Judgment;Summary — ECLI:EU:C:2024:161
Date: 2024-02-22
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Public health
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-85/23 – 1 
Case C-85/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
15 February 2023 
Referring court: 
Oberverwaltungsgericht des Landes Sachsen-Anhalt (Germany) 
Date of the decision to refer: 
24 January 2023 
Defendant and appellant: 
Landkreis Jerichower Land 
Applicant and respondent: 
A. 
  
Subject matter of the main proceedings 
Appeal against the prohibition to store animal by-products. 
Subject matter and legal basis of the request 
Interpretation of Article 24(1)(i) of Regulation (EC) No 1069/2009 of the 
European Parliament and of the Council of 21 October 2009 laying down health 
rules as regards animal by-products and derived products not intended for human 
consumption and repealing Regulation (EC) No 1774/2002 (OJ 2009 L 300, p. 1), 
as amended by Regulation (EU) 2019/1009 of the European Parliament and of the 
Council of 5 June 2019 (OJ 2019 L 170, p. 1); Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-85/23 
 
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Question referred for a preliminary ruling 
Must Article 24(1)(i) of Regulation (EG) No 1069/2009 of 19 October 2009 
laying down health rules as regards animal by-products and derived products not 
intended for human consumption and repealing Regulation (EC) No 1774/2002 
(Animal by-products Regulation) (OJ 2009 L 300, p. 1, as corrected in OJ 2014 
L 348, p. 31), as last amended by Article 46 [of Regulation (EU) 2019/1009] of 
5 June 2019 (OJ 2019 L 170, p. 1) be interpreted as meaning that the term 
‘storage’ covers an interruption of transport operations during which containers of 
Category 3 animal by-products are transferred to another vehicle and kept in that 
vehicle for a number of hours (up to eight) before being transported onwards to a 
processing plant, without the material being treated or transferred to other 
containers? 
Provisions of European Union law and case-law of the Court of Justice relied 
on 
Regulation (EC) No 1069/2009 of the European Parliament and of the Council of 
21 October 2009 laying down health rules as regards animal by-products and 
derived products not intended for human consumption and repealing Regulation 
(EC) No 1774/2002 as amended, Article 24(1)(i), Article 10 
Judgment of 2 September 2021, Toropet (C-836/19, EU:C:2021:668) 
Judgment of 23 May 2019, ReFood (C-634/17, EU:C:2019:443) 
Provisions of national law relied on 
Tierische Nebenprodukte-Beseitigungsgesetz (German Law on the Disposal of 
Animal By-Products; ‘the TierNebG’) of 25 January 2004 (BGB1. I p. 82) as 
amended, Paragraph 1 (scope of application), Paragraph 2a (basic principle for the 
handling of animal by-products), Paragraph 12 (supervision) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The parties disagree as to whether the applicant requires approval for leaving 
containers with animal by-products – Category 3 material as defined in Article 10 
of Regulation No 1069/2009 – in a depot operated by the applicant in the city of 
B. The applicant runs a processing plant that has been approved for Category 3 
animal by-products. 
2 During inspections at that depot operated by the applicant in the town of B, the 
defendant found that containers with slaughterhouse waste and meat scraps, which 
were classified as Category 3 material as defined in Article 10 of Regulation 
No 1069/2009, were located in a semitrailer equipped with a refrigeration device 
LANDKREIS JERICHOWER LAND 
 
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(hereinafter ‘the refrigerated trailer’). Some of the slaughterhouse waste was in a 
state of incipient decomposition, and the depot showed signs of contamination 
(maggots, mouse and rat droppings). It was established that the material is 
transported and left in the depot as follows: the containers are collected from the 
producers by five smaller vehicles – two articulated lorries and three smaller 
vehicles – and taken to the depot. The containers are then transferred directly to 
the refrigerated trailer by the applicant’s employees or the drivers, without their 
contents being treated or transferred to other containers. The containers are 
sometimes kept in the refrigerated trailer at the site for several hours (two hours, 
in some cases up to eight hours). Once all containers have been collected, the lorry 
with the refrigerated trailer takes them to the processing plant operated by the 
applicant in the town of A. The materials are disposed of or recycled. The 
containers are not airtight or watertight. The applicant’s premises have not been 
officially approved as a facility for the storage of animal by-products. 
3 By administrative decision of 4 January 2017, the defendant prohibited the 
applicant from storing animal by-products at the site in the town of B. The 
defendant based the decision on Paragraph 12(2) TierNebG. In response to the 
action brought by the applicant following an unsuccessful appeal, the 
Verwaltungsgericht (Administrative Court, Germany) annulled the administrative 
decision of 4 January 2017. It justified the annulment by stating that a short-term 
interruption of transport operations did not constitute ‘storage’ for purposes of 
Article 24(1)(i) of Regulation No 1069/2009. The defendant lodged an appeal 
against that judgment before the referring court. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
4 The question whether the appeal should be allowed or whether the action should 
be dismissed depends on how the term ‘storage’ in Article 24(1)(i) of Regulation 
No 1069/2009 must be interpreted. According to Article 24(1)(i) of that 
Regulation, operators shall ensure that establishments or plants under their control 
are approved by the competent authority, where such establishments or plants 
store animal by-products. According to the defendant’s findings, the applicant 
transferred Category 3 animal by-products from small transporters to a larger 
truck at the site in the town of B and, as part of that process, kept them in the 
depot for a period of several hours. This applies irrespective of the fact that during 
the inspections the defendant also discovered containers with material that showed 
signs of decomposition and could therefore possibly not (or no longer) be 
classified as Category 3. The issue is how the usual procedure applied by the 
applicant of transferring containers of Category 3 animal by-products from small 
collection vehicles to a large vehicle during transport operations and, in that 
context, leaving the containers in one location for several hours must be classified; 
that is to say, whether that procedure is merely a part of transport operations or 
whether it constitutes storage within the meaning of the aforementioned 
Article 24(1)(i). If it is found to constitute storage, the applicant’s procedure 
would be subject to approval and the decision of 4 January 2017 would therefore 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-85/23 
 
