ECJ agrees with listeria-hit fish firm over processing plant closures
A European Court of Justice (ECJ) ruling in a food standards case in part coincides with the plaintiff in a domestic case. The complainant, M.V.Wool, which produces and sells salmon and other fish-based food products, stated that the Food and Veterinary Office (PTA) had no right to close its factories in 2019 following an outbreak of listeria, a position the ECJ agrees with.
In its ruling last week, the ECJ found that the competent authority at home, in this case the PTA - or its forerunner, the Veterinary and Food Board (VTA), can pull products from the market in this case, but cannot close production facilities on that basis, including on a temporary basis.
Commenting on the ECJ ruling, the other party to the dispute, the PTA, noted that the court highlighted the purpose of EU Regulation No. 2073/2005 as being to ensure food safety throughout the entire shelf life of a product, and also the highest levels of protection to human health and well-being.
"To this end, the regulation in question leaves the authority a wide margin of discretion to carry out more comprehensive checks to determine whether the rules and criteria set forth in this regulation have been followed," a PTA spokesperson said.
Ave Mägi, head of the PTA's legal department , said in this context, according to the opinion of the court, reference should also be made to EU Regulation No. 178/2002. "Specifically, article 14(8) of this regulation specifies, as the court notes, that the competent authorities of a member state may take 'appropriate measures' to impose restrictions on placing food on the market or to request its removal from the market, if the food in question complies with the specific provisions of EU law, but whose safety objectively, these institutions have reason to doubt," Mägi said.
The provision must be interpreted broadly, Mägi added – while zero-tolerance criterion to a food product placed on the market can be applied if the manufacturer has not been able to sufficiently prove to the competent authority that these food products do not exceed the limit of 100 Colony Forming Units (cfu) per gram, during their entire shelf life, this can, in the court's opinion, represent an "appropriate application" of Regulation No. 178/2002 in the sense of article 14(8).
The first-tier Tallinn Administrative Court applied to the ECJ for a preliminary ruling into the hearing of AS M.V.Wool's complaint against the PTA, in relation to the closure of two fish-processing plants, in Harku and Vihterpalu, both to the west of Tallinn, in 2019, in the wake of a listeria outbreak which had led to several deaths.
Allar Jõks, attorney-at-law acting for M.V.Wool in the litigation, said: "The Tallinn Administrative Court asked the ECJ whether the zero-tolerance criterion can be applied to food once on the shelves in a store, and the European court's conclusion was that if the food is outside the manufacturer's control, i.e. in the store, then the zero-tolerance criterion cannot be applied.
In this regard, M.V.Wool's position coincides with that of the ECJ, Jõks went on.
At the same time, if the food prdocuts do meet the established criteria but there is still reason of doubt over food safety, the competent authority, in this case the PTA may, on the basis of article 14(8) of Regulation No. 178/2002 prohibit its being put on the market or pull the products from the market if they are already on sale.
This could only happen if the competent authority had determined the food's hazardous nature, Jõks added, meaning in the subsequent Tallinn Administrative Court proceedings, the PTA must do just that.
"Otherwise, the agency had no right demand that the food be removed from sale," Jõks added, nothing that even then it can only do this – i.e. pull from the market, and not close the factories, as happened with M.V.Wool.
The domestic litigation at the administrative court and between M.W.Wool and the PTA continues.
The company was at the center of a scandal which linked its products to Listeria bacteria, particularly the virulent ST1247 strain, which had allegedly caused the deaths of several people in Europe, including in Estonia, in 2018.
The two plants in Harku and Vihterpalu were closed down while deep cleans and inspections took place in the wake of the listeria cases, while around 30 people lost their jobs as a result.
ERR's Anna Pihl of and Sulev Vedler of investigative weekly Eesti Ekspress jointly won the 2020 Bonnier Award for investigative journalism, for their coverage of the same listeria outbreak.
The scandal also engulfed the ministry responsible for the PTA, then known as the VTA, the Ministry of Rural Affairs, and its minister at the time, Mart Järvik (EKRE).
The company's founder and owner, Mati Vetevool, passed away almost exactly a year ago.
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Editor: Andrew Whyte