Contents
Judgment of the Court (Sixth Chamber)29 July 2024note(Reference for a preliminary ruling — Common agricultural policy — Regulation (EU) 2016/1012 — Purebred breeding animals — Recognition procedure for breed societies — Approval procedure for breeding programmes — Possibility of refusing to approve a further breeding programme for the same breed, for the same territory, if such approval has potential to compromise an already existing breeding programme — Right of breeders of purebred animals to choose between the various existing breeding programmes)In Case C‑286/23,REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Braşov (Court of Appeal, Brașov, Romania), made by decision of 10 April 2023, received at the Court on 3 May 2023, in the proceedingsAsociaţia Crescătorilor de Vaci ‘Bălţată Românească’ Tip SimmentalvGenetica din Transilvania Cooperativă Agricolă,Agenţia Naţională pentru Zootehnie ‘Professor G.K. Constantinescu’,THE COURT (Sixth Chamber),composed of T. von Danwitz, President of the Chamber, P.G. Xuereb (Rapporteur) and A. Kumin, Judges,Advocate General: J. Richard de la Tour,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– Asociaţia Crescătorilor de Vaci ‘Bălţată Românească’ Tip Simmental, by N.-G. Comşa-Fulga, avocată,– Genetica din Transilvania Cooperativă Agricolă, by A.-A. Arseni, D. Dobrev and L. Dobrinescu, avocaţi,– the Romanian Government, by E. Gane and L. Ghiţă, acting as Agents,– the European Commission, by L. Radu Bouyon, B. Rechena and F. Thiran, 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 Article 4(3)(b), Articles 8, 10 and 13 and point A(4) of Part 1 of Annex I and point B(2)(a) of Part 1 of Annex I to Regulation (EU) 2016/1012 of the European Parliament and of the Council of 8 June 2016 on zootechnical and genealogical conditions for the breeding, trade in and entry into the Union of purebred breeding animals, hybrid breeding pigs and the germinal products thereof and amending Regulation (EU) No 652/2014, Council Directives 89/608/EEC and 90/425/EEC and repealing certain acts in the area of animal breeding (‘Animal Breeding Regulation’) (OJ 2016 L 171, p. 66), read in the light of recitals 21 and 24 of that regulation.
2The request has been made in proceedings between the Asociaţia Crescătorilor de Vaci ‘Bălţată Românească’ Tip Simmental, a breeders’ association for ‘Bălțată Românească’ Simmental cattle (‘the BR Association’), the Agenția Națională pentru Zootehnie ‘Professor G.K. Constantinescu’ (National Zootechnical Agency ‘Professor G.K. Constantinescu’) (‘the Zootechnical Agency’) and the Genetica din Transilvania Cooperativă Agricolă, an agricultural cooperative for ‘Genetics in Transylvania’ (‘the GT’), concerning the granting of recognition to the latter as a breed society in order to carry out a breeding programme for the cattle breed ‘Bălțată Românească’.
Legal context
European Union law
3Recitals 1, 20, 21, 24, 31, 32 and 34 of Regulation 2016/1012 state:(1) The breeding of animals of the bovine, porcine, ovine, caprine and equine species occupies, in economic and social terms, a strategic place in [European] Union agriculture and contributes to the Union’s cultural heritage. This agricultural activity, which contributes to food security in the Union, is a source of income for the agricultural community. The breeding of animals of those species is best promoted by encouraging the use of purebred breeding animals or hybrid breeding pigs of recorded high genetic quality.…(20) Breeding programmes on purebred breeding animals are carried out with the overall aim of improving, in a sustainable manner, the production and non-production traits of animals of a breed or to preserve a breed. Those breeding programmes should cover a sufficiently large number of purebred breeding animals kept by breeders which, through breeding and selection, promote and develop desirable traits in those animals or guarantee the preservation of the breed, in accordance with the objectives that are commonly accepted by the participating breeders. … Breeding animals (purebred or hybrid) participating in a breeding programme are entered in a breeding book or register, including information on their ascendants, and, depending on the breeding objectives set out in the breeding programme, undergo performance testing or any other assessment that results in the recording of data on traits in relation to the objectives of that breeding programme. …(21) The right to be recognised as a breed society or breeding operation which meets the established criteria should be a fundamental principle of the Union law on the breeding of animals and of the internal market. The protection of the economic activity of an existing recognised breed society should not justify the refusal by the competent authority of the recognition of a further breed society for the same breed or violations of the principles governing the internal market. The same applies to the approval of a further breeding programme, or to the approval of the geographical extension of an existing breeding programme, which is carried out on the same breed, or on breeding animals of the same breed that can be recruited from the breeding population of a breed society that is already carrying out a breeding programme on that breed. However, where in a Member State one or more recognised breed societies are already carrying out an approved breeding programme on a given breed, the competent authority of that Member State should, in certain specific cases, be allowed to refuse to approve a further breeding programme for the same breed, even if that breeding programme complies with all the requirements necessary for approval. One reason for refusal could be that the approval of a further breeding programme for the same breed would compromise the preservation of that breed or the genetic diversity within that breed in that Member State. The preservation of that breed might, in particular, be compromised as a result of the fragmentation