EU Court of Justice interprets import ban on Chinese animal products: fish oil for feed is not an exempted “fishery product”

EU Court of Justice interprets import ban on Chinese animal products: fish oil for feed is not an exempted “fishery product”
May 3, 2024

On 21 March 2024, the EU Court of Justice (‘CJEU’) handed down its ruling in case C‑7/23, concerning a dispute between a feed company, Marvesa Rotterdam NV, and the Federal Agency for the Safety of the Food Chain, which was before Belgium’s highest administrative court, the Council of State. The parties differed in their interpretation of an EU import ban on products of animal origin coming from China, in particular on the exemptions from that ban and whether they applied only to food or also to feed; so, the Council of State sought the CJEU’s guidance.

Background

The Dutch company, Marvesa, imports fish oil from China intended for animal feed. In 2018, Belgian border authorities refused two of Marvesa’s fish oil shipments, a decision that was confirmed by the Food Agency, which considered the fish oil a “prohibited product” under Commission Decision 2002/994/EC (‘Decision’). According to Article 2(1) of the Decision, member states must prohibit the import of all products of animal origin imported from China and intended for human consumption (food) or animal use (feed). The exceptions – those products for which import is authorised – are listed in the Annex to the Decision; they include “fishery products”, a term left undefined.

Marvesa challenged the Food Agency’s position in court – before the Council of State, Belgium’s highest administrative court – arguing that its fish oil was an exempted “fishery product”. The Food Agency, on the contrary, argued that the term “fishery products” refers only to products for human consumption. Marvesa countered that this interpretation would give rise to an ‘unprecedented’ situation, in which fish oil for feed (import prohibited) would be subject to stricter rules than fish oil for food (import allowed). The Council of State was undecided and referred the question to the CJEU.

Consistency of EU law: “fishery products” are food products

The term “fishery products” is ambiguous. On its face, it could refer to products for animal feed as well as for human consumption. This observation is supported by the fact that the Annex to the Decision applies generally to all products of animal origin imported from China and intended for food or feed use. In other words, the Annex to the Decision’s scope favours Marvesa’s extensive interpretation.

However, the CJEU’s ruling has sided with the Food Agency by emphasizing the broader legal framework. The ruling has recalled that, under EU law’s unity and consistency requirements, legal terms used in measures adopted in the same sector must be given the same meaning. When looking at the other laws dealing with products of animal origin, the ruling noted that the legislature typically draws a distinction between products intended for human consumption and those intended for animal feed. They are different product categories falling within differing legal frameworks. Moreover, although the Decision does not define the term “fishery products”, it does define the term “product”, namely with reference to Regulation 854/2004, which in turn refers to Regulation 853/2004. On a side note, the latter regulation actually defines “fishery product”’ but still ambiguously. More importantly for the CJEU was that both Regulations 853/2004 and 854/2004 apply only to food products. On this basis, the CJEU has concluded that in the legislation on products of animal origin, the term “fishery products” refers only to food products. Therefore, in the absence of any indication to the contrary in the Decision, the term “fishery products” should have the same meaning under that measure.

In summary, the term “fishery products” in the Annex to the Decision includes products intended for human but not for animal consumption, thus subjecting Marvesa’s fish oil to the import ban.

The difference in treatment between food and feed does not violate EU law

The CJEU’s interpretation that the exemption does not cover products for animal feed, raises the question of whether the difference in treatment with products for human consumption is justified in light of the principle of proportionality.

The CJEU dismissed the question, by examining the Decision’s legal basis, namely Article 22 of the Veterinary Checks Directive 97/78 (which has meanwhile been replaced by the Official Controls Regulation 2017/2018). The CJEU pointed out that this provision requires the adoption of differentiated measures, specific to each product concerned and to the risk that it poses to human or animal health. It has then recalled that products intended for human consumption and those intended for animal feed are different (see above). Consequently, considering the differences between the two types of products, Article 22 of the Veterinary Checks Directive 97/78 calls, or at least allows, for a different treatment.

The CJEU did not consider the peculiar fact that fish oil for feed is being treated more harshly (import prohibited) than fish oil for food (import allowed) to be a violation of the principle of proportionality. In a highly formalistic manner, the CJEU succinctly remarked that, in itself, this does not mean that the import ban goes beyond what is necessary to protect human and animal health – full stop.

Conclusion

The term “fishery products” in the Annex to Decision includes products intended for human but not for animal consumption, thus subjecting feed products to the import ban on Chinese animal products.

This case serves as a good reminder that the meaning of a term is not only determined by the legal act in which it features. The term must be interpreted in the context of the sectoral legislation more broadly given EU law’s unity and consistency requirements. The impact of the broader legal framework can be subtle. The term in question need not be conclusively defined elsewhere for the principle of unity to take effect. Also if the context elsewhere has given the term a particular meaning (here: “fishery products” is used in Regulations 853/2004 and 854/2004 that apply only to food products), then the term can carry that meaning with it to other contexts (here: when used in the Decision then “fishery products” must be understood as referring to food products).

If you would like any further information about this legal development, please contact Bregt Raus (bregt.raus@altius.com) or Bart Junior Bollen (bart.bollen@altius.com).

Written by

  • Bregt Raus

    Managing Associate

  • Bart Junior Bollen

    Associate

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