LADY HALE AND LORD SALES: (with
whom Lord Hodge, Lady Black and Lord Lloyd-Jones agree)
The Facts
1.
On 11 September 2014, the Cleveland Meat Company Ltd (CMC) bought a live
bull at the Darlington Farmers’ Auction Mart for £1,361.20. The bull was passed
fit for slaughter by the Official Veterinarian (OV) stationed at CMC’s
slaughterhouse. It was assigned a kill number of 77 and slaughtered. A post
mortem inspection of both carcass and offal was carried out by a Meat Hygiene
Inspector (MHI), who identified three abscesses in the offal. The offal was not
retained. Later that day, the OV inspected the carcass and, after discussion
with the MHI, declared the meat unfit for human consumption, because pyaemia
was suspected. Accordingly, the carcass did not acquire a “health mark”
certifying that it was fit for human consumption. The consequence of this was
that it would have been a criminal offence for CMC to seek to sell the carcass
(under regulation 19 of the Food Safety and Hygiene (England) Regulations 2013
(“the Food Hygiene Regulations”)).
2.
CMC took the advice of another veterinary surgeon and challenged the OV’s
opinion. It claimed that, in the event of a dispute and its refusal to
surrender the carcass voluntarily, the OV would have to seize the carcass under
section 9 of the Food Safety Act 1990 (“the 1990 Act”) and take it before a
Justice of the Peace to determine whether or not it ought to be condemned. The
Food Standards Agency (FSA) replied that there was no need for it to use such a
procedure. Having been declared unfit for human consumption by the OV, the
carcass should be disposed of as an animal by-product.
3.
On 23 September 2014, the OV, acting for the FSA, served on CMC a notice
for the disposal of the carcass as an animal by-product (the disposal notice)
(under regulation 25(2)(a) of the Animal By-Products (Enforcement) (England)
Regulations 2013 (“the Animal By-Products Regulations”) and Regulation (EC) No
1069/2009). The disposal notice informed CMC that failure to comply with the
notice could result in the Authorised Person under the Regulations arranging
for compliance with it at CMC’s expense and that it was an offence to obstruct
an Authorised Person in carrying out the requirements of the notice. The
disposal notice also stated:
“You may have a right of appeal
against my decision by way of judicial review. An application for such an
appeal should be made promptly and, in any event, generally within three months
from the date when the ground for the application first arose. If you wish to
appeal you are advised to consult a solicitor immediately.”
4.
These judicial review proceedings are brought by the Association of
Independent Meat Suppliers, a trade association acting on behalf of some 150
slaughterhouses, and CMC (the claimant appellants) to challenge the FSA’s
assertion that it was unnecessary for it to use the procedure set out in
section 9 of the 1990 Act and to claim in the alternative that it is incumbent
on the United Kingdom to provide some means for challenging the decisions of an
OV in such cases. They failed in the High Court and Court of Appeal and now
appeal to this Court. There are three main issues in the proceedings.
The issues in the case
5.
The first revolves around an issue of domestic law. Is the procedure
contained in section 9 of the 1990 Act available in these circumstances and
does it have to be used by the OV or the FSA, if the carcass owner refuses to
surrender the carcass voluntarily, so as to afford the carcass owner a means of
challenging decisions of the OV with which it disagrees? The Food Hygiene
Regulations provide that section 9 is to apply for the purpose of those Regulations.
Under section 9, if it appears to an authorised officer of an enforcement
authority such as the FSA that food intended for human consumption “fails to
comply with food safety requirements”, he may seize the food and remove it in
order to have it dealt with by a Justice of the Peace (who may be either a lay
magistrate or a legally qualified District Judge, but who will be local to the
slaughterhouse and readily accessible at all hours). If it appears to the
Justice of the Peace, on the basis of such evidence as he considers
appropriate, that the food “fails to comply with food safety requirements”, he
shall condemn it and order it to be destroyed at the owner’s expense. If he
refuses to condemn it, the relevant enforcement authority must compensate the
owner for any depreciation in its value resulting from the officer’s action.
Under section 8(2), food fails to comply with food safety requirements if it is
unsafe within the meaning of article 14 of Regulation (EC) No 178/2002: ie
injurious to health or unfit for human consumption (see para 12 below).
6.
