries. However, where the Community logo as referred to in Article 25(1) appears in the labelling, the indication referred to in the first subparagraph shall also appear in the labelling.
2.   The indications referred to in paragraph 1 shall be marked in a conspicuous place in such a way as to be easily visible, clearly legible and indelible.
…’
9.
Article 25 of Regulation No 834/2007, entitled ‘Organic production logos’, provided:
‘1.   The Community organic production logo may be used in the labelling, presentation and advertising of products which satisfy the requirements set out under this Regulation.
…
2.   National and private logos may be used in the labelling, presentation and advertising of products which satisfy the requirements set out under this Regulation.
…’
10.
Article 32 of that regulation, entitled ‘Import of compliant products’, stated, in paragraph 1:
‘A product imported from a third country may be placed on the [Union] market as organic provided that:
(a)
the product complies with the provisions set out in Titles II, III and IV as well as with the implementing rules affecting its production adopted pursuant to this Regulation;
(b)
all operators, including the exporters, have been subject to control by a control authority or control body recognised in accordance with paragraph 2;
(c)
the operators concerned shall be able to provide at any time, to the importers or the national authorities, documentary evidence as referred to in Article 29, permitting the identification of the operator who carried out the last operation and the verification of compliance by that operator with points (a) and (b), issued by the control authority or control body referred to in point (b).’
11.
Article 33 of Regulation No 834/2007, entitled ‘Import of products providing equivalent guarantees’, was worded as follows:
‘1.   A product imported from a third country may also be placed on the [Union] market as organic provided that:
(a)
the product has been produced in accordance with production rules equivalent to those referred to in Titles III and IV;
(b)
the operators have been subject to control measures of equivalent effectiveness to those referred to in Title V and such control measures have been permanently and effectively applied;
(c)
the operators at all stages of production, preparation and distribution in the third country have submitted their activities to a control system recognised in accordance with paragraph 2 or to a control authority or control body recognised in accordance with paragraph 3;
(d)
the product is covered by a certificate of inspection issued by the competent authorities, control authorities or control bodies of the third country recognised in accordance with paragraph 2, or by a control authority or control body recognised in accordance with paragraph 3, which confirms that the product satisfies the conditions set out in this paragraph.
…
2.   The [European] Commission may, in accordance with the procedure referred to in Article 37(2), recognise the third countries whose system of production complies with principles and production rules equivalent to those laid down in Titles II, III and IV and whose control measures are of equivalent effectiveness to those laid down in Title V, and establish a list of these countries. The assessment of equivalency shall take into account Codex Alimentarius guidelines CAC/GL 32.
…’
B.
Regulation (EC) No 889/2008
12.
Commission Regulation (EC) No 889/2008 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, (
6
) contained Article 27, entitled ‘Use of certain products and substances in processing of food’, paragraph 1 of which provided:
‘For the purpose of Article 19(2)(b) of Regulation [No 834/2007], only the following substances can be used in the processing of organic food, with the exception of wine:
…
(f)
minerals (trace elements included), vitamins, amino acids, and micronutrients, only authorised as far their use is legally required in the foodstuffs in which they are incorporated.’
C.
Regulation (EC) No 1235/2008
13.
Article 7(1) of Commission Regulation (EC) No 1235/2008 of 8 December 2008 laying down detailed rules for implementation of Council Regulation (EC) No 834/2007 as regards the arrangements for imports of organic products from third countries (
7
) provided:
‘The Commission shall establish a list of recognised third countries in accordance with Article 33(2) of Regulation [No 834/2007]. The list of recognised countries is set out in Annex III to this Regulation …’
D.
Implementing Regulation (EU) No 126/2012
14.
Article 2 of Commission Implementing Regulation (EU) No 126/2012 of 14 February 2012 amending Regulation (EC) No 889/2008 as regards documentary evidence and amending Regulation (EC) No 1235/2008 as regards the arrangements for imports of organic products from the United States of America (
8
) placed the United States on the list of third countries in Annex III to Regulation No 1235/2008.
E.
Regulation 2018/848
15.
Recitals 1, 3, 6, 9, 15, 17, 73, 77 to 79, 93, 96 and 123 of Regulation 2018/848 state:
‘(1)
[O]rganic production … plays a dual societal role, where, on the one hand, it provides for a specific market responding to consumer demand for organic products and, on the other hand, it delivers publicly available goods that contribute to the protection of the environment and animal welfare, as well as to rural development.
…
(3)
[T]he objectives of the organic production policy are embedded in the objectives of the [common agricultural policy (CAP)] by ensuring that farmers receive a fair return for complying with the organic production rules. In addition, the growing consumer demand for organic products creates conditions for further development and expansion of the market in those products and thus for an increase in the return of farmers engaged in organic production.
…
(6)
In view of the objectives of the Union’s organic production policy, the legal framework established for implementing that policy should aim at ensuring fair competition and the proper functioning of the internal market in organic products, at maintaining and justifying consumer confidence in products labelled as organic, and at providing conditions under which the policy can progress in line with production and market developments.
…
(9)
Given the dynamic evolution of the organic sector, [Regulation No 834/2007] identified the need for a future review of the Union rules on organic production, taking into account the experience gained from the application of those rules. The results of that review carried out by the Commission show that the Union legal framework governing organic production should be improved to provide for rules that correspond to the high expectations of consumers and that guarantee sufficient clarity for those to whom they are addressed. Regulation [No 834/2007] should be therefore repealed and replaced by a new Regulation.
…
(15)
Research projects have demonstrated that consumer confidence is crucial in the market for organic food. In the long run, rules that are not trustworthy can jeopardise public confidence and lead to market failure. Therefore, the sustainable development of organic production in the Union should be based on sound production rules which are harmonised at Union level and which meet operators’ and consumers’ expectations regarding the quality of organic products and compliance with the principles and rules laid down in this Regulation.
…
(17)
This Regulation should provide the basis for the sustainable development of organic production and its positive effects on the environment, while ensuring the effective functioning of the internal market in organic products and fair competition, thereby helping farmers to achieve a fair income, ensuring consumer confidence, protecting consumer interest and encouraging short distribution channels and local production. Those objectives should be achieved through compliance with general and specific principles and general and detailed production rules applicable to organic production.
…
(73)
The labelling of agricultural products and foodstuffs should be subject to the general rules laid down in Regulation (EU) [No 1169/2011], (
9
) and in particular to the provisions aimed at preventing labelling that might confuse or mislead consumers. In addition, specific provisions relating to the labelling of organic and in-conversion products should be laid down in this Regulation. They should protect both the interests of operators in having their products correctly identified on the market and in enjoying conditions of fair competition, and the interests of consumers in being able to make informed choices.
…
(77)
In order to create clarity for consumers throughout the Union market, the use of the organic production logo of the European Union should be obligatory for all organic prepacked food produced within the Union. In addition, it should be possible to use that logo on a voluntary basis in the case of non-prepacked organic products that are produced within the Union and in the case of any organic products imported from third countries, as well as for information and educational purposes. The model of the organic production logo of the European Union should be set out.
