Agecontrol SpA v ZR and Lidl Italia Srl (C-319/21)

Contents

Judgment of the Court (Eighth Chamber)1 August 2022^note(Reference for a preliminary ruling — Agriculture — Common organisation of the markets — Regulation (EC) No 1234/2007 — Packed fresh fruit and vegetables — Commission Implementing Regulation (EU) No 543/2011 — Conformity check — Transport to a point of sale of the same company — Accompanying document — Indication of country of origin)In Case C‑319/21,REQUEST for a preliminary ruling under Article 267 TFEU from the Corte d’appello di Venezia (Court of Appeal, Venice, Italy), made by decision of 27 April 2021, received at the Court on 21 May 2021, in the proceedingsAgecontrol SpAvZR,Lidl Italia Srl,THE COURT (Eighth Chamber),composed of N. Jääskinen, President of the Chamber, M. Safjan and M. Gavalec (Rapporteur), Judges,Advocate General: L. Medina,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– Agecontrol SpA, by M.L. Madera, F. Russo and A. Tallarida, avvocati,– Lidl Italia Srl, by F. Capelli and M. Valcada, avvocati,– the European Commission, by M. Morales Puerta and F. Moro, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Articles 113 and 113a of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1), as amended by Council Regulation (EC) No 361/2008 of 14 April 2008 (OJ 2008 L 121, p. 1) (‘Regulation No 1234/2007’), and Articles 5 and 8 of Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Regulation No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors (OJ 2011 L 157, p. 1).

2The request has been made in proceedings brought by Agecontrol SpA against ZR and Lidl Italia Srl concerning the administrative fine imposed by Agecontrol on the grounds of an incorrect indication of the country of origin of fruit and vegetables marketed by ZR and Lidl Italia on two accompanying documents in respect of those products.

Legal context

European Union law

Regulation No 1234/2007

3Article 113 of Regulation No 1234/2007, headed ‘Marketing standards’, provided:1.Provision may be made by the [European] Commission for marketing standards for one or more of the products of the following sectors:…(b) fruit and vegetables;…2.The standards referred to in paragraph 1:(a) shall be established taking into account, in particular:(i) the specificities of the products concerned;…(b) may in particular relate to quality, grading into classes, weight, sizing, packaging, wrapping, storage, transport, presentation, marketing, origin and labelling.3. Save as otherwise provided for by the Commission in accordance with the criteria referred to in point (a) of paragraph 2, the products for which marketing standards have been laid down may be marketed in the [European Union] only in accordance with such standards.Without prejudice to any specific provisions which may be adopted by the Commission in accordance with Article 194, Member States shall check whether those products conform to those standards and shall apply penalties as appropriate.’

4Article 113a of that regulation, headed ‘Additional requirements for the marketing of the products of the fruit and vegetables sector’, provided:1. The products of the fruit and vegetables sector which are intended to be sold fresh to the consumer, may only be marketed if they are sound, fair and of marketable quality and if the country of origin is indicated.2. The marketing standards referred to in paragraph 1 of this Article and in points (b) and (c) of Article 113(1) shall apply at all marketing stages including import and export unless otherwise provided for by the Commission.3. The holder of products of the fruit and vegetables and processed fruit and vegetables sector covered by marketing standards may not display such products or offer them for sale or deliver or market them in any manner within the [European Union] other than in conformity with those standards and shall be responsible for ensuring such conformity.4. Further to the second subparagraph of Article 113(3) and without prejudice to any specific provisions which may be adopted by the Commission in accordance with Article 194, in particular on the consistent application in the Member States of the conformity checks, Member States shall, in respect of the fruit and vegetables and the processed fruit and vegetables sectors, check selectively, based on a risk analysis, whether the products concerned conform to the respective marketing standards. These checks shall be focused on the stage prior to dispatch from the production areas when the products are being packed or loaded. For products from third countries, checks shall be done prior to release for free circulation.’

