ECLI:EU:C:2026:310

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OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 16 April 2026 (1)

Case C‑295/25

Lima BV

Vlaams Gewest

(Request for a preliminary ruling from the Raad van State (Council of State, Belgium))

( Reference for a preliminary ruling – Agriculture – Organic production and labelling of organic products – Regulation (EU) 2018/848 – Article 7(a), (b) and (c) – Points 2.2.1 and 2.2.2 of Part IV of Annex II – Use of certain products and substances in the production of processed organic food – Powder certified as organic obtained from cleaned, dried, and ground Lithothamnium calcareum alga sediment, naturally rich in calcium carbonate – Non-authorisation )

I. Introduction

1. Can the use of an organic ingredient of agricultural origin be prohibited in the production of processed organic food?

2. That is the apparent paradox referred to the Court by the Raad van State (Council of State, Belgium), which asks whether it is possible to use a certified organic powder obtained from cleaned, dried and ground Lithothamnium calcareum alga sediment, which is naturally rich in calcium carbonate, in an organic plant-based rice or oat drink, even though the use of calcium in food is not directly legally required and the use of calcium carbonate is prohibited in organic production for the purpose of calcium enrichment under Regulation (EU) 2018/848, (2) as amended by Delegated Regulation (EU) 2022/474 (3) and its Implementing Regulation (EU) 2021/1165. (4)

3. The Court has already ruled on the prohibition of calcium enrichment of plant-based drinks using such sediments from non-organic Lithothamnium calcareum alga, (5) on the basis of Regulations (EC) No 834/2007 (6) and No 889/2008. (7) However, the question referred by the national court is unprecedented since the rules applicable to food additives changed with Regulation 2018/848, which repealed Regulation No 834/2007, and, in the present case, the sediments at issue are from certified organic Lithothamnium calcareum alga.

4. I shall propose that the Court’s answer should be that those new rules governing food additives, which I believe cover the powder from Lithothamnium calcareum alga, apply regardless of whether or not the ingredient is organic and that, consequently, the use of that powder, even if is certified as organic, for the purpose of calcium enrichment, is not permitted in organic production as it is not legally required.

II. European Union law

A. Regulation (EC) No 178/2002

5. The first and second paragraphs of Article 2 of Regulation (EC) No 178/2002 (8) provide:

‘For the purposes of this Regulation, “food” (or “foodstuff”) means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans.

“Food” includes drink, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment. …’

B. Regulation (EC) No 1333/2008

6. Article 3(2)(a) and (b) of Regulation (EC) No 1333/2008 (9) reads as follows:

‘For the purposes of this Regulation the following definitions shall also apply:

(a) “food additive” shall mean any substance not normally consumed as a food in itself and not normally used as a characteristic ingredient of food, whether or not it has nutritive value, the intentional addition of which to food for a technological purpose in the manufacture, processing, preparation, treatment, packaging, transport or storage of such food results, or may be reasonably expected to result, in it or its by-products becoming directly or indirectly a component of such foods;

The following are not considered to be food additives:

…

(ii) foods, whether dried or in concentrated form, including flavourings incorporated during the manufacturing of compound foods, because of their aromatic, sapid or nutritive properties together with a secondary colouring effect;

…

(b) “processing aid” shall mean any substance which:

(i) is not consumed as a food by itself;

(ii) is intentionally used in the processing of raw materials, foods or their ingredients, to fulfil a certain technological purpose during treatment or processing; and

(iii) may result in the unintentional but technically unavoidable presence in the final product of residues of the substance or its derivatives provided they do not present any health risk and do not have any technological effect on the final product.’

C. Regulation (EU) No 1169/2011

7. Article 2(2)(f) of Regulation (EU) No 1169/2011 (10) states:

‘The following definitions shall … apply:

…

(f) “ingredient” means any substance or product, including flavourings, food additives and food enzymes, and any constituent of a compound ingredient, used in the manufacture or preparation of a food and still present in the finished product, even if in an altered form; residues shall not be considered as “ingredients”’

D. Regulation (EU) 2018/848

8. According to recitals 6, 20, 51, 52 and 63 of Regulation 2018/848:

‘(6) In view of the objectives of the Union’s organic production policy, the legal framework established for implementing that policy should aim at ensuring fair competition and the proper functioning of the internal market in organic products, at maintaining and justifying consumer confidence in products labelled as organic, and at providing conditions under which the policy can progress in line with production and market developments.

…

(20) Since the use of external inputs should be restricted in organic production, certain objectives should be identified for which products and substances are often used in the production of agricultural products or processed agricultural products. When normally used for those objectives, the use of products or substances should only be allowed when they have been authorised in accordance with this Regulation. However, such authorisation should only be valid as long as the use of such external inputs in non-organic production is not prohibited by Union law or by national law that is based on Union law. …

…

(51) Operators producing organic food … should follow appropriate procedures based on the systematic identification of critical processing steps, in order to ensure that processed products comply with the organic production rules. Processed organic products should be produced using processing methods which guarantee that the organic characteristics and qualities of the products are maintained through all stages of organic production.

