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Anno X, numero 1 •Gennaio-Marzo 2016
6
EU: has the time come to simplify
food law?
Luis González Vaqué
1.- Introduction
Current EU food legislation is extremely complex,
and unsustainably so. There is no doubt that this is
due to the complexity of the food sector itself.
Furthermore, in the context of a food chain consi-
sting of several stages between production and con-
sumption, various factors have helped foster even
greater levels of complexity, such as the national
exceptions included in the Regulations, the neo-pro-
tectionist tendencies of some Member States (typical
of a period of generalised economic crisis), etc.
A world which is increasingly globalized, competiti-
ve and dominated by new technologies needs an
effective and efficient regulatory environment1. In
2010 the European Commission responded to this
need by launching a process of evaluation and
analysis (fitness check), to identify which aspects of
EU legislation2could be improved. This process is
now managed within the framework of the
Regulatory Fitness and Performance programme
(REFIT)3, which I discuss further on. The food sup-
ply chain satisfies one of humankind’s most basic
needs and is inseparable from social and cultural
contexts. It is also of strategic economic importance
at both the national and European level4. This
makes it vulnerable on the one hand and also nota-
bly heterogeneous, bringing together a whole range
of sectors, including agricultural producers, the agri-
food industry, food distribution and the hotel and
restaurant trades. In recent years the relationship
between these different links in the chain has grown
closer, as they have moved away from just plou-
ghing their own respective furrows and towards
identifying common interests and objectives, espe-
cially when it comes to meeting growing consumer
demand for efficiency, competitiveness and sustai-
nability5. Meeting such demand is quite a challenge,
especially as consumers are also increasingly con-
cerned about nutritional, health and environmental
issues.
They are also consuming in new ways (the internet,
local and sustainable products…), and expect more
detailed, accurate and up-to-date product informa-
tion. The complex nature of current legislation6 is
one of the chief factors weakening the competitive-
ness of the agri-food sector, and with it the food
supply chain as a whole. So it is worth asking
whether the REFIT programme will succeed in
reducing such complexity, because judging by the
lack of results achieved by previous initiatives, I am
not sure that it will.
2.-The REFIT programme
There are many expectations surrounding the
REFIT programme7, and the European Commission
(1) See C. Vidreras Pérez, La legislación alimentaria en la UE: ¿rompecabezas o jeroglífico sin ‘Piedra de Rosetta?, BoDiAlCo, n° 15,
2015, 13-14.
(2) Commission Staff Working Document “A Fitness check of the Food chain – state of play and next steps” – SWD (2013) f 516.
(3) COM (2014) 368 final of 18.6.2014 – Communication from the Commission: “Regulatory Fitness and Performance (REFIT): State of Play
and Outlook”.
(4) As argued, for example, by my friend and colleague F.Albisinni, in his excellent chapter El Derecho alimentario como acicate de inno-
vación del Derecho European, in L. Bourges, Sociología y Derecho alimentarios, Aranzadi, 2013, 123-126. See also M. Prieto Goberna,
“Mejora de la legislación europea y del Derecho alimentario: análisis y reflexiones” in Lecciones de Derecho alimentario 2015-2016,
Thomson Reuters Aranzadi, 2015, 63-64.
(5) See A. Mayoral, REFIT, el programa de Adecuación y Eficacia de la Reglamentación de la Comisión Europea, BoDiAlCo, No. 15,
2015, 23-24.
(6) See the FIAB’s “Informe Económico 2014” (cited in M. Prieto Goberna, op. cit., p. 64). In this Report the Federación Española de
Industrias de Alimentación y Bebidas notes with regard to the regulatory environment that “Spain has some 100,000 laws and regula-
tions, creating a level of complexity which can only undermine competitiveness”.
(7) On this programme see for example D. Jancic, The Juncker Commission's Better Regulation Agenda and its Impact on National
Parliaments, in EUI Working Paper MWP 2015/18, Special Issue “Parliaments, Public Opinion and Parliamentary Elections in Europe”,
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Anno X, numero 1 •Gennaio-Marzo 2016
7
has acknowledged this by announcing8the creation
of an Independent Regulatory Scrutiny Board as
part of its Secretariat-General, to be chaired at
Director General level. Further to this development,
it is also worth highlighting that on 19 May 2015 the
Commission announced that it was setting up a
REFIT Platform to advise on simplifying EU laws
and making them more effective and efficient9.
