–

the Italian Government, by G. Palmieri, acting as Agent, and by A. Peluso and S. Fiorentino, avvocati dello Stato,

–

the European Commission, by D. Bianchi and I. Naglis, acting as Agents,

1

This request for a preliminary ruling concerns Articles 3, 26, 32, 40 and 41 TFEU, and Articles 1, 3 to 5 and 7 of Regulation (EU) No 1151/2012 of the European Parliament and the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1).

2

The request has been made in proceedings between Caseificio Cirigliana Srl, Mail Srl and Sorì Italia Srl (together, ‘Caseificio Cirigliana and Others’), on the one hand, and the Ministero delle Politiche agricole, alimentari e forestali (Ministry for Agricultural, Food and Forestry Policy, Italy), the Presidenza del Consiglio dei Ministri (Office of the Prime Minister, Italy) and the Ministero della Salute (Ministry for Health, Italy), on the other, concerning proceedings for the variation of a judgment of the Tribunale amministrativo regionale del Lazio, sede di Roma (Regional Administrative Court, Lazio, Rome, Italy) of 19 November 2015 regarding decreto ministeriale n. 76262/2014, 9 settembre 2014 — Modalità’ per l’attuazione delle disposizioni di cui all’articolo 4 del decreto-legge 24 giugno 2014, n.° 91, recante: ‘Misure per la sicurezza alimentare e la produzione della Mozzarella di Bufala Campana DOP’ (Ministerial Decree No 76262/2014 of 9 September 2014 establishing ‘Detailed rules for the implementation of the provisions of Article 4 of Decree-Law No 91 of 24 June 2014: ‘measures on food safety and production of PDO “Mozzarella di Bufala Campana”’’) of 9 September 2014 (GURI No 219, 20 September 2014, p. 8) (‘Ministerial Decree No 76262/2014’).

3

Recital 47 of Regulation No 1151/2012 states:

‘To guarantee to the consumer the specific characteristics of geographical indications and traditional specialities guaranteed, operators should be subject to a system that verifies compliance with the product specification.’

4

Article 1 of that regulation is worded as follows:

‘This regulation aims to help producers of agricultural products and foodstuffs to communicate the product characteristics and farming attributes of those products and foodstuffs to buyers and consumers, thereby ensuring:

…’

5

Article 4 of that regulation states:

‘A scheme for protected designations of origin and protected geographical indications is established in order to help producers of products linked to a geographical area by:

6

Article 7 of Regulation No 1151/2012, entitled ‘Product specification’, provides as follows:

‘1.   A protected designation of origin or a protected geographical indication shall comply with a specification which shall include at least:

2.   In order to ensure that product specifications provide relevant and succinct information, the Commission shall be empowered to adopt delegated acts, in accordance with Article 56, laying down rules which limit the information contained in the specification referred to in paragraph 1 of this Article, where such a limitation is necessary to avoid excessively voluminous applications for registration.

The Commission may adopt implementing acts laying down rules on the form of the specification. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 57(2).’

7

An application to amend the product specification for ‘PDO Mozzarella di Bufala Campana’ was published on 25 April 2007 (OJ 2007 C 90, p. 5). That amendment was approved by Commission Regulation (EC) No 103/2008 of 4 February 2008 approving non-minor amendments to the specification for a name entered in the register of protected designations of origin and protected geographical indications — Mozzarella di Bufala Campana (PDO) (OJ 2008 L 31, p. 31), (the ‘product specification for “PDO Mozzarella di Bufala Campana”’).

8

Paragraphs 4.4 and 4.5 of the product specification for ‘PDO Mozzarella di Bufala Campana’ state:

‘4.4. Proof of origin: Every stage in the production process must be monitored and a record made of the inputs and outputs at each stage. This, together with lists managed by the monitoring body recording the farmers, producers and packagers, ensures the product can be traced throughout the whole chain of production. The raw material itself is carefully monitored by the responsible body throughout the production stage. All natural and legal persons recorded in the appropriate lists are subject to checks by the monitoring body, according to the terms of the specification and the corresponding monitoring plan. If the monitoring body finds any failure to comply in even a single stage of the production, the product may not be marketed under the ‘Mozzarella di Bufala Campana’ protected designation of origin.

4.5. Method of production: The specification requires ‘Mozzarella di Bufala Campana’ to be produced exclusively with whole, fresh buffalo milk. Production requires the use of raw milk, which may be heat treated or pasteurised, from buffalo reared in the production area delimited in Article 2 of the specification.