(78)
However, in order not to mislead consumers as to the organic nature of the entire product, it is appropriate to limit the use of that logo to products which contain only, or almost only, organic ingredients. It should therefore not be allowed to use it in the labelling of in-conversion products or processed products of which less than 95% by weight of their ingredients of agricultural origin are organic.
(79)
To avoid any possible confusion among consumers about the Union or non-Union origin of a product, whenever the organic production logo of the European Union is used, consumers should be informed about the place where the agricultural raw materials of which the product is composed have been farmed …
…
(93)
The experience with the arrangements for the import of organic products into the Union under Regulation [No 834/2007] has shown that there is a need to revise those arrangements in order to respond to consumer expectations that imported organic products meet standards as high as those of the Union, as well as in order to better ensure the access of Union organic products to the international market …
…
(96)
Third countries recognised for the purpose of equivalence under Regulation [No 834/2007] should continue to be recognised as such under this Regulation, for a limited period necessary to ensure a smooth transition to the scheme of recognition through an international agreement, provided that they continue to ensure that their organic production and control rules are equivalent to the relevant Union rules in force and that they fulfil all requirements relating to the supervision of their recognition by the Commission. That supervision should be based in particular on the annual reports those recognised third countries send to the Commission.
…
(123)
Since the objectives of this Regulation, in particular fair competition and the proper functioning of the internal market in organic products, as well as ensuring consumer confidence in those products and in the organic production logo of the European Union, cannot be sufficiently achieved by the Member States themselves but can rather, by reason of the required harmonisation of the rules on organic production, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 [TEU]. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.’
16.
Article 16 of Regulation 2018/848, entitled ‘Production rules for processed food’, provides, in paragraph 1:
‘Operators that produce processed food shall comply, in particular, with the detailed production rules set out in Part IV of Annex II and in any implementing acts referred to in paragraph 3 of this Article.’
17.
In the words of Article 30 of that regulation, entitled ‘Use of terms referring to organic production’:
‘1.   For the purposes of this Regulation, a product shall be regarded as bearing terms referring to organic production where, in the labelling, advertising material or commercial documents, such a product, its ingredients or feed materials used for its production are described in terms suggesting to the purchaser that the product, ingredients or feed materials have been produced in accordance with this Regulation. In particular, the terms listed in Annex IV and their derivatives and diminutives, such as “bio” and “eco”, whether alone or in combination, may be used throughout the Union and in any language listed in that Annex for the labelling and advertising of products referred to in Article 2(1) which comply with this Regulation.
…
5.   For processed food, the terms referred to in paragraph 1 may be used:
(a)
in the sales description, and in the list of ingredients where such a list is mandatory pursuant to Union legislation …
…
(b)
only in the list of ingredients …
…
(c)
in the sales description and in the list of ingredients …
…’
18.
Article 32 of that same regulation, entitled ‘Compulsory indications’, provides, in paragraph 1:
‘Where products bear terms as referred to in Article 30(1), including products labelled as in-conversion products in accordance with Article 30(3):
…
(b)
in the case of prepacked food, the organic production logo of the European Union referred to in Article 33 shall also appear on the packaging, except in cases referred to in Article 30(3) and points (b) and (c) of Article 30(5).’
19.
In the words of Article 33 of Regulation 2018/848, entitled ‘Organic production logo of the European Union’:
‘1.   The organic production logo of the European Union may be used in the labelling, presentation and advertising of products which comply with this Regulation.
The organic production logo of the European Union may also be used for information and educational purposes related to the existence and advertising of the logo itself, provided that such use is not liable to mislead the consumer as regards the organic production of specific products, and provided that the logo is reproduced in accordance with the rules set out in Annex V …
…
3.   The use of the organic production logo of the European Union shall be optional for products imported from third countries. Where that logo appears in the labelling of such products, the indication referred to in Article 32(2) shall also appear in the labelling.
…
5.   National logos and private logos may be used in the labelling, presentation and advertising of products which comply with this Regulation.
…’
20.
Article 42 of that regulation, entitled ‘Additional rules on measures in the event of non-compliance’, is worded as follows:
‘1.   In the event of non-compliance affecting the integrity of organic or in-conversion products throughout any of the stages of production, preparation and distribution, for example as result of the use of non-authorised products, substances or techniques, or commingling with non-organic products, competent authorities, and, where appropriate, control authorities and control bodies, shall ensure … that no reference is made to organic production in the labelling and advertising of the entire lot or production run concerned.
…’
21.
Article 44 of that same regulation, entitled ‘Export of organic products’, provides, in paragraph 1:
‘A product may be exported from the Union as an organic product and may bear the organic production logo of the European Union, provided that it complies with the rules for organic production under this Regulation.’
22.
Article 45 of Regulation 2018/848, entitled ‘Import of organic and in-conversion products’, provides, in paragraph 1:
‘A product may be imported from a third country for the purpose of placing that product on the market within the Union as an organic product or as an in-conversion product, provided that the following three conditions are met:
(a)
the product is a product as referred to in Article 2(1);
(b)
one of the following applies:
(i)
the product complies with Chapters II, III and IV of this Regulation, and all operators and groups of operators referred to in Article 36, including exporters in the third country concerned, have been subject to controls by control authorities or control bodies recognised in accordance with Article 46, and those authorities or bodies have provided all such operators, groups of operators and exporters with a certificate confirming that they comply with this Regulation;
(ii)
in cases where the product comes from a third country which is recognised in accordance with Article 47, that product complies with the conditions laid down in the relevant trade agreement; or
(iii)
in cases where the product comes from a third country which is recognised in accordance with Article 48, that product complies with the equivalent production and control rules of that third country and is imported with a certificate of inspection confirming this compliance that was issued by the competent authorities, control authorities or control bodies of that third country; and
(c)
the operators in third countries are able at any time to provide the importers and the national authorities in the Union and in those third countries with information allowing the identification of the operators that are their suppliers and the control authorities or control bodies of those suppliers, with a view to ensuring the traceability of the organic or in-conversion product concerned. That information shall also be made available to the control authorities or control bodies of the importers.’
23.
Article 48 of that regulation, entitled ‘Equivalence under Regulation [No 834/2007]’, provides, in paragraph 1:
‘A recognised third country referred to in point (b)(iii) of Article 45(1) is a third country which has been recognised for the purposes of equivalence under Article 33(2) of Regulation [No 834/2007], including those recognised under the transitional measure provided for in Article 58 of this Regulation.
That recognition shall expire on 31 December 2025.’
24.
In the words of the first and second paragraphs of Article 56 of that same regulation:
‘Regulation [No 834/2007] is repealed.
However, that Regulation shall continue to apply for the purpose of completing the examination of pending applications from third countries, as provided for in Article 58 of this Regulation.’
25.
Article 58(1) of Regulation 2018/848 states:
‘The Commission shall complete the examination of applications from third countries which have been submitted under Article 33(2) of Regulation [No 834/2007] and which are pending on 17 June 2018. That Regulation shall apply to the examination of such applications.’
26.
