OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 4 April 2019 ( 1 )

Case C‑686/17

Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main e.V.

v

Prime Champ Deutschland Pilzkulturen GmbH

(Request for a preliminary ruling

from the Bundesgerichtshof (Federal Court of Justice, Germany))

(Reference for a preliminary ruling — Common organisation of the markets — Fruit and vegetables — Cultivated mushrooms — Marketing standards — Indication of the country of origin — Concept of ‘country of origin’ — Country of harvest — Regulation (EC) No 1234/2007 — Article 113a(1) — Regulation (EU) No 1308/2013 — Article 76(1) — Definitions for the non-preferential origin of goods — Regulation (EEC) No 2913/92 — Article 23(1) and (2) — Regulation (EC) No 952/2013 — Article 60(1) — Delegated Regulation (EU) 2015/2446 — Article 31(b) — Stages of production carried out in another Member State — Labelling of foodstuffs — Prohibition of the use of misleading labelling — Directive 2000/13/EC — Article 2(1)(a)(i) — Regulation (EU) No 1169/2011 — Article 7(1)(a) — Article 1(4) — Article 2(3) — Explanatory statements)

I. Introduction

1. By the present request for a preliminary ruling, the Bundesgerichtshof (Federal Court of Justice, Germany) has raised four questions relating to the interpretation of a number of provisions of EU law concerning the country of origin of fruit and vegetables intended to be sold fresh to the consumer.

2. The request has been made in the context of appeal proceedings on a point of law between Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV (Centre for Protection against Unfair Competition, ‘the Zentrale’) and Prime Champ Deutschland Pilzkulturen GmbH (‘Prime Champ’) concerning an action for an order that Prime Champ cease to market cultivated mushrooms harvested in Germany with the label ‘Origin: Germany’.

3. The Zentrale considers that Prime Champ’s use of that labelling, without adding explanatory statements, is misleading for the purposes of Article 2(1)(a)(i) of Directive 2000/13/EC ( 2 ) and Article 7(1)(a) of Regulation (EU) No 1169/2011 ( 3 ) — under which it is prohibited to mislead the consumer as regards food information — where some of the main stages of production and cultivation of mushrooms do not take place in Germany.

4. In that context, by the questions it has referred for a preliminary ruling, the national court is seeking to ascertain whether, in essence, an undertaking can be criticised, under the abovementioned prohibition on misleading consumers, for having indicated the country of origin of a foodstuff without providing explanatory statements given that some of the main stages of production of that foodstuff take place in other Member States, even though the undertaking is not required to provide such information under specific provisions of EU law concerning labelling. In my view, it cannot.

II. Legal framework

A. EU Law

1. Legislation on agriculture

(a) Regulation No 1234/2007

5. Article 113a(1) of Regulation (EC) No 1234/2007 ( 4 ) provides: ‘The products of the fruit and vegetables sector which are intended to be sold fresh to the consumer, may only be marketed if they are sound, fair and of marketable quality and if the country of origin is indicated.’

(b) Regulation No 1308/2013

6. Regulation No 1234/2007 was replaced by Regulation (EU) No 1308/2013. ( 5 ) The provisions of the latter relevant in the present case have been applicable since 1 January 2014. ( 6 ) Article 76(1) of that regulation reproduces, in essence, the content of Article 113a(1) of Regulation No 1234/2007.

2. Customs legislation

(a) Regulation No 2913/92

7. Article 23 of Regulation (EEC) No 2913/92 ( 7 ) (‘the Community Customs Code’) provides: ‘1. Goods originating in a country shall be those wholly obtained or produced in that country. 2. The expression “goods wholly obtained in a country” means: … (b) vegetable products harvested therein; …’

(b) Regulation No 952/2013

8. The Community Customs Code was replaced by Regulation (EU) No 952/2013 ( 8 ) (‘the Union Customs Code’). The provisions of the latter relevant in the present case have been applicable since 1 June 2016. ( 9 )

9. Chapter 2 of the Union Customs Code is entitled ‘Origin of goods’. Section 1 of that chapter is entitled ‘Non-preferential origin’. Article 59, defining the scope of Section 1, provides: ‘Articles 60 and 61 shall lay down rules for the determination of the non-preferential origin of goods for the purposes of applying the following: … (c) other Union measures relating to the origin of goods’.

10. Article 60, entitled ‘Acquisition of origin’, reproduces, in essence, the content of Article 23(1) of the Community Customs Code.

(c) Delegated Regulation 2015/2446

11. Delegated Regulation (EU) 2015/2446 ( 10 ) has been applicable since 1 May 2016. ( 11 ) Article 31 of that regulation reproduces, in essence, the content of Article 23(2)(b) of the Community Customs Code.

3. Consumer protection legislation

(a) Directive 2000/13

12. Article 2(1)(a)(i) of Directive 2000/13 provides that the labelling and methods used must not be such as could mislead the purchaser, inter alia as to the origin of the foodstuff.

(b) Regulation No 1169/2011

13. Directive 2000/13 was replaced by Regulation No 1169/2011, which has been applicable since 13 December 2014. ( 12 )

14. Article 1(4) of that regulation provides: ‘This Regulation shall apply without prejudice to labelling requirements provided for in specific Union provisions applicable to particular foods.’

15. Article 2(3) of Regulation No 1169/2011 provides: ‘For the purposes of this Regulation the country of origin of a food shall refer to the origin of a food as determined in accordance with Articles 23 to 26 of [the Community Customs Code].’ ( 13 )

16. Article 7(1)(a) of that regulation, which reproduces, in essence, the content of Article 2(1)(a)(i) of Directive 2000/13, is worded as follows: ‘Food information shall not be misleading, particularly: (a) as to the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production’.

