Certinews

Hygiëne dierlijk

delivered on 29 June 2023
Case C‑311/22

Anklagemyndigheden v PO, Moesgaard Meat 2012 A/S

Request for a preliminary ruling from the Højesteret (Supreme Court, Denmark) – Environment – Directive 2010/75/EU – Integrated pollution prevention and control – Permit – Operation of slaughterhouses – Production capacity – Carcasses – Production capacity per day

I. Introduction


1.	How should it be assessed whether a slaughterhouse has a carcass production capacity of 50 tonnes per day and must therefore hold a permit under the Industrial Emissions Directive? (see [2]) That is the question to which the present request for a preliminary ruling seeks an answer.
2.	For, as the slaughterhouse forming the subject of this case did not initially have such a permit, the undertaking concerned and its managing director are now the subject of a criminal prosecution. At issue in those criminal proceedings is how the slaughterhouse’s capacity must be assessed.
3.	In that connection, it falls to be clarified in particular whether it is the weight of the carcass before or after dressing, that is to say, after bleeding and evisceration and after removal of the neck and head, that is decisive for the purposes of the threshold value. A further question is how the capacity per day is determined and to what extent actual production can be taken into account in the determination of capacity.

II. Legal framework

A. European Union law

1. Industrial Emissions Directive


4.	The Industrial Emissions Directive recasts, inter alia, Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, which contained largely identical provisions on the obligation for slaughterhouses to hold a permit (see [3]).
5.	Article 3(3) of the Industrial Emissions Directive defines the term ‘installation’ as follows: ‘a stationary technical unit within which one or more activities listed in Annex I or in Part 1 of Annex VII are carried out, and any other directly associated activities on the same site which have a technical connection with the activities listed in those Annexes and which could have an effect on emissions and pollution’.
6.	Article 4 of the Industrial Emissions Directive lays down an obligation to hold a permit: ‘(1) Member States shall take the necessary measures to ensure that no installation … is operated without a permit. …’
7.	Annex I to the Industrial Emissions Directive is introduced as follows: ‘The threshold values given below generally refer to production capacities or outputs. …’
8.	Point 6.4(a) of Annex I to the Industrial Emissions Directive defines slaughterhouses the operation of which is covered by that directive: ‘Operating of slaughterhouses with a carcass production capacity greater than 50 tonnes per day’.

2. Specific rules on slaughter


9.	Article 2(d) of Council Directive 64/433/EEC of 26 June 1964 (as amended by Council Directive 91/497/EEC of 29 July 1991) defined the term ‘carcase’ as the whole body of a slaughtered animal after bleeding, evisceration and removal of the limbs at the carpus and tarsus, removal of the head, tail and the udder, and, in the case of bovine animals, sheep, goats and solipeds, after flaying (see [4], [5]).
10.	Those rules were replaced by Regulation (EC) No 853/2004 laying down specific hygiene rules for food of animal origin (see [6], [7]). As regards the definition of ‘carcase’, that regulation states that the term refers to the body of an animal after slaughter and dressing (point 1.9 of Annex I).
11.	More precise definitions of the term ‘carcass’ are contained in Annex IV to Regulation (EU) No 1308/2013. It defines ‘carcass’ for bovine animals and sheep as the whole body after bleeding, evisceration and skinning; for pigs as the body after bleeding and evisceration, whole or divided down the mid‑line (see [8]).

B. Danish law


12.	Denmark transposed the Industrial Emissions Directive by means of the Lov om miljøbeskyttelse (Danish law on protection of the environment) (as amended by Executive Order No 100 of 19 January 2022) and the Executive Order on permits for listed activities (as amended by Executive Order No 2080 of 15 November 2021) without providing any additional clarification as regards the threshold applicable to slaughterhouses.
13.	Paragraph 110(2) of the Danish law on protection of the environment, read in conjunction with sub‑paragraph 1, point 6, provides that anyone operating a slaughterhouse without a permit is liable to up to two years’ imprisonment if the breach caused environmental damage.
14.	The Danish Executive Order on the production levy for the slaughter and export of pigs (as amended by Executive Order No 2183 of 26 November 2021) provides that a levy is payable on each pig produced, slaughtered and unconditionally authorised for human consumption. The levy is based on the delivered slaughter weight (weight of a pig carcass with its head and feet but without flare fat).

