1.

The applicant in the main proceedings, the Saint-Louis Sucre company, produces sugar from sugar beet. It has requested the Conseil d’État (Council of State, France) to annul a decree of 20 December 2019 (‘the contested decree’), under which the ministre de l’Agriculture et de l’Alimentation (Minister for Agriculture and Food, France) recognised the société d’intérêt collectif agricole (SICA) des betteraviers d’Étrépagny (agricultural cooperative for sugar beet growers of Étrépagny; ‘the Étrépagny SICA’) as a producer organisation (PO) ( 2 ) in the sugar sector for sugar beet.

2.

The present case concerns certain conditions that must be met by a PO to be recognised as such, within the meaning of the CMO Regulation, ( 3 ) by a Member State. The recognition of a PO entails various rights and obligations. ( 4 )

3.

Specifically, the referring court asks, in essence, whether a trade union may be a non-producer member of more than one PO and, where one or more non-producer members belong to a PO, what conditions permit the conclusion that the producer members democratically scrutinise their organisation and its decisions.

4.

In the decree at issue, the Minister for Agriculture and Food recognised the Étrépagny SICA as a PO in the sugar sector for sugar beet.

5.

The applicant in the main proceedings, Saint-Louis Sucre, has lodged an appeal before the Conseil d’État (Council of State) seeking the annulment of that decree. In support of its request, the applicant relies on one plea in law alleging infringement of Article 153(1)(b) of the CMO Regulation and on another plea in law alleging infringement of Article 153(2)(c) of that regulation.

6.

In support of its first plea in law, the applicant in the main proceedings submits that the contested decree was adopted in breach of Article 153(1)(b) of the CMO Regulation, since the confédération générale des planteurs de betteraves (General Confederation of Sugar Beet Growers (CGB) Eure) (CGB Eure), the CGB Île-de-France and Naples Investissement, which are not producers, are members of both the Étrépagny SICA and the SICA Roye-Déshydratation, which is also recognised as a PO. ( 5 )

7.

The Conseil d’État (Council of State) considers that the response to that plea depends on whether Article 153(1)(b) of the CMO Regulation, which requires the members of a PO to be members of only one PO for any given product of the holding, must be interpreted as applying only to producer members or as applying to all the members of a PO, including non-producer members.

8.

In support of its second plea in law, the applicant in the main proceedings submits that the producer members of the SICA are not, in its view, able to democratically scrutinise their organisation or its decisions.

9.

Specifically, the applicant in the main proceedings submits that the CGB France in fact controls the CGB Eure and the CGB Île-de-France and holds almost all the capital of Naples Investissement. The applicant submits that the CGB France therefore controls, through these three entities, which are obliged to carry out its instructions, 31.4% of the SICA’s capital, in breach of the latter’s statutes, which limit each member’s share of the vote to 10%. Moreover, the applicant in the main proceedings submits that, of the 13 directors of the SICA, three represent the CGB Eure, the CGB Île-de-France and Naples Investissement respectively, and six others are producers that are members of the CGB France, with significant responsibilities within it. The applicant in the main proceedings adds that the breach of the principle laid down by Article 153(2)(c) of the CMO Regulation is exacerbated by the fact that the director of the SICA and part of its resources are provided by the CGB France.

10.

The Conseil d’État (Council of State) considers that the response to the challenge raised in that regard by the applicant depends on whether, in order to ensure compliance with the principle set out in Article 153(2)(c) of the CMO Regulation, it is necessary, in order to assess the independence of each of the members of the organisation, to take account exclusively of the holding of their capital by the same natural or legal person, or also of other links such as, for non-producer members, affiliation to the same union confederation, or, for producer members, the exercise of management responsibilities within such a confederation. The referring court also considers that the merits of the plea before it also depend on whether it is sufficient, in order to conclude that producer members do have control over the PO, that those members have a majority of the votes, or whether it is necessary to examine whether, in view of the distribution of votes among members who are genuinely independent, the voting share of one or more non-producer members enables them, even without a majority, to control the decisions taken by the PO.