of the breeding population, possibly leading to higher inbreeding, to increased incidences of observed genetic defects, to a loss in the selection potential or to reduced access of the breeders to purebred breeding animals or the germinal products thereof. Another reason for refusal could be linked to inconsistencies in the defined breed characteristics or in the main objectives of those breeding programmes. Indeed, independently of the aim of the breeding programme, namely the preservation of the breed or the improvement of the breed, the competent authority should be allowed to refuse approval for a further breeding programme in respect of the same breed where differences in the main objectives of the two breeding programmes, or in essential traits of the breed characteristics defined in those breeding programmes, would result in a loss of efficiency in terms of genetic progress in those objectives or in those traits or any correlated traits, or where an exchange of animals between both breeding populations would bear a risk of out-selection or out-breeding of those essential traits in the initial breeding population. Finally, in the case of an endangered breed or an autochthonous breed not commonly found in one or more of the territories of the Union, a competent authority should also be allowed to refuse the approval of a further breeding programme for the same breed on the grounds that that further breeding programme would impede the effective implementation of the existing breeding programme, in particular due to a lack of coordination, or exchange, of genealogical and zootechnical information resulting in a failure to benefit from the common evaluation of data collected on that breed. In the event of a refusal to approve a breeding programme, the competent authority should always provide a reasoned explanation to the applicants and give them the right to appeal against that refusal.…(24) Breeders’ associations, breeding organisations, including breeding organisations which are private undertakings, or public bodies should only be recognised as breed societies when they have breeders participating in their breeding programmes and when they ensure that those breeders have free choice in the selection and breeding of their purebred breeding animals, the right to have the offspring descended from those animals entered in their breeding books and the possibility of owning those animals.…(31) Cross-border cooperation between breed societies and between breeding operations which wish to engage therein should be facilitated, while ensuring free entrepreneurship and the removal of obstacles to the free movement of breeding animals and their germinal products.(32) Since a competent authority might have to approve several breeding programmes carried out by one breed society or breeding operation it has recognised, and since a competent authority might have to approve the extension on its territories of breeding programmes carried out by a breed society or breeding operation recognised in another Member State, the recognition of the breed society or breeding operation should be separated from the approval of its breeding programmes. However, when evaluating an application for recognition as a breed society or breeding operation, the competent authority should also be provided with an application for the approval of at least one breeding programme.…(34) It is necessary to clarify the relationship between breeders and breed societies, in particular to ensure their right to participate in the breeding programme within the geographical territory for which it is approved and, where membership is provided for, to ensure that those breeders have the right to be members. Breed societies should have rules in place to settle disputes with breeders participating in their breeding programmes and to ensure that those breeders are treated equally. They should also set out their own rights and obligations as well as those of breeders participating in their breeding programmes.’
4Article 1 that regulation, entitled ‘Subject matter and scope’, provides in paragraph 1(b):‘This Regulation lays down:…(b) rules for the recognition of breed societies and breeding operations and for the approval of their breeding programmes.’
5Article 2 of that regulation, entitled ‘Definitions’, provides, in paragraphs 5, 8, 9, 12 and 26:‘For the purposes of this Regulation, the following definitions apply:…(5) “breed society” means any breeders’ association, breeding organisation or public body, other than competent authorities, which is recognised by the competent authority of a Member State in accordance with Article 4(3) for the purpose of carrying out a breeding programme on purebred breeding animals entered in the breeding book(s) it maintains or establishes;…(8) “competent authorities” means the authorities of a Member State which are responsible, pursuant to this Regulation, for:(a) the recognition of breed societies and breeding operations and the approval of the breeding programmes they carry out on breeding animals;…(9) “purebred breeding animal” means an animal which is entered or registered and eligible for entry in the main section of a breeding book;…(12) “breeding book” means:(a) any herd-book, flock-book, stud-book, file or data medium which is maintained by a breed society consisting of a main section and, where the breed society so decides, of one or more supplementary sections for animals of the same species that are not eligible for entry in the main section;…(26) “breeding programme” means a set of systematic actions, including recording, selection, breeding and exchange of breeding animals and their germinal products, designed and implemented to preserve or enhance desired phenotypic and/or genotypic characteristics in the target breeding population.’
6Chapter II of that regulation, entitled ‘Recognition of breed societies and breeding operations in Member States and approval of breeding programmes’, includes Articles 4 to 12.
