Saint-Louis Sucre v Premier ministre and Others (C-183/22)

Contents

Judgment of the Court (Fifth Chamber)15 June 2023^note(Reference for a preliminary ruling — Agriculture — Common organisation of the markets — Regulation (EU) No 1308/2013 — Statutes of producer organisations — Article 153(1)(b) — Rule that members may belong to only one producer organisation — Scope — Article 153(2)(c) — Democratic scrutiny by producer members of the producer organisation and the decisions taken within it — Control exercised by one person over certain members of a producer organisation)In Case C‑183/22,REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, France), made by decision of 10 March 2022, received at the Court on 10 March 2022, in the proceedingsSaint-Louis SucrevPremier ministre,Ministre de l’Agriculture et de l’Alimentation,SICA des betteraviers d’Étrépagny,THE COURT (Fifth Chamber),composed of E. Regan, President of the Chamber, D. Gratsias (Rapporteur), M. Ilešič, I. Jarukaitis and Z. Csehi, Judges,Advocate General: T. Ćapeta,Registrar: M. Krausenböck, Administrator,having regard to the written procedure and further to the hearing on 16 November 2022,after considering the observations submitted on behalf of:– Saint-Louis Sucre, by J.-P. Duhamel, F.-C. Laprévote, A. Magraner-Oliver and F. Six, avocats,– SICA des betteraviers d’Étrépagny, by F. Molinié, avocat,– the French Government, by G. Bain and J.-L. Carré, acting as Agents,– the European Commission, by M. Konstantinidis and F. Le Bot, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 9 February 2023,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 153 of Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013 L 347, p. 671, and corrigendum OJ 2016 L 130, p. 9), as amended by Regulation (EU) No 2017/2393 of the European Parliament and of the Council of 13 December 2017 (OJ 2017 L 350, p. 15) (‘Regulation No 1308/2013’).

2The request has been made in proceedings between, on the one hand, the company Saint-Louis Sucre and, on the other hand, the Premier ministre (the French Prime Minister), the Ministre de l’Agriculture et de l’Alimentation (the Minister for Agriculture and Food, France) and the société d’intérêt collectif agricole (SICA) des betteraviers d’Étrépagny (agricultural cooperative for sugar beet growers of Étrépagny; ‘the Étrépagny SICA’) concerning recognition of the Étrépagny SICA as a producer organisation (‘PO’) in the sugar sector, for sugar beet.

Legal context

European Union law

Regulation (EU) No 1307/2013

3Article 4(1) of Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 (OJ 2013 L 347, p. 608), provides:‘For the purposes of this Regulation, the following definitions shall apply:…(b) “holding”, means all the units used for agricultural activities and managed by a farmer situated within the territory of the same Member State;(c) “agricultural activity” means:(i) production, rearing or growing of agricultural products, including harvesting, milking, breeding animals, and keeping animals for farming purposes,…’

Regulation No 1308/2013

4Recital 131 of Regulation No 1308/2013 reads as follows:‘Producer organisations and their associations can play useful roles in concentrating supply, in improving the marketing, planning and adjusting of production to demand, optimising production costs and stabilising producer prices, carrying out research, promoting best practices and providing technical assistance, managing by-products and risk management tools available to their members, thereby contributing to strengthening the position of producers in the food chain.’

5As provided in Article 1(1) thereof, Regulation No 1308/2013 establishes a common organisation of the markets for agricultural products, which means all the products listed in Annex I to the FEU Treaty, with the exception of the fishery and aquaculture products as defined in Union legislative acts on the common organisation of the markets in fishery and aquaculture products.

6In accordance with Article 1(2)(c) of that regulation, read together with Part III of Annex I thereto, sugar beet comes under the common organisation of the sugar sector.

7Pursuant to Article 3(3) of Regulation No 1308/2013, the definitions set out, inter alia, in Regulation No 1307/2013 apply for the purposes of that regulation, save as otherwise provided for.