(52) Provisions concerning the composition of processed organic food … should be laid down. In particular, such food should be produced mainly from organic agricultural ingredients or from other ingredients falling within the scope of this Regulation that are organic, with the limited possibility of using certain non-organic agricultural ingredients specified in this Regulation. In addition, only certain products and substances authorised in accordance with this Regulation should be allowed for use in the production of processed organic food …

…

(63) The use in organic production of certain products or substances as active substances to be used in plant protection products falling within the scope of Regulation (EC) No 1107/2009, [(11)] fertilisers, soil conditioners, nutrients, non-organic components of animal nutrition of various origin, feed additives, processing aids and products for cleaning and disinfection should be limited to the minimum and made subject to the specific conditions laid down in this Regulation. The same approach should be followed regarding the use of products and substances as food additives and processing aids and regarding the use of non-organic agricultural ingredients in the production of processed organic food. Therefore, any possible use of such products and substances in organic production in general, and in the production of processed organic food in particular, should be defined, subject to the principles laid down in this Regulation and to certain criteria.’

9. Article 2(1)(b) of Regulation 2018/848 provides:

‘This Regulation applies to the following products originating from agriculture, including aquaculture and beekeeping, as listed in Annex I to the TFEU and to products originating from those products, where such products are, or are intended to be, produced, prepared, labelled, distributed, placed on the market, imported into or exported from the Union:

…

(b) processed agricultural products for use as food’

10. Article 3 of that regulation is worded as follows:

‘For the purposes of this Regulation, the following definitions apply:

(1) “organic production” means the use … of production methods that comply with this Regulation at all stages of production, preparation and distribution;

(2) “organic product” means a product resulting from organic production … The products of hunting or fishing of wild animals are not considered as organic products;

…

(45) “food” means food as defined in Article 2 of Regulation [No 178/2002];

…

(51) “ingredient” means an ingredient as defined in point (f) of Article 2(2) of Regulation [No 1169/2011] or, for products other than food, any substance or product used in the manufacture or preparation of products that is still present in the finished product, even in altered form;

…

(61) “food additive” means a food additive as defined in point (a) of Article 3(2) of Regulation [No 1333/2008];

…

(65) “processing aid” means a processing aid as defined in point (b) of Article 3(2) of Regulation [No 1333/2008] for food …;

…’

11. In Chapter II of Regulation 2018/848, entitled ‘Objectives and principles of organic production’, Article 7 provides:

‘The production of processed organic food shall be based, in particular, on the following specific principles:

(a) the production of organic food from organic agricultural ingredients;

(b) the restriction of the use of food additives, of non-organic ingredients with mainly technological and sensory functions, and of micronutrients and processing aids, so that they are used to a minimum extent and only in cases of essential technological need or for particular nutritional purposes;

(c) the exclusion of substances and processing methods that might be misleading as regards the true nature of the product;

…’

12. The first paragraph of Article 9(3) of that regulation reads as follows:

‘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.’

13. Article 16 of that regulation provides:

‘ 1. Operators that produce processed food shall comply, in particular, with the detailed production rules set out in Part IV of Annex II …

2. The Commission is empowered to adopt delegated acts in accordance with Article 54 amending:

…

(b) point 2.2.2 of Part IV of Annex II as regards the types and composition of products and substances that are allowed for use in processed food, as well as conditions under which they may be used;

…’

14. Under Article 24(2), (4) and (9) of Regulation 2018/848:

‘ 2. … The [European] Commission may authorise certain products and substances for use in the production of processed organic food and of yeast used as food …, and shall include any such authorised products and substances in restrictive lists, for the following purposes:

(a) as food additives and processing aids;

(b) as non-organic agricultural ingredients to be used for the production of processed organic food;

…

4. The authorisation of the products and substances referred to in paragraph 2 for use in the production of processed organic food or for the production of yeast used as food … shall be subject to the principles laid down in Chapter II and to the following criteria, which shall be evaluated as a whole:

…

(b) it would be impossible to produce or preserve the food or to fulfil given dietary requirements provided for on the basis of Union legislation without having recourse to those products and substances;

(c) they are to be found in nature and may only have undergone mechanical, physical, biological, enzymatic or microbial processes, except in cases where products or substances from such sources are not available in sufficient quantities or qualities;

(d) the organic ingredient is not available in sufficient quantity.

…

9. The Commission shall adopt implementing acts concerning the authorisation or withdrawal of authorisation of products and substances in accordance with paragraphs 1 and 2 that may be used in organic production in general and in the production of processed organic food in particular, and establishing the procedures to be followed for such authorisations and the lists of such products and substances and, where appropriate, their description, compositional requirements and conditions for use.

…’

15. In accordance with point 2.2.1 of Part III of Annex II to that regulation, the collection of wild algae and parts thereof is considered as organic production under certain conditions detailed in that point.

