Abstract
With the introduction of Regulation 2017/625 on official controls for the verification of compliance with food and feed law, the European Union moves towards the harmonisation of public enforcement regimes at the EU level and adopts its first EU rules for the enforcement of Food Law requirements in the digital single market. This chapter describes and critically discusses the new provisions which currently govern public enforcement of food legislation online.
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Notes
- 1.
Council Directive 89/397/EEC of 14 June 1989 on the official control of foodstuffs, O.J. L 186 (1989).
- 2.
Art. 1(2) of 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, O.J. L 31 (2002).
- 3.
Defined as ‘the natural or legal persons responsible for ensuring that the requirements of Food Law are met within the food business under their control,’ in Art.3(3) of the General Food Law.
- 4.
The concept of competent authority refers to those authorities of a Member State responsible for the organisation of official controls (and of other official activities) on food and feed. The use of the term 'competent authorities' (plural) ‘designates a subordinate concept which includes all those authority/authorities which is/are competent in the ten areas’ of Union agri-food chain law that fall within the scope of the Regulation. See Menditto et al. (2017).
- 5.
See Art. 17 of Regulation (EC) No 178/2002.
- 6.
Scholten (2017), p. 198.
- 7.
‘Official controls’ are defined in Art. 3 of Regulation (EU) 2017/625 on official controls and other official activities performed to ensure the application of food and feed law, rules on animal health and welfare, plant health and plant protection products. It amends Regulations (EC) No 999/2001, (EC) No 396/2005, (EC) No 1069/2009, (EC) No 1107/2009, (EU) No 1151/2012, (EU) No 652/2014, (EU) 2016/429 and (EU) 2016/2031 of the European Parliament and the Council; Council Regulations (EC) No 1/2005 and (EC) No 1099/2009, and Council Directives 98/58/EC, 1999/74/EC, 2007/43/EC, 2008/119/EC and 2008/120/EC; and it repeals Regulations (EC) No 854/2004 and (EC) No 882/2004 of the European Parliament and the Council, Council Directives 89/608/EEC, 89/662/EEC, 90/425/EEC, 91/496/EEC, 96/23/EC, 96/93/EC and 97/78/EC, and Council Decision 92/438/EEC, O.J. L 95/1, as the ‘activities performed by the competent authorities, or by the delegated bodies or the natural persons to which certain official control tasks have been delegated in accordance with this Regulation, in order to verify’ compliance with Food Law by the operators.
- 8.
Regulation (EU) 2017/625.
- 9.
The term ‘e-nforcement’ is used to identify the control activities and authorities’ powers which shall only be used regarding online retail (for instance, the order of cessation of online activities). See Chap. 1.
- 10.
Nieto Martín et al. (2016), p. 71.
- 11.
See Art. 17 of Regulation (EC) No 178/2002 (2002).
- 12.
Term referring to those samples that have been taken, handled and labelled ‘in such a way as to guarantee both their legal and analytical validity,’ as described in 16(3) of Regulation 882/2004, and now Art. 34(5) of the Official Control Regulation.
- 13.
See Preamble of Council Directive 89/397/EEC.
- 14.
See Adriaanse et al. (2008), pp. 86–89.
- 15.
Regulation (EC) No 882/2004 on official controls performed to ensure the verification of compliance with food and feed law, animal health and animal welfare rules, O.J. L 164 (2004) (hereinafter, ‘Compliance Regulation’).
- 16.
Before the adoption of the Compliance Regulation, Council Directive 89/397/EEC only laid down the general principles for the performance of official control, ignoring organisation issues, and avoiding any indication regarding the measures and sanctions available to competent authorities in the event of non-compliance.
- 17.
In particular, they governed particular issues relating to the inspection of live animals (i.e. Council Directive 95/53/EC fixing the principles governing the organization of official inspections in the field of animal nutrition, O.J. L 265 (1995) and Council Directive 85/73/EEC on the financing of health inspections and controls of fresh meat and poultry meat, O.J. L 32 (1985)) and the methods of sampling and analysis for the official control (i.e. Council Directive 85/591/EEC concerning the introduction of Community methods of sampling and analysis for the monitoring of foodstuffs intended for human consumption, O.J. L 372 (1985)).
- 18.
See EC White Paper on food safety, COM 1999/719 final (2000), p. 3.
- 19.
van der Meulen (2019), p. 625.
- 20.
As analysed by Menditto et al. (2017), the term 'Union agri-food chain legislation' (UAFC legislation), is quoted in the third recital of the Regulation, is ‘neither defined nor mentioned in the substantive provisions, but found 41 more times within the 99 recitals of the act, [and] identifies a comprehensive legal paradigm that will contribute, according to the EU legislator, “to a better functioning of the internal EU market”.’ It is expected to allow authorities to monitor compliance of not only Food Law stricto sensu, but of other legal provisions affecting the workings of the agri-food chain (identified in Art.1(2) of the Official Controls Regulation. In fact,
The Regulation builds to some extent a bridge between these two paths, food safety and the CAP, in the direction of a systemic framework, enhancing the responsibility of the subject which in any way operates within the biological cycle or the environment, regardless of the final goal of such activity, food or otherwise.
