Scotbeef Limited For Judicial Review Of Two Certificates Purpotedly Issued Under Regulation 23(2) Of The Fresh Meat (hygiene And Inspection) Regulatio
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Judgment Date | 01 July 2005 |
| Neutral Citation | [2005] CSOH 89 |
| Published date | 01 July 2005 |
| Date | 01 July 2005 |
| Court | Court of Session |
| Docket Number | P1678/04 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 89 | |
| P1678/04
| OPINION OF LORD BRODIE in the cause SCOTBEEF LIMITED Petitioner; for Judicial Review of (1) Two Certificates purportedly issued under Regulation 23(2) of the Fresh Meat (Hygiene and Inspection) Regulations 1995 (2) Paragraph 32 Chapter 3 Annex 1 of Council Directive 91/497/EEC and (3) Paragraph 1(m)(I) of Schedule 9 of the Fresh Meat (Hygiene and Inspection) Regulations 1995 Respondents: ________________ |
Petitioner: Ellis, Q.C.; McGrigor Donald
Respondents: W. James Wolffe; Solicitor to the Scottish Executive
1 July 2005
Introduction
[1]The petitioner is a company incorporated under the Companies Acts. It carries out the business of meat processing. It has a place of business at Longley's Meat Plant, Bridge of Allan, Stirlingshire where it carries out the slaughter of cattle and sheep and the processing of their meat. In this petition for judicial review the petitioner seeks reduction of two "purported certificates", each dated 19 October 2004, issued under Regulation 23(2) of the Fresh Meat (Hygiene and Inspection) Regulations 1995 (the "Regulations"). Although the petition uses the expression "purported certificates", the petitioner recognises that if the relevant provisions of the Regulations authorising the issue of certificates are lawful then these particular certificates were lawfully issued. The petitioner therefore also seeks reduction of the relevant part of the Regulations. It is the contention of the petitioner that because the relevant part of the Regulations was enacted in order to bring provisions of European Council Directive 91/497/EEC (the "Directive") into the domestic law of the United Kingdom and because the provisions of the Directive are null and void as offending against principles of proportionality, the relevant part of the Regulations should accordingly be reduced. The respondents are first, Jose Palmero, Official Veterinary Surgeon, Meat Hygiene Service, who issued the certificates; second, the Food Standards Agency, which has responsibility for enforcement in matters of food safety; and, third, the Scottish Ministers, whose predecessor promulgated the Regulations. The Meat Hygiene Service has no corporate personality. It is an executive agency of the second respondent. The first respondent is accordingly an officer of the second respondent.
[2]At the first hearing of the petition Mr Ellis, Q.C. appeared for the petitioner. Mr Wolffe appeared for the three respondents. Counsel were agreed that before the petition could be determined there had to be a decision as to whether or not the relevant provisions of the Directive were valid, it being accepted that if the relevant part of the Directive was invalid it followed that the relevant part of the Regulations was invalid: R v The Minister for Agriculture and Fisheries ex parte FEDESA and Others [1988] 3 CMLR 207 at 209 and 212. Counsel were further agreed that this court has only a limited jurisdiction in relation to that question. The Directive is a Community act and, as such, may be reviewed, at the instance of a private individual under reference, inter alia, to the principle of proportionality: Zuckerfabrik Suderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn [1991] ECR I-415 at 540, para 16; Woodspring District Council v Bakers of Nailsea Ltd [1997] ECR 1847 at 1866, para 17 and 1867, para 21; Abna Limited v The Scottish Ministers 2004 SLT 176. It is accordingly open to a party to plead an infringement of the principle of proportionality in order to challenge the validity of the Directive in proceedings before the Court of Session. However, the Court of Session is a national court with a corresponding jurisdiction. A national court may consider the validity of a Community act. If it considers the grounds put forward by parties in support of invalidity to be unfounded, it may reject them and conclude that the relevant act is completely valid. In doing so it is not calling into question the existence of a Community measure: Foto-frost v Hauptzollant Lubeck-Ost [1987] ECR 4199 at 4230, para 14 and at 4232, paragraph 20; Woodspring District Council v Bakers of Nailsea Ltd supra at 1866, para 19. The position is different if the national court does not consider that the grounds put forward by parties in support of invalidity are unfounded. A national court does not have power to declare acts of Community institutions invalid. That jurisdiction is reserved to the European Court of Justice: Foto-frost v Hauptzollant Lubeck-Ost supra at 4231, paras 16 and 17; Woodspring District Council v Bakers of Nailsea Ltd supra at 1866, para 20. The mechanism whereby that jurisdiction may be exercised by the Court of Justice and the national court provided with a determination on such an issue where it is necessary for a domestic decision, is to be found in what was Article 177 and is now Article 234 of the Treaty. In terms of that article, where a question is raised before a court of a Member State as to the validity of an act of a Community institution, that court may, if it considers that a decision on the question is necessary to enable it to give judgement, request the Court of Justice to give a ruling.