Annex II, Part IV, point 2.2.2 of that regulation provides, as regards the detailed requirements for the production of processed food:
‘In the processing of food, the following products and substances may be used:
…
(f)
minerals (trace elements included), vitamins, amino acids and micronutrients, provided that:
(i)
their use in food for normal consumption is “directly legally required”, in the meaning of being directly required by provisions of Union law or provisions of national law compatible with Union law, with the consequence that the food cannot be placed at all on the market as food for normal consumption if those minerals, vitamins, amino acids or micronutrients are not added; or
(ii)
as regards food placed on the market as having particular characteristics or effects in relation to health or nutrition or in relation to needs of specific groups of consumers:
–
in products referred to in points (a) and (b) of Article 1(1) of Regulation (EU) [No 609/2013 (
10
)], their use is authorised by that Regulation and acts adopted on the basis of Article 11(1) of that Regulation for the products concerned, or
–
in products regulated by [Directive 2006/125/CE (
11
)], their use is authorised by that Directive.’
F.
Regulation (EU) 2020/1693
27.
Recital 7 of Regulation (EU) 2020/1693 of the European Parliament and of the Council of 11 November 2020 amending Regulation (EU) 2018/848 on organic production and labelling of organic products as regards its date of application and certain other dates referred to in that Regulation (
12
) states:
‘The COVID-19 pandemic and the related public health crisis … present an unprecedented challenge to third countries and for operators based in third countries. Consequently, for third countries that have been recognised as equivalent under Article 33(2) of [Regulation No 834/2007], it is appropriate to extend the date of expiry of their recognition by one year to 31 December 2026 so that such third countries have enough time to change their status, either by concluding a trade agreement with the Union or through full compliance by their operators with Regulation [2018/848], without unnecessary trade disruptions for organic products.’
28.
Article 1 of that regulation provides:
‘Regulation [2018/848] is amended as follows:
…
(2)
In the second subparagraph of Article 48(1), the date “31 December 2025” is replaced by “31 December 2026”.’
G.
Delegated Regulation (EU) 2021/1342
29.
Recital 3 of Commission Delegated Regulation (EU) 2021/1342 of 27 May 2021 supplementing Regulation (EU) 2018/848 of the European Parliament and of the Council with rules on the information to be sent by third countries and by control authorities and control bodies for the purpose of supervision of their recognition under Article 33(2) and (3) of Council Regulation (EC) No 834/2007 for imported organic products and the measures to be taken in the exercise of that supervision (
13
) states:
‘When placed on the Union market until the end of [the transitional periods set out in recitals 1 and 2], organic products imported into the Union under those import schemes have to be produced in accordance with the production rules and subject to control arrangements equivalent to those laid down in Regulation [No 834/2007] as well as with the associated implementing rules laid down in Commission Regulations [No 889/2008] and [No 1235/2008].’
30.
Article 1 of that delegated regulation provides:
‘1.   The annual report to be sent to the Commission in accordance with Article 48(2) of Regulation [2018/848], by 31 March of each year, by a third country referred to in Article 48(1) of that Regulation and included in the list established by an Implementing Regulation to be adopted pursuant to Article 48(3) of Regulation [2018/848] … shall include:
…
(d)
any updates on the production standards applied in the third country assessed as equivalent to the production rules referred to in Titles III and IV of Regulation [No 834/2007];
(e)
any updates on the control measures applied in the third country, assessed as having equivalent effectiveness to those referred to in Title V of Regulation [No 834/2007], and confirmation that such control measures have been permanently and effectively applied;
…
6.   Where the Commission has received a notification from a Member State informing it of a substantiated suspicion of an irregularity or infringement as regards compliance of imported organic products with the requirements laid down in Regulation [No 834/2007] and production standards and control measures accepted as equivalent on the basis of the assessment made, it shall notify the competent authority of the third country thereof. That competent authority shall investigate the origin of the suspected irregularity or infringement and shall, within 30 calendar days from the Commission’s notification, inform the Commission and the Member State concerned of the result of the investigation and of the action taken.’
III. The facts of the main proceedings and the questions referred for a preliminary ruling
31.
Herbaria manufactures the product ‘Blutquick’, a mixture of fruit juice and organically produced herbs. Non-plant vitamins and ferrous gluconate are added to the beverage marketed as a food supplement. The label shows the organic production logo of the European Union, the national organic label and a reference to the fact that the ingredients come from ‘controlled organic agriculture’.
32.
By decision of 18 January 2012, the Bayerische Landesanstalt für Landwirtschaft (Bavarian Regional Office for Agriculture, Germany) ordered, inter alia, that Herbaria remove from the labelling, advertising and marketing of ‘Blutquick’, before 1 December 2012, the reference to organic production, which is protected in accordance with Article 23 of Regulation No 834/2007, on the ground that, under the provisions of that regulation and of Article 27(1)(f) of Regulation No 889/2008, vitamins and minerals could be added to processed products bearing the description ‘organic’ only if their use was legally required. According to the Bavarian Regional Office for Agriculture, that was not the case for ‘Blutquick’.
33.
Herbaria brought an action against that decision before the Verwaltungsgericht München (Administrative Court, Munich, Germany), which referred a number of questions to the Court of Justice on the interpretation of Article 27(1)(f) of that regulation.
34.
After receiving the answer to those questions by the judgment in Herbaria I, the Verwaltungsgericht München (Administrative Court, Munich) dismissed the action brought by Herbaria.
35.
The appeal against that decision was dismissed by judgment of 29 July 2021, against which Herbaria lodged an appeal on a point of law before the Bundesverwaltungsgericht (Federal Administrative Court, Germany), the referring court. That court considers that Regulation No 834/2007 is no longer applicable ratione temporis, as it was replaced by Regulation 2018/848.
36.
Herbaria no longer disputes that, because of the addition of vitamins and ferrous gluconate, Regulation 2018/848 prohibits the reference to organic production when ‘Blutquick’ is placed on the market. According to its interpretation of that regulation, however, that prohibition would not apply to a product imported from the United States having the same characteristics.
37.
In Herbaria’s submission, following an agreement on equivalence entered into by the European Union and the United States, products competing with ‘Blutquick’ and originating in the United States may be placed on the market in the European Union as organic products, with the organic production logo of the European Union, provided only that they comply with the rules on organic production in force in the United States and therefore even where they do not comply with all the rules on organic production required by EU law. That, in its submission, constitutes unequal treatment contrary to Article 20 of the Charter.
38.
The Land of Bavaria contends that Herbaria’s interpretation of Regulation 2018/848 is incorrect and that, in actual fact, a product originating in the United States can bear the organic production logo of the European Union only if it satisfies the rules on production laid down in that regulation. There is thus no difference in treatment.
39.
The referring court has doubts, first of all, as to whether, in the circumstances of the main proceedings, a product imported from the United States could bear the organic production logo of the European Union when it does not comply in every respect with the requirements laid down in Regulation 2018/848.
40.
Next, if that should actually be the case, the referring court asks whether that would not constitute unequal treatment prohibited by Article 20 of the Charter and, if so, whether such unequal treatment might be justified in the light of the recognition of the equivalence of the products in question or by the facilitation of trade.