B. German law

17. In 2013, the applicable version of Paragraph 11(1), first and second sentences, point 1, of the Lebensmittel-, Bedarfsgegenstände- und Futtermittelgesetzbuch (German Code on Foodstuffs, Consumer Items and Animal Feed, ‘the LFGB’) prohibited the marketing and advertising of foodstuffs under a misleading name or using misleading information or presentation, and in particular the use of claims liable to mislead the consumer as to origin or provenance. That provision was intended to transpose Article 2(1)(a)(i) of Directive 2000/13.

18. In accordance with the version in force of Paragraph 11(1), point 1, of the LFGB, it is prohibited for the responsible food business operator or importer, within the meaning of Article 8(1) of Regulation No 1169/2011, to market or advertise foodstuffs with information about that food that does not meet the requirements under Article 7(1) of Regulation No 1169/2011, read in conjunction with Article 7(4) of that regulation.

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

19. Prime Champ produces and markets cultivated mushrooms labelled ‘Origin: Germany’.

20. There are several stages in the mushroom cultivation process. First of all, raw materials for the compost are blended and mixed together for a period of 7 to 11 days in Belgium and the Netherlands. The second stage of production is pasteurisation, which takes five to six days, and preparation of the compost in the Netherlands. The third stage of production consists of injecting mycelium (fungal spores) into the compost over a period of 15 days. In the fourth stage, the formation of fruiting bodies begins in cultivation boxes in the Netherlands, on a layer of peat and lime, and the mushrooms can grow 3 mm in 10 to 11 days. After about 15 days, the cultivation boxes are transported to Germany, where, in Prime Champ’s premises, the first harvest of mushrooms takes place after 1 to 5 days, and the second harvest takes place after 10 to 15 days.

21. The Zentrale considers that using the indication ‘Origin: Germany’ on the labelling of the mushrooms, without additional statements, is misleading, since some of the major stages of production and cultivation, and more specifically the production cycle prior to harvesting, do not take place in Germany and since the compost with the mushrooms is transported to Germany only three days or less prior to the first harvest.

22. After having issued a formal notice to Prime Champ in December 2013, the Zentrale made an application to the Landgericht Ulm (Regional Court, Ulm, Germany) for an order that Prime Champ, on pain of penalty payments, desist from offering for sale and/or using in the course of trade and/or advertising cultivated mushrooms labelled ‘Origin: Germany’.

23. That court rejected the application made by the Zentrale, which then brought an appeal against that decision.

24. The appeal was dismissed by the Oberlandesgericht Stuttgart (Higher Regional Court, Stuttgart, Germany). That court ruled that, while it is true that the indication ‘Origin: Germany’ is misleading, because the public concerned may take it to mean that not only the harvest but the entire production process has taken place in Germany, it is, nevertheless, EU law which requires Prime Champ to affix the contested indication of the country of origin. Indeed, under Article 113a(1) of Regulation No 1234/2007 and Article 76(1) of Regulation No 1308/2013, the country of harvest must be named as the country of origin for vegetable products, and Prime Champ cannot, therefore, be criticised on the basis of legislation on unfair competition for having provided that indication.

25. The Zentrale brought an appeal on a point of a law against that decision before the Bundesgerichtshof (Federal Court of Justice).

26. That court states that, given that the applicant in the main proceedings bases its action for an injunction on a risk of recurrence, the appeal on a point of law is well founded only if the conduct for which the defendant is criticised was not only unlawful at the time of the facts at issue, namely in 2013, but is also unlawful at the time of the decision on the appeal on a point of law.

27. The referring court accordingly finds that the appeal on a point of law may be successful if the indication of the country of origin used by Prime Champ is contrary to the prohibition of the use of misleading statements laid down in Article 2(1)(a)(i) of Directive 2000/13, as transposed in Paragraph 11(1), first and second sentences, point 1, of the version of the LFGB applicable in 2013, and to Article 7(1)(a) of Regulation No 1169/2011 read in conjunction with Paragraph 11(1), point 1, of the version of the LFGB currently in force, regardless of the fact that indication of the country of origin is compulsory under the legislation on a common organisation of agricultural markets, namely Article 113a(1) of Regulation No 1234/2007 and Article 76(1) of Regulation No 1308/2013. ( 14 )

28. In that context, by decision of 21 September 2017, lodged at the Court on 7 December 2017, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) For the purposes of the definition of the term “country of origin” in Article 113a(1) of [Regulation No 1234/2007] and Article 76(1) of [Regulation No 1308/2013], are the definitions in Article 23 et seq. of the Community Customs Code and Article 60 of the Union Customs Code decisive? (2) Do cultivated mushrooms which are harvested in national territory have their origin in that territory pursuant to Article 23 of [the Community Customs Code] and Article 60(1) of [the Union Customs Code] if substantial production steps take place in other Member States of the European Union and the cultivated mushrooms have been transported to the relevant national territory only three days or less prior to the first harvest? (3) Is the prohibition on the making of misleading statements under Article 2(1)(a)(i) of [Directive 2000/13] and Article 7(1)(a) of [Regulation No 1169/2011] to be applied to the indication of origin that is required under Article 113a(1) of [Regulation No 1234/2007] and Article 76(1) of [Regulation No 1308/2013]? (4) Is it permitted to append additional, explanatory elements to the indication of origin prescribed under Article 113a(1) of [Regulation No 1234/2007] and Article 76(1) of [Regulation No 1308/2013] in order to counteract a misleading statement prohibited under Article 2(1)(a)(i) of [Directive 2000/13] and Article 7(1)(a) of [Regulation No 1169/2011]?’

29. The Zentrale, Prime Champ, the German, French and Italian Governments and the European Commission submitted written observations to the Court. With the exception of the French and Italian Governments, those parties attended the hearing held on 23 January 2019.

