Affaire C‑483/24 Procureur général près la Cour d’appel de Liège contre Aldi SA

Opinion of Mrs Kokott – Case C‑483/24 ALDI (Traces of pests)

Opinion of Advocate General KOKOTT delivered on 9 October 2025 Original language: French. Case C‑483/24 Procureur général près la Cour d’appel de Liège v Aldi SA (Request for a preliminary ruling from the Cour de cassation (Court of Cassation, Belgium))

Procureur général près la Cour d’appel de Liège v Aldi SA (Request for a preliminary ruling from the Cour de cassation (Court of Cassation, Belgium))

Is the discovery of traces of pests in the shops and stockrooms of a food business operator sufficient in itself to prove a breach of the hygiene rules laid down in Regulation (EC) No 852/2004 on the hygiene of foodstuffs, Regulation of the European Parliament and of the Council of 29 April 2004 ( OJ 2004 L 139, p. 1 ), as last amended by Commission Regulation (EU) 2021/382 of 3 March 2021 ( OJ 2021 L 74, p. 3 ) ( the Food Hygiene Regulation ). or must the competent authority instead prove that the food business operator concerned has not complied with the obligations to use best endeavours stipulated in that regulation?

That is the question that the Cour de cassation (Court of Cassation, Belgium) submits to the Court of Justice in the context of the present request for a preliminary ruling.

The Food Hygiene Regulation, the interpretation of which is sought in the present case, refers on a number of occasions to Regulation (EC) No 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety. Regulation of the European Parliament and of the Council of 28 January 2002 ( OJ 2002 L 31, p. 1 ), as last amended by Commission Delegated Regulation (EU) 2024/908 of 17 January 2024 (OJ L, 2024/908) ( the Basic Food Regulation ).

Recital 30 of the Basic Food Regulation is worded as follows: A food business operator is best placed to devise a safe system for supplying food and ensuring that the food it supplies is safe; thus, it should have primary legal responsibility for ensuring food safety. …

Article 17 of the Basic Food Regulation (entitled Responsibilities ) provides: 1. Food and feed business operators at all stages of production, processing and distribution within the businesses under their control shall ensure that foods or feeds satisfy the requirements of food law which are relevant to their activities and shall verify that such requirements are met. 2. Member States shall enforce food law, and monitor and verify that the relevant requirements of food law are fulfilled by food and feed business operators at all stages of production, processing and distribution. For that purpose, they shall maintain a system of official controls and other activities as appropriate to the circumstances, including public communication on food and feed safety and risk, food and feed safety surveillance and other monitoring activities covering all stages of production, processing and distribution. Member States shall also lay down the rules on measures and penalties applicable to infringements of food and feed law. The measures and penalties provided for shall be effective, proportionate and dissuasive.

Recital 1 of the Food Hygiene Regulation refers to the Basic Food Regulation: The pursuit of a high level of protection of human life and health is one of the fundamental objectives of food law, as laid down in [the Basic Food Regulation]. …

Recital 7 of the Food Hygiene Regulation refers to the objective of that regulation: The principal objective of the new general and specific hygiene rules is to ensure a high level of consumer protection with regard to food safety.

Article 1(1)(a) of the Food Hygiene Regulation provides: Primary responsibility for food safety rests with the food business operator .

Article 3 of the Food Hygiene Regulation is worded as follows: Food business operators shall ensure that all stages of production, processing and distribution of food under their control satisfy the relevant hygiene requirements laid down in this Regulation.

In accordance with paragraph 2 of Article 4 (entitled General and specific hygiene requirements ) of the Food Hygiene Regulation, food business operators carrying out any stage of production, processing and distribution of food … shall comply with the general hygiene requirements laid down in Annex II .

Article 5 (entitled Hazard analysis and critical control points ) of the Food Hygiene Regulation refers, in paragraphs 1 and 2 thereof, to the HACCP principles, That acronym designates the hazard analysis and critical control points principles (see https://food.ec.europa.eu/food-safety/biological-safety/food-hygiene/legislation_en). which set out good hygiene practices.