The procedure in section 9 of the 1990 Act is not framed in terms of an
appeal from the OV’s decision. It sets out a procedure whereby an officer of a
food authority or an enforcement authority can refer the question of
destruction of a carcass to a Justice of the Peace for decision. Normally, we
are told, the owner accepts the OV’s decision that an animal is not fit for
human consumption and voluntarily surrenders it. But if the owner does not, the
claimant appellants say that this procedure provides both (i) a way in which
the OV or the FSA can take enforcement action consequent upon the OV’s decision
and (ii) a means whereby the owner can subject that decision to judicial
scrutiny and ask the Justice of the Peace to decide whether or not the carcass
did in fact comply with the food safety requirements. They accept that the
Justice of the Peace cannot order the OV to apply a health mark. However, they
argue that the OV can be expected to respect the decision and apply a health
mark accordingly. Further, compensation may be payable under the 1990 Act if
the Justice of the Peace refuses to condemn the carcass. In the claimant
appellants’ view, this procedure has been part of the United Kingdom’s food
safety regime since the 19th century, and continues to operate under the
European Union’s food safety regime contained in the suite of Regulations
coming into force in 2006.
7.
The FSA agrees that the procedure under section 9 of the 1990 Act would
be available to it as one possible means of enforcement if the operator of a
slaughterhouse attempted to introduce into the food chain an animal carcass
which had not been given a health mark by an OV. However, it does not accept
that this procedure would be suitable, still less obligatory, to resolve a
dispute as to whether the carcass is or is not fit for human consumption. A
Justice of the Peace has no power to order an OV to apply a health mark and,
moreover, the FSA says that he would have no power under section 9 to do anything
other than condemn for disposal a carcass bearing no such mark.
8.
Although not raised by the FSA in argument, the Court observes that it
would be open to the operator of a slaughterhouse such as CMS to bring judicial
review proceedings in the High Court to challenge the OV’s decision that the
meat of a carcass was unfit for human consumption, and thus to deny a health
mark, or to quash a disposal notice. The High Court may quash a decision of an
OV on any ground which makes the decision unlawful, including if he acts for an
improper purpose, fails to apply the correct legal test or if he reaches a
decision which is irrational or has no sufficient evidential basis. The High
Court does occasionally hear oral evidence and make mandatory orders, and has
power to award compensation for breaches of the rights under the European
Convention on Human Rights (ECHR). However, contrary to what was said in the
notice quoted in para 3 above, judicial review is not an appeal on the merits
of the decision.
9.
The main reason advanced by the FSA why the section 9 procedure is not
also applicable is that such a procedure, operated in the way the claimant
appellants say that it can be operated, in effect as an appeal against the
merits of the OV’s decision, would be incompatible with the regime contained in
the suite of EU food safety Regulations which came into force in the United
Kingdom in 2006.
10.
Hence, the second issue is whether use of the procedure in section 9 of
the 1990 Act is compatible with the food safety regime laid down by European
Union law, specifically by Regulation (EC) No 852/2004 on the hygiene of
foodstuffs; Regulation (EC) No 853/2004 laying down specific hygiene rules for
food of animal origin; Regulation (EC) No 854/2004 laying down specific rules
for the organisation of official controls on products of animal origin intended
for human consumption; Regulation (EC) No 882/2004 on official controls
performed to ensure the verification of compliance with feed and food law,
animal health and animal welfare rules; and Regulation (EC) No 1069/2009 on
health rules as regards animal by-products. Also relevant is the prior
Regulation (EC) No 178/2002 laying down the general principles and requirements
of food law.
11.
The third issue is whether Regulation (EC) No 882/2004 mandates an
appeal procedure and if so whether such an appeal should be capable of
challenging the OV’s decision on the full factual merits or whether the more
limited scope of challenge involved in judicial review of the OV’s decision and
of a disposal notice as referred to above is sufficient to comply with the
requirements of Regulation (EC) No 882/2004.
Relevant European Union Law
12.
Under article 2 of Regulation (EC) No 178/2002, “‘food’ means any
substance or product … intended to be, or reasonably expected to be ingested by
humans”. It is common ground between the parties that carcass 77 was “food”
when it was slaughtered and remained so after the OV formed the opinion that it
was unfit for human consumption and declared it as such. Article 14 of Regulation
(EC) No 178/2002 provides that food shall not be placed on the market if it is
unsafe. Food is deemed unsafe if it is considered to be (a) injurious to
health, (b) unfit for human consumption. Article 5.1 of Regulation (EC) No
853/2004 provides that food business operators (FBOs) such as slaughterhouses
shall not place on the market a product of animal origin unless it has a health
mark applied in accordance with Regulation (EC) No 854/2004 (or an
identification mark if a health mark is not required by the latter Regulation).
