Entoma SAS v Ministre de l’Économie et des Finances and Ministre de l'Agriculture et de l'Alimentation.
Date: 2020-10-01
In order to answer the question of the referring court, it must be recalled, as a preliminary point, that Regulation No 258/97, in accordance with Article 1(1) thereof, concerns the placing on the market of novel foods and novel food ingredients (see, to that effect, judgment of 9 November 2016, Davitas, C‑448/14, EU:C:2016:839, paragraph 17 and the case-law cited).
Article 1(2) of Regulation No 258/97 seeks to delimit the scope of the regulation, inter alia, by defining what is to be understood by ‘novel foods and food ingredients’. It is apparent from the wording itself of that provision that, to be categorised as ‘novel’ within the meaning of that regulation, foods or food ingredients must  satisfy two cumulative conditions. First, the use for human consumption of those foods or food ingredients must not have been of ‘a significant degree’ in the European Union before 15 May 1997, the date of entry into force of that regulation and, second, they must fall within one of the categories expressly referred to in Article 1(2)(c) to (f) of that regulation (judgment of 9 November 2016, Davitas, C‑448/14, EU:C:2016:839, paragraphs 18 to 21 and the case-law cited).
According to settled case-law, the meaning and scope of terms for which EU law provides no definition must be determined by reference to their usual meaning in everyday language, while account is also taken of the context in which they occur and the purposes of the rules of which they form part (judgments of 9 November 2016, Davitas, C‑448/14, EU:C:2016:839, paragraph 26, and of 26 October 2017, The English Bridge Union, C‑90/16, EU:C:2017:814, paragraph 18).
Next, it should be recalled that, according to settled case-law, Regulation No 258/97 has a twofold objective consisting in ensuring the functioning of the internal market in novel foods and protecting public health against the risks to which they may give rise (judgment of 9 November 2016, Davitas,  C‑448/14, EU:C:2016:839,  paragraph 31 and the case-law cited).
As the Advocate General also noted, in essence, in points 72 and 73 of his Opinion, such an interpretation cannot be contra legem. Such a limit, which undoubtedly meets the need for legal certainty and foreseeability of the law, has also been recognised in the context of the Court’s case-law on the principle that national law must be interpreted in conformity with EU law (judgments of 15 April 2008, Impact,  C‑268/06, EU:C:2008:223, paragraph 100, and of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 25 and the case-law cited).
Second, and in any event, an interpretation which leads to the exclusion of whole animals, such as insects, from the scope of Regulation No 258/97 does not in itself prejudice the objective of protecting human health. As follows from the foregoing considerations, the fact that whole insects do not fall within the scope of that regulation implies only a lack of harmonisation of the conditions for placing them on the market at EU level and, therefore, that no notification or authorisation is necessary under that regulation. According to settled case-law, it is for the Member States, in the absence of harmonisation and to the extent that uncertainties continue to exist, to decide on their intended level of protection of human health and life and on whether to require prior authorisation for the placing on the market of  foods, taking into account the requirements of the free movement of goods within the European Union (see, to that effect, judgment of 29 April 2010, Solgar Vitamin’s France and Others, C‑446/08, EU:C:2010:233, paragraph 35 and the case-law cited). Therefore, the fact that whole insects are exempted from the safety assessment provided for by Regulation No 258/97 does not exclude the possibility for Member States to provide  for such an assessment in their national legislation of the possible danger which whole insects may present  for public health.