See Albissinni (2019), p. 125.
- 21.
Art. 14 of Regulation (EU) No 1169/2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004, O.J. L 304(2011), pp. 18–63.
- 22.
Art.2(17) of Directive 2011/83/EU on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, O.J. L 304/64, (2011), pp. 64–88 (hereinafter, ‘Consumer Rights Directive’ or CRD).
- 23.
Art. 2(2)u of Regulation (EU) No 1169/2011.
- 24.
See European Commission (2018), p. 19.
- 25.
Indeed, Article 1(2) of the Official Controls Regulation states that its rules apply to all ‘controls performed for the verification of compliance with the rules, whether established at Union level or by the Member States,’ regardless of the means of sale. No exception is made for the food products in the digital single market.
- 26.
It must be noted that ‘non-compliance’ only requires a ‘deviation from what is required by the law, (...) regardless of whether the detected non-compliance represents is illicit (administrative offense);’ see Rossi et al. (2020), pp. 126–127.
- 27.
The concept of ‘establishment’ is still defined as ‘any unit of a food business,’ based on Art. 2 of Regulation (EC) No 852/2004 on official controls performed to ensure the verification of compliance with food and feed law, animal health and animal welfare rules, O.J. L 164 (2004).
- 28.
In particular, Art. 31 of the Compliance Regulation dictated that competent authorities were to establish procedures for feed and food business operators to follow when applying for the registration of their establishments and for keeping an up-to-date public list of active business operators.
- 29.
The procedure was to be defined in accordance with Regulation (EC) No 852/2004. Art. 6 of that piece of legislation, which simply states that operators shall notify the authority of each establishments under its control, ‘in the manner the latter requires’ in national law.
- 30.
See European Commission (2018), p. 13.
- 31.
See Art. 6 of Real Decreto 191/2011, sobre Registro General Sanitario de Empresas Alimentarias y Alimentos, BOE 57 (2011).
- 32.
See Agencia Española de Consumo, Seguridad Alimentaria y Nutrición (2017), pp. 3–4.
- 33.
As in Spain, forms require the identification of the business itself (the name and identification number of the business, its address, the name of a representative responsible for the application procedure), the location of the establishment, and nature of the activities it carries out. The German guidance paper for a nationwide framework recommends that application forms require FBOs to tick a box identifying the type of products handled in the establishment (for example, beverages), and the general activity carried out (for example, processing or packing, among others). See Büchter et al. (2011) and Federal Ministry of Food and Agriculture (2012).
- 34.
The Food Standards Agency in the UK produced a model application which requires FBOs to provide its full name and address as well as the name and address of the food business, the location establishment and, like in Germany, ticking a box selecting a type of activity such as retailing, distribution or warehousing, among many others. See Food Standards Agency (2008).
- 35.
See Art. 15 of the Official Control Regulation.
- 36.
In this book, the term ‘jurisdiction’ is used to refer to the area (both substantive and territorial) over which a competent authority has the responsibility to perform official controls.
- 37.
As stated in the last paragraph of Art. 15 of the Official Control Regulation.
- 38.
Mystery shopping (or test purchases) allows competent authorities to purchase a product anonymously, inspecting it and using the evidence gathered for law enforcement purposes. Anonymity in the purchase is required to ensure that the product that is actually delivered has not been purposely chosen by the food business operator. In order to perform mystery shopping, authorities require specific equipment that does not reveal their identity or location. This does not only include special software to ensure anonymity, but also payment methods that are suited to this task.
- 39.
See, for Germany, Schreiber et al. (2015), p. 291.
- 40.
Recital 49 of the Official Controls Regulation openly declared that ‘for the purposes of performing official controls on trade which take place through the internet or other remote means, competent authorities should be able to obtain samples through anonymously placed orders (also known as mystery shopping) which can then be analysed, tested or subject to a verification of compliance.’
- 41.
The 2013 draft indicated that, when samples were taken from products obtained using mystery shopping techniques, authorities were to ‘take all steps to ensure that the operators (...) are informed that such samples are being taken in the context of an official control and, where appropriate, analysed or tested for the purposes of such official control.’ See EC Proposal for a Regulation to ensure the application of food and feed law, rules on animal health and welfare, plant health, plant reproductive material, plant protection products and amending Regulations (EC) No 999/2001, 1829/2003, 1831/2003, 1/2005, 396/2005, 834/2007, 1099/2009, 1069/2009, 1107/2009, Regulations (EU) No 1151/2012, [....]/2013, and Directives 98/58/EC, 1999/74/EC, 2007/43/EC, 2008/119/EC, 2008/120/EC and 2009/128/EC (Official controls Regulation), COM 2013/265 final (2013).