11.

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:

12.

Written observations were submitted to the Court by Saint-Louis Sucre, the SICA, the French Government and the European Commission. A hearing was held on 16 November 2022 at which Saint-Louis Sucre, the SICA, the French Government and the Commission presented oral argument.

13.

As stated in Article 1(1) thereof, the CMO Regulation establishes a common organisation of the markets for agricultural products, which means all the products listed in Annex I to the TFEU.

14.

Article 152 of the CMO Regulation, entitled ‘Producer organisations’, is worded as follows:

‘1.   Member States may, on request, recognise [POs], which:

…

1a.   By way of derogation from Article 101(1) TFEU, a [PO] recognised under paragraph 1 of this Article may plan production, optimise the production costs, place on the market and negotiate contracts for the supply of agricultural products, on behalf of its members for all or part of their total production.

The activities referred to in the first subparagraph may take place:

…

…

However, Member States may derogate from the condition set out in point (d) of the second subparagraph in duly justified cases where producer members hold two distinct production units located in different geographical areas.

…

1c.   The national competition authority referred to in Article 5 of [Council] Regulation (EC) No 1/2003 [of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1)] may decide in individual cases that, for the future, one or more of the activities referred to in the first subparagraph of paragraph 1a are to be modified, discontinued or not take place at all if it considers that this is necessary in order to prevent competition from being excluded or if it considers that the objectives set out in Article 39 TFEU are jeopardised.

…’

15.

Article 153 of the CMO Regulation, entitled ‘Statutes of producer organisations’, provides:

‘1.   The statutes of a [PO] shall require its producer members, in particular, to:

…

…

2.   The statutes of a [PO] shall also provide for:

…

…’

16.

Paragraph 1 of Article 154 of the CMO Regulation, entitled ‘Recognition of producer organisations’, provides:

‘In order to be recognised by a Member State, the [PO] applying for such recognition shall be a legal entity or clearly defined part of a legal entity which:

17.

Article 39(1) TFEU sets out the economic and social objectives of the common agricultural policy (CAP). They include increasing productivity, ensuring a fair standard of living for the agricultural community, stabilising markets, assuring the availability of supplies and ensuring that supplies reach consumers at reasonable prices.

18.

Under Article 39(2)(a) TFEU, in achieving those objectives account must be taken ‘of the particular nature of agricultural activity, which results from the social structure of agriculture and from structural and natural disparities between the various agricultural regions’.

19.

The participation of the POs in the CAP helps to achieve its objectives, by ensuring that the agricultural market is organised ‘from the ground up’, namely for and by producers themselves. ( 6 )

20.

More specifically, POs must pursue at least one of the 11 objectives set out in Article 152(1)(c) of the CMO Regulation. ( 7 ) In addition, those organisations must carry out at least one of the eight activities set out in Article 152(1)(b) of the regulation. ( 8 ) Briefly, their joint activities must enable, first, partial or almost complete pooling of their production processes, enabling them to achieve economies of scale and, secondly, strengthen the position of producers in the face of ever greater concentration of demand. ( 9 )

21.

Participation in a recognised PO offers other benefits.

22.

Recognition thereof results in the application of certain provisions of the CMO Regulation concerning, in particular, the granting of aid, ( 10 ) derogations from the application of Article 101(1) TFEU ( 11 ) and even the possibility for a Member State to make binding some of the agreements, decisions or concerted practices agreed within the organisation on other operators who do not belong to the organisation. ( 12 )

23.

That is why the recognition procedure is a vital step that determines the legal status of a PO, although this is not irreversible, since recognition may be revoked under the various existing ex post checks. ( 13 )

24.

In the present case, and in the context of such a recognition procedure, the referring court is asking the Court about the meaning and scope of the rule on membership of only one PO (‘the single membership rule’) (A) and on the democratic functioning of a PO (B).

25.

By its first question, the referring court asks, in essence, whether the single membership rule, as set out in Article 153(1)(b) of the CMO Regulation, must be interpreted as relating only to producer members of the PO or to all the members, whether or not they are producers.

