1 These requests for a preliminary ruling concern the interpretation of Article 164(1) and (4) 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 (OJ 2013 L 347, p. 671).
2 The requests have been made in four sets of proceedings between the Association interprofessionnelle des fruits et légumes frais (Interfel) and the ministre de l’Agriculture et de la Souveraineté alimentaire (Minister for Agriculture and Food Sovereignty, France) (‘the Minister’) concerning the latter’s refusal of four requests by Interfel for the extension of the four inter-trade agreements concluded by Interfel to operators who are not members of that association.
3 Article 125a(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) (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’), provided: ‘The rules of association of a producer organisation in the fruit and vegetables sector shall require its producer members, in particular, to: (a) apply the rules adopted by the producer organisation relating to production reporting, production, marketing and protection of the environment; …’
4 Article 125f(1) of that regulation provided: ‘In cases where a producer organisation in the fruit and vegetables sector which operates in a specific economic area is considered, in respect of a specific product, to be representative of production and producers in that area, the Member State concerned may, at the request of the producer organisation, make the following rules binding on producers established in that economic area who do not belong to the producer organisation: (a) the rules referred to in Article 125a(1)(a); … The first subparagraph shall apply on condition that those rules: … (b) are included in the exhaustive list in Annex XVIa; …’
5 Article 125l of that regulation stated: ‘1. In cases where an interbranch organisation operating in a specific region or regions of a Member State is considered to be representative of the production of or trade in or processing of a given product, the Member State concerned may, at the request of the interbranch organisation, make binding some of the agreements, decisions or concerted practices agreed on within that organisation for a limited period on other operators operating in the region or regions in question, whether individuals or groups, who do not belong to the organisation. … 3. The rules for which extension to other operators may be requested: (a) shall have one of the following aims: … (iv) rules on marketing; … 4. The rules referred to in [point] (a) … (iv) … of paragraph 3 shall not be other than those set out in Annex XVIa. …’
6 Annex XVIa to that regulation, which is entitled ‘Exhaustive list of rules that may be extended to non-member producers pursuant to Article 125f and Article 125l’, contained a point 3 which read as follows: ‘3. Marketing rules (a) specified dates for commencement of cropping, staggering of marketing; (b) minimum quality and size requirements; (c) preparation, presentation, packaging and marking at first marketing stage; (d) indication of product origin.’
7 Pursuant to Article 230(1) of Regulation No 1308/2013, that regulation repealed Regulation No 1234/2007 with effect from 1 January 2014.
8 Recitals 132 and 134 of Regulation No 1308/2013 are worded as follows: ‘(132) Interbranch organisations can play an important part in allowing dialogue between actors in the supply chain, and in promoting best practices and market transparency. … (134) Existing provisions in various sectors, boosting the impact of producer organisations, their associations and interbranch organisations by permitting Member States, under certain conditions, to extend certain rules of such organisations to non-member operators, have proved effective, and should be harmonised, streamlined and extended to all sectors.’
9 Part II of that regulation, which is entitled ‘Internal market’, contains a Title II, itself entitled ‘Rules concerning marketing and producer organisations’. Chapter I of that title, which is headed ‘Rules concerning marketing’, includes a Section 1, itself entitled ‘Marketing standards’, which contains a Subsection 2, entitled ‘Marketing standards by sectors or products’, which includes inter alia Articles 74 to 76 of that regulation.
10 Article 74 of that regulation, entitled ‘General principle’, provides: ‘The products for which marketing standards by sectors or products have been laid down in accordance with this Section may be marketed in the [European] Union only if they conform to those standards.’
11 Article 75 of Regulation No 1308/2013, which is entitled ‘Establishment and content’, provides: ‘1. Marketing standards may apply to one or more of the following sectors and products: … (b) fruit and vegetables; (c) processed fruit and vegetable products; … 3. … the marketing standards referred to in paragraph 1 may cover one or more of the following …: … (b) classification criteria such as grading into classes, weight, sizing, age and category; …’
12 Article 76 of that regulation, entitled ‘Additional requirements for marketing of products in the fruit and vegetables sector’, states: ‘1. In addition, where relevant, to the applicable marketing standards referred to in Article 75, 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. 2. The marketing standards referred to in paragraph 1, as well as any marketing standard applicable to the fruit and vegetables sector laid down in accordance with this subsection, shall apply at all marketing stages including import and export, and may cover quality, categorisation, weight, size, packing, packaging, storage, transport, presentation and marketing. 3. The holder of products of the fruit and vegetables sector covered by marketing standards shall not display such products, offer them for sale or deliver or market them in any manner within the [European] Union other than in conformity with those standards and shall be responsible for ensuring such conformity. 4. In order to ensure the proper application of requirements set out in paragraph 1 of this Article and to take into account certain specific situations, the [European] Commission shall be empowered to adopt delegated acts in accordance with Article 227 concerning specific derogations to this Article which are necessary for its proper application.’
