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Transparency, crisis and innovation in EU Food Law

Ferdinando Albisinni

Transparency is an expression which appears more and more frequently in European legislation, but which has still not gained a generally accepted definition. It is often referred to the information offered to the consumers, in food law as in financial regulation, but in fact it cannot be reduced to the content of the relation B2C. The paper examines different objects and contents assigned to transparency in the peculiar area of food law, starting from the emerging of some elements of transparency in the ’90s and then examining the legal innovations introduced as an answer to the food safety crises and within the new framework introduced with the adoption of Regulation No 178/2002, commonly named as General Food Law – GFL to emphasize the systemic character of EU food law in the new century. The paper underlines the multiple meanings and declinations assigned to transparency as a polysemic paradigm, with reference to participation and openness in legislation and in administration, to the adoption of innovative models of food business undertakings open to internal and external scrutiny, to the establishment of fair market relations within the agri-food chain, and finally to rules regarding the information to consumers. The thesis is that transparency in communication to consumers cannot be realized by itself alone, but requires transparency in regulation and governance and transparency in market relations, and this implies responsibility and accountability of all the actors in scene. The discussion of the recent case of express conflict between EU Commission and EU Parliament on the implementing regulation regarding origin labeling of meat of swine, sheep, goats and poultry, induces to conclude that transparency, with its multiple declination, can be a powerful regulatory tool, but that a relevant part of the way toward effective transparency in food law is still to be covered.

PAROLE CHIAVE: transparency - crisis - innovation

  

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Sommario:

1. Premise - 2. Technological innovation - 3. Legal innovation, globalization and new market rules - 4. In search of transparency - 5. The emerging of some elements of transparency in the '90s - 6. The BSE crisis and the new transparency approach - 7. The White Paper on Food Safety - 8. A golden thread throughout EFLS - 9. A fil rouge - 10. A winding and still not covered path towards transparency - NOTE


1. Premise

When we talk about transparency in European Food Law, two elements immediately come at stage: crisis and innovation. Crisis has been a key element in the experience of the construction of EFL; an element which, in the last two decades – starting from the BSE crisis – allowed EU Institutions to overcome in a short period of time traditional models of harmonisation, shifting toward unification of rules and of procedures, and adopting transparency as a sort of pass-partout tool, which has been devoted to deal with a multiplicity of issues. Crises of the past “offer lessons to regulators and policy makers in the aftermath of the current crisis” – observed recently a prominent legal scholar, discussing new institutional and regulatory models for preventing systemic risk in the financial area [2]. Such consideration may be certainly shared by scholars discussing present trends in Food Law. Innovation has been both at the origin of the food safety crises and a central element of the answer to them. In this framework, the peculiar relation between technological and legal innovation has played a relevant role in shaping transparency paradigm as a general rule vested with many declinations, different but capable to offer innovative legal answers to new hazards and risks, and to a new perception of hazards and risks. A perspective analysis, even if necessarily summary due to the nature and scope of this paper, will show how the growing recourse to transparency developed in significant correspondence with market issues and food safety crises, both largely due to technological innovations, which marked the development of the European Food Law System.

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2. Technological innovation

It is well known that technological innovation has played a decisive role in bringing about a radically different relation with food. Change has come about both in the quantity of food provisioning and in the quality of the processing, conservation and logistics of foodstuffs. Developments in this field began to accelerate in the early XIXth century, in the wake of the inventions of the celebrated French chef and confectioner Appert, whose discoveries concerning food preservation in tins enabled the Napoleonic armies to enjoy much greater independence in food supplies, allowing the forces to be deployed and moved with a speed and effectiveness unknown to the armies of the past. Since that moment, food consumption habits have continued to evolve and have undergone extraordinarily rapid change in recent times. The processing of raw materials of agricultural origin, which previously had been carried out predominantly at home, now began to be increasingly performed by the food industry, with its characteristics of technological and organisational complexity. The development of fast means of transport, which were not only less expensive but also far more capacious that their predecessors, led to the rise of new forms of food distribution. Foodstuffs were no longer necessarily placed on markets chosen by reasons of proximity, but could be distributed on markets situated at enormous distances from the area of production [3]. This has allowed the emergence of new protagonists, as the large food retail organisations, which in recent years have assumed a hegemonic position with respect to the foodstuff processing industry itself. In many ways, agricultural activity has found itself in an inferior position, subordinated to choices made elsewhere, both upstream and downstream of the primary activity [4]. On the other hand, technological innovation must be credited with playing a decisive role even in European countries with a specific reputation in the food sector, allowing certain products to achieve and maintain positions of excellence which today are widely recognized and appreciated as exemplary cases of a tradition of food quality, although in actual fact, more than resting on a past history such products are in many cases the outcome of “the invention of tradition” [5], as testified in the motto “tradition is a successful invention” [6]. To cite just one among many cases, the success of [continua ..]