III. Facts and request for a preliminary ruling


15.	From 2014 to 2016, Moesgaard Meat 2012 A/S operated a slaughterhouse without holding a permit as required under the Danish law on protection of the environment. The company did not receive such a permit until 9 May 2018, after having fulfilled certain conditions imposed by the environmental authorities.
16.	For that reason, Moesgaard Meat and its managing director, PO, were charged with having breached the Danish law on protection of the environment by operating a slaughterhouse with a carcass production capacity greater than 50 tonnes per day without an environmental permit, thereby giving rise to a risk of damage to the environment.
17.	In those criminal proceedings, the parties dispute whether the weight of carcasses is to be determined by reference to the weight of the animals to be processed (‘raw material’) or by reference to the end product, i.e. the carcasses without the head and in a frozen (bled) state. They also dispute whether the calculation of production per day must take into account only the days of slaughter or also days on which other slaughter‑related work is carried out, and whether a slaughterhouse’s production volume can be decisive for the purposes of calculating its capacity when, because of illegal measures (use of additional refrigerated containers), that volume is higher than the installation’s capacity without those illegal measures.
18.	The proceedings are now pending before the Højesteret (Supreme Court, Denmark), which has referred the following questions to the Court of Justice:

(1) Is point 6.4(a) of Annex I to the Industrial Emissions Directive to be interpreted as meaning that “carcass production” covers the slaughter process … or does it mean the production of pig carcasses after the organs and entrails …?
(2) Is point 6.4(a) to be interpreted as meaning that, when determining the number of production days included in the capacity “per day”, this should take into account only the days when stunning, killing and immediate cutting up … or also the days when the operations for dressing the slaughter pigs are carried out …?
(3) Is point 6.4(a) to be interpreted as meaning that the “capacity” of a slaughterhouse is to be calculated as the maximum production per day within 24 hours, subject to the physical, technical or legal constraints actually complied with by the slaughterhouse, but not lower than its achieved production, or can the slaughterhouse’s “capacity” be lower than its achieved production …?| |19.|PO and Moesgaard Meat, acting jointly, the Kingdom of Denmark and the European Commission submitted written observations and presented oral argument at the hearing on 9 March 2023.|

IV. Legal assessment


20.	It may seem surprising that the Court should be asked to interpret provisions of a directive in the context of criminal proceedings. However, the referring court seeks to use the interpretation of the directive to interpret the transposing provisions contained in the Danish law on protection of the environment, which are largely the same as those of the directive. The criminal liability of the defendants depends on whether they have infringed those transposing provisions.
21.	In accordance with Article 4(1) of the Industrial Emissions Directive, Member States are to take the necessary measures to ensure that no installation is operated without a permit. Article 3(3) defines an installation as a stationary technical unit … Point 6.4(a) lists operating slaughterhouses with a carcass production capacity greater than 50 tonnes per day.
22.	The questions referred seek an interpretation of the terms used to describe that type of installation. I shall answer them in reverse order.
23.	By the third question, the referring court wishes to ascertain whether the capacity of a slaughterhouse may be lower than the production actually achieved (see Section A). The second question concerns the expression ‘per day’ and the determination of the number of production days (see Section B). The first question concerns the term ‘carcass production’ (see Section C).