As previously noted, REFIT is the European
Commission's Regulatory Fitness and Performance
programme: “action is taken to make EU law sim-
pler and to reduce regulatory costs, thus contribu-
ting to a clear, stable and predictable regulatory fra-
mework supporting growth and jobs”10. To do this
successfully, REFIT requires a joint effort between
the European Parliament, the European Council,
the European Commission, Member States and
stakeholders. Every level of government should be
involved to ensure that the benefits are realised at
least cost for citizens and business.
Turning to the food supply chain itself, it was nota-
bly one of the areas chosen by the European
Commission for the purpose of assessing whether
European legislation is fit for purpose11, due to both
its social and economic importance and the com-
plexity and volume of applicable regulations.
Taking a historical perspective, we find that the
White Paper on food safety12 published at the end of
the 1990s had already identified the need for an
integral, harmonised and consistent approach to
developing and implementing EU food legislation in
response to the various crises of that decade13.
One law adopted in response to these crises was
Regulation (EC) No 178/2002 of the European
Parliament and of the Council of 28 January 2002
laying down the general principles and require-
ments of food law, establishing the European Food
Safety Authority and laying down procedures in
matters of food safety.14 This Regulation laid down
the founding principles of Community food law. Its
objectives included:
- ensuring a high level of protection for both
human health and consumer interests
- creating an environment conducive to developing
food law, with a decision-making process based on
risk management and strong scientific arguments;
- establishing crisis management procedures and
actions for emergency situations.
ed. by C. Fasone et al., 2015, 45-54 (document last accessed on 7.12.2015 and available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2683358); E. Van Den Abeele, The EU's REFIT Strategy: A New Bureaucracy in the
Service of Competitiveness?, ETUI Working Paper 2014.05 (last accessed on 7.12.2015 and available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2512683).
(8) See A. Mayoral, op. cit., p. 24.
(9) See the following link, last accessed on 7.12.2015: http://ec.europa.eu/smart-regulation/better_
regulation/documents/c_2015_3261_en.pdf [the Commission also publishes regularly provisional dates of adoption of Commission ini-
tiatives. (See http://ec.europa.eu/atwork/pdf/planned_commission_initiatives_2015.pdf).
(10) See the following link, last accessed on 7.12.2015: http://ec.europa.eu/smart-regulation/refit/index_en.htm.
(11) See M. Prieto Goberna, op. cit., p. 65.
(12) COM (1999) 719: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:51999DC0719&rid=1 (See A. Mayoral, op. cit.,
24-25).
(13) Including, among others, the mad cows episode (See M. Prieto Goberna, op. cit., p. 65).
(14) Regulation of the European Parliament and of the Council of 28 January 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. In fact, this
Community Regulation is applied «… to all stages of production, processing and distribution of food and feed» (article 3.1). In addition,
said Regulation often refers to the food supply chain: - Recital No. 39 mentions «… the whole food and feed supply chains… », etc.
Furthermore, the fourth Recital of the new Regulation proposed by the Commission insists that «the basic Union rules with regard to
food and feed law are laid down in Regulation (EC) No. 178/2002… », stating that «in addition to those rules, more specific food and
feed law covers different areas such as animal nutrition, including medicated feeding stuffs, food and feed hygiene, zoonoses, animal
by-products, residues of veterinary medicinal products, contaminants, control and eradication of animal diseases with a human health
impact, food and feed labelling, plant protection products, food and feed additives, vitamins, mineral salts, trace elements and other addi-
tives, food contact materials, quality and compositional requirements, drinking water, ionisation, novel foods and genetically modified
organisms (GMOs)». On Regulation No. 178/2002 see Objetivo: la seguridad alimentaria en la Unión Europea (el Reglamento (CE) n.
178/2002), in Gaceta Jurídica de la UE, No. 223, 2003, 59-71; M. V. Fourgoux Jeannin, La construcción europea de la autonomía del
Derecho alimentario, in L. Bourges, Sociología y Derecho alimentarios, Aranzadi, 2013, 76-78; and M. Hagenmeyer, Modern food safety
requirements: according to EC Regulation No. 178/2002, Zeitschrift für das gesamte Lebensmittelrecht, Vol. 29, No. 4, 2002, 443-459.
