Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 29 November 2018(1)

Case C‑347/17

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Staatssecretaris van Economische Zaken

(Request for a preliminary ruling from the Rechtbank Rotterdam (District Court, Rotterdam, Netherlands))

(Reference for a preliminary ruling — Regulation (EC) No 853/2004 — Regulation (EC) No 854/2004 — Hygiene of food of animal origin — Poultry — Obligations on slaughterhouses after evisceration — Nature and content — Cleaning of carcases — Notion of ‘contamination’ — Visible or invisible contamination on a carcase — Contamination by faeces, bile, and crop contents — Controls — Powers of officials)

I.      Introduction

1.        On the basis of several inspections, the Netherlands authorities fined seven slaughterhouse operators for failure to comply with national and EU legislation on food of animal origin. The inspections took place at the stage in the slaughter process which comes after the evisceration and cleaning of poultry and before chilling. Visible contamination was found in the form of faeces, bile or crop on a number of carcases.

2.        The poultry slaughterhouses are disputing the way in which the checks were carried out and the findings made before the national authorities. It is in this context that the Court is called upon to interpret the nature and content of the obligations on slaughterhouses deriving from EU law in the poultry sector, in particular on the type of contamination to be avoided during the slaughter process and the powers granted by EU law to veterinary officials to carry out checks on the slaughter process.

II.    Legal framework

A.      EU law

1.      Regulation (EC) No 853/2004

3.        Article 3(1) 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 (‘Regulation No 853/2004’) (2) provides that ‘food business operators shall comply with the relevant provisions of Annexes II and III’.

4.        Annex III, Section II lays down specific requirements regarding meat from poultry and lagomorphs. Chapter II sets out the requirements that slaughterhouses in that sector must comply with:

‘Food business operators must ensure that the construction, layout and equipment of slaughterhouses in which poultry or lagomorphs are slaughtered meet the following requirements:

…

2.      To avoid contaminating meat, they must:

(a)      have a sufficient number of rooms, appropriate to the operations being carried out;

(b)      have a separate room for evisceration and further dressing …

(c)      ensure separation in space or time of the following operations:

(i)      stunning and bleeding;

(ii)      plucking or skinning, and any scalding; and

(iii)      dispatching meat;

…

(e)      have slaughter lines (where operated) that are designed to allow a constant progress of the slaughter process and to avoid cross-contamination between the different parts of the slaughter line. Where more than one slaughter line is operated in the same premises, there must be adequate separation of the lines to prevent cross-contamination.

…’

5.        Chapter IV of Annex III, Section II sets out a number of requirements regarding slaughter hygiene that food business operators operating slaughterhouses in the poultry sector must comply with:

‘…

5.      Stunning, bleeding, skinning or plucking, evisceration and other dressing must be carried out without undue delay in such a way that contamination of the meat is avoided. In particular, measures must be taken to prevent the spillage of digestive tract contents during evisceration.

…

7.      After post-mortem inspection:

(a)      parts unfit for human consumption must be removed as soon as possible from the clean sector of the establishment;

…

(c)      viscera or part of viscera remaining in the carcase, except for the kidneys, must be removed entirely, if possible, and as soon as possible, unless otherwise authorised by the competent authority.

8.      After inspection and evisceration, slaughtered animals must be cleaned and chilled to not more than 4 °C as soon as possible, unless the meat is cut while warm.

9.      When carcases are subjected to an immersion chilling process, account must be taken of the following.

(a)      Every precaution must be taken to avoid contamination of carcases, taking into account parameters such as carcase weight, water temperature, volume and direction of water flow and chilling time.

…’

2.      Regulation (EC) No 854/2004

6.        Recital 8 of Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (‘Regulation No 854/2004’) (3) reads as follows: ‘Official controls on the production of meat are necessary to verify that food business operators comply with hygiene rules and respect criteria and targets laid down in Community legislation. These official controls should comprise audits of food business operators’ activities and inspections, including checks on food business operators’ own controls.’

7.        By virtue of Article 4(3), official controls include:

‘(a)      audits of good hygiene practices and hazard analysis and critical control point (HACCP)-based procedures;

(b)      the official controls specified in Articles 5 to 8; and

(c)      any particular auditing tasks specified in the Annexes.’

8.        Pursuant to Article 5, ‘Member States shall ensure that official controls with respect to fresh meat take place in accordance with Annex I.

(1)      The official veterinarian shall carry out inspection tasks in slaughterhouses, game handling establishments and cutting plants placing fresh meat on the market in accordance with the general requirements of Section I, Chapter II, of Annex I, and with the specific requirements of Section IV, in particular as regards:

(a)      food chain information;

(b)      ante-mortem-inspection;

(c)      animal welfare;

(d)      post-mortem inspection;

(e)      specified risk material and other animal by-products; and

(f)      laboratory testing.’

