S.I. No. 432/2009 - European Communities (Food and Feed Hygiene) Regulations 2009

• (n) otherwise contravenes a provision (mentioned in this paragraph),

of Regulation (EC) No. 852/2004 commits an offence.

• (2) A person who, by act or omission-

• (a) having adopted a specific hygiene measure referred to in Article 4(3) of Regulation No. 852/2004, fails to comply with that measure,

• (b) contravenes a criteria, requirement or target referred to in Article 4(4) of Regulation No. 852/2004 that is adopted in accordance with Article 14 (2) of that Regulation,

• (c) having adopted a principle referred to in the first subparagraph of Article 5(2) of Regulation No. 852/2004, fails to comply with the principle,

• (d) contravenes a detailed arrangement referred to in Article 5(5) of Regulation No. 852/2004, or

• (e) otherwise contravenes a provision mentioned in this paragraph,

commits an offence.

Contravention of Regulation (EC) No. 853/2004

• (a) subject to Article 8, 9 and 10 of Commission Regulation (EC) No. 2076/2005 of 5 December 2005, fails to comply with a relevant provision in contravention of Article 3(1),

• (b) uses a substance in contravention of Article 3(2), or in a manner prohibited by Article 3(2),

• (c) subject to Article 4 of Commission Regulation (EC) No. 2076/2005 of 5 December 2005, places a product of animal origin on the market other than in accordance with Article 4(1) or 5(1),

• (d) operates in contravention of Article 4(2) or (3),

• (e) fails to co-operate with a registering authority or an authorised officer, or operates, in contravention of Article 4(3),

• (f) removes a health mark in contravention of Article 5(4),

• (g) subject to Article 7 of Commission Regulation (EC) No. 2076/2005 of 5 December 2005, imports a product of animal origin in contravention of Article 6,

• (h) does not ensure that certificates or other documents accompany a consignment in contravention of Article 7(1),

• (i) does not comply with an implementing measure or transitional arrangement in contravention of Article 9, or

• (j) otherwise contravenes a provision (mentioned in this Regulation),

of Regulation (EC) No. 853/2004 commits an offence.

Contravention of Regulation (EC) No. 183/2005

• (a) fails to comply with a general obligation in contravention of Article 4,

• (b) fails to comply with a specific obligation in contravention of Article 5,

• (c) fails to put in place, implement or maintain a HACCP system in contravention of Article 6(1),

• (d) fails to make necessary changes in contravention of Article 6(3),

• (e) fails to comply with documentary requirements in contravention of Article 7(1),

• (f) fails to submit proof of cover by financial guarantees in contravention of Article 8(2),

• (g) fails to co-operate with a registering authority or an authorised officer in contravention of Article 9(1),

• (h) fails to notify or provide up to date information to a registering authority in contravention of Article 9(2),

• (i) fails to ensure that a food business is approved in contravention of Article 10,

• (j) operates in contravention of Article 11,

• (k) fails to submit a declaration in contravention of article 17(2),

• (l) fails to make a declaration in contravention of Article 18(3),

• (m) imports feed in contravention of Article 23,

• (n) exports feed in contravention of Article 25, or

• (o) otherwise contravenes a provision (mentioned in this paragraph),

of Regulation (EC) No. 183/2005 commits an offence.

• (2) A person who, by act or omission—

• (a) contravenes a criteria or target referred to in Article 5(3) of Regulation No. 183/2005 that is adopted in accordance with Article 31 (2) of that Regulation,

• (b) contravenes a measure referred to in Article 6(5) of Regulation No. 183/2005 that is adopted in accordance with Article 31(2) of that Regulation,

• (c) contravenes an arrangement referred to in Article 7(3) of Regulation No. 183/2005 that is adopted in accordance with Article 31(2) of that Regulation, or

• (d) otherwise contravenes a provision mentioned in this paragraph,

commits an offence.

