62023CC0228
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 25 April 2024 (
1
)
Case C‑228/23
Association AFAÏA
v
Institut national de l’origine et de la qualité (INAO),
intervener:
Ministre de l’Agriculture et de l’Alimentation
(Request for a preliminary ruling from the Conseil d’État (Council of State, acting as Supreme Administrative Court, France))
(Reference for a preliminary ruling – Agriculture – Organic production – Regulation (EU) 2018/848 – Use of fertilisers, soil conditioners and nutrients in organic production – Implementing Regulation (EU) 2021/1165 – Annex II – Concepts of factory farming and landless livestock production – Criteria for categorising livestock farming as factory farming for the purposes of Annex II to Implementing Regulation 2021/1165)
1.
In this reference for a preliminary ruling, the Court is asked to interpret the concept of factory farming, (
2
) which appears in Regulation (EU) 2018/848 (
3
) and Implementing Regulation (EU) 2021/1165. (
4
)
2.
The main proceedings have arisen against the background of increased organic production, (
5
) which is echoed in EU law. One of the issues raised concerns the fertilisation of land used for organic production, (
6
) which the EU legislature has yet to regulate with the necessary precision.
3.
Regulation 2018/848 and Implementing Regulation 2021/1165 permit, by way of exception and subject to certain conditions, the use in organic agriculture of non-organic manure (
7
) from conventional livestock farming. (
8
) The main restriction imposed by those provisions on the use of such manure is that it must not originate from factory farming. The reference for a preliminary ruling seeks to determine, specifically, what is meant by that term.
I. Legal framework: EU law
A.
Regulation 2018/848
4.
In accordance with Article 4 (‘Objectives’):
‘Organic production shall pursue the following general objectives: … (b) maintaining the long-term fertility of soils; … (d) substantially contributing to a non-toxic environment; (e) contributing to high animal welfare standards and, in particular, to meeting the species-specific behavioural needs of animals; …’
5.
Article 5 (‘General principles’) provides:
‘Organic production is a sustainable management system that is based on the following general principles:
(a)
respect for nature’s systems and cycles and the sustainment and enhancement of the state of the soil, the water and the air, of the health of plants and animals, and of the balance between them;
…
(d)
the production of a wide variety of high-quality food and other agricultural and aquaculture products that respond to consumers’ demand for goods that are produced by the use of processes that do not harm the environment, human health, plant health or animal health and welfare;
…
(g)
the restriction of the use of external inputs; where external inputs are required or the appropriate management practices and methods referred to in point (f) do not exist, the external inputs shall be limited to:
(i)
inputs from organic production; in the case of plant reproductive material, priority shall be given to varieties selected for their ability to meet the specific needs and objectives of organic agriculture;
(ii)
natural or naturally derived substances;
(iii)
low solubility mineral fertilisers;
…
(j)
the observance of a high level of animal welfare respecting species-specific needs.’
6.
Paragraph 3 of Article 9 (‘General production rules’) provides:
‘For the purposes and uses referred to in Articles 24 and 25 and in Annex II, only products and substances that have been authorised pursuant to those provisions may be used in organic production, provided that their use in non-organic production has also been authorised in accordance with the relevant provisions of Union law and, where applicable, in accordance with national provisions based on Union law.
…’
7.
In accordance with paragraph 1 of Article 12 (‘Plant production rules’):
‘Operators that produce plants or plant products shall comply, in particular, with the detailed rules set out in Part I of Annex II.’
8.
Paragraph 1 of Article 14 (‘Livestock production rules’) provides:
‘Livestock operators shall comply, in particular, with the detailed production rules set out in Part II of Annex II and in any implementing acts referred to in paragraph 3 of this Article.’
9.
Article 24 (‘Authorisation of products and substances for use in organic production’) reads:
‘1.   The Commission may authorise certain products and substances for use in organic production, and shall include any such authorised products and substances in restrictive lists, for the following purposes:
…
(b)
as fertilisers, soil conditioners and nutrients;
…
3.   The authorisation of the products and substances referred to in paragraph 1 for use in organic production shall be subject to the principles laid down in Chapter II and to the following criteria, which shall be evaluated as a whole:
…
(d)
in the case of products referred to in point (b) of paragraph 1, their use is essential for building or maintaining the fertility of the soil or to fulfil specific nutritional requirements of crops, or for specific soil-conditioning purposes;
…’
10.
Annex II, Part I (‘Plant production rules’) states:
‘In addition to the production rules laid down in Articles 9 to 12, the rules set out in this Part shall apply to organic plant production.
1. General requirements
…
1.9 Soil management and fertilisation
…
1.9.2.
The fertility and biological activity of the soil shall be maintained and increased:
…
(c)
in all cases, by the application of livestock manure or organic matter, both preferably composted, from organic production.
1.9.3.
Where the nutritional needs of plants cannot be met by the measures provided for in points 1.9.1 and 1.9.2, only fertilisers and soil conditioners that have been authorised pursuant to Article 24 for use in organic production shall be used, and only to the extent necessary. Operators shall keep records of the use of those products.
…’
11.
Annex II, Part II (‘Livestock production rules’) states:
‘In addition to the production rules laid down in Articles 9, 10, 11 and 14, the rules laid down in this Part shall apply to organic livestock production.