9.        Annex I, Section I sets outs the tasks of the official veterinarian in the fresh meat sector. In particular, it provides for auditing tasks in Chapter I and inspection tasks in Chapter II.

10.      Point 2(b) of Chapter I provides that ‘in addition to the general requirements of Article 4(5) concerning audits of HACCP-based principles, the official veterinarian is to check that the operators’ procedures guarantee, to the extent possible, that meat … does not bear faecal or other contamination’.

11.      Part D of Chapter II sets out the way in which post-mortem inspections are to be carried out in the following terms:

‘1.      Carcases and accompanying offal are to be subjected without delay after slaughter to post-mortem inspection. All external surfaces are to be viewed. Minimal handling of the carcase and offal or special technical facilities may be required for that purpose. Particular attention is to be paid to the detection of zoonotic diseases and diseases on OIE List A and, where appropriate, OIS List B. The speed of the slaughter line and the number of inspection staff present are to be such as to allow for proper inspection.

2.      Additional examinations are to take place, such as palpation and incision of parts of the carcass and offal and laboratory tests, whenever considered necessary …

…

4.      During the inspection, precautions must be taken to ensure that contamination of the meat by actions such as palpation, cutting or incision is kept to a minimum.

...’

12.      Annex I, Section II, Chapter V lays down rules as regards the decisions concerning meat that must be taken following controls. Point 1(s) notably provides that ‘meat is to be declared unfit for human consumption if it shows soiling, faecal or other contamination’.

13.      Annex I, Section IV, Chapter V, part B specifically addresses post-mortem inspection of poultry in the following terms:

‘1.      All birds are to undergo post-mortem inspection in accordance with Sections I and III. In addition, the official veterinarian is personally to carry out the following checks:

(a)      daily inspection of the viscera and body cavities of a representative sample of birds;

(b)      a detailed inspection of a random sample, from each batch of birds having the same origin, of parts of birds or entire birds declared unfit for human consumption following post-mortem inspection; and

(c)      any further investigations necessary when there is reason to suspect that the meat from the birds concerned could be unfit for human consumption.’

3.      Regulation (EC) No 882/2004

14.      Article 3(3) 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 (‘Regulation No 882/2004’) (4) provides that: ‘Official controls shall be carried out at any of the stages of production, processing and distribution of feed or food and of animals and animal products.’

15.      Pursuant to Article 10(1), ‘tasks related to official controls shall, in general, be carried out using appropriate control methods and techniques such as monitoring, surveillance, verification, audit, inspection, sampling and analysis’.

4.      Regulation (EC) No 852/2004

16.      Article 2(1)(f) of Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs (‘Regulation No 852/2004’) (5) defines ‘contamination’ as ‘the presence or introduction of a hazard’.

17.      Article 5 deals with hazard analysis and critical control points (HACCP):

‘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;

(b)      identifying the critical control points at the step or steps at which control is essential to prevent or eliminate a hazard or to reduce it to acceptable levels;

(c)      establishing critical limits at critical control points which separate acceptability from unacceptability for the prevention, elimination or reduction of identified hazards;

…’

5.      Regulation (EC) No 178/2002

18.      Article 3(14) of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (‘Regulation No 178/2002’ or ‘the General Food Law Regulation’) (6) defines a ‘hazard’ as ‘a biological, chemical or physical agent in, or condition of, food or feed with the potential to cause an adverse health effect’.

19.      Article 14 sets out food safety requirements:

‘1.      Food shall not be placed on the market if it is unsafe.

2.      Food shall be deemed to be unsafe if it is considered to be:

(a)      injurious to health;

(b)      unfit for human consumption.

3.      In determining whether any food is unsafe, regard shall be had:

(a)      to the normal conditions of use of the food by the consumer and at each stage of production, processing and distribution, and

(b)      to the information provided to the consumer, including information on the label, or other information generally available to the consumer concerning the avoidance of specific adverse health effects from a particular food or category of foods.

4.      In determining whether any food is injurious to health, regard shall be had:

(a)      not only to the probable immediate and/or short-term and/or long-term effects of that food on the health of a person consuming it, but also on subsequent generations;

(b)      to the probable cumulative toxic effects;

(c)      to the particular health sensitivities of a specific category of consumers where the food is intended for that category of consumers.

5.      In determining whether any food is unfit for human consumption, regard shall be had to whether the food is unacceptable for human consumption according to its intended use, for reasons of contamination, whether by extraneous matter or otherwise, or through putrefaction, deterioration or decay.’