A. Question 3 – Actual production


24.	The third question asks whether a slaughterhouse’s capacity must be assessed by reference to its physical, technical or legal constraints or by reference to the production actually achieved.
25.	Article 4(1) requires that it must be possible to determine whether an installation falls within the scope of the provision before it is put into operation.
26.	Member States must check installations with respect to the need for a permit before they enter into operation. It has not been possible to ascertain whether, and how, this took place in the present case.
27.	In any event, the production later actually achieved is not a suitable criterion for determining beforehand whether an installation requires a permit; that information is only available after the decision must be made.
28.	Therefore, an installation’s capacity must be assessed by reference to other criteria. The term ‘capacity’ refers to an installation’s maximum production volume, to be sought in the physical, technical or legal constraints that characterise the installation (see [10]). The intentions or production targets of the operator cannot be relied on for this purpose.
29.	It is necessary to determine which part of the installation or which production step limits the capacity of the specific installation. Other parts cannot produce more because the limiting step cannot process or supply more intermediate products.
30.	The proceedings raise the issue of whether account must be taken of a production level achieved only because of additional illegally installed refrigerated containers.
31.	Refrigeration capacity limits the total capacity of the slaughterhouse. When refrigeration facilities are full, further slaughter would produce meat that would spoil, so unused killing capacity does not increase the overall capacity.
32.	Any later increase in refrigeration capacity through additional containers constitutes a change to the installation. If the installation already has a permit, the operator must inform the competent authority of that change (Article 20(1) of the directive).
33.	If the threshold is exceeded only by virtue of those additional refrigerated containers, the installation may not be operated until a permit is issued (Article 4).
34.	Similar considerations apply where other physical, technical or legal constraints are removed or mitigated (e.g., longer working hours).
35.	Any capacity in excess of that assumed which manifests itself in actual operation must not be disregarded; it is a strong indication that the assessment of capacity was based on false assumptions.
36.	Consequently, an installation without a permit that exceeds the threshold during actual production may require a permit after all.
37.	The operator must inform the authority without delay. The authority must assess the installation’s capacity by reference not only to the new information but also to any other circumstances of the particular case.
38.	If the excess production is a one‑off exceptional event, the authority may choose not to conclude that the exceptional increase is indicative of greater capacity.
39.	Thus, for the purposes of applying point 6.4(a) of Annex I, the capacity of an installation must be assessed by reference to the physical, technical or legal constraints characterising it. Should the actual production later exceed the assumed capacity and the threshold, the operator must communicate this without delay to the authority, which must take the necessary further measures.

B. Question 2 – Capacity per day


40.	The second question seeks to determine an installation’s capacity per day.
41.	The request states that the slaughter process at Moesgaard Meat is spread over three days: delivery and preparation (day 1), killing and hanging (day 2), removal of head and neck and preparation for collection (day 3). The party argues that capacity per day should be based on weekly production divided by seven days, whereas Denmark argues that only the days on which animals are actually killed should be taken into account.
42.	This dispute reflects again the incorrect assumption that the capacity triggering a permit obligation can be determined directly on the basis of production per day.
43.	For the purposes of deciding whether there is an obligation to hold a permit, production capacity must be determined beforehand by reference to the installation’s characteristics and individual components. It is necessary to determine the maximum capacity of the installation as a whole, taking into account the physical, technical or legal constraints of each component (see [12]).
44.	It does not matter whether the end product is itself produced on that day; what matters is how much of the end product can be produced from the intermediate product emerging from the decisive production step.
45.	If the production volume is limited by refrigeration capacity, the first step is to determine how many killed animals can be brought into the refrigeration facilities each day, and then how many carcasses can be produced from them.
46.	To determine maximum capacity, a daily round‑the‑clock operation must be assumed (24 hours), unless constraints (legal limitations, essential maintenance) prevent it (see [14]).
47.	It is irrelevant whether, because of bans on trading on Sundays or public holidays, the installation is non‑operational on certain days; point 6.4(a) lays down a daily threshold. Capacity fluctuations would therefore be assessed over longer periods, not daily averages.
48.	The objective of the directive (Article 1(1) and recital 2) is to prevent or at least reduce environmental pollution. The installation should be designed to avoid high production peaks that could cause disproportionate pollution (see [15], [16]).
49.	If an installation is designed only for average production levels, pollution‑prevention systems could be overloaded during intensive production, risking insufficient wastewater treatment or waste storage.
50.	The way the installation is actually organised is relevant only insofar as the constraints are reflected in its organisation (e.g., legal restrictions on working hours).
51.	If the installation is organised such that the capacity is not fully utilised despite the absence of physical, technical or legal constraints, this does not change the capacity that triggers the permit obligation. Economic considerations are irrelevant.
52.	Therefore, the answer to the second question is that an installation’s capacity per day within the meaning of point 6.4(a) of Annex I is to be determined by reference to the maximum production achievable within 24 hours, taking into account the physical, technical or legal constraints affecting all parts of that installation.

