Delivered on 11 February 2021
Case C‑579/19 – The Queen, on the application of Association of Independent Meat Suppliers and Cleveland Meat Company Ltd v Food Standards Agency (Request for a preliminary ruling from the Supreme Court of the United Kingdom)
I. Introduction
| 1. | This request for a preliminary ruling from the Supreme Court of the United Kingdom relates essentially to 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 (link), as well as of Article 54(3) of Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (link). Article 5(2) of Regulation No 854/2004 concerns the application by official veterinarians of health marks when they deem meat fit for human consumption, while Article 54(3) of Regulation No 882/2004 concerns information on rights of appeal against such decisions. |
| 2. | Regulations No 854/2004 and No 882/2004 form part of the legal framework governing food safety in the European Union (link). Broadly speaking, those regulations set out harmonised rules on official controls performed by the competent authorities of the Member States to ensure that food business operators comply with their obligations under EU law. In that context, official veterinarians are specially qualified persons who, with the assistance of official auxiliaries, carry out tasks on behalf of those authorities in the system of official controls concerning meat. |
| 3. | This case invites the Court to rule on what follows from the ‘right to appeal against the decisions taken by the competent authority as a result of the official controls’ set out in recital 43 of Regulation No 882/2004 and further elaborated on in Article 54(3) of that regulation. |
| 4. | First, the referring court asks about the consistency with Regulations No 854/2004 and No 882/2004 of a legal regime which existed in United Kingdom law prior to the entry into force of those regulations, namely section 9 of the Food Safety Act 1990 (‘the 1990 Act’) (link). The referring court has done so in the context of a dispute between the claimants in the main proceedings, the Cleveland Meat Company (‘CMC’) and the Association of Independent Meat Suppliers, and the defendant, the Food Standards Agency (‘the FSA’), on which route available in national law for judicial assessment of a decision taken by an official veterinarian not to apply a health mark to meat deemed unfit for human consumption is compatible with EU law. |
| 5. | Secondly, the referring court asks whether, in order to comply with those regulations and EU law more generally, Regulation No 882/2004 provides for an appeal against an official veterinarian’s decision refusing to apply a health mark under Article 5(2) of Regulation No 854/2004. |
| 6. | Consequently, this case raises novel issues concerning effective judicial protection for private parties in EU food law and the relationship between Regulations No 854/2004 and No 882/2004 in that regard. |
II. Legal framework
| 7. | Article 5(2) of Regulation No 854/2004 provides: “The health marking of carcases of domestic ungulates, farmed game mammals other than lagomorphs, and large wild game, as well as half‑carcasses, quarters and cuts produced by cutting half‑carcasses into three wholesale cuts, shall be carried out in slaughterhouses and game‑handling establishments in accordance with Section I, Chapter III, of Annex I. Health marks shall be applied by, or under the responsibility of, the official veterinarian when official controls have not identified any deficiencies that would make the meat unfit for human consumption.” |
| 8. | According to recital 43 of Regulation No 882/2004: “Operators should have a right to appeal against the decisions taken by the competent authority as a result of the official controls, and be informed of such a right.” |
| 9. | Article 54(3) of Regulation No 882/2004 states that the competent authority shall provide the operator concerned with (a) written notification of its decision together with the reasons, and (b) information on rights of appeal against such decisions and on the applicable procedure and time limits. |
III. Facts, main proceedings and questions referred
| 10. | On 11 September 2014, CMC purchased a live bull for about £1 400 (≈ €1 700). The carcass was passed fit for slaughter by the official veterinarian, but the post‑mortem inspection of the off‑al identified three abscesses in the offal. Later that day, the official veterinarian, after discussion with the inspector, declared the meat un‑fit for human consumption because the abscesses raised suspicion of pyaemia. Consequently, the official veterinarian did not apply a health mark, and CMC was prohibited from selling the carcass under Regulation 19 of the Food Safety and Hygiene (England) Regulations 2013. |
| 11. | CMC sought a second veterinary opinion and challenged the official veterinarian’s opinion. The FSA considered that there was no need to use section 9 of the 1990 Act and that, having been deemed un‑fit for human consumption, the carcass should be disposed of as an animal by‑product. |
| 12. | On 23 September 2014, the official veterinarian, acting for the FSA, served a notice on CMC requiring disposal of the carcass as an animal by‑product under Regulation 25(2)(a) of the Animal By‑Products (Enforcement) (England) Regulations 2013 and Regulation No 1069/2009. The notice stated: “You may have a right of appeal against my decision by way of judicial review. An application for such an appeal should be made promptly and, in any event, generally within three months from the date when the ground for the application first arose.” |
| 13. | A claim for judicial review was brought before the High Court of Justice (England & Wales), Queen’s Bench Division, by CMC and the Association of Independent Meat Suppliers (the claimants) to challenge the FSA’s assertion that it was unnecessary to use the procedure set out in section 9 of the 1990 Act and to claim, alternatively, that the United Kingdom must provide a means of challenging an official veterinarian’s decision as to whether meat is fit for human consumption. The claimants were unsuccessful before that court and the Court of Appeal, and appealed to the Supreme Court of the United Kingdom. |
| 14. | The referring court indicated that the procedure set out in section 9 of the 1990 Act is not framed as an appeal against an official veterinarian’s decision as to the fitness of meat. Under that procedure, an authorised officer may seize food and have it dealt with by a Justice of the Peace, who may condemn it or, if not condemned, order compensation to the owner. |
| 15. | The claimants argue that section 9 provides a means both for enforcing an official veterinarian’s decision and for operators to subject that decision to judicial scrutiny. The FSA contends that the Justice of the Peace cannot order the veterinarian to apply a health mark, and therefore section 9 is unsuitable. |
| 16. | The referring court noted that a slaughterhouse operator may bring a claim for judicial review to challenge an official veterinarian’s decision, but such a claim does not constitute an appeal on the merits of that decision. |
| 17. | The Supreme Court of the United Kingdom stayed the main proceedings and referred two questions to the Court of Justice: |
- Do Regulations [No 854/2004 and No 882/2004] preclude a procedure whereby, pursuant to section 9 of the 1990 Act, a Justice of the Peace decides on the merits of the case and, on the basis of expert evidence, whether a carcass fails to comply with food safety requirements?