16. Under point 2 of Part IV of Annex II to that regulation, entitled ‘Detailed requirements for the production of processed food’:

‘…

2.2.1. Only food additives, processing aids and non-organic agricultural ingredients authorised pursuant to Article 24 or Article 25 for use in organic production, and the products and substances referred to in point 2.2.2 may be used in the processing of food …

2.2.2. In the processing of food, the following products and substances may be used:

…

(f) minerals (trace elements included), vitamins, amino acids and micronutrients, provided that:

(i) their use in food for normal consumption is “directly legally required”, in the meaning of being directly required by provisions of Union law or provisions of national law compatible with Union law, with the consequence that the food cannot be placed at all on the market as food for normal consumption if those minerals, vitamins, amino acids or micronutrients are not added; or

(ii) as regards food placed on the market as having particular characteristics or effects in relation to health or nutrition or in relation to needs of specific groups of consumers:

– in products referred to in points (a) and (b) of Article 1(1) of Regulation (EU) No 609/2013 … [(12)] their use is authorised by that Regulation and acts adopted on the basis of Article 11(1) … for the products concerned, or

– in products regulated by … Directive 2006/125/EC [(13)], their use is authorised by that Directive.

…’

E. Implementing Regulation 2021/1165

17. Recital 14 of Implementing Regulation 2021/1165 states:

‘Given the composition of certain non-organic agricultural ingredients, some of their uses in processed organic food may correspond to uses as food additives, food processing aids or products and substances referred to in point 2.2.2 of Part IV of Annex II to Regulation [2018/848]. Those uses require a specific authorisation in accordance with point 2.2 of Part IV of Annex II to Regulation [2018/848] and such uses should not be allowed via the authorisation of non-organic agricultural ingredients.’

18. Article 6 of that implementing regulation provides:

‘For the purposes of point (a) of Article 24(2) of Regulation [2018/848], only the products and substances listed in Part A of Annex V to this Regulation may be used as food additives, including food enzymes to be used as food additives, and processing aids in the production of processed organic food, provided that their use is in accordance with the relevant provisions of Union law, in particular Regulation [No 1333/2008] and, where applicable, in accordance with national provisions based on Union law.’

19. Article 7 of that implementing regulation, applicable since 1 January 2024, (14) provides:

‘For the purposes of point (b) of Article 24(2) of Regulation [2018/848], only the non-organic agricultural ingredients listed in Part B of Annex V to this Regulation may be used for the production of processed organic food, provided that their use is in accordance with the relevant provisions of Union law and, where applicable, in accordance with national provisions based on Union law.

The first paragraph is without prejudice to the detailed requirements for organic production of processed food provided in Section 2 of Part IV of Annex II to Regulation [2018/848]. In particular, the first paragraph shall not apply to non-organic agricultural ingredients that are used as food additives, processing aids or products and substances referred to in point 2.2.2 of Part IV of Annex II to Regulation [2018/848].’

20. Part A of Annex V to that implementing regulation, entitled ‘Authorised food additives and processing aids referred to in point (a) of Article 24(2) of Regulation [2018/848]’, includes, in Section A1, a table which includes the following line:

Code	Name	Organic foodstuffs to which it may be added	Specific conditions and limits
…	…	…	…
E 170	Calcium carbonate	products of plant and animal origin	shall not be used for colouring or calcium enrichment of products
…	…	…	…

III. The facts of the dispute in the main proceedings and the question referred for a preliminary ruling

21. Lima BV is a company incorporated under Belgian law specialising in the marketing of organic plant-based foods, including two organic rice and oat drinks, a characteristic ingredient of which is Lithothamnium calcareum alga resulting from the collection of certified organic wild algae.

22. In its certification decision of 13 April 2023, an inspection body considered that, in the case of lithothamnium, a distinction should be made between the algae (Lithothamnium sp. Algae) and the marine product resulting from the calcification of the algae (maerl beds) as only the former could be classified as an ‘agricultural product’. It added that purpose for which the prime ingredient is used prevails over its organic or non-organic quality. It concluded that the addition of calcium-rich lithothamnium residues constitutes an enrichment of organic products contrary to point 2.2 of Part IV of Annex II to Regulation 2018/848, which means that Lima ‘labels and markets non-compliant products as organic products’, justifying a ‘warning’.

23. Following the upholding of that decision by the inspection body on 5 May 2023, Lima lodged an administrative complaint against that decision with the Departement Landbouw en Visserij (Department of Agriculture and Fisheries) of the Vlaamse Overheid (Flemish Government, Belgium). By decision of 18 December 2023, the Head of the Income Support Department at the Ministry of Agriculture and Fisheries ruled that the addition of powder obtained from cleaned, dried and ground Lithothamnium calcareum alga sediment was not permitted since its purpose was calcium enrichment. He concluded that the ‘warning’ issued to Lima should be upheld and that that meant that only drinks already produced before 1 January 2024 could still be marketed with reference to the organic production method.

