England and Wales High Court (Administrative Court) Decisions

SEAHAWK MARINE FOODS LIMITED v. SOUTHAMPTON PORT HEALTH AUTHORITY [2001] EWHC Admin 246 (5th April, 2001)

CO/4322/2000

Neutral Citation Number: [2001] EWHC Admin 246

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 5^th April 2001

MR JUSTICE NEWMAN

1. This case concerns a cargo of shrimp imported into the United Kingdom from Vietnam. By a Notice dated 5 October 2000 the Southampton Port Health Authority (the defendant) rejected the import on the following ground:

"1. In my opinion, the consignment described in the Schedule below does not comply with animal or public health conditions relating to import in that:- the conditions specified in Council Directive 9l/493/EEC and Commission Decision 99/83/EC (sic) specific to Vietnam have not been satisfied in that the aerobic colony counts observed following microbiological examination for counts 31/40 and 51/80 exceed the standard specified in Commission Decision 93/51/EEC."

Nothing turns on the incorrectly stated reference to Commission Decision 99/813/EC.

The form of notice carries for use, where appropriate, the words:

"2. In my opinion the consignment described in the schedule below constitutes a risk to animal or human health in that:- "

These words were deleted.

The notice required Seahawk Marine Foods Limited, the importer and claimant in the action, to:

"(a) ensure that the consignment is used for purposes other than human consumption under the rules made under Article 18(b) of Directions 90/675; or

(b) re-despatch the consignment outside the European Community by 25 October 2000; or

(c) destroy the consignment by 25 October 2000."

The defendant has the power, in the event of non-compliance, to destroy the consignment.

2. The consignment is presently in storage. The evidence suggests that since about January 2001 it is at risk of deteriorating in quality.

3. The reference in the Notice to but one Council Directive and two Decisions is to be viewed as refreshingly economic having regard to the labyrinthine legislative route the court has had to follow. Underlying the detail there is a point of importance in connection with the regulation of imports of food, which has heightened relevance in the wake of a number of recent public events.

4. The claimant contends that the results of the microbiological examination merely provide indicators, which the producers in Vietnam should consider to assist them in deciding whether their plants are operating satisfactorily and to assist them in implementing production monitoring procedures (see Commission Decision 93/51/EEC Annex heading 3) and, critically, the results do not give rise to a ground for rejection by the defendant.

5. The defendant contends the results indicate that:

(1) the manufacturers'/producers' plant is not operating satisfactorily and, for example, inadequate time/temperature combinations for cooking may have been employed or there may have been poor hygiene;

(2) the raised counts for mesophilic bacteria shown by the results also indicate an increased likelihood of pathogens being present in the product from the plant. A conclusion that pathogens are present would provide a ground for rejection (see heading 2 Annex to Commission Decision 93/51/EEC);

(3) the results suggested the need for action to be taken because:

(i) a public health condition had not been complied with,

(ii) there was a need to ensure the risk to public health is minimised.

6. It will be seen that the factual content of the case centres upon the issue of risk assessment. The important legal issue is whether, if the defendant's risk assessment is a reasonable one, the legislation entitled it to issue a notice of rejection. If the legislation does not empower an authority to reject in the circumstances relied upon, it is for the legislators to consider whether there is a gap which should be filled.

7. Mr Thompson, counsel for the claimant, submitted that:

(1) the claimant has a binding prima facie right to import goods into the Community from Vietnam;

(2) free movement of goods, being a fundamental freedom guaranteed by the EC Treaty, could be restricted only where:

(a) there is a specific derogation granted by Community secondary legislation; or

(b) it is necessary and appropriate to impose such a restriction to protect a fundamental interest of society recognised in the Treaty or in the applicable secondary legislation (in this case, public health).

(3) the Member State's ability to derogate from a fundamental freedom is to be interpreted strictly;

(4) the Member State's ability to act unilaterally to protect public health is very limited where there exists detailed regulation at Community level;

(5) no distinction is to be made between free movement of goods within the Community and imports into the Community from countries outside the Community;

(6) not having relied upon public health and there being no other provision of EC law (Regulation, Directive or Decision) which can be relied upon to justify the rejection, the right to import prevails;

(7) the reason advanced for rejection is a species unknown to EC law, a hybrid, comprising a public health element where no risk to public health exists and an attempt to enforce a guideline as though it was a condition.

Article l(2) of Council Regulation (EC) No.3284/94 provides:

"The products referred to in paragraph 1 shall be freely imported into the Community and accordingly, without prejudice to the safeguard measures which may be taken under Title V shall not be subject to any quantitative restrictions."

Article 24(2)(i) provides that the Regulation shall not preclude the adoption or application by Member States:

"(i) of prohibitions, quantitative restrictions or surveillance measures on grounds of .... the protection of public health and life of humans ...."

