Opinion of the Advocate General — ECLI:EU:C:2021:118
Date: 2021-02-11
Language of the case: English
Subject matter: Agriculture and Fisheries;Approximation of laws;Public health
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary, they assert that:
(1) The section 9 procedure was applied during the very similar regime 
adopted pursuant to the EU Directives before the coming into force of the 
suite of Regulations referred to above. There is no evidence that this caused 
any practical difficulties. If it was not thought inconsistent with that regime, 
there is no reason to think it inconsistent with the current regime. Indeed, in 
2006, when the Regulations came into force, the Meat Hygiene Service 
Manual of Official Controls stated (and continued to state until shortly before 
these proceedings began) that where the OV was not satisfied that the meat
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was fit for human consumption and voluntary surrender was not forthcoming, 
the OV must seize the food under section 9 and take it before a Justice of the 
Peace for it to be condemned. At the very least, this is an indication of past 
practice under the very similar regime which preceded the current EU 
Regulations and of what the FSA, as competent authority, initially thought 
the position to be under the Regulations.
(2) The official controls in Regulation (EC) No 854/2004 are in addition 
to the more general provisions in Regulation (EC) No 882/2004. They are 
specific to food of animal origin. But they contain nothing about enforcement 
and sanctions. Thus it is not surprising that they do not provide for a right of 
appeal against the decisions of the OV and competent authority. Enforcement 
and sanctions are provided for in Regulation (EC) No 882/2004. Regulation 
(EC) No 854/2004 is intended to work in combination with Regulation (EC) 
No 882/2004. Recital (43) to Regulation (EC) No 882/2004 indicates that a 
right of appeal is required in a case such as this. Articles 54 and 55 are 
applicable to all kinds of non-compliance with Regulation (EC) No 
854/2004, including non-compliance with article 5 in individual cases as well 
as the more general non-compliance dealt with by article 4. The references to 
prohibiting placing on the market and ordering destruction in article 54.2 are 
clearly apt to deal with non-compliance under article 5. Article 54.3 should 
apply to action to deal with all kinds of non-compliance. These articles, read 
together with recital (43) mandate a right of appeal against the OV’s decision.
(3) There is nothing in any of the Regulations to prohibit a procedure such 
as that laid down in section 9. This not only provides a means whereby the 
competent authority can enforce the requirements of Regulation (EC) No 
854/2004 in relation to non-compliance but also provides the operator with a 
means of challenging the decision of the OV that a carcass is not fit for human 
consumption on its merits. The Justice of the Peace can (and should) hear 
expert evidence to determine the matter. While only the OV can apply the 
health mark, on the claimant appellants’ interpretation of section 9 the Justice 
of the Peace can make a ruling which may result in an award of compensation 
if the mark is wrongly withheld.
(4) At the point when the OV inspects the meat and forms the opinion that 
it is unfit for human consumption and declares it as such, the carcass is still 
“food” within the meaning of the above Regulations. It has not become an 
“animal by-product” within the meaning of Regulation (EC) No 1069/2009, 
laying down health rules as regards animal by-products. Animal by-products 
are defined as “entire bodies or parts of animals, products of animal origin or 
other products obtained from animals, which are not intended for human 
consumption” (article 3.1). Until the process of condemnation is complete, 
the FBO still intends the carcass for human consumption.
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(5) Providing a mechanism for judicial oversight of the process of 
condemnation is required by article 17 of the Charter of Fundamental Rights 
of the European Union (CFR) (equivalent to article 1 of the First Protocol to 
the ECHR) which protects the right to property, read with article 47, which 
requires an effective judicial remedy for everyone whose rights and freedoms 
guaranteed by community law are violated. It would be a violation if an FBO 
were deprived of the property in the carcass - or required to dispose of the 
carcass in such a way as to render it valueless - without proper justification 
or compensation.
(6) Judicial review does not constitute an appeal which satisfies the 
requirement in Regulation (EC) No 882/2004 that there be a right of appeal. 
Regulation (EC) No 882/2004 requires that there be a right of appeal against 
the decision of an OV on the merits going beyond what is possible injudicial 
review.