13.
Regulation (EC) No 854/2004 lays down specific rules for the
organisation of official controls on products of animal origin (article 1.1).
The application of the official controls which it requires is without prejudice
to the primary legal responsibility of FBOs to ensure food safety under
Regulation (EC) No 178/2002 (article 1.3). The controls are of several types.
Article 4, for example, deals with official controls to verify an FBO’s general
compliance with the Regulations, including detailed audits of good hygiene
practices.
14.
Article 5 requires member states to ensure that official controls with
respect to fresh meat take place in accordance with Annex I. Under article 5.1,
the OV is to carry out inspection tasks in, inter alia, slaughterhouses in
accordance with the general requirements of section I, Chapter II of Annex I
and the specific requirements of section IV. Under article 5.2, the health
marking of domestic ungulates, such as cattle, is to be carried out in
slaughterhouses in accordance with section I, Chapter III of Annex I; the
criterion for applying health marks is stated thus:
“Health marks shall be applied by,
or under the responsibility of, the official veterinarian when official
controls have not identified any deficiencies that would make the meat unfit
for human consumption.”
15.
Annex I lays down detailed rules about ante-mortem and post-mortem
inspections, how they are to be done and by whom, the application of health
marks and the communication of results. Chapter IV of section III lays down
detailed requirements for the qualifications and skills of Official
Veterinarians and their auxiliaries (such as MHIs).
16.
Regulation (EC) No 854/2004 does not define “official controls” nor does
it lay down any specific enforcement measures or sanctions for non-compliance
with the controls which it mandates. Article 1.1a provides that it applies in
addition to Regulation (EC) No 882/2004 and article 2.2(b)(a) provides that the
definitions in Regulation (EC) No 882/2004 shall apply as appropriate.
Regulation (EC) No 882/2004 lays down general rules for the performance of
official controls for a variety of purposes, including preventing risks to
humans and animals and protecting consumer interests in the feed and food trade
(article 1.1). It is “without prejudice to specific Community provisions
concerning official controls” (article 1.3). “‘Official control’ means any form
of control that the competent authority or the Community performs for the
verification of compliance with feed and food law, animal health and animal
welfare rules” (article 2.1). “‘Non-compliance’ means non-compliance with feed
or food law, and with the rules for the protection of animal health and
welfare” (article 2.10).
17.
Recitals (41) and (42) to Regulation (EC) No 882/2004 state, inter alia,
that breaches of food law may constitute a threat to human health and therefore
should be subject to effective, dissuasive and proportionate measures at
national level, including administrative action by competent authorities in the
member states. Recital (43) states:
“Operators should have a right to appeal
against the decisions taken by the competent authority as a result of the
official controls, and be informed of such a right.”
The Court notes that in the French language version of
the Regulation the relevant phrase used is “Les exploitants devraient avoir un
droit de recours …” and in the German language version “Unternehmer sollten …
Rechtsmittel einlegen können …”.
18.
Title VII of Regulation (EC) No 882/2004 deals with enforcement measures
and Chapter I is concerned with national enforcement measures. Article 54.1
requires the competent authority, when it identifies non-compliance, to take
action to ensure that the operator remedies the situation. In deciding what
action to take it “shall take account of the nature of the non-compliance and
that operator’s past record with regard to non-compliance”. Article 54.2 gives
a non-exhaustive list of the measures which must be available where
appropriate. These include (b) the restriction or prohibition of the placing on
the market of food; (c) if necessary, ordering the recall, withdrawal and/or
destruction of food; and (h) any other measure the competent authority deems
appropriate. Article 54.3 requires the competent authority to provide the
operator concerned with written notification of its decision and the reasons
for it and “information on rights of appeal against such decisions and on the
applicable procedure and time limits”. The Court notes that in the French
language version this text appears as “des informations sur ses droits de
recours contre de telles decisions, ainsi que sur la procedure et les délais
applicables” and in the German language version the phrase “sein
Widerspruchsrecht” is used.