41.
Last, the referring court considers that a similar question arises in relation to the reference to organic production provided for in Article 30(1) of Regulation 2018/848, the use of which by Herbaria was also prohibited.
42.
According to the referring court, where two undertakings manufacture the same processed foodstuff which complies with the equivalent rules on production and control of a third country recognised under Article 48(1) of Regulation 2018/848, but which, because of the addition of certain ingredients, does not comply with the conditions laid down in Article 16(1) of that regulation, in conjunction with Annex II, Part IV, point 2.2.2(f) thereto, and where those two undertakings wish to market their respective products in the European Union with the reference to organic production, there is in that regard, if the circumstances are in principle considered to be comparable, unequal treatment within the meaning of Article 20 of the Charter. Whereas pursuant to the second sentence of Article 30(1) of Regulation 2018/848 the undertaking manufacturing in the European Union would not be able to place the reference to organic production on its product when marketing it within the European Union, the undertaking established in a third country recognised under Article 48 of that regulation would be able to place such a reference on its product. That is because, under Article 45(1)(b)(iii) of Regulation 2018/848, a product covered by that regulation may be imported from a third country for the purpose of being placed on the market within the European Union as an organic product if, among other conditions, it originates from a third country recognised under Article 48 of that regulation and complies with equivalent rules of that third country on production and control, which would be the case of a product equivalent to ‘Blutquick’ that could be marketed in the United States under the denomination ‘organic’, even though vitamins and nutritional minerals have been added to it.
43.
In those circumstances the Bundesverwaltungsgericht (Federal Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Is Article 33(1) of Regulation (EU) 2018/848 to be interpreted as meaning that the organic production logo of the European Union may be used for a processed foodstuff which is imported for the purpose of placing it on the market within the Union as an organic product, under the conditions laid down in Article 45(1) of Regulation (EU) 2018/848, but, because it contains, in addition to plant products, minerals and vitamins of non-plant origin, does not meet the requirements of Article 16(1) of Regulation (EU) 2018/848 in conjunction with Annex II, Part IV, point 2.2.2(f) thereto?
(2)
If Question 1 is to be answered in the affirmative, does it follow from Article 20 of the Charter that the organic production logo of the European Union may be used for a processed foodstuff if it originates from the European Union and complies with the equivalent production and control provisions of a third country recognised in accordance with Article 48(1) of Regulation 2018/848, but does not meet the requirements of Article 16(1) of Regulation (EU) 2018/848 in conjunction with Annex II, Part IV, point 2.2.2(f) thereto?
(3)
Does it follow from Article 20 of the Charter that such a processed product originating from the European Union may bear terms referring to organic production, in accordance with Article 30(1) of Regulation (EU) 2018/848, without using the organic production logo of the European Union?’
44.
Herbaria, the Land of Bavaria and the Commission lodged written observations. They, and the Council of the European Union and the European Parliament, took part in the hearing on 18 March 2024, during which they answered the questions for an oral answer put by the Court.
IV. Analysis
45.
Before answering the referring court’s questions, I should point out that it is not disputed by Herbaria that ‘Blutquick’ cannot bear the European Union organic production logo pursuant to the EU legislation.
46.
In the judgment in Herbaria I, the Court ruled that ‘Article 27(1)(f) of Regulation No 889/2008 must be interpreted as meaning that the use of one of the substances referred to is legally required only when a provision of EU law or a provision of national law compatible therewith directly requires that that substance be added to a foodstuff in order for that foodstuff to be placed on the market’. It added that ‘the use of such a substance is not legally required within the meaning of that provision where a foodstuff is marketed as a food supplement, with a nutrition or health claim or as a foodstuff for a particular nutritional use, although that implies that, in order to comply with the provisions governing the incorporation of substances into foodstuffs, included in’ certain provisions of EU law, ‘that foodstuff must contain a determined quantity of the substance in question’. (
14
)
47.
Although it was delivered on the basis of Regulation No 834/2007, the judgment in Herbaria I remains wholly relevant following the adoption of Regulation 2018/848 in so far as Article 16(1) of, and Annex II, Part IV, point 2.2.2(f)(i) to, that regulation prohibit the addition of minerals, vitamins, amino acids and micronutrients unless their use in food is directly legally required by provisions of EU law or provisions of national law compatible with EU law. Thus, even under that subsequent regulation, Herbaria still cannot affix the organic logo of the European Union on ‘Blutquick’, which contains non-plant vitamins and ferrous gluconate not originating from organic agriculture.
48.
In the proceedings leading to the judgment in Herbaria I, Herbaria had already raised, in its written observations, the risk of a breach of equality between ‘Blutquick’ and a competing product from the United States which, according to Herbaria, was entitled to use the organic production logo of the European Union. In her Opinion, Advocate General Sharpston had considered that the Court should not respond to that point, since such a question had not been formulated by the referring court. (
15
) The Court had followed the same reasoning and had not responded to that issue, which was not raised by the referring court. (
16
)
49.
In order to obtain the right to use the organic production logo of the European Union while not complying with the EU legislation on organic production, Herbaria again relied before the referring court on unequal treatment between ‘Blutquick’ and a product imported from a third country (the United States) recognised, in accordance with Article 48 of Regulation 2018/848, for the purpose of equivalence under Article 33(2) of Regulation No 834/2007, which may benefit from the organic production logo of the European Union.
50.
In other words, Herbaria bases its argument on the certainty that that logo may be used for such an American product and that ‘Blutquick’ is the subject of unequal treatment, since that logo cannot be affixed to it, although it meets the American organic production standards.
A.
The first question
51.
By its first question, the referring court asks the Court of Justice whether, in essence, the organic production logo of the European Union may be affixed to a product which is imported according to the procedure provided for in Article 45(1) of Regulation 2018/848 but which does not satisfy the requirements of Article 16(1) of that regulation, read in conjunction with Annex II, Part IV, point 2.2.2(f)(i) to that regulation.
52.
In order to answer that question, it is necessary to determine, first, which import regime is applicable and, second, which regulation is applicable to that type of imported product.
53.
As regards, first, the applicable import regime, Article 45(1) of Regulation 2018/848, about which the referring court questions the Court, sets out three import procedures, which are described in Article 45(1)(b). The first relates to products which comply with the chapters of that regulation on the objectives and principles of organic production, the production rules and labelling (compliance of the product). (
17
) The second concerns products from third countries which the European Union has recognised, on the basis of a trade agreement, as having a production system that complies with the same objectives and principles in application of rules guaranteeing the same level of assurance and compliance as those of the European Union (equivalence on the basis of a trade agreement). (
18
) The third concerns products that satisfy the equivalent rules of the third country recognised unilaterally by the Commission in accordance with Article 48 of that regulation, with respect to production and control. (
19
) This last procedure corresponds to that established by Article 33(2) of Regulation No 834/2007 (unilateral equivalence on the basis of Regulation No 834/2007).
54.
Herbaria asserts that the import of the American products is governed by a trade agreement and therefore comes under Article 45(1)(b)(ii) of Regulation 2018/848.
55.
