Case C‑228/23

Association AFAÏA

Institut national de l’origine et de la qualité (INAO)

(Request for a preliminary ruling from the Conseil d’État (France))

Judgment of the Court (First Chamber) of 4 October 2024

(Reference for a preliminary ruling – Agriculture – Organic production and labelling of organic products – Regulation (EU) 2018/848 – Use of certain products and substances in organic production and their listing – Derogation – Implementing Regulation (EU) 2021/1165 – Annex II – Concepts of ‘factory farming’ and ‘landless livestock production’ – Consumer confidence – Animal welfare – Respect for the environment and the climate – Criteria)

Agriculture – Common agricultural policy – Organic production and labelling of organic products – Regulation 2018/848 – Authorisation of products and substances for use in organic production – Fertilisers, soil conditioners and nutrients – Prohibition of the use of manure from factory farming – Scope – Factory farming – Concept – Landless livestock production – Concept

(European Parliament and Council Regulation 2018/848, Arts 12 and 24(1)(b) and Annex II, Part I; Commission Regulation 2021/1165, Annex II)

(see paragraphs 35, 45, 46, 48, 49, 53, 54, 56-59, 61, 66, 67, 70, operative part 1)
Agriculture – Common agricultural policy – Organic production and labelling of organic products – Regulation 2018/848 – Authorisation of products and substances for use in organic production – Fertilisers, soil conditioners and nutrients – Prohibition of the use of manure from factory farming – National legislation prohibiting the use of manure from livestock raised in cages and from livestock raised in integral slatted or grid systems and exceeding certain thresholds on the number of animals – Admissibility – Conditions

(Commission Regulation 2021/1165, Annex II; European Parliament and Council Directive 2011/92, Art. 4 and Annex I, point 17)

(see paragraphs 73, 74, 79-81, operative part 2)

Résumé

In a reference for a preliminary ruling from the Conseil d’État (Council of State, France), the Court of Justice clarifies the scope of the prohibition of the use, in organic farming, of fertilisers, soil conditioners and nutrients from factory farming, as laid down in Annex II to Implementing Regulation 2021/1165, ( 1 ) adopted for the purposes of implementing Regulation 2018/848. ( 2 )

With regard to the fertilisation of soils used for organic production, those regulations authorise, by way of derogation and only to the extent necessary, the use of certain non-organic products and substances, provided that they do not come from ‘factory farming’. ( 3 )

In 2020, the Institut national de l’origine et de la qualité (INAO) (National Institute of Origin and Quality (INAO), France), a French public administrative institution, amended its reading guide to EU legislation on organic farming in order, inter alia, to interpret that prohibition of the use of fertilisers and soil conditioners of animal origin from ‘factory farming’ on organic land. It interpreted it broadly as excluding manure from livestock raised in integral slatted or grid systems and from livestock raised in cages, exceeding certain thresholds on the number of places for the animals concerned.

Before the referring court, the association AFAÏA, a trade association for the protection of the interests of organic fertiliser producers, sought annulment of the decision by which the INAO rejected its request for amendment of the reading guide. In its view, the criterion determining the prohibition at issue is linked to the use of land, with the result that the concept of ‘factory farming’ can correspond only to that of ‘landless livestock production’ and designate livestock-producing holdings without the management of agricultural land.

Faced with that question concerning the origin of fertilisers which may be used in organic farming, the referring court asks the Court of Justice about the concept of ‘factory farming’ and asks what the scope is for the derogation provided for in Annex II to Implementing Regulation 2021/1165.

Findings of the Court

In the first place, as regards the equivalence between the concepts of ‘factory farming’ and ‘landless livestock production’, the Court finds that, although they both refer to the mechanisation of the processes and mass production, they do not, however, have the same meaning.

According to their usual meaning, the terms ‘factory’ or ‘intensive’ refer to a form of large-scale production, which is intended to optimise the yield of that activity, in particular by increasing the density of animals on the holding or by shifting, to a greater or lesser degree, away from the surrounding environment through confinement. Factory farming generally requires high investment, and involves the use of enriched foods and preventative antibiotics. It may cause significant environmental pollution. Furthermore, specific protection of animal welfare is not generally one of its priorities.

On the other hand, according to its usual meaning, ‘landless’ livestock production corresponds to a type of ‘factory’ or ‘intensive’ farming in which the feed supply does not come, for the most part or entirely, from the agricultural holding where the animals are reared.

It follows that the concept of ‘factory farming’ is appreciably broader than that of ‘landless livestock production’ and that, therefore, those concepts must be regarded as being different.

