11 April 2013
Regulation (EC) No 178/2002 — Consumer protection — Food safety — Public information — Placing on the market of food unfit for human consumption, but not constituting a health risk Case C‑636/11.
Request for a preliminary ruling under Article 267 TFEU from the Landgericht München I (Germany), made by decision of 5 December 2011, received at the Court on 9 December 2011, in the proceedings Karl Berger v Freistaat Bayern.
The Court (Fourth Chamber), composed of L. Bay Larsen (Rapporteur), President of the Chamber, J. Malenovský, U. Lõhmus, M. Safjan and A. Prechal, Judges, Advocate General: P. Mengozzi, Registrar: C. Strömholm, Administrator,
having regard to the written procedure and further to the hearing on 9 January 2013,
after considering the observations submitted on behalf of:
| — | K. Berger, by R. Wallau and M. Grube, Rechtsanwälte |
| — | Freistaat Bayern, by G. Himmelsbach, Rechtsanwalt |
| — | the German Government, by T. Henze and N. Graf Vitzthum, acting as Agents |
| — | the Danish Government, by C. Vang, acting as Agent |
| — | the United Kingdom Government, by H. Walker, acting as Agent |
| — | the European Commission, by S. Grünheid and L. Pignataro‑Nolin, acting as Agents |
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion, gives the following
Judgment
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This request for a preliminary ruling relates to the interpretation of Article 10 of 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).
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The request has been made in proceedings between Karl Berger and the Freistaat Bayern which put in issue the latter’s administrative liability on account of information made available to the public in relation to the former’s products.
Legal context
Regulation No 178/2002
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Article 1(1) and the first subparagraph of Article 1(2) of Regulation No 178/2002 provide: “1. This Regulation provides the basis for the assurance of a high level of protection of human health and consumers’ interest in relation to food, taking into account in particular the diversity in the supply of food including traditional products, whilst ensuring the effective functioning of the internal market. … 2. For the purposes of paragraph 1, this Regulation lays down the general principles governing food and feed in general, and food and feed safety in particular, at Community and national level.”
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Article 3 of the regulation contains the following definitions (excerpt): 9. “risk” means a function of the probability of an adverse health effect and the severity of that effect, consequential to a hazard; 14. “hazard” means a biological, chemical or physical agent in, or condition of, food or feed with the potential to cause an adverse health effect;
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Article 4(2) to (4) provides: “2. The principles laid down in Articles 5 to 10 shall form a general framework of a horizontal nature to be followed when measures are taken. 3. Existing food law principles and procedures shall be adapted as soon as possible and by 1 January 2007 at the latest in order to comply with Articles 5 to 10. 4. Until then, and by way of derogation from paragraph 2, existing legislation shall be implemented taking account of the principles laid down in Articles 5 to 10.”
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Article 5(1) states: “Food law shall pursue one or more of the general objectives of a high level of protection of human life and health and the protection of consumers’ interests …”
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Article 10 is worded as follows: “Without prejudice to the applicable provisions of Community and national law on access to documents, where there are reasonable grounds to suspect that a food or feed may present a risk for human or animal health, then, depending on the nature, seriousness and extent of that risk, public authorities shall take appropriate steps to inform the general public of the nature of the risk to health, identifying to the fullest extent possible the food or feed, or type of food or feed, the risk that it may present, and the measures which are taken or about to be taken to prevent, reduce or eliminate that risk.”
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Article 14(1)–(2) and (5) provides: 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 … or through putrefaction, deterioration or decay.”
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The first and second subparagraphs of Article 17(2) provide that Member States shall enforce food law, maintain official controls and ensure public communication on food and feed safety.
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Article 19(1) states that a food business operator who believes a food is not in compliance shall withdraw it from the market and inform competent authorities and, where relevant, the consumers.
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The second paragraph of Article 65 specifies that Articles 14 to 20 shall apply from 1 January 2005.
Regulation (EC) No 882/2004
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Article 7 provides that competent authorities shall ensure transparency and make information on their control activities and on information pursuant to Article 10 of Regulation 178/2002 available to the public.
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The regulation is applicable from 1 January 2006.
German law
- Article 40 of the German Food, Consumer Goods and Feed Code (LFGB) allows the competent authority to inform the public of the name of the food, its manufacturer, processor or distributor where the food is unfit for human consumption, provided that a particular public interest outweighs the interests of the parties.
The dispute in the main proceedings and the questions referred
15‑27. Summary of facts concerning inspections of Berger Wild, press releases, recalls, and the national proceedings.
Questions referred
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Does Article 10 of Regulation (EC) No 178/2002 preclude national rules allowing public information on the name of a food and the name or trade name of its manufacturer, processor or distributor where the food is not injurious to health but is unfit for human consumption?
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If the answer to (1) is affirmative, would the answer differ for situations prior to 1 January 2007 where national law had already been brought into line with the regulation?
Court’s reasoning
28‑36. Interpretation of Articles 10, 14, 17‑19, 65, and the interaction with national law.
Conclusion
Article 10 of Regulation (EC) No 178/2002 must be interpreted as not precluding national legislation allowing public information on the name of a food and the name or trade name of the food manufacturer, processor or distributor where the food, though not injurious to health, is unfit for human consumption. The second subparagraph of Article 17(2) allows national authorities to issue such information in accordance with Article 7 of Regulation 882/2004.
Costs
- Costs are for the national court; costs incurred in submitting observations to the Court are not recoverable.
Order
The Court (Fourth Chamber) rules that Article 10 of Regulation (EC) No 178/2002 shall be interpreted as stated above, and that the second subparagraph of Article 17(2) permits national authorities to issue the information in line with Article 7 of Regulation 882/2004.
Signature of the judges