1.

‘The territory of Western Sahara does not belong to the Kingdom of Morocco; consequently, a label indicating that the origin of those goods is Morocco infringes EU foodstuff labelling requirements.’

2.

That, in a nutshell, is the argument of the applicant before the national court. The applicant accordingly sought a decision from the ministère de l’agriculture et de la souveraineté alimentaire (Ministry of Agriculture and Food Sovereignty, France) and the ministère de l’économie, des finances et de la souveraineté industrielle et numérique (Ministry of Economics, Finance and Industrial and Digital Sovereignty, France) (‘the Ministries’) to prohibit the importation of cherry tomatoes and Charentais melons (‘the products at issue’) originating in the territory of Western Sahara that are labelled as originating in the Kingdom of Morocco.

3.

The dispute raises two distinct questions.

4.

The first is whether the Member States may act unilaterally in the field of the common commercial policy to prohibit the importation of certain goods from third countries. While not a novel question, in view of recent Member States’ measures against imports from Ukraine, the question is certainly topical from a broader perspective. ( 2 )

5.

The second issue to be resolved relates to the labelling of foodstuffs originating in the territory of Western Sahara. The question here is whether those products may be marketed as originating in the Kingdom of Morocco. That question may be placed within the context of the judgments in Council v Front Polisario ( 3 ) and in Western Sahara Campaign UK, ( 4 ) in which the Court recognised the separate territorial status of the territory of Western Sahara. ( 5 )

6.

Western Sahara is a territory in northwest Africa. It was colonised by the Kingdom of Spain in the 19th century. In 1963, during the context of the process of decolonisation, that territory was added by the United Nations to the list of non-self-governing territories. ( 6 ) It remains on that list to this day.

7.

The process of decolonisation has not (yet) been accomplished and Western Sahara remains the only non-self-governing territory in Africa. Spain renounced its responsibility as a colonial administering power in 1976. Ever since, a conflict, including of a military nature, over the territory has persisted between the Kingdom of Morocco, which controls approximately 80% of the territory of Western Sahara and claims sovereignty over its entirety, and the Front Populaire pour la libération de la saguia-el-hamra et du rio de oro (‘Front Polisario’), which controls the remainder of the territory of Western Sahara and claims to represent the Sahrawi people. The Sahrawi people were recognised as holding the right to self-determination by the International Court of Justice in its Advisory Opinion on Western Sahara. ( 7 )

8.

The conflict in Western Sahara is not new to the Court. Recognising that the right to self-determination binds the European Union in its conduct of external relations, the Court held in Council v Front Polisario and in Western Sahara Campaign UK, that the territory of Western Sahara enjoys a status separate and distinct from that of any State, including from the Kingdom of Morocco. ( 8 )

9.

On that basis, the Court interpreted the Association Agreement and the and Fisheries Partnership Agreement, ( 9 ) the territorial application of which were respectively limited to the ‘territory of the Kingdom of Morocco’ and the ‘waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco’, as not including the territory of Western Sahara or the waters adjacent thereto. ( 10 )

10.

The Council instructed the Commission to act upon the Court’s judgments in Council v Front Polisario and in Western Sahara Campaign UK. ( 11 ) The outcome of the ensuing negotiations with the Kingdom of Morocco is reflected, in one part, in an agreement extending tariff preferences to goods originating in the territory of Western Sahara, ( 12 ) and, in another, by the agreement and implementation protocol relating to sustainable fishing in the waters adjacent to Western Sahara. ( 13 )

11.

Front Polisario have challenged the decisions approving those agreements. The appeals against the judgments of the General Court, by which it annulled those decisions, ( 14 ) are pending before the Court. In parallel to the present Opinion, I will also deliver my Opinions in those two sets of appeals today. ( 15 ) However, and irrespective of whether the Court will follow my Opinions in those cases, their outcome will not affect the solution of the present case.

12.

In the present case, the applicant in the main proceedings before the national court is Confédération paysanne, a French agricultural union. It sought from the Ministries an order prohibiting the importation of the products at issue harvested in the territory of Western Sahara. Those products are imported and marketed in France with a label indicating the Kingdom of Morocco as their place of origin. ( 16 ) The applicant claims that this is contrary to the EU foodstuff labelling requirements that mandate the labelling of a product’s correct country of origin. The applicant submits that, when the products at issue are imported into France, they wrongly indicate the Kingdom of Morocco instead of the territory of Western Sahara as their country of origin. Their importation should, therefore, be prohibited.