IV. Analysis

A. Preliminary observations

30. By the four questions which it has referred for a preliminary ruling, the national court asks the Court about the relationship between provisions of EU law concerning the country of origin of fruit and vegetables intended to be sold fresh to the consumer which are set out in three different regulatory areas, namely legislation on agriculture, customs legislation and consumer protection legislation.

31. More specifically, those provisions of EU law are: first, the requirement to indicate the country of origin for the marketing of fruit and vegetables, laid down in Article 113a(1) of Regulation No 1234/2007 and Article 76(1) of Regulation No 1308/2013; secondly, the definitions for the non-preferential origin of goods, laid down in Articles 23 to 26 of the Community Customs Code and in Article 60 of the Union Customs Code read in conjunction with Articles 31 to 36 of Delegated Regulation 2015/2446; and, thirdly, the prohibition on misleading the consumer as regards the country of origin, provided for in Article 2(1)(a)(i) of Directive 2000/13 and Article 7(1)(a) of Regulation No 1169/2011.

32. By its first and second questions, the referring court asks about the relationship between the requirement to indicate the country of origin for the marketing of fruit and vegetables, laid down in the legislation on agriculture, and the definitions for the non-preferential origin of goods, provided for in the Customs Codes, ( 15 ) in order to establish, in essence, whether Prime Champ is required to indicate Germany as the country of origin of the cultivated mushrooms in the dispute in the main proceedings (Section B).

33. Even supposing that that is the case, the referring court seeks to ascertain, by its third and fourth questions, whether the indication of the country of origin used by Prime Champ without any explanatory statements, in the light of the fact that some of the main stages in the production of those cultivated mushrooms take place in other Member States, is nevertheless contrary to the prohibition on the use of misleading statements laid down in consumer protection legislation (Section C). ( 16 )

34. In view of the fact that the appeal on a point of law can be well founded, according to the referring court, only if the conduct for which Prime Champ is criticised not only was unlawful under EU law at the material time, in 2013, but also is unlawful under EU law at the time when the decision is adopted at the stage of the appeal on a point of law, ( 17 ) the questions referred should be examined in the light of the legislation applicable both in 2013 and now.

B. The relationship between the concept of ‘country of origin’ referred to in the legislation on agriculture and the definitions concerning the non‑preferential origin of goods laid down in the Customs Codes (first and second questions referred for a preliminary ruling)

35. Regulations No 1234/2007 and No 1308/2013 establishing a common organisation of agricultural markets lay down marketing standards for agricultural products. As regards the marketing of products in the fruit and vegetables sector which are intended to be sold fresh to the consumer, Article 113a(1) of Regulation (EC) No 1234/2007 and Article 76(1) of Regulation (EU) No 1308/2013 provide that such products may be marketed only if the country of origin is indicated.

36. Neither Regulation No 1234/2007 nor Regulation No 1308/2013 contains a definition of ‘country of origin’ within the meaning of those regulations. There is also no such definition in Implementing Regulation (EU) No 543/2011. ( 18 )

37. In that regard, by its first question, the referring court seeks to ascertain whether, in order to define the ‘country of origin’ of fruit and vegetables, within the meaning of Article 113a(1) of Regulation No 1234/2007 and Article 76(1) of Regulation No 1308/2013, it is necessary to refer to the definitions set out in the Customs Codes concerning the non-preferential origin of goods (Section 1). If so, the referring court also seeks, by its second question, to ascertain whether, according to those definitions, the country in which cultivated mushrooms are harvested is their country of origin if some of the main stages of production take place in other Member States (Section 2).

1. The applicability of the definitions laid down in the Customs Codes concerning the non-preferential origin of goods for the purpose of defining the concept of ‘country of origin’ referred to in the legislation on agriculture (first question referred for a preliminary ruling)

38. First of all, I note that it follows from the Court’s settled case-law that, in order to determine the meaning and scope of a provision of EU law, it must be interpreted in the light of its wording, its context and the objectives pursued by the rules of which it is part. ( 19 )

39. It follows that the concept of ‘country of origin’ referred to in Article 113a(1) of Regulation No 1234/2007 and in Article 76(1) of Regulation No 1308/2013 must be interpreted in the light of the meaning and purpose of those provisions and of the rules of which it is part. As noted by the Zentrale, they do not refer to the Customs Codes as regards the concept of ‘country of origin’.

40. However, such a reference is provided for in the Customs Codes.

41. Article 59(c) of the Union Customs Code states that the rules set out in Article 60 of that code on the determination of the non-preferential origin of goods are applicable to other EU measures relating to the origin of goods.

42. I share the Commission’s view that Article 76(1) of Regulation No 1308/2013 must be regarded as such a measure. In that regard, I note that Article 76(1) constitutes a provision of EU law relating to the origin of goods, which is the only condition laid down in Article 59(c) of the Union Customs Code in order for that provision to apply.

43. That argument is supported by the fact that Regulation No 1169/2011, which is designed to ensure a high level of consumer protection in relation to food information, ( 20 ) makes reference, in Article 2(3) concerning the indication of the country of origin within the meaning of that regulation, to the definitions concerning the non-preferential origin of goods laid down in the Customs Codes. It is clear from recital 33 of that regulation that that reference made by the legislature is justified by the fact that those definitions are ‘well known to food business operators’.

44. As stated by Prime Champ, the French Government and the Commission, the fact that, in the context of Regulation No 1169/2011, which is designed to protect consumers, the legislature chose to make reference to those definitions from the Customs Codes is a clear indication that such a reference is also applicable as regards Article 113a(1) of Regulation No 1234/2007 and Article 76(1) of Regulation No 1308/2013, which have similar consumer protection objectives. ( 21 )

45. I note that a provision corresponding to Article 59(c) of the Union Customs Code is not included in the Community Customs Code. Nevertheless, I consider that the Community Customs Code contains a principle corresponding to that principle of the Union Customs Code. Indeed, it is apparent from the travaux préparatoires relating to Article 59(c) of the Union Customs Code that the intention of that provision is to clarify that the rules on non-preferential origin are also relevant to the application of other EU measures relating to the origin of goods, which indicates, to my mind, that such a principle was also provided for in the Community Customs Code. ( 22 )

46. In the light of the foregoing, it is therefore necessary to reject the argument put forward by the Zentrale according to which the fact that Regulations No 1234/2007 and No 1308/2013 do not refer to the Customs Codes as regards the concept of ‘country of origin’ means that the definitions laid down by the Customs Codes are not applicable.

