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Enforcement of Food Legislation in the EU 2018

Today (19th December) the European Commission has published its draft proposal for a Regulation laying down rules for the enforcement legislation across the EU - and that includes foods. 

The COM sets out that because of the increasing number of non-compliant products on the market there is continued distortion of competition and increasing risk to the consumer. 

Following on from tis 2017 initiative (COM(2016) 710 final) to combat  non-compliance this new regulation will aim to provide the right incentives to businesses, intensifying compliance checks and promoting closer cross-border cooperation among enforcement authorities. 

It will:  

  • consolidate the existing framework for market surveillance activities; 

  • encourage joint actions by market surveillance authorities from several Member States; 

  •  improve the exchange of information and promote the coordination of market surveillance programmes; 

  • create a strengthened framework for controls on products entering the Union market and for improved cooperation between market surveillance authorities and customs authorities. 

Of interest is the increased reliance and co-operation between member states know as "Mutual Assistance". 

  • requests for information, which enable market surveillance authorities in one Member State to obtain information and evidence from another; and  

  • requests for enforcement measures which enable market surveillance authorities to request their counterparts in another Member State to take enforcement measures.  

The Regulation sets out the procedure for mutual assistance requests. These requests must be sent to the single liaison offices in the Member States of both the requesting and the requested authorities, using standard forms by means of an information and communication system. The Regulation also provides for that evidence obtained and investigation findings in one Member State may be used in another Member State. 

The underlying principle that is that products deemed to be non-compliant on the basis of a decision taken by market surveillance authorities in one Member State are presumed to be non-compliant by market surveillance authorities in another Member State, unless the concerned economic operator can provide evidence to the contrary. The aim of the instruments of mutual assistance is to address instances of non-compliance of a product in cross-border context, and to allow measures to end the non-compliance or the ban the product in all Member States. 

The issue is what will be the penalty of non-compliance given the enforcement of EU law is via the Member State?

The suggestion is in the 1st instance the development of a compliance network that is composed of a board, administrative coordination groups and a secretariat; its tasks are detailed in the Regulation. The role of the Network will be to coordinate enforcement tasks, thereby boosting market surveillance cooperation at EU level. 

The actual penalties are set out in Article 61 of the proposed regulation with the aim of being effective, proportionate and dissuasive to the level of non-compliance. At a minimum the penalty shall offset the economic advantage arising from the infringement. Importantly where repeated infringement has occurred criminal penalties are suggested. 

The proposed date for application of the Regulation is 1st January 2020. 

Source: http://bit.ly/2kHlEuj

Mark Tallon