As regards the concept to be used for the purposes of interpreting Annex II to Regulation 2021/1165 and, therefore, the scope of the prohibition at issue, the Court concludes that the prohibition covers all ‘factory’ farming and not only ‘landless’ livestock production.

In addressing the general scheme of that annex, it points out, first, that the authorisation by way of derogation provided for therein must be interpreted strictly, which means that the limits imposed on that authorisation, namely, in particular, the prohibition on using preparations from ‘factory farming’, must, on the contrary, be interpreted broadly.

An interpretation to the effect that the concept of ‘factory farming’ corresponds solely to the concept of ‘landless livestock production’ results in manure from all ‘factory’ farming other than ‘landless’ livestock production being authorised for use in organic farming. That interpretation therefore amounts to a broad interpretation of the scope of that derogation, contrary to the principle laid down.

Secondly, as regards the argument that the ground for the prohibition at issue is exclusively linked to land use, the Court states that, it is true that, in accordance with the overall approach which characterises organic farming, livestock production must be land-related. However, that means only that the ‘landless’ type of farming is not compatible with the principles of organic farming and, therefore, is purely and simply prohibited in that context.

Furthermore, organic farming is also based on the implementation of husbandry practices which enhance the immune system of animals, including regular exercise and access to open air areas. Furthermore, Regulation 2018/848 prohibits genetically modified organisms in feed and significantly limits the use of plant protection products.

It cannot therefore be asserted that organic farming is characterised solely by a certain method of land management and, therefore, that the ground for the prohibition at issue is exclusively linked to land use. That farming method consists of an overall system of farm management and food production that combines best environmental and climate action practices, a high level of biodiversity, the preservation of natural resources and the application of high animal welfare standards and high production standards in line with the demand of a growing number of consumers for products produced using natural substances and processes. It is, in particular, linked to ethical production methods, and, in particular to livestock housing conditions, both in terms of freedom to move and access to outdoor spaces, and in terms of stocking density.

In the light of those requirements, it cannot be accepted that livestock manure from ‘factory’ or ‘intensive’ farming is authorised as organic manure.

That interpretation is supported by the objectives of Regulation 2018/848, such as the protection of the environment, animal welfare and consumer confidence. A derogation allowing, broadly, the use of products from intensive farming would clearly run counter to those objectives and would be contrary to the requirements of consistency and to ethical and environmental principles, which are the very foundations of organic farming.

Thus, consumers’ legitimate expectations that products bearing the organic logo of the European Union have actually been obtained in observance of the highest standards, in particular with regard to respect for the environment and animal welfare, are guaranteed if the manure used in organic farming comes from organic sources or, where that is not sufficient, and only in that case, if non-organic manure is used, provided that the latter does not come from factory farming.

In the second place, the Court notes that, as EU law currently stands, the criteria to be taken into account in order to determine whether livestock farming must be categorised as ‘factory farming’ within the meaning of Annex II to Implementing Regulation 2021/1165 are not the subject of general harmonisation measures. It states, however, that EU law does not preclude national legislation under which the prohibition of the use, on organic land, of fertilisers and soil conditioners of animal origin which are of ‘factory farming origin’ also covers manure from livestock raised in integral slatted or grid systems and exceeding the thresholds defined in Annex I to the EIA Directive ( 4 ) and manure from livestock raised in cages and exceeding those same thresholds. However, for the purposes of that categorisation, it is necessary to rely on a set of indicia relating, at the very least, to the preservation of animal welfare, respect for biodiversity, and environmental and climate protection.

( 1 ) Commission Implementing Regulation (EU) 2021/1165 of 15 July 2021 authorising certain products and substances for use in organic production and establishing their lists (OJ 2021 L 253, p. 13, and corrigendum OJ 2022 L 115, p. 230).

( 2 ) Regulation (EU) 2018/848 of the European Parliament and of the Council of 30 May 2018 on organic production and labelling of organic products and repealing Council Regulation (EC) No 834/2007 (OJ 2018 L 150, p. 1).

( 3 ) In accordance with point 1.9.3 of Part I of Regulation 2018/848, where soil management practices and the application of fertilisers from organic production do not cover the nutritional requirements of plants, only fertilisers and soil conditioners which are authorised for use in organic production in accordance with Article 24 of Regulation 2018/848 are to be used, and only to the extent necessary. Fertilisers, soil conditioners and nutrients authorised by the Commission under Article 24 are the subject of Annex II to Implementing Regulation 2021/1165, the third paragraph of which states that, in organic production, ‘factory farming origin’ is prohibited for products like farmyard manure, composted animal excrements and liquid animal excrements.

( 4 ) Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1).