CELEX: 62010CJ0382
Industrial Policy
Food hygiene
Regulation (EC) No 852/2004
Self-service retail of bread and bakery products

This reference for a preliminary ruling concerns the interpretation of paragraph 3 of Chapter IX of Annex II to 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, and corrigendum OJ 2004 L 226, p. 3; ‘the regulation’).
The reference was made in proceedings between Messrs Albrecht, Neumann, Sundara, Svoboda and Toth, on the one hand, and the
Landeshauptmann von Wien (head of government of the province of Vienna), on the other hand, regarding decisions concerning
the construction of containers for self-service retail of bread and bakery products.

Legal context

European Union legislation
Article 1(1) of the regulation, under the heading ‘Scope’, provides:
‘This Regulation lays down general rules for food business operators on the hygiene of foodstuffs, taking particular account
of the following principles:
(a)      primary responsibility for food safety rests with the food business operator;
...
(d)      general implementation of procedures based on the HACCP [hazard analysis and critical control point] principles, together
with the application of good hygiene practice, should reinforce food business operators’ responsibility;
...’
Article 4(2) of the regulation, under the heading ‘General and specific hygiene requirements’, states:
‘Food business operators carrying out any stage of production, processing and distribution of food after those stages to which
paragraph 1 applies shall comply with the general hygiene requirements laid down in Annex II …’
Article 5(1) and (2) of the regulation, under the heading ‘Hazard analysis and critical control points’, provide:
‘1.      Food business operators shall put in place, implement and maintain a permanent procedure or procedures based on the HACCP
principles.
2.      The HACCP principles referred to in paragraph 1 consist of the following:
(a)      identifying any hazards that must be prevented, eliminated or reduced to acceptable levels;
...’
In Annex II to the regulation, headed ‘General hygiene requirements for all food business operators (except when Annex I applies)’,
Chapter I of that annex, itself headed ‘General requirements for food premises (other than those specified in chapter III)’
states, in paragraph 3:
‘At all stages of production, processing and distribution, food is to be protected against any contamination likely to render
the food unfit for human consumption, injurious to health or contaminated in such a way that it would be unreasonable to expect
it to be consumed in that state.’

National legislation
According to the order for reference, Paragraph 39(1)(13) of the Law on food safety and consumer protection (Lebensmittelsicherheits-
und Verbraucherschutzgesetz, BGBl. I, 13/2006) provides that, where an infringement of the applicable legal rules on foodstuffs
is established, the Landeshauptmann is to take the necessary measures, in accordance with the nature of the infringement and
taking into account the principle of proportionality, in order to eliminate any deficiency or reduce a risk while laying down,
as the case may be, an appropriate time-limit and any essential requirements or conditions. Those measures may relate, inter
alia, to the carrying out of structural or technical improvements or concern fittings. The cost of those measures is to be
borne by the trader.
Under Paragraph 90(3)(1) of that law, a person who infringes Paragraphs 96 or 97 of that law commits an administrative offence
which is sanctioned by the district administrative authority by a fine of up to EUR 20 000 but which may reach EUR 40 000
in case of re-offending and, where the fine is not paid, may be replaced by a prison sentence of up to six weeks.

The actions in the main proceedings and the questions referred for a preliminary ruling
The referring court has before it a number of actions brought by franchised traders offering bread and bakery products for
sale. The competent authorities instructed those traders to construct containers for self-service retail of those products
in such a way that the products in question can be removed only by technical means, such as tongs or a sliding mechanism,
and items already removed from the container cannot be replaced.
Those requirements were imposed after checks by the authorities which established that containers had been installed in the
food shops in question in the main proceedings for the purpose of self-service retail of bread and bakery products. The facts
as established indicate that the covers of those containers have handles, making it possible to lift the covers with one hand
while removing the product using tongs made available to the customer with the other. The customer should then replace the
tongs and close the cover again.
According to Vienna’s Landeshauptmann, the risk of those self-service retail containers is that the customer can remove and
touch the foodstuffs by hand, or cough or sneeze on them. In addition, that authority pointed out that the mechanism in place
does not prevent the customer from returning a product to the container. According to that authority, the exposure of those
food products to sneezing by customers can cause germs or viruses to be deposited on the products. Equally, removing the food
by hand can contribute to the spreading of germs.
Before the referring court, the applicants in the main proceedings state that the containers in question were imported from
Germany where they are used, in their hundreds or even thousands, by food retailers. To date, the German authorities never
regarded those containers as incompatible, inter alia, with the requirements of paragraph 3 of Chapter IX of Annex II to the
regulation. The applicants in the main proceedings also state that the customers were expressly asked not to return goods
to the containers.
The referring court adds that expert reports originating in both Germany and Austria indicate that those containers do not
pose hygiene problems.
Considering that the outcome of the dispute before it requires an interpretation of paragraph 3 of Chapter IX of Annex II
to the regulation, the Unabhängiger Verwaltungssenat Wien decided to stay the proceedings and refer the following questions
to the Court of Justice for a preliminary ruling:
‘(1)      What are the criteria which determine unfitness of foodstuffs for human consumption under paragraph 3 of Chapter IX of Annex
II to [the regulation]? Does such unfitness already exist where a foodstuff offered for sale could conceivably have been touched
or sneezed upon by a would-be purchaser?
(2)      What are the criteria which determine injuriousness of foodstuffs to health under paragraph 3 of Chapter IX of Annex II to
[the regulation]? Does such injuriousness already exist where a foodstuff offered for sale could conceivably have been touched
or sneezed upon by a would-be purchaser?
(3)      What are the criteria which determine contamination of a foodstuff of such a kind that it would be unreasonable to expect
it to be consumed in that state within the meaning of paragraph 3 of Chapter IX of Annex II to [the regulation]? Does such
contamination already exist where a foodstuff offered for sale could conceivably have been touched or sneezed upon by a would-be
purchaser?’