B.      National law

1.      Wet dieren (Law on Animals)

20.      Article 6.2(1) of the Wet van 19 mei 2011, houdende een integraal kader voor regels over gehouden dieren en daaraan gerelateerde onderwerpen (Law of 19 May 2011 containing an integral framework for rules on kept animals and related subjects; ‘Law on animals’) (7) provides as follows: ‘It is forbidden to act contrary to the provisions of EU regulations concerning matters governed by this Law designated by or pursuant to a general administrative order or ministerial order.’

21.      Under Article 8.7 of the Law on animals, the Minister van Economische Zaken (Minister for Economic Affairs) can impose an administrative fine on a person who commits an infringement as referred to in Article 8.6(1) thereof.

2.      Regeling dierlijke producten (Order on Animal Products)

22.      Article 2.4(1) of the Regeling van de Minister van Economische Zaken van 7 december 2012, nr WJZ/12346914, houdende regels met betrekking tot dierlijke producten (Order of the Minister for Economic Affairs of 7 December 2012, No WJZ/12346914, containing rules relating to animal products) (‘Order on Animal Products’) (8) reads as follows:

‘Provisions of EU regulations as referred to in Article 6.2(1) of the Order, are:

...

(d)      Articles 3 and 4(1) to (4), 5 and 7(1) of Regulation (EC) No 853/2004.

...’

III. Facts, national proceedings and questions referred

23.      In 2015, the Nederlandse Voedsel- en Warenautoriteit (Netherlands Food and Consumer Products Authority) (‘NVWA’) initiated a risk-based method of carrying out controls at large poultry slaughterhouses. That method entails taking multiple samples from those slaughterhouses every day. Three times per shift, controls are carried out on 50 carcases taken from the slaughter line.

24.      The Applicants in the main proceedings are seven companies operating poultry slaughterhouses in the Netherlands. Controls (inspections) carried out by the NVWA on their premises showed that there were contaminated poultry carcases. The controls were carried out at the end of the so-called evisceration line (the stage where the gastrointestinal system and crop are removed) before chilling. Those controls involved inspection of both the outside and the inside of carcases together with the occasional lifting of fat tissue. Three kinds of contamination were found: faeces (also described as manure or intestinal contents), crop contents (grain particles or husks) and bile.

25.      The first two findings of infringement were settled after written warnings were sent to the Applicants. Following the third finding of infringement, corrective measures were imposed on the Applicants requiring them to adapt their HACCP-based procedures. A fine of EUR 2 500 was also imposed on each of them by decisions of 27 November, 11 December and 18 December 2015.

26.      The Applicants lodged objections against those decisions with the Staatssecretaris van Economische Zaken (State Secretary for Economic Affairs) (‘the Defendant’). By decisions of 29 April, 2 May and 3 May 2016 (‘the contested decisions’), the Defendant declared the Applicants’ objections unfounded.

27.      The Applicants brought an appeal against the contested decisions before the Rechtbank Rotterdam (District Court, Rotterdam, Netherlands). The Applicants notably challenge the fact that the fines imposed relate to contamination that appeared during the ‘ready-to-cook’ line. Yet, it would be too ‘early’ to examine whether there are traces of contamination on carcases at that stage and, if so, to impose a penalty. Furthermore, the Applicants challenge the fact that contamination can possibly be caused by faeces, crop contents and bile. They also question the way in which the controls were carried out.

28.      It is within this factual and legal context that the Rechtbank Rotterdam (District Court, Rotterdam) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1)      Must the provisions of Annex III, Section II, Chapter IV, point 5 and point 8, to 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 (OJ 2004 L 139) be interpreted as meaning that a poultry carcass, after evisceration and cleaning, may no longer contain any visible contamination whatsoever?

(2)      Do the provisions of Annex III, Section II, Chapter IV, point 5 and point 8, to [Regulation No 853/2004] apply to contamination by faeces, bile and crop contents?

(3)      If the first question is answered in the affirmative, must the provisions of Annex III, Section II, Chapter IV, point 8, to [Regulation No 853/2004] then be interpreted as meaning that the cleaning must take place immediately after evisceration, or may the removal of any visible forms of contamination, on the basis of that provision, also take place during chilling, cutting or packaging?

(4)      Does Annex I, Section I, Chapter II, Part D, point 1, to [Regulation No 854/2004] allow the competent authority, when carrying out controls, to remove carcasses from the slaughter line, and to check both the outside and the inside and under the fat tissue for visible contamination?

(5)      If the first question is answered in the negative, and visible contamination may therefore remain on a poultry carcase, how must the provisions of points 5 and 8 in Annex III, Section II, Chapter IV, to [Regulation No 853/2004] then be interpreted? How then will the aim of that regulation, namely, guaranteeing a high level of protection of public health, be achieved?’