While it is true that there is an exchange of letters between the United States Department of Agriculture and the Commission, that exchange took place in the context of the publication, on 15 February 2012, in the Official Journal of the European Union of Implementing Regulation No 126/2012; that implementing regulation amended Commission Regulation No 1235/2008 in order to add the United States to the list in Annex III to that regulation, as a third country whose production system satisfies principles and rules equivalent to those set out in Titles II, III and IV of Regulation No 834/2007, and whose control measures are of an efficiency equivalent to those set out in in Title V of that regulation. Implementing Regulation No 126/2012 became applicable on 1 June 2012.
56.
Thus, in actual fact, the authorisation of imports of organic products originating from the United States as coming from a third country whose production and control rules are equivalent was given pursuant to Article 33(2) of Regulation No 834/2007, namely on the basis of equivalence recognised unilaterally by the Commission. That is confirmed by the Commission in its report drawn up pursuant to Article 49 of Regulation 2018/848. (
20
)
57.
As regards, second, the legal framework applicable to the imported product, while there is no doubt that Regulation 2018/848 now applies to products of the European Union and that, in order to be eligible for the organic production logo of the European Union, ‘Blutquick’ must comply with the requirements of that regulation, the answer is less clear for products imported from third countries whose production and control rules are recognised as equivalent.
58.
Indeed, Regulation No 834/2007, although repealed by Regulation 2018/848, continues to apply for the purpose of completing the examination of pending applications from third countries. (
21
) Article 58 of Regulation 2018/848 confirms that the repealed Regulation No 834/2007 is to apply to the examination of applications submitted by third countries on the basis of Article 33(2) of that regulation which are pending on 17 June 2018.
59.
Recital 3 of Delegated Regulation 2021/1342 makes express reference to the need for organic products imported under the imports scheme provided for in Article 48(1) of Regulation 2018/848, until the end of the transitional period, to be produced in accordance with the production rules and subject to control arrangements equivalent to those laid down in Regulation No 834/2007. Likewise, Article 1(1)(d) and (e) of that delegated regulation refers to equivalence to the rules on production and control laid down in Regulation No 834/2007.
60.
The hesitation may, in fact, result from the difference in wording between Article 33(2) of Regulation No 834/2007, which creates the mechanism of unilateral equivalence for third countries, and Article 45(1)(b)(iii) of Regulation 2018/848, which employs that mechanism.
61.
Whereas Article 33(2) of Regulation No 834/2007 states that ‘the Commission may … recognise the third countries whose system of production complies with principles and production rules equivalent to those laid down in Titles II, [ (
22
)] III [ (
23
)] and IV [ (
24
)] and whose control measures are of equivalent effectiveness to those laid down in Title V, [ (
25
)] and establish a list of these countries’, Article 45(1)(b)(iii) of Regulation 2018/848 states that the ‘product complies with the equivalent production and control rules of that third country’.
62.
First of all, the scope of the equivalence sought does not seem to correspond between those two articles, since Article 45 of Regulation 2018/848 does not refer explicitly to the rules on labelling.
63.
However, that difference in wording, which may be explained by the fact that that part of Article 45(1)(b)(iii) of Regulation 2018/848 is the result of an amendment by the Parliament, (
26
) must not lead to those articles being interpreted differently as regards equivalence. In the first version, the labelling rules are included in the production principles and rules. Consequently, where the production rules in Article 45(1)(b)(iii) of Regulation 2018/848 are concerned, the labelling rules are included, contrary to the Commission’s assertion in its written observations.
64.
In order to answer the first question referred for a preliminary ruling, it seems to me that a distinction must be drawn between the situation in which the product complies with the requirements of Regulation 2018/848 (
27
) and the other two situations involving imports which rely on an equivalence mechanism on the basis of a trade agreement (
28
) or of Regulation No 834/2007. (
29
)
65.
As regards products that comply with the requirements of Regulation 2018/848, there is nothing to prevent the use of the organic production logo of the European Union, since Article 33(1) of that regulation states that it may be used in the labelling, presentation and advertising of products which comply with that regulation.
66.
As regards products imported by reason of equivalence on the basis of a trade agreement or Regulation No 834/2007, although the use of the organic production logo of the European Union is covered, for the former, by Article 33(1) of Regulation 2018/848 and, for the latter, by Article 25 of Regulation No 834/2007, (
30
) as the wording of those two articles refers to compliance with the requirements laid down in the applicable regulation I propose to deal with the interpretation of those two articles together. That is particularly justified because, while the unilateral equivalence arrangement on the basis of Regulation No 834/2007 is supposed to end on 31 December 2026, (
31
) it is to be replaced by the new equivalence arrangement based on a trade agreement, since the Council gave its instructions to the Commission with a view to the conclusion of those agreements (
32
) and the interpretation placed on one of those articles will apply to the other, owing to the identical nature of the terms used.
67.
Since the organic production logo of the European Union can be used only in the labelling, presentation and advertising of products which comply with the applicable regulation, on a literal interpretation of the words of Article 33(1) of Regulation 2018/848 and of Article 25 of Regulation No 834/2007 the use of that logo would be reserved to compliant products (and not to equivalent products).
68.
If that interpretation prevailed, the logo would be conceived as a CE marking or the EU Ecolabel, for example, which are marks of compliance with the EU harmonisation rules, based on the compliance of the product with those rules.
69.
The CE marking is the only marking which attests the conformity of the product with the applicable requirements of the relevant EU harmonisation legislation providing for its affixing. (
33
) By affixing or having affixed the CE marking, the manufacturer indicates that he or she takes responsibility for the conformity of the product with all applicable requirements set out in the relevant Community harmonisation legislation providing for its affixing. (
34
) Products from third countries entering the EU market must comply with all applicable EU requirements. (
35
)
70.
As for the EU Ecolabel, (
36
) although it is optional, it can be used only in connection with products that comply with the EU Ecolabel criteria applicable to the products concerned and for which the EU Ecolabel has been awarded. (
37
) Where a product comes from outside the European Union, the application for the award of that label is to be presented to one of the competent bodies in one of the Member States in which the product is to be or has been placed on the market. (
38
) There are no different criteria for the award of that label for products imported into the European Union.
71.
The literal interpretation of Article 33(1) of Regulation 2018/848 and of Article 25 of Regulation No 834/2007, which reserve the organic production logo of the European Union solely to products which comply with the applicable regulation, might be justified, even in the case of imported products which are non-compliant but which satisfy the legislation of the country of origin applicable to organic production.
72.
In fact, Article 25(2) of Regulation No 834/2007 and Article 33(5) of Regulation 2018/848 provide that national logos and private logos may be used in the labelling, presentation and advertising of products which comply with the applicable regulation and that the use of the organic production logo of the European Union is optional for products imported from third countries. (
39
) It might therefore be envisaged that, in the event of imports on the basis of equivalence, those national logos or private logos certifying that the national or private rules with which the imported products should comply in the country of origin have been respected should be accepted within the European Union on the basis of mutual recognition, but that the organic production logo of the European Union should be reserved to products that satisfy the requirements of the applicable regulation, in the interest of harmonisation and clarity for consumers on the territory of the European Union.