24. Before the Raad van State (Council of State), before which Lima had brought an action for annulment of that decision, the parties disagreed on the rules applicable to the powder obtained from cleaned, dried and ground Lithothamnium calcareum alga sediment certified as organic and also on the interpretation of the judgment in Natumi.

25. First, Lima submits that that powder should be regarded as an organic ingredient. That quality alone is sufficient to authorise its addition to processed organic food, irrespective of its nutritional profile, in accordance with Article 7(a) of Regulation 2018/848. In the view of the Flemish Government, that powder, even if certified as organic, must be subject to the rules applicable to minerals, which prohibit the addition of calcium carbonate for the sole purpose of calcium enrichment, in accordance with Article 7(b) of that regulation and points 2.2.1 and 2.2.2(f) of Part IV of Annex II thereto, and also Part A of Annex V to Implementing Regulation 2021/1165.

26. Second, in its judgment in Natumi, the Court held that Regulation No 889/2008 (15) must be interpreted as precluding the use of a powder obtained from the cleaned, dried and ground Lithothamnium calcareum alga sediment, as a non-organic ingredient of agricultural origin, within the meaning of Article 28 of that regulation, in the processing of organic foodstuffs, such as rice- and soya-based organic drinks, for the purpose of their enrichment with calcium.

27. The parties disagree as to the conclusions to be drawn from that judgment in the light of the new legislation applicable to the facts of the case.

28. The referring court is unsure whether that case-law can be applied simply by analogy since, in its judgment in Natumi, the Court ruled on a non-organic powder obtained from the cleaned, dried and ground Lithothamnium calcareum alga sediment, whereas, in the present case, the Lithothamnium calcareum used for the powder is certified as organic. In addition, the referring court considers that the applicable legislation has evolved, in particular through Article 24(4)(d) of Regulation 2018/848, which adds a new condition regarding the authorisation of products and substances used in organic production, namely that the organic ingredient must not be available in sufficient quantity. It adds that the list of algae that may be added as a non-organic ingredient of agricultural origin to processed organic food has been reduced to two items (alga arame and alga hijiki). (16) The referring court points out that the document ‘Frequently asked questions on organic rules’, published by the Commission on 30 November 2023 and regularly updated, (17) states that the main component of Lithothamnium calcareum is calcium carbonate, which is a mineral whose use in organic production requires an authorisation pursuant to point 2.2.2 of Part IV of Annex II to Regulation 2018/848, and that its main function in processed food corresponds to the addition of calcium.

29. In those circumstances, the Raad van State (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Are points 2.2.1 and 2.2.2 of Part IV of Annex II to Regulation [2018/848], read in conjunction with Article 7(b) and (c) of that Regulation, to be interpreted as meaning that in the processing of organic food for normal consumption, powder certified as organic obtained from cleaned, ground and dried Lithothamnium calcareum alga sediment, which is naturally rich in calcium carbonate, falls within Point 2.2.2(f)(i) of Part IV of Annex II to [that] Regulation … and is therefore prohibited, as the use of calcium in food for normal consumption is not directly legally required?’

30. Written observations have been submitted by Lima, the Flemish Government, the Italian Government and the Commission.

IV. Analysis

31. The question asked by the referring court involves an examination into whether there is a restriction on the use of organic ingredients of agricultural origin in the production of processed organic food, pursuant to Article 7(b) and (c) of Regulation 2018/848, which provides that, among the specific principles applicable to the production of processed organic foods, first, food additives, micronutrients and processing aids must be used to a minimum extent and only in cases of essential technological need or for particular nutritional purposes, and, second, substances and processing methods that might be misleading as regards the true nature of the product must be excluded. Or is it sufficient for an ingredient of agricultural origin to be organic for it to be used in the processing of organic food since Article 7(a) of that regulation provides that another specific principle of the production of processed organic food is that organic food is produced from organic agricultural ingredients?

32. The case-law has already laid down principles concerning plant-based drinks. Thus, the Court has held that the term ‘milk’ and the designations reserved exclusively for milk products cannot be lawfully used to designate a purely plant-based product. The addition of descriptions or explanations indicating the plant origin of the product at issue does not affect such a prohibition. (18)

33. Furthermore, the Court has held that it is for economic operators to determine the composition of their products and to decide how they want to portray them for marketing purposes. Thus, if they wish to market those products as a food supplement, (19) with nutrition or health claims, (20) or as a foodstuff intended for a particular nutritional use, (21) they must fulfil the relevant obligations laid down by the applicable EU rules, which may mean that the product may not be permitted to be marketed as organic. EU law does not guarantee that an economic operator will be allowed to market its products using any terms it finds to be most advantageous for promoting them. (22)

34. The Court confirmed, in its judgment of 4 October 2024, Herbaria Kräuterparadies II, (23) following the judgment of 5 November 2014, Herbaria Kräuterparadies, (24) that the beverage at issue, marketed as a food supplement and comprising a mixture of fruit juice and organically produced herbs, to which non-plant vitamins and ferrous gluconate had been added, could not be designated as organic as it did not comply with the requirements laid down in Article 16(1) of Regulation 2018/848, read in conjunction with point 2.2.2(f) (25) of Part IV of Annex II thereto. (26)

35. In its judgment in Natumi, on which the two parties to the main proceedings rely, the Court ruled that the use, in the processing of organic rice and soya-based drinks, for the purpose of their enrichment with calcium, of a powder obtained from the cleaned, dried and ground Lithothamnium calcareum alga sediment, as a non-organic ingredient of agricultural origin, within the meaning of Article 28 of Regulation No 889/2008, as amended by Implementing Regulation 2018/1584, was not possible under that regulation.

