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On appeal from: [2017] EWCA Civ 431

The Supreme Court unanimously dismissed this appeal concerned the operation of the European Union (“EU”) system for the inspection of meat products to ensure that proper health and safety standards are maintained. The facts of the case arose at a time when, pursuant to the Brexit transition arrangements, EU law was applicable. In 2019, the Supreme Court made a reference to the Court of Justice of the European Union (“CJEU”) on this issue, and the CJEU has now delivered its judgment. The Supreme Court now determines this appeal based on that judgment.

The background facts concerned a slaughtered bull which was declared by the Official Veterinarian (“OV”) on behalf of the respondent as meat unfit for human consumption. The bull’s owner (the appellant) challenged the OV’s opinion and claimed that – should they not surrender the carcass voluntarily – the OV would be required to seize the carcass under section 9 of the Food Safety Act 1990 (“section 9”) and take it before a Justice of the Peace (“JP”) to determine if it should be condemned. Under the section 9 procedure, the JP would have power to grant the owner compensation for the carcass if they disagreed with the OV’s opinion, after hearing expert evidence. The respondent replied that there was no need to use this process as other methods were available to ensure the carcass did not enter the food supply chain.

The OV served on the appellant a notice requiring it to dispose of the carcass. The appellant, alongside the Association of Independent Meant Suppliers, brought judicial review proceedings to challenge respondent’s assertion that it was not required to use the section 9 procedure and, in the alternative, to claim that it was incumbent on the United Kingdom to provide a method of challenging the OV’s decisions. The judicial review claim failed at first instance and in the Court of Appeal.

In order to determine this appeal, the Court referred the following questions to the Court of Justice of the European Union:

  1. Was the section 9 procedure compatible with the food safety regime laid down by EU law?
  2. If EU law requires that there be an appeal procedure to challenge an OV’s decision, what should be the grounds of challenge?

On the first question, the CJEU answered this in the negative. EU law entrusted the OV with the responsibility for ensuring that meat was fit for human consumption as the person best qualified to carry out such checks. The section 9 procedure, however, would undermine this responsibility by allowing for the replacement of the OV by a JP ruling on the merits of the case. Although EU law required that a slaughterhouse such as the appellants should be able to challenge a decision of the OV, the section 9 procedure was not appropriate: it did not allow a party such as the appellant to bring a legal action of its own initiative (as it required the OV to present the carcass to a JP) and, further, did not authorise the JP to annul or lift the effects of the OV’s decision. National legislation of the kind in section 9 was therefore precluded by EU law.

On the second question, the CJEU considered that to determine the grounds of challenge which EU law required should be available in relation to a legal challenge to a decision taken by a national body pursuant to EU law, it was necessary to take into account the purpose of the decision and to ensure that its effectiveness was not undermined.

Applying this approach, the CJEU considered the relevant factors for determining the degree of rigour appropriate for a legal challenge to a decision of an OV. It had regard to number of factors, including the complex technical nature of the OV’s role and the requirement for the OV to provide a statement of reasons. Further, the OV’s responsibility under EU law did not require a member state to establish a procedure allowing for judicial review of all the OV’s assessments of the specific facts found in a given case. In this context, therefore, judicial review of an OV’s decision on conventional public law grounds, including applying the wrong test, irrationality or deciding without a sufficient evidential basis, provided a slaughterhouse like the appellants with appropriate effective judicial protection.

In light of the CJEU’s answers, the Supreme Court decides that the section 9 procedure is not compatible with the requirements of EU law, whereas judicial review of a decision of an OV such as that in the present case is compatible. There was therefore no foundation for appellant’s contention that the respondent was required to use the section 9 procedure, nor any basis for the alternative complaint that the United Kingdom has failed to provide an appropriate means to challenge decisions taken by an OV.

 

For a PDF of the judgment, please see: Judgment (PDF)

For a non-PDF version, please see: Judgment on BAILII (HTML version)

For the Press Summary, please see: Press summary (HTML version)

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05 Mar 2019       Morning session               Afternoon session