Implementing Regulation No 543/2011

5Recital 10 of Implementing Regulation No 543/2011 states:‘In order to ensure that checks may be properly and effectively carried out, invoices and accompanying documents, other than those for consumers, should contain certain basic information included in the marketing standards.’

6Article 4 of that implementing regulation, headed ‘Exceptions and exemptions from the application of marketing standards’, provides in paragraph 2:‘By way of derogation from Article 113a(3) of [Regulation No 1234/2007], the following products shall not be required to conform to the marketing standards within a given production area:(a) products sold or delivered by the grower to preparation and packaging stations or storage facilities, or shipped from his holding to such stations; and(b) products shipped from storage facilities to preparation and packaging stations.’

7Under Article 5 of that implementing regulation, headed ‘Information particulars’:1. The information particulars required by this Chapter shall be shown legibly and obviously on one side of the packaging, either indelibly printed directly onto the package or on a label which is an integral part of the package or affixed to it.2. For goods shipped in bulk and loaded directly onto a means of transport, the information particulars referred to in paragraph 1 shall be given in a document accompanying the goods or shown on a notice placed in an obvious position inside the means of transport.…4. Invoices and accompanying documents, excluding receipts for the consumer, shall indicate the name and the country of origin of the products and, where appropriate, the class, the variety or commercial type if required in a specific marketing standard, or the fact that it is intended for processing.’

8Article 8 of Implementing Regulation No 543/2011, headed ‘Scope’, provides:‘This Chapter lays down rules on conformity checks, which shall mean the checks carried out on fruit and vegetables at all marketing stages, in order to verify that they conform to the marketing standards and other provisions of this Title and of Articles 113 and 113a of [Regulation No 1234/2007].’

9Article 11 of that implementing regulation, headed ‘Conformity checks’, provides in paragraphs 1 and 4:1. Member States shall ensure that conformity checks are carried out selectively, based on a risk analysis, and with appropriate frequency, so as to ensure compliance with the marketing standards and other provisions of this Title and of Articles 113 and 113a of [Regulation No 1234/2007].…4. Traders shall provide inspection bodies with all the information those bodies judge necessary for organising and carrying out conformity checks.’

10Article 17 of that implementing regulation, headed ‘Methods of inspection’, provides in paragraph 1:‘The conformity checks provided for in this Chapter, with the exception of those at the point of retail sale to the end consumer, shall be carried out in accordance with the methods of inspection laid down in Annex V, save as otherwise provided in this Regulation.…’

11Annex V to Implementing Regulation No 543/2011, headed ‘Methods of inspection referred to in Article 17(1)’, defines, in point 1.4 thereof, the concept of ‘consignment’, as follows:‘Quantity of produce to be sold by a given trader found at the time of inspection and defined by a document. A consignment may consist of one or several types of produce; it may contain one or several lots of fresh, dry or dried fruit and vegetables.’

12That annex also contains a section on the ‘Implementation of conformity check’, which provides:‘2.1. General remarkA conformity check shall be made by assessing samples taken at random from different points in the lot to be controlled. It is based on the principle of presumption that the quality of the samples is representative of the quality of the lot.2.2. Place of controlA conformity check may be carried out during packing operation, at the point of dispatch, during transport, at the point of reception, at whole sale and retail level.…2.3. Identification of lots and/or getting a general impression of the consignmentThe identification of lots shall be carried out on the basis of their marking or other criteria, such as the indications laid down under Council Directive 89/396/EEC [of 14 June 1989 on indications or marks identifying the lot to which a foodstuff belongs (OJ 1989 L 186, p. 21)]. In the case of consignments which are made up of several lots it is necessary for the inspector to get a general impression of the consignment with the aid of accompanying documents or declarations concerning the consignments. The inspector shall then determine how far the lots presented comply with the information in these documents.If the produce is to be or has been loaded onto a means of transport, the registration number of the latter shall be used for identification of the consignment.’

