Brendan McGurk wins domestic and EU phytosanitary cases

06 Jan 2020

Member States are required to carry out Official Controls at, inter alia, slaughterhouses to prevent animal disease from entering the human food chain. National Competent authorities (in the UK, the Food Standards Agency) are permitted and in some cases required to charge for the provision of Official Controls. By regulation 4 of the Meat (Official Controls Charges) (England) Regulations 2009, the FSA has the power to withdraw controls from premises in relation to which previous debts for the provision of Official Controls have been accrued by previous operators. The provision is designed to avoid phoenix companies from continuing to receive Official Controls when a related business has failed to pay for the same. In R (OaO Agro Foods (Ashford) Limited) v Food Standards Agency [2019] EWHC 2718 (Admin) Mr Michael Fordham QC (sitting as a Deputy High Court Judge) rejected a challenge to the effect that regulation 4 violated EU charging provisions and/or could not be interpreted as the FSA had sought to do so. The judgment is here.

Relatedly, on 19 December 2019, the CJEU handed down its decision in case C-477/18 Exportslachterij J. Gosschalk and Others v Netherlands, in which the Court confirmed that National Competent authorities were permitted by EU to recover indirect as well as the direct costs of providing Official Controls to Food Business Operators. The ruling precludes domestic restitutionary claims to the effect that the FSA has recovered excessive costs in charging for the provision of Official Controls. The judgment is not yet available in English (the French version is here) but accedes to submissions made on behalf of the UK Government who intervened in support of the Dutch Government.

Brendan McGurk successfully acted for both the FSA in the Agro Judicial Review and the UK Government in the Exportslachterij J. Gosschalk reference.