13 Title II of Part II of Regulation No 1308/2013 includes a Chapter III, entitled ‘Producer organisations and associations and interbranch organisations’. That chapter contains a Section 3, which is headed ‘Extension of rules and compulsory contributions’; Article 164 of that regulation, entitled ‘Extension of rules’, is part of that section and reads as follows: ‘1. In cases where a recognised producer organisation, a recognised association of producer organisations or a recognised interbranch organisation operating in a specific economic area or areas of a Member State is considered to be representative of the production of or trade in, or processing of, a given product, the Member State concerned may, at the request of that organisation, make binding for a limited period of time some of the agreements, decisions or concerted practices agreed within that organisation on other operators acting in the economic area or areas in question, whether individuals or groups, who do not belong to the organisation or association. … 4. The rules for which extension to other operators may be requested as provided for in paragraph 1 shall have one of the following aims: (a) production and market reporting; (b) stricter production rules than those laid down in Union or national rules; (c) the drawing up of standard contracts which are compatible with Union rules; (d) marketing; (e) protecting the environment; (f) measures to promote and exploit the potential of products; (g) measures to protect organic farming as well as designations of origin, quality labels and geographical indications; (h) research to add value to the products, in particular through new uses which do not pose a threat to public health; (i) studies to improve the quality of products; (j) research, in particular into methods of cultivation permitting reduced use of plant protection or animal health products and guaranteeing conservation of the soil and conservation or improvement of the environment; (k) the definition of minimum qualities and definition of minimum standards of packing and presentation; (l) the use of certified seed and monitoring of product quality; (m) animal health, plant health or food safety; (n) the management of by-products. Those rules shall not cause any damage to other operators in the Member State concerned or the Union and shall not have any of the effects listed in Article 210(4) or be otherwise incompatible with Union law or national rules in force. …’
14 Article 210 of that regulation, entitled ‘Agreements and concerted practices of recognised interbranch organisations’, provides in paragraph 4 thereof: ‘Agreements, decisions and concerted practices shall in any case be declared incompatible with Union rules if they: (a) may lead to the partitioning of markets within the Union in any form; (b) may affect the sound operation of the market organisation; (c) may create distortions of competition which are not essential to achieving the objectives of the [common agricultural policy (CAP)] pursued by the interbranch organisation activity; (d) entail the fixing of prices or the fixing of quotas; (e) may create discrimination or eliminate competition in respect of a substantial proportion of the products in question.’
15 Under Article 230(2) of Regulation No 1308/2013, references to Regulation No 1234/2007 are to be construed as references, inter alia, to Regulation No 1308/2013 and be read in accordance with the correlation table set out in Annex XIV to the latter regulation. It is apparent from that correlation table that Article 113(1) of Regulation No 1234/2007 corresponds to Article 75(1)(a) to (e) and (2) of Regulation No 1308/2013, and that Article 113a(1) to (3) of Regulation No 1234/2007 corresponds to Article 76 of Regulation No 1308/2013. According to the correlation table, Articles 125f and 125l of Regulation No 1234/2007 correspond to Article 164 of Regulation No 1308/2013.