26.

In the wording of its question, the referring court appears to start from the premiss that a non-producer may be a member of a PO. That premiss should, first of all, be reviewed (1), and, subsequently, the scope of the single membership rule examined (2).

27.

First of all, it should be noted that, in its case-law, the Court held some time ago that it was possible for a non-producer to be a member of a PO, ( 14 ) without that case-law specifically stating whether it was also applicable in respect of a trade union, as in the circumstances of the main proceedings.

28.

As the legislation in this field has since been amended on several occasions, one might argue that if the legislature had meant to reconsider the possibility for non-producers to belong to a PO, it could have taken the opportunities presented to it.

29.

Moreover, with regard to fruit and vegetables, ( 15 ) Article 16 of Delegated Regulation (EU) 2017/891 ( 16 ) expressly sets out the possibility of a PO having members that are non-producer members. In the same way, Regulation (EC) No 1432/2003, ( 17 ) which pre-dated Regulation (EC) No 1234/2007, ( 18 ) itself a precursor to the CMO Regulation, also provided in Article 13 thereof that non‑producers could be members of a PO.

30.

I therefore infer from the above that EU law does not prohibit a non-producer from belonging to a PO. The legislation of Member States may even make that option explicit, as has been done by the French legislature. ( 19 )

31.

With regard, more specifically, to a situation in which a non-producer member is a trade union, it is necessary to keep in mind the protection linked to the fundamental nature of freedom of association, which also includes the freedom to form and join trade unions, guaranteed by Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).

32.

Not only does the protection conferred by the fundamental nature of that freedom relate to the creation of such a body, the freedom to join the union or not to do so, ( 20 ) but the protection also relates to that body’s ways of acting and its activities. ( 21 )

33.

In so far as Article 12(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) also concerns freedom of association, as enshrined in Article 11 ECHR, the case-law cited above should be taken into consideration. ( 22 )

34.

Acts of EU law, such as the CMO Regulation, must, in accordance with the Court’s settled case-law, be interpreted in the light of the fundamental rights guaranteed by the Charter. ( 23 )

35.

Moreover, even if it does not appear from the information available to the Court that the CGB’s participation in a PO constitutes, in this particular case, a new trade union action strategy, it cannot be ruled out that this might be the case.

36.

This is particularly true because trade union organisations, as trade bodies in a particular sector, may have an interest in intervening in support of or in acting to relay information on important or technical issues. When asked questions at the hearing about the possible contributions made by the participation of a non-producer member, such as a trade union, to a PO, the SICA, the French Government and the Commission placed emphasis on their role of providing assistance in the development of POs, particularly in view of production methods and techniques and issues linked to climate change.

37.

The contribution made by a trade union organisation’s membership of a PO is therefore not solely hypothetical in nature.

38.

Therefore, membership by a trade union of a PO forms part of the range of possible actions that such a body can take. More generally, participation by a trade union in a PO, as a non-producer member, makes it possible to promote and contribute to the attainment of the objectives assigned to those POs. ( 24 )

39.

I therefore take the view that the CMO Regulation does not preclude a PO from including non-producers among its members, which may include trade union organisations.

40.

That having been clarified, the first question posed by the referring court should now be examined.

41.

The participants in the proceedings before the Court propose two differing interpretations.

42.

Saint-Louis Sucre submits that Article 153(1)(b) of the CMO Regulation imposes a rule that bodies may belong to only one PO, with no distinction.

43.

The SICA, the French Government and the Commission submit, in essence, that that rule applies only to producers and therefore does not apply to non-producer members.

44.

The arguments put forward by Saint Louis-Sucre and the doubts of the referring court regarding the single membership rule seem, in part, to derive from the French version of Article 153(1), since that version refers solely to ‘membres’ (members) of the PO without any further qualification. It is not the only language version to take that approach. ( 25 ) However, most of the other language versions clearly state that the reference is to ‘producer members’. ( 26 )

45.