73.
Furthermore, that mutual recognition allied to the use of the organic production logo of the European Union reserved to compliant products would not be contrary to the provisions of the Agreement on Technical Barriers to Trade, (
40
) since the only things prohibited are technical regulations, (
41
) standards (
42
) and procedures for assessing compliance (
43
) that afford less favourable treatment for imported products by comparison with national products. However, in the present case, it is not the importer that complains of less favourable treatment, but the EU producer who complains that an imported product is treated more favourably.
74.
The teleological interpretation may also result in the use of the organic production logo of the European Union being reserved solely to products that comply with the applicable regulation. Both Regulation No 834/2007 and Regulation 2018/848 emphasise the need for consumer confidence in organic production, in terms of labelling and transparency. (
44
)
75.
Appealing though they may be, those literal and teleological interpretations nonetheless run counter to the intention of the EU legislature that is clearly revealed in various documents and in particular by the drafting history of Regulation 2018/848.
76.
Indeed, as early as 2004, it has been apparent, in Regulation (EC) No 392/2004, (
45
) that the logo indicating that products were covered by the inspection scheme provided for in the Community legislation of the time could be used for products imported from third countries. (
46
) In the same year, in the European Action Plan for Organic Food and Farming, (
47
) the Commission, in Action 19 – aimed at stepping up efforts to include third countries in the equivalency list, including on-the-spot assessments – had envisaged offering all products imported on the basis of equivalence access to the Community logo. It confirmed that position in the annex to that action plan, indicating that Action 19 was aimed at achieving a wider use of the logo on imported products. (
48
)
77.
In 2014, in the Impact Assessment accompanying the proposal that was to become Regulation 2018/848, the Commission, after describing the various import regimes based on compliance or equivalence, announced that all imported products could bear the organic production logo of the European Union. (
49
)
78.
It is clear, therefore, that several import schemes exist or existed, one based on compliance, and the others on equivalence, but that all are or were intended to allow the use of the organic production logo of the European Union.
79.
In that sense, compliance is seen not only as compliance with the EU rules, but also as compliance with the rules of the trade agreement, of the third country or of the supervisory body concerned which were deemed to be equivalent. Consequently, where they refer to compliance with the requirements of the applicable regulation, Article 25(1) of Regulation No 834/2007 and Article 33(1) of Regulation 2018/848 must be understood as requiring compliance with the rules on production and control deemed to be equivalent to the rules of the applicable regulation.
80.
Providing information to consumers is not overlooked in that choice made by the EU legislature.
81.
Although the organic production logo of the European Union is the same for all organic products, whether imported or not, the indications that have to accompany it differ according to the origin of the raw material and the place of control of compliance with the organic standards.
82.
Thus, Article 24(1)(c) of Regulation No 834/2007 and Article 32(2) of Regulation 2018/848 state that, where the logo is used, an indication of the place where the raw materials have been farmed is to appear in the same visual field, in one of the following forms, as appropriate: ‘EU Agriculture’, ‘non-EU Agriculture’ or ‘EU/non-EU Agriculture’.
83.
Likewise, Annex XI, Part B, point 1 to Regulation No 889/2008 (as amended by Commission Regulation (EU) No 271/2010 of 24 March 2010 (
50
)), Implementing Regulation No 834/2007 and Annex V, point 2(a) to Regulation 2018/848 all provide that the logo is to be accompanied by code numbers, the first two letters of which correspond to the ISO code for the country where the compliance controls take place.
84.
Therefore, examination of the logo and of the compulsory indications shows, first, that the raw materials of the products – on which the organic production logo of the European Union with the indication ‘EU Agriculture’ is placed – were cultivated in accordance with the EU standards and, second, that the rules on organic production of the country indicated in the country code were controlled, while the competent control authority or body is that to which the operator that carried out the last production or preparation operation is subject. (
51
)
85.
Thus, the product competing with ‘Blutquick’ bears the following compulsory indications: ‘US’ and ‘non-EU Agriculture’. If ‘Blutquick’ were authorised to bear the organic production logo of the European Union, it would have to bear the logo with the indications ‘DE’ and ‘EU Agriculture’.
86.
At the hearing, Herbaria put forward the case of a product composed of raw materials produced in the European Union that were exported to the United States in order to be processed there. Such a processed product, if it complies with the American organic production rules, would be able to obtain the organic production logo of the European Union on being imported into the European Union. However, that logo would be accompanied by the indications ‘US’ and ‘EU Agriculture’.
87.
It seems to me that it is at this stage of the reasoning that it is appropriate to consider the question of the validity of the legislation at issue. That question was raised at the hearing following a question for oral answer put by the Judge-Rapporteur relating to Article 45(1)(b)(iii) of Regulation 2018/848 and led to the Parliament and the Council intervening in the proceedings.
88.
By way of reminder, it should be borne in mind that in matters concerning the CAP the EU legislature has a broad discretion which corresponds to the political responsibilities given to it by Articles 40 and 43 TFEU and that the Court has on several occasions held that the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate, having regard to the objective which the competent institution is seeking to pursue. (
52
)
89.
It is common ground that the legislation applicable in the present case is covered by the CAP. The stated objective of that legislation in favour of organic production is twofold: to provide for a specific market responding to consumer demand for organic products, on the one hand, and to deliver publicly available goods that contribute to the protection of the environment and animal welfare, as well as to rural development, on the other. (
53
) Importing organic products therefore meets that twofold objective. Importing under a scheme of equivalence also makes it possible to develop the market for organic products and encourage more environmentally responsible agriculture outside the European Union.
90.
Regulations No 834/2007 and 2018/848 also state as objectives consumer confidence (
54
) and fair competition. (
55
) Even when it comes to achieving those objectives, I am of the view, like the Council and the Parliament, that the EU legislature’s decision to allow organic products, imported in accordance with certain arrangements, to bear the organic production logo of the European Union, together with compulsory indications of the origin of the raw materials and the country of origin of the compliance control, makes it possible to ensure correct consumer information and a sufficiently fair level of competition.
91.
Indeed, as regards fair competition, the drafting history of Regulation No 834/2007 (
56
) shows, inter alia, that the EU legislature was fully aware of the risk of unfair competition, since a number of delegations had criticised the use of the system of equivalence within the limits of the Codex Alimentarius guidelines (
57
) and expressed fears about the loss of consumer confidence and the reduction of consumer protection.
92.
However, as previously stated, consumer information is ensured by the presence of the organic production logo of the European Union together with the compulsory indications referred to above.
93.
Admittedly, although other methods might have been chosen, the method employed is not of a manifestly inappropriate nature, which alone could affect the lawfulness of the standard.
94.
Furthermore, the recognition of equivalence for third countries is not left to the arbitrary choice of the Commission. The Commission’s discretion is circumscribed by Article 33(2) of Regulation No 834/2007 (
58
) and must take account of Codex Alimentarius guidelines CAC/GL 32.
95.