16 Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Regulation No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors (OJ 2011 L 157, p. 1), as amended by Commission Delegated Regulation (EU) 2019/428 of 12 July 2018 (OJ 2019 L 75, p. 1) (‘Implementing Regulation No 543/2011’), provides, in Article 3(1) and (2) thereof: ‘1. The requirements of Article 113a(1) of [Regulation No 1234/2007] shall be the general marketing standard. The details of the general marketing standard are set out in Part A of Annex I to this Regulation. Fruit and vegetables not covered by a specific marketing standard shall conform to the general marketing standard. However, where the holder is able to show that the products are in conformity with any applicable standards adopted by the United Nations Economic Commission for Europe (UNECE), they shall be considered as conforming to the general marketing standard. 2. The specific marketing standards referred to in Article 113(1)(b) of [Regulation No 1234/2007] are set out in Part B of Annex I to this Regulation as regards the following products: (a) apples, … (c) kiwifruit, … (e) peaches and nectarines, …’
17 Part A of Annex I to that implementing regulation is entitled ‘General marketing standard’ and contains sections devoted to ‘minimum requirements’, ‘minimum maturity requirements’, ‘tolerance’ and ‘marking’.
18 Part B of that annex, which is entitled ‘Specific marketing standards’, includes a Part 1, itself entitled ‘Marketing standards for apples’, point III of which, headed ‘Provisions concerning sizing’, states: ‘Size is determined either by the maximum diameter of the equatorial section or by weight. … To ensure the uniformity in size, the range in size between produce in the same package shall not exceed: (a) for fruit sized by diameter: - 5 mm for the “Extra” Class fruit and for Classes I and II fruit packed in rows and layers. However, for apples of the varieties Bramley’s Seedling (Bramley, Triomphe de Kiel) and Horneburger, the difference in diameter may amount to 10 mm, and - 10 mm for Class I fruit packed in sales packages or loose in the package. However, for apples of the varieties Bramley’s Seedling (Bramley, Triomphe de Kiel) and Horneburger, the difference in diameter may amount to 20 mm. (b) for fruit sized by weight: - For the “Extra” Class and Classes I and II apples packed in rows and layers: Range (g) Weight difference (g) 70-90 15 g 91-135 20 g 136-200 30 g 201-300 40 g > 300 50 g - For Class I fruit packed in sales packages or loose in the package: Range (g) Uniformity (g) 70-135 35 136-300 70 > 300 100 There is no sizing uniformity requirement for Class II fruit packed in sales packages or loose in the package. Varieties of miniature apples, marked with an “M” in the appendix to this standard, are exempted from the sizing provisions. Those miniature varieties must have a minimum Brix level (calculated as described in the [Organisation for Economic Co-operation and Development (OECD)] guidance on objective tests …) of 12°.’
19 Part B of the annex also includes a Part 3, entitled ‘Marketing standard for kiwifruit’, point II(B) of which, itself entitled ‘Minimum maturity requirements’, provides: ‘The kiwifruit must be sufficiently developed and display satisfactory ripeness. In order to satisfy this requirement, the fruit at packing must have attained a degree of ripeness of at least 6.2° Brix (calculated as described in the OECD guidance on objective tests …) or an average dry matter content of 15%, which should lead to 9.5° Brix [calculated as described in the OECD guidance on objective tests] when entering the distribution chain.’
20 That Part B also includes a Part 5, entitled ‘Marketing standard for peaches and nectarines’, point III of which, entitled ‘Provisions concerning sizing’, provides: ‘… The minimum size shall be: - 56 mm or 85 g in the “Extra” Class, - 51 mm or 65 g in Classes I and II. However, fruit below 56 mm or 85 g … is not marketed in the period from 1 July to 31 October (northern hemisphere) and from 1 January to 30 April (southern hemisphere). …’
21 The UNECE was set up in 1947 by Resolution 36 (IV) of 28 March 1947 of the Economic and Social Council (UN) (Ecosoc). It currently brings together 56 countries from Europe (including all the Member States of the European Union), the Commonwealth of Independent States and North America. Since the European Union is not a member of the United Nations, nor is it a member of the UNECE. It does, however, participate in the UNECE as an observer.
22 The UNECE includes the Working Party on Agricultural Quality Standards, which adopted UNECE Standard FFV-15 concerning the marketing and commercial quality control of cucumbers. That standard, in the version appearing in its 2017 edition applicable to the disputes at issue in the main proceedings, provides in paragraph III thereof, which is entitled ‘Provisions concerning sizing’: ‘Size is determined either by weight or by a combination of diameter and length. Uniformity in size is compulsory for Classes “Extra” and I. To ensure uniformity in size between produce in the same package, one of the following two options should be applied: (a) Sizing by weight The range in weight shall not exceed: 150 g where the smallest piece weighs 400 g or more; 100 g where the smallest piece weighs between 180 g and less than 400 g; Cucumbers below 180 g should be reasonably uniform in weight. (b) Sizing by diameter and length The range in length must not exceed 5 cm, and cucumbers should be reasonably uniform in diameter.’