36. Although the Court did state that the Lithothamnium calcareum alga was not mentioned in the provisions applicable to the addition of minerals in the production of organic food (27) and that it ‘cannot, prima facie, be regarded as being a mineral’, (28) it added that other provisions, (29) read in conjunction with those provisions, prohibited the addition of calcium in the processing of organic foodstuffs such as the rice- and soya-based drinks, for the purpose of their enrichment with calcium. (30) It noted that the company producing those drinks explicitly acknowledged that it used that alga because it is high in calcium (31) and concluded that the use of that powder, which is naturally high in calcium, as a non-organic ingredient of agricultural origin, within the meaning of Article 28 of Regulation No 889/2008, as amended by Implementing Regulation 2018/1584, would amount to circumventing the prohibition on the use of calcium carbonate for the purpose of calcium enrichment. (32)

37. Regulation 2018/848, which applies to the production of organic food, has clarified the interplay between the rules applicable to non-organic ingredients of agricultural origin and those applicable to food additives and processing aids, in light of the principles set out in Article 7 of that regulation concerning the processing of organic food, that is to say, in particular, production from organic agricultural ingredients and the restriction of the use of food additives.

38. I am inclined to take the view that the mere fact of using an ingredient classified as an ‘organic agricultural ingredient’ under the principle laid down in Article 7(a) of Regulation 2018/848 is not sufficient to permit any use of that ingredient. Article 7(b) of that regulation establishes the principle of restricting ‘the use of food additives … and of micronutrients and processing aids, so that they are used to a minimum extent and only in cases of essential technological need or for particular nutritional purposes’. Thus, a food additive, even if it is an organic ingredient of agricultural origin, must be assessed on the basis of its use (essential technological need or particular nutritional purpose).

39. It should be recalled at the outset that the concept of ‘ingredient’ is defined in Article 3(51) of Regulation 2018/848, by reference to the definition set out in Article 2(2)(f) of Regulation No 1169/2011. Under the latter provision, an ingredient means ‘any substance or product, including flavourings, food additives and food enzymes, and any constituent of a compound ingredient, used in the manufacture or preparation of a food and still present in the finished product, even if in an altered form’. It follows that food additives are among those ingredients and that the classification, by the judgment in Natumi, of the powder obtained from Lithothamnium calcareum alga as an ‘organic ingredient of agricultural origin’ does not prohibit it from also being classified as a ‘food additive’ within the meaning of Regulation 2018/848.

40. As regards ‘food additives’, they are defined in Article 3(61) of that regulation, by reference to Article 3(2)(a) of Regulation No 1333/2008, as ‘any substance not normally consumed as a food in itself and not normally used as a characteristic ingredient of food, whether or not it has nutritive value, the intentional addition of which to food for a technological purpose in the manufacture, processing, preparation, treatment, packaging, transport or storage of such food results, or may be reasonably expected to result, in it or its by-products becoming directly or indirectly a component of such foods’.

41. It cannot be denied that the powder obtained from Lithothamnium calcareum alga and the calcium carbonate of which it is predominantly composed are not consumed as foods in themselves, but are intentionally added and become a component of the final drink. (33) At this juncture, I will leave aside the question of the nutritive value and technological function of that powder.

42. However, that definition of food additives provides for exceptions. Thus, it is not possible to consider as food additives ‘foods, whether dried or in concentrated form, including flavourings incorporated during the manufacturing of compound foods, because of their aromatic, sapid or nutritive properties together with a secondary colouring effect.’ (34) That exception entails two conditions: it must be a food and be used because of its aromatic, sapid or nutritive properties.

43. It is therefore necessary, first, to determine whether the powder at issue in the main proceedings may be classified as ‘food’. Food (or foodstuff) is defined in Article 3(45) of Regulation 2018/848, by reference to Article 2 of Regulation No 178/2002, as ‘any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans’. The second paragraph of Article 2 states that ‘“food” includes drink, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment’. That definition makes it possible to state that the powder at issue is a food as a substance intentionally incorporated into food. The first condition for the exception mentioned in the preceding point of the present Opinion is satisfied.