1. General requirements
1.1
Except in the case of beekeeping, landless livestock production, where the farmer intending to produce organic livestock does not manage agricultural land and has not established a written cooperation agreement with a farmer as regards the use of organic production units or in-conversion production units for that livestock, shall be prohibited.
…
1.4.2.1
… organic animals shall graze on organic land …
1.6.3.
The stocking density in buildings shall provide for the comfort, well-being and species-specific needs of the animals, and shall depend in particular on the species, the breed and the age of the animals. …
…
1.6.8.
Cages, boxes and flat decks to raise livestock shall not be used for any livestock species.
…’
B.
Implementing Regulation 2021/1165
12.
Article 2 provides:
‘For the purposes of point (b) of Article 24(1) of Regulation [2018/848], only the products and substances listed in Annex II to this Regulation may be used in organic production as fertilisers, soil conditioners and nutrients for plant nutrition … provided that they are compliant with the relevant provisions of Union law …’
13.
Annex II provides:
‘Fertilisers, soil conditioners and nutrients listed in this Annex may be used in organic production, provided that they are compliant with
–
the relevant Union and national legislations on fertilising products, in particular, where applicable, Regulation (EC) 2003/2003 [of the European Parliament and of the Council of 13 October 2003 relating to fertilisers (OJ 2003 L 304, p. 1)] and Regulation (EU) 2019/1009 [of the European Parliament and of the Council of 5 June 2019 laying own rules on the making available on the market of EU fertilising products and amending Regulations (EC) No 1069/2009 and (EC) No 1107/2009 and repealing Regulation 2003/2003 (OJ 2019 L 170, p. 1)]; and
…
They may only be used according to the specifications and restrictions of use of those respective Union and national legislations. More restrictive conditions for use in organic production are specified in the right column of the tables.
Name
Compound products or products containing only materials listed hereunder
Description, specific conditions and limits
Farmyard manure
product comprising a mixture of animal excrements and vegetable matter (animal bedding and feed material)
factory farming origin forbidden
Dried farmyard manure and dehydrated poultry manure
factory farming origin forbidden
Composted animal excrements, including poultry manure and composted farmyard manure included
factory farming origin forbidden
Liquid animal excrements
use after controlled fermentation and/or appropriate dilution
factory farming origin forbidden
…’
II. Facts, dispute and questions referred for a preliminary ruling
14.
The Institut national de l’origine et de la qualité (National Institute of Origin and Quality, France; ‘the INAO’) is a public body which, under the supervision of the competent ministry, is responsible for implementing France’s policy relating to official signs identifying the quality and origin of agricultural and agri-food products.
15.
In 2020, the INAO amended its ‘reading guide’ (
9
) to European legislation in order, inter alia, to interpret the prohibition, contained in Annex I to Regulation (EC) No 889/2008, (
10
) on the use on organic land of fertilisers and soil conditioners of animal origin from ‘factory farming’.
16.
According to the reading guide, manure ‘from livestock raised in integral slatted or grid systems and exceeding the thresholds defined in Annex I to Directive 2011/92/EU’, as well as from ‘livestock raised in cages and exceeding’ those thresholds, is prohibited.
17.
The association AFAÏA (
11
) requested the revocation of that part of the guide but the INAO refused its request on 4 February 2020.
18.
AFAÏA applied to the Conseil d’État (Council of State, acting as Supreme Administrative Court, France) for the annulment of the decision of the INAO of 4 February 2020. (
12
) AFAÏA argued that the INAO lacked the authority to adopt additional measures in connection with Regulations (EC) No 834/2007 (
13
) and No 889/2008 and that the reading guide misconstrued the meaning and scope of those regulations. The request for a preliminary ruling has arisen in those proceedings.
19.
The referring court states that the applicable legislation is that in force at the time judgment is given, that is Regulation 2018/848 and Implementing Regulation 2021/1165. Following the entry into force of those two regulations, the INAO updated the reading guide but did not amend its wording as regards the definition of factory farming. (
14
)
20.
The referring court states that:
–
There are divergences between the different language versions (
15
) in relation to the concept of factory farming, which is not defined in Implementing Regulation 2021/1165 or Regulation 2018/848, or in the earlier provisions on organic agriculture.
–
That concept is interpreted differently by Member States, since some Member States continue to equate the concept with landless livestock production, whereas other Member States distinguish between the two concepts and define factory farming by reference to technical requirements, livestock number thresholds, and requirements in terms of feed.
21.
Against that background the referring court has submitted the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Is Annex II to … Regulation [2021/1165] … to be interpreted as meaning that the concept of factory farming contained therein is equivalent to that of landless livestock production?
(2)
If the concept of factory farming is distinct from the concept of landless livestock production, what criteria must be used to determine whether a livestock holding must be categorised as factory farming within the meaning of Annex II to Regulation [2021/1165]?’
III. Procedure before the Court of Justice
22.
The request for a preliminary ruling was received at the Court on 12 April 2023.
23.
Written observations have been submitted by AFAÏA, the Finnish and French Governments, and the Commission.
24.
At the hearing held on 21 February 2024, oral argument was presented by AFAÏA, the French Government and the Commission.
IV. Assessment
A.
