Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 25 April 2024 (1)
Case C‑228/23
Association AFAÏA
v
Institut national de l’origine et de la qualité (INAO),
intervener:
Ministre de l’Agriculture et de l’Alimentation
(Request for a preliminary ruling from the Conseil d’État (Council of State, acting as Supreme Administrative Court, France))
(Reference for a preliminary ruling – Agriculture – Organic production – Regulation (EU) 2018/848 – Use of fertilisers, soil conditioners and nutrients in organic production – Implementing Regulation (EU) 2021/1165 – Annex II – Concepts of factory farming and landless livestock production – Criteria for categorising livestock farming as factory farming for the purposes of Annex II to Implementing Regulation 2021/1165)
1. In this reference for a preliminary ruling, the Court is asked to interpret the concept of factory farming, (2) which appears in Regulation (EU) 2018/848 (3) and Implementing Regulation (EU) 2021/1165. (4)
2. The main proceedings have arisen against the background of increased organic production, (5) which is echoed in EU law. One of the issues raised concerns the fertilisation of land used for organic production, (6) which the EU legislature has yet to regulate with the necessary precision.
3. Regulation 2018/848 and Implementing Regulation 2021/1165 permit, by way of exception and subject to certain conditions, the use in organic agriculture of non-organic manure (7) from conventional livestock farming. (8) The main restriction imposed by those provisions on the use of such manure is that it must not originate from factory farming. The reference for a preliminary ruling seeks to determine, specifically, what is meant by that term.
I. Legal framework: EU law
A. Regulation 2018/848
4. In accordance with Article 4 (‘Objectives’):
‘Organic production shall pursue the following general objectives: … (b) maintaining the long-term fertility of soils; … (d) substantially contributing to a non-toxic environment; (e) contributing to high animal welfare standards and, in particular, to meeting the species-specific behavioural needs of animals; …’
5. Article 5 (‘General principles’) provides:
‘Organic production is a sustainable management system that is based on the following general principles:
(a) respect for nature’s systems and cycles and the sustainment and enhancement of the state of the soil, the water and the air, of the health of plants and animals, and of the balance between them;
…
(d) the production of a wide variety of high-quality food and other agricultural and aquaculture products that respond to consumers’ demand for goods that are produced by the use of processes that do not harm the environment, human health, plant health or animal health and welfare;
…
(g) the restriction of the use of external inputs; where external inputs are required or the appropriate management practices and methods referred to in point (f) do not exist, the external inputs shall be limited to:
(i) inputs from organic production; in the case of plant reproductive material, priority shall be given to varieties selected for their ability to meet the specific needs and objectives of organic agriculture;
(ii) natural or naturally derived substances;
(iii) low solubility mineral fertilisers;
…
(j) the observance of a high level of animal welfare respecting species-specific needs.’
6. Paragraph 3 of Article 9 (‘General production rules’) provides:
‘For the purposes and uses referred to in Articles 24 and 25 and in Annex II, only products and substances that have been authorised pursuant to those provisions may be used in organic production, provided that their use in non-organic production has also been authorised in accordance with the relevant provisions of Union law and, where applicable, in accordance with national provisions based on Union law.
…’
7. In accordance with paragraph 1 of Article 12 (‘Plant production rules’):
‘Operators that produce plants or plant products shall comply, in particular, with the detailed rules set out in Part I of Annex II.’
8. Paragraph 1 of Article 14 (‘Livestock production rules’) provides:
‘Livestock operators shall comply, in particular, with the detailed production rules set out in Part II of Annex II and in any implementing acts referred to in paragraph 3 of this Article.’
9. Article 24 (‘Authorisation of products and substances for use in organic production’) reads:
‘1. The Commission may authorise certain products and substances for use in organic production, and shall include any such authorised products and substances in restrictive lists, for the following purposes:
…
(b) as fertilisers, soil conditioners and nutrients;
…
3. The authorisation of the products and substances referred to in paragraph 1 for use in organic production shall be subject to the principles laid down in Chapter II and to the following criteria, which shall be evaluated as a whole:
…
(d) in the case of products referred to in point (b) of paragraph 1, their use is essential for building or maintaining the fertility of the soil or to fulfil specific nutritional requirements of crops, or for specific soil-conditioning purposes;
…’
10. Annex II, Part I (‘Plant production rules’) states:
‘In addition to the production rules laid down in Articles 9 to 12, the rules set out in this Part shall apply to organic plant production.
