An official veterinarian refused to certify a slaughtered bull as fit for human consumption because pyaemia was suspected. Without that certification, called a health mark, it would have been a criminal offence for the slaughterhouse operator to try to sell the carcass. Applying answers from the Court of Justice of the European Union, the Supreme Court dismissed the appeal: the Food Standards Agency was not required to take the dispute before a justice of the peace under section 9 of the Food Safety Act 1990, and judicial review on conventional public law grounds met the EU requirement for a means of challenge.
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The carcass and the dispute
At Cleveland Meat Company’s slaughterhouse, an inspector found abscesses in the offal of a bull passed fit for slaughter. After examining the carcass and discussing it with the inspector, the official veterinarian suspected pyaemia and withheld the health mark. The company could not lawfully offer the meat for sale.
This judgment does not decide whether that suspicion was correct. It decides what procedure was available once the official veterinarian had refused the health mark.
After taking advice from another veterinary surgeon, the company disputed the decision. It said that, if it refused to surrender the carcass voluntarily, the official veterinarian would have to seize it under section 9 of the Food Safety Act 1990 and take it before a justice of the peace to decide whether it ought to be condemned. The Food Standards Agency replied that this was unnecessary. Having been declared unfit for human consumption, the carcass was to be disposed of as an animal by-product.
The Agency served a disposal notice under the animal by-products legislation. It told the company that it could seek judicial review.
The claim
The company and the Association of Independent Meat Suppliers, a trade association acting for some 150 slaughterhouses, brought judicial review proceedings. They challenged the Agency’s assertion that it need not use section 9. Alternatively, they said the United Kingdom had to provide some means of challenging an official veterinarian’s decision in such a case. The claim failed in the courts below.
The Agency accepted that section 9 was one way of preventing a carcass from being sold for human consumption, but denied that it had to use that method. It also said that treating a hearing before a justice of the peace as an appeal would be incompatible with EU law, because the justice would substitute his or her view of fitness for that of the official veterinarian. If a means of challenge was required, the Agency said judicial review was all that was necessary.
This was the Supreme Court’s second judgment. In its 2019 judgment referring the food safety questions, it had set out the background and referred those questions to the Court of Justice. The Court of Justice answered them in Case C-579/19. Lady Hale and Lord Sales, with whom Lord Hodge, Lady Black and Lord Lloyd-Jones agreed, held that those answers were clear enough to decide the appeal without another hearing.
Why the section 9 procedure was incompatible with EU law
The first question was whether section 9 was compatible with Regulation (EC) No 854/2004, on the hygiene of foodstuffs, and Regulation (EC) No 882/2004, on official controls. The Court of Justice answered no.
Under Regulation 854/2004, the EU legislature entrusted the official veterinarian with responsibility for ensuring that meat placed on the market is fit for human consumption, and treated that veterinarian as the person best qualified to carry out the checks. The section 9 procedure would replace the veterinarian, as the person ultimately responsible for food safety, with a court ruling on the merits.
Article 54(3) of Regulation 882/2004 does require a member state to provide a remedy by which a slaughterhouse operator may challenge a decision such as the one in this case. The Court of Justice held that section 9 is not apt for that purpose. The operator cannot start the section 9 procedure on its own initiative. A justice of the peace is not authorised to annul the decision declaring the carcass unfit, or to lift the effects of that decision, so the procedure does not produce a judicial decision with the relevant legally binding effects. The two Regulations therefore preclude national legislation of the kind in section 9.
Why judicial review was enough
The second question was whether the remedy required by article 54(3) had to allow a challenge to the official veterinarian’s decision on the full factual merits, or whether the more limited challenge available on judicial review of that decision and of a disposal notice was enough. Conventional public law grounds allow a decision to be quashed if, for example, the veterinarian acts for an improper purpose, fails to apply the correct legal test, or reaches a decision which is irrational or has no sufficient evidential basis.
The Court of Justice explained that the required rigour of review depends on the purpose of the EU measure and on ensuring that its effectiveness is not undermined. It treated EU law as aligned with the approach of the European Court of Human Rights to effective judicial protection. That approach looks at the subject matter of the decision, including whether it concerns a specialised issue and how far it involves administrative discretion; the way the decision was reached, including the procedural guarantees; and the content of the dispute, including the grounds of challenge.
On those factors, deciding whether a health mark should be applied requires a complex technical assessment and appropriate professional qualifications and expertise. Official veterinarians must give written notice of their decisions, including reasons. That puts the operator in a position to decide whether a challenge is worthwhile and helps a court review the lawfulness of the decision. Because the veterinarian is responsible for securing a high level of public-health protection, EU law does not require a procedure for judicial review of all of the veterinarian’s assessments of the specific facts found during inspections relating to health marking. In this context, judicial review on conventional public law grounds can satisfy the operator’s EU-law right to effective judicial protection.
The effect on the company’s property in carcass 77 did not change that conclusion. The Court of Justice pointed out that the importance of protecting consumers may justify even substantial negative economic consequences for food-business operators such as the company.
Verdict: The Supreme Court unanimously dismissed the appeal. The Agency could decline to use section 9. Conventional judicial review gave the operator an adequate way to challenge the veterinarian’s decision under the EU rules that applied. The Court did not determine the fitness of the meat.