47. Consequently, like Prime Champ, the French and Italian Governments ( 23 ) and the Commission, I shall propose that the Court answer the first question referred for a preliminary ruling to the effect that Article 113a(1) of Regulation No 1234/2007 and Article 76(1) of Regulation No 1308/2013 must be interpreted as meaning that, in order to define the concept of ‘country of origin’ referred to by those provisions, it is necessary to refer to the definitions concerning the non-preferential origin of goods laid down, respectively, in Articles 23 to 26 of the Community Customs Code and in Article 60 of the Union Customs Code read in conjunction with Articles 31 to 36 of Delegated Regulation 2015/2446.

2. The application of the definitions laid down in the Customs Codes concerning the non-preferential origin of the goods in order to determine the country of origin of cultivated mushrooms for the purposes of the legislation on agriculture (second question referred for a preliminary ruling)

48. Like Prime Champ, the French and Italian Governments and the Commission, I consider that, under the definitions laid down in the Customs Codes concerning the non-preferential origin of goods, the country of origin of cultivated mushrooms is the country in which they are harvested, even if some of the main stages of production take place in other Member States and the cultivated mushrooms have been transported to the territory of harvest only three days or less before the first harvest.

49. First of all, I would point out that it can be assumed that the term ‘vegetables’, referred to in Article 113a(1) of Regulation No 1234/2007 and in Article 76(1) of Regulation No 1308/2013, establishing a common organisation of the markets in agricultural products, covers cultivated mushrooms such as those at issue in the dispute in the main proceedings. ( 24 )

50. Secondly, it follows from my proposed answer to the first question referred for a preliminary ruling that the country of origin within the meaning of those provisions must be determined in accordance with the definitions laid down in the Customs Code concerning the non-preferential origin of goods.

51. In that regard, Article 23(1) of the Community Customs Code and Article 60(1) of the Union Customs Code provide that goods wholly obtained in a single country or territory are to be regarded as having their origin in that country or territory. To that end, Article 23(2)(a) to (j) of the Community Customs Code and Article 31(a) to (j) of Delegated Regulation 2015/2446 contain a list of various goods regarded as being wholly obtained in a single country.

52. It is clear from Article 23(2)(b) of the Community Customs Code that vegetable products are wholly obtained in the country in which they are harvested. Article 31(b) of Delegated Regulation 2015/2446 contains the same provision. In other words, it follows from those provisions that vegetable products are regarded as having their origin in the country in which they are harvested.

53. In that regard, the Commission and the German Government state that the case before the referring court is atypical, noting that, in most cases, the country in which fresh fruit and vegetables are harvested is, by the very nature of fresh fruit and vegetables, also the country in which all the pre-harvest stages of production take place. ( 25 )

54. In that context, the Commission stated at the hearing that the ‘cross-border’ production of cultivated mushrooms is new. It is apparent that, in 2015, when Delegated Regulation 2015/2446 was drafted, the Commission had not considered the regulation of that production method. When asked at the hearing why rules on this production method have still not been adopted, the Commission explained that that type of process has not yet been sufficiently well thought-out at legislative level. At the hearing, Prime Champ explained that it has been using that production method since 2012, and that it is not alone, since other undertakings also use that production process.

55. To my mind, however, those considerations do not justify departing from the wording of Article 23(2)(b) of the Community Customs Code and Article 31(b) of Delegated Regulation 2015/2446, which clearly provide that the country of origin of vegetable products depends only on the place in which they are harvested. As the Commission explains, it must be assumed, on the basis of those provisions, that the legislature considers the fact that some of the pre-harvest stages of production take place in one or more other Member States to be of no importance.

56. The Zentrale’s argument that it follows from the scheme of Articles 23 and 24 of the Community Customs Code and from the corresponding provisions of the Union Customs Code that the applicability of the definitions laid down in the Customs Codes concerning the non-preferential origin of goods is subject to the condition that the goods have been wholly obtained in a single country must therefore be rejected.

57. As regards, in particular, Article 24 of the Community Customs Code and the corresponding provision in Article 60 of the Union Customs Code read in conjunction with Article 32 of Delegated Regulation 2015/2446, they cannot bring about contrary results. Those provisions relating to the origin of goods whose production has taken place in several countries or territories are not applicable to fresh vegetables such as those at issue in the dispute in the main proceedings. ( 26 )

58. Consequently, I shall propose that the Court answer the second question referred for a preliminary ruling to the effect that Article 23(1) and (2)(b) of the Community Customs Code and Article 60(1) of the Union Customs Code read in conjunction with Article 31(b) of Delegated Regulation 2015/2446 must be interpreted as meaning that the country of origin of cultivated mushrooms is the country in which they are harvested for the purpose of those provisions, regardless of the fact that some of the main stages of production take place in other EU Member States and that the cultivated mushrooms have been transported to the territory of harvest only three days or less before the first harvest.

C. The relationship between the prohibition on the use of misleading statements laid down in consumer protection legislation and the requirement to indicate the country of origin imposed by the legislation on agriculture (third and fourth questions)

1. Preliminary observations

59. I observe that, by the third and fourth questions referred for a preliminary ruling, the national court seeks to ascertain, in essence, whether the fact that Prime Champ provided an indication of the country of origin without any explanatory statements on the place of production is contrary to the prohibition on misleading the consumer, laid down in Article 2(1)(a)(i) of Directive 2000/13 and Article 7(1)(a) of Regulation No 1169/2011.