21. Against this, the competent authority, the FSA, argues that it would be 
incompatible with the regime established by the Regulations if resort were made to 
the procedure under section 9 of the 1990 Act in order to challenge the decision of 
the OV under article 5 of Regulation (EC) No 854/2004 on its merits. The FSA 
accepts that the lawfulness of the decision can be challenged in judicial review 
proceedings as set out above. In summary, the FSA asserts that:
(1) The requirements of Regulation (EC) No 854/2004 are a lex specialis 
in relation to products of animal origin. Regulation (EC) No 882/2004 is 
without prejudice to specific Community provisions regarding official 
controls (article 1.3). Regulation (EC) No 854/2004 therefore takes 
precedence over Regulation (EC) No 882/2004 where it is necessary to do 
so.
(2) There is a distinction between the roles undertaken by the OV under 
article 4 of Regulation (EC) No 854/2004 and those undertaken under article 
5. The former concerns the audit of an FBO’s general practices and 
compliance with food hygiene requirements. It is accepted that article 54 of 
Regulation (EC) No 882/2004 is capable of being applied to that role. 
However, it should be noted that, despite the wording of recital (43), article 
54.3 stops short of positively requiring that there be a right of appeal.
(3) The role of inspecting and health marking individual carcasses under 
article 5 is quite different from the audit role under article 4. The OV alone 
(with the assistance permitted under the Regulation) has responsibility for 
deciding whether or not to apply a health mark, which is a necessary
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prerequisite to placing the meat on the market. Nobody other than the OV 
can perform this task. This can only be done when “official controls have not 
identified any deficiencies that would make the meat unfit for human 
consumption”. That “weighted double negative” test is consistent with the 
overall aim laid down in article 1.1 of Regulation (EC) No 178/2002, of the 
“assurance of a high level of protection of human health and consumers’ 
interest in relation to food”. It may be that the meat remains “food” even after 
the OV has decided not to apply a health mark, but it cannot thereafter be 
lawfully intended for human consumption.
(4) The qualifications and experience of the OV are carefully specified so 
as to ensure that he or she is properly qualified to undertake that decision­
making role (with the assistance permitted under the Regulations). It would 
be incompatible with the requirements of Regulation (EC) No 854/2004 for 
a person or body other than the OV as referred to in article 5.2 and which 
does not have those qualifications and experience, such as a Justice of the 
Peace acting pursuant to section 9 of the 1990 Act, to decide whether a 
carcass should have had a health mark applied to it, even if adjudicating with 
the benefit of expert evidence presented by each side.
(5) Article 17 of the CFR (and article 1 of the First Protocol to the ECHR) 
permit control of the use of property if this is a proportionate means of 
achieving a legitimate aim (reference is made to Booker Aquaculture Ltd 
(trading as Marine Harvest McConnell) v Scottish Ministers (Joined Cases 
C-20/00 and C-64/00) [2003] ECR 1-7411). The above aim is undoubtedly 
legitimate and the means chosen proportionate. Article 17 does not mandate 
a right of challenge to the imposition of such controls.
(6) If there is a requirement that there be a right of appeal in relation to 
the decision of an OV under article 5.2 of Regulation (EC) No 854/2004, it 
is satisfied by the availability of judicial review as set out above. Judicial 
review also satisfies any requirement under article 17 of the CFR (or article 
1 of the First Protocol to the ECHR) of a possibility of judicial control of the 
actions of an OV.
Conclusion
22. For the purposes of this reference, the Court of Justice of the European Union 
is asked to assume that the claimant appellants’ interpretation of section 9 of the 
1990 Act is correct, and that a Justice of the Peace has power to give a ruling which 
may result in an award of compensation if he considers that a health mark ought to
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have been applied to a carcass. In order to determine this appeal, this Court refers 
the following questions to the Court of Justice of the European Union:
(1) Do Regulations (EC) Nos 854/2004 and 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 the evidence of 
experts called by each side whether a carcass fails to comply with food safety 
requirements?
(2) Does Regulation (EC) No 882/2004 mandate a right of appeal in 
relation to a decision of an OV under article 5.2 of Regulation (EC) No 
854/2004 that the meat of a carcass was unfit for human consumption and, if 
it does, what approach should be applied in reviewing the merits of the 
decision taken by the OV on an appeal in such a case?
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