Keywords
Summary

Keywords

1. Acts of the institutions — Directives — Direct effect

2. Approximation of laws — Official control of foodstuffs — Directive 89/397 — Right to a second opinion against a claim that products fail to meet the standard required by the national rules on foodstuffs — Direct effect — Right which must be granted to manufacturers where samples are taken from retail outlets — (Council Directive 89/397, Art. 7(1), second subpara.)

3. Approximation of laws — Official control of foodstuffs — Directive 89/397 — Admissibility of the results of analyses as evidence in the event of infringement of the right to a second opinion — To be assessed by the national courts — To be assessed in the light of the principles of equivalence and effectiveness — Respect for fundamental rights — Right to a fair hearing — (Council Directive 89/397, Art. 7(1), second subpara.)

Summary

1. Whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly.

see para. 38

2. The second subparagraph of Article 7(1) of Directive 89/397 on the official control of foodstuffs is to be construed as meaning that a manufacturer may rely on a right to a second opinion based on that article against the competent authorities of a Member State where those authorities claim that his products fail to meet the standard required by the national rules on foodstuffs on the basis of an analysis of samples of those products taken from retail outlets.

Since it is the manufacturer who will be penalised, he must be regarded as a person subject to inspection for the purposes of that provision and be recognised as enjoying the rights which it confers, the purpose of the second opinion being to safeguard the legitimate rights of the undertakings, in particular their right of appeal against the measures taken for the purpose of inspection.

see paras 48-49, 52, operative part 1

3. It is for the national court before which an action relating to the application of a Member State's national rules on the control of foodstuffs has been brought to assess, in the light of all the factual and legal evidence available to it, whether or not the results of analyses of samples of a manufacturer's products are to be admitted as evidence that that manufacturer has committed an infringement of those rules where that manufacturer has been unable to exercise his right to a second opinion provided for in the second subparagraph of Article 7(1) of Directive 89/397 on the official control of foodstuffs. In that regard, the national court must establish that the national rules on the taking of evidence applicable to such an action are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness). In addition, the national court must consider whether such evidence must be excluded in order to avoid measures incompatible with compliance with fundamental rights, in particular the right to a fair hearing before a tribunal as laid down in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

see para. 80, operative part 2