29.      Written submissions were lodged by the Applicants, the Governments of Denmark, Germany, the Netherlands and Finland and by the European Commission. A hearing took place on 4 October 2018 at which the Applicants, the Danish and Netherlands Governments and the Commission made oral submissions.

IV.    Assessment

30.      The five questions posed by the referring court essentially revolve around three themes. The first one pertains to the interpretation of the scope of the notion of contamination that is covered by point 5 of Annex III, Section II, Chapter IV of Regulation No 853/2004 (‘point 5’) (Questions 2, 5, and part of Question 1). The second theme relates to the nature and content of the obligations imposed by point 5 and also point 8 of the same annex (‘point 8’) on poultry slaughterhouses and the specific stage of the slaughter process during which those obligations must be fulfilled (Question 3 and part of Question 1). The third theme concerns the official controls through which compliance with those different obligations may be assessed (Question 4 and part of Question 1).

31.      In this Opinion, I prefer to address the questions posed by the referring court in the context of the individual issues that they raise: (A) what exactly in the process is to be subject to checks by authorities; (B) when those checks should be carried out in the process; and (C) who is to carry out such checks and on what legal basis. Having assessed the key issues raised by this case in this way, I consider that the answer to the exact questions posed by the referring court becomes rather clear (D).

A.      What is ‘contamination’?

32.      According to point 5, ‘stunning, bleeding, skinning or plucking, evisceration and other dressing must be carried out without undue delay in such a way that contamination of the meat is avoided. In particular, measures must be taken to prevent the spillage of digestive tract contents during evisceration’. (9)

33.      According to point 8, ‘after inspection and evisceration, slaughtered animals must be cleaned and chilled to not more than 4 °C as soon as possible, unless the meat is cut while warm’.

34.      In this subsection, I shall first address the issue whether points 5 and 8 cover visible contamination only since the referring court formulated its questions only with regard to that specific type of contamination (1). I will subsequently examine the sources of the contamination referred to in point 5, especially whether contamination can be due to faeces, bile and crop contents (2).

1.      Visible and invisible contamination

35.      The referring court has phrased its questions, and in particular Question 1, by limiting it to ‘visible contamination’. I understand that this specific and rather narrow focus derives from the factual context of the case in the main proceedings. The present case indeed only concerns an alleged visible contamination of poultry carcases.

36.      However, since what is sought is a general(ised) interpretation of a notion of EU law, namely that of ‘contamination’, an initial clarification is called for.

37.      In my view, there is no ground to single out visible contamination for the purposes of interpreting Regulation No 853/2004 as applied to poultry. As acknowledged by all participants to the hearing, both visible and invisible contamination is covered by point 5, and, by logical extension, also point 8. That follows from the text, context and purpose thereof.

38.      First, as regards the wording of points 5 and 8, it is to be noted at the outset that neither of those two provisions quoted by the referring court limits their respective scope to visible contamination. Point 8 does not explicitly use that notion. Point 5 refers to contamination generally, without making any distinction between visible and invisible contamination.

39.      Second, when looked at systematically, it appears that Regulation No 853/2004 explicitly mentions ‘visible contamination’ only once, in the specific case of domestic ungulates. (10) It would thus appear that if the EU legislature wished to use that notion narrowly, it was able to do so explicitly, in a case where such a differentiation was apparently called for. There is, by contrast, no such limitation when it comes to poultry.

40.      Third, that interpretation is further buttressed by a systemic reading of points 5 and 8 not only within Regulation No 853/2004 but also beyond it, in other legislation. A number of other provisions of that latter regulation indeed refer to the obligation for poultry slaughterhouses to prevent contamination, without any further explanation as to the type of contamination. For instance, in order to avoid contamination or cross-contamination, slaughterhouses must ensure the physical separation of stages in the slaughter procedure, and that those stages take place at different times. (11) Every precaution must also be taken to avoid contamination of carcases when the latter are subject to an immersion chilling process. (12) In addition, beyond Regulation No 853/2004, which is specific to food of animal origin, Article 2(1)(f) of Regulation No 852/2004, on the hygiene of foodstuffs in general, gives a broad definition to the notion of ‘contamination’ as ‘the presence or introduction of a hazard’. (13) ‘Hazard’ is itself defined broadly by Article 3(14) of Regulation No 178/2002, which lays down the general principles of food law, as ‘a biological, chemical or physical agent in, or condition of, food or feed with the potential to cause an adverse health effect’.