Paragraph 2(c) of Chapter I of Annex II to the Food Hygiene Regulation provides: The layout, design, construction, siting and size of food premises are to: … (c) permit good food hygiene practices, including protection against contamination and, in particular, pest control .

Paragraph 1(a) of Chapter V of Annex II provides: All articles, fittings and equipment with which food comes into contact are to: (a) be effectively cleaned and, where necessary, disinfected. Cleaning and disinfection are to take place at a frequency sufficient to avoid any risk of contamination .

Paragraphs 2, 3 and 4 of Chapter IX of Annex II are worded as follows: 2. Raw materials and all ingredients stored in a food business are to be kept in appropriate conditions designed to prevent harmful deterioration and protect them from contamination. 3. At all stages of production, processing and distribution, food is to be protected against any contamination likely to render the food unfit for human consumption, injurious to health or contaminated in such a way that it would be unreasonable to expect it to be consumed in that state. 4. Adequate procedures are to be in place to control pests. Adequate procedures are also to be in place to prevent domestic animals from having access to places where food is prepared, handled or stored (or, where the competent authority so permits in special cases, to prevent such access from resulting in contamination).

This request for a preliminary ruling is based on criminal proceedings instituted by the Belgian public prosecutor’s office against the undertaking from the food sector Aldi SA.

In the course of inspections carried out between 2020 and 2022, the Agence fédérale pour la sécurité de la chaîne alimentaire (Federal Agency for the Safety of the Food Chain (Belgium; AFSCA )) recorded repeated irregularities in several of Aldi’s shops and warehouses. A number of the premises concerned were revisited several months later and it was found that the irregularities persisted.

On site, both on shelves accessible to consumers and in the stockrooms, were found inter alia dirt, goods nibbled by pests, food soiled by droppings, urine and hair, pest droppings and dead mice.

In addition, AFSCA criticised the lack of a system of checks on receipt of goods in certain premises, which it had already condemned in the past.

In one of those inspections, during which rodent droppings and dead mice had been found, a check had been carried out just beforehand by a pest control company.

The Belgian public prosecutor’s office then accused Aldi of having infringed Article 4 of, and Annex II to, the Food Hygiene Regulation and Article 9(3) of the Arrêté royal du 22 février 2001 organisant les contrôles effectués par l’Agence fédérale pour la sécurité de la chaîne alimentaire et modifiant diverses dispositions légales (Royal Decree of 22 February 2001 organising checks carried out by the Federal Agency for the Safety of the Food Chain and amending various statutory provisions).

The tribunal correctionnel du Luxembourg, division Neufchâteau (Criminal Court, Luxembourg, Neufchâteau Division, Belgium) acquitted Aldi of all the charges against it in its judgment of 15 March 2023 . The Belgian public prosecutor’s office lodged an appeal against that judgment.

The cour d’appel de Liège (Court of Appeal, Liège, Belgium), however, upheld the decision at first instance. In its view, the Food Hygiene Regulation imposes only obligations to use best endeavours on food business operators. The mere presence of droppings and traces of pests does not in itself constitute an infringement of that regulation. The Belgian public prosecutor’s office lodged an appeal on a point of law against that judgment.

In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: Do the obligations laid down in Article 4(2) of [the Food Hygiene Regulation], in Annex II thereto and, more specifically, in paragraph 2(c) of Chapter I, paragraph 1(a) of Chapter V, and paragraphs 2, 3 and 4 of Chapter IX, impose on wholesale and retail food business operators an obligation as to the result to be achieved, such that the presence of droppings and traces of pests in shops and warehouses is sufficient, except in cases of force majeure , some external cause or unavoidable mistake, to establish an infringement of that regulation, or are food business operators subject only to an obligation to use best endeavours, that is to say to do everything possible to control pests, such that the mere finding by the national administrative authority of the presence of droppings and traces of pests in shops and warehouses is not sufficient to establish an infringement of that regulation?