…’

9

Article 4(1) and (3) of Decree-Law No 91 of 24 June 2014 (GURI No 144, 24 June 2014), converted into law and amended by Law No 116 of 11 August 2014 (ordinary supplement to the GURI No 192, 20 August 2014) (‘Decree-Law No 91/2014’) is worded as follows:

‘1.   “PDO Mozzarella di Bufala Campana”, registered as a protected designation of origin (PDO) pursuant to [(Commission Regulation (EC) No 1107/96 of 12 June 1996 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Council Regulation (EEC) No 2081/92) (OJ 1996 L 148, p. 1)], shall be produced in an area where only milk originating from farms included in the monitoring system for “PDO Mozzarella di Bufala Campana” is processed. In such an area, semi-finished products and other products may be produced, provided they are made exclusively from milk originating from farms included in the monitoring system for “PDO Mozzarella di Bufala Campana”. Products made partially or exclusively from milk other than that from farms included in the monitoring system for “PDO Mozzarella di Bufala Campana” shall be produced in a different area, in accordance with the provisions laid down in paragraph 3.

…

3.   A decree of the Ministry for Agricultural, Food and Forestry Policy, acting together with the Minister for Heath, to be adopted within thirty days from the date of entry into force of this decree, shall set out detailed rules for implementation of the provisions of the third sentence of paragraph 1 and paragraph 2, stipulating that the rules governing the separate production of products referred to in the last sentence of paragraph 1, shall prohibit all contact, including accidental contact, between milk originating from farms included in the monitoring system for “PDO Mozzarella di Bufala Campana” and other milk, as well as between “PDO Mozzarella di Bufala Campana” and products made from other milk, at all stages of processing and packaging.’

10

Article 1(1) of Ministerial Decree No 76262/2014 states:

‘In implementation of the third sentence of Article 4(1) of Decree Law No 91/2014 …, goods made partially or exclusively with milk other than that originating from farms included the monitoring system for “PDO Mozzarella di Bufala Campana” shall be produced in a different area, physically separate from the area in which “PDO Mozzarella di Bufala Campana” and products made exclusively with milk originating from farms included in the monitoring system for “PDO Mozzarella di Bufala Campana” are produced. The physical separation shall prevent all contact, including accidental contact, between milk originating from farms included in the monitoring system for “PDO Mozzarella di Bufala Campana” and other milk, as well as between “PDO Mozzarella di Bufala Campana” and products made from other milk, and, accordingly, shall relate to the facilities for storing, moving and processing the milk and for packaging the products. Facilities and equipment which do not come into contact with the milk and/or products obtained therefrom may be used to service production lines situated in different areas.’

11

On 18 November 2014, Caseificio Cirigliana and Others, which produce and sell PDO buffalo mozzarella, as well as buffalo mozzarella that does not come within the PDO scheme (the ‘PDO scheme’) brought an action against Ministerial Decree No 76262/2014 before the Tribunale amministrativo regionale del Lazio, sede di Roma (Regional Administrative Court, Lazio, Rome).

12

Caseificio Cirigliana and Others were of the view that Ministerial Decree No 76262/2014 merely reviewed and preserved the position solely of undertakings using exclusively buffalo milk from PDO areas (‘PDO areas’), perpetuating the problems arising from earlier regulatory provisions for undertakings that use raw materials other than buffalo milk originating from PDO areas.

13

According to Caseificio Cirigliana and Others, Ministerial Decree No 76262/2014 infringes the principle of diversification laid down in Regulation No 1151/2012. The applicants complain that Ministerial Decree No 76262/2014 shifted the criterion for designation of the addressees of the restrictive provisions, namely producers of ‘PDO Mozzarella di Bufala Campana’, to cover those who process milk other than that originating from farms included in the PDO scheme. They allege that that shift is at odds with the main objective of Regulation No 1151/2012, namely to enhance the value of the ‘protected’ product in furtherance of the rural development policy and agricultural policy, particularly with respect to disadvantaged areas.

14

Caseificio Cirigliana and Others argued that Ministerial Decree No 76262/2014 is unlawful in so far as it provides that establishments processing buffalo milk originating from PDO areas are to be used solely for such production and consequently are prohibited from holding or storing, on their premises, raw materials and curds other than buffalo milk and buffalo curds obtained exclusively from the processing of milk originating from PDO areas, as well as by-products and products obtained from the same raw material.

15

On 19 November 2015, the Tribunale amministrativo regionale del Lazio, sede., di Roma (Regional Administrative Court, Lazio, Rome), dismissed the action on the basis of its assessment that the national rules, which were intended to ensure the attainment of the objectives of food safety and the protection of end consumers, were reasonable. That court did not rule on the plea in relation to the compatibility of Ministerial Decree No 76262/2014 with Regulation No 1151/2012.