60. To that end, it is apparent from the request for a preliminary ruling that the referring court is uncertain, first of all, whether the requirement to indicate the country of origin imposed by the legislation on agriculture should be regarded as a lex specialis in relation to the prohibition on the use of misleading statements, so that the latter is not applicable for the purpose of determining the country of origin (third question referred for a preliminary ruling). Should the Court answer that question to the effect that the requirement to indicate the country of origin imposed by the legislation on agriculture applies in parallel with the prohibition on misleading statements, the referring court then wishes to ascertain whether explanatory statements can be added in order to avoid misleading the consumer within the meaning of the abovementioned provisions (fourth question referred for a preliminary ruling). ( 27 )

61. However, in my view, that final question, as formulated, is not decisive for the purpose of establishing whether the fact that Prime Champ provided an indication of the country of origin without any explanatory statements is contrary to the prohibition on misleading the consumer. Admittedly, it would be if the legislation on agriculture laid down exhaustive rules on the country of origin of fruit and vegetables. ( 28 ) I consider that, however, not to be the case.

62. Indeed, there is nothing in the legislation on agriculture to prevent an undertaking from providing explanatory statements concerning the indication of the country of origin, provided that those statements do not, in themselves, mislead the consumer. In that regard, it should be observed that any limitation on the exercise of the fundamental right of freedom of expression — which also protects ‘commercial communication’ — enshrined in Article 11(1) of the Charter of Fundamental Rights of the European Union, must be provided for by law, in accordance with Article 52(1) of the Charter.

63. In the light of those considerations, the fourth question must be construed as meaning that the referring court seeks to ascertain, in essence, whether the omission of such explanatory statements is misleading within the meaning of Article 2(1)(a)(i) of Directive 2000/13 and of Article 7(1)(a) of Regulation No 1169/2011. ( 29 )

64. In that regard, in order to provide the referring court with an answer which will be of use to it and enable it to determine the case before it, it is sufficient, in my view, for the Court to answer only the fourth question. Even assuming that Article 7(1)(a) of Regulation No 1169/2011 and Article 2(1)(a)(i) of Directive 2000/13 are applicable, I consider, as I shall set out below, that the omission of explanatory statements concerning the indication of the country of origin, such as that at issue in the dispute in the main proceedings, is not, in any event, misleading within the meaning of those provisions. ( 30 )

65. Therefore, I shall confine myself to a brief explanation, below, of the reasons why I have serious doubts as regards the question of the applicability of those provisions in a situation such as that at issue in the main proceedings (Section 2), before answering the fourth question referred for a preliminary ruling (Section 3).

2. The applicability of Article 7(1)(a) of Regulation No 1169/2011 and Article 2(1)(a)(i) of Directive 2000/13

66. Like the referring court, I consider that the question whether the requirement to indicate the country of origin imposed by the legislation on agriculture should be regarded as a lex specialis in relation to the prohibition on misleading statements should be answered in the light of Article 1(4) of Regulation No 1169/2011. That article, which governs the scope of that regulation, states that the regulation ‘shall apply without prejudice to labelling requirements provided for in specific Union provisions applicable to particular foods’. ( 31 )

67. In the light of recital 8 of Regulation No 1169/2011, which states that ‘the general labelling requirements are complemented by a number of provisions applicable … to certain categories of foods …’, it seems to me that Article 1(4) of that regulation should be understood as meaning that the regulation applies, in principle, in parallel with the specific provisions applicable to certain foodstuffs.

68. However, that premiss is subject to a number of caveats.

69. In that regard, at the hearing the Commission argued, in essence, that according to a literal, teleological and contextual interpretation of Article 1(4) of Regulation No 1169/2011, the expression ‘without prejudice’ must be understood as meaning that Regulation No 1169/2011 is to apply in parallel with specific provisions applicable to certain foodstuffs, provided that there is no contradiction between those specific provisions and the provisions of Regulation No 1169/2011. According to my understanding of the Commission’s argument, such a contradiction exists only in so far as the application of specific provisions prevents Regulation No 1169/2011 from applying in parallel with them. In the present case, the Commission considers that there is no such contradiction, because the indication ‘Origin: Germany’ could be accompanied by additional information. ( 32 )

70. Contrary to the Commission’s observations, I consider that there are convincing arguments to support the position that Article 1(4) of Regulation No 1169/2011 is not limited to situations in which there is an actual contradiction in the sense referred to by the Commission.

71. The fact that Regulation No 1169/2011 applies without prejudice to specific provisions on labelling means that that regulation cannot preclude the application of such specific provisions. Therefore, to my mind, Article 1(4) of Regulation No 1169/2011 is, in essence, an expression of the principle of lex specialis.

72. Under that principle, it seems to me that the parallel application of Regulation No 1169/2011 is also excluded in so far as it would deprive a specific provision on labelling of its effectiveness.

73. In my view, that would be the case if Article 7(1)(a) of Regulation No 1169/2011 were applicable to a situation such as that at issue in the main proceedings. Article 76(1) of Regulation No 1308/2013 constitutes a specific provision on labelling for the purposes of Article 1(4) of Regulation No 1169/2011, ( 33 ) and, as I shall set out in Section 3 of this Opinion, in particular in points 82 and 83, I consider that, in Article 76(1) of Regulation No 1308/2013, the legislature clearly determined the country of origin of fruit and vegetables as the country in which they are harvested.

74. If, however, Article 7(1)(a) of Regulation No 1169/2011 were to be applied in such a way that the indication of the country of origin provided under Article 76(1) of Regulation No 1308/2013 could be misleading within the meaning of that first provision, Article 76(1) of Regulation No 1308/2013 would, in my view, be deprived of its effectiveness.