44. Second, in order to satisfy the second condition for that exception, that powder must also be used because of its aromatic, sapid or nutritive properties. The concept close to ‘particular nutritional purposes’, which is undefined and is employed in Article 7(b) of Regulation 2018/848, is used in one of the principles applicable to the production of organic processed food, on the basis of which food additives may be used in such foods (the other, alternative, objective being the essential technological need). (35)

45. All the ambiguity of the present case and of the rules applicable to the use of the powder at issue in the main proceedings lies in those close concepts. Thus, if a food additive is used for particular nutritional purposes, it is permitted in organic production of processed food. In addition, if a substance is a food used because of its aromatic, sapid or nutritive properties, it is not a food additive and may therefore be freely used. It is thus necessary to determine what the function of that powder is.

46. Lima claims that the powder obtained from Lithothamnium calcareum alga is used to enrich its drinks with calcium, merely stating that it is an ingredient of agricultural origin. It also submits that, in its judgment in Natumi, the Court classified the powder at issue in the case which gave rise to that judgment only as a ‘non-organic ingredient of agricultural origin’ and not as a ‘mineral’, and that, consequently, the organic version of that ingredient must be accepted.

47. However, Regulation 2018/848 does not seem to me to permit an interpretation leading to that result.

48. In the first place, in that regulation, the only reference to a nutritional effect in respect of food is to be found in point 2.2.2(f)(ii) of Part IV of Annex II, relating to the use of ‘minerals (trace elements included), vitamins, amino acids and micronutrients … as regards food placed on the market as having particular characteristics or effects in relation to health or nutrition or in relation to needs of specific groups of consumers’. Only certain products covered by Regulation No 609/2013 and products governed by Directive 2006/125 are mentioned. It therefore seems to me that it is that very specific type of food (intended for infants and young children) that Article 7(b) of Regulation 2018/848 refers to when it sets out the principle of restricting the use of food additives only where there are particular nutritional purposes.

49. The other references to nutritional or nutritive effect in Regulation 2018/848 concern livestock production (36) and plant production. (37) I consider that the link between all those nutritional or nutritive purposes in the organic sector stems from the fact that they concern situations where the subject (infant, baby, farmed animal) or the object (soil, plant) is unable to provide for a balanced diet on its own.

50. In the second place, whether or not the additive is organic has no bearing on the use of calcium carbonate. Section A1 of Part A of Annex V to Implementing Regulation 2021/1165 does not specify that that product must be only from organic production, unlike other additives. (38) In the initial version of Regulation No 889/2008, the table of food additives in Part A of Annex VIII made no mention of organic origin. That requirement to use additives from organic production was introduced by Implementing Regulation 2019/2164, which replaced the table in question. That change is reflected in Article 24(4) of Regulation 2018/848, which provides that authorisation to use non-organic additives is based on several principles, including the organic ingredient not being available in sufficient quantity. Thus, by contrary inference, where there is such availability, the additive must be from organic production. Food additives therefore may or may not be from organic production.

51. I see confirmation of that analysis in the wording of Article 7 of Implementing Regulation 2021/1165, under which, where a non-organic agricultural ingredient is used as a food additive, it is covered by the rules applicable to that food additive. Although the entry into force of that article has been postponed until 1 January 2024, (39) the new rules are clear: it is the purpose for which a non-organic ingredient of agricultural origin is used which determines the applicable legislation.

52. In the third place, I consider that Article 24(2) of Regulation 2018/848 establishes two separate sets of rules for non-organic agricultural ingredients and food additives. However, as I have just explained, the rules for food additives apply to both organic and non-organic ingredients. Consequently, it is not the organic quality of the ingredient that allows it, in some circumstances, to be exempt from the rules applicable to food additives. (40)

53. Article 24(2)(a) and (b) of Regulation 2018/848 states that ‘the Commission may authorise certain products and substances for use in the production of processed organic food … and shall include any such authorised products and substances in restrictive lists, for the following purposes: … as food additives and processing aids … [or] as non-organic agricultural ingredients to be used for the production of processed organic food’.

54. In Section A1 of Part A of Annex V to Implementing Regulation 2021/1165, entitled ‘Food additives, including carriers’, calcium carbonate is listed with the specific condition: ‘shall not be used for colouring or calcium enrichment of products’. Under those rules, calcium carbonate is considered to be a food additive whose function can be neither colouring nor calcium enrichment. Those prohibited functions therefore serve processing purposes as otherwise, calcium carbonate, when used in that way, would not be classified as a ‘food additive’. Conversely, the reference to calcium carbonate in the list of processing aids (Section A2, Part A of Annex V to that implementing regulation) is not subject to any specific conditions or limits.