7Article 4 of Regulation 2016/1012, entitled ‘Recognition of breed societies and breeding operations’, is worded as follows:1. In respect of purebred breeding animals, breeders’ associations, breeding organisations or public bodies may apply to the competent authorities for recognition as a breed society.…3.The competent authorities shall evaluate the applications referred to in paragraph 1. They shall recognise as a breed society any applicant referred to in the first subparagraph of paragraph 1, and as a breeding operation any applicant referred to in the second subparagraph of paragraph 1 that complies with the following requirements:(a) it has its head office on the territory of the Member State where the competent authority is located;(b) it demonstrates in its application that it complies with the requirements set out in Part 1 of Annex I for its breeding programmes in respect of which it intends to apply for approval in accordance with Article 8(3) …;(c) its application contains, in respect of each of those intended breeding programmes, a draft version of the breeding programme which is to include the information set out in Part 2 of Annex I …;(d) when submitting its application referred to in paragraph 1 of this Article, it submits an application for approval of at least one of those intended breeding programmes, in accordance with Article 8(2).’
8Under Article 8 of that regulation, entitled ‘Approval of breeding programmes carried out by breed societies and breeding operations’:1. A breed society or a breeding operation shall submit applications for approval of its breeding programmes to the competent authority which has recognised that breed society or breeding operation in accordance with Article 4(3).…3.The competent authority referred to in paragraph 1 shall evaluate those breeding programmes and approve them provided that:(a) they have one or more of the following aims:(i) in the case of purebred breeding animals:– the improvement of the breed,– the preservation of the breed,– ……(b) they describe in detail the selection and breeding objectives;(c) they comply with the requirements set out in Part 2 of Annex I ……5. Where, for at least 24 months, there are no breeders which have their holdings, on which they keep their breeding animals, located on a given part of the geographical territory that are participating in a breeding programme approved in accordance with paragraph 3, the competent authority referred to in paragraph 1 may require the breed society or breeding operation concerned to adjust the geographical territory of its breeding programme so as not to include that given part.’
9Article 10 of that regulation, entitled ‘Derogations from Article 8(3) concerning the approval of breeding programmes’, states:1.By way of derogation from Article 8(3), the competent authority which has recognised a breed society in accordance with Article 4(3) may refuse to approve a breeding programme of that breed society that complies with the requirements set out in Part 2 of Annex I, and additionally in the case of purebred breeding animals of the equine species, in Part 3 of Annex I, on the grounds that that breeding programme would compromise the breeding programme carried out by another breed society for the same breed which has already been approved in that Member State as regards at least one of the following:(a) the essential traits of the breed characteristics or the main objectives of that breeding programme;(b) the preservation of that breed or of the genetic diversity within that breed; or(c) where the aim of that breeding programme is the preservation of that breed, the effective implementation of that breeding programme:(i) in the case of an endangered breed; or(ii) in the case of an autochthonous breed which is not commonly found in one or more of the territories of the Union.2.For the purpose of paragraph 1, the competent authority shall take due account of the following:(a) the number of breeding programmes already approved for that breed in that Member State;(b) the size of the breeding populations covered by those breeding programmes;(c) the possible genetic input from breeding programmes carried out by other breed societies for the same breed in other Member States or by breeding bodies in third countries.’
10Article 13 of that regulation, entitled ‘Rights of breeders participating in breeding programmes approved in accordance with Article 8(3)…’, states:1.Breeders shall have the right to participate in a breeding programme approved in accordance with Article 8(3)… provided that:(a) their breeding animals are kept on holdings located within the geographical territory of that breeding programme;(b) their breeding animals belong, in the case of purebred breeding animals, to the breed … covered by that breeding programme.2.Breeders participating in a breeding programme approved in accordance with Article 8(3) … shall have the right:(a) to have their purebred breeding animals entered in the main section of the breeding book established for the breed by the breed society in accordance with Articles 18 and 20;…3.In addition to the rights laid down in paragraphs 1 and 2, where the rules of a breed society or breeding operation provide for membership, the breeders referred to in paragraph 1 shall also have the right:(a) to become a member of that breed society or breeding operation;(b) to participate in the defining and development of the breeding programme in accordance with the rules of procedure referred to in point B(1)(b) of Part 1 of Annex I.’
11Article 18(2) of Regulation 2016/1012 provides:‘Breed societies shall not refuse the entry in the main section of their breeding books of a purebred breeding animal on the grounds that it has already been entered in the main section of a breeding book of the same breed …’
12Annex I to that regulation, entitled ‘Recognition of breed societies and breeding operations and approval of breeding programmes referred to in Chapter II’, contains three parts.