23 The second paragraph of Article L. 632-2-1 of the code rural et de la pêche maritime (Rural and Maritime Fishing Code) provides: ‘[Interbranch organisations] may define, in the context of inter-trade agreements, standard contracts, which they may apply to the administrative authority to extend, incorporating drafting templates …, and clauses on measures to regulate volumes with a view to adjusting supply to demand. …’
24 Article L. 632-3 of that code states: ‘The agreements concluded in the context of a recognised interbranch organisation may be extended, for a definite duration, in whole or in part, by the competent administrative authority where they provide for joint actions or pursue a common interest in accordance with the general interest and compatible with EU legislation.’
25 Under Article L. 632-4 of that code: ‘… The extension of the agreements [concluded in the context of a recognised interbranch organisation] shall also be subject to compliance with the conditions laid down in the EU law applicable to such agreements. … Once the extension is decided on, the measures thus laid down shall be binding on all members of the branches making up that interbranch organisation. …’
26 Interfel is an agricultural interbranch organisation recognised on the basis of Article L. 632-1 of the Rural and Maritime Fishing Code. On 10 June 2020, it concluded an inter-trade agreement entitled ‘Peach-nectarine - sizing’ for the 2021-2023 marketing years (‘the agreement on peaches-nectarines’), which provides, inter alia, for the prohibition on marketing small (size D) peaches and nectarines for the entire marketing period in question. It requested that the Minister extend that inter-trade agreement to other operators, stating as the reason for that request the concern to guarantee the quality of the fruit sold to consumers.
27 By a decision of 7 September 2020, the Minister refused to grant that request. Interfel brought an action before the Conseil d’État (Council of State, France), seeking the annulment of that decision.
28 The Conseil d’État (Council of State) states that the agreement on peaches-nectarines provides that the peaches and nectarines produced in France, intended for sale on the French market or for export, are subject to a minimum size requirement of 56 mm or 85 g at every stage of marketing and throughout the entire marketing year in question. Those requirements are stricter than the provisions in point III of Part 5 in Part B of Annex I to Implementing Regulation No 543/2011.
29 The Conseil d’État (Council of State) adds that Interfel has, inter alia, raised a plea in law alleging that the Minister could not legally refuse to extend the agreement on peaches-nectarines to other operators. According to the Conseil d’État (Council of State), it is necessary, in order to examine that plea in law, to answer the question whether Article 164(4) of Regulation No 1308/2013 is to be interpreted as authorising the extension to other operators of inter-trade agreements providing for stricter rules than those laid down in Union rules, not only in the case of ‘production rules’, within the meaning of point (b) of that paragraph 4, but also with regard to all the rules relating to one or more of the aims referred to in points (a) and (c) to (n) of that paragraph, and, in particular, whether that provision authorises the adoption, in the form of an inter-trade agreement, of marketing rules for fruit or vegetables in a specific class that are stricter than those laid down in Union rules and the extension of those rules to all operators.
30 In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘[Must] Article 164 of Regulation [No 1308/2013] be interpreted as authorising the extension of inter-trade agreements which establish [more stringent standards] than those laid down in Union rules not only in the case of “production rules”, mentioned in point (b) of [paragraph 4 of that article], but also in all of the cases mentioned in points (a) and (c) to (n) [of that paragraph 4], in relation to which Article 164 provides that the extension of an inter-trade agreement may be requested and, in particular, whether Article 164 authorises, where [Union] rules lay down marketing rules for a given class of fruit or vegetables, the adoption of more stringent rules, in the form of an inter-trade agreement, and their extension to all operators[?]’
31 On 10 June 2020, Interfel concluded an inter-trade agreement entitled ‘Long or Dutch type cucumbers’ for the 2021-2023 marketing years (‘the agreement on cucumbers’). It asked the Minister to extend that inter-trade agreement to other operators, stating as the reason for that request the concern to guarantee the quality of the cucumbers sold to consumers.