13.

Considering the Ministries as having implicitly rejected that request, the applicant filed an action before the Conseil d’État (Council of State).

14.

The referring court is of the view that the applicable rules require that the country or territory of origin of a food product be indicated. That requirement, constituting an element of the marketing of food products, would, in principle, have to be met at the moment of importation. However, the referring court also notes that the applicable regulations do not expressly confer upon Member States the power to adopt measures prohibiting the importation of products which do not comply with that origin labelling requirement. Moreover, the referring court considers that, in light of the Court’s judgments in Council v Front Polisario and in Western Sahara Campaign UK, the question arises as to whether the EU rules on foodstuff labelling must be interpreted as requiring that products originating in the territory of Western Sahara cannot refer to the Kingdom of Morocco as the country of origin but must instead make reference to the territory of Western Sahara.

15.

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:

16.

Written observations were submitted to the Court by the Confédération paysanne, the French Government, the Council and the Commission. Those parties also presented oral argument at the hearing that took place on 24 October 2023.

17.

As explained above, the present reference for a preliminary ruling is treated concurrently with two sets of appeals on which I am also delivering my Opinion today. ( 17 ) One of the two appeals concerns the validity of the preferential treatment granted to, inter alia, the products at issue imported into the European Union from the territory of Western Sahara. ( 18 )

18.

Whatever the outcome of those appeals, the two questions on which the Court has requested that I focus my analysis, namely Questions 1 and 4 as referred, remain relevant. ( 19 )

19.

I will address those two questions in turn. With regard to Question 1, I will assess whether the Member States have the competence under EU law to prohibit unilaterally the importation of certain goods into the European Union which allegedly do not bear a correct country of origin label. ( 20 ) In relation to Question 4, as referred, I will consider whether the products at issue should indicate Western Sahara as their country of origin, and whether they may also indicate the Kingdom of Morocco as their country of origin.

20.

Before venturing into the substance of Question 1, I consider it necessary to reformulate it. That is because the referring court explains the need for guidance on Question 1 by reference to the Food Information to Consumers Regulation, ( 21 ) the Agricultural Products Regulation, ( 22 ) the General Fruit and Vegetable Marketing Regulation, ( 23 ) and the Union Customs Code ( 24 ) as potential legal bases for the unilateral prohibition of imports that is sought by the applicant.

21.

A ban on the importation of certain products is a policy measure governing trade in goods, ( 25 ) a matter that, according to Article 207(1) TFEU, falls within the scope of the common commercial policy. Indeed, in its reference for a preliminary ruling, the referring court explains that the measure sought by the applicant does not concern a sales or marketing ban of the products at issue in France. Instead, the applicant requested the French authorities to impose unilaterally an import ban of those products originating in Western Sahara owing to the alleged violation of EU foodstuff labelling requirements.

22.

As the common commercial policy is an exclusive EU policy, ( 26 ) France does not have the competence to impose an import ban unless empowered or requested to do so by the European Union.

23.

With the exception of the Union Customs Code, all other regulations mentioned by the referring court relate to EU foodstuff labelling on the EU market. Moreover, those regulations were not enacted on the basis of the provisions of the Treaties governing trade with third countries and the common commercial policy (Articles 206 or 207 TFEU), again except for the Union Customs Code. They were instead enacted on the basis of the articles governing agriculture (Article 43 TFEU) and the internal market (Article 114 TFEU).

24.

Given that they do not regulate trade with third countries, the Food Information to Consumers Regulation, the Agricultural Products Regulation, and the General Fruit and Vegetables Marketing Regulation cannot empower France to adopt the requested measure. In any event, none of those regulations authorise the Member States to prohibit unilaterally the importation of non-conforming products. ( 27 )

25.

In order to provide the referring court with a useful answer, I therefore suggest reformulating Question 1 to ask instead whether EU law, in particular the Union Customs Code, authorises a Member State to adopt a national measure prohibiting the importation of fruit and vegetables that do not bear a correct country of origin label.

26.

As I have explained in point 21 of this Opinion, trade in goods is a matter of the common commercial policy. That policy must be governed by uniform principles. ( 28 )

27.

