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Sentence of the Court of Justice of the European Union, of September 2, 2021 on Regulation (EC) 1069/2009, which establishes the sanitary regulations applicable to animal by-products and derived products not intended for human consumption.
Appeal brought in a Member State by a company dedicated to processing and marketing animal by-products (offal) between feed producers, animal fat transformation companies and biogas plants, against the Administration’s decision to reclassify certain category 3 materials (low risk) in category 2 (high risk) and its immediate elimination.
The administrative decision was taken within the framework of a routine control of the activity and was based on the presence of mold, rot and foreign bodies (pieces of plaster or sawdust) in the inspected material.
The plaintiff challenged the reclassification ordered by the Administration without conducting a scientific examination; and, the use of the «edible» criterion. It further claimed that category 3 material is not intended for human consumption and that it is unnecessary to dispose of it as it can be recovered (in this case, incinerated or used as biogas).
The State Court, through a preliminary ruling, wanted to know if the aforementioned Regulation requires reclassification of a category 3 animal by-product due to its degradation or mixture with foreign bodies.
The answer of the Court of Justice is affirmative. The Judgment establishes that said alterations require the reclassification of the altered material in category 2 since they no longer conform to the level of risk associated with category 3.
According to the aforementioned Regulation, animal by-products will be classified into specific categories according to the level of risk they present for public health and animal health. More specifically, that Regulation establishes three categories, covering, respectively, the material of categories 1, 2 and 3, and animal by-products must necessarily be included in one of those three categories. Thus, the material that the Union legislator considered low risk is included in category 3, while the material included in categories 1 and 2 presents a high risk for public health and animal health, being the material Category 1 is the one with the highest risk.
It follows that the lists of material of categories 1 and 3, established in Regulation No. 1069/2009, are exhaustive and, therefore, must be strictly interpreted insofar as, on the one hand, they include only the material that is expressly listed in them and, on the other hand, this material must be adjusted to the level of risk associated with the category in question.
From the foregoing it can be deduced that only the material that is expressly mentioned in it is included in category 3 and that it is adjusted to the level of risk associated with this category.
The level of risk is also the relevant criterion for the end use of animal by-products. Regulation No. 1069/2009 established lists of possible uses and eliminations for each category of material, as well as the rules applicable to each of them so that said level of risk is reduced to a minimum, without excluding, however, the possibility that the uses and disposals applicable to a high-risk category are extended in the same way to the material corresponding to low-risk categories.
It follows that the Union legislator intended to control the risks to public health and animal health throughout the exploitation of animal by-products, in an appropriate and proportionate manner, which implies that the classification of an animal by-product can be reassessed. at any time during its exploitation and, therefore, lead to a reclassification of that by-product when the latter no longer meets the requirements established for its initial classification; From the purpose pursued by the regulations of which these provisions form part, it follows that the initial classification of material in a specific category must be controlled and verified throughout the entire chain of operations, so that if that material is no longer corresponds to the level of risk that was initially associated with it, it must be reclassified to guarantee the safety of the human and animal food chain. Therefore, the classification in a category does not remain unchanged, but depends on maintaining the level of risk associated with it, since a process of decomposition or degradation of category 3 material gives rise to toxins that, in principle, they make it unfit for human consumption and also pose a risk to human health and animal health.
Consequently, animal by-products initially classified in category 3, which present a higher level of risk than that allowed to be classified in that category, lose their classification in that category.
The mixture of animal by-products with foreign bodies such as pieces of plaster or sawdust, presents the same characteristics and, in particular, the same level of risk as the material of category 2 of Regulation No. 1069/2009, which includes’ products of animal origin that have been declared unfit for human consumption due to the presence of foreign bodies in them”. Therefore, a mixture should be classified in category 2, if it is products of animal origin, whether it is other animal by-products.
Thus, the initial classification of the material in category 3 cannot be maintained, despite the decomposition or degradation that affects it or despite its mixture with foreign bodies, to the extent that this material cannot be used to be transformed into feed, but for other purposes, such as incineration or transformation into biogas. The change in the initial destination of the material in question cannot justify its retention in category 3, in view of the high level of risk of this material for human and animal health.
Ultimately, the Court of Justice rejects the argument of the company questioning the reclassification because the material would no longer be used to produce feed but to incineration or transformation into biogas (recovery). The change of the initial destination of the material cannot justify, according to the Judgment, its maintenance in category 3, if the applicable legal requirements are violated and the material must be eliminated.
The Judgment, on the other hand, confirms previous doctrine of the Court of Justice clarifying that the shipments of mixtures of animal by-products and non-hazardous waste are governed by the regulations on animal by-products and not by the waste regulations, that is, Regulation 1013/2006.
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