Opinion of the Advocate General — ECLI:EU:C:2018:974
Date: 2018-11-29
Language of the case: Dutch
Subject matter: Agriculture and Fisheries;Public health
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary 86. Having set out the three themes around which the five questions of the referring court revolve, for the sake of clarity, I shall outline concise answers to the specific questions referred. 87. Question 1 must be answered in the affirmative. If the controls in question are carried out after evisceration and cleaning, thus verifying compliance with point 8, then there should be no contamination, especially no visible contamination. 88. In spite of some of the other points raised by the referring court, and in particular despite the rather detailed arguments made by the Applicants at the hearing, I do not think that it is the role of this Court to go beyond that statement. While of course acknowledging the inherently intriguing nature of the discussion whether or not one or two small specks (and potentially of what diameter) of faeces or bile next to the anus inside a carcase could still represent an ‘acceptable’ degree of contamination (as raised by the Applicants at the hearing by the way of an example), it is neither the role of this Court to assess the facts nor to carry out their evaluation in view of solving a case pending before the referring court. 89. Question 2 is also to be answered in the affirmative: the notion of contamination includes contamination by faeces, bile or crop contents. 90. Regarding Question 3, cleaning should take place as soon as possible after evisceration, as clearly stated in point 8, and before the chilling, cutting or packaging processes start. 91. On Question 4, despite a certain lack of clarity as to what exactly was checked on the basis of which EU law provision, it is rather clear that public authorities can remove a number of carcases from the slaughter line and check compliance with the respective requirements at each stage, especially after cleaning because of the decisive nature of that operation when the poultry is ‘ready-to-cook’. What exactly may be checked and to what standard depends on the stage at which the inspection occurs and, accordingly, whether compliance with obligations under point 5, or under point 8, or under whatever other applicable provision is being checked. 92. In view of the answers given above, and in particular the answer to Question 1, there is no need to answer Question 5. V. Conclusion 93. In the light of the abovementioned considerations, I suggest that the Court answer the questions posed by the Rechtbank Rotterdam (District Court, Rotterdam, Netherlands) as follows: – Points 5 and 8 of Annex III, Section II, Chapter IV 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 must be interpreted as meaning that, after evisceration and cleaning, a poultry carcase may no longer contain any contamination; – Points 5 and 8 of Annex III, Section II, Chapter IV of Regulation No 853/2004 apply to contamination by faeces, bile and crop contents; – Point 8 of Annex III, Section II, Chapter IV of Regulation No 853/2004 must be interpreted as meaning that cleaning must take place after evisceration but before chilling; – Articles 3 and 10 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 allow the competent authority to carry out controls at any appropriate step of the slaughter process, including after cleaning. 1 Original language: English. 2 OJ 2004 L 139, p. 55. 3 OJ 2004 L 139, p. 206. 4 OJ 2004 L 165, p. 1. 5 OJ 2004 L 139, p. 1. 6 OJ 2002 L 31, p. 1. 7 Stb. 2011, No 345. 8 Stcrt. 2012, No 25949. 9 Emphasis added. 10 Pursuant to point 10 of Annex III, Section I, Chapter IV of Regulation No 853/2004, ‘the carcases must not contain visible faecal contamination. Any visible contamination must be removed without delay by trimming or alternative means having an equivalent effect’. 11 See Annex III, Section II, Chapter II, point 2 and Annex III, Section II, Chapter IV, point 3 of Regulation No 853/2004. 12 See Annex III, Section II, Chapter IV, point 9 of Regulation No 853/2004. 13 Article 1(1) of Regulation No 853/2004 provides that the specific rules laid down by that regulation supplement those laid down by Regulation No 852/2004. 14 Respectively ‘inhoud van maag and darmen’ and ‘Magen- und Darminhalt’. 15 Apart from English, see for instance in Czech (‘obsahu trávicího ústrojí’), French (‘contenu du tractus digestif’), Italian (‘contenuto del tubo digerente’), or Spanish (‘contenido del tubo digestivo’). 16 See, for example, judgments of 7 September 2006, Nowaco GermanyNowaco Germany (C‑353/04, EU:C:2006:522, paragraph 41); of 3 October 2013, Confédération paysanneConfédération paysanneConfédération paysanne (C‑298/12, EU:C:2013:630, paragraph 22); and of 23 December 2015, Firma Theodor PfisterFirma Theodor Pfister (C‑58/15, not published, EU:C:2015:849, paragraph 25). 17 See point 41 above. 18 That proposition would find some systemic support in Article 14(2) of Regulation No 178/2002 which provides that food shall be deemed unsafe if it is injurious to health or unfit for human consumption. In that latter respect, it is to be noted that meat is to be declared unfit for human consumption if it shows soiling, faecal or other contamination (Annex I, Section II, Chapter V, point 1(s) of Regulation No 854/2004. Emphasis added). 19 Above, points 46 to 53 of this Opinion. 20 See Annex I, Section II, Chapter V, point 1(s) of Regulation No 854/2004. 21 See Annex III, Section II, Chapter II, point 2 and Annex III, Section II, Chapter IV, point 3 of Regulation No 853/2004. 22 See Article 5 of Regulation No 852/2004. 23 Above, point 63. 24 ‘When carcases are subjected to an immersion chilling process, … every precaution must be taken to avoid contamination of carcases.’ 25 It is to be noted that Article 5(1) of Regulation No 854/2004 empowers official veterinarians to carry out inspection tasks in slaughterhouses in a rather open-ended manner, as attested by the mention of ‘in particular as regards’. 26 Above, points 54 to 78.