Under Article 3(1)(e) TFEU, the European Union has exclusive competence in the area of the common commercial policy. That means that only the European Union can legislate and adopt legally binding acts relating to trade in goods with third countries. ( 29 )

28.

The corollary of that competence allocation is that the Member States are precluded from acting in the field of international trade unless specifically empowered to do so by the European Union, or where they implement EU acts.

29.

The question before the Court is therefore whether EU primary or secondary law confers autonomous powers on the Member States to put in place the type of unilateral measure requested by the applicant.

30.

At the level of EU primary law, the answer is no. The Treaties do not provide for a provision empowering the Member States to put in place unilateral measures that restrict or suspend trade with a third State or territory. ( 30 )

31.

I consider the logic behind that approach to lie first and foremost in the danger of distorting the essential character of the powers of the European Union and its institutions, as provided for in the Treaty. ( 31 )

32.

Second, such measures would pose a threat to the uniformity of the European Union’s external trade policy, thereby undermining one of the foundational principles on which the common commercial policy is based. ( 32 )

33.

Finally, beyond the European Union’s external appearance as a reliable trading partner, there is a risk of exposure to liability before the WTO Dispute Settlement Body. ( 33 )

34.

At the level of EU secondary law, the answer is more nuanced.

35.

There is at least one precedent for the circumstances in which the European Union allows Member States to maintain, subject to certain conditions, specific national measures that, strictly speaking, interfere with the competence allocation under the common commercial policy. ( 34 ) That, however, is rare.

36.

What is more common are specific instruments allowing the European Union to adopt certain safeguard measures in relation to trade with third States or territories. ( 35 ) In those instances, the European Union may put into place certain measures to regulate the release of non-EU products in the customs territory of the European Union and, if necessary, ( 36 ) only in part thereof. ( 37 )

37.

It is true, as the French Government submits, that both the Basic Import Regulation and the Union Customs Code contain provisions that provide for the possibility of Member States to introduce unilateral trade measures in exceptional cases. Thus, Article 24(2)(a) of the Basic Import Regulation provides that ‘this Regulation shall not preclude the adoption or application by Member States of … prohibitions, quantitative restrictions or surveillance measures on grounds of public morality, public policy or public security’. Similarly, pursuant to Article 134(1) of the Union Customs Code, ‘goods brought into the customs territory of the Union … may be subject to customs controls’ and, ‘where applicable, they shall be subject to such prohibitions and restrictions as are justified on grounds of, inter alia, public morality, public policy or public security.’

38.

However, it is clear that those provisions do not constitute a standing authorisation, at the level of EU secondary law, to introduce unilateral measures to suspend imports for alleged breaches of EU food labelling requirements.

39.

First, the type of measures envisaged by Article 24(2)(a) of the Basic Import Regulation must be applied erga omnes in so far as they are directed against WTO members and thus concern all imports of the product concerned, irrespective of origin. ( 38 ) The type of measure sought from France against products originating solely from the Kingdom of Morocco, a WTO member, cannot accordingly fall within the scope of that provision.

40.

Moreover, the measures envisaged in Article 24(2)(a) of the Basic Import Regulation must be imposed, inter alia, ‘on grounds of public morality, public policy or public security’. That provision accordingly enables an interference with the freedom to trade ( 39 ) for specific reasons of general interest that are comparable to those set out in Article 36 TFEU. ( 40 )

41.

I do not exclude the possibility that the concept of ‘public morality’ in particular, which denotes beliefs of right and wrong by a particular community, could cover false or misleading labelling of food products.

42.

However, in view of the narrow interpretation that must be given to the types of derogations envisaged by Article 24(2)(a) of the Basic Import Regulation, ( 41 ) I am not convinced that a breach of EU harmonised marketing standards may constitute a reason to restrict the importation of a particular type of product into a single Member State.

43.

Indeed, as the French Government has explained, it is clear that the liberalisation of imports of goods from third countries by means of the Basic Import Regulation and the Union Customs Code cannot be viewed as also having the aim or effect of liberalising the subsequent marketing of those imports.

44.

That is only logical since, in the lifecycle of a product imported for sale on the European Union market, the importation stage takes place prior to the marketing stage.

45.