16

In the appeal proceedings before the Consiglio di Stato (Council of State, Italy), which is the referring court in the present case, Caseificio Cirigliana and Others claimed, in the first place, infringement of Articles 3, 26, 32, 40 and 41 TFEU on the ground that they had been placed at a disadvantage, by Ministerial Decree No 76262/2014, in relation to competitor companies producing PDO products in respect of which neither additional monitoring nor the requirement for production lines dedicated exclusively to a single type of product have been imposed. In the second place, those parties allege infringement of the principle of non-discrimination on the ground that the decree discriminates against companies using milk originating from outside PDO areas compared with those that use milk from such areas exclusively. In the third place, the appellants allege infringement of Article 1 of Regulation No 1151/2012 and Regulation (EU) No 510/2014 of the European Parliament and of the Council of 16 April 2014 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products and repealing Council Regulations (EC) No 1216/2009 and (EC) No 614/2009 (OJ 2014 L 150, p. 1).

17

The Consiglio di Stato (Council of State) rejected, by a judgment in part of 21 August 2018, all of the claims alleging that Decree-Law No 91/2014 is unconstitutional, such that that court regarded the decree as proportionate and reasonable. Nonetheless, that court decided to examine the claim regarding the compatibility of that decree-law with EU law.

18

In that regard, that court states that, contrary to the applicants’ line of argument, Decree-Law No 91/2014 and Ministerial Decree No 76262/2014 in no way required separate premises to be used for the production of PDO and non-PDO mozzarella, but merely separate ‘areas’. However, according to that court, the applicants’ misinterpretation of national law does not call into question the relevance of the request for a preliminary ruling, since the mere fact that non-PDO buffalo mozzarella has to be produced in different rooms, which are separate from those used for the production of ‘PDO Mozzarella di Bufala Campana’, entails investment in any event and, therefore, economic sacrifices that could potentially affect free competition between operators on the mozzarella market.

19

Referring to the case-law of the Court of Justice on the common agricultural policy, the referring court notes that PDOs enjoy special protection, but may not disproportionately impair freedom to conduct a business or free competition.

20

First, the referring court is of the view that it follows from the case-law of the Court of Justice that the law governing PDOs protects those entitled to use them against misuse of those designations by third parties, since the PDOs are likely to enjoy a high reputation among consumers and constitute for producers who fulfil the conditions for using them an essential means of attracting custom. The reputation of PDOs is formed, according to that court, on the basis of the image of those PDOs in the minds of consumers and depends, in essence, on particular characteristics, and more generally, on the quality of the product. Thus, for consumers, the link between the reputation of the producers and the quality of the products also depends on them being assured that products sold under a PDO are authentic.

21

Second, that court notes that the applicants regard the national rules as going beyond what is necessary to protect the PDO ‘Mozzarella di Bufala Campana’, since it requires that products made partly or exclusively with milk other than that originating from farms that are subject to the monitoring system for that PDO are produced in a separate area, including within the same premises, in to avoid any contact between milk originating from farms that are subject to the PDO monitoring system and other milk, and, even more, any form of counterfeiting.

22

In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Should Articles 3, 26, 32, 40 and 41 TFEU and Articles 1, 3, 4, 5 and 7 of Regulation No 1151/2012, which require Member States to guarantee both free competition in respect of goods within the European Union and protection for quality schemes to support less favoured agricultural areas, be interpreted as precluding a restriction being imposed under national law (Article 4 of Decree Law No 91/2014) on the production of PDO “Mozzarella di Bufala Campana”, by stipulating that it be made in factories dedicated exclusively to such production, in which the holding and storage of milk originating from farms not included in the monitoring system for PDO “Mozzarella di Bufala Campana” is prohibited?’

23

The Italian Government claims that the request for a preliminary ruling is inadmissible on the ground that first, the main proceedings concern a purely domestic situation that does not fall within the scope of EU law. Secondly, the Italian Government is of the view that the request for a preliminary ruling does not meet the criteria for admissibility set out in Article 94 of the Rules of Procedure of the Court of Justice, since the interpretation of EU law sought bears no relation to the actual facts of the main action or its purpose, as the problem is purely hypothetical.

24

In that regard, it should be borne in mind that, in accordance with settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is 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 (judgment of 8 September 2009, Budějovický Budvar, C‑478/07, EU:C:2009:521, paragraph 63 and the case-law cited).

25

In the present case, it is apparent from the request for a preliminary ruling that it relates, first, to the interpretation of the provisions of Regulation No 1151/2012, in connection with a dispute giving rise to the question of the validity, in the light of those provisions, of Ministerial Decree No 76262/2014 establishing measures on food safety and production of PDO ‘Mozzarella di Bufala Campana’.