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3. Legal innovation, globalization and new market rules

But legal innovation matters too. Consider e. g. new EU rules, ranging from traceability to precaution, from mutual recognition to origin from large areas, from official control to private voluntary bodies entrusted with tasks traditionally pertaining to public law (such as the Consortiums for the Safeguarding of Wines and of PDO and PGI products). In all these cases, the predominant element characterising EFL over the last two decades is precisely that of constant innovation, of Rechtsreform in Permanenz – as some German scholars [7] wrote in reference to a different branch of law. It is therefore vital to interact with innovation, endeavouring to bring order into the various proposals that spring up in a disorderly fashion and to organise them within the confines of a shared set of options. The keys of this process can be summarised by reference to innovation, globalization, regulation, and market. Market results as a synthetic formula that blends and sums up the first three categories: a space allowing the action of rules that operate both in the economic and legal sphere. Market calls back to innovation when the outcome of innovation affects economic analysis, to regulatory issues when the effects of such issues have consequences for the juridical analysis, and to globalisation inasmuch as the global perspective has radically changed the economic and legal framework. Over recent years, it has been widely noted that in present days globalisation cannot be regarded as an element exogenous to the legal order: rather, it is more correctly viewed as internal to it, strongly shaping both processes and contents. Furthermore, a number of arguments have been put forward in support of the suggestion that this goes hand in hand with the “marketization” of the institutions and the distribution of public powers over more than one level, in significant harmony with the growing multilevel dimension of the sources of law. The role played by jurisdictional power within this multilevel dimension, to balance interests and values in the construction of European law in general and of food law in particular, is well known, starting from the decision on the case Cassis de Dijon and the introduction of the paradigm of mutual recognition on the basis of equivalence [8]. Together [continua ..]

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4. In search of transparency

Along those lines, innovation (both in production, in organisation, in logistic, and in marketing) and globalisation (both in trade and in regulation), played a relevant role in the first decades of EFL, starting from the ’60s (just after the Rome Treaty establishing the EEC) and until the first years of the ’90s (after the Maastricht Treaty), through the adoption of regulations on agricultural products within the CAP and of directives aimed to establish the internal market. But all of these legislative European acts, even when including consumer protection among their goals, did not mention transparency, and even did not consider it. Even the well know Directive No. 79/112/EEC of 18 December 1978 [19], which was the first horizontal European legislative act to be applied to the labelling of any sort of food product, did not mention transparency and was adopted only on the legal basis of art. 100 EEC Treaty (i. e. to harmonize national rules to implement the common market). The goal to inform and protect consumers is declared, but more as a tool to guarantee fair competition among European business operators, rather than as a value by itself [20]. The decisions of the Court of Justice and the recommendations and rules adopted by the Commission in the ’80s, on the free use of food names by foreign operators even when not corresponding to the traditional domestic names, confirmed an approach which was first of all market oriented. The free circulation of goods was the prevailing criteria, even when such use of names did not actually match the expected substance of the products. It is sufficient here to remember the famous cases of pasta, bier, vinegar, with a radical approach which changed only partly in the ’90s with the decisions Smanor on frozen yogurt and Van der Laan on shoulder ham. But, if European legislation and jurisdiction for more than three decades largely underestimated the relevance of transparency in food law, in the same years such issue started to emerge as a central one in the studies of social scholars. The contribution of French scholars during those years resulted really enriching [21] (not by chance, due to the traditional importance of food and food culture in their history). Already in 1979 Claude Fischler underlined in his paper, “Gastronomie, gastro-anomie” [22], that in [continua ..]

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5. The emerging of some elements of transparency in the '90s

Without using the word transparency, some first elements of what we today qualify as the transparency paradigm appeared in 1993 in the EEC directive which introduced the method HACCP within the food business organisation. Council Directive 93/43/EEC of 14 June 1993 on HACCP [28], introducing the principle of analysis and control over critical points, gave legal relevance to the internal control over food undertakings, to the awareness of the firm’s responsibility for organisational aspects and not only for liability for damages; enhanced appreciation of the value of the food chain; underlined express and conscious internal and external communication as the object of a guarantee and as a characterisation of the supply. The regulatory framework thus introduced into the Community’s legal system resulted in profound innovation, if compared to the pre-existing rules of domestic law. The adoption of risk analysis systems, the emphasis placed on control over one’s own undertaking and on the producer’s responsibility in the sphere of self-certification, turned into dynamic models matters concerning organisation and safeguards. Such models are far more flexible than the previous static rules typical of domestic legal systems (including the Italian system), which to a large extent followed the model of rigid and abstract prescriptions regarding equipment and premises, together with ex-post checks on the products, while the specific aspects of the production processes were disregarded. The establishment of guidelines and voluntary handbooks setting out correct hygiene practices [29] made it possible to highlight the differences in production techniques and products. Further, it awarded priority to the individual’s sense of responsibility, which was made to hinge on behaviour and on an attitude of respect for health as an intrinsic component of the authenticity of a product rather than as an externally imposed prescription. In a single word: food producers were called to be transparent in their activity. Analyse what you do, declare and document it: this is the motto which synthesizes the introduction of the HACCP method, and it is something which clearly evokes transparency in food operators activity. It is no more sufficient that the single food product is complying with the single prescription regarding that sort of food: all the food business structure and activity must be [continua ..]