1. General requirements
…
1.9 Soil management and fertilisation
…
1.9.2. The fertility and biological activity of the soil shall be maintained and increased:
…
(c) in all cases, by the application of livestock manure or organic matter, both preferably composted, from organic production.
1.9.3. Where the nutritional needs of plants cannot be met by the measures provided for in points 1.9.1 and 1.9.2, only fertilisers and soil conditioners that have been authorised pursuant to Article 24 for use in organic production shall be used, and only to the extent necessary. Operators shall keep records of the use of those products.
…’
11. Annex II, Part II (‘Livestock production rules’) states:
‘In addition to the production rules laid down in Articles 9, 10, 11 and 14, the rules laid down in this Part shall apply to organic livestock production.
1. General requirements
1.1 Except in the case of beekeeping, landless livestock production, where the farmer intending to produce organic livestock does not manage agricultural land and has not established a written cooperation agreement with a farmer as regards the use of organic production units or in-conversion production units for that livestock, shall be prohibited.
…
1.4.2.1 … organic animals shall graze on organic land …
1.6.3. The stocking density in buildings shall provide for the comfort, well-being and species-specific needs of the animals, and shall depend in particular on the species, the breed and the age of the animals. …
…
1.6.8. Cages, boxes and flat decks to raise livestock shall not be used for any livestock species.
…’
B. Implementing Regulation 2021/1165
12. Article 2 provides:
‘For the purposes of point (b) of Article 24(1) of Regulation [2018/848], only the products and substances listed in Annex II to this Regulation may be used in organic production as fertilisers, soil conditioners and nutrients for plant nutrition … provided that they are compliant with the relevant provisions of Union law …’
13. Annex II provides:
‘Fertilisers, soil conditioners and nutrients listed in this Annex may be used in organic production, provided that they are compliant with
– the relevant Union and national legislations on fertilising products, in particular, where applicable, Regulation (EC) No 2003/2003 [of the European Parliament and of the Council of 13 October 2003 relating to fertilisers (OJ 2003 L 304, p. 1)] and Regulation (EU) 2019/1009 [of the European Parliament and of the Council of 5 June 2019 laying own rules on the making available on the market of EU fertilising products and amending Regulations (EC) No 1069/2009 and (EC) No 1107/2009 and repealing Regulation No 2003/2003 (OJ 2019 L 170, p. 1)]; and
…
They may only be used according to the specifications and restrictions of use of those respective Union and national legislations. More restrictive conditions for use in organic production are specified in the right column of the tables.
Name Compound products or products containing only materials listed hereunder | Description, specific conditions and limits |
Farmyard manure | product comprising a mixture of animal excrements and vegetable matter (animal bedding and feed material) factory farming origin forbidden |
Dried farmyard manure and dehydrated poultry manure | factory farming origin forbidden |
Composted animal excrements, including poultry manure and composted farmyard manure included | factory farming origin forbidden |
Liquid animal excrements | use after controlled fermentation and/or appropriate dilution factory farming origin forbidden |
…’
II. Facts, dispute and questions referred for a preliminary ruling
14. The Institut national de l’origine et de la qualité (National Institute of Origin and Quality, France; ‘the INAO’) is a public body which, under the supervision of the competent ministry, is responsible for implementing France’s policy relating to official signs identifying the quality and origin of agricultural and agri-food products.
15. In 2020, the INAO amended its ‘reading guide’ (9) to European legislation in order, inter alia, to interpret the prohibition, contained in Annex I to Regulation (EC) No 889/2008, (10) on the use on organic land of fertilisers and soil conditioners of animal origin from ‘factory farming’.
16. According to the reading guide, manure ‘from livestock raised in integral slatted or grid systems and exceeding the thresholds defined in Annex I to Directive 2011/92/EU’, as well as from ‘livestock raised in cages and exceeding’ those thresholds, is prohibited.
17. The association AFAÏA (11) requested the revocation of that part of the guide but the INAO refused its request on 4 February 2020.