It follows from the above that points (l) and (2) of Mr Thompson's argument as set out in paragraph 4 above are made out. Points (3) and (4) have not been at the centre of the argument because the defendant's case is that, contrary to the claimant's submission at points (6) and (7), it can identify a legislative regime relating to the inspection of imports from third countries which confers a power upon the defendant to derogate from the prima facie right to import freely into the Community. Point (5) has been in issue because it is said the regime for imports from outside the Community differs in material respects from "intra-Community" imports.

The legislative regime relied upon by the defendant

8. Council Directive 90/675/EEC laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries:

"1.1. Veterinary checks in respect of products from third countries entering the Community shall be carried out by the Member States in

Accordance with this Directive........

2.2 (b) `documentary check' means verification of the veterinary certificates or documents accompanying a product;

(c) `identity check' means verification, by visual inspection only, for consistency between the documents or certificates and the products and for the presence of the stamps and marks which must appear on the products in accordance with Community rules or in the case of products trade in which has not been harmonized at Community level, in accordance with the national legislation relevant to the various cases provided for by this Directive;

(d) `physical check' means a check of the product itself, possibly including sampling and laboratory testing.........

(g) `border inspection post' means any inspection post located in the vicinity of the external border of one of the territories referred to in Annex I, designated and approved in accordance with Article 9;

(h) `competent authority' means the central authority of a Member State, empowered to carry out veterinary or zootechnical checks, or any authority to which it has delegated such powers."

4.1 Each consignment of products from a third country shall be subjected to a documentary and identity check, irrespective of the customs destination of the products, in order to verify:

- their origin,

- their subsequent destination, particularly in the case of non-harmonized products,

- that the particulars they contain afford the guarantees required by Community rules or, where products are concerned for which trade has not been harmonized at Community level, the guarantees required under national rules referred to in the various cases covered by this Directive...........

8. Products for which the veterinary requirements governing trade have been harmonized at Community level and which have been presented at one of the points of entry to the territory defined in Annex I must meet the following requirements:

1. If

(a) the point of entry is a border inspection post, the products must undergo without delay the checks provided for in Article 4(1) and in point 2 below:

(b) the point of entry is a crossing point of the kind referred to in Article 4(2), or if the products come from a warehouse in accordance with Article 6(3), they must be transferred without delay under customs supervision to the nearest border inspection post where the official veterinarian must:

- ensure that the checks provided for in Article 4(1) have been satisfactorily performed,

- carry out the checks provided for in point 2.

2. The official veterinarian must:

(a) carry out a physical check on each consignment, on the basis of a representative sample of the consignment in order to ensure that the products are still in a fit state to be used for the purpose specified in the accompanying certificate or document;

(b) perform the laboratory tests which have to be carried out on-the-spot;

(c) take official samples to be examined for residues or pathogens and have them analysed as soon as possible.

The official veterinarian may be assisted in certain of these tasks by qualified staff with special training, working under his direction.

3. The detailed rules for carrying out the checks provided for in points l and 2 shall be laid down by the Commission under the procedure provided for in Article 24.........

16.1 Where the checks referred to in this Directive show the competent authority that the product does not satisfy the requirements laid down in the Community rules or national rules in matters which have not yet been harmonized at Community level, or where such checks reveal an irregularity, the competent authority, in consultation with the importer or his representative, shall decide either:

(a) to re-dispatch within a time limit to be set by the competent national authority, the consignment outside the territories referred [sic] in Annex I where veterinary inspection and health requirement so allow.

In this case, the official veterinarian of the border post must:

- inform the other border inspection posts, in accordance with paragraph 5 that the consignment has been rejected, indicating the infringements observed;

- under arrangements to be defined by the Commission in accordance with the procedure provided for in Article 24, cancel the veterinary certificate or documents accompanying the rejected consignments;

- at intervals to be determined by the Commission, supply information via the competent central authority, as to the nature and frequency of the infringements observed;

(b) to destroy the consignment in the territory of the Member State where the checks were carried out if re-dispatch is impossible."

The essential points to emerge from the above are:

(a) The defendant, as a competent authority at a border inspection post, is obliged to carry out documentary and identity checks on imports and the official veterinarian is obliged to carry out a physical check on a representative sample to ensure the product is still in a fit state to be consumed, by performing laboratory tests, taking official samples to examine for residues or pathogens and having them analysed as soon as possible;

(b) the checks are to be carried out in accordance with Commission procedures;

(c) where checks show that the product does not satisfy the requirements laid down in the Community rules or where such checks reveal an irregularity, the competent authority must act as set out in Article l6(l)(a) and (b).

9. Commission Decision 93/13/EEC laying down the procedures for veterinary checks at Community border inspection posts on products from third countries:

"2. Physical checks, laboratory tests and analyses of official samples must be carried out in accordance with the requirements of Annexes C and D.....