Contravention of Regulation (EC) No. 2073/2005

• (a) fails to comply with a general requirement in contravention of Article 3,

• (b) fails to perform testing in contravention of Article 4,

• (c) fails to comply with a specific rule in contravention of Article 5,

• (d) fails to comply with a labelling requirement in contravention of Article 6,

• (e) fails to take a measure in contravention of Article 7(1),

• (f) deals with a product in contravention of Article 7(2),

• (g) fails to taken action, in contravention of Article 7(4),

• (h) fails to analyse trends, in contravention of Article 9, or

• (i) otherwise contravenes a provision (mentioned in this Regulation),

of Regulation (EC) No. 2073/2005 commits an offence.

Contravention of Regulation (EC) No. 2074/2005

• (a) contravenes a requirement concerning food chain information in contravention of Article 1,

• (b) contravenes a requirement concerning a fishery product in contravention of Article 2, or

• (c) otherwise contravenes a provision (mentioned in this Regulation),

of Regulation (EC) No. 2074/2005 commits an offence.

Contravention of Regulation (EC) No. 2075/2005

• (a) fails to sample carcases, in contravention of Article 2,

• (b) deals with a carcase, other parts of an animal, or animal waste or a by-product in contravention of Article 4,

• (c) applies the health mark in contravention of Article 4(3),

• (d) uses a method of detection in contravention of Article 6(1),

• (e) fails to forward a sample, in contravention of Article 6(2),

• (f) fails to inform the Minister, in contravention of Article 9, or

• (g) otherwise contravenes a provision (mentioned in this Regulation),

of Regulation (EC) No. 2075/2005 commits an offence.

Contravention of these Regulations

• (a) contravenes Regulation 3(1) or (10), 4(1) or (11), 5(3) or (5), 6(1), (2), (5), (6) or (7), 7, 8(1) or (5), 10, 11, 15(2), 16(5) or 20 of these Regulations,

• (b) fails to give assistance to an authorised officer,

• (c) contravenes a condition of-

• (i) a feed business registration,

• (ii) a food business registration,

• (iii) a feed business approval, or

• (iv) a food business approval,

commits an offence

Service

• (a) by giving it to the person, his or her employee, servant or agent,

• (b) by leaving it at the address at which the person ordinarily resides, normally carries out business, or, if an address for service has been furnished, at that address,

• (c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, if an address for service has been furnished, at that address,

• (d) if the address at which the person ordinarily resides cannot be ascertained by reasonable enquiry and the compliance notice relates to a premises, by delivering it to the premises or by affixing it in a conspicuous position on or near the premises.

• (e) by electronic communication.

• (f) by sending a copy, by means of a facsimile machine, to a device or facility for the reception of facsimiles located at the address at which the person ordinarily resides or carries on business or, if an address for service has been furnished by the person, that address, provided that the senders facsimile machine generates a message confirming successful transmission of the total number of pages of the notice.

• (2) If a notification under Regulation 3(12) or (14) or Regulation 4(14) or (16) or a compliance notice is to be served on or given to a person who is the owner or occupier of a premises and the name of the person cannot be ascertained by reasonable enquiry, it may be addressed to the person by using the words the owner or the occupier.

• (3) A person shall not, at any time within 6 months after a notification under Regulation 3(12) or (14) or Regulation 4(14) or (16) or a compliance notice is affixed under paragraph (1)(d), remove, damage or deface the notification or compliance notice without lawful authority.

• (4) For the purposes of this Regulation, a company within the meaning of the Companies Acts is considered to be ordinarily resident at its registered office and every other body corporate or unincorporated body is considered to be ordinarily resident at its principal office or place of business.

Penalties and prosecutions

• (a) on summary conviction, to a fine not exceeding € 5,000, or to imprisonment for a term not exceeding 6 months, or to both, or

• (b) on conviction on indictment to a fine not exceeding €250,000, or to imprisonment for a term not exceeding 3 years, or to both.

• (2) A summary offence under these Regulations may be prosecuted by a registering authority or by the Food Safety Authority of Ireland.

• (3) If an offence under these Regulations is committed by a body corporate and is proven to have been so committed with the consent, connivance or approval of or to have been attributable to the wilful neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate or a person who was purported to act in any such capacity, that person, as well as the body corporate, commits offence and is liable to be proceeded against and punished as if he or she was guilty of the offence.

