* United Kingdom, Supreme Court of the United Kingdom, 8 December 2021 UKSC 2017/0126

Identification of the case

• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Food Safety Act 1990, Sections 8(2),9(3), (4), (6) and (7)

• Regulation (EC) No 854/2004 on the hygiene of foodstuffs
• 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

Summary of the case

The facts are summarised in the Supreme Court’s ruling as follows:

“Cleveland Meat Company Ltd (‘CMC’) bought a bull at auction. It was passed fit for slaughter by the Official Veterinarian (OV) stationed at its slaughterhouse. After a post-mortem inspection of the carcass, and discussion with a Meat Hygiene Inspector, the OV declared the meat unfit for human consumption. It did not therefore acquire a health mark. CMC took the advice of another veterinarian surgeon and challenged the OV’s opinion. It contended that in the event of a dispute, and of its refusal to surrender the carcass voluntarily, the OV would have to seize it 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 should be condemned. The respondent (‘the FSA’) did not accept that it needed to use this procedure. It maintained that the carcass should be disposed of as an animal by-product and served a notice for such disposal. CMC, together with Association of Independent Meat Suppliers, issued a claim for judicial review to challenge the FSA’s assertion that it did not have to use the section 9 procedure. They claimed in the alternative that it was incumbent on the UK to provide some means for challenging the decisions of an OV in such cases. The claim failed in the High Court and Court of Appeal.”

• Civil judicial enforcement

Claim for judicial review.

1. Do Regulations (EC) Nos 854 and 882 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 mandate a right of appeal in relation to a decision of an OV under article 5.2 of Regulation (EC) No 854 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?

This summary will focus on the second question referred by the Supreme Court, regarding whether the appeal procedure required by Article 54(3) Regulation (EC) No 882/2004 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 on conventional public law grounds is all that is required. The Supreme Court noted that these grounds would allow the OV’s decision to be quashed if, for example, he or she acted for an improper purpose, did not apply the correct legal test, reached an irrational decision or one with no sufficient evidential basis. The Supreme Court then referred to the CJEU’s ruling where it explained that to determine the rigour required in relation to judicial review of national decisions adopted pursuant to EU law, “it is necessary to take into account the purpose of the act and to ensure that its effectiveness is not undermined.” (para. 74 of the CJEU’s ruling). Although the CJEU explained that this corresponds with Article 47 CFREU, the Supreme Court did not mention the provision, or indeed the Charter as a whole, throughout its judgment.

The Supreme Court did continue to follow the CJEU’s reasoning that, also bearing in mind Article 52(3) CFREU and the necessary consistency between rights protected in the Charter and the ECHR respectively, examining whether there is effective judicial protection in relation to legal rights involves taking into account “such factors as, first, the subject matter of the decision appealed against, and in particular, whether or not it concerned a specialised issue requiring professional knowledge or experience and whether it involved the exercise of administrative discretion and, if so, to what extent; second, the manner in which that decision was arrived at, in particular the procedural guarantees available in the proceedings before the administrative body; and third, the content of the dispute, including the desired and actual grounds of appeal” (para. 79 of the CJEU’s judgment).

Applying this approach to the case at hand, the Supreme Court noted the CJEU’s discussion in paras. 83-98 of its judgment in which it considered that in deciding whether or not a health mark should be affixed to a carcass the OV “must carry out a complex technical assessment requiring appropriate professional qualifications and expertise in the field” (para. 88) and that OVs are obliged to give written notification of their decisions which “puts their addressees in a position to defend their rights under the best possible conditions and decide in full knowledge of the circumstances whether it is worthwhile to bring an action against those decisions” and also assists courts to review the lawfulness of those decisions (para. 89).

Paraphrasing the CJEU, the Supreme Court then noted that “the responsibility of the OV in relation to securing the objective pursued by Regulations (EC) Nos 854/2004 and 882/2004 of achieving a high level of protection of public health means that EU law does not require a member state to establish a procedure which allows for judicial review of all of the OV’s assessments of the specific facts found during inspections relating to health marking”. It then concluded as did the CJEU, that judicial review of an OV’s decision on conventional public law grounds can satisfy the right under EU law of a slaughterhouse operator to effective judicial protection, in accordance with the applicable Regulations, and that this was not undermined by the effect of the OV’s decision on the property rights of CMC in relation to the carcass 77. The Supreme Court then emphasised, as the CJEU had done, that “‘[t]he importance of the objective of consumer protection may justify even substantial negative economic consequences for certain economic operators’, including food business operators such as CMC.”

The Supreme Court dismissed the appeal on the grounds that: “the section 9 procedure is not compatible with the requirements of Regulations (EC) Nos 854/2004 and 882/2004, whereas judicial review of a decision of an OV such as that at issue in these proceedings is compatible with those requirements.” There was no legal foundation for CMC’s claim that the FSA acted unlawfully in declining to proceed under the section 9 procedure in relation to the carcass, nor for the alternative complaint that the United Kingdom has failed to provide an appropriate means to challenge decisions taken by an OV.

Role of the Charter and role of the general principles on enforcement

The Charter was not mentioned at all by the referring court, but was discussed at length by the CJEU in its preliminary ruling. Specifically, the requirements of Article 47 CFREU regarding the appellants’ request for judicial review or alternative means to challenge decisions by the administrative authority (the OV).

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to access a court
• Right to an effective remedy before a tribunal

Section 9 of the 1990 Act, headed ‘Inspection and seizure of suspect food’, lays down the procedure to be followed where an authorised officer of a supervisory authority such as the Food Safety Agency considers, following an inspection, that food intended for human consumption fails to comply with food safety requirements.

Article 47 CFEU was discussed in light of the fact that the possibility for the appellants to bringing proceedings before a court in order to obtain a finding that their rights under EU law have been infringed and to obtain compensation for the harm suffered due to that infringement “ensures that the individual has effective judicial protection, where the court hearing the dispute has the possibility of reviewing the act or measure which has given rise to that infringement and that harm” (para. 61 of the CJEU’s judgment).

• Effectiveness
• Proportionality

The principle of effective judicial protection was referred to many timed by the CJEU in its reasoning, which was followed by the Supreme Court. The principle, as enshrined in Article 47 CFREU, was used to determine whether or not the appellants were entitled to judicial review of the OV’s decision.

Proportionality was raised by the parties to the case in relation to a possible infringement of the appellants’ Article 17 CFREU right to property by the disposal of the carcass, which the respondent had recommended. In this regard, the CJEU noted that the right to property is not absolute, and that in this case, it had to be reconciled with Article 38 CFREU, which “seeks to ensure a high level of consumer protection in EU policies, including the protection of public health” (para. 96). The Supreme Court followed the CJEU’s ruling on this matter.

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)
• Dialogue between high court - lower instance court at national level

• Case C-579/19, Food Standards Agency

• Preliminary reference
• Conform interpretation with EU law as interpreted by the CJEU

• To ask the CJEU whether national legislation conforms with EU law
• To implement the preliminary ruling of the CJEU

Legislative reform.

Additional notes on the decision

Reference was made to ‘corresponding rights’ in the ECHR, implicitly referring to Article 6 ECHR.