8Article 152 of Regulation No 1308/2013, entitled ‘Producer organisations’, provides, in paragraphs 1 to 1b thereof:1.Member States may, on request, recognise [POs] which:(a) are constituted, and controlled in accordance with point (c) of Article 153(2), by producers in a specific sector listed in Article 1(2);(b) are formed on the initiative of the producers and which carry out at least one of the following activities:(i) joint processing;(ii) joint distribution, including by joint selling platforms or joint transportation;(iii) joint packaging, labelling or promotion;(iv) joint organising of quality control;(v) joint use of equipment or storage facilities;(vi) joint management of waste directly related to the production;(vii) joint procurement of inputs;(viii) any other joint service activities pursuing one of the objectives listed in point (c) of this paragraph;(c) pursue a specific aim which may include at least one of the following objectives:(i) ensuring that production is planned and adjusted to demand, particularly in terms of quality and quantity;(ii) concentration of supply and the placing on the market of the products produced by its members, including through direct marketing;(iii) optimising production costs and returns on investments in response to environmental and animal welfare standards, and stabilising producer prices;…1a.By way of derogation from Article 101(1) TFEU, a [PO] recognised under paragraph 1 of this Article may plan production, optimise the production costs, place on the market and negotiate contracts for the supply of agricultural products, on behalf of its members for all or part of their total production.The activities referred to in the first subparagraph may take place:(a) provided that one or more of the activities referred to in point (b)(i) to (vii) of paragraph 1 is genuinely exercised, thus contributing to the fulfilment of the objectives set out in Article 39 TFEU;(b) provided that the [PO] concentrates supply and places the products of its members on the market, whether or not there is a transfer of ownership of agricultural products by the producers to the [PO];(c) whether or not the price negotiated is the same as regards the aggregate production of some or all of the members;(d) provided that the producers concerned are not members of any other [PO] as regards the products covered by the activities referred to in the first subparagraph;(e) provided that the agricultural product is not covered by an obligation to deliver arising from the farmer’s membership of a cooperative, which is not itself a member of the [PO] concerned, in accordance with the conditions set out in the cooperative’s statutes or the rules and decisions provided for in or derived from those statutes.However, Member States may derogate from the condition set out in point (d) of the second subparagraph in duly justified cases where producer members hold two distinct production units located in different geographical areas.1b. For the purposes of this Article, references to [POs] shall also include associations of [POs] recognised under Article 156(1) if such associations meet the requirements set out in paragraph 1 of this Article.’

9Article 153 of that regulation, entitled ‘Statutes of producer organisations’, provides:1.The statutes of a [PO] shall require its producer members, in particular, to:(a) apply the rules adopted by the [PO] relating to production reporting, production, marketing and protection of the environment;(b) be members of only one [PO] for any given product of the holding; however Member States may derogate from this condition in duly justified cases where producer members hold two distinct production units located in different geographical areas;(c) provide the information requested by the [PO] for statistical purposes.2.The statutes of a [PO] shall also provide for:…(c) rules enabling the producer members to scrutinise democratically their organisation and its decisions;…’

10Article 206 of that regulation, entitled ‘Commission guidelines on the application of competition rules to agriculture’, provides, in the first paragraph thereof:‘Save as otherwise provided in this Regulation, and in accordance with Article 42 TFEU, Articles 101 to 106 TFEU and the implementing provisions thereto shall, subject to Articles 207 to 210 of this Regulation, apply to all agreements, decisions and practices referred to in Article 101(1) and Article 102 TFEU which relate to the production of, or trade in, agricultural products.’

11Article 209 of the same regulation, entitled ‘Exceptions for the objectives of the CAP and farmers and their associations’, provides, in paragraph 1 thereof:‘Article 101(1) TFEU shall not apply to the agreements, decisions and practices referred to in Article 206 of this Regulation necessary for the attainment of the objectives set out in Article 39 TFEU.Article 101(1) TFEU shall not apply to agreements, decisions and concerted practices of farmers, farmers’ associations, or associations of such associations, or [POs] recognised under Article 152 or Article 161 of this Regulation, or associations of [POs] recognised under Article 156 of this Regulation, which concern the production or sale of agricultural products or the use of joint facilities for the storage, treatment or processing of agricultural products, unless the objectives set out in Article 39 TFEU are jeopardised.This paragraph shall not apply to agreements, decisions and concerted practices which entail an obligation to charge an identical price or by which competition is excluded.’