In that regard, it should be noted that it is settled case-law that all language versions of an EU act must, in principle, be recognised as having the same value. In order to maintain the uniform interpretation of EU law, in the case of divergence between those versions, the provision in question must therefore be interpreted by reference to the purpose and general scheme of the rules of which it forms part. ( 27 )

46.

In that respect, it should be pointed out that the single membership rule is reflected in a second provision of the CMO Regulation, namely Article 152(1a)(d) thereof. In that provision, the various language versions do refer to producer members.

47.

The reference to ‘products’ in those two provisions appears to imply a reference to those pursuing an agricultural activity within the meaning of Article 4(1)(a) and (c) of Regulation No 1307/2013, ( 28 ) namely producers.

48.

With regard to the legislative procedure, it should be observed that single membership rule appears to have been introduced for the first time in relation to the CAP in Regulation (EC) No 1182/2007, ( 29 ) on fruit and vegetables. The rule was repeated and expanded a few months later in Article 125a of Regulation No 1234/2007, which was added by Article 1 of Regulation (EC) No 361/2008. ( 30 ) It should also be specified that the wording of that provision as finally adopted was unchanged from the Commission’s initial proposal. ( 31 ) In so far as no grounds for the proposal were expressly stated, it is not possible to ascertain from the legislative procedure the legislature’s actual reasons.

49.

When asked questions at the hearing about the reason underlying the single membership rule, the SICA, the French Government and the Commission suggested that the purpose of the rule was to concentrate the supply of a specific product by strengthening the position of its producers in order to rebalance commercial relationships.

50.

Such an interpretation of the rule seems to be confirmed by the exception laid down by Article 153(1)(b) of the CMO Regulation. That provision makes it possible to derogate from the said principle in cases where ‘producer members hold two distinct production units located in different geographical areas’. The same applies to the exception in the third subparagraph of Article 152(1a) of the Regulation, which states that Member States may derogate from the condition set out in Article 152(1a)(d) of the regulation ‘where producer members hold two distinct production units located in different geographical areas’. Those exceptions to the single membership rule demonstrate that, outside a specific geographical area, the rule is restricted, since maintaining such a rule no longer make sense for the purposes of concentrating the supply of a specific product.

51.

The few academic writings on the subject also appear to argue that the reason underlying the single membership rule relates to the product supplied. With regard to Regulation No 1234/2007, which preceded the current CMO Regulation, it is submitted that the single membership rule aims to prevent producers from being in a position to fragment the supply of a specific product and, thus, to prevent competition between the organisations. ( 32 )

52.

It thus appears that concentration of supply constitutes one of the grounds for the single membership rule.

53.

In addition, that rule contributes to the attainment of the CAP objectives, ( 33 ) since it makes it possible to strengthen the position of producers in the face of ever greater concentration of demand. ( 34 )

54.

It follows that if the concentration of supply with reference to products constitutes a plausible ground for the single membership rule, it applies only to producer members and not to the other members of POs.

55.

I therefore consider that the single membership rule applies solely to producer members.

56.

In the observations it made before the Court, Saint-Louis Sucre submitted that membership by a trade union of a PO could pose a problem in terms of competition.

57.

In the judgment in APVE, the Court pointed out that a recognised PO is responsible for ensuring that production is planned and adjusted to demand, particularly in terms of quality and quantity, concentrating supply and placing on the market the products produced by its members, and also optimising production costs and stabilising producer prices. In order to achieve this, a PO must have recourse to means different from those which govern normal market operations and, in particular, to certain forms of coordination and concertation between agricultural producers. Therefore, and unless POs are to be deprived of the means to achieve the objectives assigned to them under the common market organisation in which they are involved, the practices of those entities which are necessary in order to achieve one or more of those objectives must escape, inter alia, the prohibition of agreements, decisions and concerted practices laid down in Article 101(1) TFEU. ( 35 )

58.

Thus, immunity from the competition rules only applies within a recognised PO or association of POs; ( 36 ) outside that context, the rules apply once again.

59.

More specifically, the arguments put forward by Saint-Louis Sucre appear, in essence, to voice concern regarding a potential risk of collusion ensuing from the possible participation by a trade union in two different POs.