13Part 1 of that annex, entitled ‘Requirements for the recognition of breed societies and breeding operations referred to in Article 4(3)(b)’, provides:A. Breeders’ associations, breeding organisations, private undertakings operating in closed production systems and public bodies shall:…4. have, in respect of each breeding programme, a sufficiently large population of breeding animals within the geographical territories to be covered by those breeding programmes;…B. In addition to the requirements referred to in point A:1. breeders’ associations, breeding organisations and public bodies shall:(a) have a sufficient number of breeders participating in each of their breeding programmes;(b) have adopted rules of procedure:(i) regulating the settlement of disputes with breeders participating in their breeding programmes;(ii) ensuring equal treatment of breeders participating in their breeding programmes;(iii) setting out the rights and obligations of breeders participating in their breeding programmes and of the breed society or breeding operation;(iv) setting out the rights and obligations of member breeders where membership of breeders is provided for;2. nothing in the rules of procedure referred to in point 1(b) shall prevent the breeders participating in the breeding programmes from:(a) exercising free choice in the selection and breeding of their breeding animals;…’
14Under Part 2 of that annex, entitled ‘Requirements for the approval of breeding programmes carried out by breed societies and breeding operations referred to in Article 8(3) …’:1.The breeding programme referred to in Article 8(3) … shall contain:(a) information on its aim, which shall be the preservation of the breed, the improvement of the breed, line or cross, the creation of a new breed, line or cross, or the reconstruction of a breed, or a combination thereof;…2. The breeding programme shall cover a sufficiently large population of breeding animals and a sufficient number of breeders within the geographical territory where it is carried out or where it is intended that it will be carried out.’
Romanian law
15Legea zootehniei nr.°32/2019 (Zootechnical Law No 32/2019) of 16 January 2019 (Monitorul Oficial al României, Part I, No 53 of 21 January 2019), in the version in force at the time of the facts in the main proceedings, provides in Article 7 thereof:‘The breed societies/breeding operations and the breeders’ associations/organisations shall be recognised by the Ministry of Agriculture and Rural Development, through the competent State zootechnical authority, as partners in the drawing up of policies, strategies, breeding programmes and product policies.’
16Under Article 21 of that law:‘The organisation and conduct of the activity of selecting and breeding animals shall be carried out in accordance with EU legislation and national legislation.’
17Article 24 of that law states:1. The recognition of breed societies, breeding operations and the approval of breeding programmes shall be carried out by the competent State zootechnical authority, in accordance with EU legislation.2.The competent State zootechnical authority shall evaluate and approve the breeding programmes submitted by a breed society/breeding operation provided only in so far as:(a) they have one or more of the following aims:1. the improvement of the breed, line or cross,2. the preservation of the breed/line,…3.The competent State zootechnical authority which has recognised a breed society may refuse to approve a breeding programme of that breed society on the grounds that that breeding programme would compromise a breeding programme carried out by another breed society for the same breed which has already been approved, as regards at least one of the following elements:(a) the essential traits of the breed characteristics or the main objectives of that breeding programme;(b) the preservation of that breed or of the genetic diversity within that breed; or(c) in the case of an endangered breed or in the case of an autochthonous breed which is not commonly found.4.For the purpose of paragraph 3, the competent State zootechnical authority shall take due account of the following criteria:(a) the number of breeding programmes already approved for that breed;(b) the size of the breeding populations covered by those breeding programmes.’
18Hotărârea Guvernului nr.° 1188/2014 privind organizarea și funcționarea Agenției Naționale pentru Zootehnie ‘Professor G.K. Constantinescu’ (Government Decision No 1188/2014 on the organisation and operation of the National Zootechnical Agency ‘Professor G.K. Constantinescu’), of 29 December 2014 (Monitorul Oficial al României, Part I, No 21 of 12 January 2015), in the version in force at the time of the facts in the main proceedings, provided, in Article 1(1) thereof:‘The [zootechnical agency], set up pursuant to Article 8 of [Legea nr.°139/2014 privind unele măsuri pentru reorganizarea Ministerului Agriculturii și Dezvoltării Rurale, precum și a unor structuri aflate în subordinea acestuia (Law No 139/2014 on certain reorganisation measures of the Ministry of Agriculture and Rural Development, and of certain structures subordinate to it), of 15 October 2014 (Monitorul Oficial al României, Part I No 758 of 20 October 2014), as subsequently amended, is a specialised body of the central public administration, with legal personality, financed entirely from the State budget, subject to the Ministry of Agriculture and Rural Development.’
19Article 5 of that government decision stated, in points (a) and (i):‘In accordance with its area of activity, under the conditions laid down by law, the [zootechnical agency] shall:(a) recognise the breed societies and the breeding operations for the purpose of carrying out a breeding programme with purebred breeding animals entered in the breeding book(s) or a breeding programme with hybrid breeding pigs entered in the breeding registers managed or established by it;…(i) approve the breeding programmes with breeding animals implemented by recognised breed societies and breeding operations.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
20By decision of 24 November 2020, the Zootechnical Agency recognised the GT as a breed society, under Article 4(3) of Regulation 2016/1012, with the aim of carrying out a breeding programme with the purebred breeding cattle ‘Bălțată Românească’ (‘the GT breeding programme’). By decision of 2 December 2020 (taken together with the decision of 24 November 2020; ‘the decisions at issue’), that agency approved that programme.