Regulation 2017/2393

12Recital 52 of Regulation 2017/2393 reads as follows:‘[POs] and their associations can play useful roles in concentrating supply, in improving the marketing, planning and adjusting of production to demand, optimising production costs and stabilising producer prices, carrying out research, promoting best practices and providing technical assistance, managing by-products and risk management tools available to their members, thereby contributing to strengthening the position of producers in the food chain. Their activities, including the contractual negotiations for the supply of agricultural products by such [POs] and their associations when concentrating supply and placing the products of their members on the market, therefore contribute to the fulfilment of the objectives of the [common agricultural policy (CAP)] set out in Article 39 [TFEU], since they strengthen the position of farmers in the food supply chain and can contribute to a better functioning of the food supply chain. The reform of the CAP in 2013 reinforced the role of [POs]. By way of derogation from Article 101 TFEU, the possibility to carry out activities such as production planning, cost optimisation, placing producer members’ products on the market and conducting contractual negotiations should therefore be explicitly regulated as a right of recognised [POs] in all sectors for which [Regulation No 1308/2013] establishes a common organisation of the markets. That derogation should only cover [POs] which genuinely exercise an activity aimed at economic integration and which concentrate supply and place products of their members on the market. However, in addition to the application of Article 102 TFEU to such [POs], safeguards should be put in place in order to ensure that such activities do not exclude competition or jeopardise the objectives set out in Article 39 TFEU. …’

French law

13Article L. 551-1 of the Code rural et de la pêche maritime (Rural and Maritime Fishing Code) provides that ‘the administrative authority shall recognise [POs] and associations of [POs] in the sectors covered by the regulation establishing a common organisation of the markets in agricultural products, in accordance with the provisions of that regulation’.

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

14By decree of 20 December 2019, the Minister for Agriculture and Food recognised the Étrépagny SICA as a PO in the sugar sector for sugar beet.

15By an application lodged with the Conseil d’État (Council of State, France), the referring court, Saint-Louis Sucre, a company that produces sugar from sugar beet, requested the annulment of the decree of 20 December 2019. In support of its application, Saint-Louis Sucre raises, inter alia, two pleas in law, alleging, respectively, infringement of Article 153(1)(b) and infringement of Article 153(2)(c) of Regulation No 1308/2013.

16In support of its plea alleging infringement of Article 153(1)(b) of that regulation, Saint-Louis Sucre argues that the Confédération générale des planteurs de betteraves Eure (General Confederation of Sugar Beet Growers, Eure; ‘the CGB Eure’), the Confédération générale des planteurs de betteraves Île-de-France (General Confederation of Sugar Beet Growers, Île-de-France; ‘the CGB Île-de-France’) and the company Naples Investissement, none of which are producers, are members of both the Étrépagny SICA and the Roye-Déshydratation SICA, and the latter was also recognised as a PO when the decree of 20 December 2019 was adopted. That should have led the Minister for Agriculture and Food to reject the application for recognition of the Étrépagny SICA pursuant to Article 153(1)(b) of Regulation No 1308/2013.

17The referring court considers that the assessment of that plea depends on whether Article 153(1)(b), which requires the members of a PO to be members of only one PO for any given product of the holding, must be interpreted as meaning that the prohibition of multiple memberships applies only to producer members or that it applies to all the members of a PO, including non-producer members.

18In support of its plea alleging infringement of Article 153(2)(c) of Regulation No 1308/2013, Saint-Louis Sucre submits that the decree of 20 December 2019 was adopted in breach of that provision, inasmuch as the producer members of the Étrépagny SICA are not able to scrutinise their organisation or its decisions democratically.

