Harmonised European Union legislation that imposes an obligation to indicate the country of origin or place of provenance of foods does not preclude Member States from adopting additional national legislation providing for additional mandatory particulars regarding the origin or provenance. However, certain conditions must be met. In particular, there must be an objectively proven link between certain qualities of the food and its origin or provenance.
The mandatory indication of the country of origin or place of provenance of foods is provided for in Article 9(1)(i) in conjunction with Article 26 of the Food Information Regulation (FIR). The indications are mandatory where failure to include an indication might mislead the consumer and for certain types of meat (Article 26(2) FIR). A French decree also requires indicating the French, European or non-European origin of milk and milk used as an ingredient in pre-packed foods.
The company Groupe Lactalis brought an action seeking the annulment of that decree before the Conseil d'État (Council of State, France). In a preliminary ruling, the CJEU has now ruled that, despite the harmonisation, additional national provisions for milk and milk used as an ingredient that go beyond the Union’s rules are in principle permissible under Article 39 FIR.
However, on the one hand, the adoption of such national measures must be justified on one or several of the following grounds relating to: the protection of public health, the protection of consumers, the prevention of fraud, the protection of industrial and commercial property rights, indications of provenance and registered designations of origin, and the prevention of unfair competition.
On the other hand, there must be a proven link between certain qualities of the food and its origin or provenance. Purely subjective associations are insufficient in this respect. The term "qualities of the food" also does not include or cover the resilience of a food to transport and the risk of deterioration during transit. In a second step, it has to be determined whether the majority of consumers attach a significant value to the provision of that information. These two requirements must be examined successively.
The CJEU does not give any examples of "qualities" that would justify the imposition of additional rules on indicating the origin or provenance. Examples might include certain climatic conditions or special soil properties. The present preliminary ruling makes it clear that Member States are subject to strict limits on additional national measures they might want to introduce. This leaves little room for fragmented national approaches regarding the origin or provenance.