21The BR Association, in its capacity as a breed society recognised by the Zootechnical Agency, whose breeding programme for the same breed of cattle ‘Bălțată Românească’, which had been approved in 2011, was still ongoing, brought an action against the decisions at issue before the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania), which is the referring court.
22In support of its action, that association maintained, in essence, that the GT breeding programme, which covered the same breed of breeding animals, in the same geographical territory, namely the territory of Romania, and which pursued the same objective of improving the breed concerned as the BR Association’s own breeding programme, had potential to compromise its programme in that its approval would have led to the withdrawal of a large number of breeders from that association’s breeding programme and caused significant financial loss.
23The referring court specifies at the outset that, in the present case, according to the finding of an expert’s report issued by the internal department of the Zootechnical Agency, ‘[The GT] breeding programme would jeopardise the breeding programme of the [BR Association] on the ground that the division of the breeding population, which, the smaller it is, leads to the appearance of inbreeding, which has the effect of reducing genetic progress; that the two programmes are not identical, that they are largely carried out in the same geographical territory of Romania and that there are overlaps, but that the existence of a single breeding programme for the same breed is more effective than the coexistence of several such programmes’.
24It also points out that an application for suspension of the operation of the decisions at issue was submitted by the BR Association to the Division for Administrative and Tax Matters of that court and that that application was dismissed by decision of 4 June 2021 on the ground that, contrary to that association’s allegations, first, the procedures for the recognition of a breed society and for approval of its breeding programme(s) was not carried out concurrently, since the second of those procedures was to be carried out, in accordance with Article 8(1) of Regulation 2016/1012, after the first, and, secondly, the GT breeding programme duly satisfied the requirement, laid down in point A(4) of Part 1 of Annex I to that regulation, relating to the existence of a sufficiently large number of breeding animals in the geographical territory covered by that programme, which, in the present case, is established by the fact that the GT had communicated a list of animals to the Zootechnical Agency whose respective breeders had requested to participate in its breeding programme. It is also apparent from the order for reference that the appeal brought by that association against that decision before the Înalta Curte de Casație şi Justiție (High Court of Cassation and Justice, Romania) was dismissed by that court by a judgment of 5 April 2022.
25The referring court points out, however, that, in a case similar to that at issue in the main proceedings, the Division for Administrative and Tax Matters of that court adopted an opposing approach, upholding the applications by which that same association challenged the recognition granted to another association of cattle breeders as a breed society and the approval of the latter’s breeding programme. An appeal before the Înalta Curte de Casație şi Justiție (High Court of Cassation and Justice) is currently pending in that case.
26In the light of the foregoing, the referring court raises the question, first, as to the conditions governing the approval of breed societies. It asks, in particular, whether the provisions of Article 4(3)(b) of Regulation 2016/1012, read in the light of recital 21 of and point A(4) of Part 1 of Annex I to that regulation, must be interpreted as meaning that an entity may be recognised as a breed society if, at the time of the application for recognition, it pursues only the project to involve in its breeding programme, by signing requests or commitments to that effect, breeders who are already participating in another approved breeding programme, conducted by another breed society, or in the sense that recognition can be obtained only if those breeders actually form part of the ‘portfolio’ of the entity applying for recognition on the date of the application for recognition.
27Secondly, the referring court raises the question of the conditions governing the approval of breeding programmes. In that regard, relying on the provisions of Article 13 of Regulation 2016/1012, read in the light of recital 24 of, and point B(2)(a) of Part 1 of Annex I to, that regulation, it asks, in the first place, whether breeders of purebred animals are free to choose to leave a breeding programme already approved in order to participate in another breeding programme which is in the process of being approved. In the event that that freedom exists, it would be necessary to determine to what extent it could possibly be limited by the need, provided for in Article 10(1) of Regulation 2016/1012, read in the light of recital 21 of that regulation, not to compromise a breeding programme already in progress.
28In the second place, that court is uncertain as to the interpretation of ‘may refuse’ used in Article 10(1). It asks, in particular, whether that expression suggests that the competent State authority has a certain discretion for the purposes of approving the breeding programmes, or whether that authority is required to refuse the approval of a new breeding programme if it has potential to compromise an existing programme.
29In the third and last place, the referring court raises the question of the possible coexistence of several breeding programmes for the same breed of breeding animals and the same geographical territory, and the pursuit of similar objectives, relating to the improvement of the breed concerned.