Italian law

13Article 4(1) of decreto legislativo n. 306 – Disposizioni sanzionatorie in attuazione del regolamento (EC) n. 1148/2001 relativo ai controlli di conformità alle norme di commercializzazione applicabili nel settore degli ortofrutticoli freschi, a norma dell’articolo 3 della legge 1 marzo 2002, n. 39 (Legislative Decree No 306, laying down penalties in implementation of Commission Regulation (EC) No 1148/2001 [of 12 June 2001] on checks on conformity to the marketing standards applicable to fresh fruit and vegetables sector [(OJ 2001 L 156, p. 9)], in accordance with Article 3 of the Law of 1 March 2002, No 39), of 10 December 2002 (GURI No 25, of 31 January 2003), provides:‘Unless the acts constitute an offence, anyone who infringes the rules on fresh fruit and vegetables adopted by the Commission … in Articles 113 and 113a of [Regulation No 1234/2007], as amended, shall be required to pay an administrative fine of between EUR 550 and EUR 15500.’

The dispute in the main proceedings and the question referred for a preliminary ruling

14Agecontrol is the national agency responsible, in Italy, for monitoring the conformity of fruit and vegetables with marketing standards. During an inspection carried out on 25 September 2013, that agency’s inspectors found that two documents dated 3 June and 29 July 2013, accompanying two consignments of fruit and vegetables from Lidl Italia’s distribution platform to a point of sale belonging to the latter, contained an incorrect indication of the country of origin in respect of a lot of strawberries and a lot of tomatoes on the vine. Whereas the packaging of those products indicated their country of origin, namely Spain and Italy respectively, the accompanying documents for those products referred to other countries of origin, namely the Netherlands and Belgium respectively.

15Taking the view that the incorrect indication of the country of origin of those products on those accompanying documents was contrary to the requirements of Articles 5 and 8 of Implementing Regulation No 543/2011, Agecontrol issued an order dated 30 April 2018 imposing an administrative fine pursuant to Article 4(1) of Legislative Decree No 306 of 10 December 2002, referred to in paragraph 13 above.

16Lidl Italia and ZR, its legal representative, filed an objection to that order before the Tribunale di Treviso (District Court, Treviso, Italy), which upheld the objection and set aside that order.

17Agecontrol brought an appeal against that court’s judgment before the referring court, the Corte d’appello di Venezia (Court of Appeal, Venice, Italy), submitting that the accompanying documents relating to the transport of fruit and vegetable sector products from the distribution platform to the point of sale belonging to the same commercial enterprise must indicate the country of origin of the products transported. It follows from Articles 5 and 8 of Implementing Regulation No 543/2011 that the accompanying documents for those products must contain such an indication at all stages of the marketing of those products, including at the stage of internal transport between the distribution platform and the supermarket belonging to the same economic operator in which they are sold to the consumer.

18ZR and Lidl Italia claim that, in the particular case of products that are pre-packed or placed in a package, EU law does not require the accompanying documents to indicate the country of origin of those products, since that information already appears on the packaging or on the label integral to the packaging or affixed to the package. That applies a fortiori to products transported from a distribution platform to a point of sale belonging to a same economic operator.

19The referring court has doubts as to whether EU law requires the holder of fresh products in the fruit and vegetable sector to have an accompanying document for those products indicating their country of origin where, (i) those products are dispatched in the original packaging bearing external reference to the country of origin (indelibly printed or on a label), (ii) those same products are transported between a point of departure and a point of arrival belonging to the same economic operator, and (iii) the country of origin is indicated on a notice placed in an obvious position inside the means of transport as well as on the invoices issued by the third-party suppliers.