26

In accordance with Article 4(b) and (c) of Regulation No 1151/2012, that regulation is intended to establish a scheme for PDOs and protected geographical indications in EU territory in order to help producers of products linked to a geographical area by ensuring uniform protection of the names as an intellectual property right in the territory of the Union and providing clear information on the value-adding attributes of the product to consumers.

27

Under those circumstances, it cannot be argued that the interpretation of the provisions of that regulation bears no relation to the purpose of the dispute in the main proceedings or that the question is hypothetical.

28

Secondly, the referring court seeks a ruling from the Court of Justice on the interpretation of Articles 3, 26, 32, 40 and 41 TFEU. As the Commission argued in its observations, that court did not set out in its order for reference the reasons why it is unsure as to the correct interpretation of the provisions or the connection it makes between those provisions and the legislation at issue in the main proceedings. Under those circumstances, it must be found that the request for a preliminary ruling does not satisfy the requirements of Article 94 of the Rules of Procedure and that it must be declared inadmissible in so far as it relates to the interpretation of those provisions of the FEU Treaty.

29

Accordingly, the Court finds that the request for a preliminary ruling is admissible only in so far as it relates to the interpretation of Regulation No 1151/2012.

30

As a preliminary point, it must be noted that, in accordance with the Court’s settled case-law, it may decide to take into consideration rules of EU law to which the national court has made no reference in the wording of its question (see, to that effect, judgment of 1 February 2017, Município de Palmela, C‑144/16, EU:C:2017:76, paragraph 20 and the case-law cited).

31

By its question, the referring court seeks to ascertain, in essence, whether Article 4(c) and Article 7(1)(e) of Regulation No 1151/2012 and the product specification for ‘PDO Mozzarella di Bufala Campana’ must be interpreted as precluding national rules, such as those at issue in the main proceedings, which provide that ‘PDO Mozzarella di Bufala Campana’ must be produced in areas exclusively designated for the production of such cheese, including within one set of premises, in which the holding and storage of milk originating from farms that are not subject to the monitoring system for the PDO ‘Mozzarella di Bufala Campana’ is prohibited.

32

First of all, as noted in paragraph 26 above, Article 4(c) of Regulation No 1151/2012 provides that a scheme for PDOs and protected geographical indications of origin is to be established in order to help producers of products linked to a geographical area by providing clear information on the value-adding attributes of the products to customers.

33

In that regard, it follows from Article 7(1)(e) of that regulation that a protected designation of origin or a PDO is to comply with a specification which must include, inter alia, a description of the method of obtaining the product. It follows from recital 47 of that regulation that compliance by the producers with that specification is designed to offer a guarantee to consumers that the product possesses the specific characteristics of the geographical indications and of the traditional specialities guaranteed.

34

Thus, paragraph 4.4 of the product specification for ‘PDO Mozzarella di Bufala Campana’ provides that each stage of the production process for the product at issue and the raw materials used for its production is to be monitored rigorously in order to ensure that the product can be traced throughout the entire chain of production and any failure to comply, in even a single stage of the production, will result in the loss of the PDO. Furthermore, paragraph 4.5 of the specification provides that ‘PDO Mozzarella di Bufala Campana’ is to be produced exclusively with whole, fresh buffalo milk.

35

Next, it must be recalled that, in accordance with the Court’s case-law, EU legislation displays a general tendency to enhance the quality of products within the framework of the common agricultural policy, in order to promote the reputation of those products through, inter alia, the use of designations of origin which enjoy special protection. It also aims to satisfy the consumers’ expectation regarding product quality and identifiable geographical origin, and to enable producers, in conditions of fair competition, to secure higher incomes in return for a genuine effort to improve quality (judgment of 19 December 2018, S, C‑367/17, EU:C:2018:1025, paragraph 24 and the case-law cited).

36

Finally, designations of origin fall within the scope of industrial and commercial property rights. The applicable rules protect those entitled to use them against improper use of those designations by third parties seeking to profit from the reputation which they have acquired. They are intended to guarantee that the product bearing them comes from a specified geographical area and displays certain particular characteristics. They may enjoy a high reputation amongst consumers and constitute for producers who fulfil the conditions for using them an essential means of attracting custom. The reputation of designations of origin depends on their image in the minds of consumers. That image in turn depends essentially on particular characteristics and more generally on the quality of the product. It is on the latter, ultimately, that the product’s reputation is based. For consumers, the link between the reputation of the producers and the quality of the products also depends on his being assured that products sold under the designation of origin are authentic (judgment of 20 May 2003, Consorzio del Prosciutto di Parma and Salumificio S. Rita, C‑108/01, EU:C:2003:296, paragraph 64).

