EU Requirement to List Ingredients of Animal Feed Stuffs - English High Court Suspends Effect of UK Regulations Implementing EU Directive

In his recent judgment, delivered on 6 October 2003, Mr Justice Davis took the unprecedented step by an English judge of agreeing to suspend the effects of particular provisions (regulation 6 and parts of regulation 10(c)) of The Feeding Stuffs, the Feeding Stuffs (sample and analysis) and the Feeding Stuffs (Enforcement) (Amendment) (England) Regulations 2003, SI 2003/1553 (the "English Regulations")¹.

He decided that certain provisions of the English Regulations, requiring animal feed manufacturers to disclose on labels the specific constituent elements of their brand of feed stuffs - including (at the request of customers) exact percentages - was likely to cause "serious and irreparable" damage to those manufacturers' businesses. His decision was prompted by the obvious potential for competitors to benefit from receipt of this valuable information (essentially the confidential feed recipes) at the expense of the manufacturers who had invested a great deal of their resources researching and developing their products in order to market them - ultimately hoping to achieve a commercial return on their investment.

The judge was not persuaded that the "ingredients listing" requirements were necessary to protect public health in the wake of the BSE crisis and the dioxin crisis in Belgium (involving the sale of contaminated cooking oils) - as alluded to in the preamble to the Directive². Further, despite the fact that the Directive had been adopted under Article 152(4) of the EC Treaty³, the judge expressed his "serious doubts" as to whether public health and safety was in fact advanced at all by the ingredients listing provisions.

In this connection, the judge cited the following statement Commissioner Byrne made to the European Parliament:

And, a little further on:

Having regard to his "serious doubts", the judge was persuaded that an arguable case had been made by the applicant companies calling into question the validity of the Directive. In the circumstances, he accepted that a reference to the European Court of Justice ("ECJ") was required, to seek a declaration from it on the Directive's validity.⁴

Having determined to refer the question of the Directive's validity to the ECJ, the most significant and contentious matter which remained to be decided was the manufacturing companies' application to have the relevant provisions of the English Regulations suspended, pending the outcome of the matter before the ECJ. Bearing in mind the fact that the ECJ's decision might easily take two years to arrive, it was consideration of this aspect of the challenge that occupied most of Davis J's detailed judgment.

The judge noted that the manufacturers were right to have made their application for suspension of the relevant provisions of the English Regulations to the national court. Despite the fact that the proposed suspension would, indirectly, suspend operation of European law (that is the Directive), it was established in case law that the manufacturers did not have standing to bring such an application before the ECJ itself. Indeed, the judge noted with interest the attempt by a French company seeking annulment of the offending provisions of the Directive itself before the court of first instance ("CFI") in 2002. This claim was ruled inadmissible for lack of standing.⁵

The judge then addressed in detail the ECJ's decision in Zuckerfabrik Suderdithmarschen AG v Hauptzollant Itzehoe [1991] ECR 415 (C-143/88 and C-92/89) - as affirmed and amplified by it in Atlanta Fruchthandelsgesellschaft mbh [1995] ECR 1-3763 (C-465/93). These cases established that national courts have the power to suspend by interim order the operation of national measures based on community measures and gave guidance as to the principles to be applied.

Davis J recited the four matters which must be treated as pre-conditions to the grant of interim relief by the national court:

1. The court must entertain "serious doubts" as to the validity of the Community act and (if not already referred) refer the question of validity to the ECJ.
2. There must be urgency, in that suspension is required to avoid "serious and irreparable" damage to the applicant - pending the ECJ's judgment.
3. Due account must be taken of the Community interest.
4. In its assessment of all those conditions, the court must respect any prior decision of the ECJ or CFI on the lawfulness of the measure in question and/or application for interim relief at Community level.

Having recited the pre-conditions for interim suspension, however, the judge made clear that the approach of the national court need not be "merely mechanistic". In doing so, he referred to the Atlanta judgment - which had stressed that the national court must examine the particular circumstances of the particular case before it. This discretion afforded to the national court was particularly relevant when considering the threshold above which the potential harm to an applicant would be considered "irreparable".

The judge referred to the CFI's decision in Pfizer Animal Health SA v Council [1999] CMLR 79, where that court was not satisfied that "serious and irreparable" damage would have been caused if an interim order was not made. He also referred again to Zuckerfabrik, where the ECJ had pointed out that "purely financial damage" could not - in principle - be regarded as "irreparable" (having regard, in particular, to the potential for claimants to seek compensation from the Community under Article 288 EC).

However, despite these ostensibly unfavourable dicta, the judge noted that the ECJ in Zuckerfabrik was careful to point out, immediately thereafter, that "the national court must have regard to the individual circumstances of each case". The judge believed it was legitimate, in this context, for the national court to consider (in a case where the damage likely to be suffered was essentially financial in nature) whether or not such damage was likely to be readily quantifiable.

Considering all the evidence, the judge concluded that very existence of some of the manufacturers was threatened, and that all were exposed to an "irremediable effect" on their market shares. In the circumstances, he concluded that "serious and irreparable" damage would be caused to them, if interim relief were denied.

In terms of the Community interest (another important consideration), the judge held that, as a general rule, economic interests would be subordinated to public health interests (citing the Pfizer decision). However, significantly, he noted that this important consideration had to be balanced against the cogent argument put forward by the manufactures that the disputed provisions of the Directive had in fact no direct or genuine public health objective.

Having regard to the principle of Community uniformity, the judge referred to the fact that he had been made aware of corresponding interim relief applications in France, Italy, Scotland and Northern Ireland. In this context, he noted the obligation on him to weigh considerations of the Community interest and potentially affected third parties against the interests of the manufacturers. He noted that if interim relief were not granted the manufacturers would be required irreversibly to divulge trade secrets, and suffer serious and irreparable harm thereby. Alternatively, in the event of noncompliance, they faced criminal sanctions - under a law which might subsequently be ruled invalid by the ECJ.

Having regard to the fact that the English Regulations were not yet in force, and that an interim injunction would preserve the status quo and not directly interfere with any personal rights in the interim, the judge held that the balance of convenience was in favour of granting interim relief. He re-emphasised his serious doubts as to whether public health and safety was in fact advanced at all by the provisions of the Directive and held, for all the reasons identified above, as follows:

1. Permission should be granted to seek judicial review of the provisions of the English Regulations.
2. There should be a reference to the ECJ.
3. Confidentiality should be ordered for the identified materials.
4. Interim suspensory relief in respect of the relevant parts of the English Regulations should be grated pending the ECJ's judgment.

On the matter of the extent of the interim injunction's effects, the judge noted that it was plain as a matter of both Community and English law that any interim injunction should be restricted to the minimum necessary, insofar as it impacted on the provisions of the English Regulations implementing the Directive. That was also the case as a matter of proportionality. Therefore, the interim suspension would apply only to Regulation 6 and the relevant parts of Regulation 10(c) of the English Regulations which were the offensive provisions.

The judge noted that, in the interim period, the manufacturers had not objected to disclosing the existence of feed materials on labels by specific names and in descending order of weight. Their dispute was with the requirement to disclose percentage listings.

It is reassuring to note that national judges, such as Mr Justice Davis, are prepared to make potentially controversial decisions, which have Community-wide implications, where such action is deemed necessary to protect the intellectual property and, in some cases, very existence of EU businesses. With an increasing degree of regulation affecting all industries now emanating from the EU, we can expect to see many more such applications to national courts for interim suspension of measures in the future.

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