In R (Newby Foods Limited) v the Food Standards Agency [2017] EWCA Civ 400 the Court of Appeal was tasked with considering the circumstances when the English court is free to depart from conclusions reached by the Court of Justice of the European Union (“CJEU”) on a reference made to it by that court in the same proceedings.

Key points

  • Even where CJEU authorities appear to have no legal basis and were a “gloss” on EU legislation, they remain authoritative statements of law which are binding on national courts.
  • On occasion, the CJEU might find it helpful to elucidate its findings by applying the statements of law to the facts. However, it is for the national court, not the CJEU, to find the relevant facts and as such, any findings of fact by the CJEU are not binding on the national court.


The Food Standards Agency (FSA”) appealed against the High Court’s decision following a reference that had been made to the CJEU. The High Court had allowed in part a claim for judicial review by Newby Foods Limited (Newby”) that certain chicken and pork products manufactured by Newby should not be classified as mechanically separated meat (MSM”) within paragraph 1.14 of Annex I to EU Regulation No 853/2004 ( the “Regulation”).

The issue was whether the respondent’s product called “desinewed meat” (DSM”) should be regarded as MSM under the Regulation. MSM is defined in paragraph 1.14 of Annex I of the Regulation as products “obtained by removing meat from flesh-bearing bones after boning or from poultry carcases, using mechanical means resulting in the loss or modification of the muscle fibre structure”.

Newby had brought judicial review proceedings against the FSA and the judge had referred the case to the CJEU. The CJEU found that a product would be categorised as MSM where there had been any loss or modification of muscle fibre structure, not only where it had been significant, except where the loss or modification was strictly confined to the “cutting point”. The CJEU ‘introduced’ this exception to deal with the question as to why chicken breasts (which are commonly removed from the carcase by mechanical means causing some modification of the muscle fibre structure at the point where the meat is cut) are not classified as MSM. Applying the law to the facts, the CJEU found that DSM is considered MSM.

The matter returned to the High Court, where the judge considered the application of the “cutting point” exception. The restrictive interpretation of the “cutting point” exception meant that it only applied to cutting of intact muscle from the bone. However, the judge adopted an expansive interpretation whereby any point of cutting during the process would fall within the “cutting point” exception. The judge also took into account the fact that treating DSM as MSM was to waste a product that an informed observer would regard as meat and was therefore contrary to article 11 of the Treaty on the Functioning of the European Union (“TFEU”) (promoting sustainable development). On that basis the judge found that DSM was not MSM.

The FSA appealed against the judge’s decision on the basis that the judge erred in (1) concluding that DSM did not constitute MSM; (2) interpreting the “cutting point” exception; and (3) analysing and applying the authorities as to when a domestic court is free to depart from the conclusions of the CJEU.


In addressing the questions at hand, the Court of Appeal noted that although the exception had no basis and was a “gloss” on the Regulation imposed by the CJEU, the judgment remains an authoritative statement of the law which is binding on domestic courts.

The Court of Appeal dealt with the first two grounds of appeal together. It found that taking the judgment in context it was clear that the “cutting point” exception was a limited exception. The CJEU was responding to an argument to the effect that the mechanical removal of chicken breast from its carcase (ie the removal of intact muscle from bones) would involve a loss of modification when the chicken breast was cut. The exception was introduced to distinguish between the removal of chicken from its carcase by mechanical means from MSM. In addition, the wide interpretation of the exception would mean that repeated mechanical cutting of meat left on bones would not be classified as MSM defeating the purposes of the classification. Accordingly, the Court of Appeal upheld the appeal based on its view that the CJEU could not have intended the “cutting point” exception to have such a wide meaning.

The Court also rejected the judge’s consideration of TFEU article 11. Although this might be an appropriate factor when interpreting an EU measure in other circumstances, there was no scope for such an approach in this case. The CJEU was made aware of this argument but decided not to attach weight to it in this situation. The preamble to the Regulation was clear that the principal object of the Regulation was consumer protection and food safety.

It was unnecessary for the Court of Appeal to consider the third ground of appeal. However, it did note that on occasion, as in the present case, the CJEU may find it helpful to elucidate its findings by applying the statement of law to the facts. However, any such findings of fact by the CJEU are not binding on the national court.


This case illustrates the limited scope for national courts to adopt an expansive or purposive interpretation of CJEU judgments. The High Court judge appeared to disagree with the conclusions of the CJEU. He found that in introducing the “cutting point” exception the CJEU preferred clarity over case-by-case assessment and, in doing so, the Court of Appeal commented that he may have “thrown the baby out with the bath water”. The wide interpretation of the exception would have allowed the High Court to depart from the CJEU’s decision. However, the Court of Appeal made it clear that even though the “cutting point” exception had no legal basis and was a gloss on the legislation, it was still binding on domestic courts: the CJEU’s judgment was conclusive and left no scope for argument.


Andrew Lidbetter
+44 20 7466 2066

Nusrat Zar
+44 20 7466 2465

Jasveer Randhawa
Of Counsel
+44 20 7466 2998