19.
Article 55 requires member states to lay down the rules on sanctions
applicable to infringements of feed and food law and to take all measures
necessary to ensure that they are implemented. “The sanctions provided for must
be effective, proportionate and dissuasive.”
The parties’ arguments
20.
The claimant appellants argue that the procedure in section 9 of the 1990
Act is applicable in cases such as this and is not incompatible with the regime
laid down by the EU Regulations; indeed it - or something like it - is
contemplated by the terms of article 54 of Regulation (EC) No 882/2004. In
summary, they assert that:
(1) The section 9
procedure was applied during the very similar regime adopted pursuant to the EU
Directives before the coming into force of the suite of Regulations referred to
above. There is no evidence that this caused any practical difficulties. If it
was not thought inconsistent with that regime, there is no reason to think it
inconsistent with the current regime. Indeed, in 2006, when the Regulations
came into force, the Meat Hygiene Service Manual of Official Controls
stated (and continued to state until shortly before these proceedings began) that
where the OV was not satisfied that the meat was fit for human consumption and
voluntary surrender was not forthcoming, the OV must seize the food under
section 9 and take it before a Justice of the Peace for it to be condemned. At
the very least, this is an indication of past practice under the very similar
regime which preceded the current EU Regulations and of what the FSA, as
competent authority, initially thought the position to be under the Regulations.
(2) The official
controls in Regulation (EC) No 854/2004 are in addition to the more general
provisions in Regulation (EC) No 882/2004. They are specific to food of animal
origin. But they contain nothing about enforcement and sanctions. Thus it is
not surprising that they do not provide for a right of appeal against the
decisions of the OV and competent authority. Enforcement and sanctions are
provided for in Regulation (EC) No 882/2004. Regulation (EC) No 854/2004 is
intended to work in combination with Regulation (EC) No 882/2004. Recital (43)
to Regulation (EC) No 882/2004 indicates that a right of appeal is required in
a case such as this. Articles 54 and 55 are applicable to all kinds of
non-compliance with Regulation (EC) No 854/2004, including non-compliance with
article 5 in individual cases as well as the more general non-compliance dealt
with by article 4. The references to prohibiting placing on the market and
ordering destruction in article 54.2 are clearly apt to deal with
non-compliance under article 5. Article 54.3 should apply to action to deal
with all kinds of non-compliance. These articles, read together with recital
(43) mandate a right of appeal against the OV’s decision.
(3) There is nothing in
any of the Regulations to prohibit a procedure such as that laid down in
section 9. This not only provides a means whereby the competent authority can
enforce the requirements of Regulation (EC) No 854/2004 in relation to
non-compliance but also provides the operator with a means of challenging the
decision of the OV that a carcass is not fit for human consumption on its
merits. The Justice of the Peace can (and should) hear expert evidence to
determine the matter. While only the OV can apply the health mark, on the
claimant appellants’ interpretation of section 9 the Justice of the Peace can
make a ruling which may result in an award of compensation if the mark is
wrongly withheld.
(4) At the point when
the OV inspects the meat and forms the opinion that it is unfit for human
consumption and declares it as such, the carcass is still “food” within the
meaning of the above Regulations. It has not become an “animal by-product”
within the meaning of Regulation (EC) No 1069/2009, laying down health rules as
regards animal by-products. Animal by-products are defined as “entire bodies or
parts of animals, products of animal origin or other products obtained from
animals, which are not intended for human consumption” (article 3.1). Until the
process of condemnation is complete, the FBO still intends the carcass for
human consumption.
(5) Providing a
mechanism for judicial oversight of the process of condemnation is required by
article 17 of the Charter of Fundamental Rights of the European Union (CFR)
(equivalent to article 1 of the First Protocol to the ECHR) which protects the
right to property, read with article 47, which requires an effective judicial
remedy for everyone whose rights and freedoms guaranteed by community law are
violated. It would be a violation if an FBO were deprived of the property in
the carcass - or required to dispose of the carcass in such a way as to render
it valueless - without proper justification or compensation.
(6) Judicial review does
not constitute an appeal which satisfies the requirement in Regulation (EC) No
882/2004 that there be a right of appeal. Regulation (EC) No 882/2004 requires
that there be a right of appeal against the decision of an OV on the merits
going beyond what is possible in judicial review.
21.