32 By a decision of 7 September 2020, the Minister refused to grant that request. Interfel brought an action before the Conseil d’État (Council of State) seeking the annulment of that decision.
33 The Conseil d’État (Council of State) states that the agreement on cucumbers provides that the size of the cucumbers produced in mainland France and sold in the ‘Extra’ Class or in Class I is determined exclusively by weight, to the exclusion of any size scale combining diameter and length, that their minimum weight is 250 g and that ‘Extra’ Class or Class I cucumbers must be evenly sized, with a single package containing only products of the same class in the defined size scale. According to the Conseil d’État (Council of State), those specifications are stricter than those resulting, first, from the general marketing standard, within the meaning of Article 3(1) of Regulation No 543/2011, which does not contain any rule on the sizing of products, and, second, UNECE Standard FFV-15 concerning the certification, marketing and commercial quality control of cucumbers.
34 The Conseil d’État (Council of State) adds that Interfel has, inter alia, raised a plea in law alleging that the Minister could not legally refuse to extend the agreement on cucumbers to other operators. According to the Conseil d’État (Council of State), it is necessary, in order to examine that plea in law, to answer the question whether Article 164(4) of Regulation No 1308/2013 is to be interpreted, first, as authorising the extension to other operators of inter-trade agreements providing for stricter rules than those laid down in Union rules, not only in the case of ‘production rules’, within the meaning of point (b) of that paragraph 4, but also with regard to all the rules relating to one or more of the aims referred to in points (a) and (c) to (n) of that paragraph, and, second, where no specific rules are laid down in EU law for a given class of fruit or vegetables, as authorising the extension to other operators of such agreements which lay down stricter rules than those laid down in the applicable standards adopted by the UNECE.
35 In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 164 of Regulation [No 1308/2013] to be interpreted as authorising the extension of inter-trade agreements which establish [more stringent standards] than those laid down in Union rules not only in the case of “production rules”, mentioned in point (b) [of paragraph 4 of that article], but also in all of the other cases, mentioned in points (a) and (c) to (n) [of that paragraph 4], in relation to which Article 164 provides that the extension of an inter-trade agreement may be requested? (2) Where there are no specific Union rules relating to a given class of fruit or vegetables, is Article 164 of Regulation [No 1308/2013] to be interpreted as authorising the extension of inter-trade agreements which establish more stringent [standards] than the applicable standards adopted by the [UNECE] [to which EU law refers]?’
36 On 10 June 2020, Interfel concluded an inter-trade agreement entitled ‘Apples - sizing by weight’ for the 2021-2023 marketing years (‘the agreement on apples’). It requested that the Minister extend that inter-trade agreement to other operators, stating as the reason for that request the concern to guarantee the quality of the fruit sold to consumers.
37 By a decision of 20 November 2020, the Minister refused to grant that request. The Conseil d’État (Council of State) observes that that decision of 20 November 2020 must be regarded as a decision withdrawing the decision granting Interfel’s request for extension, which, under Article L. 632-4 of the Rural and Maritime Fishing Code, is deemed to have been given in the absence of an express decision taken on the request by the end of the examination period provided for, which had been extended to 7 November 2020. Interfel brought an action before the Conseil d’État (Council of State) seeking the annulment of the decision of 20 November 2020.
38 The Conseil d’État (Council of State) states that the agreement on apples, first, provides for sizing exclusively by weight, thus excluding sizing by diameter as provided for in point III of Part 1 in Part B of Annex I to Implementing Regulation No 543/2011, and, second, stipulates that Class I and Class II apples packed in rows and layers in a single package must comply with one of the 14 size ranges specified in that agreement and that Class I apples packed loose in a single package must comply with 8 size ranges stated in the agreement, which are more detailed than those provided for in point III of Part 1 in Part B of Annex I to Implementing Regulation No 543/2011.