In any event, the standard the lawfulness of which is disputed is not Article 45(1)(b)(iii) of Regulation 2018/848, but Implementing Regulation No 126/2012, which added the United States to the list of third countries whose system is recognised as equivalent, and only in so far as it permitted imports of products to which non-plant vitamins and ferrous gluconate not originating from organic farming are added.
96.
I therefore propose that the referring court’s first question relating to products imported on the basis of equivalence by virtue of Regulation No 834/2007, by application of Article 45(1)(b)(iii) of Regulation 2018/848, should be answered as follows: Article 25(1) of Regulation No 834/2007 must be interpreted as meaning that the organic production logo of the European Union, together with the compulsory indications provided for in Article 24 of that regulation, may be affixed to products imported from a third country on the basis of Article 45(1)(b)(iii), Article 48(1) and Article 58 of Regulation 2018/848 where those products comply with the rules on production and control of that country listed in Annex III to Regulation No 1235/2008.
B.
The second and third questions
97.
By its second and third questions, which should be dealt with together, the referring court asks whether Article 20 of the Charter means that the organic production logo of the European Union or terms referring to organic production in accordance with Article 30(1) of Regulation 2018/848 may be used for a processed foodstuff where it originates from the European Union and meets the equivalent rules on production and control of a third country recognised in accordance with Article 48(1) of that regulation, but does not satisfy the conditions laid down in Article 16(1) of that regulation, read in conjunction with Annex II, Part IV, point 2.2.2(f) to that regulation.
98.
By way of reminder, ‘Blutquick’ must satisfy the conditions of the new legislation, namely Regulation 2018/848, in order to be able to use the organic production logo of the European Union.
99.
As regards the use of terms referring to organic production, Article 30(1) of Regulation 2018/848 reserves such use to products produced in accordance with that regulation. The requisite compliance is the same as that required by Article 33(1) of that regulation for the use of the organic production logo of the European Union. The analysis must, therefore, be the same with respect to compliance with the principle of equality.
100.
Furthermore, as regards compliance with the principle of equality, enshrined in Article 20 of the Charter, the Court consistently holds that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified. (
59
)
101.
In the present case, in spite of Herbaria’s assertions, the situations are not comparable and do not receive the same treatment when viewed upstream of the market. In any event, even from the consumer’s viewpoint, the unequal treatment may be justified.
102.
If one considers the comparability of the situations upstream of access to the market, ‘Blutquick’ must comply with the rules of the European Union, while the American product must comply with the American rules. Furthermore, that compliance must be verified by a control body with competence for the country concerned. Access to the EU market is automatic for products of the European Union, whereas American products must be imported according to the procedures laid down in Article 45 of Regulation 2018/848. The affixing of the organic production logo of the European Union is, therefore, only optional for the American product. Accordingly, the situations are not comparable and may be treated differently.
103.
Be that as it may, if comparability is considered from the viewpoint of the consumer, on the other hand, the two products are comparable, since they both contain non-plant vitamins and ferrous gluconate not originating from organic farming. However, they are not treated in the same way by the legislation, because the American product bears the organic production logo of the European Union with mentions of the country of control of compliance ‘US’ and ‘non-EU Agriculture’, while ‘Blutquick’ cannot carry that logo, even with different mentions. Consequently, from the viewpoint of the consumer, the treatment is different.
104.
Nonetheless, any unequal treatment is justified by the following factors.
105.
First, aligning the obtaining of the organic production logo of the European Union, for products of the European Union, with legislation recognised as equivalent, although different in certain aspects, would amount to depriving the EU legislation on organic farming of all effectiveness on the territory of the European Union.
106.
Second, that legislation has beneficial effects not only for consumers who may feed themselves with better quality foodstuffs, but also for the soil and the environment of the European Union, towards which organic farming will be more friendly, from which all residents of the European Union will benefit, including those who do not consume products from organic farming. Those rules therefore guarantee environmental protection and consumer protection, in accordance with Articles 37 and 38 of the Charter.
107.
Third, permitting imports of organic products, including on the basis of equivalence, is likely, first, to increase the supply of organic products for consumers and, second, to promote environmentally friendly production methods in other geographic areas.
108.
Consequently, I propose that the answer to the referring court should be that Article 20 of the Charter does not preclude the organic production logo of the European Union provided for in Article 33(1) of Regulation 2018/848 or terms referring to organic production pursuant to Article 30(1) of that regulation being used for a processed foodstuff, where that foodstuff originates in the European Union and satisfies the equivalent rules on production and control of a third country recognised in accordance with Article 48(1) of Regulation 2018/848 but does not satisfy the conditions laid down in Article 16(1) of that regulation, read in conjunction with Annex II, Part IV, point 2.2.2(f) to that regulation.
V. Conclusion
109.
Having regard to all of the foregoing considerations, I propose that the Court should answer the questions for a preliminary ruling referred by the Bundesverwaltungsgericht (Federal Administrative Court, Germany) as follows:
(1)
Article 25(1) of Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91
must be interpreted as meaning that the organic production logo of the European Union, together with the compulsory indications provided for in Article 24 of that regulation, may be affixed to products imported from a third country on the basis of Article 45(1)(b)(iii), Article 48(1) and Article 58 of Regulation (EU) 2018/848 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, where those products comply with the rules on production and control of that country listed in Annex III to Commission Regulation (EC) No 1235/2008 of 8 December 2008 laying down detailed rules for implementation of Council Regulation (EC) No 834/2007 as regards the arrangements for imports of organic products from third countries.
(2)
Article 20 of the Charter of Fundamental Rights of the European Union does not preclude the organic production logo of the European Union provided for in Article 33(1) of Regulation 2018/848 or terms referring to organic production pursuant to Article 30(1) of that regulation being used for a processed foodstuff, where that foodstuff originates in the European Union and satisfies the equivalent rules on production and control of a third country recognised in accordance with Article 48(1) of Regulation 2018/848 but does not satisfy the conditions laid down in Article 16(1) of that regulation, read in conjunction with Annex II, Part IV, point 2.2.2(f) to that regulation.
(
1
)	Original language: French.
(
2
)	Judgment of 5 November 2014, Herbaria Kräuterparadies (C‑137/13, ‘the judgment in Herbaria I’, EU:C:2014:2335).
(
3
)	OJ 2018 L 150, p. 1.
(
4
)	‘The Charter’.
(
5
)	OJ 2007 L 189, p. 1.
(
6
)	OJ 2008 L 250, p. 1.
(
7
)	OJ 2008 L 334, p. 25.
(
8
)	OJ 2012 L 41, p. 5.
(
9
)	Regulation of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ 2011 L 304, p. 18).
(
10
)	Regulation of the European Parliament and of the Council of 12 June 2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control and repealing Council Directive 92/52/EEC, Commission Directives 96/8/EC, 1999/21/EC, 2006/125/EC and 2006/141/EC, Directive 2009/39/EC of the European Parliament and of the Council and Commission Regulations (EC) No 41/2009 and (EC) No 953/2009 (OJ 2013 L 181, p. 35).
(
11
)	Commission Directive of 5 December 2006 on processed cereal-based foods and baby foods for infants and young children (OJ 2006 L 339, p. 16).
