JUDGMENT OF THE COURT (Fourth Chamber)

29 January 2020 ( *1 )

(Reference for a preliminary ruling — Agriculture — Protection of geographical indications and designations of origin for agricultural products and foodstuffs — Protected designation of origin ‘Comté’ — Minor amendment to a product specification — Action before national courts contesting an application for an amendment — Case-law of the national courts according to which the action becomes devoid of purpose when the European Commission has approved the amendment — Effective judicial protection — Obligation to rule on the action)

In Case C‑785/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, France), made by decision of 14 November 2018, received at the Court on 14 December 2018, in the proceedings

GAEC Jeanningros

v

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

Ministre de l’Agriculture et de l’Alimentation,

Ministre de l’Économie et des Finances,

intervening party:

Comité interprofessionnel de gestion du Comté,

THE COURT (Fourth Chamber),

composed of M. Vilaras, President of the Chamber, S. Rodin (Rapporteur), D. Šváby, K. Jürimäe and N. Piçarra, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–

the French Government, by D. Colas, A.-L. Desjonquères and C. Mosser, acting as Agents,

–

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

after hearing the Opinion of the Advocate General at the sitting on 26 September 2019,

gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 53 of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs ( OJ 2012 L 343, p. 1 ), Article 6 of Commission Delegated Regulation (EU) No 664/2014 of 18 December 2013 supplementing Regulation (EU) No 1151/2012 of the European Parliament and of the Council with regard to the establishment of the Union symbols for protected designations of origin, protected geographical indications and traditional specialities guaranteed and with regard to certain rules on sourcing, certain procedural rules and certain additional transitional rules ( OJ 2014 L 179, p. 17 ) and Article 10 of Commission Implementing Regulation (EU) No 668/2014 of 13 June 2014 laying down rules for the application of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs ( OJ 2014 L 179, p. 36 ), read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2The request has been made in proceedings between GAEC Jeanningros, an agricultural cooperative and the applicant in the main proceedings, and the Institut national de l’origine et de la qualité (National Institute for Origin and Quality; ‘the INAO’, France), the ministre de l’Agriculture et de l’Alimentation (Minister for Agriculture and Food, France) and the ministre de l’Économie et des Finances (Minister for Economic Affairs and Finance, France), the defendants in the main proceedings, concerning the amendment of the product specification for the protected designation of origin (PDO) ‘Comté’.

Legal framework

3Recital 58 of Regulation No 1151/2012 provides:

‘To ensure that registered names of designations of origin and geographical indications and traditional specialities guaranteed meet the conditions laid down by this Regulation, applications should be examined by the national authorities of the Member State concerned, in compliance with minimum common provisions, including a national opposition procedure. The Commission should subsequently scrutinise applications to ensure that there are no manifest errors and that Union law and the interests of stakeholders outside the Member State of application have been taken into account.’

4Under the heading ‘Product specification’, Article 7 of that regulation states, in paragraph 1 thereof:

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

(a)

the name to be protected as a designation of origin or geographical indication, as it is used, whether in trade or in common language, and only in the languages which are or were historically used to describe the specific product in the defined geographical area;

(b)

a description of the product, including the raw materials, if appropriate, as well as the principal physical, chemical, microbiological or organoleptic characteristics of the product;

(c)

the definition of the geographical area delimited with regard to the link referred to in point (f)(i) or (ii) of this paragraph, and, where appropriate, details indicating compliance with the requirements of Article 5(3);

(d)

evidence that the product originates in the defined geographical area referred to in Article 5(1) or (2);

(e)

a description of the method of obtaining the product and, where appropriate, the authentic and unvarying local methods as well as information concerning packaging, if the applicant group so determines and gives sufficient product-specific justification as to why the packaging must take place in the defined geographical area to safeguard quality, to ensure the origin or to ensure control, taking into account Union law, in particular that on the free movement of goods and the free provision of services;

(f)

details establishing the following:

(i)

the link between the quality or characteristics of the product and the geographical environment referred to in Article 5(1); or

(ii)

where appropriate, the link between a given quality, the reputation or other characteristic of the product and the geographical origin referred to in Article 5(2);

(g)

the name and address of the authorities or, if available, the name and address of bodies verifying compliance with the provisions of the product specification pursuant to Article 37 and their specific tasks;

(h)

any specific labelling rule for the product in question.’