37

In that context, the product specification for ‘PDO Mozzarella di Bufala Campana’ requires, in paragraph 4.4, a precise record of the proof of origin of that product and, in particular, that the raw material be carefully monitored by the responsible body throughout the production stages. If the monitoring body finds any failure to comply in even a single stage of the production, under those rules, the product may not be marketed under the PDO ‘Mozzarella di Bufala Campana’.

38

Those rules are thus intended to ensure the product can be traced throughout the whole chain of production and that the product has the specific characteristics of that PDO and, in particular, that it is, in accordance with paragraph 4.5 of the specification, produced exclusively with whole, fresh buffalo milk.

39

Accordingly, EU law does not preclude a condition such as that at issue in the main proceedings, despite its restrictive effects on trade, if it is shown that it is necessary and proportionate and capable of safeguarding the quality of the product at issue, guaranteeing its origin or ensuring that the control of the specification for that PDO is monitored (see, by analogy, judgment of 19 December 2018, S, C‑367/17, EU:C:2018:1025, paragraph 26 and the case-law cited).

40

In the present case, according to the Italian Government, and subject to the verifications to be made by the referring court, the national rules at issue in the main proceedings, by requiring that the ‘PDO Mozzarella di Bufala Campana’ be produced in areas dedicated exclusively for that purpose, and prohibiting the holding or storage in those areas of milk originating from farms that are not subject to that PDO monitoring system, are intended to ensure that the quality of that product meets the requirements for its production, as set out in its specification, by reducing the risk that such milk might be used, either intentionally or unintentionally, in the production of that PDO. Those national rules thus contribute to the effective monitoring of the production stages of that product and, accordingly, to the objective of consumer protection and the fight against counterfeiting.

41

It must be concluded that such rules contribute to the objective of guaranteeing the quality and authenticity of the PDO product, as well as that of monitoring compliance by the producers who are entitled to use that PDO with the specification on the basis of which that PDO is registered.

42

In that regard, the Court has held that a national measure providing that facilities of undertakings which do not produce the products qualifying for a PDO must be quite separate from those in which the products bearing a PDO are produced is justified by the aim of preserving the considerable reputation of a PDO product (see, to that effect, judgment of 16 May 2000, Belgium v Spain, C‑388/95, EU:C:2000:244, paragraphs 72 and 75).

43

Regarding whether those rules are necessary and proportionate in the light of the aim pursued, the Italian Government indicates, in essence, in its observations that it would be impossible, in practice, to monitor raw materials originating from different systems, as required in the product specification for ‘PDO Mozzarella di Bufala Campana’, if ‘PDO Mozzarella di Bufala Campana’ were produced in the same areas as the products that are not subject to that system.

44

It is for the referring court to determine, in the light of the specific characteristics of the ‘PDO Mozzarella di Bufala Campana’ production sector and any risk of counterfeiting to which that production might be exposed, whether there actually is no less restrictive measure than the separation of the storage areas for milk and the production of products in order to ensure effective monitoring and, accordingly, compliance of those products with the specification for that PDO.

45

It follows from all of the foregoing observations that Article 4(c) and Article 7(1)(e) of Regulation No 1151/2012 and the product specification for ‘PDO Mozzarella di Bufala Campana’ must be interpreted as not precluding national rules, such as those at issue in the main proceedings, which provide that ‘PDO Mozzarella di Bufala Campana’ must be produced in areas exclusively designated for the production of that cheese, including within one set of premises, in which the holding and storage of milk originating from farms that are not subject to the monitoring system for the PDO ‘Mozzarella di Bufala Campana’ is prohibited, if those rules are a necessary and proportionate means of safeguarding the quality of that product or ensuring that the specification for that PDO is monitored, which is a matter for the referring court to verify.

46

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.

On those grounds, the Court (Ninth Chamber) hereby rules:

Article 4(c) and Article 7(1)(e) of Regulation No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs, and the product specification for ‘PDO Mozzarella di Bufala Campana’ must be interpreted as not precluding national rules, such as those at issue in the main proceedings, which provide that ‘PDO Mozzarella di Bufala Campana’ must be produced in areas exclusively designated for the production of that cheese, including within one set of premises, in which the holding and storage of milk originating from farms that are not subject to the monitoring system for the protected designation of origin (PDO) ‘Mozzarella di Bufala Campana’ is prohibited, if those rules are a necessary and proportionate means of safeguarding the quality of that product or ensuring that the specification for that PDO is monitored, which is a matter for the referring court to verify.