(
12
)	OJ 2020 L 381, p. 1.
(
13
)	OJ 2021 L 292, p. 20.
(
14
)	See judgment in Herbaria I (paragraph 51).
(
15
)	See Opinion of Advocate General Sharpston in Herbaria Kräuterparadies (C‑137/13, EU:C:2014:318, points 57 to 66).
(
16
)	See judgment in Herbaria I (paragraphs 49 and 50).
(
17
)	See Article 45(1)(b)(i) of Regulation 2018/848.
(
18
)	See Article 45(1)(b)(ii) and Article 47 of Regulation 2018/848.
(
19
)	See Article 45(1)(b)(iii) of Regulation 2018/848.
(
20
)	Report from the Commission to the European Parliament and the Council on the recognition of third countries for the purpose of equivalence on organic products (COM(2022) 728 final), point 3.
(
21
)	See Articles 56 and 58 of Regulation 2018/848.
(
22
)	Title II, entitled ‘Objectives and principles for organic production’.
(
23
)	Title III, entitled ‘Production rules’.
(
24
)	Title IV, entitled ‘Labelling’.
(
25
)	Title V, entitled ‘Controls’.
(
26
)	See Information Note of 27 April 2018 from the General Secretariat of the Council to the Special Committee on Agriculture/Council on the Proposal for a Regulation of the European Parliament and of the Council on organic production and labelling of organic products, amending Regulation (EU) No XXX/XXX of the European Parliament and of the Council [Official controls Regulation] and repealing Council Regulation (EC) No 834/2007 – Outcome of the European Parliament’s first reading (Strasbourg, 16 to 19 April 2018) (Document 8060/1/18), p. 168.
(
27
)	See Article 45(1)(b)(i) of Regulation 2018/848.
(
28
)	See Article 45(1)(b)(ii) of Regulation 2018/848.
(
29
)	See Article 45(1)(b)(iii) of Regulation 2018/848.
(
30
)	On the ‘Community organic production logo’, renamed the ‘organic production logo of the European Union’ following the Treaty of Lisbon, see recital 4 of Commission Regulation (EU) No 271/2010 of 24 March 2010 amending Regulation (EC) No 889/2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007, as regards the organic production logo of the European Union (OJ 2010 L 84, p. 19).
(
31
)	See Article 1(2) of Regulation 2020/1693.
(
32
)	See Note of 24 June 2021 from the General Secretariat of the Council to Delegations concerning the Annex to the Recommendation for a Council Decision authorising the opening of negotiations on agreements on trade in organic products between the European Union and Argentina, Australia, Canada, Costs Rica, India, Israel, Japan, New Zealand, the Republic of Korea, Tunisia and the United States of America.
(
33
)	See Article 30(4) of Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 (OJ 2008 L 218, p. 30).
(
34
)	See Article 30(3) of Regulation No 765/2008.
(
35
)	See recital 22 of Decision No 768/2008/EC of the European Parliament and of the Council of 9 July 2008 on a common framework for the marketing of products, and repealing Council Decision 93/465/EEC (OJ 2008 L 218, p. 82).
(
36
)	The form of that label is set out in Annex II to Regulation (EC) No 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel (OJ 2010 L 27, p. 1).
(
37
)	See the second subparagraph of Article 9(2) of Regulation No 66/2010.
(
38
)	See Article 9(1)(c) of Regulation No 66/2010.
(
39
)	See the last subparagraph of Article 24(1) of Regulation No 834/2007 and Article 33(3) of Regulation 2018/848.
(
40
)	Agreement set out in Annex 1A to the Agreement establishing the World Trade Organisation (WTO), approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1) (‘the WTO Agreement’).
(
41
)	See Article 2.1 of the WTO Agreement.
(
42
)	See Annex 3, paragraph D to the WTO Agreement, entitled ‘Substantive provisions’.
(
43
)	See Articles 5.1 and 5.1.1 of the WTO Agreement.
(
44
)	See recitals 3, 5 and 22, and Article 1(1) and the second subparagraph of Article 23(2) of Regulation No 834/2007 and recitals 6, 15, 17, 67, 121 and 123, and the second subparagraph of Article 30(2) and Article 46(9) of Regulation 2018/848.
(
45
)	Council Regulation of 24 February 2004 amending Regulation (EEC) No 2092/91 on organic production of agricultural products and indications referring thereto in agricultural products and foodstuffs (OJ 2004 L 65, p. 1).
(
46
)	See recital 6 of Regulation No 392/2004.
(
47
)	See Communication from the Commission to the Council and the European Parliament, entitled ‘European Action Plan for Organic Food and Farming’ (COM(2004)415 final).
(
48
)	See Cover Note of 14 June 2004, on behalf of the Secretary-General of the European Commission, from Ms Patricia Bugnot, Director, to Mr Javier Solana, Secretary-General/High Representative, concerning Commission staff working document – Annex to the communication from the Commission entitled ‘European Action Plan for Organic Food and Farming’ (Document 10436/04), pp. 13 and 31.
(
49
)	See Cover Note of 26 March 2014, on behalf of the Secretary-General of the European Commission, from Mr Jordi Ayet Puigarnau, Director, to Mr Uwe Corsepius, Secretary-General of the Council of the European Union, concerning the Impact Assessment accompanying the Proposal for a Regulation of the European Parliament and of the Council on organic production and labelling of organic products, amending Regulation (EU) No XXX/XXX of the European Parliament and of the Council (Official controls Regulation) and repealing Council Regulation (EC) No 834/2007 – Part 3/3, p. 52.
(
50
)	OJ 2010 L 84, p. 19.
(
51
)	See Article 24(1)(a) of Regulation No 834/2007 and Article 32(1)(a) of Regulation 2018/848.
(
52
)	See judgment of 12 July 2012, Association Kokopelli (C‑59/11, EU:C:2012:447, paragraph 39 and the case-law cited).
(
53
)	See recital 1 of Regulation No 834/2007 and Regulation 2018/848.
(
54
)	See footnote 44 of this Opinion.
(
55
)	See recitals 3 and 23, and Article 1(1) and Article 41(2)(c) of Regulation No 834/2007 and recitals 6, 17, 73, 85, 99, 121 and 123, and Article 46(9), of Regulation 2018/848.
(
56
)	See Council Document 8136/06 of 6 April 2006, concerning the result of the work carried out by Working Group on Foodstuff Quality (Organic Farming) at the meeting on 30 and 31 March 2006, point 17.
(
57
)	Codex Alimentarius guidelines CAC/GL 32 for the Production, Processing, Labelling and Marketing of Organically Produced Foods, drawn up under the guidance of the Food and Agriculture Organisation of the United Nations and the World Health Organisation.
(
58
)	That article provides that ‘the Commission may … recognise the third countries whose system of production complies with principles and production rules equivalent to those laid down in Titles II, III and IV and whose control measures are of equivalent effectiveness to those laid down in Title V, and establish a list of these countries’.
(
59
)	See judgment of 8 September 2022, Ametic (C‑263/21, EU:C:2022:644, paragraph 56 and the case-law cited).