5Under the heading ‘Application for registration of names’, Article 49 provides, in paragraphs 2 to 4 thereof:

‘2. …

The Member State shall scrutinise the application by appropriate means in order to check that it is justified and meets the conditions of the respective scheme.

3. As part of the scrutiny referred to in the second subparagraph of paragraph 2 of this Article, the Member State shall initiate a national opposition procedure that ensures adequate publication of the application and that provides for a reasonable period within which any natural or legal person having a legitimate interest and established or resident on its territory may lodge an opposition to the application.

…

4. If, after assessment of any opposition received, the Member State considers that the requirements of this Regulation are met, it may take a favourable decision and lodge an application dossier with the Commission. It shall in such case inform the Commission of admissible oppositions received from a natural or legal person that have legally marketed the products in question, using the names concerned continuously for at least five years preceding the date of the publication referred to in paragraph 3.

The Member State shall ensure that its favourable decision is made public and that any natural or legal person having a legitimate interest has an opportunity to appeal.’

6Article 50(1) of the regulation provides as follows:

‘The Commission shall scrutinise by appropriate means any application that it receives pursuant to Article 49, in order to check that it is justified and that it meets the conditions of the respective scheme. …’

7Under the heading ‘Amendment to a product specification’, Article 53 of Regulation No 1151/2012 provides, in paragraphs 1 and 2 thereof:

‘1. A group having a legitimate interest may apply for approval of an amendment to a product specification.

Applications shall describe and give reasons for the amendments requested.

2. Where the amendment involves one or more amendments to the specification that are not minor, the amendment application shall follow the procedure laid down in Articles 49 to 52.

However, if the proposed amendments are minor, the Commission shall approve or reject the application. In the event of the approval of amendments implying a modification of the elements referred to in Article 50(2), the Commission shall publish those elements in the Official Journal of the European Union .

For an amendment to be regarded as minor in the case of the quality scheme described in Title II, it shall not:

(a)

relate to the essential characteristics of the product;

(b)

alter the link referred to in point (f)(i) or (ii) of Article 7(1);

(c)

include a change to the name, or to any part of the name of the product;

(d)

affect the defined geographical area; or

(e)

represent an increase in restrictions on trade in the product or its raw materials.

…’

8Article 6 of Regulation No 664/2014, entitled ‘Amendments to a product specification’, provides, in paragraphs 1 and 2 thereof:

‘1. The application for an amendment to a product specification as referred to in Article 53(1) of Regulation [No 1151/2012] which is not minor shall contain an exhaustive description and the specific reasons for each amendment. The description shall compare in detail, for each amendment, the original product specification and, where relevant, the original single document with the amended version proposed.

That application shall be self-sufficient. It shall contain all amendments to the product specification and, where relevant, to the single document for which approval is sought.

…

2. Applications for a minor amendment to a product specification concerning protected designations of origin or protected geographical indications shall be submitted to the authorities of the Member State the geographical area of the designation or indication relates to. … If the Member State considers that the requirements of Regulation [No 1151/2012] and of the provisions adopted pursuant thereto are met, it may lodge a minor amendment application dossier with the Commission.

…

The application for a minor amendment shall only propose minor amendments in the meaning of Article 53(2) of Regulation [No 1151/2012]. It shall describe those minor amendments, provide a summary of the reason an amendment is required and show that the proposed amendments qualify as minor in accordance with Article 53(2) of Regulation [No 1151/2012]. It shall compare, for each amendment, the original product specification and, where relevant, the original single document with the amended version proposed. The application shall be self-sufficient and shall contain all amendments to the product specification and, where relevant, to the single document for which approval is sought.