• (4) If the affairs of a body corporate are managed by its members, paragraph (3) applies in relation to the acts and defaults of a member in connection with the functions of management as if the member were a director or manager of the body corporate.

• (5) In proceedings alleging a contravention of these Regulations, it is a defence for the defendant to show he or she acted in accordance with a derogation or transitional measure laid down by an act of an institution of the European Communities relevant to the subject of the offence it is alleged that he or she committed.

Evidence on certificate etc

• (a) that the person received a sample,

• (b) that, for the period specified in the certificate, the person had the sample in his or her possession,

• (c) that the person gave the sample to another person named in the certificate, or

• (d) the person carried out a procedure for the purpose of detecting in the sample, a substance or contamination or that the sample contained a substance as is, or was contaminated in a manner, specified in the certificate,

is (without proof of the signature of the person or that he or she is employed at the laboratory), unless the contrary is proved, evidence of the matters stated in the certificate.

• (2) A certificate purporting to be signed by an officer of a registering authority and to certify that on a specific day or days or during the whole of a specified period-

• (a) a particular person or establishment did not stand registered in the register of feed businesses or the register of food businesses,

• (b) the registration of a person or establishment in the register of feed businesses or the register of food businesses is suspended or has been revoked,

• (c) a person was or was not the holder of an approval granted under Regulation 4,

• (d) an establishment was or was not approved under Regulation 4, or

• (e) that a particular approval or registration, referred to in this paragraph, was subject to a particular condition or conditions,

is, without proof of the signature of the person purporting to sign the certificate or that he or she is an officer of the registering authority, evidence, unless the contrary is shown, of the matters stated in the certificate.

• (3) In proceedings for an offence under these Regulations the court may, if it considers that the interests of justice so require, direct that oral evidence of any matter stated in a certificate under paragraph (1) or (2) be given, and the court may for the purpose of receiving oral evidence adjourn the matter.

• (4) In proceedings, evidence of an act of the institutions of the European Communities may be given by production of a copy of the act certified by an officer of a registering authority to be a copy of the act, and it is not necessary to prove the signature of the officer or that he or she is an officer of the authority.

• (5) Paragraph (4) is in addition to and not in substitution for the European Communities (Judicial Notice and Documentary Evidence) Regulations 1972 ( S.I. No. 341 of 1972 ).

Revocations, savers, etc

• (a) the European Communities (Undesirable substances in feedingstuffs) Regulations 2003 ( S.I. No. 317 of 2003 ),

• (b) the European Communities (Food and Feed Hygiene) Regulations 2005 ( S.I. No. 910 of 2005 ),

• (d) the European Communities (Hygiene of Fishery Products and Fish Feed) Regulations 2006 ( S.I. No. 335 of 2006 ),

• (e) the European Communities (Food and Feed Hygiene) (Amendment) Regulations 2006 ( S.I. No. 387 of 2006 ),

• (f) the European Communities (Undesirable substances in feedingstuffs) (Amendment) Regulations 2006 ( S.I. No. 577 of 2006 ),

• (g) the European Communities (Food and Feed Hygiene) (Amendment) Regulations 2007 ( S.I. No. 56 of 2007 ),

• (h) the European Communities (Undesirable substances in feedingstuffs) (Amendment) Regulations 2007 ( S.I. No. 720 of 2007 ), and

• (i) the European Communities (Undesirable substances in feedingstuffs) (Amendment) Regulations 2009 ( S.I. No. 185 of 2009 ).

• (2) These Regulations apply in place of—

• (a) the Dairy Produce Acts 1924 to 1984,

• (b) the Creamery Acts 1928 to 1934, and

• (c) the Milk and Dairies Acts 1935 to 1956,

in relation to the hygienic production and placing on the market of raw milk, heat-treated milk and milk-based products.

• (3) The European Communities (Hygiene of Foodstuffs) Regulations 2006 ( S.I. No. 369 of 2006 ) and the European Communities (General Food Law) Regulations 2007 ( S.I. No. 747 of 2007 ) do not apply to a primary producer or other food business to which these Regulations apply.