Against this, the competent authority, the FSA, argues that it would be
incompatible with the regime established by the Regulations if resort were made
to the procedure under section 9 of the 1990 Act in order to challenge the
decision of the OV under article 5 of Regulation (EC) No 854/2004 on its
merits. The FSA accepts that the lawfulness of the decision can be challenged
in judicial review proceedings as set out above. In summary, the FSA asserts
that:
(1) The requirements of
Regulation (EC) No 854/2004 are a lex specialis in relation to products
of animal origin. Regulation (EC) No 882/2004 is without prejudice to specific
Community provisions regarding official controls (article 1.3). Regulation (EC)
No 854/2004 therefore takes precedence over Regulation (EC) No 882/2004 where
it is necessary to do so.
(2) There is a
distinction between the roles undertaken by the OV under article 4 of
Regulation (EC) No 854/2004 and those undertaken under article 5. The former
concerns the audit of an FBO’s general practices and compliance with food
hygiene requirements. It is accepted that article 54 of Regulation (EC) No 882/2004
is capable of being applied to that role. However, it should be noted that,
despite the wording of recital (43), article 54.3 stops short of positively
requiring that there be a right of appeal.
(3) The role of
inspecting and health marking individual carcasses under article 5 is quite
different from the audit role under article 4. The OV alone (with the
assistance permitted under the Regulation) has responsibility for deciding
whether or not to apply a health mark, which is a necessary prerequisite to
placing the meat on the market. Nobody other than the OV can perform this task.
This can only be done when “official controls have not identified any
deficiencies that would make the meat unfit for human consumption”. That
“weighted double negative” test is consistent with the overall aim laid down in
article 1.1 of Regulation (EC) No 178/2002, of the “assurance of a high level
of protection of human health and consumers’ interest in relation to food”. It
may be that the meat remains “food” even after the OV has decided not to apply
a health mark, but it cannot thereafter be lawfully intended for human
consumption.
(4) The qualifications
and experience of the OV are carefully specified so as to ensure that he or she
is properly qualified to undertake that decision-making role (with the
assistance permitted under the Regulations). It would be incompatible with the
requirements of Regulation (EC) No 854/2004 for a person or body other than the
OV as referred to in article 5.2 and which does not have those qualifications
and experience, such as a Justice of the Peace acting pursuant to section 9 of
the 1990 Act, to decide whether a carcass should have had a health mark applied
to it, even if adjudicating with the benefit of expert evidence presented by
each side.
(5) Article 17 of the
CFR (and article 1 of the First Protocol to the ECHR) permit control of the use
of property if this is a proportionate means of achieving a legitimate aim
(reference is made to Booker Aquaculture Ltd (trading as Marine Harvest
McConnell) v Scottish Ministers (Joined Cases C-20/00 and C-64/00) [2003] ECR I-7411). The above aim is undoubtedly legitimate and the means chosen proportionate.
Article 17 does not mandate a right of challenge to the imposition of such
controls.
(6) If there is a
requirement that there be a right of appeal in relation to the decision of an
OV under article 5.2 of Regulation (EC) No 854/2004, it is satisfied by the
availability of judicial review as set out above. Judicial review also
satisfies any requirement under article 17 of the CFR (or article 1 of the
First Protocol to the ECHR) of a possibility of judicial control of the actions
of an OV.
Conclusion
22.
For the purposes of this reference, the Court of Justice of the European
Union is asked to assume that the claimant appellants’ interpretation of
section 9 of the 1990 Act is correct, and that a Justice of the Peace has power
to give a ruling which may result in an award of compensation if he considers
that a health mark ought to have been applied to a carcass. In order to
determine this appeal, this Court refers the following questions to the Court
of Justice of the European Union:
(1) Do Regulations (EC)
Nos 854/2004 and 882/2004 preclude a procedure whereby pursuant to section 9 of
the 1990 Act a Justice of the Peace decides on the merits of the case and on
the basis of the evidence of experts called by each side whether a carcass
fails to comply with food safety requirements?
(2) Does Regulation
(EC) No 882/2004 mandate a right of appeal in relation to a decision of an OV
under article 5.2 of Regulation (EC) No 854/2004 that the meat of a carcass was
unfit for human consumption and, if it does, what approach should be applied in
reviewing the merits of the decision taken by the OV on an appeal in such a
case?