- 42.
In particular, Art. 36(2) of the second draft indicates that FBOs shall be informed ‘once [the competent authorities] are in possession of the samples’ and that such samples ‘have been taken’.
- 43.
See Art. 54 of the Official Controls Regulation.
- 44.
See Europol (2017).
- 45.
Plana et al. (2019), p. 53.
- 46.
See Art. 77 of the Official Controls Regulation.
- 47.
See Art. 54 of the Compliance Regulation and Art. 138 of the Official Controls Regulation.
- 48.
Within the meaning of Art. 2 Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, O.J. L 178 (2000), pp. 1–16 (hereinafter, ‘e-Commerce Directive’).
- 49.
See Art. 138 of Regulation (EU) 2017/625.
- 50.
NTDs allow third parties to file complaints (‘notices’) requesting the elimination (by removal or blocking) of illegal content, including non-compliant e-food offers. In online marketplaces, NTDs are frequently used to require the service provider to eliminate individual offers of products that manifestly do not comply with legal requirements (for instance, because they are counterfeit, or include ingredients or compounds that are prohibited in applicable legislation). See Chap. 2.
References
Adriaanse P, Barkhuysen T, Boswijk P et al (2008) Implementation of EU enforcement provisions: between European control and national practice. Rev Eur Admin Law 1(2):83–97. https://doi.org/10.7590/REAL_2008_02_04
Agencia Española de Consumo, Seguridad Alimentaria y Nutrición (2017) Guía para la clasificación e identificación de las empresas y establecimientos alimentarios. http://www.aecosan.msssi.gob.es/AECOSAN/docs/documentos/seguridad_alimentaria/registro/guia_operadores.pdf. Accessed 1 Nov 2019
Albissinni F (2019) Regulation (EU) 2017/625: official controls, life, responsibilities, and globalization. Eur Food Feed Law Rev 14(2):118–131
Büchter B, Kuhr C, Schreiber GA (2011) Pilotprojekt zur amtlichen Kontrolle des Handels mit Lebensmitteln im Internet. J Consumer Protect Food Safety 3(6):375. https://doi.org/10.1007/s00003-011-0700-9
European Commission (2018) Overview report official controls on internet sales of food in EU member states. Publications Office of the European Union, Luxembourg. https://doi.org/10.2772/57153
Europol (2017) Situation report on counterfeiting and piracy in the European Union. https://www.europol.europa.eu/sites/default/files/documents/counterfeiting_and_piracy_in_the_european_union.pdf. Accessed 16 Sept 2019
Federal Ministry of Food and Agriculture (2012) Leitfaden zur Registrierung von Betrieben nach der Verordnung (EG) Nr. 852/2004 über Lebensmittelhygiene. https://www.landkreis-cuxhaven.de/media/custom/578_4384_1.PDF?1259943398. Accessed 19 Sept 2020
Food Standards Agency (2008) Regulation (EC) No 882/2004 on official controls: guidance in Q&A format for enforcement authorities on the feed and food elements, p. 22. Retrieved from https://www.food.gov.uk/sites/default/files/multimedia/pdfs/offcqaguidancenotes.pdf
Menditto A, Anniballi F, Auricchio B, De Medici D, Stacchini P (2017) Regulation (EU) 2017/625 and the union agri-food chain legislation. Eur Food Feed Law Rev 12(5):406–412
Nieto Martín A, Quackelbeen L, Simonato M (eds) (2016) Food regulation and criminal justice. Maklu-Publishers, Antwerpen
Plana MJ, Baroni MJL, Cabré L (2019) Buying medicines and foods online: bioethical issues. Edicions de la Universitat de Barcelona, Barcelona
Rossi A, Rossi G, Rosamilia A, Renato M (2020) Official controls on food safety: competent authority measures. Italian J Food Safety 9:8607
Scholten M (2017) Mind the trend! Enforcement of EU law has been moving to ‘Brussels’. J Eur Public Policy 24(9):1348–1366. https://doi.org/10.1080/13501763.2017.1314538
Schreiber GA, Liebscher B, Kranz P (2015) Der Online-Handel mit Lebensmitteln – Herausforderung für die Überwachung. Z L R 42:290
van der Meulen B (2019) Enforcement of EU agri-food law. ERA Forum 19:623–641. https://doi.org/10.1007/s12027-018-0532-5
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Plana Casado, M.J. (2021). Regulating Food Official Controls in the Digital Single Market. In: E-FOOD: Closing the Online Enforcement Gap in the EU Platform Economy. Studies in European Economic Law and Regulation, vol 21. Springer, Cham. https://doi.org/10.1007/978-3-030-79504-7_4
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