19More specifically, Saint-Louis Sucre argues that the Confédération générale des planteurs de betteraves (General Confederation of Sugar Beet Growers; ‘the CGB’) holds almost all of the capital of Naples Investissement and in fact controls the CGB Eure and the CGB Île-de-France. Given the fact that Naples Investissement, the CGB Eure and the CGB Île-de-France respectively hold 8.7%, 15.1% and 7.6% of the capital of the Étrépagny SICA, the CGB controls, through those three entities, which are obliged to carry out its instructions, 31.4% of the Étrépagny SICA’s capital. According to Saint-Louis Sucre, that situation constitutes a circumvention of the Étrépagny SICA’s statutes, which limit the share of the voting rights of each of its members in the general assembly to 10%, and is evidence of a breach of the principle that producer members should exercise democratic scrutiny of their SICA. Moreover, Saint-Louis Sucre submits that, of the 13 directors of the Étrépagny SICA, 3 represent the CGB Eure, the CGB Île-de-France and Naples Investissement, respectively, and 6 others are producers that are members of the CGB and have significant responsibilities within it. Saint-Louis Sucre adds that the breach of the principle laid down by Article 153(2)(c) of Regulation No 1308/2013 is exacerbated by the fact that the director of the Étrépagny SICA and some of its resources are provided by the CGB.

20The referring court considers that, in order to respond to the plea alleging infringement of Article 153(2)(c) of Regulation No 1308/2013, it must be determined whether, in order to assess the independence of the members of the organisation in question, it is necessary to consider only whether the capital held by some of those members is in reality held by the same natural or legal person, or whether other links should also be taken into consideration, such as, for non-producer members, affiliation to the same trade union confederation or, for producer members, the exercise of management responsibilities within such a confederation. The referring court also considers that the merits of that plea also depend on whether it is sufficient, in order to conclude that producer members have control over the PO, that those members have a majority of the votes in the general assembly, or whether it is necessary to examine whether, in view of the distribution of votes among members that are genuinely independent, the voting share of one or more non-producer members enables them, even without a majority, to control the decisions taken by the PO.

21In 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:(1) Must the rule set out in [the French version of] Article 153(1)(b) of [Regulation No 1308/2013], according to which the statutes of a [PO] require its members to “be members of only one [PO] for any given product of the holding”, be interpreted as applying only to producer members?(2) In order to ensure compliance with the principle set out in Article 153(2)(c) of [Regulation No 1308/2013], according to which the producer members of a [PO] must scrutinise democratically their organisation and its decisions:– is it necessary, in order to assess the independence of the members of the organisation, to take account exclusively of the holding of their capital by the same natural or legal person, or also of other links such as, for non-producer members, affiliation to the same union confederation, or, for producer members, the exercise of management responsibilities within such a confederation?– is it sufficient, in order to conclude that producer members do have control over the organisation, for those members to have a majority of the votes, or is it necessary to examine whether, in view of the distribution of votes among members who are genuinely independent, the voting share of one or more non-producer members enables them, even without a majority, to control the decisions taken by the organisation?’

Consideration of the questions referred

The first question

22By its first question, the referring court asks, in essence, whether Article 153(1)(b) of Regulation No 1308/2013 must be interpreted as meaning that the requirement of belonging to only one PO applies solely to the members of a PO that are producers, or that it applies to all of its members, both producers and non-producers.

23In the first place, it must be noted that Article 152(1)(a) of Regulation No 1308/2013 does not preclude Member States from recognising POs whose members include natural persons or entities that are not producers.

24In that regard, admittedly, Article 152(1)(a) of Regulation No 1308/2013 provides that the POs which the Member States may, on request, recognise are those which are composed of producers in a specific sector listed in Article 1(2) of that regulation. Nevertheless, read in context, that provision must be understood as not ruling out the possibility of Member States recognising POs that are not composed exclusively of producers.

25Indeed, Article 153(2)(c) of Regulation No 1308/2013 provides that it is the ‘producer members’ of a PO that must scrutinise that organisation and its decisions. If recognised POs had to be composed solely of producers, that stipulation would be superfluous, since a general reference to the members of the POs would suffice.

26It follows that Regulation No 1308/2013 does not preclude the Member States from recognising POs that accept non-producers as members, provided that it is the producer members of those POs that, in accordance with Article 153(2)(c) of that regulation, democratically scrutinise their organisation and its decisions.