39 The Conseil d’État (Council of State) adds that Interfel has, inter alia, raised a plea in law alleging that the Minister could not lawfully withdraw his decision granting the request for extension of the agreement on apples to other operators. According to the Conseil d’État (Council of State), it is necessary, in order to examine that plea in law, to answer the question whether Article 164(4) of Regulation No 1308/2013 is to be interpreted as authorising the extension to other operators of inter-trade agreements providing for stricter rules than those laid down in Union rules not only in the case of ‘production rules’, within the meaning of point (b) of that paragraph 4, but also with regard to all the rules relating to one or more of the aims referred to in points (a) and (c) to (n) of that paragraph. If the answer to that question differs depending on whether it is ‘marketing rules’, within the meaning of point (d) of that paragraph, or ‘minimum standards of packing and presentation’, within the meaning of point (k) thereof, that are at issue, the Conseil d’État (Council of State) wishes to know whether the definition of size ranges intended to ensure the uniformity of products in the same package falls under those rules or those standards.
40 In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 164 of Regulation [No 1308/2013] to be interpreted as authorising the extension of inter-trade agreements which establish [more stringent standards] than those laid down in Union rules not only in the case of “production rules”, mentioned in point (b) of [paragraph 4 of that article], but also in all of the cases mentioned in points (a) and (c) to (n) [of that paragraph], in relation to which Article 164 provides that the extension of an inter-trade agreement may be requested and, in particular, as authorising, where [Union] rules lay down marketing and packaging rules for a given class of fruit or vegetables, the adoption of more stringent rules in an inter-trade agreement and their extension to all operators? (2) If the answer to question 1 depends on whether it is “marketing rules”, mentioned in point (d) of [paragraph 4 of that article], or “minimum standards of packing and presentation”, referred to in point (k) [of that paragraph], that are at issue, does the definition of size ranges intended to ensure the uniformity of products in the same package fall under marketing rules or under standards of packing and presentation?’
41 On 10 June 2020, Interfel concluded an inter-trade agreement entitled ‘Kiwifruit Hayward - harvesting date and marketing date - maturity’ for the 2021-2023 marketing years (‘the agreement on kiwifruit’). It requested that the Minister extend that inter-trade agreement to other operators, stating as the reason for that request the concern to guarantee the quality of the fruit sold to consumers.
42 By a decision of 22 October 2020, the Minister refused to grant that request. Interfel brought an action before the Conseil d’État (Council of State) seeking the annulment of that decision.
43 The Conseil d’État (Council of State) states that the agreement on kiwifruit provides that kiwifruit of the Actinidia deliciosa cultivars of the ‘Hayward’ variety, produced in France, may not be harvested before 10 October or sold before 6 November in France. Those requirements are stricter than the provisions laid down in point II(B) of Part 3 in Part B of Annex I to Implementing Regulation No 543/2011, which, other than minimum maturity requirements, do not lay down any condition relating to harvesting and marketing dates.
44 The Conseil d’État (Council of State) adds that Interfel has, inter alia, raised a plea in law alleging that the Minister could not lawfully refuse to extend the agreement on kiwifruit to other operators. According to the Conseil d’État (Council of State), it is necessary, in order to examine that plea in law, to answer the question, first, whether Article 164(4) of Regulation No 1308/2013 is to be interpreted as authorising the extension to other operators of inter-trade agreements providing for stricter rules than those laid down in Union rules not only in the case of ‘production rules’, within the meaning of point (b) of that paragraph 4, but also with regard to all the rules relating to one or more of the aims referred to in points (a) and (c) to (n) of that paragraph, and, second, whether the fixing of harvesting dates and of marketing dates falls under the application of the rules that may be laid down by inter-trade agreement and extended in accordance with Article 164 of Regulation No 1308/2013 and, if so, whether the fixing of such dates falls under the application of ‘production rules’, within the meaning of point (b) of that paragraph 4 or, as Annex XVIa to Regulation No 1234/2007 previously provided, the application of ‘marketing rules’.
45 In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 164 of Regulation [No 1308/2013] to be interpreted as authorising the extension of inter-trade agreements which establish [more stringent standards] than those laid down in Union rules not only in the case of “production rules”, mentioned in point (b) of [paragraph 4 of that article], but also in all of the cases mentioned in points (a) and (c) to (n) [of that paragraph], in relation to which Article 164 provides that the extension of an inter-trade agreement may be requested? (2) Are rules fixing harvesting dates and marketing dates rules that can be laid down by inter-trade agreement and extended on the basis of Article 164 of Regulation [No 1308/2013] and, if so, are rules fixing harvesting dates and marketing dates “production rules”, as referred to in point (b) of [paragraph 4 of that article], or, as Annex XVIa to [Regulation No 1234/2007] previously stipulated, “marketing rules”, as now referred to in point (d) of [that paragraph 4]?’