- Does Regulation [No 882/2004] mandate a right of appeal in relation to a decision of an official veterinarian under Article 5(2) of Regulation [No 854/2004] that the meat of a carcass was unfit for human consumption, and, if so, what approach should be applied in reviewing the merits of that decision?
IV. Procedure before the Court
| 18. | Written observations were submitted to the Court by the claimants, the United Kingdom and the European Commission. |
| 19. | While the case was pending, the United Kingdom left the European Union on 31 January 2020. Under Article 86(2) of the Withdrawal Agreement, the Court continues to have jurisdiction over requests made before the end of the transition period (31 December 2020). |
| 20. | Consequently, the request for a preliminary ruling was made on 31 July 2019, and the Court retains jurisdiction. |
V. Summary of the observations of the parties
| 21. | The claimants submit that the first question should be answered in the negative: Regulations 854/2004 and 882/2004 do not preclude a procedure such as section 9 of the 1990 Act. |
| 22. | The claimants contend that the second question should be answered positively: Regulation 882/2004 gives rise to a right of appeal against an official veterinarian’s decision under Article 5(2) of Regulation 854/2004, and the appeal tribunal should conduct a full review of all relevant issues of fact and law. |
| 23. | The claimants argue that a claim for judicial review does not provide a merits review and rely on Article 47 of the Charter for an effective remedy. |
| 24. | The United Kingdom submits that the first question should be answered in the affirmative: Regulation 854/2004 precludes a procedure such as section 9 of the 1990 Act. |
| 25. | The United Kingdom contends that the second question should be answered in the negative: Regulation 882/2004 does not give rise to a right of appeal against an official veterinarian’s decision under Article 5(2) of Regulation 854/2004. |
| 26. | The United Kingdom argues that the existing procedural framework provides an adequate remedy compatible with EU law and the Charter. |
| 27. | The United Kingdom notes an administrative solution introduced by the FSA in 2018, allowing a second veterinary opinion, but states that it does not constitute a judicial review. |
| 28. | The Commission, addressing the questions in reverse order, submits that Regulation 882/2004 requires Member States to provide a right of appeal against an official veterinarian’s decision, but the scope of that appeal is a matter for national law. |
| 29. | The Commission also argues that a full merits review is not required, given the need for public health protection and the expertise of official veterinarians. |
| 30. | The Commission reiterates that Regulations 854/2004 and 882/2004 do not preclude a national procedure such as section 9 of the 1990 Act, subject to equivalence and effectiveness. |
VI. Analysis
| 31. | The first question concerns whether EU Regulations preclude a national procedure (section 9 of the 1990 Act) for challenging an official veterinarian’s decision. This engages the Court’s case‑law on procedural autonomy, equivalence, effectiveness, and Article 47 of the Charter. |
| 32. | The second question concerns whether Regulation 882/2004 mandates a right of appeal against an official veterinarian’s decision under Article 5(2) of Regulation 854/2004, and whether that appeal must involve a full merits review. |
| 33. | I observe that the questions raised have not yet been dealt with by the Court. Preliminary observations will be made on the link between Article 47 of the Charter and the EU food safety regime (Section A), followed by an examination of the second (Section B) and first (Section C) questions. |
| 34. | Conclusion on the first question: Subject to verification by the referring court, Regulations 854/2004 and 882/2004, read in conjunction with the principle of effectiveness and Article 47 of the Charter, preclude a national procedure such as section 9 of the 1990 Act. |
| 35. | Conclusion on the second question: Article 54(3) of Regulation 882/2004 requires Member States to provide a right of appeal against an official veterinarian’s decision refusing to apply a health mark under Article 5(2) of Regulation 854/2004. That provision, read in the light of Article 47 of the Charter, does not preclude a procedure such as a claim for judicial review, whereby the national court may review the decision but is not permitted to review its merits. |
VII. Conclusion
| 36. | (1) Subject to verification by the referring court, Regulation (EC) No 854/2004 and Regulation (EC) No 882/2004, read in conjunction with the principle of effectiveness and Article 47 of the Charter of Fundamental Rights of the European Union, are to be interpreted as precluding a national procedure such as section 9 of the 1990 Act. |
| 37. | (2) Article 54(3) of Regulation No 882/2004 requires Member States to provide a right of appeal against an official veterinarian’s decision refusing to apply a health mark to meat deemed unfit for human consumption pursuant to Article 5(2) of Regulation No 854/2004. Those provisions, read in the light of Article 47 of the Charter, are to be interpreted as not precluding a procedure such as a claim for judicial review, wherein the national court or tribunal may review the decision but is not permitted to review its merits. |
Original language: English (en)