Minor amendments referred to in the second subparagraph of Article 53(2) of Regulation [No 1151/2012] shall be deemed approved if the Commission does not inform the applicant otherwise within three months from the reception of the application.

An application for a minor amendment that does not comply with the second subparagraph of this paragraph shall not be admissible. Tacit approval referred to in the third subparagraph of this paragraph shall not apply to such applications. The Commission shall inform the applicant if the application is deemed inadmissible within three months from the reception of the application.

The Commission shall make public the approved minor amendment to a product specification not implying a modification of the elements referred to in Article 50(2) of Regulation [No 1151/2012].’

9Article 10 of Implementing Regulation No 668/2014, entitled ‘Procedural requirements for amendments to a product specification’, states, in paragraphs 1 and 2 thereof:

‘1. Applications for approval of an amendment to the product specification for protected designations of origin and protected geographical indications which is not minor shall be drawn up in accordance with the form set out in Annex V. Those applications shall be completed in accordance with the requirements laid down in Article 8 of Regulation [No 1151/2012]. The amended single document shall be drawn up in accordance with the form set out in Annex I to this Regulation. The reference to the publication of the product specification in the amended single document shall lead to the updated version of the product specification proposed.

…

2. Applications for approval of a minor amendment referred to in the second subparagraph of Article 53(2) of Regulation [No 1151/2012] shall be drawn up in accordance with the form set out in Annex VII to this Regulation.

Applications for approval of a minor amendment concerning protected designations of origin or protected geographical indications shall be accompanied by the updated single document, if amended, which shall be drawn up in accordance with the form set out in Annex I. The reference to the publication of the product specification in the amended single document shall lead to the updated version of the product specification proposed.

For applications originating in the Union, Member States shall include a declaration that they consider that the application meets the conditions of Regulation [No 1151/2012] and of the provisions adopted pursuant thereto and the publication reference of the updated product specification. For applications originating in third countries, the group concerned or the third country’s authorities shall enclose the updated product specification. Applications for a minor amendment in cases referred to in the fifth subparagraph of Article 6(2) of Delegated Regulation [No 664/2014] shall include the reference to the publication of the updated product specification, for applications originating in Member States, and the updated product specification, for applications originating in third countries.

…’

10An application for a minor amendment to the product specification for the ‘Comté’ PDO was approved by a decision of the Commission on 1 June 2018 ( OJ 2018 C 187, p. 7 ).

11Under sub-chapter 5.1.18 of the product specification for the ‘Comté’ PDO:

‘Milking must take place twice a day, at regular times in the morning and evening, and therefore self-service milking is not possible. The use of robotic milkers is prohibited.

…’

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

12On 8 September 2017, the Minister for Agriculture and Food and the Minister for Economic Affairs and Finance issued a decree approving the product specification for the ‘Comté’ PDO, as amended further to a proposal put forward by the INAO, with a view to submitting that product specification to the Commission for approval, in accordance with the procedure laid down in Article 53 of Regulation No 1151/2012.

13The purpose of the amendment of that product specification — which was deemed to be minor — was, by way of an addition made to sub-chapter 5.1.18 thereof, to prohibit the use of robotic milkers in the production of milk to be used in the manufacture of Comté.

14By an action brought on 16 November 2017 before the Conseil d’État (Council of State, France), GAEC Jeanningros sought the annulment of the decree of 8 September 2017, in so far as it approves that prohibition.

15While those proceedings were still pending, by decision published on 1 June 2018 ( OJ 2018 C 187, p. 7 ), the Commission approved, on the basis of the third subparagraph of Article 6(2) of Delegated Regulation No 664/2014, the application for a minor amendment to the product specification for the ‘Comté’ PDO at issue in the main proceedings, in accordance with the second subparagraph of Article 53(2) of Regulation No 1151/2012.