75. I note that Article 1(4) of Regulation No 1169/2011 has no equivalent in Directive 2000/13. Nevertheless, I consider that a principle corresponding to the one laid down in that article is also applicable to Directive 2000/13. There is nothing in the travaux préparatoires for Regulation No 1169/2011 to indicate that that regulation was intended to amend Directive 2000/13 on that point and it is therefore appropriate to regard Article 1(4) of that regulation as a codification of the principle of lex specialis already applicable under Directive 2000/13. In other words, I take the view that considerations similar to those set out above in relation to Regulation No 1169/2011 may be raised concerning Article 2(1)(a)(i) of Directive 2000/13, with regard to Article 113a(1) of Regulation No 1234/2007 and.

3. The application of Article 7(1)(a) of Regulation No 1169/2011 and Article 2(1)(a)(i) of Directive 2000/13

76. Article 7(1)(a) of Regulation No 1169/2011 prohibits food information which is misleading as to the country of origin.

77. First of all, I consider that that prohibition covers misleading omissions. The term ‘food information’ is defined in Article 2(2)(a) of that regulation as ‘information concerning a food and made available to the final consumer by means of a label, other accompanying material, or any other means including modern technology tools or verbal communication’. Although that definition does not strictly relate to omissions, it is to be assumed that omissions are covered in so far as they are likely to mislead consumers as to the country of origin. ( 34 )

78. Furthermore, as regards the concept of ‘misleading’ the consumer within the meaning of Article 7(1)(a) of Regulation No 1169/2011, I note that that provision does not contain a definition of that concept. Nevertheless, to my mind, like the definition of misleading omissions set out in Article 7(1) of Directive 2005/29, the term ‘misleading’ referred to in Article 7(1)(a) of that regulation must be understood as covering the omission of material information that the average consumer needs, according to the context, to take an informed transactional decision, which therefore causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

79. Even though there is no such definition in Regulation No 1169/2011, I note that only omissions of material information which the average consumer needs are, by their very nature, likely to mislead the consumer. Moreover, as I have explained in footnote 34 of this Opinion, Regulation No 1169/2011, like Directive 2005/29, is intended to ensure a high level of consumer protection

80. Finally, I would point out that Article 2(3) of Regulation No 1169/2011 provides that the country of origin of a foodstuff within the meaning of that regulation refers to the origin of goods as established in accordance with the definitions concerning the non-preferential origin of goods laid down in the Customs Codes.

81. I consider that the omission of explanatory statements concerning the indication of the country of origin provided in accordance with the definitions laid down in the Customs Codes, such as that referred to in the present case, cannot be deemed to constitute material information for the average consumer that is likely to be misleading as to the country of origin, for the purposes of Article 7(1)(a) of Regulation No 1169/2011.

82. In Article 2(3) of Regulation No 1169/2011, the legislature clearly and precisely defined the country of origin of a foodstuff, within the meaning of that regulation, by reference to the Customs Codes. ( 35 ) As regards vegetable products, the legislature determined, more specifically, that the country of origin of those products is the country in which they are harvested. In so doing, the legislature also elected not to attach any importance to the fact that the production of such goods may, in principle, take place in different countries. In that regard, I would observe that the legislature has maintained that rule even after becoming aware of the ‘cross-border’ production of cultivated mushrooms.

83. It must therefore be held that it is apparent from Article 7(1)(a) and Article 2(3) of Regulation No 1169/2011 read in conjunction with the definitions concerning the non-preferential origin of goods laid down in the Customs Codes that such information cannot be regarded as material for the average consumer. ( 36 )

84. Moreover, that conclusion is supported by the fact that the Commission has not adopted provisions on the indication of the country of origin other than for fresh, chilled and frozen meat of swine, sheep, goats and poultry. More specifically, such rules are laid down in Implementing Regulation (EU) No 1337/2013 ( 37 ) on the ground that the application of the definitions for the non-preferential origin of goods laid down in the Customs Codes did not sufficiently inform consumers on the origin of that meat, taking into account situations in which the meat comes from animals which are born, reared and slaughtered in different countries. ( 38 )

85. Although I can fully appreciate the Zentrale’s argument that consumers should be informed if some of the product’s main stages of production take place in different countries, it must be held, in the light of the foregoing, that the legislature did not regard such information as material and therefore likely to mislead the consumer as to the country of origin for the purposes of Article 7(1)(a) of Regulation No 1169/2011.

86. It is therefore necessary to reject the Commission’s argument that it is for the national courts to rule on whether, in specific cases, an indication of the country of origin such as that at issue in the main proceedings actually leads to the consumer being misled. Such a position is capable of adversely affecting the legislature’s freedom of choice, recalled above.

87. As regards Article 2(1)(a)(i) of Directive 2000/13, I take the view that considerations similar to those set out above must be applied to that provision. In that regard, I would point out that, although Directive 2000/13 does not contain a definition of the country of origin for the purposes of that directive, ( 39 ) this fact cannot bring about a result contrary to the foregoing, given that such a definition is still provided for under Article 113a(1) of Regulation No 1234/2007 read in conjunction with Article 23(2)(b) of the Community Customs Code. It follows that labelling provided in accordance with the definitions for the non-preferential origin of goods set out in the Community Customs Code is not misleading within the meaning of Article 2(1)(a)(i) of Directive 2000/13.

88. Consequently, I shall propose that the Court answer the fourth question referred for a preliminary ruling to the effect that Article 7(1)(a) of Regulation No 1169/2011 and Article 2(1)(a)(i) of Directive 2000/13 must be interpreted as meaning that it is not ‘misleading’, within the meaning of those provisions, not to provide the consumer with explanatory statements concerning an indication of the country of origin determined in accordance with the definitions concerning the non-preferential origin of goods laid down in the Customs Codes.