Question 1: the difference between ‘factory farming’ and ‘landless livestock production’
25.
In accordance with the first paragraph of Annex II to Implementing Regulation 2021/1165, ‘fertilisers, soil conditioners and nutrients listed in this Annex may be used in organic production, provided that they are compliant with
–
the relevant Union and national legislations on fertilising products, in particular, where applicable, Regulation (EC) 2003/2003 and Regulation (EU) 2019/1009; and
–
Union legislation on animal by-products, in particular Regulation (EC) No 1069/2009 [of the European Parliament and of the Council of 21 October 2009 laying down health rules as regards animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No 1774/2002 (Animal by-products Regulation) (OJ 2009 L 300, p. 1)] and [Commission] Regulation (EU) No 142/2011 [of 25 February 2011 implementing Regulation No 1069/2009 (OJ 2011 L 54, p. 1)], in particular Annexes V and XI.’
26.
The third paragraph of Annex II stipulates that fertilisers, soil conditioners and nutrients ‘may only be used according to the specifications and restrictions of use of those respective Union and national legislations’. The attached table includes restrictive conditions for organic production.
27.
In particular, that table specifies that, in organic production, ‘factory farming origin [is] forbidden’ for the following products: farmyard manure; (
16
) dried farmyard manure and dehydrated poultry manure; composted animal excrements, including poultry manure and composted farmyard manure; and liquid animal excrements. (
17
)
28.
As the referring court points out, there is no definition of factory farming in Implementing Regulation 2021/1165, Regulation 2018/848, or any other provision of EU law.
29.
Further, the different language versions of Implementing Regulation 2021/1165 are not even the same in relation to use of the term ‘factory farming’, because some of them use the term ‘landless livestock production’ instead. (
18
)
30.
That situation has led to divergent practices: some Member States equate factory farming with landless livestock production, while others define factory farming by reference to technical requirements, animal number thresholds and feed requirements, which vary.
31.
Those differences result in the distortion of competition in the internal market and adversely affect the economic operators involved and suppliers of fertilisers, soil conditioners and nutrients.
32.
Implementing Regulation 2021/1165 does not refer the definition of factory farming to the domestic law of the Member States either. Therefore, the Court must interpret that term in an autonomous and uniform manner, (
19
) using the usual criteria for interpretation. (
20
)
1. Literal interpretation
33.
The third paragraph of Annex II to Implementing Regulation 2021/1165 provides no guidance on the meaning of the term ‘factory farming’ or on whether that term is the same as or different from the term ‘landless livestock production’. Regulation 2018/848 does not do so either.
34.
Reliance on a literal interpretation is particularly difficult where, as here, there are considerable differences between the language versions of the third paragraph of Annex II to Implementing Regulation 2021/1165.
35.
A comparison of those versions reveals that 21 of them refer to livestock farming, production or holding which they qualify as ‘factory’, (
21
)‘intensive’ (
22
) or ‘large-scale’. (
23
) Those terms may be treated as equivalents and, as I have indicated, I have chosen to use the term ‘factory farming’. In contrast, the Danish‑, Dutch- and Portuguese-language versions use the term ‘landless livestock production’. (
24
)
36.
In accordance with the settled case-law of the Court, the different language versions must be interpreted uniformly. (
25
) No version overrides the others. (
26
)
37.
According to its usual meaning, ‘factory farming’ is livestock farming in which the livestock is generally housed and kept under artificially created and controlled conditions. Livestock is reared using methods typical of industry, that is, methods aimed at maximising production over the shortest possible period of time.
38.
Factory farming tends to require high investment, uses enriched foods and preventative antibiotics and has high productivity, but it is liable to generate significant environmental pollution. Specific protection of animal welfare is not necessarily one of its priorities. (
27
)
39.
The concept of ‘landless livestock production’ is not defined in Implementing Regulation 2021/1165 either, or in any other provision of EU law. Point 1.1 of Part II of Annex II to Regulation 2018/848 mentions the term, stating that ‘landless livestock production’ is to be prohibited in specified circumstances. (
28
)
40.
Landless livestock production is, therefore, livestock production carried out in artificial enclosures, where the food does not come from the land on which the holding is situated and from which the effluent is discharged offsite. (
29
)
41.
From a literal point of view, factory farming covers landless livestock production, but it is a broader concept. Livestock holdings may exist which, even though they have land, are categorised as factory farms because of their features. (
30
)
42.
Accordingly, a literal interpretation suggests that the fertilisers, soil conditioners and nutrients whose use in organic agriculture is prohibited by Annex II to Implementing Regulation 2021/1165 are those from factory farming and not just those from landless livestock production. Landless livestock production is, in a way, the most extreme, but not the only, form of factory farming.
2. Historical and systematic interpretation
43.
The divergence between the language versions of Implementing Regulation 2021/1165 already existed in the body of rules which preceded the current rules (Regulation No 834/2007 and Regulation No 889/2008).
44.
Article 12(1)(d) of Regulation No 834/2007 allowed the use of fertilisers and conditioners which had been authorised by the Commission, in addition to those of organic origin. In Annex I to Regulation No 889/2008, the Commission allowed the use of the same products, with the exception of those from ‘factory farming’ (the majority of versions) or from ‘landless livestock production’ (a minority of versions), without defining those concepts.