18. AFAÏA applied to the Conseil d’État (Council of State, acting as Supreme Administrative Court, France) for the annulment of the decision of the INAO of 4 February 2020. (12) AFAÏA argued that the INAO lacked the authority to adopt additional measures in connection with Regulations (EC) No 834/2007 (13) and No 889/2008 and that the reading guide misconstrued the meaning and scope of those regulations. The request for a preliminary ruling has arisen in those proceedings.
19. The referring court states that the applicable legislation is that in force at the time judgment is given, that is Regulation 2018/848 and Implementing Regulation 2021/1165. Following the entry into force of those two regulations, the INAO updated the reading guide but did not amend its wording as regards the definition of factory farming. (14)
20. The referring court states that:
– There are divergences between the different language versions (15) in relation to the concept of factory farming, which is not defined in Implementing Regulation 2021/1165 or Regulation 2018/848, or in the earlier provisions on organic agriculture.
– That concept is interpreted differently by Member States, since some Member States continue to equate the concept with landless livestock production, whereas other Member States distinguish between the two concepts and define factory farming by reference to technical requirements, livestock number thresholds, and requirements in terms of feed.
21. Against that background the referring court has submitted the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is Annex II to … Regulation [2021/1165] … to be interpreted as meaning that the concept of factory farming contained therein is equivalent to that of landless livestock production?
(2) If the concept of factory farming is distinct from the concept of landless livestock production, what criteria must be used to determine whether a livestock holding must be categorised as factory farming within the meaning of Annex II to Regulation [2021/1165]?’
III. Procedure before the Court of Justice
22. The request for a preliminary ruling was received at the Court on 12 April 2023.
23. Written observations have been submitted by AFAÏA, the Finnish and French Governments, and the Commission.
24. At the hearing held on 21 February 2024, oral argument was presented by AFAÏA, the French Government and the Commission.
IV. Assessment
A. Question 1: the difference between ‘factory farming’ and ‘landless livestock production’
25. In accordance with the first paragraph of Annex II to Implementing Regulation 2021/1165, ‘fertilisers, soil conditioners and nutrients listed in this Annex may be used in organic production, provided that they are compliant with
– the relevant Union and national legislations on fertilising products, in particular, where applicable, Regulation (EC) No 2003/2003 and Regulation (EU) 2019/1009; and
– Union legislation on animal by-products, in particular Regulation (EC) No 1069/2009 [of the European Parliament and of the Council of 21 October 2009 laying down health rules as regards animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No 1774/2002 (Animal by-products Regulation) (OJ 2009 L 300, p. 1)] and [Commission] Regulation (EU) No 142/2011 [of 25 February 2011 implementing Regulation No 1069/2009 (OJ 2011 L 54, p. 1)], in particular Annexes V and XI.’
26. The third paragraph of Annex II stipulates that fertilisers, soil conditioners and nutrients ‘may only be used according to the specifications and restrictions of use of those respective Union and national legislations’. The attached table includes restrictive conditions for organic production.
27. In particular, that table specifies that, in organic production, ‘factory farming origin [is] forbidden’ for the following products: farmyard manure; (16) dried farmyard manure and dehydrated poultry manure; composted animal excrements, including poultry manure and composted farmyard manure; and liquid animal excrements. (17)
28. As the referring court points out, there is no definition of factory farming in Implementing Regulation 2021/1165, Regulation 2018/848, or any other provision of EU law.
29. Further, the different language versions of Implementing Regulation 2021/1165 are not even the same in relation to use of the term ‘factory farming’, because some of them use the term ‘landless livestock production’ instead. (18)
30. That situation has led to divergent practices: some Member States equate factory farming with landless livestock production, while others define factory farming by reference to technical requirements, animal number thresholds and feed requirements, which vary.
31. Those differences result in the distortion of competition in the internal market and adversely affect the economic operators involved and suppliers of fertilisers, soil conditioners and nutrients.
32. Implementing Regulation 2021/1165 does not refer the definition of factory farming to the domestic law of the Member States either. Therefore, the Court must interpret that term in an autonomous and uniform manner, (19) using the usual criteria for interpretation. (20)
1. Literal interpretation
33. The third paragraph of Annex II to Implementing Regulation 2021/1165 provides no guidance on the meaning of the term ‘factory farming’ or on whether that term is the same as or different from the term ‘landless livestock production’. Regulation 2018/848 does not do so either.