4.1 If the veterinary checks carried out indicate that the product should not be imported into the Community the competent authority, after consulting the importer or his representative, shall decide with all speed either to return or to destroy it......

4.4 The procedures described in paragraphs 1,2 and 3 shall also apply where the inspections carried out by the competent authority at the border crossing point reveal any of the infringements mentioned in Article 4(3) of Council Directive 90/675/EEC. However, measures in the sense of Article l6(1) and (2) may only be taken by the official veterinarian responsible for the nearest border inspection post. All the consignments which are rejected shall be notified immediately by the Shift system or, pending the implementation of the latter, by telecommunication or by any data transfer system."

ANNEX C - Detailed rules for physical checks on products

"1. The physical check on each consignment must be carried out under conditions permitting the required inspection and testing to be carried out satisfactorily.

2. Each consignment must be inspected to check the conditions and means of transport, in particular to confirm that:

(a) the temperature conditions comply with the requirements for the products concerned if laid down in Community rules or, where none exists, in the relevant national rules;

(b) the conditions of transport have maintained the products in the required state;

(c) there is no reason to suspect abnormalities during transport.

3. The conformity of the products with the information on the certificate must be confirmed on the basis, in particular, of the following procedures:

(a) verification that the number of items or packages mentioned on the accompanying certification corresponds to the weight of the consignment by example of the weight of one item or package;

(b) verification that the packaging, wrapping or envelope used fulfils the Community or, where applicable, national requirements: material used, state, presence of marks and/or indications required.

4. Each lot submitted to a physical examination to verify, after opening of the packaging, wrapping or envelope, that the conditions foreseen for the product concerned in the vertical Directives or, where none exist, the relevant national legislation are satisfied.

With this aim in view an organoleptic examination, particularly visual examination, must be carried out on each consignment to check for abnormalities rendering the product unfit for the use given on the veterinary certificates or accompanying documents: these examinations shall be carried out on in principle l% of the items or packages of the consignment, with a minimum of two and a maximum of l0. For loose products, the examination shall be made on at least five separate samples distributed throughout the consignment.

At any time, during the examination of the products, the official veterinarian may derogate from the maximum laid down above.

In addition to the physical checks referred to above, public health inspection of products intended for human consumption must include:

- measurement of the temperature of the product, if Community or, where applicable, national rules so require,

- checks for abnormalities in appearance, consistency, colour, smell and, where appropriate, taste: for frozen or deep-frozen products, inspection shall be carried out after thawing of the products.

5. In addition, the veterinarian shall, whenever he deems necessary, require any additional examinations to be carried out to verify compliance with Community or national legislation governing imports of or trade in these products.

6. In the event of doubt, additional physical and laboratory examinations shall be carried out on the products after the consignment has been fully unloaded, and if necessary the determination of the species.

7. In addition to the formalities referred to in Article 3, veterinary services shall take all necessary steps to indicate that an official physical control of the consignment has been carried out, particularly by resealing and placing the official stamp on all packages handled and by resealing all containers opened, mentioning the seal number indicated in the document in Annex B and on certificates or documents accompanying the consignment."

The following salient points emerge from Annex C:

1. Checks are directed to the conditions and means of transport.

2. Checks are directed to ensure conformity with the documentary information.

3. Physical checks are directed to see that "conditions foreseen for the product concerned in the vertical Directive or, where none exist, the relevant national legislation are satisfied".

4. Physical checks are directed to see whether the product is unfit for the use given.

5. Physical checks are directed at public health factors/considerations.

6. Checks are directed to verify compliance with Community or national legislation governing imports of or trade in products.

10. Council Directive 91/493/EEC laying down the health conditions for the production and the placing on the market of fishery products (the "fisheries Directive")

"..... Whereas the European Parliament in its legislative resolution of l7 March 1989 requested the Commission to come forward with comprehensive proposals on the hygienic production and placing on the market of fishery products, including solutions for the problem of nematodes;

Whereas fishery products freshly caught are in principle free of contamination with micro-organisms; whereas however contamination and subsequent decomposition may occur when handled and treated unhygienically;

Whereas therefore the essential requirements should be laid down for the correct hygienic handling of fresh and processed fishery products at all stages of production and during storage and transport;

Whereas it is appropriate to apply by analogy certain marketing standards which are laid down pursuant to Article 2 of Regulation (EEC) No. 3796/81, in order to fix the health quality of these products;

Whereas it is the responsibility primarily of the fisheries industry to ensure that fishery products meet the health requirements laid down in this Directive;

Whereas the competent authorities of the Member States must, by carrying out checks and inspections, ensure that producers and manufacturers comply with the said requirements .....

