Newby Foods Ltd, R (on the application of) v Food Standards Agency

The classification of mechanically separated meat depends on the proper interpretation of the relevant EU definitions. The expression loss or modification of the muscle fibre structure cannot automatically mean any measurable alteration. The definition of meat preparations indicates a causal connection between structural change and the elimination of the characteristics of fresh meat. Whether those characteristics have been eliminated may require an assessment of the particular production process and its effect on the meat’s organoleptic properties. Where interpretation of EU legislation raises issues requiring consideration of different language versions, EU terminology, legislative context and conditions throughout the Union, a national court should refer the questions to the Court of Justice.

Newby Foods Ltd sought judicial review of the Food Standards Agency’s implementation of the European Commission’s interpretation of the rules governing mechanically separated meat and meat preparations. The dispute concerned meat removed from flesh-bearing bones by a low-pressure, two-stage process and subsequently reduced through a 3 mm plate.

The claimant argued that the resulting desinewed meat retained the characteristics of fresh meat and fell within the definition of a meat preparation. The central issue was whether any visible loss or modification of muscle fibre structure was sufficient to bring the product within the definition of mechanically separated meat under Annex I to Regulation (EC) No 853/2004. The court decided that the interpretative questions should be referred to the Court of Justice before final judgment.

The court referred questions to the Court of Justice of the European Union and deferred final judgment on the substantive judicial review claim.

1. Provisional construction. The court accepted that the claimant’s process caused some modification of muscle fibre structure, but found that the product remained materially different from high-pressure mechanically separated meat and retained the characteristics of fresh meat.
2. Interaction of the definitions. The wording of paragraph 1.15 of Annex I, particularly the connection between structural change and the elimination of fresh-meat characteristics, indicated that the two matters were causally linked. A minor diminution of those characteristics could not automatically amount to their elimination. The relevant characteristics included taste, smell and texture.
3. Need for a reference. Under the guidance in CILFIT Srl v Ministero della Sanita [1982] ECR 3415 and Customs and Excise v ApS Samex [1983] 1 All ER 1042, interpretation of EU legislation required attention to its several equally authentic language versions, EU-specific terminology, legislative context, objectives and state of development. The Court of Justice was better placed to determine a question of principle affecting conditions throughout the European Union.
4. The questions referred concerned whether any microscopy-visible structural change was sufficient for classification as mechanically separated meat, whether a product with some such change could remain a meat preparation, the relationship between the relevant thresholds, and the criteria to be applied by national courts.