In today's article we bring you an overview of interesting case law of the Supreme Court in connection with selected obligations arising for food business operators from the sources of food law. Among the many obligations of these entities, we will present, for example, the view of the court practice on the prohibition of the sale of food unfit for human consumption, the obligation to eliminate the risk of food contamination and finally we will try to explain why it is necessary to impose a higher sanction for the - which administrative offence in case of a recurrence of violation of the food law.
Prohibition of the sale of food unfit for human consumption
The Supreme Court, in the case where an official inspection of foodstuffs revealed a violation of the Food Act (Act No. 152/1995 Coll.In the case of fresh fruit and vegetables, this is a type of food susceptible to mechanical damage, and it is therefore necessary to continuously check their safety for consumption, even when they are displayed in the shop, because in the case of consumer packages of fruit and vegetables, mechanically and, above all, microbiologically damaged fruit can contaminate all the other fruit in the packages in a relatively short period of time."
The Food Act states that whoever stores food is obliged to inspect the stored food, store it in a way that allows early detection of food harmful to health and its withdrawal from circulation. The placing on the market of non-safe food is prohibited, thereby ensuring that the consumer's right to purchase safe and good quality food is not infringed. Where food is contaminated by external influences, other putrefaction, spoilage or decomposition, there is a risk that its characteristics, quality or safety may be adversely affected, with a risk of adverse effects on the health of the consumer. Fruit and vegetables are 'living foods' and are subject to continuous biological processes which, if stored incorrectly, handled carelessly or if quality control is neglected, may cause subsequent microbiological spoilage.
Eliminating the risk of food contamination
The purpose of the hygienic sale of unpackaged self-service bakery products is for the operator to ensure that the sale is carried out in such a way as to minimise the risk of food contamination, i.e. to take such measures as to eliminate the hazard, whether existing or potentially imminent, to an acceptable level.
Under Regulation (EC) No 852/2004 of the European Parliament and of the Council on food hygiene, the primary responsibility for food safety rests with the food business operator. It is their responsibility to ensure that all stages of food production, processing and distribution meet the relevant hygiene requirements. All items, fixtures and fittings and equipment with which food comes into contact must be so constructed, be of such materials (easily cleanable and disinfectable) and be maintained in such a state of repair and order as to eliminate any risk of contamination from the external environment (hair loss, sneezing, contamination of clothing, airborne contamination) and in which air exchange is also ensured.
In judgment C-382/10 of the Court of Justice of the European Union, the Court of Justice addressed the legal question of food hygiene in the context that if a potential purchaser could theoretically touch food placed in covered containers with his bare hand or sneeze or cough on the food after opening it, that food would not be protected from any contamination.
The operative part of the judgment is to be interpreted as meaning that, in the case of boxes intended for the self-service sale of bread and bakery products, the mere fact that a potential purchaser could theoretically touch the food offered for sale with his bare hand, sneeze on it and thereby contaminate it with bacteria and viruses does not in itself allow a conclusion to be reached without that, taking into account the measures taken by those operators, that those foodstuffs have not been protected against contamination which could render them unfit for human consumption, injurious to health or contaminated in such a way that it would be unreasonable to expect that they could be consumed in that state.
Sanction mechanism under the Food Act
In connection with the imposition of the increased fine, the Supreme Court issued a judgment in which it expressed the legal opinion that: 'I. The sanctioning mechanism established by Act No 152/1995 Coll. on foodstuffs, as amended, must comply with the requirements laid down in Article 55(1) of Regulation (EC) No 882/2004 of the European Parliament and of the Council on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules, according to which the penalties imposed must be effective, proportionate and dissuasive. In this sense, recidivism (Article 28(6) of Act No 152/1995Z.z. on foodstuffs, as amended) fulfils not only the requirement of proportionality but also the requirement of effectiveness, precisely in a situation where previous sanctions imposed on an operator for breaches of different or identical obligations have not led to its correction.
II. The criteria for determining the amount of the fine imposed pursuant to Act No 152/1995 Coll. on Foodstuffs, as amended, are determined by calculating the facts which the administrative authority is obliged to take into account (§ 28(9)). Given that this is an exhaustive calculation, the administrative authority is obliged, when exercising its administrative discretion as to the specific amount of the fine to be imposed, to deal with these aspects, to take them into account and to deal with them transparently in the reasons for the decision."
In the event that the operator repeatedly violates the obligations arising from the Food Act, for which a fine has already been imposed, for example, by failing to ensure the hygiene of the sale on the premises, by failing to clean the premises of the sale, by failing to clean all equipment used in the sale, by failing to clean the storage areas and, if necessary, by failing to carry out disinsection, disinfection and extermination, the administrative authority has the right to impose a fine on the operator at an increased rate.
In doing so, the administrative authority shall take into account the gravity, duration, consequences of the infringement, the history of the operator and whether the infringement is repeated, it being important to note that the imposition of fines for administrative offences, and thus the decision on the amount of the fines is made within the sphere of administrative discretion (discretionary power of the administrative authority), which represents a certain degree of discretion of the administrative authority and which allows it, within the limits of the law, to take such decision as it deems most appropriate, taking into account the specific circumstances of the case. The procedure followed by administrative authorities when sanctioning a number of other administrative offences is not regulated in the Foodstuffs Act or the Administrative Procedure Code. The administrative authorities apply the so-called absorption principle, the essence of which is that the more severe penalty absorbs the lighter one, and thus they assess the seriousness of the offence and the aggregate penalty is imposed according to the rate for the most serious of these offences.
If you are interested in advice in this area or in food law, please contact us at info@grandoaklaw.com or by phone +421 940 968 431.
Resources:
https://www.nsud.sk/data/files/2362_zbierka_1_2020_s.pdf
https://www.slov-lex.sk/pravne-predpisy/SK/ZZ/1995/152/20200721
https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004R0852:20090420:SK:PDF