• (4) These Regulations do not apply to a primary producer or other food business engaged in—

• (a) retail sale or supply directly to a final consumer except-

• (i) if the sale or supply is from an establishment registered or approved under these Regulations, or

• (ii) subject to subparagraph (d) retail of fish or a fishery product (by, or on behalf of, a primary producer),

• (b) primary production, domestic preparation, handling or storage for private domestic production,

• (c) direct supply, in any one week, by the producer, of a primary fishery product not exceeding €50 in value to the final consumer or to a local retail establishment supplying directly to the final consumer,

• (d) the supply of fish feed for, and feeding of fish feed to, fish—

• (i) kept for domestic production, or

• (ii) not kept for food production,

or

• (e) marginal, localised and restricted supply of a food of animal origin from a retail establishment to another retail establishment,

to the extent that the food or feed business engages in any of these activities.

• (5) A reference in an enactment to—

• (a) a statutory instrument revoked by paragraph (1),

• (b) a statutory instrument revoked by the Regulations of 2005, the European Communities (Hygiene of Fishery Products and Fish Feed) Regulations 2006 ( S.I. No. 335 of 2006 ), the European Communities (Food and Feed Hygiene) (Amendment) Regulations 2006 ( S.I. No. 387 of 2006 ) or the European Communities (Food and Feed Hygiene) (Amendment)

• (c) the Act repealed by Regulation 19 (2) of the Regulations of 2005, or

• (d) a provision of a statutory instrument referred to in subparagraph (a) or (b) or the Act referred to in subparagraph (c),

is construed and has effect as if the reference is a reference to these Regulations or the corresponding provision of these Regulations.

• (6) An entry in the register of food businesses or an entry in the register of feed businesses (within the meaning of the Regulations revoked by paragraph (1)) that is in force immediately before the making of these Regulations remains in force, is considered to be a entry in the register of food businesses or an entry in the register of feed businesses and may be dealt with by the registering authority specified in these Regulations as if it is an entry in the register of food businesses or an entry in the register of feed businesses granted by that registering authority.

• (7) An entry in the register maintained under the Regulations revoked by paragraph (1)(b) that was in force immediately before the making of the Regulations of 2005 remains in force, is considered to be a entry in the register of food businesses and may be dealt with by the registering authority specified in these Regulations as if it is an entry in the register of food businesses or an entry in the register of feed businesses granted by that authority.

• (8) A food business approval or a feed business approval (within the meaning of the Regulations revoked by paragraph (1)) that is in force immediately before the making of these Regulations remains in force, is considered to be a food business approval or a feed business approval and may be dealt with by the registering authority specified in these Regulations as if it is a food business approval or a feed business approval granted by that registering authority.

• (9) An application for entry in the register of food businesses or for entry in the register of feed businesses or an application for a food business approval or for a feed business approval (within the meaning of the Regulations revoked by paragraph (1)) that remains to be determined on commencement of these Regulations is, after the commencement of these Regulations considered to be an application for entry in the register of food businesses or an entry in the register of feed businesses or an application for a food business approval or a feed business approval and may be determined as if made under these Regulations.

• (10) A person who engages in the transport of animals and is required to hold a food business registration is deemed to hold that registration if he or she is the holder of an animal transport authorisation (within the meaning of the European Communities (Animal Transport and control Post) Regulations 2006 ( S.I. No. 675 of 2006 ).

GIVEN under my Official Seal,

28 October 2009.

BRENDAN SMITH,

Minister for Agriculture, Fisheries and Food.

EXPLANATORY NOTE.

(This note is not part of the instrument and does not purport to be a legal interpretation.)

These Regulations give effect to a number of European Regulations concerning food and feed hygiene legislation, insofar as they relate to The Department of Agriculture, Fisheries and Food, revising and consolidating legislation in relation to the production, control and marketing of food and feed. The amendments take account of the transfer of fishery functions to this Department and clarify the role of authorised officers.

Footnotes