34. Reliance on a literal interpretation is particularly difficult where, as here, there are considerable differences between the language versions of the third paragraph of Annex II to Implementing Regulation 2021/1165.
35. A comparison of those versions reveals that 21 of them refer to livestock farming, production or holding which they qualify as ‘factory’, (21) ‘intensive’ (22) or ‘large-scale’. (23) Those terms may be treated as equivalents and, as I have indicated, I have chosen to use the term ‘factory farming’. In contrast, the Danish‑, Dutch- and Portuguese-language versions use the term ‘landless livestock production’. (24)
36. In accordance with the settled case-law of the Court, the different language versions must be interpreted uniformly. (25) No version overrides the others. (26)
37. According to its usual meaning, ‘factory farming’ is livestock farming in which the livestock is generally housed and kept under artificially created and controlled conditions. Livestock is reared using methods typical of industry, that is, methods aimed at maximising production over the shortest possible period of time.
38. Factory farming tends to require high investment, uses enriched foods and preventative antibiotics and has high productivity, but it is liable to generate significant environmental pollution. Specific protection of animal welfare is not necessarily one of its priorities. (27)
39. The concept of ‘landless livestock production’ is not defined in Implementing Regulation 2021/1165 either, or in any other provision of EU law. Point 1.1 of Part II of Annex II to Regulation 2018/848 mentions the term, stating that ‘landless livestock production’ is to be prohibited in specified circumstances. (28)
40. Landless livestock production is, therefore, livestock production carried out in artificial enclosures, where the food does not come from the land on which the holding is situated and from which the effluent is discharged offsite. (29)
41. From a literal point of view, factory farming covers landless livestock production, but it is a broader concept. Livestock holdings may exist which, even though they have land, are categorised as factory farms because of their features. (30)
42. Accordingly, a literal interpretation suggests that the fertilisers, soil conditioners and nutrients whose use in organic agriculture is prohibited by Annex II to Implementing Regulation 2021/1165 are those from factory farming and not just those from landless livestock production. Landless livestock production is, in a way, the most extreme, but not the only, form of factory farming.
2. Historical and systematic interpretation
43. The divergence between the language versions of Implementing Regulation 2021/1165 already existed in the body of rules which preceded the current rules (Regulation No 834/2007 and Regulation No 889/2008).
44. Article 12(1)(d) of Regulation No 834/2007 allowed the use of fertilisers and conditioners which had been authorised by the Commission, in addition to those of organic origin. In Annex I to Regulation No 889/2008, the Commission allowed the use of the same products, with the exception of those from ‘factory farming’ (the majority of versions) or from ‘landless livestock production’ (a minority of versions), without defining those concepts.
45. Previously, Regulation (EEC) No 2092/91, (31) repealed by Regulation No 834/2007, provided that:
– The use of ‘farmyard manure’ and ‘dried farmyard manure and dehydrated poultry manure’ was limited to those ‘coming from extensive husbandry and only in the sense of Article 6(5) of Regulation (EEC) No 2328/91’. (32) Therefore, those products could not be used as fertilisers in organic agriculture if they came from factory farming.
– The use of ‘composted animal excrements, including poultry manure and composted farmyard manure’ and ‘liquid animal excrements’ was not permitted if these came from factory farming (‘factory farming origin’ or, in some versions, ‘landless livestock production’ origin was ‘forbidden’).
46. Legislative developments show that the concept of factory farming was mainly used in EU legislation before Implementing Regulation 2021/1165. Those developments also show that the concept of landless livestock production is covered by the broader concept of factory farming.
3. Purposive interpretation
47. The Union legislation on organic production is underpinned by a number of objectives, notably, for the present purposes, the protection of animal welfare and the safeguarding of consumer confidence in products labelled as organic.