27As regards, in the second place, the rule on being a member of only one PO, laid down in Article 153(1)(b) of Regulation No 1308/2013, it must be noted that, as the Advocate General observed in point 44 of her Opinion, while in most language versions of the introductory part of Article 153(1), including the Spanish, Danish, German, English, Dutch, Polish and Portuguese versions, that rule applies to the ‘producer members’ of the PO concerned, the French-language version refers only to ‘members’.

28However, since all language versions of an EU act must, in principle, be recognised as having the same value, in the case of divergence between those versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see, to that effect, judgment of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 49 and the case-law cited).

29In so far as the general scheme of Regulation No 1308/2013 is concerned, Article 3(3) thereof provides, inter alia, that the definitions set out in Regulation No 1307/2013 apply for the purposes of that regulation.

30Thus, the stipulation in Article 153(1)(b) of Regulation No 1308/2013 that the requirement of being a member of only one PO applies ‘for any given product of the holding’ must be read in the light of Article 4(1)(b) of Regulation No 1307/2013, which defines the concept of a ‘holding’ as all the units used for agricultural activities and managed by a farmer situated within the territory of the same Member State. In addition, Article 4(1)(c)(i) of Regulation No 1307/2013 provides that the concept of ‘agricultural activity’ covers, inter alia, the production and growing of agricultural products. It follows that the stipulation in Article 153(1)(b) of Regulation No 1308/2013 relates to the production of agricultural products, which indicates that the requirement set out in that provision applies solely to the members of a PO that are producers.

31As regards the purpose of Regulation No 1308/2013, it is clear from recital 131 thereof, which is reflected in Article 152(1)(c) of that regulation, that producer organisations and their associations can play useful roles in concentrating supply, in improving the marketing, planning and adjusting of production to demand, optimising production costs and stabilising producer prices, carrying out research, promoting best practices and providing technical assistance and managing by-products and risk management tools available to their members, thereby contributing to strengthening the position of producers in the food chain.

32In that regard, the requirement of being a member of only one PO is intended to ensure that the objective of strengthening the position of producers in the food chain is effectively attained. Indeed, as is clear from Article 152(1)(b) and (c) of Regulation No 1308/2013, the aims of POs referred to therein, which are identified in recital 131 of that regulation as contributing to that objective, are pursued by carrying on activities that are genuinely joint activities. Moreover, as is shown by recital 52 of Regulation 2017/2393, it was also with a view to strengthening the position of producers in the food chain that the EU legislature expressly regulated, under Article 152(1a) of Regulation No 1308/2013, the possibility for recognised POs, by way of derogation from Article 101 TFEU, to plan production, optimise production costs, place on the market and negotiate contracts for the supply of agricultural products, on behalf of their members and for all or part of their total production.

33If producers were to participate, as members, in more than one PO for any given product of the holding, that could result in the continued fragmentation of the activities listed in Article 152(1)(b) of Regulation No 1308/2013. That would, in principle, jeopardise the effective achievement of some of the aims which POs may pursue, as listed in Article 152(1)(c), such as planning production and adjusting production to demand or concentrating supply and optimising costs and, ultimately, could impede the attainment of the objective of strengthening the position of producers in the food chain, which, inter alia, justified the inapplicability of Article 101 TFEU.

34Accordingly, it is only where the producer members concerned have two distinct production units located in different geographical areas that the Member States may, in accordance with Article 153(1)(b) of Regulation No 1308/2013, recognise, in duly justified cases, POs despite the fact that some of their producer members also participate in another PO.

35By contrast, if certain members of a PO that are not producers also participate in another PO, that is not likely to have the consequences described in paragraph 33 above. In that regard, the possibility that such participation will increase the risk of anticompetitive coordination between the POs concerned cannot call into question the conclusion reached upon interpreting the provisions of Regulation No 1308/2013 on the recognition of POs by reference to their purpose and general scheme.

