Beyond Threats to Health: May Consumers’ Interests in Safety Trump Fundamental Freedoms in Information on Foodstuffs? Reflections on Karl Berger v Freistaat Bayern

Abstract

In this case the ECJ emphasizes that public authorities may issue warnings about foodstuffs that are no risk to consumers’ health, but are unsafe as they are unfit for human consumption. The Court backs up its reasoning by the wording of Art. 17 (2) of Regulation No 178/2002, which allows Member States to issue public communication on food safety. As Art. 14 (2) (b) in conjunction with Art. 14 (5) Foodcode defines food such as the one in casu as unsafe and Art. 5 (1) Foodcode stipulates the “protection of consumers’ interest” as a main goal of the Foodcode, public authorities may issue warnings in case a court does not comply with the “food safety requirements because it is unfit for human consumption”. In light of the clear facts of the case and the likewise clear wording of the Foodcode it is hard to imagine how the Court could have come to any other conclusion in the case at hand. It is hence quite comprehensible that the case in the eyes of the Court seems to raise “no new point of law”, as it has been determined without a submission from the Advocate-General. What makes this case interesting and worth an annotation, however, is the impact the case may have beyond the mere black-letter-analysis of the reasoning. First, as the Court refrained from determining whether the activities of the Member State were “appropriate to the circumstances” and recurred to the protection of the consumers’ interest in Art. 5 (2) Foodcode only, one may conclude that the Court relies only on the protection of the consumers’ interest in safety, thereby always trumping the producers’ right to the free marketing of food in Art. 5 (2) Foodcode. Such a reading would bring the case in dangerous alignment with the Court’s reasoning in Affish, meaning that the protection of the consumers’ interest in food safety always takes precedence over economic considerations. Furthermore, such a reading brings back forgotten memories from the old days when EU product safety regulation failed because of a lack of a proper balancing between fundamental freedoms and fundamental rights. Second, the findings of the case have to be aligned with the conflicting outcome of the Court’s earlier case AGM.Cos.Met, where the ECJ held a Finnish authority liable for informing the public about the lack of safety of a car lift.