European Union Law: Introduction

1              Introduction

The United Kingdom­­ became a member of the European Economic Community (EEC), as it was then known, on 1 January 1973 and just a month over 48 years later the UK left the European Union (EU) on 31 January 2021.

As long ago as 1990 some 80 per cent of food law was made in Europe, today 98% of food legislation is harmonised at EU level[1] so it can be no surprise that the passage of 48 years leaves Great Britain with a body of food law which is rooted in EU law. Almost all this law has been incorporated into domestic law as a body of law known as ‘retained EU law’.

Despite the years of EU membership, it appears not to have resulted in any widespread understanding of how the EU made law, but a little understanding will help to understand current day food law in Great Britain. A little history and some of the basics follow and, in the interests of simplicity, all future references will be to the European Union or EU.[2]

The EU is an economic and political partnership now comprising 27 European countries. It has been built on the principle of a ‘common market’, a “single Europe-wide market in which people, goods, services, and capital move among Member States as freely as within one country.”[3] This principle was enshrined in Article 3 of the Treaty of Rome, backed up by Article 30 which prohibited “quantitative restrictions on imports and all measures having equivalent effect”. There is no reference in the Treaty to consumer protection or public health. These objectives were added by the Single European Act in 1986 and the Maastricht Treaty in 1992.

In the early days the Commission’s approach was, not surprisingly, focussed on Article 3 obligations and the free movement of foodstuffs throughout the common market. EU food legislation was made under what is now Article 115 of the Treaty on the Functioning of the European Union[4] which requires the EU Council to act unanimously on a proposal from the Commission in adopting new laws.

 

2             Free Movement of Goods the Dominant Underlying Principle

A number of cases in the 1970s, following the United Kingdom’s membership of the EU, involved foodstuffs, including the landmark Cassis de Dijon[5] case in 1979 which established the principle that a food product produced lawfully in one Member State should be permitted to be sold in another. These cases led the Commission to introduce a new approach to EU food law set out in a Commission Communication in 1985 entitled Completion of the Internal Market: Community Legislation on Foodstuffs.[6] The Communication identified the following as matters requiring legislation:

1. Public health.
2. Food additives.
3. Materials and articles in contact with foodstuffs.
4. Foodstuffs for particular nutritional uses.
5. Processes for the manufacture or treatment of foods.
6. The need for consumer information and protection in matters other than health.
7. Labelling of food.
8. Fair trading.
1. Compositional rules.

There followed Directives on additives, labelling foods for particular nutritional needs and hygiene. A further Commission Communication in 1989 entitled The Free Movement of Foodstuffs within the Community[7] sought to provide further clarification. Notwithstanding this progress, Raymond O’Rourke, a leading food lawyer and writer, summed up the position:

Essentially though, EU food law in the run-up to the establishment of the Single Market in 1992 was still concentrated on questions of trade and free movement of goods. Consumer protection and public health aspects of food law were playing second fiddle to aspects of trade. Indeed during this time there were often calls for the deregulation of EU food law back to Member States and EU legislation relating to food was subject to criticism of over-regulation, incoherence, fragmentation and lack of transparency and innovation.[8]

 

3             EU Food Law Comes of Age

In the wake of the BSE crisis in the 1990s came the Green Paper[9] on food law published by the Commission in 1997. The Green Paper identified, as a starting point for discussion, six basic goals for EU food law:

1. To ensure a high level of protection of public health, safety and the consumer.
2. To ensure the free movement of goods within the internal market.
3. To ensure that the legislation is primarily based on scientific evidence and risk assessment.
4. To ensure the competitiveness of European industry and enhance its export prospects.
5. To place the primary responsibility for safe food on industry, producers and suppliers, using hazard analysis and critical control points (HACCP) type systems, which must be backed up by effective official control and enforcement.
6. To ensure the legislation is coherent, rational and user friendly.[10]

The Green Paper proposed a number of practical measures, including the development of a European food policy, but it was to take another White Paper[11], which proposed the creation of an independent European Food Safety Authority (EFSA) and a wide range of other measures, before the final shape of EU food law began to crystallise. The ongoing BSE crisis, public concern over GM foods and the dioxin contamination scandal in Belgium all contributed to the imperative that EFSA be an independent body, something the Commission had earlier resisted. Alongside EFSA came new rules on food labelling (including allergens), nutritional and health claims, a revamp of food hygiene and new laws on GM foods. These changes were brought about by general food law Regulation (EC) 178/2002 which, in Chapter II, set out General Principles of EU Food Law and put EU food law on a par with other significant bodies of EU law. The principles (set out in Articles 5 to 10) can be summarised:

1. Food law shall pursue one or more of the general objectives of a high level of protection of human life and health and the protection of consumers' interests, including fair practices in food trade, taking account of, where appropriate, the protection of animal health and welfare, plant health and the environment.
2. Food law shall be based on risk analysis in which risk assessment is based on the available scientific evidence and undertaken in an independent, objective and transparent manner. Risk management shall take into account the results of risk assessment and, in particular, the opinions of EFSA.
3. Where, following an assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary (but proportionate) to ensure a high level of health protection may be adopted.
4. Food law shall aim at the protection of the interests of consumers and shall provide a basis for consumers to make informed choices in relation to the foods they consume.
5. There shall be open and transparent public consultation, directly or through representative bodies, during the preparation, evaluation and revision of food law.
6. Where there are reasonable grounds to suspect that a food or feed may present a risk for human or animal health, public authorities shall take appropriate steps to inform the general public of the nature of the risk to health, identifying to the fullest extent possible the food or feed, or type of food or feed, the risk that it may present, and the measures which are taken or about to be taken to prevent, reduce or eliminate that risk.

Articles 18 and 19 together make further provision:

1. The traceability of food, feed, food-producing animals, and any other substance intended to be, or expected to be, incorporated into a food or feed shall be established at all stages of production, processing and distribution.
2. If a food business operator considers or has reason to believe that a food which it has imported, produced, processed, manufactured or distributed is not in compliance with the food safety requirements, it shall immediately initiate procedures to withdraw the food in question from the market.

The general food law Regulation (EC) 178/2002 also sets up an independent agency responsible for scientific advice and support, the European Food Safety Authority (EFSA). Moreover, it creates the main procedures and tools for the management of emergencies and crises as well as the Rapid Alert System for Food and Feed (RASFF).

In 2004 food hygiene throughout the EU came to be governed by three central regulations: Regulation (EC) 852/2004 on the hygiene of foodstuffs, Regulation (EC) 853/2004 laying down specific hygiene rules for food of animal origin and Regulation (EC) 854/2004 (now replaced and repealed by Regulation (EU) 2017/625) laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption.

Regulation (EC) 852/2004 lays down general rules for food business operators on the hygiene of foodstuffs, taking account of the following principles:

1. Primary responsibility for food safety rests with the food business operator.
2. Food safety throughout the food chain, starting with primary production, must be ensured.
3. The importance, for food that cannot be stored safely at ambient temperatures, particularly frozen food, to maintain the cold chain.
4. The general implementation of procedures based on the HACCP principles, together with the application of good hygiene practice, should reinforce food business operators' responsibility.

In 2005 the agenda for the development of EU food law moved into what some saw as going beyond food safety and having a greater focus on nutrition. Raymond O’Rourke also predicted a more diverse future development of the law and saw:

[…] changes in the CAP, the market for organic food products, the Slow Food movement’s desire to protect traditional food production methods and food cultures as being those “forces” moving EU food law in a new direction.[12]

In 2006 the EU moved to provide a comprehensive system for the regulation of health claims in connection with food and introduced Regulation (EC) 1924/2006 on nutrition and health claims on foods.

A health claim is any statement about a relationship between food and health. EFSA is responsible for evaluating the scientific evidence in support of a health claim. Commission Regulation (EU) 2012/432 established a list of permitted health claims which may only be used in the circumstances prescribed in the list.

The law concerning general food labelling is almost exclusively to be found in Regulation (EU) 1169/2011 on the provision of food information to consumers which came into effect on 13 December 2014.

The stated aim is to “pursue a high level of protection of consumers’ health and interests by providing a basis for final consumers to make informed choices and to make safe use of food, with particular regard to health, economic, environmental, social and ethical considerations.”[13]

The provisions of Regulation (EU) 1169/2011 concerning mandatory nutrition declarations[14] came into force on 13 December 2016.

 

5              The Future

The further development of EU food law will always have an influence on the UK, but no longer can the EU be blamed for increased levels of bureaucracy. The regulation of food supply will increase in the UK, and along with it the associated bureaucracy, but it will in future be down to domestic regulation.

In both the EU and the UK, the focus of food law is likely to centre on nutrition and health, in particular obesity, and ensuring sustainable food production. The latter includes reducing food loss and waste, and fraud along the food supply chain. The approach to be adopted is set out in A Farm to Fork Strategy: for a fair, healthy and environmentally-friendly food system.[15]