German authorities acted in line with law in case against Berger Wild, says EU high court
Berger Wild brought an action for damages against the state of Bavaria before the Regional Court of Munich after the state minister announced preliminary findings of unsafe food and unsanitary conditions at several Berger Wild plants in 2006.
The Munich court found alerting the public was lawful but asked the Court of Justice of the European Union on whether EU food-safety laws pre-empt German national law.
The Court of Justice of the European Union ruled that EU food safety law must be interpreted as “not precluding national legislation in 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, is unfit for human consumption”.
Health threat against unfit for human consumption
Berger Wild, which has now gone bust, said EU food safety law allowed for the public to be informed only where there was an actual threat to health, but not where the issue merely concerned foodstuffs unfit for human consumption.
The state of Bavaria said that German law allowed the competent national authorities to initiate a public alert, even where there was no actual threat to health.
Berger Wild objected to the proposal to inform the public on the basis that it was disproportionate.
It proposed to issue a 'product warning' inviting customers to attend their usual retail outlet to exchange the five game products listed in that warning; while the products might exhibit sensory anomalies, there was, in its view, no risk to health.
The competent minister announced that game meat products marketed by Berger Wild were to be recalled in January 2006.
“rancid, nauseous, musty or acidic smell”
According to the press release, “[i]nspections carried out by the [LGL] revealed that samples of meat from the batches listed below gave off a rancid, nauseous, musty or acidic smell.
“In six out of the nine samples examined, the putrefaction process had already started. Berger [Wild] is required to take back meat from those same batches which is still on the market.”
Inspections found “revoltingly unhygienic conditions had been encountered”, the minister for consumer protection in the state of Bavaria was quoted as saying in one press release.
The LGL is the Bavarian Health and Food Safety Authority, which tested game meat and led to the findings that the food in question was unfit for human consumption and unsafe with the relevant EU food safety regulation.
In a speech given before the Bavarian State Parliament on 31 January 2006, the minister stated inter alia that Berger Wild was no longer able to market its goods, that it had declared itself insolvent that day and any health risks resulting from further products being marketed could be excluded.
