ECJ rules that manufacturers have a directly applicable right to conduct a counter analysis of samples taken for the purposes of the official control of foodstuffs. The admissibility of analyses as evidence in court proceedings in the event of an infringement of this right is a matter for national procedural law, subject to the principles of Community law and the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms
A food manufacturer in Germany (represented in this instance by Mr Steffensen) produced sausage products, samples of which were taken by the German food control authorities from retail outlets, tested and found to be in breach of specific sausage quality requirements laid down under German food law. A second sample of the tested products had been left at the retail outlet to enable a counter analysis to be conducted if necessary.
The manufacturer was not made aware that samples of the product had been taken away for testing by the retail outlets and, by the time the test results were made known to him by the food control authorities, the samples at the retail outlets had been disposed, the policy of the retail outlets being to keep such samples for no more than a one month period (given that the products were perishable). Therefore, the manufacturer had no opportunity to carry out his own testing on the product in question and thus no basis on which to either verify and/or eventually challenge the findings of the food control authorities.
Following a referral from the national court, the ECJ was asked to consider whether: (1) a manufacturer has a directly applicable right under the EU Official Control of Foodstuffs Directive to apply for a second opinion and, (2) if so, does infringement of that right mean that the results of any analysis carried out by the food control authorities of a Member State are not admissible in court proceedings?
1. EU LAW
Council Directive 89/397/EEC on the “official control of foodstuffs” harmonises the general principles governing official inspection of foodstuffs. Article 7(1) authorises the taking of samples for analysis by food control authorities, but states that “Member States shall take the necessary steps to ensure that those subject to inspection may apply for a second opinion”.
Article 12(1) provides that Member States shall take the necessary measures to ensure that natural and legal persons concerned by the inspection have a right of appeal...