This summary constitutes no part of the Judgment but is prepared by the clerks of the Taiwan Constitutional Court only for the readers’ reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph.
Original Case Assignment No.: 110-Hsien-Yi-4
Argued on February 22, 2022.
Decided and Announced on May 13, 2022.
In this Judgment, the Taiwan Constitutional Court (TCC) ruled that the establishment of permissible tolerance/maximum residue limit (hereinafter “MRL”) for ractopamine in meat products is within the competence of the central legislative body. On this account, the TCC ruled that the actions of the Ministry of Health and Welfare (MOHW) and the Executive Yuan disapproving or rendering invalid the disputed self-government ordinances (which established stricter standards on county/ special municipality levels) are constitutional.
In December 2020, the Legislative Yuan approved the executive order to allow the import of U.S. pork containing ractopamine residue that conforms to the permissible tolerance of 0.01ppm (and 0.04ppm for pig kidneys and liver) from 2021 onwards. To bar the executive order, a referendum (Referendum No.18) was held on December 18, 2021, on a national level. The referendum's result did not achieve the electorate threshold. As a consequence, several local governments tried to ban pork with ractopamine residue through self-government ordinances (which are regulations passed by the local legislative body), in which they adopted a zero-tolerance standard.
The petitioners of this case are the Chia-Yi City Council, Taipei City Council, Tainan City Council, Taichung City Council, and Taoyuan City Council. Provisions of the self-government ordinances passed by the petitioners, which ban or punish selling pork products containing ractopamine residue, were declared invalid or disapproved either by MOHW or the Executive Yuan respectively. The petitioners lodged petitions for constitutional review, arguing that the actions of MOHW and the Executive Yuan had violated their right to self-government.
The cases were consolidated due to the similarities in legal issues and were argued on February 22, 2022.
Summary of the Judgment
- The establishment of the permissible tolerance/maximum residue limit (hereinafter "MRL") for beta-agonists in imported meat and other meat-related products, is within the competence of the central legislative body.
- The Executive Yuan and the Ministry of Health and Welfare did not exceed the extent of central supervision of local self-government matters prescribed by the Constitution when they rendered invalid or disapproved the self-government ordinances passed by the petitioners.
Chapter 10 of the Constitution and Paragraph 1, Article 9 of the Additional Articles to the Constitution (hereinafter "AAoC") have stipulated the legislative and enforcement matters of the central, provincial, and county authorities expressly. As for the matters regarding the self-governance of municipalities under the direct jurisdiction of the Executive Yuan, although not stipulated expressly in the Constitution or the AAoC, are authorized to the Legislative Yuan to prescribe by law under Article 118 of the Constitution. 【52】
When it comes to the issue regarding the division of competences between central and local authorities, one shall refer to the texts of the Constitutional and the AAoC. When there is no explicit text or feasible interpretation as to the nature of the disputed matter, whether it is of central or local competence, the Legislative Yuan may decide on this issue through political means under Article 111 of the Constitution. 【53】
In terms of establishing the MRL for ractopamine in imported meat (and other related products), Paragraphs 2 and 4, Article 15 of the Act Governing Food Safety and Sanitation (hereinafter the “Food Safety Act”) have authorized MOHW as the central competent authority, who may adopt a permissible MRL other than a zero-tolerance standard. However, the petitioners have adopted the zero-tolerance standard in their self-government ordinances and claimed that the establishment of the stated standard fell within the scope of local self-government legislative matters guaranteed by the Constitution. This leads to controversy as to whether the impugned competence is shared or exclusive to a certain authority. 【55, 56】
As the Constitution adopts a unitary system of government, matters exclusive to the central legislative body cannot be decided separately by self-government ordinances promulgated by the local government. In said situation, the local government may only, with authorization from the central government and following central regulations, formulate relevant self-government ordinances or enforcement rules. Furthermore, self-government matters guaranteed by the Constitution, are still constrained by the principle of legal supremacy (the doctrine of supremacy of the Constitution) and must conform to the Constitution and central regulations under Article 125 and Paragraph 2, Article 108 of the Constitution . Said principle of legal supremacy also applies to the self-government legislation established by the special Executive-Yuan-governed municipalities (hereinafter "special municipalities").【62】
Every self-government entity has its legal jurisdictions, be it a county, city, or special municipality. Said jurisdiction constitutes the limitation of its legislative and executive powers. Whether the self-governance entities have exceeded their jurisdictions and regulated people, objects, and affairs outside their jurisdictions in their ordinances, shall be decided not only on the textual meaning but also on the normative and practical effects of the ordinances. Even though the self-government ordinances only regulate the local citizens and affairs in text, if their application brings direct and substantive effect to matters outside the jurisdiction, the self-government ordinance shall be deemed of cross-regional or national nature. In said instance, the legislation and enforcement of the matters involved shall not be entrusted completely to the competence of the local self-governance entities. 【65,66】
In the matters of selling domestic or imported meat products in the whole country, allowing local governments to establish their standards of MRL in food products obtained from an animal will inevitably bring a direct and substantial effect on commercial activities such as vending and shipping. Therefore, food safety and sanitation standards shall be the same nationally. Said standard involves "commerce" and "public health" and shall be regulated by the central legislative body under Subparagraphs 3 and 18, Paragraph 1, Article 108 of the Constitution. 【69】
