R, à la demande de Association of Independent Meat Suppliers and another v The Food Standards Agency.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:665
• Date: 02 September 2021
• Docket Number: C-579/19
• Celex Number: 62019CJ0579
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Fourth Chamber)

2 September 2021 (*)

(Reference for a preliminary ruling – Protection of health – Regulation (EC) No 854/2004 – Article 5(2) – Regulation (EC) No 882/2004 – Article 54(3) – Hygiene rules applicable to food of animal origin – Post-mortem inspection of the carcass and offal – Official veterinarian – Health marking – Refusal – Meat declared unfit for human consumption – Right of appeal against a decision of the official veterinarian – Effective judicial protection – Article 47 of the Charter of Fundamental Rights of the European Union)

In Case C‑579/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Supreme Court of the United Kingdom, made by decision of 24 July 2019, received at the Court on 30 July 2019, in the proceedings

The Queen, on the application of:

Association of Independent Meat Suppliers,

Cleveland Meat Company Ltd,

v

Food Standards Agency

THE COURT (Fourth Chamber),

composed of M. Vilaras, President of the Chamber, N. Piçarra, D. Šváby (Rapporteur), S. Rodin and K. Jürimäe, Judges,

Advocate General: E. Tanchev,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Association of Independent Meat Suppliers and Cleveland Meat Company Ltd, by S. Hockman QC, D. Hercock, Barrister, and H. Leese, Solicitor,

– the United Kingdom Government, by S. Brandon, acting as Agent, and by A. Dashwood QC, and A. Heppinstall, Barrister,

– the European Commission, by A. Dawes, W. Farrell and B. Hofstötter, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 11 February 2021,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 5(2) of Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (OJ 2004 L 139, p. 206, and corrigenda OJ 2004 L 226, p. 83, and OJ 2013 L 160, p. 17), as amended by Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 (OJ 2004 L 165, p. 1, and corrigendum OJ 191 L 2004, p. 1) (‘Regulation No 854/2004’), as well as the interpretation of Regulation No 882/2004.

2 The request has been made in proceedings between, on the one hand, the Association of Independent Meat Suppliers and Cleveland Meat Company Ltd (‘CMC’), and, on the other hand, the Food Standards Agency (‘FSA’), concerning the procedure to be followed further to a decision of the official veterinarian refusing to affix a health mark to a carcass belonging to CMC, declaring that carcass unfit for human consumption and resulting in the destruction thereof.

Legal context

European Union law

The Withdrawal Agreement

3 By Decision (EU) 2020/135 of 30 January 2020 on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 1; ‘the Withdrawal Agreement’), the Council of the European Union, on behalf of the European Union and the European Atomic Energy Community, approved the Withdrawal Agreement, which was appended to that decision.

4 Article 86 of the Withdrawal Agreement, entitled ‘Cases pending before the Court of Justice of the European Union’, provides in paragraphs 2 and 3 thereof:

‘(2) The Court of Justice of the European Union shall continue to have jurisdiction to give preliminary rulings on requests from courts and tribunals of the United Kingdom made before the end of the transition period.

(3) For the purposes of this Chapter, proceedings shall be considered as having been brought before the Court of Justice of the European Union, and requests for preliminary rulings shall be considered as having been made, at the moment at which the document initiating the proceedings has been registered by the registry of the Court of Justice …’

5 In accordance with Article 126 of the Withdrawal Agreement, the transition period began on the date of entry into force of that agreement and ended on 31 December 2020.

Regulation (EC) No 178/2002

6 Regulation (EC) No 178/2002 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) states, in recitals 2 and 10 thereof:

‘(2) A high level of protection of human life and health should be assured in the pursuit of Community policies.

…

(10) Experience has shown that it is necessary to adopt measures aimed at guaranteeing that unsafe food is not placed on the market and at ensuring that systems exist to identify and respond to food safety problems in order to ensure the proper functioning of the internal market and to protect human health. Similar issues relating to feed safety should be addressed.’

