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Civil courts assess the recommendations made by the BfR in the EHEC crisis in 2011 as lawful

20/2015, 07.08.2015

Appeals in the proceedings of the Court of Appeal withdrawn - rulings of Berlin District Court from 06 June 2014 legally binding

Berlin District Court had in the first instance dismissed two complaints from vegetable producers who sued the Federal Republic of Germany and the German Federal Institute for Risk Assessment (BfR) for damages. The background to the damages claimed were losses which the complainants attributed to a reduction in sales of vegetables in connection with of the EHEC crisis. Following a statement by Berlin District Court in a verbal appeal hearing to the effect that the food consumption recommendations of the federal institutions during the EHEC investigations did not constitute unlawful behaviour, the complainants withdrew their appeals. This means that the first-instance rulings remain legally binding.

"The outcome of the legal proceedings confirms our policy of comprehensive communication of risks in crisis situations", BfR President Professor Dr Dr Andreas Hensel commented. "The EHEC crisis posed difficult challenges for consumers, producers and traders as well as government institutions. In the face of such serious damage and risks to health, the authorities must be able to express adequate provisional recommendations on the basis of the latest state of knowledge. The court rulings have shown that this approach is warranted, and the BfR will continue to adopt it in future crises as well."

At the beginning of the EHEC O104:H4 outbreak in Germany in the early summer of 2011, the BfR had issued a joint statement with the Robert Koch Institute which recommended that until further notice, tomatoes, cucumbers and leaf lettuce should, especially in North Germany, not be eaten raw. This recommendation was based on the result of an epidemiological study conducted in Hamburg at the end of May 2011 which indicated a connection between these foods and the cases of illness reported.

In the further course of the outbreak investigation, fenugreek seeds imported from Egypt and used for sprout production were identified as the cause of the outbreak.

The complainants were vegetable producers growing rocket and other vegetables. Their claims for damages were based on the argument that with their statement regarding tomatoes, cucumbers and leaf lettuces, the government institutions had breached their official duties and caused damage which could be remedied through compensation. The District Court had dismissed the complaints in the first instance and confirmed the authority of the Federal Government and the federal institutions to provide information to citizens in case of national crises. In view of the severity of illness caused by EHEC at the time including serious progression of the disease (855 people became ill with haemolytic uremic syndrome (HUS), whereas 2,987 developed gastroenteritis) as well as 53 fatalities, it was argued that the provision of information was adequate in this concrete instance as well. In addition, it was stated that the federal institutions had adequately drawn attention to existing uncertainties and the reasons for them when assessing the crisis. The Court of Appeal agreed with this evaluation and published it in its press release on 14 July 2015.

The reference numbers of the rulings of the Berlin District Court are:

  • 28 O 158/13
  • 28 O 104/13

About the BfR

The German Federal Institute for Risk Assessment (BfR) is a scientific institution within the portfolio of the Federal Ministry of Food and Agriculture (BMEL) in Germany. It advises the Federal Government and Federal Laender on questions of food, chemical and product safety. The BfR conducts its own research on topics that are closely linked to its assessment tasks.

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