V. Conclusion

89. In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows: (1) Article 113a(1) of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) must be interpreted as meaning that, in order to define the concept of ‘country of origin’ referred to by that provision, it is necessary to refer to the definitions for the non-preferential origin of goods laid down in Articles 23 to 26 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code. Article 76(1) of Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 must be interpreted as meaning that, in order to define the concept of ‘country of origin’ referred to by that provision, it is necessary to refer to the definitions for the non-preferential origin of goods laid down in Article 60 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, read in conjunction with Articles 31 to 36 of Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015 supplementing Regulation No 952/2013 of the European Parliament and of the Council as regards detailed rules concerning certain provisions of the Union Customs Code. (2) Article 23(1) and (2)(b) of Regulation No 2913/92 and Article 60(1) of Regulation No 952/2013 read in conjunction with Article 31(b) of Delegated Regulation 2015/2446 must be interpreted as meaning that the country of origin of cultivated mushrooms is the country in which they are harvested, regardless of the fact that some of the main stages of production take place in other Member States of the European Union and that the cultivated mushrooms have been transported to the territory of harvest only three days or less before the first harvest. (3) Article 7(1)(a) of Regulation (EU) No 1169/2011 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, must be interpreted as meaning that it is not ‘misleading’ to the consumer, within the meaning of that provision, if no explanatory statements are provided in relation to an indication of the country of origin determined in accordance with the definitions concerning the non-preferential origin of goods laid down in Articles 23 to 26 of Regulation No 2913/92 and in Article 60 of Regulation No 952/2013 read in conjunction with Articles 31 to 36 of Delegated Regulation 2015/2446. Article 2(1)(a)(i) of Directive 2000/13 of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs must be interpreted as meaning that it is not ‘misleading’ to the consumer, within the meaning of that provision, if no explanatory statements are provided in relation to an indication of the country of origin determined in accordance with the definitions concerning the non-preferential origin of goods laid down in Articles 23 to 26 of Regulation No 2913/92.

( 1 ) Original language: French.

( 2 ) Directive of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ 2000 L 109, p. 29).

( 3 ) 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).

( 4 ) Council Regulation of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1), as amended by Council Regulation (EC) No 361/2008 of 14 April 2008 (OJ 2008 L 121, p. 1) (‘Regulation No 1234/2007’).

( 5 ) Regulation of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013 L 347, p. 671).

( 6 ) See Article 232(1) of Regulation No 1308/2013.

( 7 ) Council Regulation of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

( 8 ) Regulation of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1).

( 9 ) See Article 286(2) and Article 288(2) of the Union Customs Code.

( 10 ) Commission Delegated Regulation of 28 July 2015 supplementing Regulation (EU) No 952/2013 of the European Parliament and of the Council as regards detailed rules concerning certain provisions of the Union Customs Code (OJ 2015 L 343, p. 1).

( 11 ) See Article 256 of Delegated Regulation 2015/2446.

( 12 ) See Article 55 of Regulation No 1169/2011.

( 13 ) It is clear from Article 286(3) of the Union Customs Code that references to the Community Customs Code are to be construed as references to the Union Customs Code. Since 1 May 2016, the reference in Article 2(3) of Regulation No 1169/2011 to Articles 23 to 26 of the Community Customs Code must therefore be construed as a reference to Article 60 of the Union Customs Code read in conjunction with Articles 31 to 36 of Delegated Regulation 2015/2446 which flesh out Article 60 of the Union Customs Code.

( 14 ) In that regard, the referring court states that, if Prime Champ has infringed those provisions, it would follow that it has engaged in an unfair commercial practice for the purposes of the Gesetz gegen den unlauteren Wettbewerb (Law on Unfair Competition, ‘the UWG’), and more specifically for the purposes of Paragraph 3, in conjunction with Paragraph 4(11), of the version of the UWG applicable in 2013, and of Paragraph 3a of the version of the UWG in force. Under those provisions, anyone who infringes a statutory provision that is also intended to regulate market behaviour in the interests of market participants is to be regarded as acting unfairly. The UWG transposes Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

( 15 ) The Community Customs Code, and the Union Customs Code read in conjunction with Delegated Regulation 2015/2446, taken together.

( 16 ) See, in that regard, point 27 of this Opinion.

( 17 ) See point 26 of this Opinion.

( 18 ) Commission Implementing Regulation of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors (OJ 2011 L 157, p. 1), applicable from 22 June 2011.

( 19 ) See, for example, judgments of 17 October 1995, Leifer and Others (C‑83/94, EU:C:1995:329, paragraph 22); of 7 June 2005, VEMW and Others (C‑17/03, EU:C:2005:362, paragraph 41); and of 15 April 2010, Fundación Gala-Salvador Dalí and VEGAP (C‑518/08, EU:C:2010:191, paragraph 25).

( 20 ) See Article 1(1) of Regulation No 1169/2011.

( 21 ) That follows from recital 49 of Regulation No 1234/2007, according to which the application of standards for the marketing of agricultural products, in the interest of producers, traders and consumers, can contribute to improving the economic conditions for the production and marketing as well as the quality of such products. A similar statement is made in recital 64 of Regulation No 1308/2013, and recital 65 thereof adds that maintaining marketing standards by sector takes into account the expectations of consumers and contributes to the improvement of the economic conditions for the production and marketing of agricultural products and of their quality.

( 22 ) See in that regard the proposal of 30 November 2005 for a Regulation of the European Parliament and of the Council laying down the Community Customs Code (Modernised Customs Code), p. 9 (COM(2005) 608 final).

( 23 ) I note that the German Government has answered only the third and fourth questions referred for a preliminary ruling.

( 24 ) Indeed, in the common organisation of the markets in agricultural products, Article 1(i) of Regulation No 1234/2007 and Article 1(2)(i) of Regulation No 1308/2013 include products in the fruit and vegetables sector, which are specifically defined in Part IX of Annex I to each of those regulations. Those annexes refer to ‘Other vegetables, fresh or chilled’, classified under combined nomenclature code ex 0709, in the description of the products in fruit and vegetable sector. In Chapter 7 of Annex I to the Combined Nomenclature, ‘Mushrooms’ are classified under code 070951.