45.
Previously, Regulation (EEC) No 2092/91, (
31
) repealed by Regulation No 834/2007, provided that:
–
The use of ‘farmyard manure’ and ‘dried farmyard manure and dehydrated poultry manure’ was limited to those ‘coming from extensive husbandry and only in the sense of Article 6(5) of Regulation (EEC) No 2328/91’. (
32
) Therefore, those products could not be used as fertilisers in organic agriculture if they came from factory farming.
–
The use of ‘composted animal excrements, including poultry manure and composted farmyard manure’ and ‘liquid animal excrements’ was not permitted if these came from factory farming (‘factory farming origin’ or, in some versions, ‘landless livestock production’ origin was ‘forbidden’).
46.
Legislative developments show that the concept of factory farming was mainly used in EU legislation before Implementing Regulation 2021/1165. Those developments also show that the concept of landless livestock production is covered by the broader concept of factory farming.
3. Purposive interpretation
47.
The Union legislation on organic production is underpinned by a number of objectives, notably, for the present purposes, the protection of animal welfare and the safeguarding of consumer confidence in products labelled as organic.
48.
It is apparent from a reading of recitals 1 (
33
) and 2 (
34
) of Regulation 2018/848, and of Article 4 thereof, that the protection of animal welfare is an objective of those provisions, which complies with Article 13 TFEU. In accordance with that article, the Union and the Member States ‘shall, since animals are sentient beings, pay full regard to the welfare requirements of animals’ in formulating and implementing the Union’s policies. (
35
)
49.
The Court has held that, ‘by declaring on several occasions its desire to observe a high level of animal welfare in organic farming, the EU legislature intended to highlight that this method of agricultural production is characterised by the observance of enhanced standards with regard to animal welfare in all locations and at all stages of production where it is possible further to improve that welfare’. (
36
)
50.
The protection of animal welfare in organic farming favours restricting the use of manure from factory farming. However, extensive livestock farming is compatible with an enhanced level of animal welfare, even where it is not organic.
51.
Recital 6 of Regulation 2018/848 states that the legal framework for organic production is aimed, inter alia, ‘at maintaining and justifying consumer confidence in products labelled as organic’.
52.
The legitimate expectations of consumers of organic products are better guaranteed if organic agriculture input comes from organic sources (or, where those sources are insufficient, if they use input which is non-organic but expressly authorised by the Commission, in order to exclude as many contaminants as possible). In the case of fertilisers, the exclusion of those of factory farming origin reflects the same logic.
53.
The effects of both those objectives on the interpretation of ‘factory farming’ is the same as that resulting from the application of literal and historical criteria. Furthermore, that interpretation is consistent with points 1.9.2(c) and 1.9.3 of Part I of Annex II to Regulation 2018/848, which provides, as a rule, for the preferred use of animal manure or organic matter from organic production in organic agriculture.
54.
Article 24(4)(d) of Regulation 2018/848 may apply only by way of exception, if the fertility of the soil and the nutritional requirements of the plants cannot be fulfilled by means of animal manure or organic matter from organic production. In accordance with that provision, it is permitted (only to the extent necessary) to use (non-organic) fertilisers, soil conditioners and nutrients which are expressly authorised by the Commission and which must not come from factory farming, in accordance with the third paragraph of Annex II to Implementing Regulation 2021/1165.
55.
That exception to the general rule must be interpreted strictly, in conformity with the objectives of the legislation on organic agriculture. (
37
)
56.
On the other hand, if the prohibition of use in organic agriculture were limited only to manure from ‘landless livestock production’, that would favour an excessively strict interpretation of the restriction laid down in the third paragraph of Annex II to Implementing Regulation 2021/1165.
57.
At the hearing, AFAÏA argued in favour of just such a broad interpretation, asserting that this would ensure the availability of manure for the constantly expanding field of organic agriculture and would prevent the use of chemical fertilisers which are more harmful to the environment and long-term soil fertility. However, according to data supplied by the French Government at the hearing, that interpretation is not necessary, at the moment, in order to ensure sufficient availability of manure in organic agriculture. (
38
)
58.
The aims of protecting animal welfare and meeting the legitimate expectations of consumers of organic products are, I repeat, better fulfilled by taking manure from conventional livestock farming (the use of which is permitted in organic farming) to mean manure which does not come from factory farming. The latter term covers landless livestock production, naturally, but also other types of production, such as that carried out on insufficient, limited land.
59.
In summary, I believe that the correct interpretation of the third paragraph of Annex II to Implementing Regulation 2021/1165 leads to a finding that the concept of ‘landless livestock production’ is narrower and is not equivalent to that of ‘factory farming’. The latter term encompasses the former, so that fertilisers, soil conditioners and nutrients from factory farming, and not only those from landless livestock production, are not permitted in organic production.
B.
Question 2
60.
The referring court submits its second question in the event that the concept of factory farming is distinct from that of landless livestock production (which, in my view, it is). By that question, the referring court seeks to ascertain which criteria must be used to determine whether livestock production is categorised as factory farming, within the meaning of Annex II to Regulation 2021/1165.
61.