41.      Fourth and finally, the overall purpose of Regulation No 853/2004 further suggests that all types of contamination, visible or invisible, fall within the scope of that notion. According to recital 9, that regulation aims at securing a high level of consumer protection with regard to food safety. Yet, it would be hard to maintain that such a high standard would be reached by focusing on visible contamination alone. This is perhaps even more strongly the case with regard to poultry where, as submitted by the Applicants, contamination mainly results from their skin, legs, and plumage, and is in fact likely to be invisible.

42.      Accordingly, in my view, the obligation to avoid contamination of the meat, contained in point 5, includes both visible and invisible contamination.

2.      Faeces, bile and crop contents

43.      The referring court’s second question concerns three potential sources of (visible) contamination that poultry slaughterhouses should avoid. Do faeces, bile and crop contents fall within the scope of point 5, read in conjunction with point 8?

44.      According to the Applicants, the answer is no. In particular, regarding the bile, it cannot be considered as contamination because it is sterile from a microbiological point of view. As far as the crop contents are concerned, it cannot be classed as contamination either as it is not part of the content of the stomach and the intestines and is thus not covered by point 5.

45.      The Netherlands Government, together with the Danish, German and Finnish Governments and the Commission, maintain that faeces, bile and crop contents can all constitute contamination since they are all part of the ‘digestive tract’, which is the term used in most language versions of point 5, albeit not in the Dutch version.

46.      I agree. Faeces, bile and crop contents on a carcase can be considered as contamination within the meaning of Regulation No 853/2004, in particular its point 5.

47.      First, there is no explicit definition in point 5 as to what the sources of the contamination can be. But the structure of the rule contained therein suggests that there is a correlation between the spillage of digestive tract contents during evisceration and contamination of the meat. Indeed, while the first sentence of point 5 generally requires the different steps of the ‘ready-to-cook’ part of the slaughtering process to be carried out in a way that avoids contamination of the meat, the second sentence specifically imposes the adoption of measures in order ‘to prevent the spillage of digestive tract contents during evisceration’. Therefore, it is rather apparent that the digestive tract contents were understood to be a source of contamination (of the meat), which explains the requirement to avoid their spillage.

48.      Second, as regards the specific notion of ‘digestive tract contents’, the referring court has, like other participants in the proceedings before the Court, pointed out the existence of variations in the different language versions of the second sentence of point 5. While the Dutch and German versions are seemingly narrower in scope because they only refer to the content of the stomach and of the intestine, (14) most other language versions refer to the digestive tract contents in broader terms. (15)

49.      Pursuant to established case-law of the Court in this regard, in cases of variations in different language versions, the equal authenticity of all Union languages makes it impossible to consider one version of the text in isolation. Recourse must be had to the overall scheme and objectives of the provisions in question, in the light, in particular, of the versions in all the other official languages. (16)

50.      As a matter of simple logic, in view of the way in which the slaughter process is carried out, I would find it indeed rather strange if, when providing for the prohibition of what may not spill over onto the carcases, the EU legislature wished to discriminate between the contents of what had just been indiscriminately eviscerated from a poultry carcase. Thus, in my view, point 5 should be interpreted as requiring that, during evisceration, slaughterhouses are obligated to adopt measures in order to avoid spillage onto carcases of the ‘digestive tract contents’. The natural reading of that broad notion encompasses not only all organs but also the content of the organs that pertain to the digestive system, from the mouth to the anus. Point 5 thus necessarily includes the liver (and the bile), the intestines (and the faeces), the crop (and its own contents).

51.      Third and as already stated above, (17) the EU legislature wished to encourage attainment of a high standard of food safety by retaining a broad notion of contamination including any biological, chemical or physical agent in, or condition of, food or feed with the potential to cause an adverse health effect. In this respect, the three aforementioned possible sources of contamination, including the bile, can contain bacteria, as argued by the Netherlands Government.

52.      Fourth and finally, perhaps as a matter of common sense, provided that the latter has not yet been eviscerated from this area of law, I am bound to agree with the Danish Government that the notion of contamination can hardly be reduced to the fact that the foodstuff is harmful to health. Contamination of foodstuff is bound to also include the situation of meat being simply unfit for human consumption, (18) even if such consumption may not immediately result in food poisoning or any other direct harm to one’s health. Thus, even if a carcase containing residual faeces, bile or crop contents proved not to be directly detrimental to health on a microbiological level, as argued by the Applicants, it is still safe to assume that, perhaps leaving aside very bizarre taste of peculiar gourmets, such meat is likely to be unfit for (ordinary) human consumption.

53.      In sum, point 5 of Annex III, Section II, Chapter IV of Regulation No 853/2004 must be interpreted as applying to contamination by faeces, bile and crop contents.

