An EU court has provided an interpretation of the rules as part of a complex domestic case in Estonia involving Listeria and fish.
The European Court of Justice found that the zero tolerance limit on Listeria cannot be applied to food which has left the control of the producer and is already on the market.
M.V. Wool and the food agency in Estonia are involved in national proceedings at the Administrative Court in Tallinn, which are ongoing.
The request for EU help was made in the case between M.V. Wool, a manufacturer of fish products, and the Agriculture and Food Board (PTA) in Estonia concerning two decisions made by the authority after detection of Listeria monocytogenes in food placed on the market by the company.
In August 2019, the Estonian authority took samples from a retail store of some salmon and trout products manufactured by M.V. Wool. After Listeria monocytogenes was detected, Estonian officials ordered the firm to suspend manufacturing of the products, recall the entire batch and to inform consumers.
In October, after finding Listeria monocytogenes in some of its products, M.V. Wool disinfected two operating plants. However, Listeria continued to be detected in some products from these sites. In November, the Estonian authority ordered M.V. Wool to suspend operations at the sites until it had proof that contamination had been eliminated.
Interpreting the rules
M.V. Wool brought proceedings before the Administrative Court in Tallinn to annul the decisions, claiming the Estonian authority was not entitled to apply the limit requiring the absence of Listeria monocytogenes in 25-grams to samples taken from retail.
The company believes the limit does not apply to items already on the market. For these products, the limit is 100 colony forming units per gram (CFU/g) during shelf-life. Listeria monocytogenes above these levels had never been found in the firm’s products, according to M. V. Wool.
The Estonian authority said that since the company has not proven its products would not exceed 100 CFU/g of Listeria monocytogenes throughout their shelf-life, it is the zero tolerance limit that applies, regardless of whether they are under the control of the manufacturer or have already been sent to market.
Cold-smoked trout and salmon produced in Estonia by M. V Wool was linked to a Listeria monocytogenes outbreak that affected 22 people in five countries from 2014 to 2019. Five people died.
The Administrative Court in Tallinn refered to the Court of Justice for a preliminary ruling on which interpretation was correct as this would impact the lawfulness of the authority’s decisions in August and November around operations at the company.
The first limit of 100 CFU/g applies to products placed on the market during their shelf-life, where the manufacturer is able to demonstrate to the satisfaction of the appropriate authority that it will not exceed this level.
The zero tolerance part applies before food has left the control of the food business and where that operator is unable to show the authority that product will not exceed 100 CFU/g throughout the shelf-life.
Rules do not cover a situation when a product is already on the market and where the manufacturer is unable to demonstrate it will not exceed 100 CFU/g during shelf-life.
The EU court ruled that where the company is unable to satisfy the authority that, throughout the shelf life, foodstuffs will not exceed the limit of 100 CFU/g for Listeria monocytogenes, the zero tolerance limit will not apply to items which have been placed on the market throughout their shelf-life.
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