20According to the referring court, Article 5(4) of Implementing Regulation No 543/2011 does not stipulate the cases in which the accompanying document indicating the country of origin of the products concerned must be issued. Consequently, it considers that that provision may be open to different interpretations. According to one interpretation, there is an obligation to issue such a document only where goods are exchanged with third-party suppliers, as recognised by the case-law of the Corte suprema di cassazione (Supreme Court of Cassation, Italy), or in the case of goods dispatched in bulk as submitted by ZR and Lidl Italia. According to another interpretation, supported by Agecontrol, that provision creates a general obligation to issue an accompanying document indicating the country of origin of the products concerned at all stages of the transport carried out for the purpose putting those products on the market, including in situations where those products are transported between entities of the same economic operator.

21In those circumstances, the Corte d’appello di Venezia (Court of Appeal, Venice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Must Article 5(4) of the [Implementing Regulation No 543/2011], read in conjunction with Article 5(1) and Article 8 of that regulation and with Articles 113 and 113a of [Regulation No 1234/2007], be interpreted as meaning that an accompanying document must be issued indicating the name and the country of origin of fresh fruit and vegetable products shipped pre-packed or in the original packaging provided by the producer, during transport from a seller company’s distribution platform to a point of sale of the same company, irrespective of the fact that one side of the packaging features the information particulars required by Chapter I of [Implementing Regulation No 543/2011] (including the name and country of origin of the goods) indelibly printed directly onto the package or on a label which is an integral part of the package or affixed to it, and irrespective of the fact that this information is also shown on the invoices issued by the supplier from which the goods were purchased by the seller company kept in that company’s accounting offices and on a notice placed in an obvious position inside the means of transport in which the goods are being conveyed?’

The question referred for a preliminary ruling

22By its question, the referring court asks, in essence, whether Article 5(4) of Implementing Regulation No 543/2011, read in the light of Article 8 of that regulation and of Articles 113 and 113a of Regulation No 1234/2007, must be interpreted as meaning that the check for conformity with the marketing standards for products in the fruit and vegetables sector requires the holder of those products to issue an accompanying document, at all stages of their marketing, which indicates the name and the country of origin of those products, including in circumstances where those products are packaged and the external information particulars required by the Implementing Regulation No 543/2011, namely the name and the country of origin of the products concerned, feature obviously and indelibly on one side of the packaging of those products, on a notice placed in an obvious position inside the means of transport in which the products are conveyed and on the invoices issued by the supplier of those products.

23It should be borne in mind, first of all, that Article 5(1) of Implementing Regulation No 543/2011, headed ‘Information particulars’, provides that, under the marketing standards, the required particulars, which include, in accordance with Part B of Annex I to that regulation, the indication of the country of origin of the products concerned, must be shown legibly and obviously on the package, either by being indelibly printed directly onto the package or by means of a label which is an integral part of the package, or affixed thereto. Paragraph 2 of that article provides, specifically in the case of goods shipped in bulk which are loaded directly onto a means of transport, that those particulars are to be given in a document or on a notice placed in an obvious position inside the means of transport. Paragraph 4 of that article, in turn, merely requires the name and the country of origin of the products to appear on the invoices and the accompanying documents.

24Thus, it is apparent from the wording of Article 5 of Implementing Regulation No 543/2011, taken as a whole, that the purpose of that article is not to require the issue of an accompanying document which must bear the country of origin of products in the fruit and vegetables sector, but only to require that information to feature on certain materials which accompany those products once those materials are issued.

25Next, it should be noted that Article 8 of that implementing regulation merely states that conformity checks are carried out on fruit and vegetables at all stages of their marketing and refers to Articles 113 and 113a of Regulation No 1234/2007, without reference to any accompanying document or any obligation to issue such a document.

26Furthermore, Article 113a of Regulation No 1234/2007, read in conjunction with Article 3(1) of Implementing Regulation No 543/2011, merely lays down general rules on marketing standards and on monitoring conformity with those standards, without requiring the issue of an accompanying document.