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be lawful. The interpretation of Article 24(1)(i) of Regulation No 1069/2009 is 
therefore relevant to the decision. 
5 In the view of the referring court, the wording of the Regulation does not provide 
a clear answer to the question referred. The term ‘storage’ is commonly 
understood to mean keeping items in one place for a certain period of time. 
Conceptually, it seems possible that interruptions of the transport operations in 
question here, during which containers with animal by-products are transferred 
and left for a certain period of time, are understood as being a part of transport, 
which does not require approval, or as storage, which is subject to an approval. 
6 An analysis of the purpose and objectives of Regulation No 1069/2009 also fails 
to give rise to a clear definition of the term ‘storage’ with regard to the operations 
in the case at hand. In Toropet (C-836/19, paragraph 52), the Court of Justice 
highlighted the following objectives of Regulation No 1069/2009: sufficient 
control of risks to public and animal health and protection of the safety of the food 
and feed chain and the establishment of a coherent and comprehensive framework 
of hygiene rules which should be proportionate to the risk to public and animal 
health posed by animal by-products when they are handled by operators during 
their life cycle from collection to use or disposal. Furthermore, the Court of 
Justice emphasised that the EU legislature wanted sufficiently and appropriately to 
control the risks to human and animal health throughout the period of use of the 
animal by-products. 
7 In national case-law the view is therefore taken that, in view of the purpose and 
objectives of the law on carcass disposal, the term ‘storage’ also includes leaving 
containers with material requiring disposal for several hours. In the view of the 
referring court, however, it cannot necessarily be deduced from the general 
objectives of the law on carcass disposal that interruptions of transport operations, 
even if they last several hours, require comprehensive official control in the form 
of an approval. It is true that interruptions to transport operations are associated 
with an increased risk because the properties of animal by-products may be 
adversely affected as a result of the longer period of storage and may therefore 
give rise to health risks. However, the EU legislature considers the risk posed 
specifically by Category 3 material to be low. Therefore, in the view of the 
referring court, it cannot be inferred from the case-law of the Court of Justice that 
the term ‘storage’ must be interpreted so broadly so as to make as many activities 
as possible that have a connection with the transport of animal by-products (in 
particular Category 3 material, which is regarded by the EU legislature as posing a 
lower risk) subject to an approval requirement. 
8 An interpretation of the term ‘storage’ in the context of other EU law, namely in 
waste law, also fails to provide a clear answer to the question referred. In this 
context, the referring court considers the judgment of the Court of Justice of 
5 October 1999, Lirussi and Bizarro (C-175/98 and C-177/98, EU:C:1999:98), but 
does not consider the Court’s observations, which concern directives on waste 
law, to be relevant in the present case because the distinction made therein 
LANDKREIS JERICHOWER LAND 
 
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between ‘temporary storage’ and ‘storage pending further operations’ does not 
have any connection with the interruptions to transport operations at issue here. 
9 National case-law assumes that, under waste law, there is no ‘storage’ if the 
facility in question is used solely for transport purposes, in that it is only 
concerned with a transfer of waste to other means of transport, which only 
interrupts transport operations for a short time. According to this case-law, a 
facility for transhipping waste combined with an interruption of transport 
operations for (only) a few hours is not likely to be understood as ‘storage’ for 
purposes of waste law. The question whether this result arrived at by national 
case-law is clear in the light of the term ‘storage’ under Directive 2008/98/EC of 
the European Parliament and of the Council of 19 November 2008 (OJ 2008 
L 312, p. 3), as amended, does not, in the view of the referring court, need to be 
answered. This is because, in the view of the referring court, it is doubtful that the 
terms ‘storage’ for purposes of Regulation No 1069/2009 and for purposes of 
Directive 2008/98 are equivalent with regard to the context at issue here. 
10 According to the referring court, it is also not possible to draw any conclusion 
from the provisions on the handling of hazardous substances, such as Directive 
2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the 
control of major-accident hazards involving dangerous substances, amending and 
subsequently repealing Council Directive 96/82/EC (Seveso-III Directive) (OJ 
2012 L 197, p. 1), on the term ‘storage’ for purposes of Article 24(1)(i) of 
Regulation No 1069/2009. The referring court notes that, although leaving 
substances for several hours during a transshipment operation is considered to be a 
part of the transport of goods pursuant to Article 2(2)(c) of Directive 2012/18, the 
distinction between transport and storage of animal by-products does not have to 
be drawn in the same way under Regulation No 1069/2009, particularly since 
there is no provision in that Regulation which corresponds to Article 2(2)(c) of 
Directive 2012/18.