Following the recent horsemeat fraud, EU Commissioner Tonio Borg has announced that tighter controls and dissuasive sanctions will be included in the forthcoming review of the EU official food and feed controls Regulation. The proposal would require Member States to establish financial penalties and implement permanent specific control requirements for newly identified risks. The measures are intended to offset intentional violations of food chain rules.

Background

The Official Controls Regulation (EC) No 882/2004 has been in place since 1 January 2006. In 2009 the European Commission published a report on the implementation of the Regulation. The evaluations carried out revealed a need to clarify the legal framework related to official controls and provide for an integrated and harmonised approach along the food chain, particularly related to financing and horizontal simplification. In 2010 a proposal for a review of the Regulation was initiated with the objective to strengthen the enforcement mechanisms of the relevant EU rules and enable a more efficient implementation of a harmonised framework. As the horsemeat fraud came to light, the European Commission announced, on 28 February 2013, its intention to affirm proper controls and dissuasive sanctions against intentional violations of food chain rules by integrating these into the above mentioned review process.

What is likely to change?

The responsibility for enforcing food chain legislation currently lies primarily with EU Member States. Indeed, EU Member States are required to establish a system of official controls to verify compliance by operators with applicable rules and sanctions. However, the European Commission now plans to propose a number of measures that are aimed at tightening  existing rules: 

  • where financial penalties are used in relation to intentional violations of food chain law, they should be at a level which is sufficiently dissuasive and higher than the economic gain expected from the fraud;
  • Member States shall include in their control plans, and perform, regular mandatory unannounced official controls (including inspections and testing) directed at combating food fraud;
  • the Commission may impose (not only recommend) coordinated testing programmes in specific cases, in particular in case of fraud.

With regard to the financing of official control activities, Member States should in principle allocate adequate financial resources. However, this objective is currently not met throughout the EU and the review will seek to address this concern by:

  • increasing the scope of mandatory fees to more sectors along entire food chain;
  • providing measures that ensure full cost recovery is achieved for the inspection activities.

EU Regulations are directly applicable in the EU Member States and do not require transposition into national law. EU provisions on official controls thereby constitute de facto national law and can be relied upon in the event of non-compliance or fraud.

Other proposed revisions

The revised Official Controls Regulation will likely also address:

  • inconsistencies and legal gaps, in particular as regards controls carried out for plant health. In addition, ambiguity in relation to its scope for products of relevance for the food chain which are not food (e.g. food contact materials, animal by-products, plant reproductive material, etc.);
  • inefficiencies resulting from the lack of uniform implementing rules in some areas;
  • difficulties faced by Member States in using cooperation mechanisms in and between Member States when a trans-boundary enforcement action is required;
  • the administrative burden on the Commission and the Member States authorities regarding the planning and reporting requirements; and
  • the full integration of tools being developed in recent years such as TRACES (Trade Control and Expert System).

Next steps and potential impact

The review of the Official Controls Regulation is still at a very early stage. The European Commission is planning to have the text of the proposal ready by June 2013. Once tabled, the proposal will need to be adopted by the European Parliament and the European Council in order to become law. This process is likely to take at least 18 -24 months. However, should the envisaged measures come into effect, they are likely to have significant repercussions on both Member State authorities and business operators at all levels of the food and feed chain.

National authorities would need to ensure that the requirements of the revised Regulation are met and properly enforced through financial sanctions and increased official controls. This would undoubtedly impact on national budgets.

Likewise, operators may be faced with increased costs going forward as a result of more frequent official controls and related fees. Food/feed business operators would have an interest in carefully evaluating any upcoming changes, since, in order to continue being able to "pass the test" and avoid sanctions and bad PR, new legislation in this area may require companies to review internal compliance programmes as well as contractual relations with suppliers and customers.