27Lastly, Article 113(2)(b) of Regulation No 1234/2007, read in conjunction with Article 3(2) of Implementing Regulation No 543/2011, provides, in essence, that the Commission may adopt specific marketing standards for products in the fruit and vegetables sector such as strawberries and tomatoes. Those standards may relate to certain characteristics of those products, such as their packaging, transport, presentation, marketing, origin or labelling, and are laid down for strawberries and tomatoes respectively in Parts 7 and 10 of Part B of Annex I to Implementing Regulation No 543/2011. In accordance with Article 113(3) of Regulation No 1234/2007, it is for the Member States to carry out checks on the conformity of those products with those standards. However, none of those provisions imposes an obligation on the economic operator concerned to issue an accompanying document.

28Therefore, neither Articles 5 and 8 of Implementing Regulation No 543/2011 nor Articles 113 and 113a of Regulation No 1234/2007 can be interpreted as requiring an economic operator to issue an accompanying document on which the country of origin of the products it is marketing must be shown.

29Nevertheless, as the Commission points out in its written observations, if an accompanying document is issued, it must indicate the country of origin, and that obligation applies irrespective of whether the country of origin already appears on the packaging, invoices or data sheet placed inside the means of transport.

30In that regard, it should be made clear that the requirement to indicate the country of origin of a product on the invoices and accompanying documents, laid down in Article 5(4) of Implementing Regulation No 543/2011, must be read in the light of recital 10 of that regulation, in so far as it seeks to facilitate conformity checks by providing the inspector with certain basic information on documents that are not intended for the consumer.

31In accordance with Article 17(1) of Implementing Regulation No 543/2011, the conformity checks are carried out in accordance with the methods set out in Section 2 of Annex V to that regulation, by means of assessing samples taken at random from different points in the lot to be checked. In that regard, it is apparent from that section of Annex V that that check is carried out in several successive stages, consisting, in essence, of a first stage of identification of the lots to be checked or, in the case of a consignment made up of several lots, of getting a general impression of the consignment, of a second stage of presentation of the produce to be checked and of a third and final stage of physical check of that produce.

32In the case of a consignment made up of several lots, point 2.3 of Annex V to that regulation specifies, first, that it is necessary for the inspector to get a general impression of the consignment with the aid of accompanying documents or declarations concerning the consignments and, secondly, that the inspector then determines how far the lots presented comply with the information in those documents.

33Thus, since the accompanying document constitutes one of the two reference documents on the basis of which the inspector forms a general impression of the lots to be checked, any indication of the country of origin featuring in those documents which differs from that featuring on the packaging of the products comprising the lots to be checked is liable to undermine that general impression and, therefore, to impair the effectiveness of the conformity check.

34In addition, it should be noted that, in accordance with Article 11(4) of Implementing Regulation No 543/2011, it is for economic operators to provide inspection bodies with all the information those bodies judge necessary for organising and carrying out conformity checks.

35In that context, although the accompanying document or the declarations relating to consignments constitute reference documents which must faithfully reflect the particulars which appear on the packaging of the lots to be checked, the fact remains that neither Article 17(1) of Implementing Regulation No 543/2011, nor Article 11(4) of that regulation, nor point 2.3 of Annex V thereto, limits the methods of proof to which the economic operator may have recourse to enable the inspector to get a general impression of the consignment concerned.

36Thus, while it is crucial that the accompanying document be free from error and that the economic operator provide correct information to the inspector for the purpose of his or her proper identification of the lots to be checked, that operator remains, in principle, free as to the items of evidence to provide to that inspector to enable him or her to get an accurate general impression of the consignment and of its component lots.

37It follows that, if an accompanying document contains an incorrect indication of the country of origin of a product, it is for the economic operator holding that product to dispel as soon as possible, by any means, any doubts the inspector may have as to the correct origin of that product.

38In that context, it is for the referring court to determine, in the present case, whether circumstances such as the presence of an indication of the country of origin on the packaging of the goods, on the invoices and on a notice placed in an obvious position inside the means of transport are such as to dispel any doubts the inspector may have nurtured during the check and, therefore, to mitigate any distortion of the inspector’s general impression of the consignment.