48. It is apparent from a reading of recitals 1 (33) and 2 (34) of Regulation 2018/848, and of Article 4 thereof, that the protection of animal welfare is an objective of those provisions, which complies with Article 13 TFEU. In accordance with that article, the Union and the Member States ‘shall, since animals are sentient beings, pay full regard to the welfare requirements of animals’ in formulating and implementing the Union’s policies. (35)
49. The Court has held that, ‘by declaring on several occasions its desire to observe a high level of animal welfare in organic farming, the EU legislature intended to highlight that this method of agricultural production is characterised by the observance of enhanced standards with regard to animal welfare in all locations and at all stages of production where it is possible further to improve that welfare’. (36)
50. The protection of animal welfare in organic farming favours restricting the use of manure from factory farming. However, extensive livestock farming is compatible with an enhanced level of animal welfare, even where it is not organic.
51. Recital 6 of Regulation 2018/848 states that the legal framework for organic production is aimed, inter alia, ‘at maintaining and justifying consumer confidence in products labelled as organic’.
52. The legitimate expectations of consumers of organic products are better guaranteed if organic agriculture input comes from organic sources (or, where those sources are insufficient, if they use input which is non-organic but expressly authorised by the Commission, in order to exclude as many contaminants as possible). In the case of fertilisers, the exclusion of those of factory farming origin reflects the same logic.
53. The effects of both those objectives on the interpretation of ‘factory farming’ is the same as that resulting from the application of literal and historical criteria. Furthermore, that interpretation is consistent with points 1.9.2(c) and 1.9.3 of Part I of Annex II to Regulation 2018/848, which provides, as a rule, for the preferred use of animal manure or organic matter from organic production in organic agriculture.
54. Article 24(4)(d) of Regulation 2018/848 may apply only by way of exception, if the fertility of the soil and the nutritional requirements of the plants cannot be fulfilled by means of animal manure or organic matter from organic production. In accordance with that provision, it is permitted (only to the extent necessary) to use (non-organic) fertilisers, soil conditioners and nutrients which are expressly authorised by the Commission and which must not come from factory farming, in accordance with the third paragraph of Annex II to Implementing Regulation 2021/1165.
55. That exception to the general rule must be interpreted strictly, in conformity with the objectives of the legislation on organic agriculture. (37)
56. On the other hand, if the prohibition of use in organic agriculture were limited only to manure from ‘landless livestock production’, that would favour an excessively strict interpretation of the restriction laid down in the third paragraph of Annex II to Implementing Regulation 2021/1165.
57. At the hearing, AFAÏA argued in favour of just such a broad interpretation, asserting that this would ensure the availability of manure for the constantly expanding field of organic agriculture and would prevent the use of chemical fertilisers which are more harmful to the environment and long-term soil fertility. However, according to data supplied by the French Government at the hearing, that interpretation is not necessary, at the moment, in order to ensure sufficient availability of manure in organic agriculture. (38)
58. The aims of protecting animal welfare and meeting the legitimate expectations of consumers of organic products are, I repeat, better fulfilled by taking manure from conventional livestock farming (the use of which is permitted in organic farming) to mean manure which does not come from factory farming. The latter term covers landless livestock production, naturally, but also other types of production, such as that carried out on insufficient, limited land.
59. In summary, I believe that the correct interpretation of the third paragraph of Annex II to Implementing Regulation 2021/1165 leads to a finding that the concept of ‘landless livestock production’ is narrower and is not equivalent to that of ‘factory farming’. The latter term encompasses the former, so that fertilisers, soil conditioners and nutrients from factory farming, and not only those from landless livestock production, are not permitted in organic production.
B. Question 2
60. The referring court submits its second question in the event that the concept of factory farming is distinct from that of landless livestock production (which, in my view, it is). By that question, the referring court seeks to ascertain which criteria must be used to determine whether livestock production is categorised as factory farming, within the meaning of Annex II to Regulation 2021/1165.
61. As I have already pointed out, the EU legislature has not defined what is meant by factory farming for the purposes of the application of Implementing Regulation 2021/1165. Despite this lack of regulation, the Court may provide the referring court with guidance for the interpretation of that term, without this amounting to the assumption for itself of legislative functions. (39)
62. Two informative texts, one drafted by the Commission and the other by an expert group assembled by the Commission, shed some light in that regard.