Whereas in the context of intra-Community trade, the rules laid down in Council Directive 89/662/EEC of ll December l989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market as amended by Directive 90/675/EEC apply to fishery products;

Whereas fishery products from third countries intended to be placed on the market of the Community must not qualify for more favourable arrangements than those applied in the Community; whereas provision should therefore be made for a Community procedure for the inspection in third countries of the conditions of production and placing on the market in order to permit the application of a common import system based on conditions of equivalence;

Whereas the products in question are subject to the rules concerning checks and to safeguard measures covered by Council Directive 90/675/EEC of l0 December l990 laying down the principles governing the organization of veterinary checks on products entering the Community from third countries ...

CHAPTER I - General provisions

Article 1 -

This Directive lays down the health conditions for the production and the placing on the market of fishery products for human consumption ....

Article 3 -

1. The placing on the market of fishery products caught in their natural environment shall be subject to the following conditions:

(a) they must have:

(i) been caught and where appropriate handled for bleeding, heading, gutting and the removal of fins, chilled or frozen, on board vessels in accordance with hygiene rules to be established by the Council acting by a qualified majority on a proposal from the Commission. The Commission shall submit proposals to that effect before l October 1992 ...

(c) they must have been handled and, where appropriate, packaged, prepared, processed, frozen, defrosted or stored hygienically in establishments approved in accordance with Article 7, in compliance with the requirements of Chapters III and IV of the Annex.

The competent authority may, notwithstanding Chapter II, section 2 of the Annex, authorize the transfer of fishery products ex quay into containers for immediate delivery to an approved establishment or registered auction or wholesale market to be checked there ...

(d) they must have undergone a health check in accordance with Chapter V of the Annex ....

Article 6 -

1. Member States shall ensure that persons responsible for establishment take all necessary measures, so that, at all stages of the production of fishery products, the specifications of this Directive are complied with.

To that end, the said persons responsible must carry out their own checks based on the following principles:

- identification of critical points in their establishment on the basis of the manufacturing processes used;

- establishment and implementation of methods for monitoring the checking such critical points;

- taking samples for analysis in an approved laboratory by the competent authority for the purpose of checking cleaning and disinfection methods and for the purpose of checking compliance with the standards established by this Directive;

- keeping a written record or a record registered in an indelible fashion of the preceding points with a view to submitting them to the competent authority. The results of the different checks and tests will in particular be kept for a period of at least two years.

2. If the results of own checks or any information at the disposal of the persons responsible referred to in paragraph 1 reveal the risk of a health risk or suggest one might exist and without prejudice to the measures laid down in the fourth subparagraph of Article 3(1) of Directive 89/662/EEC, the appropriate measures shall be taken, under official supervision......

CHAPTER II - Imports from third countries

Article 10 -

Provisions applied to imports of fishery products from third countries shall be at least equivalent to those governing the production and placing on the market of Community products.

Fishery products caught in their natural environment by a fishing vessel flying the flag of a third country must undergo the checks laid down in Article l8(3) of Directive 90/675/EEC.

Article ll -

1. For each third country or group of third countries, fishery products must fulfil the specific import conditions fixed in accordance with the procedure laid down in Article 15, depending on the health situation in the third country concerned.....

Article 12 -

1. The rules and principles laid down by Directive 90/675/EEC shall apply, notably as regards the organization of and follow up to the inspections to be carried out by the Member States....

ANNEX CHAPTER IV - Special conditions for handling fishery products on shore

I. Conditions for fresh products

1. Where chilled, unpackaged products are not dispatched, prepared or proceeded immediately after reaching the establishment, they must be stored or displayed under ice in the establishment's cold room. Re-icing must be carried out as often as is necessary; the ice used, with or without salt, must be made from drinking water or clean seawater and be stored under hygienic conditions in receptacles provided for the purpose; such receptacles must be kept clean and in a good state of repair. Prepacked fresh products must be chilled with ice or mechanical refrigeration plant creating similar temperature conditions.

2. If they are not carried out on board, operations such as heading and gutting must be carried out hygienically. The products must be washed thoroughly with drinking water or clean seawater immediately after such operations....

IV. Conditions for processed products

1. Fresh, frozen and thawed products used for processing must comply with the requirements of section I or II of this Chapter.

2. Where the processing treatment is carried out to inhibit the development of pathogenic micro-organisms, or if it is a significant factor in the preservation of the product, the treatment must be scientifically recognised by the law in force, or in the case of a treatment of products referred to in Chapter I Section l(b) and (c) of Directive 91/492/EEC which have not been relayed or purified, such treatment must be approved, in accordance with the procedure laid down in Article l5 of this Directive, within four months of receipt of a request from a Member State.