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Anno X, numero 1 •Gennaio-Marzo 2016
8
Since April 2014 this Regulation has undergone a
full review, which has involved applying the fol-
lowing principles:
- Effectiveness in achieving its objectives;
- Efficiency (associated costs and benefits, conse-
quences for and measures aimed at SMEs);
- Consistent implementation, identifying duplication
and areas of overlap;
- Relevant objectives and adapting to current
circumstances;
- Added value for the EU15.
No doubt many other Community standards also
need to be trimmed16 and updated, including those
covering traceability, application of the precautio-
nary principle, experiences with emergency measu-
res and crisis management, and the RASFF (Rapid
Alert System for Food and Feed)17.
The general view regarding the RASFF, and one
which I share, is that any review should focus on
checking whether the current corpus juris is still fit
for purpose, or whether in fact it needs to be moder-
nized, simplified or improved. Such a review should
pay special attention to the following criteria18:
-effectiveness (have the pre-defined objectives
been achieved?)
-efficiency (is the cost-benefit balance positive?)
-consistency (is it consistent with other EU poli-
cies?)
-relevance (is it still important for the EU to inter-
vene in this field?)
-added value (can the legislation be improved?)
Whilst this paper was being drafted, the
Commission hired external researchers to gather
information on the procedures used by the authori-
ties responsible for crisis management in different
Member States. Such data, including relevant case
studies and documentation, will be gathered from
the RASFF’s national contacts and other stakehol-
ders by means of surveys and interviews. Once it is
ready, the Commission is expected to publish an ini-
tial working document on potential areas of inter-
vention, however difficult these may be to predict at
the current time19.
I cannot discuss here all the EU food regulations
which need re-examining within the REFIT fra-
mework. I will however highlight one example: the
needlessly complicated nature of the rules around
food information. This despite recital 9 of Regulation
(EU) No 1169/2011 of the European Parliament and
of the Council of 25 October 2011 on the provision
of food information to consumers20 stating that “This
Regulation will both serve the interests of the inter-
nal market by simplifying the law, ensuring legal cer-
tainty and reducing administrative burden, and
benefit citizens by requiring clear, comprehensible
and legible labelling of foods”. Even though the
European legislator has now addressed the issue of
labelling through a Regulation which can alone be
(15) See C. Vidreras Pérez, op. cit., 15-16.
(16) Sic in A. Mayoral, op. cit., p. 25.
(17) See C. Varallo, El RASFF (Rapid Alert System for Food and Feed): nuevos retos y futuro del sistema de alertas” en Lecciones de Derecho
alimentario 2015-2016, Thomson Reuters Aranzadi, 2015, 231-257.
(18) Ibidem, 256-257.
(19) See A. Mayoral, op. cit., 26-27. For C. Varallo, (op. cit., p. 257), areas in particular need of exploration include levels of accuracy
when it comes to identifying situations of risk which might trigger an alert, transparency, and the protection of confidentiality.
(20) Regulation of the European Parliament and of the Council of 25 October 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. On this Regulation see S. Bañares Vilella, 1169 preguntas y respuestas sobre el etiquetado de los alimentos [e-bok] 2015;
P. Borghi, El nuevo marco normativo europeo relativo al etiquetado y la información al consumidor, in Lecciones de Derecho alimenta-
rio 2015-2016, Thomson Reuters Aranzadi, 2015, 89-109; H. Bremmers, An Integrated Analysis of Food Information to Consumers:
Problems, Pitfalls, Policies and Progress, in Proceedings in Food System Dynamics, 2012, 614–627 (text available in the following
Internet page, consulted on 27.2.2013: http://131.220.45.179/ojs/index.php/proceedings/article/view/262/243); L. Costato et al.,
Compendio di diritto alimentare, Cedam, 2013, 220-233; M. Ferrari and U. Izzo, Diritto alimentare comparato, Il Mulino, 2012, 126–131;
A. Mayoral, op. cit., 27-28; P. Nihoul, and E. Van Nieuwenhuyze, L’étiquetage des denrées alimentaires: une pondération réussie entre
intérêts contradictoires?, Journal de droit européen, Vol. 20, No. 192, 2012, 237-243; and I. Segura Roda, Etiquetado e información al
consumidor: un recorrido por el Reglamento (UE) núm. 1169/2011, also in Lecciones de Derecho alimentario 2015-2016, Thomson
Reuters Aranzadi, 2015, 113-126.