Aldi, the Belgian, Greek, French, Luxembourg, Netherlands and Polish Governments, Ireland and the European Commission submitted written observations on that question in the context of the procedure before the Court. The same parties, with the exception of the Luxembourg, Netherlands and Polish Governments, were also represented at the hearing on 25 June 2025 .

Aldi claims that the question submitted for a preliminary ruling is inadmissible in part. The request for a preliminary ruling relates in part to provisions of Annex II to the Food Hygiene Regulation which are not the subject of criminal proceedings against it in Belgium. Those provisions are therefore not relevant in the main proceedings.

According to settled case-law, it is solely for the national court to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court, which enjoy a presumption of relevance. Consequently, where the question submitted concerns the interpretation or the validity of a rule of EU law, the Court is, in principle, bound to give a ruling, unless it is quite obvious that the interpretation sought bears no relation to the actual facts of the main action or its purpose, if the problem is hypothetical or if the Court does not have before it the factual and legal material necessary to give a useful answer to that question. Judgments of 19 December 1968 , De Cicco ( 19/68 , EU:C:1968:56 , p. 473 , in particular p. 478); of 15 December 1995 , Bosman ( C‑415/93 , EU:C:1995:463 , paragraphs 59 to 61 ); and of 19 June 2025 , Lubreczlik ( C‑396/24 , EU:C:2025:460 , paragraph 47 ).

That is not the case here, however. As I shall demonstrate below, the various hygiene rules in Annex II to the Food Hygiene Regulation are all linked in that they serve the achievement of the common objective of ensuring food safety. They must therefore be interpreted in their context.

Aldi also claims that the referring court is in reality not seeking an interpretation of EU law, but that its question concerns the interpretation of Belgian criminal law in the light of the penalties that have been imposed on it.

That objection is also unfounded, however, since the question referred for a preliminary ruling clearly concerns the interpretation of the Food Hygiene Regulation, which itself refers to the Basic Food Regulation. The latter regulation provides, in Article 17(2) thereof, that Member States are to lay down the rules on measures and penalties applicable to infringements of food law, which are to be effective, proportionate and dissuasive. There is therefore no doubt that the present case falls within the scope of EU law, even if the action in the main proceedings concerns the penalty imposed on Aldi.

The objections to the admissibility of the present request for a preliminary ruling raised by Aldi must therefore be rejected.

In its question, the referring court refers to the distinction between obligation as to the result to be achieved and obligation to use best endeavours, which is well known in most legal orders of the Member States and which has already been used by the Court. See, for example, judgments of 12 September 2019 , A and Others ( C‑347/17 , EU:C:2019:720 , paragraph 53 et seq.), and of 16 March 2023 , Beobank ( C‑351/21 , EU:C:2023:215 , paragraph 53 et seq.). That distinction aims to determine whether the person placed under an obligation is required to achieve a specific result or whether it is enough that he or she employs all the means available to achieve a result, without being responsible for actually attaining that result.

The Food Hygiene Regulation does not itself use the expressions obligation as to the result to be achieved or obligation to use best endeavours . In addition, the classification proposed by the referring court of the provisions mentioned in the question referred for a preliminary ruling according to one or the other category as proposed by the referring court cannot be done in a precise manner, since those provisions contain both requirements as to action and requirements as to result.

The referring court uses that distinction since, as it itself indicates in its question, it wishes to ascertain whether the finding of traces of pests in shops and stockrooms is sufficient, except in cases of force majeure , some external cause or unavoidable mistake, to prove an infringement of the hygiene rules laid down in Article 4(2) of the Food Hygiene Regulation, read in conjunction with Annex II thereto.

The previous instances had held, after all, that that was not the case. In their view, the provisions at issue merely establish rules of conduct with which food business operators are required to comply. The mere discovery of traces of pests, therefore, cannot suffice to ground a breach.