Granted, both of those stages may form each other’s ‘necessary complement’. ( 42 )

46.

However, the successful customs clearance of a product does not necessarily imply compliance with the rules on consumer labelling; and vice versa: as the Court noted in its judgment in Expo Casa Manta, ‘just as a product lawfully manufactured within the Community may not be placed on the market on that ground alone, the lawful importation of a product does not imply that it will automatically be allowed onto the market’. ( 43 )

47.

But even if it was (wrongly) assumed that the customs clearance of a product implies compliance with consumer labelling rules, the measure envisaged by the applicant would, in any event, be ineffective, since the products at issue, where imported through other Member States, could still be marketed to the French consumer.

48.

In this context, I do not consider it justified that a Member State can rely on the ground of public morality to restrict unilaterally the importation of certain products from third States (and thereby disrupt the intra-EU circulation of that product) on the pretext of remedying an alleged breach of EU harmonised marketing standards.

49.

Second, the customs supervision envisaged by Article 134(1) of the Union Customs Code does not act as a self-standing empowerment to authorise Member States to introduce, inter alia, import bans for certain products.

50.

Rather, the concept of customs supervision envisages a certain type of legal status for products imported into the European Union. It is on the basis of that status that the national customs authorities then carry out customs controls. ( 44 ) Those controls include the verification of the treatment imposed on the goods at issue (for example, their preferential tariff treatment) and compliance with the obligations imposed on the relevant importer (for example, the payment of customs and import duties).

51.

Furthermore, the type of measure that is controlled by customs supervision must itself be established by EU or implementing Member State law. Those are the types of prohibitions and restrictions to which the second sentence of Article 134(1) of the Union Customs Code refers. ( 45 )

52.

In the present case, however, the applicant does not point to any provision of EU or implementing Member State law that would empower France to adopt the measures sought from the Ministries. ( 46 )

53.

It therefore follows that neither the Union Customs Code nor the Basic Import Regulation in themselves can be relied on to authorise the French Government to put in place a unilateral import ban on certain products originating in the territory of Western Sahara for not displaying a correct country of origin label.

54.

Consequently, I propose that the Court answer Question 1 in the negative.

55.

In Question 4, the referring court asks, in essence, whether the relevant rules on EU foodstuff labelling should be interpreted as meaning that, at the stages of importation and sale to the consumer, the packaging of fruit and vegetables harvested in Western Sahara must not indicate Morocco as the country of origin, but must instead indicate the territory of Western Sahara.

56.

In their written observations to the Court, both the French Government and the Commission challenge the admissibility of that question. Both argue that the resolution of the dispute before the referring court is limited to determining the legality of the Ministries’ implied decision not to prohibit unilaterally imports of the products at issue from the territory of Western Sahara. The determination of that dispute does not therefore require the answer to the question of whether products imported from Western Sahara should indicate that territory as its origin.

57.

To my mind, it not obvious from the referring court’s reference that an interpretation of the rules on EU foodstuff labelling for the products at issue bears no relation to the actual facts of the main action or its purpose.

58.

Article 267 TFEU establishes the procedure for direct cooperation between the Court of Justice and the courts of the Member States. ( 47 ) In that procedure, which is based on a clear separation of functions, it is the national court that determines which elements of EU law it requires for the resolution of the dispute before it, since it is also that court alone that bears the responsibility for the decision to be taken. ( 48 ) A national court’s questions thus enjoy a presumption of relevance, with the Court in principle bound to give a ruling. ( 49 )

59.

The Court may refuse to rule on a question referred to it by a national court only where it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( 50 )

60.

In the present case, even though Question 1 relates only to the ban on imports, it is not clear that the measure sought before the referring court was not supposed to cover both the stage of importation and the making available of the products concerned to the consumer on the French market. Question 4 is also posed in the referring court’s order in such a way as to refer to both of those stages.

61.

Although I take the position that those two stages cannot be conflated (see also point 44 of this Opinion), it is clear that the applicant’s request, whether it is well founded or not, also relates to the satisfaction of EU foodstuff labelling requirements for the products at issue. That element therefore appears useful for the referring court’s task of deciding on the legality of the implied decision at issue. Furthermore, the referring court considers that it has the power, under national law, to prescribe ex officio the measure requested by the applicant, without further qualifying the situations in which that measure may be ordered. It appears to be for that reason, too, that the referring court deems it necessary to assess the merits of the applicant’s case, which extends to the issues raised in Question 4.

