Commission of the European Communities v Kingdom of Spain.
Date: 2005-07-14
31. As a preliminary point it should be noted that according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-63/02 Commission  v United Kingdom  [2003] ECR I-821, paragraph 11, and Case C‑341/02 Commission  v Germany  [2005] ECR I-0000, paragraph 33). Subsequent changes cannot be taken into account by the Court (see, inter alia, Case C-482/03 Commission  v Ireland , not published in the ECR, paragraph 11).
33. Article 2 of Regulation No 2092/91 refers as regards the labelling, advertising material or commercial documents of organically-produced products to ‘indications in use in each Member State, suggesting to the purchaser that the product, … [has] been obtained in accordance with the rules of [organic] production’ and ‘in particular’ to ‘the … terms or their usual derivatives’ set out in a list containing, in respect of each of the 11 official languages of the Community then in force, one or two expressions. In the case of 5 of the 11 languages, there is only one expression on that list which corresponds to the French term ‘biologique’. In the case of three other languages there is only one expression which corresponds to the French term ‘écologique’. In respect of German, two expressions corresponding to those two terms are cited without distinction and for each of the two remaining languages another expression is given.
35. In the version applicable to the present infringement proceedings, the wording of Article 2 of Regulation No 2092/91 is unequivocal in that regard. Since in the case of Spanish the expression ‘ecológico’ alone, encompassing the derivative ‘eco’, is included in the list set out in that article, the Spanish Government cannot be criticised for failing to prevent producers of products which are not organically-produced from using other expressions such as, in this case, ‘biológico’ or ‘bio’.
38. However, that amendment has no bearing on the previous legislative situation, in the light of which the present infringement proceedings must be assessed. The adoption of a new version of Article 2 of Regulation No 2092/91 suggests the intention of the legislature to amend that article and not to leave it unchanged. If there had been no such intention, the adoption of the legislative amendment in question would not have been necessary.
41. It should however be noted that it is settled case-law that, in an action for failure to fulfil obligations, it is for the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission which must provide the Court with the evidence necessary for the Court to establish that the obligation has not been fulfilled, and it may not rely on any presumption (see, inter alia, Case C‑194/01 Commission  v Austria  [2004] ECR I-4579, paragraph 34, and Commission  v Germany , cited above, paragraph 35). In the present case, apart from the indications referred to above relating to some use of the terms ‘biológico’ and ‘bio’ on the Spanish market, the Commission has not shown that, in that market, those terms suggest to Spanish purchasers in general that the products concerned are organically produced. Whilst, in that respect, the doubt cast by the Commission on the opinion poll relied on by the Spanish Government is not unfounded, it nevertheless remains the case that the Commission has adduced no evidence to show that, in Spain, when the period laid down in the reasoned opinion expired, the use of the terms ‘biológico’ or ‘bio’ to designate organically-produced products was so widespread that the Spanish consumer associated those terms with the organic method of production. The Commission has therefore not succeeded in refuting the assertion made in the recital in the preamble to Royal Decree No 506/2001 that, in adopting that royal decree, the use of the term ‘bio’ had become widespread in Spain to designate foodstuffs which have certain characteristics unconnected with the organic method of production.