It therefore appears that the question referred for a preliminary ruling relates essentially to whether a food control authority may conclude, on the basis of the presence of traces of pests, that the hygiene rules in question have not been complied with – or in any event have not been sufficiently complied with – and may find a breach of those rules on that basis alone.

I shall examine, in the first place, the circumstances in which the discovery of traces of pests supports the conclusion that the applicable hygiene rules have not been complied with (1). In the second place, I shall set out the reasons why the Food Hygiene Regulation must be interpreted in such a way that, in circumstances such as those of the present case, it must be concluded that there has been a breach (2).

Before I address those aspects, it should be noted that the referring court specifically requests the interpretation of certain provisions of Annex II to the Food Hygiene Regulation. However, in the context of the preliminary ruling procedure, it is for the Court to provide the national court with an answer that will be of use to it and enable it to decide the case before it. In so doing, the Court may find it necessary to consider provisions of EU law which the national court has not referred to in its question. See judgment of 1 August 2025 , Alace and Canpelli ( C‑758/24 and C‑759/24 , EU:C:2025:591 , paragraph 44 and the case-law cited).

The fact that the referring court has formally referred, in its questions, to certain specific provisions of EU law therefore does not prevent the Court from providing it with all the elements of interpretation which may be useful for the judgment in the main proceedings, by extracting from the body of material provided by that court, and in particular from the statement of reasons for the order for reference, the elements of EU law which require interpretation in the light of the subject matter of the dispute. See judgment of 1 August 2025 , Alace and Canpelli ( C‑758/24 and C‑759/24 , EU:C:2025:591 , paragraph 45 and the case-law cited).

In its question, the referring court mentions the hygiene rules set out in paragraph 2(c) of Chapter I, in paragraph 1(a) of Chapter V and in paragraphs 2, 3 and 4 of Chapter IX of Annex II to the Food Hygiene Regulation, with which food business operators are required to comply pursuant to Article 4(2) of that regulation.

Those provisions first of all place food business operators under obligations concerning organisation of premises, cleaning and disinfection of items which come into contact with food, appropriate storage and protection of food against contamination, as well as pest control. At the same time, they determine the objective to be attained. That objective consists in ensuring that food is protected at all stages against all contamination by pests which would render it unfit for human consumption or harmful to health.

As several of the parties to the proceedings have submitted, the hygiene rules in Annex II to the Food Hygiene Regulation must be interpreted in accordance with Article 3 of that regulation and with Article 17(1) of the Basic Food Regulation. Pursuant to those provisions, food business operators must ensure that the applicable hygiene rules are observed at all stages of the handling of food under their control, in order to ensure that the food is fit for human consumption. In accordance with Article 2(1)(a) of the Food Hygiene Regulation, the expression food hygiene means the measures and conditions necessary to control hazards and to ensure fitness for human consumption of a foodstuff taking into account its intended use . They must also verify that those requirements are met.

The question whether the presence of traces of pests constitutes proof of a failure to comply with those obligations on the part of food business operators and, therefore – indirectly – with the relevant provisions of Annex II to the Food Hygiene Regulation depends on the extent of the traces found. It is for the court having jurisdiction to assess that element in the light of the specific circumstances of the case.

Thus, for example, the one-time discovery of a single mouse or an isolated trace of a pest in a stockroom inaccessible to consumers would not be sufficient to prove that the food business concerned has failed to fulfil its obligation to ensure and monitor compliance with the applicable hygiene rules. The intrusion of pests is an almost inevitable risk when operating a food business. It is precisely for that reason that the hygiene rules at issue provide that protection against contamination by pests and pest control must be ensured.

The single isolated presence of traces of pests, therefore, does not permit the conclusion that there has been a breach of the prescribed hygiene obligations. In such a case, it would be better to carry out further checks in order to determine whether the food business operator concerned has taken appropriate steps to remedy the irregularities.