30For those reasons, the Curtea de Apel Brașov (Court of Appeal, Brașov) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Should Article 4(3)(b) of Regulation [2016/1012] read in conjunction with point A(4) of Part 1 of Annex I to that regulation, as well as recital 24 thereof, be interpreted as meaning that a breed society may be recognised even if its intention is merely to attract breeders who are already entered in another approved breeding programme of another society, by signing applications or undertakings to that effect, or is it necessary that, on the date that the application for recognition is submitted, those breeders actually form part of the portfolio of the society requesting recognition?(2) Should Article 13 of Regulation 2016/2012 and point B(2)(a) of Part 1 of Annex I to [that regulation], read in conjunction with recital 24 thereof, be interpreted as meaning that breeders are free to choose the programmes for the improvement of the breed in which to enter their purebred breeding animals and, if so, may that freedom be restricted by the need to avoid prejudicing or compromising a breeding programme in which those breeders are already participating, as a result of those breeders transferring or undertaking to transfer to another breeding programme which is yet to be approved?(3) Should Article 10(1) of Regulation [2016/1012,] read in conjunction with recital 21 thereof, be interpreted as meaning that, when one of the conditions described in points (a) to (c) of Article 10(1) of that regulation is satisfied, the competent authority which has recognised the breed society is obliged to refuse to approve a breeding programme that would compromise another breeding programme as regards the aspects referred to in [that article], or does the use of the expression ‘… may refuse …’ mean that the authority is afforded a margin of discretion in that regard?(4) Should Articles 8 and 10 of Regulation [2016/1012], read in conjunction with recital 21 thereof, be interpreted as meaning that, where a breeding programme whose main objective is the improvement of the breed is already being implemented in a Member State, it is permissible for a new breeding programme to be approved in the same State (the same geographical area) for the same breed, the main objective of which is also the improvement of the breed, as part of which breeding animals participating in the breeding programme already being implemented may be selected?’
Consideration of the questions referred
The first question
31By its first question, the referring court asks, in essence, whether Article 4(3)(b) of Regulation 2016/1012, read in conjunction with Part 1 of Annex I to that regulation and in the light of recital 24 of that regulation, must be interpreted as precluding the granting of recognition as a breed society to an applicant who, in order to establish that it has a sufficiently large population of breeding animals and a sufficient number of breeders, relies on participation undertakings signed by breeders already registered in a breeding programme with another recognised breed society.
Admissibility
32The Romanian Government submits, primarily, that the first question is inadmissible, on the ground, in essence, that an answer to that question is not necessary in order to resolve the dispute in the main proceedings. According to that government, the referring court is required only to carry out factual checks and, in addition, has the relevant information in order to assess compliance with the requirements laid down by Regulation 2016/1012 as regards the number of breeders and animals required for the recognition of a breed society. Furthermore, that question is redundant in relation to the third and fourth questions referred.
33In that regard, it should be recalled that, in accordance with settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation or the validity of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 18 April 2024, Girelli Alcool, C‑509/22, EU:C:2024:341, paragraph 32 and the case-law cited).
34It follows that questions relating to EU law 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, or the determination of validity, of a rule 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 18 April 2024, Girelli Alcool, C‑509/22, EU:C:2024:341, paragraph 33 and the case-law cited).
35In the present case, it should be noted that the first question concerns the interpretation of Regulation 2016/1012 and seeks to clarify the evidential requirements laid down for the purpose of granting recognition as a breed society.
36In that regard, the interpretation of EU law sought appears to have a connection with the subject matter of the dispute in the main proceedings, which concerns the recognition of the GT as a breed society under that regulation. The question referred seeks specifically to clarify the requirements set out in that regulation. In addition, it is in no way apparent from the file submitted to the Court that the problem is hypothetical. Furthermore, the request for a preliminary ruling contains the factual and legal material necessary to enable the Court to answer the question submitted. Finally, the fact that that same question is redundant in relation to other questions referred in the same request for a preliminary ruling has no bearing on its admissibility. In those circumstances, the presumption of relevance recalled in paragraph 34 of the present judgment cannot be called into question.
37It follows that the first question is admissible.
Substance
38It should be recalled that, according to settled case-law, the interpretation of a provision of EU law requires account to be taken not only of its wording, but also of the context in which it occurs, as well as the objectives and purpose pursued by the act of which it forms part. The legislative history of a provision of EU law may also reveal elements that are relevant to its interpretation (judgment of 11 January 2024, Inditex, C‑361/22, EU:C:2024:17, paragraph 43 and the case-law cited).
39Under the second sentence of Article 4(3) of Regulation 2016/1012, the competent authorities are to recognise as a breed society any applicants provided that they comply the requirements laid down in points (a) to (d) of that provision.
40Article 4(3)(b) of that regulation provides that the application for approval must demonstrate that the applicant complies with the requirements set out in Part 1 of Annex I to that regulation for its breeding programmes for which the applicant intends to apply for approval.
41In accordance with point A(4) of Part 1 of Annex I to that regulation, the applicant must have a sufficiently large population of breeding animals in the geographical territories to be covered by each breeding programme. In addition, under point B(1)(a) of Part 1 of Annex I to Regulation 2016/1012, the applicant must have a sufficient number of breeders participating in each of their breeding programmes. It should be recalled in that context that it is for the national court to determine whether or not those requirements are met in each particular case.