60.

It should be recalled that, in such a case, the CMO Regulation does not prevent the application of competition rules. Thus, the regulation does not interfere with the competence of national authorities which, should they perceive a possible risk of collusion, enjoy a certain discretion to prevent such collusion from occurring.

61.

In that respect, as is apparent from the request for a preliminary ruling and as recalled by the SICA at the hearing, when it was preparing its file applying for recognition, the latter was asked on 11 December 2019 to amend its rules of procedure to take account of the observations made to it during the procedure for examining its application for recognition, and, in accordance with those observations, to set out in Article 18 of its rules of procedure a clause on confidentiality and ethical standards for the director and non-producer members of the PO.

62.

In addition, as discussed at the hearing, while the stage of recognising a PO is a significant one since it is an ex ante verification, during which the competent national authorities have four months to respond to a PO’s application for recognition, ( 37 ) it should nonetheless be borne in mind that it is not the only stage of checks.

63.

There are several other types of ex post check. First, the national authority that recognised the PO may change its decision and withdraw recognition. ( 38 ) Secondly, the national or European competition authorities may be asked to examine the practices of one or more POs. The Court’s recent case-law shows that this is not merely a theoretical scenario. ( 39 ) Thirdly, in the context of the programme for granting aid, payment of aid also involves checking procedures.

64.

In the light of the foregoing considerations, I propose that the Court should answer the first question by ruling that the single membership rule, as set out in Article 153(1)(b) of the CMO Regulation, must be interpreted as relating only to producer members of the PO.

65.

In its second question, the referring court asks, in essence, whether Article 153(2)(c) of the CMO Regulation must be interpreted as meaning that the checks to be carried out by a national authority, and if applicable by the competent courts or tribunals, in order to verify that a PO that has applied for recognition is able to function democratically must be limited to certain elements such as the holding of capital or the distribution of votes, or whether they must be as wide as possible, and include all the circumstances or all the elements available.

66.

It should be recalled that Article 152(1)(a) of the CMO Regulation states ‘Member States may, on request, recognise [POs], which … are constituted, and controlled in accordance with point (c) of Article 153(2), by producers in a specific sector listed in Article 1(2)’.

67.

More specifically, first, Article 152(1)(b) of the CMO Regulation emphasises the requirement for POs to be ‘formed on the initiative of the producers’.

68.

Secondly, Article 153(2)(c) of the regulation requires producer members of a PO to scrutinise democratically their organisation and its decisions. It is apparent from that provision that the regulation does not lay down specific criteria according to which Member States’ authorities are to assess whether a PO is democratically scrutinised by its members.

69.

The participants in the proceedings before the Court each rely on the judgment in the Spain v Commission ( 40 ) case, which is one of the few indications in the case-law of the EU judicature regarding the democratic operation of a PO.

70.

On the one hand, the SICA considers that only capital holdings and the composition of the majority of votes should be checked, without taking into account other links, such as affiliation to the same trade union confederation or the exercise of management responsibilities within such a confederation.

71.

On the other hand, Saint-Louis Sucre, the French Government and the Commission submit, in essence, that all the relevant elements must be taken into account.

72.

In my view, the argument put forward by the SICA derives from a partial reading of the judgment in Spain v Commission.

73.

In that judgment, the General Court noted that EU legislation concerning POs are designed to ensure that such organisations operate democratically, in accordance with two principles. First, the producer members of the PO must scrutinise their organisation and its decisions and, secondly, the PO must include among its members a certain number of producers ( 41 ) and none of those members may, in principle, have more than a certain percentage of the voting rights, so that the PO is, to a certain extent, representative. ( 42 )

74.

When considering the second principle mentioned above, the General Court stated that ‘it is necessary to take into account the identities of the individuals or legal persons holding the shares of the members of that organisation’. ( 43 )

75.