The situation is completely different in a case such as this, where, according to the information provided by the referring court, repeated checks carried out at intervals of several months in several subsidiaries have revealed massive contamination by traces of pests in, on and in the immediate vicinity of food, most of which was already at the stage of being placed on the market, In accordance with Article 3(8) of the Basic Food Regulation, ‟placing on the market means the holding of food or feed for the purpose of sale, including offering for sale or any other form of transfer, whether free of charge or not, and the sale, distribution, and other forms of transfer themselves’. that is to say, accessible to consumers.

The discovery of such traces of pests permits the conclusion that there exists, within the food business operator concerned, a structural and permanent problem as regards compliance with the applicable hygiene rules and the monitoring of that compliance. There is thus justification, in such circumstances, for concluding that there has been a breach of the hygiene rules at issue (and, where applicable, of other rules) set out in Annex II to the Food Hygiene Regulation, read in conjunction with Article 3 of that regulation and Article 17(1) of the Basic Food Regulation.

It is for the referring court to examine, in the light of the specific circumstances, the extent to which that applies for each of the rules in Annex II to which it has referred. Thus, the mere discovery of traces of pests does not, in principle, permit the general conclusion that there has been a breach of the obligation to arrange the premises in such a way as to allow good hygiene practices, including contamination prevention – and pest control in particular – to be implemented. Paragraph 2(c) of Chapter I of Annex II to the Food Hygiene Regulation. In the present case, such a breach might be found, however, not least because, according to the request for a preliminary ruling, the Belgian authorities have on a number of occasions criticised the lack of a system of checks on receipt of goods, at least at certain of the branches concerned. See point 18 of this Opinion.

On the other hand, the requirement that contamination must be avoided by the cleaning and, as the case may be, the disinfection of items coming into contact with food, and with sufficient frequency to avoid any risk of contamination, Paragraph 1(a) of Chapter V of Annex II to the Food Hygiene Regulation. is formulated like an obligation as to the result to be achieved. In the present case, subject to confirmation by the referring court, a breach is obvious, since a risk of contamination did not only appear, but even materialised.

The same applies to the requirements relating to the storage of food in conditions adequate for preventing any harmful deterioration and for protecting it from any contamination, to the protection of food against any contamination liable to render it unfit for human consumption, injurious to health or contaminated in such a way that it could not reasonably be considered suitable for consumption in that state, and to the putting in place of adequate procedures to control pests. Paragraphs 2, 3 and 4 of Chapter IX of Annex II to the Food Hygiene Regulation.

In addition, as several parties to the proceedings maintain, there also seems to be, in this case, a breach of the obligation to keep the premises through which food passes clean and maintained in good repair and condition. Paragraph 1 of Chapter I of Annex II to the Food Hygiene Regulation.

An infringement of the provisions of the Food Hygiene Regulation might at most be excluded in cases of force majeure , external cause or unavoidable mistake mentioned by the referring court, that is to say, in circumstances outside the control of the party by whom it is pleaded. See, to that effect, judgment of 25 January 2017 , Vilkas ( C‑640/15 , EU:C:2017:39 , paragraph 53 ). In such cases, it is for the food business operator concerned to demonstrate the existence of such circumstances and to prove that the contamination by pests was unavoidable despite compliance with the applicable hygiene rules. Such circumstances are not apparent in the present case, subject to an examination by the referring court.

The Court has admittedly held that, when examining an infringement of Annex II to the Food Hygiene Regulation, the HACCP principles referred to in Article 5 of that regulation, which set out the good practice and hygiene control procedures and to which Aldi and the referring court have referred in the main proceedings, must not be deprived of their effectiveness. It is thus necessary to take into account the measures taken by an operator in accordance with those provisions in order to prevent the risks of contamination. Judgment of 6 October 2011 , Albrecht and Others ( C‑382/10 , EU:C:2011:639 , paragraph 21 et seq.). In the proceedings at issue, however, the subject matter of the dispute was an abstract risk of contamination. In the case at hand, conversely, it is apparent from the request for a preliminary ruling that massive and lasting contaminations have already occurred.