42The wording of Article 4(3) of Regulation 2016/1012 therefore does not preclude the evidence of the availability of a sufficiently large breeding population and a sufficient number of breeders from being based on participation undertakings signed by breeders already registered in a breeding programme with another recognised breed society, and who have not therefore formally joined the applicant society as members.
43As regards the context of that provision, it should be noted that, according to recital 24 of Regulation 2016/1012, applicants should only be recognised as breed societies ‘when they have breeders participating in their breeding programmes’. However, it is apparent from Article 8(5) of that regulation that it is possible to carry out a breeding programme approved by the competent national authority for at least 24 months without any animal participating in it.
44In addition, it is also apparent from recital 34, Article 13(3) and point B(1)(b)(iv) of Part 1 of Annex I to that regulation that the participation of breeders does not necessarily require their membership of a breed society, so that formally belonging to such a society cannot be decisive for the purposes of assessing whether such a society complies with the conditions for recognition laid down by that regulation.
45Finally, it should also be noted that it is apparent from recital 32 of Regulation 2016/1012 that the recognition of the breed society should be separated from the approval of its breeding programmes.
46As regards the objectives pursued by Regulation 2016/1012, it should be noted that, in the light of recital 1 thereof, the regulation seeks to promote, inter alia, the breeding of bovine animals by encouraging, to that end, the use of purebred breeding animals. In addition, in accordance with the first and second sentences of recital 21 of that regulation, the right to be recognised as a breed society or breeding operation which meets the established criteria should be a fundamental principle of EU law on the breeding of animals and on the internal market. The protection of the economic activity of an existing recognised breed society should not justify the refusal by the competent authority to recognise a further breed society for the same breed nor should it justify infringements of the principles governing the internal market. It is also apparent from recital 31 of that regulation that it seeks to ensure free entrepreneurship and the removal of obstacles to the free movement of breeding animals and their germinal products.
47The pursuit of the objectives of encouraging breeding and developing the marketing of bovine animals in intra-Community trade thus presupposes that there exists, in the various Member States, a sufficient number of breed societies. In that context, Regulation 2016/1012 favours the recognition of new breed societies (see, by analogy, judgment of 11 November 2004, Zuchtverband für Ponys, C‑216/02, EU:C:2004:703, paragraphs 32 and 33).
48Thus, if an application for recognition could be refused on the sole ground that it is based on participation undertakings signed by breeders already registered in a breeding programme for the same breed with another existing breed society, the achievement of the objectives referred to in recitals 1, 21 and 31 of Regulation 2016/1012 could be compromised.
49In the light of the foregoing considerations, the answer to the first question is that Article 4(3)(b) of Regulation 2016/1012, read in conjunction with Part 1 of Annex I to that regulation and in the light of recital 24 of that regulation, must be interpreted as not precluding the granting of recognition as a breed society to an applicant who, in order to establish that it has a sufficiently large population of breeding animals and a sufficient number of breeders, relies on participation undertakings signed by breeders already registered in a breeding programme with another recognised breed society.
The second to fourth questions
50By its second to fourth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 10 of Regulation 2016/1012, read in conjunction with Article 13 and with point B(2)(a) of Part 1 of Annex I to that regulation, and in the light of recitals 21 and 24 of that regulation, must be interpreted as meaning that, first, where a breeding programme, with the principal objective of the improvement of a particular breed of animals, is ongoing in a Member State, the competent authority of that State may approve a new breeding programme submitted by another breed society for the same breed of animals, relating to the same geographical territory, which pursues the same objective, and under which breeding animals have been selected from the breeding population of the already ongoing breeding programme, and, secondly, where that approval has potential to compromise one or more of the elements referred to in points (a) to (c) of Article 10(1) of Regulation 2016/1012, that authority has the obligation, and not the option, to refuse the approval of the new breeding programme.
Admissibility
51The Romanian government submits that the second question is inadmissible to the extent that a response to that question is not necessary to the outcome of the dispute in the main proceedings and that that question is redundant in relation to the third and fourth questions.
52For the same reasons as those set out in paragraph 36 of the present judgment, it must be held that the presumption of relevance of the second question cannot be called into question. That question is therefore admissible.
Substance
53It should be noted, in the first place, that although, under Article 8(3) of Regulation 2016/1012, the competent authority is to approve the breeding programmes submitted to it, provided that the conditions set out in points (a) to (c) of that paragraph are met, Article 10 of that regulation nevertheless provides for a derogation in that regard, by providing, in paragraph 1, that the competent authority which has recognised a breed society may refuse to approve a breeding programme for that breed society on the ground that that programme would compromise a breeding programme carried out by another breed society for the same breed and which has already been approved in the Member State in question, as regards at least one of the elements referred to in points (a) to (c) of Article 10(1).