36Indeed, the objectives set out in Article 152(1)(c) of Regulation No 1308/2013 can justify certain forms of coordination or concertation only between producers that are members of the same PO or between members of the same association of POs. Accordingly, agreements or concerted practices that are not agreed within a PO or an association of POs, but are agreed between POs or associations of POs, go beyond what is necessary in order to achieve those objectives. Therefore, even if the risk of coordination between different POs with a view to charging the same prices or to excluding competition is increased as a result of the participation of non-producers in more than one PO, the fact remains that such conduct continues to be prohibited by Article 101(1) TFEU, read in conjunction with Article 209(1) of Regulation No 1308/2013 (see, by analogy, the judgment of 14 November 2017, APVE and Others, C‑671/15, EU:C:2017:860, paragraphs 57 to 59). It therefore falls to the national competition authorities and, where appropriate, to the European Commission to exercise their powers in the area and prevent and, if necessary, penalise such conduct.

37Having regard to the foregoing, the answer to the first question is that Article 153(1)(b) of Regulation No 1308/2013 must be interpreted as meaning that the requirement of being a member of only one PO applies solely to the members of the PO that are producers.

The second question

38By its second question, the referring court asks, in essence, whether Article 153(2)(c) of Regulation No 1308/2013 must be interpreted as meaning that, in determining whether the statutes of a PO lay down rules that enable its producer members to scrutinise democratically their organisation and its decisions, the national authority responsible for the recognition of that organisation must:– consider that a person controls certain members of the PO only where that person holds a share of the capital of those members, or also where that person has other types of relationships with those members, such as, in the case of non-producer members, their affiliation to the same trade union confederation or, in the case of producer members, their exercise of management responsibilities within such a confederation;– confine itself to verifying that the producer members of the PO have a majority of the votes in the organisation’s general assembly, or must also examine whether, in view of the distribution of votes among members that are not controlled by other persons, one or more non-producer members are able, even without a majority, to control the decisions taken by the PO.

39It is apparent from the request for a preliminary ruling that, by its second question, the referring court is asking how Article 153(2)(c) of Regulation No 1308/2013 is to be interpreted with regard to the situation where certain members of a PO are controlled by another person and, as a result, are not independent.

40First, the wording of Article 153(2)(c) of Regulation No 1308/2013 shows that a PO must have statutes that provide for rules that enable its producer members to scrutinise democratically their organisation and its decisions. Consequently, the statutes in question must contain provisions to ensure that control over the PO cannot be exercised by members that are not producers.

41Secondly, as regards the context in which Article 153(2)(c) of Regulation No 1308/2013 arises, it must be observed that a reference to that provision is made in Article 152(1)(a) of that regulation, in connection with the conditions which POs must fulfil in order for a Member State to be able, on request, to recognise them. Moreover, Article 152(1)(b) and (c) of that regulation requires that POs be formed on the initiative of producers, with a view to carrying on certain activities and pursuing a specific aim, as listed in those provisions. It follows that, in Article 153(2)(c) of that regulation, the EU legislature intended to ensure, by means of the requirement relating to the democratic scrutiny of POs by their producer members, that POs operate under conditions that ensure that the control which producer members have over decisions relating to the PO’s activities and aims is preserved.

42Thirdly, that interpretation is corroborated by the objective pursued by Regulation No 1308/2013. As was pointed out in paragraph 31 above, the purpose of creating POs is to strengthen the position of producers in the food chain.

43That objective would be jeopardised if the decision-making process within a PO were such that the interests of persons other than the producer members of the PO could take priority. To mitigate that risk, and ensure the ability of the producer members to exercise democratic scrutiny, it is essential that such members of a PO hold the majority of votes within the PO’s bodies and that non-producer members do not have other means of controlling the PO’s decisions (see, by analogy, judgment of 15 June 1989, Stute Nahrungsmittelwerke, 77/88, EU:C:1989:249, paragraphs 12 and 15).

44While it cannot be ruled out that the requirement laid down in Article 153(2)(c) of Regulation No 1308/2013 may have implications for the manner in which the producer members themselves participate, it must be borne in mind that, in the light of the circumstances of the case in the main proceedings, the referring court’s questions solely concern the conditions under which it may be considered that the participation of one or more non-producer members, by reason of the manner and extent of that participation, infringes the rule that requires democratic scrutiny of the PO by its producer members.