As I have already pointed out, the EU legislature has not defined what is meant by factory farming for the purposes of the application of Implementing Regulation 2021/1165. Despite this lack of regulation, the Court may provide the referring court with guidance for the interpretation of that term, without this amounting to the assumption for itself of legislative functions. (
39
)
62.
Two informative texts, one drafted by the Commission and the other by an expert group assembled by the Commission, shed some light in that regard.
1. The 1995 Commission Guidelines
63.
The Guidelines for the implementation of Regulation No 2092/91, drawn up by the Commission in 1995, (
40
) explained that the Union legislation ruled out the use of manure from factory farms on account of the intensive husbandry techniques used and the presence of undesirable residues in such manure. (
41
)
64.
The guidelines acknowledged that ‘factory farming’ did not have a standard definition in EU law and that it fell to the Member States to define the scope of that concept. However, the Commission suggested that the concept should cover holdings which combine:
–
first, an installation which prevents animals from turning through 360 degrees or which keeps them predominantly in the dark or without being able to lie down, including battery rearing systems in the case of poultry or other animals, and broiler units with stocking rates over 25 kilogrammes per square metre;
–
second, the absence of land used for crop production which would enable the use of manure.
2. The 2021 expert group report
65.
In 2021, the Commission set up an expert group to define, inter alia other tasks, the criteria for the restriction of the use of fertilisers from certain origins, which involved specifying the scope of ‘factory farming’. The report published by that group (
42
) states that it was unable to provide a precise definition but that it was possible to define the scope of that concept through the use of a set of indicators or criteria which point to whether or not there was factory farming.
66.
The 2021 EGTOP report mentions the following criteria as pointing to factory farming: animals raised in cages (poultry, rabbits, and so forth); systems where livestock is not allowed to turn freely through 360 degrees; landless rearing systems; animals for fur production; density of animals in the feeding structures (troughs) above a certain limit; animal welfare conditions (housing systems, solid floor, lighting, and so forth); farms entailing long-distance transportation; preventive use of antibiotics; use of feed containing genetically modified organisms.
67.
The 2021 EGTOP report lists the following criteria for concluding that a conventional livestock holding does not carry out factory farming: free-range rearing; fulfilment of quality schemes (such as Label Rouge, Compassion in World farming, national quality schemes, and so forth) or farm-direct selling and territorial certification (protected designation of origin, protected geographical indication) schemes; restricted use of antibiotics, similar to that in organic livestock farming; the presence of bedding materials of plant origin to increase the organic content of the soil; limitation of animal density at feeding and watering troughs; compliance with EU legislation on animal welfare; use of locally sourced raw materials.
3. Other texts and focus of the Court’s reply
68.
In addition to those two texts, there are EU provisions which refer to ‘factory’ farming. That is the case of Article 4 of Directive 2011/92/EU, (
43
) which makes the projects listed in Annex I, including (point 17) certain ‘installations for the intensive rearing of poultry or pigs’, subject to an environmental impact assessment. (
44
)
69.
As was explained at the hearing, those provisions of Directive 2011/92 apply to environmental impact procedures but they may be used as (approximate) indicators for determining whether the holdings concerned are factory farms. (
45
)
70.
Based on those reference criteria, the Court may provide the referring court with information, as a guide, concerning which livestock manure is permitted in organic farming on the grounds that it does not come from a factory farm.
71.
It is possible to distinguish between three types of manure: (a) that from organic livestock farming; (b) that from conventional extensive or non-factory farming; and (c) that from factory farming.
(a) Manure from organic farming
72.
Regulation 2018/848 provides for the preferred use in organic agriculture of manure and other fertilisers from organic farming (Annex II, Part I, point 1.9.2(c)).
73.
Such manure and fertilisers may not come from factory farming, which cannot be categorised as organic livestock production in accordance with Regulation 2018/848 and its implementing rules.
(b) Manure from conventional extensive or non-factory farming
74.
As I have already explained, Article 24(1) of Regulation 2018/848 provides, by way of exception, that the Commission may authorise certain products and substances, such as fertilisers, soil conditioners and nutrients, for use in organic production, by means of a system of restrictive lists.
75.
Those products and substances are listed in Annex II to Implementing Regulation 2021/1165. The third paragraph of that annex stipulates that the products and substances in question ‘may only be used according to the specifications and restrictions of use of those respective Union and national legislations’. It adds, as an additional restriction for organic farming, that the use of manure originating from factory farming is forbidden.
76.
In short, that list authorises the use for the purposes of organic crop production of fertilisers and manures originating from conventional (non-organic) non-factory farming.
77.
I am in no doubt that conventional extensive livestock farming comes within the category of conventional non-factory farming, so that manure from the former may be used in accordance with Annex II to Implementing Regulation 2021/1165.
78.
In order to determine what is meant by ‘extensive farming’, the 1995 Commission Guidelines, which refer, in relation to beef-cattle, to Article 6(5) of Regulation No 2328/91, (
46
) and the criteria mentioned by the Commission for other types of livestock, in accordance with a number of EU regulations, is helpful.
79.
Identification of the criteria applicable to the concept of conventional non-factory farming is more complicated. That definition is inferred a contrario from the definition of factory farming, bearing in mind that all factory farming is conventional since it does not fulfil the requirements for organic livestock production.
