Hahn (Case C-121/00)

• Author: Keller & Heckman
• Position: Abogados

MEMORANDUM

TO : Clients and Interested Parties

DATE : March, 05, 2003

RE : European Court of Justice & Case Law Brief

Hahn (Case C-121/00) 24^th October 2002

ECJ confirms its previous jurisprudence establishing the conditions under which National Legislation laying down levels for (microbiological) contaminants in the absence of Community harmonised measures is compatible with Articles 28 & 30 of the EC Treaty & the “principle of proportionality”

Listeria monocytogenes was detected in a sample of Danish smoked salmon (which had not been chemically preserved) sold in Austria. This was considered by the Austrian food authorities to breach current national requirements, which set down a zero tolerance for the presence of this contaminant.

This decision was challenged on the basis that the products had been placed on the Austrian market in compliance with EU law which lays down no specific applicable level for the presence of listeria monocytogenes, but instead requires that “risks be reduced to acceptable levels”. This matter was therefore referred to the ECJ by the Austrian courts which considered the following legal considerations:

- Do Articles 28 & 30 of the EC Treaty preclude the application of a national limit which sets a potentially unachievable level for a given contaminant - whereas the relevant framework EU legislation requires the reduction of risks to an “acceptable level” &

- Is such a level & in this case a zero tolerance level - “proportional” with respect to those measures actually necessary to protect public health & or could more flexible measures less restrictive of Community trade be adopted.

The EC Commission and Austria submitted written comments to the ECJ and argued that as long as the science is provisional, Member States have a right to adopt a precautionary approach and thus set more stringent (microbiological) standards to protect human health, especially the health of susceptible population groups.

1. EU LAW

Council Directive 91/493/EEC, &laying down the health conditions for the production and placing on the market of fishery products” and Commission Decision N° 94/356/EEC laying down subsequent detailed implementation provisions.

No specific levels set for listeria monocytogenes. Rather, Community legislation lays down hygiene requirements, in particular identification of critical control points and the listing of all biological, chemical and physical hazards. Hazard is defined as the potential to cause...