B.      What kind of obligations, and at what stage of the slaughter process?

54.      By its first question, the referring court enquires into the nature and content of the obligations imposed on poultry slaughterhouses by Regulation No 853/2004 with regard to (visible) contamination. Do points 5 and 8 require that a poultry carcase may no longer contain, after evisceration and cleaning, any (visible) contamination whatsoever? If Question 1 is answered in the affirmative, the referring court essentially seeks to determine, through Question 3, when cleaning shall take place in the slaughter process. In particular, must it occur immediately after evisceration or may it take place at a later stage, perhaps even during chilling, cutting or packaging?

55.      These questions call on the Court to examine two closely connected points. First, what kind of obligation is imposed upon poultry slaughterhouses with regard to contamination and does the nature of that obligation change during the slaughter process? Second, when should the specific cleaning operation provided for in point 8 take place?

56.      In the present section, I will (1) explain why the scope and nature of the obligation differs depending on the stage of the slaughter process, and (2) why cleaning, as provided for in point 8, is bound to take place after post-mortem inspection and evisceration, but before chilling.

1.      What kind of obligation(s)?

57.      According to the Applicants, poultry slaughterhouses are subject to an ‘obligation of means’ (best endeavours) all along the slaughter process. Since complete prevention of spillage of digestive tract contents during evisceration is impossible, slaughterhouses have an obligation to make the utmost effort to avoid contamination of the meat. Such an obligation applies at the stage of evisceration too, or at that of cleaning. It cannot thus be expected, on the basis of point 5 or point 8, that spillage will not occur and that carcases will be thoroughly clean at the end of the ‘ready-to-cook’ chain, before chilling, which is also the referring court’s point of view. Point 8 does not provide for any specific outcome (such as ‘no visible contamination’) after cleaning. The Applicants submit that visible traces of contamination can still be removed at a later stage, during cutting or packaging so that no strict obligation of result (‘zero-tolerance-norm’) can be imposed upon them in this respect, after evisceration and cleaning and before chilling. According to them, it would be unrealistic from a technical point of view to require such a high standard because of the speed of the slaughter line in a mechanical process. Besides, the requirement for visible contamination to be removed after evisceration and before chilling does not have any scientifically supported basis, because contamination can usually occur earlier, when the poultry is being plucked.

58.      With a few minor variations, the other participants in the proceedings before the Court essentially distinguish between slaughterhouses’ obligations at the stage of evisceration and those at the stage of cleaning. On the one hand, evisceration must be carried out diligently so that contamination can be avoided. On the other hand, after evisceration and before chilling, once cleaning has been completed, carcases must be clean, and free from contamination, since the aim of cleaning is to remove any visible residual contamination.

59.      I largely share the latter view.

60.      Point 5 and point 8 contain two distinct yet complementary obligations that apply to different stages of the slaughter process. Up until after the stage where evisceration has been completed, there is a duty of due diligence: slaughter lines are to be set up and operated in such a way that aims at preventing contamination to the greatest extent technically possible (point 5). After evisceration, post-mortem inspection and cleaning, slaughterhouses must ensure that carcases are free from contamination (point 8).

61.      First, it is apparent from the wording of point 5 that all appropriate and timely measures must be taken by poultry slaughterhouses with a view to preventing contamination of the meat at each and every stage of the slaughtering process, namely stunning, bleeding, skinning, plucking, evisceration or other dressing. In particular, slaughterhouses must make every effort to ensure that evisceration is not carried out in such a way that allows the digestive tract contents to spill onto the carcase, which, as noted above, (19) would be a source of contamination.

62.      Second, a systemic reading of point 5 shows that the EU legislature cannot have intended that evisceration, as one step in the slaughtering process, should always be spotless and never generate any contamination. Not only would that be unreasonable, but it would also make post-mortem inspection somewhat redundant. As indeed derives from points 6 and 7, which come as a logical follow-on to point 5, parts declared unfit for human consumption after post-mortem inspection must be removed as soon as possible from the clean sector of the establishment and viscera remaining in the carcase must be removed entirely and as soon as possible. Those rules clearly indicate that slaughterhouses may address and fix, at the immediately ensuing stage, the problems that may have arisen during evisceration. Either the latter is somehow completed or the entire carcase is to be removed.

63.      In that latter respect, it is to be noted that meat showing soiling, faecal or other contamination is to be declared unfit for human consumption. (20) However, as in my view was sensibly argued by the Danish Government at the hearing, that obligation is to be strictly interpreted in the case of greater contamination of that sort. If contamination is minor, then the carcase must be cleaned properly before chilling. If that did not or cannot happen, then the meat is ultimately to be declared unfit for human consumption.