(c) Manure from factory farming
80.
I repeat that Annex II to Implementing Regulation 2021/1165 prohibits the use of manure from factory farming in organic crop production. For the purpose of interpreting ‘factory farming’, in the light of the 1995 Commission Guidelines and the 2021 EGTOP report, the following qualitative criteria, listed non-exhaustively, are relevant:
–
The livestock rearing system. Rearing in cages, boxes or raised decks is a feature of factory farming, (
47
) while free-range rearing indicates, in principle, that livestock production is not factory farming.
–
The mobility of the livestock. The use of systems which prevent animals from moving through 360 degrees is another feature of factory farming. Naturally, factory farming does not use grazing or transhumance, practices which are associated with extensive farming and organic production.
–
The availability of land on the livestock holding. If there is no land other than the land in the enclosure on the holding, it will be landless livestock production which is industrial in nature since the feed for the livestock is brought in from outside and the excrement from the livestock cannot be absorbed without risk by the soil. A livestock holding with land must comply with a minimum area per animal in order not to be a factory farm. Naturally, the density varies from one species to another and must guarantee that it is possible to obtain some of the feed for the livestock and use some of their excrement as fertiliser.
–
The husbandry practices and enclosure conditions on the livestock holding. The availability of water and food troughs per head of livestock and the animal welfare conditions (housing systems, solid floor, lighting, and so forth) are important. The use of slats and grids instead of a solid floor is a sign of factory farming, as is the absence of dry floors with bedding made of plant material so that the animals can rest. (
48
)
–
The type of food provided for the livestock. Food from outside the holding and the use of feed is characteristic of factory farming, as is the lack of access to pasture or roughage as food.
–
Disease prevention systems. The widespread use of preventative treatments using specified veterinary medicines is a sign of factory farming, in which animals are reared in cramped conditions and the risk of epidemics is higher.
–
The widespread use of substances to stimulate growth or production or of hormones or similar substances to control reproduction or for other purposes. (
49
)
81.
Unlike the French Government’s suggestion, the quantitative criterion of the number of animals, unconnected to the area of the holding, does not appear to me to be sufficient by itself to define factory farming. The number of animals may be indicative of factory farming but not a criterion applicable on a standalone basis and independently of the abovementioned qualitative criteria.
82.
Point 17 of Annex I to Directive 2011/92 certainly lays down thresholds per number of animals for the purposes of making intensive poultry and pig farms subject to an environmental impact assessment. However, just because a livestock holding is large in size does not necessarily mean that it is a factory farm, although it will need to have extensive land not to be such a farm. (
50
) In any event, a large livestock farm is likely to have a high environmental impact and therefore Directive 2011/92 provides that the environmental impact of such farms must be assessed, which is not the case of small farms even if they are factory farms.
V. Conclusion
83.
In the light of the foregoing considerations, I propose that the Court of Justice reply to the Conseil d’État (Council of State, acting as Supreme Administrative Court, France) as follows:
The third paragraph of Annex II to Commission Implementing Regulation (EU) 2021/1165 of 15 July 2021 authorising certain products and substances for use in organic production and establishing their lists
is to be interpreted as meaning that:
–
The concept of ‘landless livestock production’ is narrower and is not equivalent to that of ‘factory farming’, in which it is included. Fertilisers, soil conditioners and nutrients from factory farming and, a fortiori, those from landless livestock production may not be used in organic crop production.
–
To categorise a livestock holding as a ‘factory farm’, for the purposes of the third paragraph of Annex II to Implementing Regulation 2021/1165, it is possible to use, inter alia, the following qualitative criteria: the livestock rearing system, the degree of movement available to the livestock, the availability of land on the livestock holding and the density of animals on that land, the husbandry practices and enclosure conditions on the livestock holding, the type of food provided for the livestock, the disease prevention systems and the use of chemical substances to stimulate growth or control reproduction.
(
1
)	Original language: Spanish.
(
2
)	The Spanish version of Implementing Regulation (EU) 2021/1165 uses the term ‘ganadería intensiva’ (intensive production), but most of the language versions refer to ‘ganadería industrial’ (factory farming). I shall use the latter term in my Opinion, since I believe that the two terms have the same meaning in the context of that regulation.
(
3
)	Regulation 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 (OJ 2018 L 150, p. 1).
(
4
)	Commission Implementing Regulation of 15 July 2021 authorising certain products and substances for use in organic production and establishing their lists (OJ 2021 L 253, p. 13).
(
5
)	The proportion of agricultural land in the European Union which is used for organic production increased by more than 50% in the period 2012-2020. In 2020, 9.1% of the agricultural area of the European Union was cultivated organically, a proportion which, in 2021, the European Commission proposed to increase by 25% between then and 2030. In addition, retail sales of organic products doubled in the European Union between 2015 and 2020. See the data in the Market brief on organic farming published by Commission in January 2023, available at: https://agriculture.ec.europa.eu/news/organic-farming-eu-decade-growth-2023-01-18_es?etrans=es#more.
(
6
)	Farms practising organic agriculture need organic matter to fertilise the soil. The use of manure was the traditional method of doing this until the spread of chemical fertilisers, but these are not permitted in organic agriculture, in which the main source of fertilisation continues to be manure.