In those circumstances, it would be contrary to the effective implementation of EU food hygiene law if, in order to find an infringement of the Food Hygiene Regulation, the competent monitoring authority had to prove that the food business operator concerned has not complied with the applicable hygiene rules.

In accordance with Article 1(1)(a) of the Food Hygiene Regulation, primary responsibility for food safety rests with the food business operator. As recital 30 of the Basic Food Regulation indicates, the food business operator is best placed to ensure that the food that it supplies is safe.

In order to attain the objective of the food hygiene legislation, namely a high level of protection of the life and health of consumers, See recitals 1 and 7 of the Food Hygiene Regulation. Article 14(1) of the Basic Food Regulation prohibits the placing on the market of food which is unsafe. In accordance with paragraph 2 of that provision, food is deemed to be unsafe if it is considered to be injurious to health or unfit for human consumption because of contamination. In accordance with Article 14(5) of the Basic Food Regulation, in determining whether any food is unfit for human consumption, regard shall be had to whether the food is unacceptable for human consumption according to its intended use, for reasons of contamination, whether by extraneous matter or otherwise, or through putrefaction, deterioration or decay . In accordance with Article 2(1)(f) of the Food Hygiene Regulation, ‟contamination means the presence or introduction of a hazard’. According to Article 3(14) of the Basic Food Regulation, ‟hazard” means a biological, chemical or physical agent in, or condition of, food or feed with the potential to cause an adverse health effect .

Subject to an examination by the referring court, the food contaminated by the traces of pests discovered in this case became unfit for human consumption because of that contamination and was already for the most part at the stage of being placed on the market.

The Court has held that, as regards the objective of not placing on the market food that is thus contaminated, food business operators have an obligation as to the result to be attained. See, to that effect, judgments of 13 November 2014 , Reindl ( C‑443/13 , EU:C:2014:2370 , paragraph 28 ), and of 12 September 2019 , A and Others ( C‑347/17 , EU:C:2019:720 , paragraphs 58 to 60 ).

As the Court has also held, it follows that EU law does not even preclude a system of objective liability of food business operators. In the case in question, such an operator was prosecuted for having placed contaminated food on the market, even though it had been produced and vacuum packed by a different undertaking. Judgment of 13 November 2014 , Reindl ( C‑443/13 , EU:C:2014:2370 , paragraphs 18 and 34 to 43 ). See also, to that effect, judgment of 9 February 2012 , Urbán ( C‑210/10 , EU:C:2012:64 , paragraphs 47 and 48 and the case-law cited).

It follows that, in a case such as the present one, where, subject to an examination by the referring court, unsafe food has been placed on the market owing to a breach of the applicable hygiene rules, demonstrated by massive and persistent traces of pests, it is all the more justified to prosecute the food business operator in that regard, without the authority having further to prove that the relevant hygiene rules have not been observed.

It is for the court having jurisdiction to assess, having regard to the nature and gravity of the penalty actually imposed in this case, whether that penalty is effective, proportionate and dissuasive, as Article 17(2) of the Basic Food Regulation requires. It is at that stage (and not upon the finding of the existence of an infringement) that it may, where appropriate, take into consideration the pest control measures taken by Aldi and relied on in its defence.

On the basis of those considerations, I propose that the Court answer the question referred for a preliminary ruling by the Cour de cassation (Court of Cassation, Belgium) as follows: Article 4(2) of, and paragraph 2(c) of Chapter I, paragraph 1(a) of Chapter V and paragraphs 2, 3 and 4 of Chapter IX, of Annex II to, read in conjunction with Article 3 of, Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs, as last amended by Commission Regulation (EU) 2021/382 of 3 March 2021 , and Article 14(1) and Article 17(1) of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, as last amended by Commission Delegated Regulation (EU) 2024/908 of 17 January 2024 , must be interpreted as meaning that contamination by pests found on several occasions over several months, rendering food unfit for human consumption, in, on and in the immediate vicinity of food which is at the stage of being placed on the market, is capable of proving that a food business operator has failed to fulfil its obligations under the hygiene rules provided for by food hygiene legislation.