64.      Third, several other provisions in different relevant pieces of EU legislation confirm that the obligation to prevent contamination at the stage of evisceration is a ‘best endeavours’ or ‘due diligence’ obligation. Slaughter processes must be devised in such a way that contamination of the meat should be prevented as far as is technically possible. For example, there must be physical separation of animals, and separate times and spaces for the different segments of the slaughter chain in order to avoid cross-contamination. (21) Slaughterhouses’ HACCP-based procedures must prevent, eliminate or at least reduce hazard to an acceptable level. (22) Equally, in close connection with the issue of visible contamination, point 2(b) of Annex I, Section I, Chapter I of Regulation No 854/2004 requires the official veterinarian to check that the operator’s procedures guarantee, to the extent that it is possible, that meat does not bear faecal or other contamination.

65.      All in all and as unanimously agreed by all the participants to the proceedings before the Court, it thus appears that point 5 must be interpreted as requiring slaughterhouses to run the slaughter line, in particular for the purposes of evisceration, in such a way as to avoid contamination to the greatest extent technically possible.

66.      For the sake of clarity, and as the Appellants raised a number of arguments on the mechanics of the slaughter process, I wish to add one point. To my mind, ‘technical impossibility’ is a category different from ‘technically possible, but costly’. The need for potential restructuring of the production process, and/or generating additional costs to the slaughterhouse operators, thereby making the process less profitable (for example if that would result in less than the current and approximately 10 000 chickens per hour going through the slaughter line so that more time can be spent on cleaning), clearly fall within the latter category.

67.      On the other hand, the obligation laid down by point 8 concerns another (successive) stage of the slaughter process, namely the end of the ‘ready-to-cook’ chain. It is also of a different nature. Point 8 establishes an additional, and a more stringent, obligation for slaughterhouses concerning a subsequent stage of the process, when the meat is meant to be ready to be eaten. At that moment, the slaughterhouse must ensure that the meat is free from contamination at that last stage.

68.      I acknowledge that point 8 does not explicitly refer to contamination. It only mentions the requirements of cleaning and chilling the meat after evisceration and inspection. However, I agree with the Netherlands Government that the purpose of cleaning at that stage is to remove any, certainly visible, residual contamination. Again, as in my view rightly and reasonably suggested by the Danish Government, (23) if a large amount of contamination should lead to discarding the meat as unfit for human consumption at the stage of post-mortem inspection, then minor contamination may be allowed, but in that case, it should be cleaned thoroughly in order to be made fit for human consumption.

69.      Thus, it follows from a joint reading of point 5 and point 8 that, first, up until the post-mortem inspection, slaughter processes should operate in a way that avoids, as far as possible, any contamination. Second, and in any case, slaughtered poultry must be free from contamination after cleaning.

2.      When shall cleaning take place?

70.      The interested parties have taken two different approaches to the precise point in time at which the cleaning referred to in point 8 should take place in the course of the slaughter process.

71.      According to the Applicants, the fact that point 8 first mentions cleaning and then chilling does not mean that cleaning must be completed before chilling. It merely follows from that provision that cleaning must only have started before chilling. By contrast, the Netherlands Government and the other participants insist that cleaning should occur (and be completed) prior to chilling since it is the last time the meat can be cleaned during the slaughter process. It would be too late if cleaning were to take place at the stage of cutting or boning, which, incidentally, is governed by Chapter V, and not Chapter IV, of Annex III, Section II.

72.      In my view, it is rather clear that the cleaning required by point 8 should occur and be completed prior to chilling.

73.      I agree that on a literal reading, point 8 is somewhat unclear. It is stated that ‘after inspection and evisceration, slaughtered animals must be cleaned and chilled to not more than 4 °C as soon as possible, unless the meat is cut while warm’. The order of activities described would imply that inspection comes before (and not after) evisceration and that indeed slaughtered animals must be cleaned and chilled. If focusing on the conjunction ‘and’, a literal argument could be made that both of these activities could happen simultaneously.

74.      However, both the structure and logic clearly militate against such an understanding of that provision.

75.      First, the order and the structure of the individual points in Chapter IV of Annex III, Section II of Regulation No 853/2004 clearly indicate that carcases first go through an ante-mortem inspection, second that they are slaughtered (all steps laid down in point 5), and third that they are subject to post-mortem inspection (point 6). Thus, in the light of the two sets of inspections that are to take place, the explicit chronological sequence does not appear to be entirely incorrect. Cleaning shall take place after (post-mortem) inspection and prior to chilling.

