Case C‑636/11, Berger

EU law not prohibiting blaming and shaming of food manufacturer, processor or distributor when  unfit for human consumption

Regulation 178/2002 on food safety aims to ensure that no food shall be placed on the market if it is unsafe.  This includes food which is unacceptable for human consumption according to its intended use, for reasons of contamination, or through putrefaction, deterioration or decay. Member States are obliged maintain a system of official controls and other activities as appropriate, including public communication on food safety and risk.

The Passau Veterinary Office carried out official inspections in several establishments pertaining to Berger Wild GmbH, a company active in the game meat processing and distribution sector. The analyses led to a finding that the food in question was unfit for human consumption. The Bavarian authorities informed the company that they intended to inform the public thereof, unless the company itself did so effectively and promptly. Berger objected, asserting that while the products might exhibit sensory anomalies, there was no risk to health. It proposed to issue a ‘product warning’ inviting its customers to attend their usual retail outlet in order to exchange the game products concerned.

Subsequently, in three press releases, the Minister for Consumer Protection of Freistaat Bayern announced that the products at issue were to be recalled.  Furthermore,in a speech given before the Bavarian State Parliament, the Minister stated that Berger had declared itself insolvent that very day, that it was no longer able to market its goods, and that, therefore, any health risks resulting from further products being marketed could be excluded. Berger considered it had suffered considerable losses as a result of the press releases and brought an action for damages against the Freistaat Bayern.

The referring court proceeded on the assumption that, in the case in the main proceedings, the foodstuffs could not be regarded as injurious to human health. Therefore,  the referring court asks i if Article 10 of Regulation No 178/2002 must be interpreted as precluding national legislation allowing information to be issued to the public, mentioning the name of a food and the name or trade name of the food manufacturer, processor or distributor, in a case where that food, though not injurious to health, was unfit for human consumption.

The Court considered that in order to provide the referring court with a helpful answer to allow it to resolve the dispute before it, it was also necessary to give an interpretation of the second subparagraph of Article 17(2) of Regulation  178/2002 even if that provision was not specifically mentioned in the request for a preliminary ruling before it (see t Case C‑243/09 Fuß [2010] ).

Article 7 of Regulation No 882/2004 provides inter alia that, firstly, in general, the public should have access to information on the control activities of the competent authorities and their effectiveness, and, secondly, that the competent authority should take steps to ensure that members of their staff were required not to disclose information acquired when undertaking their official control duties which by its nature was covered by professional secrecy in duly justified cases.

Article 14 of Regulation No 178/2002, applicable under the second paragraph of Article 65 thereof from 1 January 2005, set out food safety requirements. Under Article 14(2), a food which was unfit for human consumption was said to be ‘unsafe’.

The Court found that in so far as a foodstuff was unacceptable for human consumption and accordingly unfit therefor, it did not fulfil the food safety requirements under Article 14(5) of Regulation No 178/2002, and was, in any event, such as to prejudice the interests of consumers, the protection of whom, as stated in Article 5 of that regulation, was one of the objectives of food law.

 The Court thus concluded that, where food, though not injurious to human health, did not comply with  food safety requirements because it was unfit for human consumption, national authorities might, as provided under the second subparagraph of Article 17(2) of Regulation No 178/2002, inform the public thereof in accordance with the requirements of Article 7 of Regulation No 882/2004.

Text of judgment