C. Question 1 – Meaning of ‘carcass’


53.	The first question seeks to clarify whether ‘carcasses’ should be understood as the weight of the animal immediately after being killed (live weight) or as the weight after further processing steps (removal of organs, neck, head, exsanguination, chilling).
54.	In practice, this distinction can have a significant impact on whether the threshold for the obligation to hold a permit is reached. In Denmark, processing steps reduce weight by about 45 % in cattle and about 33 % in pigs (see [17]).
55.	All parties recognise that this question cannot be assessed on the basis of the Danish Executive Order on the production levy on the slaughter and export of pigs. For the purposes of applying the Industrial Emissions Directive, the capacity of slaughterhouses must be determined on the basis of EU law, interpreted independently (see [18]).
56.	On the purely literal meaning, ‘carcass production’ in point 6.4(a) could be construed as referring to animals immediately after being killed. Some language versions use a term originally intended to denote a dead living being. Even the German term ‘Schlachtkörper’ denotes a slaughtered (killed) body.
57.	However, it is important not to lose sight of how the terms are actually understood in the economic sector concerned. In many languages the reference to slaughter is apparent (Spanish ‘canal’, Danish ‘slagtekrop’, German ‘Schlachtkörper’, Dutch ‘geslachte dieren’, Swedish ‘slaktvikt’).
58.	The terms used in the directive are understood to mean that the act of killing the animals is followed by further processing steps which reduce their weight.
59.	Article 2(d) of Directive 64/433 (as amended by Directive 91/497) defined ‘carcase’ as the whole body after bleeding, evisceration and removal of limbs, head, tail and udder (see [6]).
60.	Point 1.9 of Annex I to Regulation (EC) No 853/2004 states that a ‘carcase’ is the body of an animal after slaughter and dressing, but does not specify which parts are removed.
61.	Regulation No 1308/2013 provides a more helpful definition: ‘carcass’ means the whole body of a slaughtered bovine or sheep after bleeding, evisceration and skinning; for pigs, the body after bleeding and evisceration, whole or divided down the mid‑line (see [9]).
62.	Two points must be noted:

(a) The definition of ‘carcass’ in force when the original environmental permit scheme was adopted (Directive 96/61) was that contained in Directive 64/433, as amended. This definition shaped the understanding of the term in the legislative process.
(b) The German version of the permit scheme originally used ‘Tierkörper’ (animal body) rather than ‘Schlachtkörper’; the latter was introduced only by the current Industrial Emissions Directive.| |63.|The definitions in the rules on slaughter are consistent with the introduction to Annex I, which states that the threshold values generally refer to production capacities, i.e., the volume of produced product.| |64.|The economic sector assumes that a carcass refers to the processed dead body after substantial parts have been removed. This is confirmed by information from authorities in Flanders, the United Kingdom and Germany.| |65.|The best‑available‑techniques reference document for slaughterhouses contains a table showing that carcass weight lags significantly behind live weight in many Member States (see [22]).| |66.|Taking into account the legitimate expectation of practice in the implementation of point 6.4(a) also ensures foreseeability and precision of criminal law provisions.| |67.|Therefore, a ‘carcass’ is to be construed as the body of a slaughtered animal after dressing, i.e., after further processing steps have been completed.| |68.|The definitions in the rules on slaughter are consistent only regarding evisceration and bleeding; Annex IV to Regulation No 1308/2013 differs concerning the skin and head for bovine animals and sheep versus pigs.| |69.|It must be assumed that the rules in Annex IV to Regulation No 1308/2013, which are applicable now, have driven the evolution of the understanding of the term. The term ‘carcass’ in point 6.4(a) should therefore be interpreted in accordance with the definitions and presentation rules contained in Annex IV to Regulation (No 1308/2013).| |70.|The proposition that live weight should be taken into account is not supported by the fact that many language versions of the directive use terms that refer to the slaughtered animal (e.g., Dutch ‘geslachte dieren’, Swedish ‘slaktvikt’).| |71.|While divergent language versions extend the scope for interpretation, the schematic context and the objective of pollution prevention indicate that capacity should be determined by reference to the weight of the dead animals after further processing.| |72.|The objective of the directive (preventing environmental pollution) might suggest regard to live weight, but the definitions in the rules on slaughter focus on the processed carcass, which is the relevant product for pollution assessment.| |73.|The Commission submits that this interpretation does not preclude Member States from adopting stricter national rules based on live weight, but Denmark has not adopted such stricter rules.| |74.|Answer to the first question: the term ‘carcass’ in point 6.4(a) must be interpreted in accordance with the definitions of the term ‘carcass’ and the presentation rules contained in Annex IV to Regulation (No 1308/2013).|