( 25 ) More specifically, the German Government explains that, according to agricultural production specialists, it is unusual that transporting a fruit or vegetable crop would be possible and advantageous, as it is in the main proceedings, and therefore cross-border production is generally impossible or, at any rate, not profitable. Apart from cultivated mushrooms, which are easy to transport, the German Government has stated that it could contemplate the use of that same production method only for the cultivation of chicory. At the hearing, the Commission stated that the situation is similar in the case of hydroponic crops and aromatic herbs. As regards those products, the Commission explained that they may be sold to the consumer with their substrate, and therefore without actually being harvested before they are marketed.

( 26 ) More specifically, as regards fruit and vegetables, it follows from Article 32 of Delegated Regulation 2015/2446, read in conjunction with Chapter 20 of Annex 22-01 thereto, to which Article 32 of that regulation refers, that such products fall within the scope of those provisions in so far as they are used as part of a mixture of vegetable products, such as fruit juice. I take the view that, although there is no such provision in the Community Customs Code, in the absence of any indication to the contrary Article 24 should be understood in the same way.

( 27 ) The referring court gives the example of a statement relating to the stages of production carried out in other Member States.

( 28 ) In the present case, it would follow that Prime Champ’s use of an indication of the country of origin without any other statements is lawful in the light of the prohibition on misleading the consumer, given that Prime Champ would not, in any event, be able to add any explanatory statements to that indication.

( 29 ) In that context, I would observe that the Court has consistently held that, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. With that in mind, the Court may, where necessary, have to reformulate the questions referred to it (see, for example, judgment of 29 November 2018, baumgarten sports & more, C‑548/17, EU:C:2018:970, paragraph 22).

( 30 ) I would observe that, according to the referring court, the appeal on a point of a law in the main proceedings can be well founded only if the conduct for which Prime Champ is criticised was unlawful under both Article 2(1)(a)(i) of Directive 2000/13 and Article 7(1)(a) of Regulation No 1169/2011. Consequently, in order to provide the referring court with an answer which will be of use to it and enable it to determine the case before it, it is sufficient, in principle, for the Court to answer the fourth question referred for a preliminary ruling only in the context of Article 7(1)(a) of Regulation No 1169/2011.

( 31 ) I note that Article 73 of Regulation No 1308/13 also contains a rule relating to the scope of marketing standards. Under that provision, more specifically, marketing standards are to apply ‘without prejudice to any other provisions applicable to agricultural products …’. In view of the fact that Regulation No 1169/2011 applies only to the extent provided for in that regulation, Article 73 of Regulation No 1308/13 is, nevertheless, irrelevant for the purpose of determining the applicability of Article 7(1)(a) of Regulation No 1169/2011.

( 32 ) It seems to me, therefore, that the Commission’s interpretation is, in point of fact, similar to that of Article 3(4) of Directive 2005/29, according to which ‘in the case of conflict between the provisions of this Directive and other [Union] rules regulating specific aspects of unfair commercial practices, the latter shall prevail and apply to those specific aspects’. Thus, the Court has held that a conflict such as that envisaged in Article 3(4) of Directive 2005/29 is present only where there are specific rules which exhaustively regulate the information on goods to be provided to consumers, so that other information cannot be added. See judgments of 25 July 2018, Dyson (C‑632/16, EU:C:2018:599, paragraphs 34 to 36), and of 13 September 2018, Wind Tre and Vodafone Italia (C‑54/17 and C‑55/17, EU:C:2018:710, paragraphs 60 and 61). From this perspective, I note that, since the legislation on agriculture did not exhaustively regulate the country of origin of fruit and vegetables, the question of the applicability of the prohibition of misleading omissions within the meaning of Article 7 of Directive 2005/29, like that in Article 2(1)(a)(i) of Directive 2000/13 and Article 7(1)(a) of Regulation No 1169/2011, does not arise here.

( 33 ) Thus, Regulation No 1169/2011 lays down rules of a general nature applicable horizontally to all foodstuffs, whilst rules of a specific nature which apply vertically only to particular foodstuffs are laid down in provisions governing those products; see, to that effect, recital 12 of that regulation. It is apparent from recital 32 of that regulation that marketing standards for fruit and vegetable products constitute such vertically applicable rules.

( 34 ) See, in that regard, Article 26(2)(a) of Regulation No 1169/2011, according to which indication of the country origin is mandatory under that regulation where failure to indicate this is likely to mislead the consumer as to the country of origin. Moreover, the concept of misleading commercial practices within the meaning of Article 7(1) of Directive 2005/29 covers misleading omissions. I would observe that that directive, like Regulation No 1169/2011, is intended to ensure a high level of consumer protection.

( 35 ) I note that that definition was introduced by Regulation No 1169/2011 because the absence of such a definition in Directive 2000/13 lead to ambiguity both for consumers and industry, and for Member States (see ‘Impact assessment report on general food labelling issues’, SEC(2008) 92, p. 21, accompanying the proposal for Regulation No 1169/2011).

( 36 ) See, to that effect, judgment of 25 July 2018, Dyson (C‑632/16, EU:C:2018:599, paragraphs 42 to 44).

( 37 ) Commission Implementing Regulation of 13 December 2013 laying down rules for the application of Regulation (EU) No 1169/2011 of the European Parliament and of the Council as regards the indication of the country of origin or place of provenance for fresh, chilled and frozen meat of swine, sheep, goats and poultry (OJ 2013 L 335, p. 19).

( 38 ) See recital 3 of Implementing Regulation No 1337/2013.

( 39 ) See footnote 35 of this Opinion.