62.

Question 4 is therefore admissible.

63.

Question 4 is worded in such a way as to enquire whether EU law imposes both negative and positive obligations for the correct labelling of the products at issue when originating in the territory of Western Sahara. The referring court asks whether EU foodstuff labelling requirements prohibit a country of origin label featuring/indicating the Kingdom of Morocco and whether they instead require the indication of the territory of Western Sahara as the country of origin.

64.

I propose that the relevant EU foodstuffs labelling rules indeed require that products originating in the territory of Western Sahara must indicate that territory as their country of origin (the positive obligation), to the exclusion of other territorial references (the negative obligation). Those products cannot, therefore, bear any reference to the Kingdom of Morocco.

65.

The analysis that will lead me to that conclusion is structured as follows: first, I shall establish that the general and/or specific rules on EU foodstuff labelling, as applicable to the products at issue, mandate a country of origin label in the first place (a). Then, I shall make clear that the territory of Western Sahara can be considered a country of origin within the meaning of those rules (b). Third, I shall explain why omitting Western Sahara as the country of origin of the products at issue risks misleading the EU consumers in their choices (c). Finally, I shall consider whether the EU rules on foodstuff labelling prohibit an additional reference to the Kingdom of Morocco (d).

66.

The Food Information to Consumers Regulation seeks to empower consumers through ‘correct, neutral and objective’ information ‘to make informed choices’ in relation to food they consume, ( 51 ) and to prevent any practices that may mislead consumers. ( 52 ) For that purpose, it requires ‘clear, comprehensible and legible labelling of foods’. ( 53 )

67.

Part of the information that (generally) must be provided to the consumer is the ‘country of origin’ or ‘place of provenance’. ( 54 ) This refers to the place from which the foodstuff at issue comes. ( 55 )

68.

That requirement is an expression of the principle prohibiting misleading food information. ( 56 )

69.

The focus of the Food Information to Consumers Regulation is thus specifically on protecting the consumer from a lack of or incorrect information that risks misleading the consumer as to the true origin of the product. ( 57 )

70.

I will return to the importance of the element of risk in misleading the consumer below (point 102 et seq. of this Opinion); however, it is first necessary to determine what specific requirements derive from the law on fruit and vegetable labelling for the products at issue in this case.

71.

Adopted as additional rules to the Food Information to Consumers Regulation, ( 58 ) the Agricultural Products Regulation and the General Fruit and Vegetables Marketing Regulation lay down marketing requirements for fruit and vegetables. ( 59 )

72.

The marketing rules of the Agricultural Products Regulation must be complied with in order for a product to be marketed to consumers on the EU market. ( 60 ) The EU legislature considers that compliance with those standards ‘is in the interest of producers, traders and consumers’. ( 61 )

73.

One of the marketing rules laid down by the Agricultural Products Regulation is that the place of farming and/or country of origin must be indicated. ( 62 )

74.

That indication is required for fruit and vegetables that are intended for sale fresh to the consumer. ( 63 )

75.

The requirement to indicate the origin of fruit and vegetables applies at all marketing stages, including the importation of fruit and vegetables. ( 64 ) A trader of fruit and vegetables cannot ‘offer them for sale or deliver or market them in any manner within the Union other than in conformity with those standards’. ( 65 )

76.

The Agricultural Products Regulation is further implemented by the General Fruit and Vegetables Marketing Regulation, ( 66 ) which sets out the general and specific marketing standards applicable to fruit and vegetables in detail. ( 67 )

77.

Cherry tomatoes are subject to specific marketing standards. ( 68 ) Those include a mandatory country of origin label. ( 69 ) That label may be complemented by an optional specification of the ‘district where [the tomatoes were] grown, or [a] national, regional or local place name.’ ( 70 )

78.

Charentais melons are subject to the General Fruit and Vegetables Marketing Regulation’s general marketing standards. ( 71 ) Those, too, require a mandatory country of origin label. ( 72 ) However, unlike for the case of cherry tomatoes, that regulation does not refer to the addition of a more detailed origin specification.

79.

Those requirements are subject to conformity checks, which apply at all stages of marketing. ( 73 )

80.