In that respect, the General Court does not restrict itself to a formal analysis of the apparent independence of the members of the PO. Quite the reverse: the analysis includes an examination of the mechanisms and methods for genuinely exercising the power to scrutinise the PO and its decisions, as well as of the persons that might be concealed behind legal entities or individuals that might be acting as a screen. ( 44 ) Thus, it is the capacity to carry out genuine scrutiny of the decisions of a PO that constitutes a key element in analysing its democratic operation.

76.

Not only must the lessons of the judgment in Spain v Commission, in my view, be endorsed, but they can also be applied in the present case.

77.

However, the lessons from that judgment must be expanded.

78.

In extending that judgment, I would say that the checks by the national authority when taking a decision on the recognition of a PO must take into account all potential links of dependency, whether that be between producer members or between producer members and non-producer members.

79.

To that effect, the operating rules of the PO must be thoroughly examined. They include the statutes and the rules of procedure, the identity of all its members, in particular direct or indirect means of control, in order to examine any potential links of dependency between its members, whether or not they are producers, as well as any other element available to the national authority or that it is able to ascertain when considering the application for recognition.

80.

In so far as a PO is an organisation ‘formed on the initiative of the producers’ and ‘controlled … by [the] producers’, meaning, in other words, that the producers must scrutinise ‘their organisation and its decisions’, ( 45 ) particular attention must be paid to the involvement of non-producer members in the PO to ensure that the framework developed by the CMO Regulation does not act as a shield to circumvent, for example, the rules on competition.

81.

Among other elements, it must therefore be verified that the producer members hold at least the majority of votes in the PO ( 46 ) and that the non-producers do not have other ways, whether direct or indirect, to exercise control over the PO’s affairs. ( 47 )

82.

In order to achieve this, the national authorities must conduct their checks on a case-by-case basis, in a comprehensive manner, on the basis of a body of evidence. ( 48 )

83.

This realistic approach to the scope of the review carried out is, in my view, confirmed by Article 154(1)(c) of the CMO Regulation, since that provision requires the authority ruling on the application for recognition to look into the future and specific ways in which the PO plans to act, in relation to both the pooling of resources and any practices relating to concentration between the members.

84.

I would like to make a final clarification relating to the specific circumstances of the dispute before the referring court, since the applicant in the main proceedings is challenging, in particular, the direct or indirect participation of a trade union in the SICA.

85.

As discussed at the hearing, and as agreed not only by the SICA but also by the French Government and the Commission, it should be remembered that mere membership by an individual or a legal entity, whether a producer member or non-producer member of a PO, of a trade union organisation is not liable, as such, to deprive that member of his, her or its autonomy or freedom to take decisions. The same applies to the exercise of responsibilities within such organisations.

86.

As referred to when examining the first question, because of the protection enjoyed by the freedom to form and join trade unions in Article 12(1) of the Charter, ( 49 ) it should not be inferred from such trade union activities that there is collusion leading to a coordination or concertation as regards supply falling outside the framework laid down by the CMO Regulation and constituting, on that ground alone, an infringement of competition rules.

87.

Therefore, unless there are other elements, the mere existence of links, such as a PO member’s membership, whether or not it is a producer, of a trade union organisation and any exercise of responsibilities within such an organisation, does not affect the democratic operation of a PO within the meaning of Article 153(2)(c) of the CMO Regulation, and thus they do not, in themselves, constitute conclusive evidence.

88.

Finally, as recalled in point 60 of the present Opinion, it is always possible for the national authorities tasked with considering the application for recognition to make such recognition conditional on the introduction of certain procedures in order to prevent any possible risks of collusion.

89.

In view of all these elements, I consider that the answer to be given to the referring court’s second question is that Article 153(2)(c) of the CMO Regulation, read in the light of Article 154(1) of the same regulation, must be interpreted as meaning that the checks to be carried out by a national authority, and if applicable by the competent courts or tribunals, in order to verify that a PO that has applied for recognition is able to function democratically, must be as wide as possible, and must include all the circumstances or all the elements available, without the affiliation of members of the PO to a trade union organisation or their exercise of trade union responsibilities in itself constituting a relevant criterion.

90.

Accordingly, in the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Conseil d’État (Council of State, France) as follows: