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SACL refers to CJEU for clarification of EU legislation which establishes Food and Product safety requirements

SACL refers to CJEU for clarification of EU legislation which establishes Food and Product safety requirements
2021-03-29

SACL asks CJEU whether the danger of cosmetic products imitating foodstuffs must be proven before declaring them as dangerous to consumer health and safety (Administrative case No. eA-154-1062/2021)

The Supreme Administrative Court of Lithuania (SACL) examined an appeal in an administrative case regarding a dispute concerning State Consumer Rights Protection Authority‘s decisions (Decisions) which prohibit placing cosmetic products that are visually similar to confectionary products on the market and must be withdrawn from the market. The contested decisions establish that cosmetic products imitate the external appearance of foodstuffs (confectionary products), State Consumer Rights Protection Authority found that the products do not conform to Articles 3(a) and 20(1) of the Regulation (ec) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products and by appearing to be other than they are, endanger the health or safety of consumers, in particular children and the elderly. The appellant, who contested the Decisions, claimed that while checking the Decisions‘ conformity to the Council Directive 87/357/EEC of 25 June 1987 on the approximation of the laws of the Member States concerning products which, appearing to be other than they are, endanger the health or safety of consumers, the State Consumer Rights Protection Authority ought to have established not only that the products resemble foodstuffs while not being such and are likely to be confused with foodstuffs, but also whether the act of placing said products inside a mouth, sucking or ingesting may be dangerous to consumers. Following the practice of administrative courts, The respondent claimed that if it is found that a product can be consumed due to it resembling foodstuffs, it is presumed that such product may endanger health and safety of consumers, therefore there is no legal basis under this presumption to evaluate and prove the risks to consumer health. Questions arose to the panel of judges hearing the case, on how to interpret provisions of applicable EU law – is there a necessity to prove factual danger of products established in Article 1(2) of Council Directive 87/357/EEC and who should the burden of proof be placed on. Consequently, SACL decided to issue a request for a preliminary ruling.

Case ID C-122/21

SACL asks CJEU whether competent supervisory authorities of Member States have a discretion to determine fresh poultry meat as unsafe if it meets requirements of EU legislation (Administrative case No. eA-186-575/2021)

The Supreme Administrative Court of Lithuania (SACL) examined an appeal in an administrative case, in which the appellant contested State Consumer Rights Protection Authority‘s decisions (Decisions). The Decisions prohibited the placement of an unsafe product/unsafe products on the market and the appellant was obliged to recall them from consumers, to withdraw them from the market and to destroy them, additionally imposing the appellant a fine. The contested Decisions were taken after the appelant‘s products caused a risk of consumer health problems due to detected Salmonella bacteria (pathogenic microorganisms of the type Salmonella Kentucky and Salmonella Infantis had been detected in the fresh poultry meat). The appellant, referring to Row 1.28 of Chapter 1 of Annex I to Commission Regulation (EC) No 2073/2005 of 15 November 2005 on microbiological criteria for foodstuffs No 2073/2005 amended by Commission Regulation No 1086/2011 of 27 October 2011, essentially states that the aforementioned provision prohibits only Salmonella Enteritidis and Salmonella Typhimurium serotypes in fresh poultry meat, and for that reason if any pathogenic micro-organisms other than those specified in Row 1.28 of Chapter 1 of Annex I to Regulation No 2073/2005 (in this specific case, Salmonella Kentucky and Salmonella Infantis) are detected in such a category of food, such food should not be regarded as unsafe. The respondent states that, irrespective of what Salmonella serotype is detected, it does not form a basis on which to state that a product is safe and can be supplied for human use if a pathogenic micro-organism other than those specified in Row 1.28 of Chapter 1 of Annex I to Regulation No 2073/2005 is detected. In order to allay doubts arisen concerning legislation adopted by the institutions of the European Union, the panel of judges referred the question to the CJEU - whether the competent supervisory authorities, under circumstances such as those in the present case, may determine that fresh poultry meat which complies with the requirements established in Row 1.28 of Chapter 1 of Annex I to Regulation No 2073/2005 fails to satisfy the requirements of Article 14(1) and (2) of Regulation No 178/2002.

Case ID C-89/21

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