The person responsible for an establishment must keep a register of the processing carried out. Depending on the type of process employed, heating time and temperature, salt content, pH, water content etc., must be monitored and controlled. Records must be kept at least for the expected storage life of the products and be available to the competent authority.....

(7) Cooked crustacean and molluscan shellfish products

Crustaceans and molluscan shellfish must be cooked as follows:

(a) any cooking must be followed by rapid cooling. Water used for this purpose must be drinking water or clean seawater. If no other method of preservation is used, cooling must continue until the temperature approaching that of melting ice is reached;

(b) shelling or shucking must be carried out under hygienic conditions avoiding the contamination of the product. Where such operations are done by hand, workers must pay particular attention to the washing of their hands and all working surfaces must be cleaned thoroughly. If machines are used, they must be cleaned at frequent intervals and disinfected after each working day.

After shelling or shucking, cooked products must immediately be frozen or kept chilled at a temperature which will preclude the growth of pathogens, and be stored in appropriate premises;

(c) every manufacturer must carry out micro-biological checks on his production at regular intervals, complying with the standards to be fixed in accordance with Chapter V, Section 4 of this Annex....

CHAPTER V - Health control and monitoring of production conditions

I. General monitoring

Arrangements for checking and monitoring must be made by the competent authorities in order to establish whether the requirements laid down in this Directive are complied with..........

II. Special checks

1. Organoleptic checks

Without prejudice to the derogations provided for by Council Regulation (EEC) No 103/76 of 19 January 1976 laying down common marketing standards for certain fresh or chilled fish, each batch of fishery products must be submitted for inspection by the competent authority at the time of landing or before first sale to check whether they are fit for human consumption. This inspection comprises an organoleptic check carried out by sampling .........

If the organoleptic examination reveals that the fishery products are not fit for human consumption, measures must be taken to withdraw them from the market and denature in such a way that they cannot be re-used for human consumption.

If the organoleptic examination reveals any doubt as to the freshness of the fishery products, use may be made of chemical checks or microbiological analyses......

4. Microbiological analyses

In accordance with the procedure laid down in Article l5 of this Directive, microbiological criteria, including sampling plans and methods of analysis, may be laid down when there is a need to protect public health. The Commission will to this end submit appropriate proposals for measures by l October l992."

The following salient points emerge from this Directive:

1. It refers to Directive 90/675/EEC (veterinary checks) and the Directives can be taken to be part of the same regime.

2. The Directive lays down the health conditions for the production and the placing on the market of fishery products for human consumption.

3. The conditions include the requirement that processing is done hygienically in approved establishments and as specified in the Directive and that the products have undergone a health check as specified in the Directive.

4. A duty is placed on Member States to ensure that persons responsible for establishments take all necessary measures to comply with the Directive.

5. Persons responsible must carry out checks. If their checks or any information reveal "... the risk of a health risk or suggest one might exist ... the appropriate measures shall be taken, under official supervision".

6. Imports from "third countries" are subject to equivalent provisions, and must meet any specific import conditions which may be fixed for that country.

7. The checks to be carried out by manufacturers/producers include, at regular intervals, micro-biological checks on the production, in accordance with the standards laid down in the Directive.

8. The duty (see 4 above) imposed on Member States includes checks aimed at investigating "health control and monitoring of production conditions". If an organoleptic examination reveals products are not fit for human consumption they must be withdrawn.

9. If an organoleptic check reveals any doubt use must be made of chemical or microbiological analyses.

11. Commission Decision 93/51/EEC on the microbiological criteria applicable to the production of cooked crustaceans and molluscan shellfish.

For ease of reference a copy of this Decision is attached to this judgment, marked Appendix 1.

The salient points which emerge from this Decision are as follows:

(1) It refers to Directive 9l/493/EEC and in particular to the microbiological tests to be carried out by manufacturers.

(2) The Decision is expressly concerned to dictate that:

(a) bacterial contamination limits be set (with a view to protecting public health) and that results beyond the limits set may not be regarded as acceptable "without the product being regarded in any way as toxic" and manufacturers in such cases "must investigate the causes thereof and establish corrective procedures in order to prevent any further occurrence".

(3) The microbiological standards provided for in Directive 9l/493/EEC are set out in the Annex to the Decision.

(4) A duty is imposed on the manufacturer to check during the manufacturing process. A duty is also imposed upon the approved establishment to check before the product is placed on the market.

(5) A duty is imposed upon the staff of the processing plant to make the necessary risk evaluation (see Article 6(2) of 91/493/EEC - the fisheries Directive) from sampling checks. Failure to meet the standards in headings l and 2 of the Annex require notification to the competent authorities, review of methods, not to market for human consumption batches found to be unsatisfactory on discovery of pathogens or where heading 2 is exceeded.

(6) No duty is imposed upon the staff of the processing plant or manufacturer to notify in the event the "guidelines" under heading 3 of the Annex are exceeded.