16In that context, the referring court asks whether the approval given by the Commission to an application for a minor amendment to the product specification for a PDO, in accordance with the second subparagraph of Article 53(2) of Regulation No 1151/2012, may result in the action, brought before it against the measure by which the competent national authorities submitted the new product specification containing the minor amendment to the Commission for approval, being rendered devoid of purpose.

17In that connection, the referring court notes that that interpretation — which is clear from its own settled case-law — means, however, that no ruling would be given on the lawfulness of the product specification in question.

18The referring court entertains doubts, nevertheless, as to the compatibility of its own case-law with EU law, particularly Article 47 of the Charter, bearing in mind the impact that annulment of a decision made by national authorities concerning an application for an amendment to the product specification for a PDO may have on the validity of the registration thereof by the Commission.

19In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Must Article 53 of [Regulation No 1151/2012], Article 6 of [Delegated Regulation No 664/2014] and Article 10 of [Implementing Regulation No 668/2014], in conjunction with Article 47 of the [Charter], be interpreted as meaning that, in the specific case where the … Commission has granted the application by the national authorities of a Member State seeking to have the specification of a name amended and to secure registration of the [PDO], although that application is still the subject of an action pending before the national courts of that State, those courts may decide that there is no longer any need to adjudicate on the dispute, or, in view of the effects attached to a possible annulment of the contested measure on the validity of the registration by the … Commission, must those courts rule on the lawfulness of that measure adopted by the national authorities?’

Consideration of the question referred

20By its question, the referring court is asking, in essence, whether Article 53(2) of Regulation No 1151/2012, Article 6 of Delegated Regulation No 664/2014 and Article 10 of Implementing Regulation No 668/2014, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that, when the Commission has granted an application made by the authorities of a Member State seeking a minor amendment to the product specification for a PDO, a national court hearing an action concerning the lawfulness of the decision made by those authorities on that application with a view to its submission to the Commission, in accordance with Article 53(2) of Regulation No 1151/2012, can decide that there is no longer any need to adjudicate on the dispute before it.

21From the outset, it should be noted that a product specification, on the basis of which a PDO is registered in accordance with the procedure laid down to that end in Articles 49 to 52 of Regulation No 1151/2012, can be amended in compliance with the requirements under Article 53 of that regulation. Article 53(2) makes a distinction between amendments ‘which are not minor’ — to which the procedure for registering PDOs laid down in Articles 49 to 52 of that regulation applies — and ‘minor’ amendments, which are defined in the second subparagraph of Article 53(2) of the regulation and are subject to the simplified procedure laid down therein.

22In the present case, it is common ground that the decision at issue relates to an application for a minor amendment to a product specification, within the meaning of the latter provision.

23In assessing the impact of the Commission’s approval of such an amendment on the action seeking annulment of the decision made by the national authorities in respect of that amendment, which is pending before a national court, it should be borne in mind that Regulation No 1151/2012 establishes a division of powers between the Member State concerned and the Commission (see, by analogy, judgment of 6 December 2001, Carl Kühne and Others, C‑269/99 , EU:C:2001:659 , paragraph 50 ).

24The Court has held that Council Regulation (EEC) No 2018/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs ( OJ 1992 L 208, p. 1 ) — which laid down a registration procedure corresponding, in essence, to the registration procedure set out in Articles 49 to 52 of Regulation No 1151/2012 — created a system of division of powers, in the sense that, in particular, the decision to register a name as a PDO could be made by the Commission only if the Member State concerned had submitted to it an application for that purpose, and that such an application could be made only if that Member State had checked that the application was justified. That system of division of powers is attributable particularly to the fact that registration assumes that it has been verified that a certain number of conditions have been met, which requires, to a large extent, detailed knowledge of matters particular to that Member State, which the competent authorities thereof are best placed to check (see, by analogy, judgments of 6 December 2001, Carl Kühne and Others, C‑269/99 , EU:C:2001:659 , paragraph 53 , and of 2 July 2009, Bavaria and Bavaria Italia, C‑343/07 , EU:C:2009:415 , paragraph 66 ).