Instead of authorizing the local governments to erect their own standards, Paragraph 2, Article 15 of the Food Safety Act stipulates that "the standards governing the permissible tolerance of pesticide or veterinary drug residue (…) shall be prescribed by the central competent authority through consultation with the relevant authorities". MOHW's announcements on MRL of ractopamine in imported beef and pork are authorized expressly by the Food Safety Act. The announcements are within the category of matters under central legislative and executive power per Article 108 of the Constitution.【70】
The disputed self-government ordinances passed respectively by the petitioners, although only regulating the citizens and affairs within their jurisdiction in text, will bring direct and substantial extraterritorial impact in practice, posing further constraints on cross-regional or national matters. Therefore, the disputed self-government ordinances have exceeded the extent of local self-government, consequently violating central regulations such as Paragraphs 1 (Subparagraph 5), 2 and 4, Article 15 of the Food Safety Act, and Subparagraphs 3 and 18, Paragraph 1, Article 108 of the Constitution. Under Paragraph 1, Article 30 of the Local Government Act, the authorities competent in supervising local government matters, in this case, shall disapprove or declare invalid the disputed self-government ordinances. 【72】
In addition, Article 148 of the Constitution stipulates that "Within the territory of the Republic of China, all goods shall be permitted to move freely from place to place." The central and local government shall not contradict the aim of said article in implementing its public powers. Furthermore, concerning the obstacles interfering with freedom of trade and commerce, either de jure or de facto, the government shall adopt necessary measures to remove them. As meat products containing ractopamine are imported goods or food deemed permissible by the central government, the meat products shall also be protected by Article 148 of the Constitution. By establishing the prohibition and punishment on the selling meat products containing ractopamine, the disputed self-government ordinances have not only blocked the commercial activities of certain importers within their jurisdiction completely but have also restricted the consumers' autonomous decision on whether to use meat products containing ractopamine, rendering said meat products nearly impermissible in their jurisdictions. The disputed self-ordinances passed by the petitioners are not supported by the spirit of dividing competence best fitted for the purpose of local governance under the Constitution.【82, 83】
Justice Jau-Yuan HWANG penned this Judgment.
Justice Chong-Wen CHANG and Justice Sheng-Lin JAN each filed a concurring opinion.
Justice Chen-Huan WU filed an opinion dissenting in part and concurring in part.
Justice Ming-Cheng TSAI filed a dissenting opinion.
 Which is under the title “Powers of the Central and Local Governments”.
 Paragraph 1, Article 9 of the AAoC: “The system of self-government in the provinces and counties shall include the following provisions, which shall be established by the enactment of appropriate laws, the restrictions in Article 108, Paragraph 1, Subparagraph 1; Article 109; Article 112 through Article 115; and Article 122 of the Constitution notwithstanding:
(1) A province shall have a provincial government of nine members, one of whom shall be the provincial governor. All members shall be nominated by the president of the Executive Yuan and appointed by the president of the Republic.
(2) A province shall have a provincial advisory council made up of a number of members, who shall be nominated by the president of the Executive Yuan and appointed by the president of the Republic.
(3) A county shall have a county council, members of which shall be elected by the people of the said county.
(4) The legislative powers vested in a county shall be exercised by the county council of the said county.
(5) A county shall have a county government headed by a county magistrate who shall be elected by the people of the said county.
(6) The relationship between the central government and the provincial and county governments.
(7) A province shall execute the orders of the Executive Yuan and supervise matters governed by the counties.”
 Article 118 of the Constitution: “The self-government of municipalities under the direct jurisdiction of the Executive Yuan shall be prescribed by law.”
 Article 111 of the Constitution: “Any matter not enumerated in Articles 107, 108, 109 and 110 shall fall within the jurisdiction of the Central Government, if it is national in nature; of the province, if it is provincial in nature; and of the hsien (translator’s note: county), if it concerns the hsien. In case of dispute, it shall be settled by the Legislative Yuan.”
 Paragraph 2, Article 15 of the Food Safety Act: “The standards governing the permissible tolerance of pesticide or veterinary drugs residue, and the nuclear fallout or radioactivity mentioned in Subparagraphs 5 and 6 of the preceding paragraph shall be prescribed by the central competent authority through consultation with the relevant authorities.”
 Paragraph 4, Article 15 of the Food Safety Act: “Beta-agonists shall not to be detected via tests in domestic and foreign meat products and other meat-related products, with the exception that the central competent authority may set a permissible tolerance of Beta-agonists after assessing risks in accordance to the citizens’ diet habits.”
 Article 125 of the Constitution: “Hsien (translator’s note: county) rules and regulations that are in conflict with national laws, or with provincial rules and regulations, shall be null and void.”
 Paragraph 2, Article 108 of the Constitution: “With respect to the various items enumerated in the preceding paragraph, the provinces may enact separate rules and regulations, provided these are not in conflict with national laws”; the “various items enumerated in the preceding paragraph” stated in Paragraph 2 include commerce, public health…etc.
 Subparagraph 3 and 18, Paragraph 1, Article 108 of the Constitution: “In the following matters, the Central Government shall have the power of legislation and administration, but the Central Government may delegate the power of administration to the provincial and hsien governments:
3. Forestry, industry, mining and commerce;
18. Public health”
 Subparagraph 5, Paragraph 1, Article 15 of the Food Safety Act: “Foods or food additives with any one of the following circumstances shall not be manufactured, processed, prepared, packaged, transported, stored, sold, imported, exported, presented as a gift or publicly displayed:
5. those with pesticide or veterinary drugs residue exceeding the permissible tolerance;”