Enforcement of the food hygiene package: role and requirements from a recent European Union Court’s judgement

Detection of non compliance with hygienic requirements is the major issue of a recent judgement of the Court of Justice of the European Union (CJEU). As long as the hygiene package addresses some obligation under condition as where necessary, if appropriate and similar, it is up to the official control to identify whether a infraction is at stake. In October 2011, the CJEU established the need of a correlation between the requirements regulated in the Annex of Regulation (EC) No. 852/2004 and Article 4(2) of the same regulation on one side, and the context of those provisions, on the other. By this way, the Court affirms that food business operators have to put adopt, implement and maintain a permanent procedure or procedures based on the Hazard Analysis Critical Control Point (HACCP) principles. Since hygienic requirements must be interpreted so as not to deprive Article 5 of the Reg. (EC) No. 852/2004 of effectiveness, it follows that when competent Authorities seemingly do not reckon actual contamination, one cannot conclude that a breach to law occurred on the basis of the find- ing that a potential purchaser could conceivably have touched foodstuff by hand or sneezed on it only. In such a case, competent Authority should take into consideration measures taken by those operators under Article 5 of the regulation in order to prevent, eliminate or reduce to acceptable levels the hazard inherent to the food process. This statement is of crucial importance since it requires a stronger effort by the official control in detecting violations to food law and gives room to a number of perspective shortcomings between EU food hygiene law and the Italian criminal food law.