12. Commission Decision 1999/813/EEC, laying down special conditions governing imports of fishery products originating in the Socialist Republic of Vietnam.

The Decision follows and is pursuant to 91/493/EEC and establishes the National Fisheries Inspection and Quality Assurance Center (NAFIQACEN) as the competent authority in the Republic for the purpose of verifying and certifying compliance with the fisheries Directive.

THE DOMESTIC PROVISIONS

Products of Animal Origin (Imports and Exports) Regulations , SI 1996/3124

13. The recitals refer to 90/675/EEC relating to veterinary checks on products from third countries. The definitions include (by reference) the defendant, as a border inspection post.

Regulation 5 requires the Authority to appoint an official vet, or an authorised officer for fishery products to be in charge of checking, including (reg.5(1)(e) "executing and enforcing the relevant provisions of Directive 90/675 ..." Regulation 6(3)(c) confers a general power to take samples to establish whether or not the Regulations are being complied with.

Regulation 13 concerns inspection and checking of imports for intra-Community trade (Part III). Part IV governs imports from third countries. Cross reference is made to Directive 90/675, in particular in Regulation 21, headed "import procedure":

"(1) No person shall import any product of animal origin (except fishery products or live bivalve molluscs or other shellfish) unless he has given to either the official veterinary surgeon at the border inspection post or the Minister the following periods of advance notice of arrival -

(a) for consignments arriving by air, at least six hours, given during the working day of the border inspection post;

(b) in any other case, at least one working day of the border inspection post.

(2) The notice referred to in paragraph (1) above shall be in accordance with Article 4(4) of Directive 90/675.

(3) No person shall remove any product of animal origin to which this regulation applies from customs temporary storage arrangements except as provided for in regulation 22(2), 24 or 25 unless there has been provided to the Customs and Excise -

(a) the certificate signed by the official veterinary surgeon and issued under Article l0(1), second indent, of Directive 90/675 that the veterinary checks (or, in the case of Articles 8(4) and ll(2)(b) of that directive dealing with deferred checks, or Article l2 of that directive dealing with the transit of products from one third country to another, the checks specified in those articles) have been carried out on the products in question in accordance with Articles 4 and 8 of that directive to his full satisfaction; and

(b) proof that those checks have been paid for, and that, where relevant, a deposit covering any costs provided for in Article l6(3) of that directive has been lodged with the local authority.

(4) The official veterinary surgeon shall ensure that all checks required by Directive 90/675 are carried out to his satisfaction, either by him or under his supervision, before he signs the certificate required under paragraph (3) above.

(5) Before authorising the release of any products, the official veterinary surgeon shall, in cases where there is doubt whether such product should be released, consult the appropriate Divisional Veterinary Manager, and following such consultation, shall take no further action without first informing him....."

14. The Food Safety (Fishery Products and Live Shellfish) (Hygiene) Regulations l998. S.I. 1998 No.994. In part IV, headed import conditions for fishery products and live shellfish, regulations 42 and 43 provide:

"42. Subject to regulation 46, no person shall import any fishery products which are for human consumption unless they are products in respect of which -

(a) the applicable requirements of the Fishery Products Directive, the Fishing Vessels Directive, the Live Bivalve Molluscs Directive and the Fishery Products Decisions are satisfied (the requirements of these Directives and Decisions which are capable of being applicable in these circumstances are those mentioned in Part IV of Schedule l); and

(b) any additional conditions imposed under regulation 43 are satisfied.

Additional conditions relating to certain third country imports of fishery products

43. (1) Subject to paragraph (4) and regulation 46, no person shall import any fishery products which are for human consumption -

(a) from a third country;

(b) from another country or territory within the European Community if those fishery products do not originate from within the European Economic Area [1], except where those products were in free circulation in that country or territory within the European Community;

(c) from an EEA State which is not also a member State of the European Community, except where those fishery products originate from within the European Economic Area,

unless the conditions specified in paragraph (2) or alternatively, if those fishery products originate in a country in respect of which the European Commission has adopted approved import conditions for fishery products and those fishery products fall within the scope of those approved import conditions, paragraph (3) are satisfied in relation to those fishery products which he imports."

15. Mr Howe QC, for the defendant, submitted that upon a proper reading and interpretation of the above provisions the defendant had the power to reject the shrimp and for the reasons given. The steps in the argument were as follows:

(1) The rules and principles governing veterinary checks (Directive 90/675/EEC, para 8 above) apply to fishery products imported from third countries because Article l2(1) of Directive 9l/493 (the fisheries directive, para 10 above) states they shall, and adds they shall apply:

"... notably as regards the organization and follow up to the inspections to be carried out by the Member States".