76.      Second, that reading of point 8 is confirmed by the purpose of cleaning through water, namely removing any (visible) contamination. Despite the Applicants’ allegations as to the equivalence of all cleaning operations taking place throughout the slaughter process, the cleaning step mentioned under point 8 is by nature decisive since, as outlined in the previous section of this Opinion, that specific cleaning is instrumental in removing any residual contamination. With such a purpose, it would be somewhat illogical, from a practical point of view, if cleaning were to take place before the post-mortem inspection or after chilling. In the first scenario, the inspector could not duly carry out his inspection tasks since, in particular, he could not spot significant traces of contamination (since it would be washed away). In the second scenario, there is a risk, alluded to in point 9(a) of Annex III, Section II, Chapter IV of Regulation No 853/2004, (24) of cross-contamination of carcases if a dirty carcase is subjected to an immersion chilling process.

77.      Third, the latter point also underlines the very different purpose and nature of the contact the carcases have with water at the stage of cleaning as opposed to chilling. Indeed, as suggested by the Applicants, immersing the carcases in a water tank of a certain temperature for the purpose of chilling them may also have the effect of cleaning them to some degree. However, even if leaving aside the issue of contamination at that stage, outlined in the previous point, the fact remains that chilling (as well as cutting or packaging) is simply a part of a different process, which comes after the ‘ready-to-cook’ chain had been completed, the purpose of which is not to make the meat any more ‘ready-to-cook’, but to prepare it for shipment.

78.      In short, the obligation that the ‘animals must be cleaned’ in point 8 imposes the obligation to remove any residual contamination after evisceration and cleaning, but clearly before the chilling process starts.

C.      Controls

79.      Through Question 4, the referring court seeks to determine how official controls shall be carried out, in particular whether the competent authority may remove carcases from the slaughter line and check both the outside and the inside and under the fat tissue for visible contamination.

80.      All participants to the proceedings have answered this question in the affirmative although the Applicants contest the zero-tolerance standard allegedly applied by control officials.

81.      As a preliminary remark, there appears to be a certain confusion regarding the nature and legal basis of the controls in issue in the main proceedings. The referring court refers to a provision of Regulation No 854/2004 which is dedicated to post-mortem inspections, namely point 1 of Annex I, Section I, Chapter II, part D. Yet, according to the Applicants, post-mortem inspection does not include any control of the presence of contamination on carcases. Such a control would be illogical given that the post-mortem inspection does not take place at the end, but half way through the ‘ready-to-cook’ process, after which carcases still go through several cleaning procedures. The Netherlands Government maintains that, as the controls in issue involve sampling taking place after post-mortem inspection and cleaning, they do not aim at identifying potential diseases. Their legal basis could thus rather be Article 4 of Regulation No 854/2004 and Articles 3 and 10 of Regulation No 882/2004. The Danish Government considers that the relevant provision could perhaps also be Annex I, Section IV, Chapter V, part B, point 1 of Regulation No 854/2004 concerning the sampling and daily control of viscera.

82.      Taking the statements made by the Netherlands Government as the starting point, but of course without excluding any other potentially relevant legal basis, (25) which is ultimately for the national court to identify, it appears that indeed Articles 3 and 10 of Regulation No 882/2004, which concern official controls, in general, to ensure the verification of compliance with feed and food law, could serve as a legal basis for the controls in issue in the main proceedings. In particular, Article 3(3) provides that ‘official controls shall be carried out at any stages of production, processing and distribution of feed or food and of animals and animal products’. Article 10(2)(b)(i) foresees, more specifically, inspection of feed and food, notably through sampling.

83.      Turning to the extent of the powers of official veterinarians, on which the referring court focuses, the latter regulation’s provisions do not specifically refer to specific actions. It is drafted broadly. It thus follows that the powers of control officials could include a post-cleaning and pre-chilling inspection of external and internal surfaces and fat tissues of a sample of carcases taken away from the slaughter line in order to facilitate the control. Thus, it appears quite clear that the competent national authorities are entitled to carry out checks at any stage of the slaughter process.

84.      The answer to when an inspection may be carried out is of course different to the issue of what might be inspected and according to what yardstick. The answer to that latter question is to be provided by a cross-reference to the scope and nature of the duties already outlined above: (26) it would depend on whether the inspectors were verifying the compliance with the obligations set out by point 5 or those set out by point 8. Once that identification has been made, the exact standard that may be reasonably applied by the inspectors will in turn become clear.

85.      In view of the limited information on the precise factual and legal nature of the checks in question, it is hardly possible to provide any further guidance in this regard, with the exception of the general remark that, as with any other controls, these too should be carried out in a reasonable and proportionate way. Depending on what exactly is to be verified and at which stage of the slaughter process, the means chosen for carrying out the specific inspections (the number of samples, whether or not the line has to be stopped or whether sample poultry will be pulled down from the running line, etc.) must be appropriate for what has to be checked (allowing for those checks to indeed be representative), but shall not go beyond what is necessary for those checks to be properly carried out.

D.      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 mentionof ‘in particular as regards’.

26      Above, points 54 to 78.

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