Key facts of the case:
Reference for a preliminary ruling: Amtsgericht Schleswig - Germany.
Directive 89/397/EEC - Official control of foodstuffs - Second subparagraph of Article 7(1) - Analysis of samples - Right to a second opinion - Direct effect - Admissibility of the results of analyses as evidence in the event of an infringement of the right to a second opinion.
Outcome of the case:
On those grounds, THE COURT (Fifth Chamber), in answer to the questions referred to it by the Amtsgericht Schleswig by order of 5 July 2001, hereby rules:
- The second subparagraph of Article 7(1) of Council Directive 89/397/EEC of 14 June 1989 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.
- It is for the national court before which an action such as that at issue in the main proceedings 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 the manufacturer has infringed a Member State's national rules on foodstuffs where the manufacturer has been unable to exercise his right to a second opinion under the second subparagraph of Article 7(1) of Directive 89/397. In that regard, the national court must verify that the national rules on the taking of evidence applicable to such an action are not less favourable than those governing similar domestic actions (the principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (the 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.