39As regards whether an accompanying document must state the country of origin of the product even when that product is transported between entities of the same economic operator, in particular between a distribution platform and a point of sale, it is clear from the wording of Article 8 of Implementing Regulation No 543/2011 and Article 113a(2) of Regulation No 1234/2007 that the marketing standards are applicable ‘at all marketing stages’. Article 113a(3) of the latter regulation further specifies, first, that the holder of products of the fruit and vegetables sector covered by marketing standards may not display those products, offer them for sale, deliver them or market them within the European Union in a manner that does not comply with those standards and, secondly, that it is responsible for ensuring such conformity.

40In that regard, it is sufficient to find that the expression ‘at all marketing stages’, which is not limited in any way, must be understood in a broad sense. Where conformity checks are intended to verify that the products marketed comply with the prescribed marketing standards, those checks are intended to be carried out, in principle, at all stages of the marketing of those products, that is to say, at any time during the period extending from the production of those products to their retail sale, which covers the transportation of those products between the distribution platform and the retail point of sale.

41That interpretation is, moreover, supported by the logic of the system established by Implementing Regulation No 543/2011. First, Article 4, headed ‘Exceptions and exemptions from the application of marketing standards’, lists exhaustively the cases in which products are not required to conform to the marketing standards. It is sufficient to note that the transportation of products between the distribution platform and the retail outlet is not one of the situations listed in that provision. Also, it is irrelevant whether a distribution platform and the retail outlet belong to the same undertaking or to two separate economic entities.

42Secondly, it should be noted that point 2.2 of Annex V to Implementing Regulation No 543/2011 specifies that conformity checks may be carried out during packing operation, at the point of dispatch, during transport, at the point of reception, at wholesale and retail level. Accordingly, it must be held that the implementation of those checks is neither limited solely to situations where there is movement of goods between separate legal persons nor contingent upon there being a transfer of ownership of the products. What matters, as Article 113a(3) of Regulation No 1234/2007 provides, is that the holder of the products, who is defined in Article 3(3) of Implementing Regulation No 543/2011 as being the person who is in physical possession of the products, is responsible for ensuring the conformity of those products. Therefore, the fact that a product is checked in the course of internal transportation between two entities of a same economic operator is irrelevant.

43Having regard to all the foregoing considerations, the answer to the question referred is that Article 5(4) of Implementing Regulation No 543/2011, read in the light of Article 8 of that regulation and of Articles 113 and 113a of Regulation No 1234/2007, must be interpreted as meaning that the check for conformity with the marketing standards for products in the fruit and vegetables sector does not require the holder of those products to issue an accompanying document. However, where that holder issues such a document, it must, at all stages of the marketing of those products, indicate the name and the country of origin of those products, irrespective of the fact that the external information particulars required by Implementing Regulation No 543/2011 already appear, obviously and indelibly, on one side of their packaging, on a notice placed in an obvious position inside the means of transport by which they are transported and on the invoices issued by the supplier of those products.

Costs

44Since 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.

Operative part

On those grounds, the Court (Eighth Chamber) hereby rules: Article 5(4) of Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011, laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors, read in the light of Article 8 of that regulation and of Articles 113 and 113a of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), as amended by Council Regulation (EC) No 361/2008 of 14 April 2008, must be interpreted as meaning that the check for conformity with the marketing standards for products in the fruit and vegetables sector does not require the holder of those products to issue an accompanying document. However, where that holder issues such a document, it must, at all stages of the marketing of those products, indicate the name and the country of origin of those products, irrespective of the fact that the external information particulars required by Implementing Regulation No 543/2011 already appear, obviously and indelibly, on one side of their packaging, on a notice placed in an obvious position inside the means of transport by which they are transported and on the invoices issued by the supplier of those products.