(2) Article l6 of Directive 90/675/EEC states:

"Where the checks referred to in this Directive show the competent authority that the product does not satisfy the requirements laid down in the Community rules ... or where such checks reveal an irregularity, the competent authority, in consultation with the importer or his representative, shall decide either to re-dispatch or destroy".

(3) The requirements (or conditions) for the production and placing on the market of fishery products for human consumption are set out in Directive 9l/493. By Article 3 the placing of fishery products on the market is subject to a condition (amongst others) that they must have been processed or stored hygienically in accordance with Article 7 and in compliance with the requirements of Chapters III and IV of the Annex (see Article 3(1)(c)).

(4) Annex, Chapter IV, paragraph 7, provides for the proper cooking of crustaceans and includes a requirement that the manufacturer carry out micro-biological checks on his production at regular intervals.

(5) Article 6(1) requires processors to conduct their own checks and act (6(2)) on results.

(6) Decision 93/51 defines the tests that processors must include in their own checks programme and requires them to act on them.

(7) Accordingly, the fact that an establishment is carrying out and acting on the results of the tests laid down by Decision 93/51 is a condition precedent to the lawful placing of its product on the market (see Articles l and 3 of the fisheries Directive 91/493/EEC.

(8) Checks are also to be carried out by an Authority (Article 4 Directive 90/675), including physical checks, the purpose of the physical check being to verify " ... that the conditions foreseen for the product concerned in the vertical Directive", namely the fisheries Directive 9l/493/EEC, are satisfied (see Decision 93/l3, Annex C, paragraph 4).

(9) The combined effect of the own checks requirements and the Authority's required border inspection checks is that if there has been non-compliance with, for example, the processing requirements or the carrying out of the own checks requirements, the product may not be lawfully placed on the market in the EC. If the precautions laid down in the fisheries Directive have not been followed, then that is enough to bar the product from the market. There is no need to show that failure to follow the precautions has resulted in specific contamination of a particular batch. It is in the nature of food safety precautions that producers may "get away with" lax practices a number of times before disaster strikes. Following lax practices will place consumers at a risk from which the Directive is intended to shield them.

(10) It is for the Authority as fact finder to assess the available evidence, including that provided by its tests, to decide whether it indicates that the provisions of the Directive have not been complied with in the country of origin. This, although not a discretion as such is akin to the exercise of discretion in that it involves the Authority exercising its judgment on the available materials.

(11) The Authority's view is that the evidence provided by the tests indicates that the manufacturers are not applying or properly implementing the "own checks" system as required by the Directive.

(12) In the event that there has been non-compliance with the conditions of the relevant vertical directive, Article l6 of Directive 90/675 read literally requires the Authority to refuse entry to the batch. The Article appears to confer no discretion and makes no exception for any breaches, however trivial. However, even if it is subject to any implied limitation that the breaches must be of a material nature, a departure from process controls that undermines the level of safety intended to be conferred on the consumer by the Directive is on any view material. Regulation 25(l) of the 1996 Regulations (Bu l/p 228) uses the word "may"; assuming that this confers a discretion, an apparent departure from the Directive which undermines the standard of protection which it is the purpose of the Directive to provide is clearly a sound basis for the exercise of a discretion to order removal.

Conclusions

16. The complexity of the regime stems from the inter-relationship of three distinct sectors of control:

(1) the state of the product;

(2) the processor's "own check" obligations;

(3) the Authority's physical check obligations and its obligations in connection with the processor's "own check obligations".

The state of the product

There is a consistent and reasonably plain legislative approach to this issue.

Article l6(1) of Directive 90/675/EEC states:

"1. Where the checks referred to in this Directive show the competent authority that the product does not satisfy the requirements laid down in the Community rules ..... the competent authority, in consultation with the importer or his representative, shall decide either: "to re-dispatch or destroy.

I have deliberately left out the reference to "national rules" and "an irregularity". The former are not in point and the latter I regard as referring to a documentary irregularity.

Directive 90/675/EEC is not referred to in the Notice to the claimant. The Notice does not state that the product has not satisfied requirements, simply that conditions in Directive 91/493/EEC have not been satisfied.

Article 6(2) of Directive 91/493/EEC expressly provides for the results of checks on information revealing evidence as to the state of the product. It states:

"If the results of own checks or any information at the disposal of the persons responsible referred to in paragraph l reveal the risk of a health risk or suggest one might exist ... the appropriate measures shall be taken ...."

Annex Chapter 5, paragraph 2(4) states that if the organoleptic examination reveals the product is not fit for human consumption it must be withdrawn.

Commission Decision 99/813/EC (also referred to in the Notice) is concerned to regulate conditions in Vietnam and adds nothing to this issue.