46 By decision of the President of the Court of Justice of 9 September 2022, Cases C‑501/22 to C‑504/22 were joined for the purposes of the written and oral parts of the procedure and of the judgment.
47 By its second question in Case C‑504/22, which should be examined in the first place, the referring court asks, in essence, whether Article 164 of Regulation No 1308/2013 must be interpreted as meaning that the fixing, by means of agreement, decision or concerted practice agreed on within a recognised producer organisation, a recognised association of producer organisations or a recognised interbranch organisation, of harvesting dates or marketing dates for an agricultural product falls under the application of that article.
48 In that regard, it must be observed that, pursuant to point 3(a) of Annex XVIa to Regulation No 1234/2007, specified dates for commencement of cropping and the staggering of marketing were contained, under the heading of marketing rules, in the exhaustive list of rules that could be extended to non-member producers of an interbranch organisation pursuant to Article 125f and Article 125l of that regulation. According to Article 230 of Regulation No 1308/2013, those articles correspond to Article 164 of that regulation.
49 In addition, Article 230 of Regulation No 1308/2013 repealed, in paragraph 1 thereof, Annex XIVa to Regulation No 1234/2007. Article 164 of Regulation No 1308/2013 provides, in paragraph 4 thereof, that the rules for which extension to other operators may be requested are to have one of the aims laid down in that paragraph, which include marketing. However, the latter regulation does not contain a provision similar to point 3 of that annex setting out an exhaustive list of the marketing rules that may be extended to other operators. In those circumstances, Regulation No 1308/2013 must be regarded as covering ‘marketing’ in the broad sense.
50 It follows from the foregoing that, by not specifying, under Regulation No 1308/2013, an exhaustive list of the marketing rules which may be extended to non-member operators, the EU legislature did not, in any event, intend to restrict, in that regard, the scope of Article 164 of that regulation as compared with the scope of the corresponding provisions of Regulation No 1234/2007 which it repealed.
51 The second question in Case C‑504/22 must therefore be answered to the effect that Article 164 of Regulation No 1308/2013 must be interpreted as meaning that the fixing, by means of agreement, decision or concerted practice agreed on within a recognised producer organisation, a recognised association of producer organisations or a recognised interbranch organisation, of harvesting dates or marketing dates for an agricultural product falls under the application of that article.
52 By its question in Case C‑501/22, its questions in Case C‑502/22 and the first questions in Cases C‑503/22 and C‑504/22, which must be examined jointly, the referring court asks, in essence, whether Article 164(1) and (4) of Regulation No 1308/2013 must be interpreted as meaning that a Member State may, at the request of a recognised producer organisation, a recognised association of producer organisations or a recognised interbranch organisation operating in a specific economic area or areas of that Member State and considered to be representative of the production of or trade in, or processing of, a given product, make binding some of the agreements, decisions or concerted practices agreed within that producer organisation, association of producer organisations or interbranch organisation on other operators acting in those economic areas who do not belong to that producer organisation, association of producer organisations or interbranch organisation, where the rules laid down in those agreements, decisions or concerted practices, which concern one or more of the aims listed in points (a) and (c) to (n) of paragraph 4 of that article, are stricter than those laid down in Union rules or in standards adopted by the UNECE.
53 According to settled case-law of the Court, it is necessary, when interpreting a provision of EU law, to consider not only its wording but also its context and the objectives of the legislation of which it forms part (judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 67 and the case-law cited).
54 Furthermore, it is also settled case-law that, where a provision of EU law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness (judgment of 7 March 2018, Cristal Union, C‑31/17, EU:C:2018:168, paragraph 41 and the case-law cited).
55 In the present case, it should be observed that, although, unlike the wording of Article 164(4)(b) of Regulation No 1308/2013, the wording of Article 164(4)(a) and (c) to (n) of that regulation does not refer to rules that are ‘stricter than those laid down in Union or national rules’, the latter wording does not however expressly exclude the possibility of stricter rules than those laid down in Union rules being extended to other operators.