As the Commission explained at the hearing, a finding of non-conformity leads to the prohibition on the moving of non-conforming products without authorisation from the competent inspection body. Those products must then be brought into conformity with the General Fruit and Vegetables Marketing Regulation. Should that not be possible, the relevant authorities may require that the products be sent to animal feed, industrial processing, any other non-food use, or even for destruction. ( 74 )

81.

It follows that the general and specific marketing standards applicable to the products at issue mandate the country of origin labelling of those products.

82.

The above explanation on the general and specific rules applicable to EU foodstuff labelling makes it clear that the EU legislature mandates that the products at issue indicate their country of origin.

83.

For the purposes of the present case, that naturally raises the question whether the non-self-governing territory of Western Sahara constitutes a country of origin for the purposes of those rules.

84.

In that regard, I observe that, as in the Food Information to Consumers Regulation and the Agricultural Products Regulation, the General Fruit and Vegetables Marketing Regulation does not lay down a definition of ‘country of origin’. ( 75 )

85.

That being said, the Union Customs Code, which contains specific rules on the determination of the non-preferential origin of goods, expressly extends its rules on that aspect to other EU measures referring to the origin of goods. ( 76 )

86.

As the Court has explained in relation to the Agricultural Products Regulation, that includes the country of origin marketing requirement. ( 77 )

87.

I consider that the same applies to the Food Information to Consumers Regulation and the General Fruit and Vegetables Marketing Regulation. After all, that is what a uniform, effective, and consistent reading of the indication of the country of origin labelling requirement demands. ( 78 )

88.

It follows that the country of origin labelling in the various EU foodstuff regulations applicable in the present case must be interpreted by reference to the relevant rules and designations of the Union Customs Code.

89.

Under Article 60 of the Union Customs Code, goods which have been wholly obtained in a particular ‘country’ or ‘territory’ are to be regarded as having their origin in that country or territory.

90.

Vegetable products harvested in a ‘country’ or ‘territory’ are deemed to be wholly obtained therein. ( 79 ) They are accordingly considered to originate in that territory. ( 80 )

91.

In Vignoble Psagot, the Court interpreted the concept of ‘territory’ to encompass any entity that does not fall within the category of ‘country’ or ‘State’, ( 81 ) such as ‘geographic spaces which, whilst being under the jurisdiction or the international responsibility of a State, nevertheless have a separate and distinct status from that State under international law’. ( 82 )

92.

In its judgments in Council v Front Polisario and in Western Sahara Campaign UK, the Court recognised that the territory of Western Sahara constitutes a separate territory for the purposes of public international law, and is distinct from the territory of the Kingdom of Morocco. ( 83 )

93.

The territory of Western Sahara must thus be treated as a separate customs territory for the purposes of Article 60 of the Union Customs Code.

94.

As the Commission explained at the hearing, that status is already recognised in the European Union’s rules on foreign trade statistics by attributing the territory of Western Sahara its own country of origin code (EH). ( 84 ) It is that code which the EU’s Customs Tariff (TARIC) ( 85 ) adopts, which importers of products originating in the territory of Western Sahara must list on their customs declaration, and in support of which they must provide an origin declaration.

95.

It follows that the concept of country of origin, as it appears in EU foodstuff labelling law, also encompasses the territory of Western Sahara.

96.

The products at issue in the present case, having been wholly obtained within the territory of Western Sahara, must therefore be labelled accordingly.

97.

That conclusion is not impacted by the fact that, in practice, a third State – here, the Kingdom of Morocco – is regarded by the European Union as having taken on the (de facto) responsibility of administering the territory of Western Sahara (or at least the parts over which it holds control). For the purposes of imports into the European Union, it is therefore the Moroccan authorities that verify and certify the origin of products claiming to originate in the territory of Western Sahara.

98.

As explained by both the Council and the Commission, that arrangement was put in place because the non-self-governing territory of Western Sahara has no (recognised) customs authorities of its own to control the status of the origin of products produced on or cultivated in that territory. ( 86 )

99.

As I explain in my Opinions of today in Commission and Council v Front Polisario, engaging with a non-self-governing territory respects both the current status of international law and the practical reality, without, however, entering into the (political) question of State recognition. ( 87 ) It does not, however, change anything in relation to the conclusion that Western Sahara constitutes a separate territory for customs purposes.