7 Article 14(1), (2) and (5) of that regulation is worded as follows:

‘(1) Food shall not be placed on the market if it is unsafe.

(2) Food shall be deemed to be unsafe if it is considered to be:

(a) injurious to health;

(b) unfit for human consumption.

…

(5) In determining whether any food is unfit for human consumption, regard shall be had to whether the food is unacceptable for human consumption according to its intended use, for reasons of contamination, whether by extraneous matter or otherwise, or through putrefaction, deterioration or decay.’

Regulation (EC) No 853/2004

8 Article 5 of Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (OJ 2004 L 139, p. 55, and corrigendum OJ 2004 L 226, p. 22), entitled ‘Health and identification marking’, provides, in paragraph 1 thereof:

‘Food business operators shall not place on the market a product of animal origin handled in an establishment subject to approval in accordance with Article 4(2) unless it has either:

(a) a health mark applied in accordance with Regulation (EC) No 854/2004; or

(b) when that regulation does not provide for the application of a health mark, an identification mark applied in accordance with Annex II, Section I, of this Regulation.’

Regulation No 854/2004

9 Regulation No 854/2004 states, in recitals 1, 2, 4, 6 and 9 thereof:

‘(1) Regulation (EC) No 852/2004 of the European Parliament and of the Council [of 29 April 2004 on the hygiene of foodstuffs (OJ 2004 L 139, p. 1),] lays down general hygiene rules for all foods and Regulation [No 853/2004] lays down specific hygiene rules for products of animal origin.

(2) Specific rules for official controls on products of animal origin are necessary to take account of specific aspects associated with such products.

…

(4) Official controls on products of animal origin should cover all aspects that are important for protecting public health and, where appropriate, animal health and animal welfare. …

…

(6) The nature and intensity of the official controls should be based on an assessment of public health risks, animal health and welfare, where appropriate, the type and throughput of the processes carried out and the food business operator concerned.

…

(9) In view of their specific expertise, it is appropriate for official veterinarians to carry out audits and inspections of slaughterhouses, game handling establishments and certain cutting plants. Member States should have discretion to decide which are the most appropriate staff for audits and inspections of other types of establishments.’

10 Article 1(1), (1a) and (3) of Regulation No 854/2004 provides that:

‘(1) This Regulation lays down specific rules for the organisation of official controls on products of animal origin.

(1a) This Regulation shall apply in addition to Regulation [No 882/2004].

…

(3) The performance of official controls pursuant to this Regulation shall be without prejudice to feed and food business operators’ primary legal responsibility for ensuring feed and food safety, as laid down in Regulation [No 178/2002], and any civil or criminal liability arising from the breach of their obligations.’

11 Under Article 2(1)(c), (f) and (g) of Regulation No 854/2004:

‘(1) For the purposes of this Regulation, the following definitions shall apply:

(c) “competent authority” means the central authority of a Member State competent to carry out veterinary checks or any authority to which it has delegated that competence;

(f) “official veterinarian” means a veterinarian qualified, in accordance with this Regulation, to act in such a capacity and appointed by the competent authority;

(g) “approved veterinarian” means a veterinarian designated by the competent authority to carry out specific official controls on holdings on its behalf’.

12 Article 4 of that regulation provides:

‘(1) Member States shall ensure that food business operators offer all assistance needed to ensure that official controls carried out by the competent authority can be performed effectively.

They shall in particular:

– give access to all buildings, premises, installations or other infrastructures;

– make available any documentation and record required under the present regulation or considered necessary by the competent authority for judging the situation.

(2) The competent authority shall carry out official controls to verify food business operators’ compliance with the requirements of:

(a) Regulation (EC) No 852/2004;

(b) Regulation (EC) No 853/2004;

and

(c) Regulation (EC) No 1774/2002 [of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption (OJ 2002 L 273, p. 1)].

(3) The official controls referred to in paragraph 1 shall include:

(a) audits of good hygiene practices and hazard analysis and...