55. It should be noted that Implementing Regulation (EU) 2025/973 (41) merged the list of food additives (Section A1) and the list of processing aids (Section A2) of Part A of Annex V to Implementing Regulation 2021/1165 having regard to the fact that, ‘depending on their technological function in the final product, certain products classified as processing aids should instead be classified as food additives and certain other products should be classified as food additives and as food processing aids according to their uses.’ (42)

56. Regulation 2025/973 also states, in recital 18, that ‘in that merged list, the specific condition that the additive “calcium carbonate” is not to be used for colouring or calcium enrichment should be deleted as the rules provided for in Part IV, points 2.2.2(c), [(43)] (d) [(44)] and (f), of Annex II to Regulation [2018/848] already contain that condition.’ (45)

57. As regards point 2.2.2(f) of Part IV of Annex II to Regulation 2018/848, it mentions, among those products and substances, ‘minerals (trace elements included), vitamins, amino acids and micronutrients, provided that … their use in food for normal consumption is “directly legally required”, in the meaning of being directly required by provisions of Union law or provisions of national law compatible with Union law, with the consequence that the food cannot be placed at all on the market as food for normal consumption if those minerals, vitamins, amino acids or micronutrients are not added.’ Neither the request for a preliminary ruling nor the observations lodged by the parties refer to any provision requiring the addition of calcium to the foodstuffs at issue in the main proceedings, that is to say, rice- and oat-based drinks, in order that they may be placed on the market. (46)

58. Furthermore, the Commission relies on that provision to state that the use of calcium carbonate is prohibited in the processing of organic food, (47) exercising the power conferred on it by Article 54 of Regulation 2018/848 to adopt delegated acts to amend ‘point 2.2.2 of Part IV of Annex II as regards the types and composition of products and substances that are allowed for use in processed food, as well as conditions under which they may be used’, pursuant to Article 16(2)(b) of that regulation.

59. I therefore consider that the powder at issue in the main proceedings, consisting mainly of calcium carbonate, must be regarded as a food additive whose use is prohibited in the production of organic food, where it is used solely to enrich the plant-based drink with calcium, even though is not directly legally required by EU or national legislation.

V. Conclusion

60. In the light of all the foregoing considerations, I propose that the Court answer the question referred by the Raad van State (Council of State, Belgium) for a preliminary ruling as follows:

Article 24(2)(a) of, as well as point 2.2.1 and point 2.2.2(f) and (i) of Part IV of Annex II to, Regulation (EU) 2018/848 of the European Parliament and of the Council of 30 May 2018 on organic production and labelling of organic products and repealing Council Regulation (EC) No 834/2007, as amended by Commission Delegated Regulation (EU) 2022/474 of 17 January 2022, read in conjunction with Article 7(b) of Regulation 2018/848,

must be interpreted as meaning that powder certified as organic obtained from cleaned, dried and ground Lithothamnium calcareum alga sediment, which is naturally rich in calcium carbonate, used for the purpose of calcium enrichment in the processing of organic food, is prohibited in so far as calcium carbonate cannot be used for that purpose and the use of calcium in food for normal consumption is not directly legally required.

1 Original language: French.

2 Regulation of the European Parliament and of the Council of 30 May 2018 on organic production and labelling of organic products and repealing Council Regulation (EC) No 834/2007 (OJ 2018 L 150, p. 1).

3 Commission Delegated Regulation of 17 January 2022 (OJ 2022 L 98, p. 1; ‘Regulation 2018/848’).

4 Commission Implementing Regulation of 15 July 2021 authorising certain products and substances for use in organic production and establishing their lists (OJ 2021 L 253, p. 13).

5 See judgment of 29 April 2021, Natumi (C‑815/19, ‘the judgment in Natumi’, EU:C:2021:336).

6 Council Regulation of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (OJ 2007 L 189, p. 1).

7 Commission Regulation of 5 September 2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007 on organic production and labelling of organic products with regard to organic production, labelling and control (OJ 2008 L 250, p. 1), as amended by Commission Implementing Regulation (EU) 2019/2164 of 17 December 2019 (OJ 2019 L 328, p. 61; ‘Regulation No 889/2008’). That regulation was repealed by Implementing Regulation 2021/1165.

8 Regulation of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1).

9 Regulation of the European Parliament and of the Council of 16 December 2008 on food additives (OJ 2008 L 354, p. 16).

10 Regulation of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ 2011 L 304, p. 18).

11 Regulation of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1).

12 Regulation of the European Parliament and of the Council of 12 June 2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control and repealing Council Directive 92/52/EEC, Commission Directives 96/8/EC, 1999/21/EC, 2006/125/EC and 2006/141/EC, Directive 2009/39/EC of the European Parliament and of the Council and Commission Regulations (EC) No 41/2009 and (EC) No 953/2009 (OJ 2013 L 181, p. 35).

13 Commission Directive of 5 December 2006 on processed cereal-based foods and baby foods for infants and young children (OJ 2006 L 339, p. 16).

14 See the third paragraph of Article 13 of Implementing Regulation 2021/1165.

15 As amended by Commission Implementing Regulation (EU) 2018/1584 of 22 October 2018 (OJ 2018 L 264, p. 1).

16 The referring court refers to Part B of Annex V to Implementing Regulation 2021/1165.

17 That document is available at the following internet address: https://agriculture.ec.europa.eu/farming/organic-farming/organics-glance_en. Last updated on 26 January 2026.