100.

It must therefore be concluded that the products at issue grown in the territory of Western Sahara must, under applicable EU foodstuff legislation, be labelled as originating in that territory.

101.

Having established that EU foodstuff labelling rules for fruit and vegetables mandate that the products at issue indicate their country of origin, and having confirmed that the concept of country of origin also includes the non-self-governing territory of Western Sahara, it may be concluded that those products must bear the indication of Western Sahara as the country of origin. The additional question to resolve is therefore whether the omission of a reference to that territory is likely to mislead the EU consumer.

102.

As I have observed in point 69 of this Opinion, the objective of the information particulars on EU foodstuffs relating to country of origin labelling is to protect the consumer, so that the latter is not (at risk of being) ‘misled’ as to the true origin of the product. ( 88 )

103.

While not the main driver of consumer behaviour, ( 89 ) a product’s country of origin label does influence purchase decisions. ( 90 )

104.

No two consumers are alike. Some may care deeply about the origin of their products. Some may not even glance at the provenance of their purchase.

105.

As the Court has previously held, an assessment of the risk of misleading the consumer takes into consideration the average consumer, that is to say, someone ‘who is reasonably well informed, and reasonably observant and circumspect, as to the origin, provenance, and quality associated with the foodstuff’. ( 91 )

106.

Article 3(1) of the Food Information to Consumers Regulation provides that the provision of food information to the consumer, including information about the origin of a product, should enable that consumer ‘to make informed choices’ influenced by, inter alia, ‘ethical considerations’. ( 92 )

107.

It might be thought that a reasonably well informed and circumspect consumer might consider it important to know that a product originates in Western Sahara. However, the question of how information on the origin of a product from Western Sahara is likely to influence the purchasing decision of a consumer is subjective to that consumer alone. ( 93 )

108.

That decision is not necessarily related to the neutral position of the European Union regarding the resolution of the future status of the territory of Western Sahara.

109.

At the same time, without the information that a product originates in Western Sahara, a reasonably well-informed and circumspect consumer might be misled as to the true origin of the product they decide to purchase.

110.

How are those legal and political positions reconciled?

111.

It is clear that, when considering whether there is a risk that a consumer might be misled by incorrect information particulars on the country of origin, the national court deciding on that issue does not need, as it indeed would not be able, to take into consideration the possible different ethical preferences of consumers.

112.

To my mind, the test that the EU legislature sought to establish is far more objective.

113.

The question that a court must ask is simply: is there a risk that an incorrectly informed purchasing decision may result from a product featuring a country of origin label referring to Territory X, when, in fact, that product originates in Territory Y? ( 94 )

114.

The answer is yes: a label suggesting that food originates from a place other than its true place of origin is likely to mislead the consumer as to (what EU law considers) the objectively correct origin of that product. ( 95 )

115.

In the present case, a label suggesting that a product is of Moroccan origin, when that product instead originates in the territory of Western Sahara, is therefore misleading to the consumer.

116.

A label of that sort would neither conform to the overarching requirement to assist the consumer to make ‘an informed choice’ about their purchase, which may relate to elements of an ethical nature, nor would it adequately reflect the current political position of the European Union.

117.

On that basis, I propose that the Court’s reply to the part of Question 4 relating to the positive obligation on labelling explain that the Food Information to Consumers Regulation, the Agricultural Products Regulation, and the General Fruit and Vegetables Marketing Regulation require that the products at issue must bear a country of origin label reflecting their provenance in the territory of Western Sahara.

118.

Does the above conclusion leave any space for an additional reference to the Kingdom of Morocco?

119.

In Vignoble Psagot, invoked in the present case, the Court was asked to explain whether the correct indication of the territory of origin (in that case either the Golan Heights or the West Bank) could be deemed insufficient in itself to provide correct information particulars to the consumer on the country of origin of products coming from that territory.

120.

The question may therefore be asked whether the addition of the ‘Kingdom of Morocco’ to the country of origin label products originating in the territory of Western Sahara would also provide objectively correct information to the EU consumer.

121.