Finally, the third enactment referred to in the Notice, Commission Decision 93/51/EEC, Article 3(2) provides for the consequences where headings l and 2 of the Annex are not met, namely,

" - not to market for human consumption batches found to be unsatisfactory on account of the discovery of pathogens or where the M value for Staphylococcus provided for under heading 2 of the Annex is exceeded".

I regard the above provisions as laying down the circumstances in which the product can be rejected owing to its condition.

The processor's own check obligations

17. Directive 91/493/EEC

There are catching, handling, processing and own check conditions which have to be met. Member States have a duty to "ensure" that "... at all stages of the production of fishery products, the specifications of the Directive are complied with". The policy laid down has a significant self regulatory element, but the aim is to keep establishments up to standard. Unless the results of checks reveal a "health risk or suggest one might exist" the purpose is to improve the standards of control at the establishments.

Decision 99/813/EEC is not material to this discussion.

18. Decision 93/51/EEC

The objectives, in my judgment, are clear. The first recital refers to the duty to "carry out microbiological checks on their production ... in compliance with the standards to be laid down ...". The second recital reflects the purpose of "protecting public health" by setting a "bacterial contamination level" beyond which the results may not be regarded as acceptable without the product being regarded in any way as toxic" (emphasis added). The same recital states " ... where the acceptability limit is exceeded, manufacturers must investigate the causes thereof and establish corrective procedures in order to prevent any further occurrence."

The self regulatory element is reflected in Articles 2 and 3, but where the standards for "indicator organisms" exceed those set out in heading 3 of the Annex the manufacturer is not placed under an obligation not to market for human consumption. He must, having regard to the results, decide whether his plant is operating satisfactorily and whether his monitoring procedures are satisfactory.

The Authority's position and its obligations

19. On analysis the defendant's position does not rest upon the fact that the aerobic colony counts on some of the samples exceeded the standard specified in Decision 93/51/EEC. It has rejected the whole consignment because it maintains there may have been non-compliance with the processing requirements or there may have been a failure to carry out the "own checks" procedures or may have been a failure to implement the results of the "own checks" procedures. It does not, because the evidence would not permit it, state that there has been non-compliance with any particular requirement, nor is it able to state whether the results indicate a particular failure as opposed to indicating one or more of a number of possible failures. It cannot justify its action in rejecting the shrimp by pointing to the existence of an express power to reject in the given circumstances. Indeed, the established given circumstances fall within a contingency, which is deliberately excluded from a circumstance of rejection and for which a consequence is expressly provided (see heading 3 Decision 93/1/EC).

20. In my judgment where a competent authority is satisfied that there has been a failure on the part of manufacturer/processor to carry out the own checks procedures or to implement results or to process hygienically, a breach of condition will arise justifying measures being taken to prevent the product being marketed for human consumption. Proof of such a breach of condition will give rise to a risk to public health or suggest the existence of such a risk. A purposive reading of the provisions demonstrates that a rejection of a product is grounded in the risk it presents to public health. The insufficiency of the defendant's present position is that no risk or suggestion of risk to public health can be made out. The highest case that can be put is that action has been taken which is considered necessary in connection with public health considerations, as is necessary "to minimise the risk to public health" or is necessary to prevent the continuation of lax practices by a processor, such being considered necessary on the ground that there are indicators that one or other of the needs exist.

21. The defendant's argument, if correct, creates an uneven and dislocated legislative position. The same results of one microbiological test will be allowed to have two different legislative consequences. It does not seem to me to be right that a given set of results under Decision 93/51/EEC, should permit a manufacturer to market a product, if his entitlement to do so can be undermined by an opinion formed on the same results by a competent authority. Had the processor in Vietnam carried out tests with the same results as the defendant's tests, he would have been entitled to market the shrimp. As far as measures to police lax practices are concerned, they are contained within Article 3 itself: reviewing the methods of supervising and checking (where a heading l or 2 failure has occurred) and using the guidelines as suggested under heading 3. Again, Decision 99/813/EC provided for a competent authority in Vietnam to inspect, and it is a significant part of the process. The Vietnamese certificate is not conclusive and I accept that the defendant had its own duty to discharge by way of physical check. However, proof that such a certificate was wrongly issued or that events since its issue have invalidated it, will require more than the results of a microbiological test, which, according to the standards set by the Decision, do not indicate that the product is in any way toxic.

22. For the above reasons I have concluded that the claimant is entitled to the grant of judicial review and I shall hear counsel in connection with the question of relief.

23. For completeness I should add that while it could be regarded as something of a misrepresentation to state that the conclusion I have reached is so clear that no alternative conclusion reasonably appears, the difficulties have been more closely associated to the diffuse range of provisions than the conclusion itself. The length of this judgment and its somewhat repetitive citation of the provisions is explained by my endeavours to weave them together. In the circumstances I concluded it was not an appropriate case in which to make a reference to the ECJ.