56 With regard to the context of Article 164(1) and (4) of Regulation No 1308/2013, it should be noted that that article, which is part of Section 3 of Chapter III of that regulation, entitled ‘Extension of rules and compulsory contributions’, is a basis upon which certain rules adopted by a recognised producer organisation, a recognised association of producer organisations or a recognised interbranch organisation may be extended to operators who do not belong to the organisation concerned. Such a power of extension must be understood in the light of Article 74 of that regulation, pursuant to which the products for which marketing standards have been laid down by sectors or products may be marketed in the European Union only if they conform to those standards.
57 It follows, therefore, from Article 74 of Regulation No 1308/2013 that any operator, whether or not it belongs to a recognised producer organisation, a recognised association of producer organisations or a recognised interbranch organisation, is obliged to comply with the rules laid down in the abovementioned standards in order to be able to market its products.
58 Accordingly, the provisions of Article 164(4)(a) and (c) to (n) of Regulation No 1308/2013 would be rendered ineffective if a Member State could not make binding rules laid down in an agreement such as that envisaged in paragraph 1 of that article which go beyond the rules already imposed by virtue of the marketing standards applicable under Union rules.
59 An interpretation to that effect is, moreover, consistent with the objectives set out in recitals 132 and 134 of Regulation No 1308/2013. As the first of those recitals states, interbranch organisations can play an important role in allowing dialogue between actors in the supply chain, and in promoting best practices and market transparency. As is apparent from recital 134 of that regulation, the EU legislature considered that existing provisions in various sectors, boosting the impact of producer organisations, their associations and interbranch organisations by permitting Member States, under certain conditions, to extend certain rules of such organisations to non-member operators, have proved effective, and should be harmonised, streamlined and extended to all sectors.
60 It should be observed, in that regard, that, in accordance with Article 164(1) of Regulation No 1308/2013, such an extension is not compulsory, but merely an option for the Member State concerned, which - in the exercise of its sovereign powers - assesses whether that extension is appropriate.
61 As far as exercising that option is concerned, and in order to guarantee that exercising it contributes to achieving the objectives recalled in paragraph 59 of the present judgment, Article 164(4) of Regulation No 1308/2013 provides that the extension of such rules to operators who do not belong to the organisation or association within which those rules were agreed on is precluded where the rules cause any damage to those operators, where they have any of the effects listed in Article 210(4) of that regulation or where they are incompatible with EU law or national rules in force.
62 Moreover, as for standards adopted by the UNECE, it should be observed that Article 3(1) of Regulation No 543/2011, read in the light of Article 76 of Regulation No 1308/2013, provides that the requirements laid down in the latter provision are to be the general marketing standard to which fruit and vegetables not covered by a specific marketing standard are to conform, whilst stating, however, that, where the holder is able to show that the products are in conformity with any applicable standards adopted by the UNECE, they are to be considered as conforming to the general marketing standard. It follows that the considerations set out in paragraphs 55 to 61 of the present judgment apply mutatis mutandis to the standards adopted by the UNECE.
63 In the light of all the foregoing considerations, the question in Case C‑501/22, the questions in Case C‑502/22 and the first questions in Cases C‑503/22 and C‑504/22 must be answered to the effect that Article 164(1) and (4) of Regulation No 1308/2013 must be interpreted as meaning that a Member State may, at the request of a recognised producer organisation, a recognised association of producer organisations or a recognised interbranch organisation operating in a specific economic area or areas of that Member State and considered to be representative of the production of or trade in, or processing of, a given product, make binding some of the agreements, decisions or concerted practices agreed within that producer organisation, association of producer organisations or interbranch organisation on other operators acting in those economic areas who do not belong to that producer organisation, association of producer organisations or interbranch organisation, where the rules laid down in those agreements, decisions or concerted practices, which concern one or more of the aims listed in points (a) and (c) to (n) of paragraph 4 of that article, are stricter than those laid down in Union rules or in standards adopted by the UNECE.
64 The second question in Case C‑503/22 was submitted only if the answer given to the first question in that case differs according to whether it is ‘marketing rules’, within the meaning of Article 164(4)(c) of Regulation No 1308/2013, or ‘minimum standards of packing and presentation’, within the meaning of Article 164(4)(k) of that regulation, that are at issue.
65 Since that is not the case here, there is no need to answer that second question.
66 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.