In the aftermath of the horse meat scandal, in its Judgment of 11 April 2013 in case Karl Berger v Freistaat Bayern, the European Court of Justice has clearly pushed for an expansive interpretation of EU food law that gives public authorities the appropriate tools to protect consumers' interests.
In Berger, the CJEU has clearly supported the fact that public authorities release information and food warnings concerning products that, despite not creating a health risk to humans, are unfit for human consumption.
In the case, the manufacturer of nauseating food products (game meat processed in less than hygienic conditions) intended to claim damages for the loss of business derived from one such food warning. The manufacturer sued the relevant German food authority on the basis that, there not being a risk for human health, the authority exceeded its powers by disclosing that the products were not fit for human consumption.
In what should be welcome, the CJEU has interpreted that EU food law sets minimum mandatory requirements, but that public authorities can exceed them as long as they act proportionately and in the interest of consumers. In the CJEU's view, indeed:
35. In so far as a foodstuff is unacceptable for human consumption and accordingly unfit therefor, it does not fulfill the food safety requirements under Article 14(5) of Regulation No 178/2002, and is, in any event, such as to prejudice the interests of consumers, the protection of whom, as stated in Article 5 of that regulation, is one of the objectives of food law.
36. It follows from the above that, where food, though not injurious to human health, does not comply with the aforementioned food safety requirements because it is unfit for human consumption, national authorities may, 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 (emphasis added).
In my view, the Berger Judgment must be welcome and consumers should push for Member States' food agencies to make the most of their informative powers. Granted, they should only act on the basis of strong procedures and reliable evidence but, once they find products that are not fit for human consumption, they should promptly disclose this information. When the interests of the manufacturer and those of consumers clash, the CJEU seems to clearly side with consumers and, as a matter of general policy, this seems appropriate. This will create further incentives across the food supply chain to improve quality controls and, in the end, will result in safer food markets in the EU. So, in short, the expansive interpretation adopted by the CJEU in Berger is a most welcome development of EU food law.