ECJ decision on the limit value of Listeria

This year the Court of Justice of the European Union (ECJ) decided on the question - Which limit value applies to Listeria monocytogenes before and after placing on the market with regard to the food safety criterion according to Article 3 (1) in conjunction with Annex I Chapter I No 1.2 of Regulation (EC) No 2073/2005?

An Estonian food control authority tested Listeria monocytogenes in fish-based foods already on the market. After a positive result, the authority used the limit value according to which Listeria monocytogenes must not be detectable in 25g of the food (zero tolerance limit). In addition, the authority ordered to suspend the manufacturing of those products, to recall the entire batch and to inform consumers of the recall.

The manufacturer brought an action for annulment of those decisions, arguing that the authority had no authority to apply the zero tolerance limit. The plaintiff is of the opinion that for foodstuffs already placed on the market, the limit of 100 cfu/g according to Regulation (EC) No 2073/2005 applies during the shelf life.

The ECJ decided that the zero tolerance limit does not apply directly. The ECJ further states that the manufacturer may not place food on the market for which he cannot provide satisfactory proof of compliance with the limit value according to Regulation (EC) No 2073/2005 (100 cfu/g). Article 14 (8) of Regulation (EC) No 178/2002 can be used in such a case (cf. ESF judgment of salmonella). According to this, the authority may take appropriate measures to ensure food safety. In the opinion of the ECJ, the zero tolerance limit can represent an appropriate measure and justifies this with the protection goals of Regulation (EC) No 2073/2005.

The ECJ thus indirectly comes at the applicability of the zero tolerance limit to foodstuffs that have been placed on the market without the manufacturer being able to satisfactorily demonstrate that these foodstuffs do not exceed the limit of 100 cfu/g during their shelf life.

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