45As the Advocate General explained in points 78 and 79 of her Opinion, it falls to the competent national authority, when taking a decision on an application for recognition of a PO, to examine any matter that might indicate that the requirements laid down in Article 153(2)(c) of Regulation No 1308/2013, as well as those established, in accordance with that provision, in the acts governing the functioning of the PO, are not in reality being observed.

46In that context, it is for that national authority, first, to identify in the acts which govern the functioning of the PO, such as its statutes and rules of procedure, the provisions which, where appropriate in combination with applicable national regulations, ensure that the PO and its decisions are democratically scrutinised by its producer members. Secondly, it must check whether any of the factual and legal circumstances surrounding the application for recognition made to it are such as might result in the circumvention of those provisions.

47Accordingly, the competent national authority must in particular examine whether any person, such as a trade union confederation, is able to exercise control over certain members of the PO, whether they are producers or non-producers. Such an ability to control could arise from that person’s holding in the share capital of other members of the PO. It could also arise from other legal relationships, such as the affiliation of certain legal persons that are members of the PO to the same trade union confederation, or the exercise by certain natural persons who are members of the PO of managerial responsibilities within that trade union confederation.

48If the national authority finds that certain members of a PO are liable to be controlled by another person, it also has to examine whether that circumstance is such as to prevent the producer members of the PO from scrutinising their organisation and its decisions democratically.

49In this connection, it falls to the national authority to examine, first, whether the control exercised by one person over certain members of the PO that sit in its administrative bodies is such as to compel those members to follow the instructions issued by that person within the bodies in question.

50Secondly, it is necessary to determine whether the control thus exercised by one person over certain members of the PO enables one or more non-producer members to exert a decisive influence within those bodies of the PO, such that, despite their not holding a majority of the votes, they are in a position to control the decisions taken by the PO and thereby obstruct the democratic scrutiny of the PO by its producer members.

51In the light of the foregoing, the answer to the second question is that Article 153(2)(c) of Regulation No 1308/2013 must be interpreted as meaning that, in determining whether the statutes of a PO lay down rules that enable its producer members to scrutinise democratically their organisation and its decisions, the national authority responsible for the recognition of that organisation must:– examine whether one person controls certain members of the PO, having regard not only to the fact that that person holds a share of the capital of those members, but also to the fact that it maintains other types of relationships with those members, such as, in the case of non-producer members, their affiliation to the same trade union confederation or, in the case of producer members, their exercise of management responsibilities within such a confederation;– after verifying that the producer members of the PO have a majority of the votes in the organisation’s general assembly, also examine whether, in view of the distribution of votes among members that are not controlled by other persons, one or more non-producer members are able, by virtue of the decisive influence they may therefore be able to exert, even without a majority, to control the decisions taken by the PO.

Costs

52Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Fifth Chamber) hereby rules:

1.Article 153(1)(b) of Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007, as amended by Regulation (EU) No 2017/2393 of the European Parliament and of the Council of 13 December 2017,must be interpreted as meaning that the requirement of being a member of only one producer organisation applies solely to the members of the producer organisation that are producers.

2.Article 153(2)(c) of Regulation No 1308/2013, as amended by Regulation 2017/2393,must be interpreted as meaning that in determining whether the statutes of a producer organisation lay down rules that enable its producer members to scrutinise democratically their organisation and its decisions, the national authority responsible for the recognition of that organisation must:– examine whether one person controls certain members of the producer organisation, having regard not only to the fact that that person holds a share of the capital of those members, but also to the fact that it maintains other types of relationships with those members, such as, in the case of non-producer members, their affiliation to the same trade union confederation or, in the case of producer members, their exercise of management responsibilities within such a confederation;– after verifying that the producer members of the producer organisation have a majority of the votes in the organisation’s general assembly, also examine whether, in view of the distribution of votes among members that are not controlled by other persons, one or more non-producer members are able, by virtue of the decisive influence they may therefore be able to exert, even without a majority, to control the decisions taken by the producer organisation.