25Furthermore, taking into account the decision-making power which thus belongs to national authorities under that system of division of powers, it is for national courts alone to rule on the lawfulness of measures adopted by those authorities — such as measures relating to the application to register a name — which constitute a necessary step in the procedure for adopting an EU act, since the EU institutions have, with regard to those measures, only limited, if any, discretion, whereas the measures adopted by those institutions — such as registration decisions — are subject to judicial review by the Court (see, by analogy, judgments of 6 December 2001, Carl Kühne and Others, C‑269/99 , EU:C:2001:659 , paragraphs 57 and 58 , and of 2 July 2009, Bavaria and Bavaria Italia, C‑343/07 , EU:C:2009:415 , paragraphs 70 and 71 ).

26It follows that it is for national courts to rule on any irregularity that may vitiate a national act, such as a measure relating to an application to register a name, making a reference to the Court for a preliminary ruling where appropriate, on the same terms as those on which they review any definitive act adopted by the same national authority which is capable of adversely affecting third parties (see, to that effect, judgments of 3 December 1992, Oleificio Borelli v Commission, C‑97/91 , EU:C:1992:491 , paragraphs 11 to 13 ; of 6 December 2001, Carl Kühne and Others, C‑269/99 , EU:C:2001:659 , paragraph 58 ; and of 2 July 2009, Bavaria and Bavaria Italia, C‑343/07 , EU:C:2009:415 , paragraph 57 ).

27The EU Courts do not in fact have jurisdiction, in actions brought under Article 263 TFEU, to rule on the lawfulness of measures adopted by national authorities. That position cannot be altered by the fact that the measure in question forms part of a Union decision-making procedure (see, by analogy, judgment of 3 December 1992, Oleificio Borelli v Commission, C‑97/91 , EU:C:1992:491 , paragraphs 9 and 10 ).

28As the Advocate General notes in points 51 to 59 of his Opinion, that case-law, which is associated with the procedure for the registration of a PDO, can be transposed to procedures for amendments that are either minor or not minor, as described in paragraph 21 of the present judgment.

29In that connection, as regards applications for amendments to a product specification for a PDO which are not minor, it has been noted in the aforementioned paragraph 21 that, by virtue of the reference made in the first subparagraph of Article 53(2) of Regulation No 1151/2012, those applications are subject to the same procedure as that applicable to the registration of a PDO.

30As regards applications for minor amendments, such as that at issue in the main proceedings, which come within the scope of the second subparagraph of Article 53(2) of that regulation, these are subject, by virtue of the provisions of Article 6(2) of Delegated Regulation No 664/2014 and Article 10(2) of Implementing Regulation No 668/2014, to a procedure that is simplified but, essentially, similar to the aforementioned registration procedure, in that it also creates a system of division of powers between the authorities of the Member State concerned and the Commission as regards (i) checking that the application for an amendment complies with the requirements arising from those regulations and Regulation No 1151/2012, and (ii) approving that application.

31It follows from the foregoing that, in accordance with the case-law cited in paragraph 26 of the present judgment, it is for national courts to rule on any irregularity that may vitiate a national measure relating to an application for a minor amendment to a product specification for a PDO, such as the decree of 8 September 2017 at issue in the main proceedings.

34It is therefore in the light of that principle that, in the present case, it must be determined whether a national court hearing an action against a measure adopted by national authorities concerning an application for a minor amendment to a product specification for a PDO within the meaning of the second subparagraph of Article 53(2) of Regulation No 1151/2012, is entitled to find that there is no longer any need to adjudicate on the dispute before it, on the ground that the Commission has granted that application for an amendment.