Consideration of the questions referred
By its questions, which should be examined together, the referring court asks, in essence, whether paragraph 3 of Chapter
IX of Annex II to the regulation must be interpreted as meaning that, in circumstances such as those at issue in the main
proceedings, with regard to containers used for self-service retail of bread and bakery products, the fact that a potential
purchaser could conceivably have touched the foodstuffs offered for sale by hand or sneezed on them makes it possible, on
that basis alone, to hold that those foodstuffs were not protected against any contamination likely to render them unfit for
human consumption, injurious to health or contaminated in such a way that it would be unreasonable to expect them to be consumed
in that state.
In that regard, it should be stated that paragraph 3 lays down a general hygiene rule with which the food business operators
referred to in Article 4(2) of the regulation are obliged to comply by virtue of that provision.
The abovementioned paragraph 3, read in conjunction with Article 4(2) of the regulation, thus obliges those operators, at
all stages of production, processing and distribution, to protect food against any contamination likely to render it unfit
for human consumption, injurious to health or contaminated in such a way that it would be unreasonable to expect it to be
consumed in that state.
With regard to the context of those provisions, which must inter alia be considered in order to interpret them (see, to that
effect, Case C‑116/10
Feltgen and Bacino Charter Company
[2010] ECR I‑0000, paragraph 12 and case-law cited), Article 5 of the regulation must be taken into account, as correctly
stated by the applicants in the main proceedings, the Czech and Netherlands Governments and the European Commission.
Under Article 5(1) of the regulation, food business operators are to put in place, implement and maintain a permanent procedure
or procedures based on the HACCP principles. Among those principles is that contained in Article 5(2)(a) of the regulation,
which requires identification of any hazards that must be prevented, eliminated or reduced to acceptable levels.
As is apparent, inter alia, from Article 1(1)(a) and (d) of the regulation, the obligation laid down in Article 5(1) thereof
expresses the European Union legislature’s objective of allocating primary responsibility for food safety to food business
operators.
Paragraph 3 of Chapter IX of Annex II to the regulation must be interpreted in such a way that Article 5 of the regulation
is not deprived of effectiveness.
It follows that, in a situation such as that in the main proceedings, where the competent authorities do not appear to have
concluded that there was actual contamination, it cannot be concluded that food business operators have infringed the abovementioned
paragraph 3 on the basis only of the finding that a potential purchaser could conceivably have touched the foodstuffs by hand
or sneezed on them, without considering the measures taken by those operators under Article 5 of the regulation in order to
prevent, eliminate or reduce to acceptable levels the hazard which the contamination referred to in paragraph 3 of Chapter
IX of Annex II to the regulation may present and without determining that the measures taken in that regard were insufficient
in the light of all the available relevant data.
In that last regard, in particular, it cannot be concluded that those measures were insufficient without duly taking into
consideration the possible expert evidence submitted by those operators to show that such containers, used for self-service
retail, do not pose hygiene problems.
Consequently, the answer to the questions referred is that paragraph 3 of Chapter IX of Annex II to the regulation must be
interpreted as meaning that, in circumstances such as those at issue in the main proceedings, with regard to containers used
for self-service retail of bread and bakery products, the fact that a potential purchaser could conceivably have touched the
foodstuffs offered for sale by hand or sneezed on them does not make it possible, on that basis alone, to hold that those
foodstuffs were not protected against any contamination likely to render them unfit for human consumption, injurious to health
or contaminated in such a way that it would be unreasonable to expect them to be consumed in that state.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Eighth Chamber) hereby rules:
Paragraph 3 of Chapter IX of Annex II to Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April
2004 on the hygiene of foodstuffs must be interpreted as meaning that, in circumstances such as those at issue in the main
proceedings, with regard to containers used for self-service retail of bread and bakery products, the fact that a potential
purchaser could conceivably have touched the foodstuffs offered for sale by hand or sneezed on them does not make it possible,
on that basis alone, to hold that those foodstuffs were not protected against any contamination likely to render them unfit
for human consumption, injurious to health or contaminated in such a way that it would be unreasonable to expect them to be
consumed in that state.
[Signatures]
*
Language of the case: German.