[3]The sole issue before me at the first hearing was whether or not I should refer the question of the validity of the Directive and, more particularly, paragraph 32 of chapter VII of Annex I of the Directive, to the European Court of Justice in order to obtain the necessary ruling. It was Mr Ellis's submission that I should refer the question. It was Mr Wolffe's submission that I should not, because to do so was unnecessary.
The regulatory framework, the Directive and the "forty-five minute rule"
[4]The processing of meat within the United Kingdom is subject to statutory regulation in terms of, inter alia, the Regulations, and the Food Safety Act 1990. Among the matters regulated by the Regulations is the maximum period which may pass between the stunning of an animal prior to it being killed and the evisceration of its carcass. Evisceration is a necessary step in the processing of meat. The expression describes the removal of the intestines and other parts of the digestive tract from the remainder of the carcass. If the meat is intended for human consumption the maximum permissible period between stunning and evisceration provided by the Regulations is forty-five minutes. During the hearing before me this requirement that an animal must be eviscerated within this period if its meat is for human consumption was referred to as the "forty-five minute rule".
[5]The forty-five minute rule is merely one of the requirements imposed by the Regulations, but meat from a carcass which has not been processed in compliance with the rule fails to meet the requirements of the Regulations and therefore cannot lawfully be supplied for human consumption. It may be condemned. The Regulations achieve this result in the following way. In terms of regulation 13(1)(e) no person shall sell fresh meat for human consumption unless it has been given a health mark in accordance with the requirements of schedule 12 to the Regulations. For fresh meat to be marked in terms of schedule 12 it must have been passed fit for human consumption following ante- and post-mortem health inspections and must comply with the other requirements of the Regulations: regulation 11(2). Among the requirements of the Regulations is compliance with the slaughter and dressing practices required by schedule 9. Paragraph (m) of schedule 9 requires that:
"evisceration is carried out immediately after flaying or depilation as appropriate and completed-
(i) not later than 45 minutes after stunning; or
(ii) in the case of religious slaughter, not later than 30 minutes after bleeding; or
(iii) in the case of the slaughtered and bled body of an animal brought into a slaughterhouse in accordance with regulation 18(2) not later than 3 hours after slaughter ..."
[6]In terms of regulation 23(2) an authorised officer (an expression which includes an official veterinary surgeon) of the second respondent may certify that any meat in a licensed slaughterhouse has not been produced, stored or transported in terms of the Regulations. In terms of regulation 23(4), meat which has been so certified shall be treated for the purposes of section 9 of the Food Safety Act 1990 as failing to comply with food safety requirements. That section provides that where meat has been seized by an authorised officer that officer may give notice of his intention to have it dealt with by the Sheriff. Section 9(6) of the 1990 Act provides inter alia:
"If it appears to a [Sheriff] on the basis of such evidence as he considers appropriate in the circumstances that any food falling to be dealt with by him under this section fails to comply with food safety requirements he shall condemn the food ...".
A certificate under regulation 23(2) of the Regulations is conclusive for the purpose of application to the Sheriff that the cattle and the sheep fail to comply with food safety requirements.
[7]As I have already indicated, the Regulations were enacted with a view to bringing the Directive into force in the United Kingdom. The Directive was promulgated on 29 July 1991 under Article 43 of the Treaty establishing the EEC (evolution of the common agricultural policy, now Article 37). Its objects are declared inter alia to be the rational development of the fresh meat sector, an increase in productivity and the putting in place of health rules as are required at the national level. It is also stated to have as an object the harmonisation of conditions under which certain meat is decided to be unfit for human consumption. Article 1 of the Directive provides that the Directive "lays down health rules for the production and placing on the market of fresh meat intended for human consumption". Article 3 obliges each...
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