We continue advising M.V.Wool, one of the biggest fish producers in Estonia, in a landmark dispute with the Estonian Agriculture and Food Board (AFB) to test the functioning of food safety rules on the EU level and determine the division of competencies between national authorities and EU. As a part of the dispute, the Court of Justice of the European Union has now issued a ruling on the matter.
The dispute began in 2019 when a certain type of bacteria – Listeria monocytogenes (L.mon) was discovered in our client’s products while taking samples at the retail level. AFB made a precept to our client that forbids selling fish products that had any L.mon at all in them. Meaning that in essence, AFB imposed a zero-tolerance.
We contested the precept in court as EU law sets forth exact limits to the amount of L.mon that can be in the food at the retail level and our client’s products never exceeded those limits. Later on, AFB made a precept that ordered our client to stop all of their activities. We contested that as well and ensured that the client at least could sell its stocks, which remained in storage at the time when the factory was shut down.
Question of interpreting EU law
To resolve the dispute, it is necessary to understand how to interpret EU law on the matter, thus the Tallinn Administrative Court turned to the Court of Justice of the European Union, asking whether a zero-tolerance criterion for food can be imposed on a retail level.
”The conclusion of the Court of Justice of the European Union was that if the food is outside the control of the manufacturer, i.e. in the store, then the zero-tolerance criterion cannot be applied. In this respect, M.V. Wool’s position coincides with that of the European Court,” comments partner Allar Jõks, representing M.V. Wool in the dispute.
“The Court of Justice of the European Union also explained that if the food does meet the established criteria, but there is still reason to doubt its dangerousness, the competent authority may, on the basis of Article 14(8) of Regulation number 178/2002, prohibit the placing of the product on the market or require its removal from the market,” added Jõks. “The court’s idea was that the removal of food that meets the established requirements from the sale or the banning from the market could be requested only if AFB had determined the food’s dangerousness. In the subsequent administrative court proceedings, AFB must now prove that it had determined the food’s dangerousness. Otherwise, it had no right to demand that the food be removed from sale,” said Jõks. “The interpretation of the European Court of Justice regarding the application of Article 14 paragraph 8 of Regulation 178/2002 also confirms that if AFB believes that a food is dangerous, it can only “restrict the placing on the market” or require “removal from the market”. But in no case justifies the closing of factories,” stated Jõks.