- Avv. Paola Corte
Food safety- compliant yet unsafe food: 2 recent ECJ rulings on microbiological criteria
Art. 14 of the EU General Food Law Regulation vs EU Microbiological criteria set forth in Reg. (EU) 2073/05
The provision of Art. 14 (8) Reg. (EU) 178/02 has been at the center of two rulings by the European Court of Justice in 2022, both regarding the interpretation of the microbiological criteria set forth by EU Reg. 2073/05.
Reg. (EU) 178/02 establishes that:
Art. 14.7. “Food that complies with specific Community provisions governing food safety shall be deemed to be safe in so far as the aspects covered by the specific Community provisions are concerned.”
Art. 14.8 or “8. Conformity of a food with specific provisions applicable to that food shall not bar the competent authorities from taking appropriate measures to impose restrictions on it being placed on the market or to require its withdrawal from the market where there are reasons to suspect that, despite such conformity, the food is unsafe.”.
The Court rules that Article 14(7) of Reg. (EU) 178/02 specifies that the classification of food as safe, pursuant to specific provisions of EU food safety law, such as those of Regulation No 2073/2005, applies only ‘in so far as the aspects covered by those provisions are concerned’. Article 14(1), (2), (7) and (8) of Regulation No 178/2002 thus allows competent national authorities to take appropriate measures to impose restrictions on food being placed on the market or to require its withdrawal from the market, despite its conformity to specific provisions of EU law which are applicable to it, where those authorities have objective reasons to suspect that that food is unsafe. That provision, having regard to its importance for the attainment of a high level of protection of human health and consumer interests, in accordance with Article 1(1) of that regulation, must be interpreted broadly.
This general reasoning was applied in two recent rulings by the European Court of Justice.
1. ROMEGA C 89/21
Salmonella serotypes other than Salmonella Typhimurium and Salmonella Enteritidis in fresh poultry meat
The first case (ROMEGA C 89/21) involves Salmonella in poultry meat.
The criteria set forth by Reg. (EU) 2073/05 in annex 1, Chapter 1, entitled ‘Food safety criteria’, pt. 1.28, establishes that for two specific serotypes of salmonella: Salmonella Typhimurium and Salmonella Enteritidis must be not be detected in 25g, for fresh poultry meat placed on the market during its shelf life. The EU regulation does not set criteria for other serotypes of Salmonella in such meat.
The referring court asked whether the regulation on microbiological criteria and Reg. (EU) 178/02 must be interpreted as meaning that, if Salmonella serotypes other than salmonella Typhimurium and Enteritidis have been detected fresh poultry meat, the competent authority may regard the products as unsafe within the meaning of Article 14(1) and (2) of Regulation No 178/2002.
The ECJ considered, as the Lithuanian, Czech and Italian Governments and the Commission emphasised, that even though the serotypes detected in the case by the Lithuanian authority in fresh poultry meat, namely Salmonella Kentucky and/or Salmonella Infantis, appear to be less prevalent than Salmonella Typhimurium and Salmonella Enteritidis, the adverse health effect of the first two serotypes cannot, for all that, be ruled out.
The ECJ therefore concluded that it is for the competent national court to ascertain, pursuant to Article 14(8) of Regulation No 178/2002, whether the presence of those serotypes, which are not mentioned in point 1.28 of Chapter 1 of Annex I to Regulation No 2073/2005, gives rise to a suspicion that the fresh poultry meat in question is unsafe, within the meaning of Article 14(2) to (5) of Regulation No 178/2002, and can justify the measures adopted by that authority as ‘appropriate measures’ taken on the basis of the former provision.
The ECJ therefore rules that the provisions must be interpreted as meaning that the competent authority of a Member State may regard as unsafe within the meaning of Article 14(1) and (2) of Regulation No 178/2002 the food category consisting in fresh poultry meat in which pathogenic microorganisms other than the salmonella serotypes listed in point 1.28 of Chapter 1 of Annex I to Regulation No 2073/2005 have been detected.
2. Aktsiaselts M.V.WOOL Case C 51/21
Limit values for the presence of Listeria monocytogenes in fish products before and after being placed on the market
Point 1.2 of Chapter 1 of Annex I to Regulation No 2073/2005 lays down, for the category of ready-to-eat foods able to support the growth of Listeria monocytogenes, other than those intended for infants and for special medical purposes, two limits as regards the presence of that bacterium.
The first limit, fixed at 100 cfu/g, applies to products placed on the market during their shelf-life, where the manufacturer can demonstrate that those products will not exceed that limit throughout their shelf-life, to the satisfaction of the competent authority, as stated in footnote 5 to that provision.
The second limit establishes a zero tolerance ‘before the food has left the immediate control of the food business operator, who has produced it’, when that operator is unable to demonstrate that that product will not exceed the limit of 100 cfu/g throughout its shelf-life, to the satisfaction of the competent authority, as stated in footnote 7 of that provision.
The situation where the food product has already been placed on the market, and the manufacturer is unable to demonstrate that it will not exceed the limit of 100 cfu/g during its shelf-life, to the satisfaction of the competent authority, is not covered by those provisions. According to the ECJ, in this third case, the zero tolerance limit as regards the presence of Listeria monocytogenes does not apply to food products which have been placed on the market during their shelf-life. In such a case, that manufacturer must refrain from placing those products on the market.
In that respect, it is appropriate to refer to Art. 14 (8) of Reg (EU) 178/2002. It states that competent national authorities can take ‘appropriate measures’ to impose restrictions on food being placed on the market or to require its withdrawal from the market, despite its conformity to specific provisions of EU law which are applicable to it, where those authorities have objective reasons to suspect that that food is unsafe. That provision, having regard to its importance for the attainment of a high level of protection of human health and consumer interests, must be interpreted broadly.
The Court concludes that Reg. (EU) 2073/2005 does not establish the “zero tolerance” limit to food products which have been placed on the market, throughout their shelf life, when the manufacturer has not demonstrated that, during their shelf-life, those products would not exceed the limit of 100 cfu/g. However, according to the ECJ, Authorities may decide to take a “zero tolerance” approach at their discretion, as it constitutes an ‘appropriate measure’ within the meaning of Article 14(8) of Regulation No 178/2002.
Conclusion
By interpreting art. 14 (8) of Reg. 178/02 so broadly, the European Court of Justice recognizes very broad discretion to competent authorities in member states in determining whether or not a food is to be considered unsafe, in spite of it being compliant to safety criteria set forth be EU regulations. This interpretation might guarantee more safety to European consumers. However, it certainly causes much uncertainty in food business operators, and will most probably determine diverging applications of food law in different EU member states, with the obvious implications for the free movement of goods.
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