1. The 1995 Commission Guidelines
63. The Guidelines for the implementation of Regulation No 2092/91, drawn up by the Commission in 1995, (40) explained that the Union legislation ruled out the use of manure from factory farms on account of the intensive husbandry techniques used and the presence of undesirable residues in such manure. (41)
64. The guidelines acknowledged that ‘factory farming’ did not have a standard definition in EU law and that it fell to the Member States to define the scope of that concept. However, the Commission suggested that the concept should cover holdings which combine:
– first, an installation which prevents animals from turning through 360 degrees or which keeps them predominantly in the dark or without being able to lie down, including battery rearing systems in the case of poultry or other animals, and broiler units with stocking rates over 25 kilogrammes per square metre;
– second, the absence of land used for crop production which would enable the use of manure.
2. The 2021 expert group report
65. In 2021, the Commission set up an expert group to define, inter alia other tasks, the criteria for the restriction of the use of fertilisers from certain origins, which involved specifying the scope of ‘factory farming’. The report published by that group (42) states that it was unable to provide a precise definition but that it was possible to define the scope of that concept through the use of a set of indicators or criteria which point to whether or not there was factory farming.
66. The 2021 EGTOP report mentions the following criteria as pointing to factory farming: animals raised in cages (poultry, rabbits, and so forth); systems where livestock is not allowed to turn freely through 360 degrees; landless rearing systems; animals for fur production; density of animals in the feeding structures (troughs) above a certain limit; animal welfare conditions (housing systems, solid floor, lighting, and so forth); farms entailing long-distance transportation; preventive use of antibiotics; use of feed containing genetically modified organisms.
67. The 2021 EGTOP report lists the following criteria for concluding that a conventional livestock holding does not carry out factory farming: free-range rearing; fulfilment of quality schemes (such as Label Rouge, Compassion in World farming, national quality schemes, and so forth) or farm-direct selling and territorial certification (protected designation of origin, protected geographical indication) schemes; restricted use of antibiotics, similar to that in organic livestock farming; the presence of bedding materials of plant origin to increase the organic content of the soil; limitation of animal density at feeding and watering troughs; compliance with EU legislation on animal welfare; use of locally sourced raw materials.
3. Other texts and focus of the Court’s reply
68. In addition to those two texts, there are EU provisions which refer to ‘factory’ farming. That is the case of Article 4 of Directive 2011/92/EU, (43) which makes the projects listed in Annex I, including (point 17) certain ‘installations for the intensive rearing of poultry or pigs’, subject to an environmental impact assessment. (44)
69. As was explained at the hearing, those provisions of Directive 2011/92 apply to environmental impact procedures but they may be used as (approximate) indicators for determining whether the holdings concerned are factory farms. (45)
70. Based on those reference criteria, the Court may provide the referring court with information, as a guide, concerning which livestock manure is permitted in organic farming on the grounds that it does not come from a factory farm.
71. It is possible to distinguish between three types of manure: (a) that from organic livestock farming; (b) that from conventional extensive or non-factory farming; and (c) that from factory farming.
(a) Manure from organic farming
72. Regulation 2018/848 provides for the preferred use in organic agriculture of manure and other fertilisers from organic farming (Annex II, Part I, point 1.9.2(c)).
73. Such manure and fertilisers may not come from factory farming, which cannot be categorised as organic livestock production in accordance with Regulation 2018/848 and its implementing rules.
(b) Manure from conventional extensive or non-factory farming
74. As I have already explained, Article 24(1) of Regulation 2018/848 provides, by way of exception, that the Commission may authorise certain products and substances, such as fertilisers, soil conditioners and nutrients, for use in organic production, by means of a system of restrictive lists.
75. Those products and substances are listed in Annex II to Implementing Regulation 2021/1165. The third paragraph of that annex stipulates that the products and substances in question ‘may only be used according to the specifications and restrictions of use of those respective Union and national legislations’. It adds, as an additional restriction for organic farming, that the use of manure originating from factory farming is forbidden.
76. In short, that list authorises the use for the purposes of organic crop production of fertilisers and manures originating from conventional (non-organic) non-factory farming.
77. I am in no doubt that conventional extensive livestock farming comes within the category of conventional non-factory farming, so that manure from the former may be used in accordance with Annex II to Implementing Regulation 2021/1165.