54Article 10(2) of Regulation 2016/1012 lists the criteria to be taken into account by that authority in order to assess the existence of such a risk, including those relating, first, to the number of breeding programmes already approved for the same breed in the Member State concerned and, second, to the size of the breeding populations concerned by those breeding programmes.
55In the second place, however, it should be noted that recital 21 of Regulation 2016/1012 expressly provides for the possibility of approving a ‘further breeding programme’ relating to the same breed of animals, covering the same geographical territory and pursuing the same objective as those of an already existing breeding programme. It is also apparent from that recital that the EU legislature intended to allow such a further programme to be envisaged with breeding animals that ‘can be recruited from the breeding population of a breed society that is already carrying out a breeding programme on [the same] breed’.
56In that context, Article 18(2) of that regulation states that ‘breed societies shall not refuse the entry in the main section of their breeding books of a purebred breeding animal on the grounds that it has already been entered in the main section of a breeding book of the same breed’.
57Furthermore, it is unequivocally clear from Article 13(1) of that regulation that breeders have the right to participate in an approved breeding programme, provided that they fulfil the conditions laid down in points (a) and (b) of that provision.
58In the third place, it must be borne in mind that Article 10(1) of Regulation 2016/1012 constitutes an exception to the general rule referred to in Article 8(3) of that regulation that the competent authority must approve breeding programmes submitted to it, provided that they comply with the conditions set out in points (a) to (c) of that provision. According to the Court’s settled case-law, exceptions are to be interpreted strictly so that general rules are not negated (judgment of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 120 and the case-law cited).
59In addition, Article 10(1) of that regulation uses the expression ‘may refuse’. Moreover, recital 21 of that regulation frames the refusal to approve a new breeding programme in restrictive terms, since, according to its wording, the competent authority of a Member State ‘should, in certain specific cases, be allowed to refuse to approve a further breeding programme’.
60It follows that Regulation 2016/1012 confers on the competent authorities of the Member States a discretion allowing them to refuse to approve a new breeding programme, even if it complies with the conditions laid down in Annex I to that regulation, where such a programme risks compromising an existing breeding programme as regards one or more of the elements exhaustively listed in points (a) to (c) of Article 10(1), which it is for the referring court to ascertain. Other than in those circumstances, in accordance with Article 8(3) of Regulation 2016/1012, the competent authorities are required to approve the breeding programmes submitted to them, provided that they comply with the conditions set out in points (a) to (c) of Article 8(3).
61In the light of the foregoing considerations, the answer to the second to fourth questions is that Article 10 of Regulation 2016/1012, read in conjunction with Article 13 and with point B(2)(a) of Part 1 of Annex I to that regulation and in the light of recitals 21 and 24 of that regulation, must be interpreted as meaning that, first, where a breeding programme, with the principal objective of the improvement of a particular breed of animals, is ongoing in a Member State, the competent authority of that State may approve a new breeding programme submitted by another breed society for the same breed of animals, relating to the same geographical territory, with the same objective, and under which breeding animals have been selected from the breeding population of the already ongoing breeding programme, and, secondly, where that approval has potential to compromise one or more of the elements referred to in points (a) to (c) of Article 10(1) of Regulation 2016/1012, that authority has the option to refuse to approve the new breeding programme.
Costs
62Since 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 (Sixth Chamber) hereby rules: 1. Article 4(3)(b) of Regulation (EU) 2016/1012 of the European Parliament and of the Council of 8 June 2016 on zootechnical and genealogical conditions for the breeding, trade in and entry into the Union of purebred breeding animals, hybrid breeding pigs and the germinal products thereof and amending Regulation (EU) No 652/2014, Council Directives 89/608/EEC and 90/425/EEC and repealing certain acts in the area of animal breeding (‘Animal Breeding Regulation’), read in the light of recitals 21 and 24 of that regulation,must be interpreted as not precluding the granting of recognition as a breed society to an applicant who, in order to establish that it has a sufficiently large population of breeding animals and a sufficient number of breeders, relies on participation undertakings signed by breeders already registered in a breeding programme with another recognised breed society.2. Article 10 of Regulation 2016/1012, read in conjunction with Article 13 and with point B(2)(a) of Part 1 of Annex I to that regulation and read in light of recitals 21 and 24 of that regulation,must be interpreted as meaning that first, where a breeding programme, with the principal objective of the improvement of a particular breed of animals, is ongoing in a Member State, the competent authority of that State may approve a new breeding programme submitted by another breed society for the same breed of animals, relating to the same geographical territory, with the same objective, and under which breeding animals have been selected from the breeding population of the already ongoing breeding programme, and, secondly, where that approval has potential to compromise one or more of the elements referred to in points (a) to (c) of Article 10(1) of Regulation 2016/1012, that authority has the option to refuse to approve the new breeding programme.
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