(
7
)	Most organic livestock farms are extensive, which means that excrement from the livestock is largely spread over the land and is impossible to collect, with the exception of excrement which accumulates in installations that are used as shelter for the livestock. The availability of organic manure is, therefore, limited and insufficient to create enough fertilisers for organic agriculture.
(
8
)	Conventional livestock farming means livestock production which is not organic, that is, which does not meet the conditions laid down by Annex II to Regulation 2018/848.
(
9
)	Guide de lecture pour l’application des règlements (CE) No 834/2007 … et (CE) No 889/2008 (Reading guide for the implementation of Regulations No 834/2007 and No 889/2008). Available at: https://www.inao.gouv.fr/content/download/1352/13877/version/18/file/GUIDE-de-LECTURE-RCE-BIO%202020-01.pdf.
(
10
)	Commission Regulation 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 (OJ 2008 L 250, p. 1).
(
11
)	A professional organisation set up to defend the collective interests of organic fertiliser producers.
(
12
)	AFAÏA also requested that the INAO be ordered to amend the reading guide within one month of the notification of its decision and to accompany that amendment with publicity measures explaining that the new interpretation relating to the definition of livestock manure was no longer applicable or in force.
(
13
)	Council Regulation of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (OJ 2007 L 189, p. 1).
(
14
)	Paragraph 3 of the order for reference states that the INAO published on its website a new reading guide, applicable from 1 January 2022, paragraph 192 of which reproduces the earlier interpretation of the concept of ‘factory farming’.
(
15
)	It points out that the concept is found in most language versions of Implementing Regulation 2021/1165, notably the English version, but that the Danish, Dutch and Portuguese versions refer instead to the concept of ‘landless livestock production’.
(
16
)	It specifies that this is a ‘product comprising a mixture of animal excrements and vegetable matter (animal bedding and feed material)’.
(
17
)	In the latter case, ‘use after controlled fermentation and/or appropriate dilution’ is permitted, but the prohibition on factory farming origin is retained.
(
18
)	See footnotes 21 to 24 to this Opinion.
(
19
)	It follows from the need for the uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union. Judgments of 23 April 2020, Associazione Avvocatura per i diritti LGBTI (C‑507/18, EU:C:2020:289, paragraph 31); of 2 June 2022, HK/Danmark and HK/Privat (C‑587/20, EU:C:2022:419, paragraph 25); and of 30 March 2023, Hauptpersonalrat der Lehrerinnen und Lehrer (C‑34/21, EU:C:2023:270, paragraph 40).
(
20
)	That is, by reference to its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part. Judgments of 23 April 2020, Associazione Avvocatura per i diritti LGBTI (C‑507/18, EU:C:2020:289, paragraph 32); of 2 June 2022, HK/Danmark and HK/Privat (C‑587/20, EU:C:2022:419, paragraph 26); of 30 March 2023, Hauptpersonalrat der Lehrerinnen und Lehrer (C‑34/21, EU:C:2023:270, paragraph 41); and of 8 June 2023, UFC – Que choisir and CLCV (C‑407/21, EU:C:2023:449, paragraph 24).
(
21
)	The term ‘factory farming’ is used by the French (‘provenance d’élévage industriel interdite’), English (‘factory farming origin forbidden’), Italian (‘proibito se proveniente da allevamenti industriali’), Romanian (proveniența din ferme industriale este interzisă’), German (‘Erzeugnis darf nicht aus industrieller Tierhaltung stammen’), Polish (‘Zakazane są produkty pochodzące z chowu przemysłowego’) and Lithuanian (‘medžiagos, gautos pramoninės žemdirbystės būdu, draudžiamos’) versions.
(
22
)	The Bulgarian (‘забранен е произходът от интензивни животновъдни стопанства’), Spanish (‘prohibida la procedencia de ganaderías intensivas’) and Greek (‘η προέλευση από εντατικοποιημένη εκτροφή απαγορεύεται’) versions refer to ‘intensive farming’.
(
23
)	The Czech version (‘Nesmí pocházet z velkochovu’) refers to ‘large-scale livestock farming’.
(
24
)	The Danish (‘ikke fra jordløst husdyrbrug’), Dutch (‘Het product mag niet afkomstig zijn van niet-grondgebonden veehouderij’) and Portuguese (‘Proibidos os produtos provenientes das explorações pecuárias “sem terra”’) versions refer to ‘landless livestock production’.
(
25
)	Judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi (C‑561/19, EU:C:2021:799, paragraph 43).
(
26
)	Judgments of 27 March 1990, Cricket St Thomas (C‑372/88, EU:C:1990:140, paragraph 18), and of 26 January 2021, Hessischer Rundfunk (C‑422/19 and C‑423/19, EU:C:2021:63, paragraph 65).
(
27
)	One example of factory farming are so-called macro-farms, which are characterised by the concentration of a large number of animals on a holding with insufficient land to produce their food and to absorb their excrement without any risk.
(
28
)	That is, where the farmer intending to produce organic livestock does not manage agricultural land and has not established a written cooperation agreement with another farmer as regards the use of organic production units for that livestock.
(
29
)	Again, macro-farms rearing pigs or chickens are an example of this type of livestock farming which is both intensive and landless.
