Notification of Import Health Requirements for US Beef Case

[20-2(B) KCCR 960, 2008Hun-Ma419·423·436 (consolidated), December26, 2008]

In this case, the complainants filed a constitutional complaint, asserting that the revised notification of import health requirements for US beef with less strict standards, publicly announced by the Minister of Agriculture, infringed their basic rights guaranteed in the Constitution. The Constitutional Court denied the complaint, however, holding that the import notification can not be considered as being clearly inappropriate or seriously deficient enough to constitute a violation of the constitutional duty of the State to protect the health and life of its citizens.

Background of the Case

On March 6, 2006, then Agricultural Minister allowed US beef to be imported into Korea by enacting and publicly announcing import health requirements for US beef based on Section 2, Article 34 of the Act on the Prevention of Contagious Animal Diseases. The Korean government, however, totally suspended import and quarantine inspections of US beef on October 2007, pursuant to an outbreak of Bovine Spongiform Encephalopathy (BSE), or so-called mad cow disease in the US, and the discovery of imported US beef which was not compliant with the requirements in the notification. But, after the World Organization for Animal Health (OIE) had formally classified the United States as a controlled risk country for BSE, the Korean and US governments resumed negotiations to revise conditions in the former notification and finally reached an agreement on April 18, 2008. According to the agreement, Korea may allow US beef including bones from cattle less than 30 months of age to be shipped to the country at the initial phase. As a next step, when the US feed ban is enhanced, beef from cattle of 30 months of age and over may also be allowed to enter Korea and the scope of SRMs (Specified Risk Materials) may be adjusted to be narrower than before. Following the agreement, the "Import Health Requirements for US beef" was published in the official gazette on June 26, 2008 as the Ministry for

Food, Agriculture, Forestry, and Fisheries Notification No. 2085-15 (hereinafter the "Notification"). Against this, the complainants filed a constitutional complaint, arguing that the Notification infringed on their constitutionally protected basic rights.

Summary of Decision

The Constitutional Court denied the constitutional complaint regarding the Notification with a vote of 5 (denial) to 3 (dismissal) to 1 (unconstitutionality).

The majority opinion by five Justices held that the complainants except the New Progressive Party met standing requirement to raise the constitutional issue because the Notification has legal relevance to the basic rights of the complainants. But given the international standard by the OIE and current scientific development, the safeguards under the Notification, although not perfect, cannot be concluded clearly inappropriate or seriously deficient enough to constitute a violation of the State's constitutional duty to protect the health and life of its citizen. With the observations, the majority denied the constitutional complaint.

Three Justices delivered the opinion of dismissal on the grounds that in the current situation where no concrete and objective safety hazards emerge, there seems no chance for the Notification to infringe upon the complainants' basic rights; or the Notification itself not only has no possibility to infringe the basic rights, but also does not contain any contents infringing upon the rights.

Also, one Justice held that the Notification is unconstitutional because the articulated requirements are insufficient to protect the basic rights of citizens and therefore, the government failed to execute its constitutional duty toward the people.

1. Majority Opinion

A.The Court should review on its merits if the regulation at issue has legal relevance to the basic right of the complainants.

We opined that beef consumers have a concrete stake in the Notification because it was announced to function as safeguards for

the health and life of beef consumers against whom the contents and purpose of the Notification were directed. Therefore, except the New Progressive Party whose claim was dismissed for lack of standing, the complainants as beef consumers in this case are regarded to have standing because they are likely to be adversely affected by the government's alleged violation of the duty to protect the health and life of its citizens. Also, beef imported from the US passing quarantine inspections pursuant to the requirements in the Notification is expected to enter the Korean market and to be consumed by the people without any concrete administrative measures. Therefore, the complainants are likely to directly and presently suffer infringement on their own basic rights by the Notification which is alleged to violate the government's duty to protect health and life of the people.

B.In deciding whether a nation fails to fulfill its duty to protect the health and life of its citizens, the Court employs so-called 'the principle of prohibition of insufficient protection', meaning that the nation should provide relevant and sufficient protective measures at a minimum to safeguard the people's basic rights. Therefore, the government will be considered to violate its duty to protect the people only when it omits to provide necessary and required protection to the people or although provided, such protection is absolutely inadequate or very insufficient to defend the people's legal interests.