V. Conclusion


79.	(1) For the purposes of applying point 6.4(a) of Annex I to the Industrial Emissions Directive, the capacity of an installation must be assessed by reference to the physical, technical or legal constraints characterising it. Should the actual production of an installation for which a permit was not initially issued later exceed its assumed capacity and the applicable threshold, the operator must be required to communicate this without delay to the authority responsible for issuing permits, which must take the necessary further measures.
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	(2) An installation’s capacity per day within the meaning of point 6.4(a) of Annex I to the Industrial Emissions Directive is to be determined by reference to the maximum production achievable within 24 hours, taking into account the physical, technical or legal constraints affecting all parts of that installation.
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	(3) The term ‘carcass’ as used in point 6.4(a) of Annex I to the Industrial Emissions Directive must be interpreted in accordance with the definitions of the term ‘carcass’ and the rules on presentation contained in Annex IV to Regulation (No 1308/2013) establishing a common organisation of the markets in agricultural products.

[1] Original language: German. [2] Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (OJ 2010 L 334, p. 17). [3] OJ 1996 L 257, p. 26. [4] OJ, English Special Edition 1963‑1964, p. 185 (ceased to be effective on 31 December 2005). [5] OJ 1991 L 268, p. 69. [6] Regulation (EC) No 853/2004 (OJ 2004 L 139, p. 55). [7] See also the amendments to that regulation, including Delegated Regulation 2022/2258 (OJ 2022 L 299, p. 5). [8] Regulation (EU) No 1308/2013 (OJ 2013 L 347, p. 671). [9] See European Commission, Reference Document on Best Available Techniques in the Slaughterhouses and Animal By‑products Industries (May 2005), Table 1.3 (p. 6). [10] European Commission, Guidance on Interpretation and Determination of Capacity under the IPPC Directive (Version 1, April 2007). [11] European Commission, Guidance on Interpretation and Determination of Capacity under the IPPC Directive, Section 3. [12] See point 28 above. [13] See point 29 above. [14] See also European Commission, Guidance on Interpretation and Determination of Capacity under the IPPC Directive, Section 2. [15] Judgment of 22 January 2009, Association nationale pour la protection des eaux et rivières (C‑473/07), paragraph 25. [16] Judgment of 15 December 2011, Møller (C‑585/10), paragraph 31. [17] European Commission, Reference Document on Best Available Techniques in the Slaughterhouses and Animal By‑products Industries (May 2005), Table 1.3 (p. 6 and 7). [18] Various C‑case judgments (e.g., Linster 2000, Monsanto 2003, Staatssecretaris 2022). [22] European Commission, Reference Document on Best Available Techniques in the Slaughterhouses and Animal By‑products Industries (May 2005), Table 1.3 (p. 6 and 7). [31] Judgments of Bouchereau 1977, Hessischer Rundfunk 2021, Spain v Commission 2023. [32] Judgment of 22 January 2009, Association nationale pour la protection des eaux et rivières (C‑473/07), paragraph 27; and 15 December 2011, Møller (C‑585/10), paragraph 31. [33] Judgment of 15 December 2011, Møller (C‑585/10), paragraph 37. [34] Example: Germany, Fourth Regulation implementing the Federal Law on Pollution Control (BImSchV), notice 31 May 2017, p. 1440 (amended 2021).

EUR-Lex Hygiëne dierlijk 29.12.2025