The specific situation in the geographical area underlying the judgment in Vignoble Psagot, in which certain parts of the Syrian Arab Republic (the Golan Heights) or of the Palestinian territory (the West Bank, including East Jerusalem) from which the products at issue in that case originated were occupied by ‘Israeli settlements’, led the Court to conclude that the omission of additional place information is likely to mislead the consumer. ( 96 )

122.

Accordingly, without an indication of the true place of provenance, consumers could be (mis)led to believe that a product would derive, in the case of the West Bank (including East Jerusalem), from a Palestinian producer or, in the case of the Golan Heights, from a Syrian producer. ( 97 )

123.

A simple reference to ‘Israeli settlement’ would be insufficient to prevent that type of misapprehension. ( 98 )

124.

The legal and factual circumstances, as well as the question with which the Court is faced, are different in the present case.

125.

The territory of Western Sahara is a separate territory for the purposes of the indication of origin for customs and labelling purposes.

126.

It is true that, at present, only the Moroccan authorities can – and are recognised by the European Union to hold the mandate to – verify the origin of a product as originating in the territory of Western Sahara (see points 97 and 98 of this Opinion).

127.

That does not, however, mean that the origin of a product coming from Western Sahara changes when that type of certification occurs.

128.

In Vignoble Psagot, the question before the Court was not whether two countries or territories could be indicated, but rather whether the indication of the more detailed ‘place of provenance’ may be added to the information about the country/territory of origin – notwithstanding the conjunction ‘or’ between the terms ‘country of origin’ and ‘place of provenance’ in the Food Information to Consumer Regulation.

129.

Taking into consideration that the international community and the European Union objected to the Israeli settlements in those territories, the Court held that omitting the information of the real provenance of goods from such settlements would deprive consumers from making an informed purchase decision. ( 99 )

130.

In the present case, however, adding the indication ‘Kingdom of Morocco’ to the information on the country of origin of the products at issue would not more clearly explain their place of provenance.

131.

First, that type of information is not objectively correct.

132.

Second, a well-informed and circumspect consumer could deduce the necessary information about the origin of the products at issue if only Western Sahara is mentioned as the country of origin.

133.

Whatever the subjective position of a consumer in relation to the presence of the Kingdom of Morocco on the territory of Western Sahara, adding the indication ‘Kingdom of Morocco’ to products not originating from there is therefore likely to mislead a consumer precisely ‘because it does not reflect the entire truth’. ( 100 )

134.

Finally, as the Commission explained at the hearing, the concept of country of origin, as understood within the general and specific marketing standards applicable to the products at issue, ( 101 ) requires a single denomination of the country of origin. ( 102 )

135.

Firstly, I consider that to arise from the use of ‘country’ in the singular form in the text and recitals of the General Fruit and Vegetables Marketing Regulation. ( 103 )

136.

Secondly, that approach is grounded in the general logic underlying the determination of ‘origin’ under Article 60 of the Union Customs Code. Pursuant to that provision, ‘goods wholly obtained in a single country or territory’ ( 104 ) can originate only in one country or territory. ( 105 )

137.

With that in mind, the same reasons of consistent interpretation that support aligning the interpretation of ‘origin’ in EU foodstuff labelling law with the rules applicable to customs and foreign trade statistics should also weigh in favour of adopting a similar understanding as regards the singularity of origin for labelling purposes.

138.

If those rules are followed, products originating in the territory of Western Sahara should be labelled as such, to the exclusion of any other provenance.

139.

That line of reasoning is supported by the position taken by the Commission at the hearing, who agreed that the application of those rules leads to the conclusion that it is incorrect to label the products at issue as originating in the Kingdom of Morocco.

140.

However, as the Commission also explained, under the ongoing process of self-determination of that territory, no outcome should be precluded, given that the European Union has adopted a neutral position on the future of the territory of Western Sahara. ( 106 )

141.

Indicating the country of origin of a product originating in the territory of Western Sahara as ‘Kingdom of Morocco’ alongside a reference to ‘Western Sahara’ would therefore run counter to the European Union’s stated position regarding the territory of Western Sahara, infringe the requirement to establish a ‘correct, neutral and objective’ ( 107 ) information particular on the country of origin of the products at issue, and infringe the EU legislature’s decision to require a singular origin for labelling purposes.

142.

In conclusion, the country of origin label for the products at issue must not contain any territorial designation other than that of Western Sahara.

143.

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