18 See judgment of 14 June 2017, TofuTown.com (C‑422/16, EU:C:2017:458, paragraph 40, the case-law cited and the operative part).

19 Within the meaning of Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (OJ 2002 L 183, p. 51), as amended by Regulation (EC) No 1137/2008 of the European Parliament and of the Council of 22 October 2008 (OJ 2008 L 311, p. 1).

20 Within the meaning of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods (OJ 2006 L 404, p. 9) and Commission Regulation (EU) No 432/2012 of 16 May 2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health (OJ 2012 L 136, p. 1).

21 Within the meaning of Directive 2009/39/EC of the European Parliament and of the Council of 6 May 2009 on foodstuffs intended for particular nutritional uses (OJ 2009 L 124, p. 21) and Commission Regulation (EC) No 953/2009 of 13 October 2009 on substances that may be added for specific nutritional purposes in foods for particular nutritional uses (OJ 2009 L 269, p. 9).

22 See judgment of 5 November 2014, Herbaria Kräuterparadies (C‑137/13, EU:C:2014:2335, paragraph 46).

23 C‑240/23, EU:C:2024:852.

24 C‑137/13, EU:C:2014:2335.

25 The wording of point 2.2.2(f) was directly inspired by the judgment of 5 November 2014, Herbaria Kräuterparadies (C‑137/13, EU:C:2014:2335).

26 See judgment of 4 October 2024, Herbaria Kräuterparadies II (C‑240/23, EU:C:2024:852, paragraph 85 and the operative part).

27 See Article 27(1) of Regulation No 889/2008 and Annex VIII thereto.

28 See the judgment in Natumi (paragraph 47).

29 See Articles 19(2)(b) and 21 of Regulation No 834/2007.

30 See the judgment in Natumi (paragraph 67).

31 See the judgment in Natumi (paragraph 68).

32 See the judgment in Natumi (paragraph 69).

33 As the latter factor does not allow those products to be classified as ‘processing aids’, which must remain only as residues in the finished product, with no health risks and no technological effects on that product. See the definition in Article 3(65) of Regulation 2018/848, which refers to the definition in Article 3(2)(b) of Regulation No 1333/2008.

34 See point (ii) of the second paragraph of Article 3(2)(a) of Regulation No 1333/2008.

35 See point 38 of the present Opinion.

36 The expression ‘nutritional purposes’ is used in Article 8(b); the expression ‘nutritional requirements’ appears in point 1.4.1(b) of Part II of Annex II and point 3.1.3.1(a) of Part III; the expression ‘nutritional patterns’ is used in point 1.4.1(d) of Part II of Annex II; the expression ‘nutritional additives’ is used in point 1.5.2.3 of Part II of Annex II; the expression ‘nutritional composition’ appears in point 3.1.3.1(b)(ii) of Part III of Annex II; and the expression ‘nutritional requirements’ is used in point 3.1.3.2(a) of Part III of Annex II.

37 The expression ‘nutrients’ is used in Article 24(1)(b), Article 31 and points 1.2 and 1.9.6 of Part I of Annex II; the expression ‘specific nutritional requirements of crops’ appears in Article 24(3)(d); the expression ‘nutritional reserves available’ is used in point 1.3(a) of Part I of Annex II; and the expression ‘nutritional needs’ is used in point 1.9.3 of Part I of Annex II.

38 Lecithins, extracts of rosemary, locust bean gum, guar gum, gum arabic, tara gum, gellan gum, glycerol, beeswax, carnauba wax and erythritol.

39 See footnote 14 of the present Opinion.

40 See points 50 and 51 of the present Opinion.

41 Commission Implementing Regulation of 23 May 2025 amending and correcting Implementing Regulation (EU) 2021/1165 authorising certain products and substances for use in organic production and establishing their lists (OJ L, 2025/973).

42 See recital 17 of Implementing Regulation 2025/973.

43 Relating to colours for stamping meat and eggshells.

44 Relating to the traditional decorative colouring of the shell of boiled eggs produced with the intention of placing them on the market at a given time of the year.

45 That wording makes it clear that both colouring and calcium enrichment are prohibited in connection with calcium carbonate.

46 See, by analogy, the judgment in Natumi (paragraph 66).

47 See, in the frequently asked questions on organic rules, cited in point 28 of the present Opinion, the answer to question 12 in section 4.5 (p. 113 and 114), which asks about the possibility of using Lithothamnium calcareum in the organic production of food: ‘No. Point 2.2.2(f) of Part IV of Annex II to Regulation [2018/848] is relevant … The main component of Lithothamnium calcareum is calcium carbonate and its main function in processed food corresponds to the addition of calcium. Consequently, given that calcium carbonate is a mineral, its use in organic production requires an authorisation pursuant to point 2.2.2 of Part IV of Annex II to Regulation [2018/848].’

Opinion of Advocate General Richard de la Tour delivered on 16 April 2026.###

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