C.It is true that the Notification applies less strict import health requirements than the one before the revision. But the revised Notification also reflects changed situation regarding the import of US beef subsequent to the enactment of the former notification. And the safeguards in the current Notification are introduced on the basis of the contemporary scientific knowledge and the international standard by the OIE. Therefore, we concluded that the Notification, although not containing so-called perfect safeguards, cannot be considered to provide absolutely inadequate or very insufficient measures to protect the health and life of the people as beef consumers and therefore, it does not clearly violate its duty to protect under the Constitution, in light of the foregoing standards.

D. Concurring opinion by one Justice

I basically agree with the conclusion rendered by the majority, but possess different opinion in relation to the reason for the Court to recognize the complainants' standing as general consumers. The extraordinary nature of the subject matter to be regulated by the Notification, in my opinion, should have been particularized in that US beef as food material that can be easily consumed by general people may entail grave risk of fatal disease. But, the majority simply recognizes the complainants' standing in this case on the grounds that they are potential beef consumers, without providing special and concrete considerations which may explain why the complainants' legal rights as general consumers are specifically related to the Notification.

2. Opinion of Dismissal by Three Justices

A. Opinion of Two Justices

In deciding justiciability of a constitutional complaint regarding a State's violation of duty to protect its people against danger incurred not directly by the State but by a third party, we must consider first, before proceeding to review on the merits of the case, whether the alleged danger insisted by the complainants is so concrete and objective as to pose clear challenge to their basic rights.

In this case, there can not be found any possibility for infringement upon the basic rights of the complainants because import of US beef does not pose concrete and objective danger to the health and life of the complainants as current scientific and technological knowledge suggests. Therefore, this case should be dismissed for lack of cause of action.

B. Opinion of One Justice

The purpose of the Notification is to set import requirements for beef. In this regard, it restricts the right to import US beef. It does not contain any contents to infringe on the basic rights of the beef consumers. Rather it aims at setting safety requirements for public

health to protect the citizens who consume US beef, and therefore, the basic rights of ordinary citizens who are not US beef importers are not infringed by the Notification. And even if the Notification arguably does not provide enough safeguards to protect the people from possible danger of BSE caused by beef imported from the US, the health of US beef consumers will not be directly endangered by the Notification itself because the beef consumers are exposed to the danger of BSE through importing and consuming of US beef. Therefore, the complainants do not have standing to file a constitutional complaint because their basic rights seems not to be directly infringed by the Notification.

3. Opinion of Unconstitutionality by One Justice

If food materials, which are closely related to the people's life, bodily security or health such as beef in this case and may possibly cause food safety hazard, are imported in large quantities and spreaded in the market without proper process of quarantine inspections, such contaminated food materials can bring about serious health risk to ordinary consumers, which cannot be revoked or controlled once taken place. In such a case, the State's constitutional duty to protect its citizens may not be fulfilled unless there is a better protective measure other than State action to be adopted without an infringement of third party's rights or public interests, or it is clearly proved that the nation has exhausted all the efforts to minimize danger to life or health of the people to be protected by the Notification.

By enacting the Notification which mitigated import health requirements in a situation under which no other conditions has been changed except the OIE's decision to classify the US as a controlled risk country for BSE, the degree of protection to the food safety hazard possibly caused by US beef is drastically lowered. While there can be found no legitimate reason for the leniency such as big changes in situation or public interest concerns, it is still possible that import and circulation of US beef in Korean market may inflict serious harm upon the basic rights of the citizens regarding their life and bodily security. With these observations, the Notification is in violation of the State's constitutional duty to protect the basic rights of

citizens, failing to provide sufficient protection to the people.

Aftermath of the Case

The heated controversies over the import of US beef which is the background of the decision of the case have received nationwide attention. This case is significant in that it brought the controversies to the end by presenting comprehensive judicial interpretation on the safety concerns regarding import of US beef.