directly and simultaneously implemented throu-
ghout the European Union, this Regulation is even
longer and more complex21 than the previous one,
not only in terms of content (as becomes clear from
comparing the rules relating to each aspect of the
legislation), but above all in terms of regulatory
structure. Hence Regulation No. 1169/2011 fre-
quently refers to delegated acts, which should be
adopted by the European Commission in relation to
“non-essential” aspects of the Regulation (pursuant
to the first paragraph of Article 290 TFEU). These
aspects are by no means secondary, but include
matters such as the use of symbols, pictograms and
other non-verbal signs, additional health indica-
tions, the criteria for the location of mandatory infor-
mation about carriers other than the label, legibility
criteria, exemptions from lists of ingredients, the
makeup of lists of allergens (Annex II), ways of
expressing net amounts, nutritional statements,
etc.22.
3.- Conclusion
As noted earlier, we shall have to wait to learn of the
results of the Regulatory Fitness and Performance
programme (REFIT). The programme’s purpose is
to take action to make EU law simpler and to redu-
ce regulatory costs, thus contributing to a clear, sta-
ble and predictable regulatory framework suppor-
ting growth and jobs. Simplification can take a num-
ber of forms:
- Changes to existing law;
- Codification: all amendments made to one piece
of legislation over the years are incorporated into
a single new act, reducing volume and complexity;
- Recasting: similar to codification, but the legisla-
tion is amended at the same time as previous
amendments are incorporated to form one con-
solidated text;
- Repeal: unnecessary and irrelevant laws are
removed;
- Review/sunset clauses: laws are reviewed or
automatically removed after a given period;
- Revision: laws are modified to keep them up to
date.
If it enables us to achieve its proposed objectives
(the elimination of trade barriers; well-designed, effi-
ciently implemented legislation), then REFIT can
only be welcomed. Meanwhile we shall have to use
our common sense to do our best and hope that the
result is the desired one23. It is a fact that regulation
always affects business, whether positively by pro-
moting competition, innovation, sustainability and
efficiency in the European food supply chain, or
indeed negatively. Situations such as the economic
crisis which has afflicted Europe in the last few
years help us to draw conclusions on the role of
regulation as we observe how the sector behaves.
Therefore the efforts made by Community institu-
tions to revise, simplify and update the regulatory
framework governing the sector deserve recogni-
tion. It is not a question of deregulating but, again,
one of using common sense24 - that same common
sense which tells us that before adopting new mea-
sures we need to understand their potential impact
in social and environmental as well as economic
terms25.
We have in recent times witnessed Europe’s contra-
dictory response to the issue of biotechnology - a
response often influenced by political opportunism.
Today, as the legislation governing GMOs is being
reviewed, Community institutions complain about
how hard it is to adopt decisions on controversial
issues autonomously (this legislation being a good
example). Thus they are once again allowing mem-
ber states to put forward their own alternative ver-
sions, with all the risks to the internal market which
that implies26.
We need to find a way to prevent the system being
so complicated that it hinders innovation by creating
lengthy and complicated procedures (e.g. new
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Anno X, numero 1 •Gennaio-Marzo 2016
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(21) Sic in P. Borghi, op. cit., p. 93.
(22) See C. Vidreras Pérez, op. cit., 17-18.
(23) See M. Prieto Goberna, op. cit., p. 88.
(24) Ibidem.
(25) Ibidem.
(26) See A. Mayoral, op. cit., 25-26.
foods, statements)27. But neither must we forget that
at the national level too, such as in Spain, current
legislation urgently needs to be simplified and
implemented in a coordinated manner.
ABSTRACT
Current EU food legislation is extremely complex,
and unsustainably so. Furthermore, in the context of
a food chain consisting of several stages between
production and consumption, various factors have
helped foster even greater levels of complexity,
such as the national exceptions included in the
Regulations, the neo-protectionist tendencies of
some Member States (typical of a period of genera-
lised economic crisis), etc. A world which is increa-
singly globalized, competitive and dominated by
new technologies needs an effective and efficient
regulatory environment: in this context, the
Commission has set up the “REFIT Platform” to
conduct an ongoing dialogue with Member States
and stakeholders on improving EU legislation in the
context of the Regulatory Fitness and Performance
Programme.
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Anno X, numero 1 •Gennaio-Marzo 2016
10
(27) See M. Prieto Goberna, op. cit., p. 88.