78. In order to determine what is meant by ‘extensive farming’, the 1995 Commission Guidelines, which refer, in relation to beef-cattle, to Article 6(5) of Regulation No 2328/91, (46) and the criteria mentioned by the Commission for other types of livestock, in accordance with a number of EU regulations, is helpful.
79. Identification of the criteria applicable to the concept of conventional non-factory farming is more complicated. That definition is inferred a contrario from the definition of factory farming, bearing in mind that all factory farming is conventional since it does not fulfil the requirements for organic livestock production.
(c) Manure from factory farming
80. I repeat that Annex II to Implementing Regulation 2021/1165 prohibits the use of manure from factory farming in organic crop production. For the purpose of interpreting ‘factory farming’, in the light of the 1995 Commission Guidelines and the 2021 EGTOP report, the following qualitative criteria, listed non-exhaustively, are relevant:
– The livestock rearing system. Rearing in cages, boxes or raised decks is a feature of factory farming,(47) while free-range rearing indicates, in principle, that livestock production is not factory farming.
– The mobility of the livestock. The use of systems which prevent animals from moving through 360 degrees is another feature of factory farming. Naturally, factory farming does not use grazing or transhumance, practices which are associated with extensive farming and organic production.
– The availability of land on the livestock holding. If there is no land other than the land in the enclosure on the holding, it will be landless livestock production which is industrial in nature since the feed for the livestock is brought in from outside and the excrement from the livestock cannot be absorbed without risk by the soil. A livestock holding with land must comply with a minimum area per animal in order not to be a factory farm. Naturally, the density varies from one species to another and must guarantee that it is possible to obtain some of the feed for the livestock and use some of their excrement as fertiliser.
– The husbandry practices and enclosure conditions on the livestock holding. The availability of water and food troughs per head of livestock and the animal welfare conditions (housing systems, solid floor, lighting, and so forth) are important. The use of slats and grids instead of a solid floor is a sign of factory farming, as is the absence of dry floors with bedding made of plant material so that the animals can rest. (48)
– The type of food provided for the livestock. Food from outside the holding and the use of feed is characteristic of factory farming, as is the lack of access to pasture or roughage as food.
– Disease prevention systems. The widespread use of preventative treatments using specified veterinary medicines is a sign of factory farming, in which animals are reared in cramped conditions and the risk of epidemics is higher.
– The widespread use of substances to stimulate growth or production or of hormones or similar substances to control reproduction or for other purposes. (49)
81. Unlike the French Government’s suggestion, the quantitative criterion of the number of animals, unconnected to the area of the holding, does not appear to me to be sufficient by itself to define factory farming. The number of animals may be indicative of factory farming but not a criterion applicable on a standalone basis and independently of the abovementioned qualitative criteria.
82. Point 17 of Annex I to Directive 2011/92 certainly lays down thresholds per number of animals for the purposes of making intensive poultry and pig farms subject to an environmental impact assessment. However, just because a livestock holding is large in size does not necessarily mean that it is a factory farm, although it will need to have extensive land not to be such a farm. (50) In any event, a large livestock farm is likely to have a high environmental impact and therefore Directive 2011/92 provides that the environmental impact of such farms must be assessed, which is not the case of small farms even if they are factory farms.
V. Conclusion
83. In the light of the foregoing considerations, I propose that the Court of Justice reply to the Conseil d’État (Council of State, acting as Supreme Administrative Court, France) as follows:
The third paragraph of Annex II to Commission Implementing Regulation (EU) 2021/1165 of 15 July 2021 authorising certain products and substances for use in organic production and establishing their lists
is to be interpreted as meaning that:
– The concept of ‘landless livestock production’ is narrower and is not equivalent to that of ‘factory farming’, in which it is included. Fertilisers, soil conditioners and nutrients from factory farming and, a fortiori, those from landless livestock production may not be used in organic crop production.
– To categorise a livestock holding as a ‘factory farm’, for the purposes of the third paragraph of Annex II to Implementing Regulation 2021/1165, it is possible to use, inter alia, the following qualitative criteria: the livestock rearing system, the degree of movement available to the livestock, the availability of land on the livestock holding and the density of animals on that land, the husbandry practices and enclosure conditions on the livestock holding, the type of food provided for the livestock, the disease prevention systems and the use of chemical substances to stimulate growth or control reproduction.