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Supreme Court of Denmark

Delivery prohibition on pig farm was lawful 

Case no. 329/2005
Judgment 24 June 2008

U2008.2214H
   

S A/S
vs.
The Danish Veterinary and Food Administration

The circumstances surrounding the search of a pig farm provided the requisite basis for assuming that the pigs were contaminated and that it was necessary to issue a general delivery prohibition

On 7 May 2003, the Regional Veterinary and Food Administration in Ringsted made a search of pig farm S. In this search, the Regional Administration found 10.4 kg of yellow powder in an unmarked container and three unmarked injection ampoules containing a clear fluid in a ventilation shaft. Also, in one of the stables, the team found a blue bottle which appeared to contain traces of the yellow powder. Analyses of the yellow powder showed that it contained tetracycline. On the day of the search, the Regional Administration issued a temporary prohibition against delivery of animals from the livestock for slaughter. Considering the retention time of thirty days for tetracycline, the delivery prohibition in respect of piglets and hogs was later extended by the Veterinary and Food Administration to 5 June 2003. The delivery prohibition in respect of sows was extended for the time being and then lifted on 27 June 2003, the same day that analyses of the ampoules showed that they contained the hormone preparation Estrumat Vet., which can be used for controlling the farrowing time of sows. Because of the delivery prohibition, S had to establish an emergency stable for the livestock. The emergency stable was used from 9 May 2003 to 20 May 2003 for piglets and hogs and another two weeks for sows. Following the ruling of the High Court, S had been fined for possession of the substances in question in a criminal case before the District Court in Maribo. The District Court's sentence was later upheld by the High Court.

The issue before the Supreme Court was whether the delivery prohibition issued by the Regional Veterinary and Food Administration in Ringsted and later extended by the Danish Veterinary and Food Administration was unlawful and, thus, void, and whether the Danish Veterinary and Food Administration was, in turn, liable for the loss suffered by S as a result of the prohibition. In the Supreme Court, the Danish Veterinary and Food Administration admitted that the delivery prohibition for hogs should have been lifted on 12 May 2003 when the results of the analysis of the yellow powder were known.                 

The Supreme Court declared that the circumstances surrounding the finding of the yellow powder and the ampoules provided the Regional Veterinary and Food Administration in Ringsted with the requisite basis for assuming that the animals could contain drug residues entailing a risk to human health, cf. S. 39 of the Danish Food Law in effect at that time. The Supreme Court upheld that there was no basis for setting aside the Regional Administration's assessment that it was necessary to issue the general delivery prohibition on 7 May 2003. In addition, the Supreme Court upheld that the Danish Veterinary and Food Administration was entitled to extend the prohibition on delivery of piglets to 5 June 2003 and of sows to 27 June 2003. The Supreme Court did not find any reason to consider that the delivery prohibition for hogs should have been lifted before 12 May 2003. On the evidence, the Supreme Court found that because the Danish Veterinary and Food Administration did not lift the delivery prohibition after this date, it had to pay to S discretionary damages totalling DKK 200,000 for rental and for the establishment, operation and dismantling of the emergency stable and DKK 100,000 for loss of production.

The Supreme Court thus affirmed the judgment of the High Court.

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