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Innovation before Regulation or Vice Versa?

An Analysis of the European Court of Justice Approach to Advance in Mechanically Separated Meat Production

Artur Nowak-Far


EU regulation hardly follows the technological advancements in various reduced meat products (RMP) markets. The European Court of Justice’s (ECJ) jurisprudence (in addition to the Commission’s soft law) has an important role to play to fill out regulatory gaps which arise as a result of an application of fairly generic EU rules to these technological advancements. In its approach to classification problems arising with respect to various RMP, the ECJ quite adequately identifies them as agnation matters. Therefore, the Court adopts simultaneously various criteria for classification (especially emphasising safety measures) drawing from all relevant legal sources pertaining to RMP and successfully pursuing their reconciliation. This approach makes the ECJ disinclined to accept novel technologies of RMP processing as ones leading to the development of products distinguishable from mechanically separated production (MSP) whenever rough criteria for MSP definition (under Regulation 853/2004/EC) are met. This means that a distinctive outer appearance would not suffice to disqualify the product as MSP. Moreover, RMP testing advancements (indicating that calcium content should be used as a reliable marker for MSP) make it even less likely that product appearance alone would suffice in the future to qualify such a product as minced meat.

Prof. dr. hab. Artur Nowak-Far, Institute of Law, Warsaw School of Economics-SGH, Poland. Comments welcome at <artur.nowak-far@sgh.waw.pl>.

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