(
30
)	Where the density of livestock per hectare is very high, food is brought in from outside and may be genetically modified, while the land does not have the capacity to absorb the effluent from the livestock without any risk.
(
31
)	Council Regulation of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs (OJ 1991 L 198, p. 1).
(
32
)	Council Regulation of 15 July 1991 on improving the efficiency of agricultural structures (OJ 1991 L 218, p. 1). Pursuant to Article 6(5) of that regulation, aid for investments relating to the beef sector, other than aid for safeguarding the environment, ‘shall be restricted to livestock enterprises where the beef-cattle stocking rate does not, at the end of the plan, exceed three livestock units (LU) per hectare of total forage area used for feeding the cattle …’
(
33
)
(
34
)
(
35
)	See judgments of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others (C‑426/16, EU:C:2018:335, paragraphs 63 and 64), and of 17 December 2020, Centraal Israëlitisch Consistorie van België and Others (C‑336/19, EU:C:2020:1031, paragraphs 41 and 42).
(
36
)	Judgment of 26 February 2019, Œuvre d’assistance aux bêtes d’abattoirs (C‑497/17, EU:C:2019:137, paragraph 38).
(
37
)	Judgment of 29 April 2021, Natumi (C‑815/19, EU:C:2021:336, paragraphs 70 and 71): ‘… Regulation 2018/848 and that draft implementing regulation, including its annexes … show the trend in the area of organic food towards limiting the addition of non-organic substances to organic food’.
(
38
)	According to those data, 75% of the manure from porcine animals and 40% of the manure from birds comes from conventional non-factory farms.
(
39
)	The Court is clearly not the right institution to lay down rules on the definition of factory farming, in the absence of impact studies enabling the consequences of one or other option to be identified, and nor does it have experts with knowledge of that sector. The Commission stated at the hearing that work is underway towards the drafting of a provision which defines the term.
(
40
)	Guidelines for the use of livestock excrements in organic farming (Annex II, part A, to Regulation (EEC) No 2092/91), which are available at: https://www.phosphorusplatform.eu/images/download/Commission%20EU%20COM%20Guidelines%20excrements%20organic%20farming%20-%20Factory%20Farming%20VI568495-EN%20Rev5PPQPPEN955684R5.pdf).
(
41
)	The guidelines stated that, by contrast, the Union legislation allowed the unrestricted use of manure from extensive livestock farming, owing to the low risk that these contain undesirable residues because of the use of fodder and grazing and because of the use of a method of recovering excrements (in principle, a mixture of straw and animal manure in farm buildings) which causes a certain amount of deterioration of the organic matter.
(
42
)	Expert Group for Technical Advice on Organic Production (EGTOP), Factory Farming (the use of fertilisers from conventional animal husbandry in organic plant and algae production). Final Report, May 2021, available at: https://agriculture.ec.europa.eu/document/download/f01f8898-f797-4587-bbdc-cd5c7545af1d_en?filename=egtop-report-on-factory-farming_en.pdf. The ‘2021 EGTOP report’.
(
43
)	Directive of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1).
(
44
)	These are defined as installations with more than: (a) 85000 places for broilers, 60000 places for hens; (b) 3000 places for production pigs (over 30 kg); or (c) 900 places for sows.
(
45
)	See, however, point 82 of and footnote 50 to this Opinion.
(
46
)	In accordance with that provision, aid granted for investments relating to the beef sector, other than aid for safeguarding the environment, is to be restricted to livestock enterprises where the beef-cattle stocking rate does not, at the end of the plan, exceed three livestock units (LU) per hectare of total forage area (the maximum stocking rates of 3 LU/ha and 2.5 LU/ha were authorised for 1994 and 1995 respectively) used for feeding the cattle. Annex 1 to Regulation No 2328/91 contains the table for converting cattle, equines, sheep and goats into livestock units (LU) (referred to in Article 6(5) and Article 19(1)(a) of that regulation): bulls, cows and other bovine animals over two years, equines over six months = 1.0 LU; bovine animals from six months to two years = 0.6 LU; sheep = 0.15 LU, and goats = 0.15 LU.
(
47
)	Point 1.6.8 of Part II of Annex II to Regulation 2018/848 states that, in organic farming, ‘cages, boxes and flat decks to raise livestock shall not be used for any livestock species’.
(
48
)	It should be recalled that, according to the INAO reading guide, manure ‘from livestock raised in integral slatted or grid systems and exceeding the thresholds defined in Annex I to Directive 2011/92/EU’, as well as from ‘livestock raised in cages and exceeding’ those thresholds, is prohibited.
(
49
)	Points 1.5.1.3 and 1.5.1.4 of Annex II to Regulation 2018/848 prohibit the use of those products in organic farming.
(
50
)	As AFAÏA stated at the hearing, a pig farm is not a factory farm because it has, for example, more than 900 places for breeding sows and it does not cease to be a factory farm because it has 899 places, in accordance with the thresholds laid down in Annex I to Directive 2011/92. An extensive pig farm with more than 900 Iberian breeding sows in a large meadow in Extremadura (Spain) or the Alentejo (Portugal) does not constitute a factory farm. However, a holding with 800 breeding sows in a landless installation may be factory farming, even though it does not require an environmental impact assessment.