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

A national court applying a preliminary ruling must follow the Court of Justice’s interpretation of EU law, but remains responsible for finding the facts and applying that law to them. Where a ruling permits muscle-fibre modification confined to the “cutting point”, that expression may include every severed edge produced by the recovery process. The interpretation should, where possible, promote sustainable development. On the evidence, meat recovered by a low-pressure process, with muscle-fibre damage confined to severed edges, was not mechanically separated meat. It could not be classified as a meat preparation under the Court of Justice’s interpretation, but there was no evidential basis for excluding it from use in minced meat.

The claimant challenged the Food Standards Agency’s decision of 4 April 2012 imposing a moratorium and requiring desinewed meat produced from pig and poultry bones to be labelled as mechanically separated meat. The claimant had referred questions concerning points 1.14 and 1.15 of Annex I to Regulation (EC) No 853/2004 to the Court of Justice of the European Union. Following that court’s judgment, the issue was whether its interpretation determined the factual classification of the product or whether the national court remained responsible for finding the facts and applying the legal criteria.

The central questions were whether the Stage One Product was mechanically separated meat, whether it could be a meat preparation, and whether it was excluded from use as raw material for minced meat.

1. The claim succeeded. The national court was bound by the CJEU’s interpretation of the relevant EU provisions, but fact-finding and the application of EU law to the facts remained functions of the national court. The CJEU’s factual characterisation could not displace findings based on the primary evidence before this court. This followed the principles identified in R v Secretary of State for Transport ex p Factortame (No 5) [2000] 1 AC 525, Arsenal Football Club v Reed [2003] 2 CMLR 25 and the European authorities discussed in the judgment.
2. The first criterion in point 1.14 of Annex I to Regulation (EC) No 853/2004 was satisfied. The CJEU’s reference to bones from which intact muscles had been detached was an unnecessary gloss and did not prevent the use of bones carrying substantial residual meat from falling within the provision.
3. The phrase “cutting point” in the CJEU’s judgment was construed purposively. It included every severed edge of the pieces of flesh emerging from the Stage One process, whether separation occurred from the bone or between pieces of meat. The evidence showed that any damage caused by the process was confined to those points. This interpretation avoided an environmentally wasteful result and gave effect to the sustainable-development obligation in article 11 TFEU.
4. The Stage One Product was therefore not mechanically separated meat within point 1.14. The FSA’s decision that it had to be labelled as such and could not count towards the meat content of a product was wrong and based on an error of law.
5. The product could not be classified as a meat preparation within point 1.15. The CJEU’s interpretation excluded that classification where the criteria for mechanically separated meat were satisfied, and treated the relevant “processes” by reference to the definition of processing in article 2(1)(m) of Regulation No 852/2004.
6. There was no evidential basis for excluding the product from use in preparing minced meat. It was fresh meat derived from skeletal muscle, and was not shown to be scrap cuttings, mechanically separated meat, meat containing bone fragments or skin, or meat derived from bone scrapings. The court made this as a negative finding only.

The court found that the product was not derived from bone scrapings and reserved any further questions concerning relief and costs.

The judgment followed an earlier reference by the Administrative Court to the Court of Justice of the European Union. The present court applied the CJEU’s interpretation to facts found in the national proceedings.