The European Union’s (EU’s) Court of Justice has determined that the law requires fresh poultry meat to satisfy the microbiological criteria for foodstuffs and that national law may impose a penalty on “a food business operator which is active only at the distribution stage” for placing a contaminated food product on the market. Reindl v. Bezirkshauptmannschaft Innsbruck, No. C-443/13 (E.C.J., decided November 13, 2014).

The issue arose from an Austrian proceeding involving a fine imposed on a food retail manager after a sample from her store of vacuum-packed fresh turkey breast produced and packed by another company was found to be contaminated with Salmonella Typhimurium. The Unabhāngiger Verwaltungssenat in Tirol stayed the proceeding and referred to the EU court the questions whether (i) food business operators “active at the food distribution stage” are subject to the full regime under Regulation (EC) No 2073/2005, and (ii) the microbiological criterion in the regulation’s annex must “also be observed at all stages of distribution by food business operators not involved in production (being involved exclusively at the distribution stage).”

Noting that the microbiological criterion expressly applies to “[p]roducts placed on the market during their shelf-life,” defined as “either the period corresponding to the period preceding the ‘use by’ or the minimum durability date,” the court determined that fresh poultry meat must satisfy the criterion “at all stages of distribution, including the retail sale stage.” While EU regulations do not contain provisions relating to the liability of food retailers, the court interpreted this omission as meaning that “in principle, they do not preclude national legislation,” which, in this case, allowed for such liability. The court cautioned, however, that any penalties must be “effective, proportionate and dissuasive” and left it to the national court to determine whether the penalty imposed complied with the principle of proportionality.