35In that connection, as the Advocate General notes in point 58 of his Opinion, decisions by national authorities on minor amendments fall outside the scope of the exclusive jurisdiction of the EU Courts, in so far as these are autonomous acts which are necessary to enable the Commission subsequently to give a decision thereon. In the light of the very limited discretion that the Commission enjoys in that regard, it is the decisions of national authorities that actually take into account all of the factors justifying the approval of such amendments to product specifications.

36It follows that the decision by which the Commission approves such an application for an amendment is based on the decision made by the authorities of the Member State concerned in respect of that application and, accordingly, is necessarily influenced by the latter decision, particularly since the discretion conferred on the Commission at the time of that approval is, in essence, as is clear from recital 58 of Regulation No 1151/2012, limited to checking that the application contains the information required and does not appear to be vitiated by manifest errors (see, by analogy, judgments of 6 December 2001, Carl Kühne and Others, C‑269/99 , EU:C:2001:659 , paragraph 54 , and of 2 July 2009, Bavaria and Bavaria Italia, C‑343/07 , EU:C:2009:415 , paragraph 67 ).

37In those circumstances, the finding by a national court hearing an action concerning the lawfulness of a decision made by the national authorities relating to an application for a minor amendment to a product specification for a PDO that there is no longer any need to adjudicate on that action, on the ground that the Commission has approved that application, would compromise the effective judicial protection that that court is required to provide in respect of such applications for amendments.

38That is the case a fortiori as the procedure relating to an application for a minor amendment to the product specification, set out in the second subparagraph of Article 53(2) of Regulation No 1151/2012, does not provide for the possibility of lodging an opposition to the proposed amendment, unlike the procedure set out in the provisions regarding an amendment to the product specification which is not minor. In those circumstances, the action concerning the lawfulness of a decision made by national authorities approving that application for a minor amendment is the only opportunity for natural or legal persons affected by such a decision to oppose it.

39Any possible annulment of such a decision taken by the national authorities would deprive the Commission’s decision of any basis and, consequently, entail a review of the case by the Commission (see, to that effect, judgment of 26 October 2017, Global Steel Wire and Others v Commission, C‑454/16 P to C‑456/16 P and C‑458/16 P , not published, EU:C:2017:818 , paragraph 31 and the case-law cited).

40In the light of the foregoing, the answer to the question referred is that Article 53(2) of Regulation No 1151/2012, Article 6 of Delegated Regulation No 664/2014 and Article 10 of Implementing Regulation No 668/2014, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that, when the Commission has granted an application made by the authorities of a Member State seeking a minor amendment to a product specification for a PDO, the national court hearing an action concerning the lawfulness of the decision made by those authorities on that application with a view to submitting it to the Commission, in accordance with Article 53(2) of Regulation No 1151/2012, cannot, on that ground alone, decide that there is no longer any need to adjudicate on the dispute pending before it.

Costs

41Since 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.

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

Article 53(2) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs, Article 6 of Commission Delegated Regulation (EU) No 664/2014 of 18 December 2013 supplementing Regulation No 1151/2012 of the European Parliament and of the Council with regard to the establishment of the Union symbols for protected designations of origin, protected geographical indications and traditional specialities guaranteed and with regard to certain rules on sourcing, certain procedural rules and certain additional transitional rules, and Article 10 of Commission Implementing Regulation (EU) No 668/2014 of 13 June 2014 laying down rules for the application of Regulation No 1151/2012 of the European Parliament and of the Council, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, when the European Commission has granted an application made by the authorities of a Member State seeking a minor amendment to a product specification for a protected designation of origin, the national courts hearing an action concerning the lawfulness of the decision made by those authorities on that application with a view to submitting it to the Commission, in accordance with Article 53(2) of Regulation No 1151/2012, cannot, on that ground alone, decide that there is no longer any need to adjudicate on the dispute pending before them.

[Signatures]

( *1 ) Language of the case: French.