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6. The BSE crisis and the new transparency approach

The innovative elements of transparency within food business, introduced in fact even if not expressly mentioned in the Directive on HACCP of 1993, did not receive specific and systemic attention during the following years. It was only with the BSE crisis, at the end of the ‘90s, that transparency, in its different declinations and meanings, made the first official entrance within the EU food law vocabulary. Regulation No 820/97 of the Council [32], adopted in response to the BSE crisis, effectively came to express a new systemic regulatory approach, which involved both contents and the legal basis adopted. As far as contents were concerned, the rules introduced by the 1997 Regulation, prompted by worry about the spread of a pathology whose origins were traceable to a specific territorial area and to an identified Member State, required for the first time that (i) traceability and (ii) generalised origin labelling from large area (institutes both located within transparency, in the two different areas of the food chain and of the communication to consumer) should be introduced in connection with a whole category of products (beef), and that such requirements should not be limited to the case of niche products, as had been stated by Regulation No 2081/92, which had concerned itself only with PDO/PGI products. Transparency was expressly mentioned both as a goal to be reached and as tool to guarantee the stabilisation of markets [33]. Even the legal basis underlying the 1997 Regulation was new, although this novelty was not clearly perceived at the time, as attention was focused overwhelmingly on the increasing public concern over the dangers deriving from the BSE epidemic. The Council invoked Art. 43 of the Treaty as legal basis of the new regulation. In other words, it invoked a rule pertaining to market organisation, and not Art. 100/A on the approximation of the provisions laid down by law, regulation or administrative action in Member States, which had up to then been utilised in all cases where food safety rules had been introduced. The European Commission and the European Parliament challenged the 1997 Regulation, and took the matter to the Court of Justice. What they challenged was not the intrinsic content of the measures adopted or their appropriateness: rather, they objected to the use [continua ..]

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7. The White Paper on Food Safety

The subsequent, and decisive, turning point came with the adoption of the new food safety model, enshrined in the White Paper on Food Safety of 2000 [37] which – even before than Regulation No 178/2002 (commonly known as General Food Law – GFL) [38] – addressed to all the operators in the production chain, and significantly concluded: “Greater transparency at all levels of Food Safety policy is the golden thread throughout the whole White Paper and it will contribute fundamentally to enhancing consumer confidence in EU Food Safety policy”. A quotation from this White Paper has become widely known. The proposed policy is summarised with the formula from farm to table: it is not the fields that are protagonists in a material sense, but rather the farm, the agricultural enterprise, and with it the farmers, the producers. This inspiration, systemic and involving the entire production chain, was translated into an operative body of rules with the introduction of “food business” by Art. 3, n. 2 of Regulation No 178/2002. A further novelty introduced by the 2002 Regulation consists in its specific reference to the carrying out of operations connected to a stage, and therefore to a possible food business operation connected to a stage, that is to say a subject definable as an undertaking whose distinguishing characteristics and regime is not the fact of completing all the actions involved in an entire and homogeneous activity, but simply that of being involved in one of the stages, even if the stage in question has an internal structure of its own consisting of activities which in various ways are not homogeneous with one another. Reference to the stage (already present, although not fully developed, in the earlier European provisions on health and hygiene) goes hand in hand with the concepts of production chain and network, thereby assigning legal significance to categories that had so far been considered only from the economic point of view. We are thus faced with a rather unusual question involving definitions: that is to say, a subject can be defined as a food business, with the resulting obligations and responsibilities, even if this definition does not concern the general activity the subject is engaged in, but simply relates to the fact that the subject takes part in one of the stages of [continua ..]

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8. A golden thread throughout EFLS

Some scholars identified transparency as “the literal value of accountability, the idea that an accountable bureaucrat and organisation must explain, or account for, its actions. … a key requirement for all other dimensions of accountability” [44]. Others underlined “the multiple frames in which we can see accountability and transparency and the relationship between them – as Siamese twins, as matching parts and as an «awkward couple»“, noting that “more recent academic literature tends to differentiate different models and types of accountability and the same is just beginning to happen with the idea of transparency” [45]. This complex and mobile relationship between transparency and accountability finds peculiar expression in the area of EFL, due to the already mentioned peculiar nature of the relation of consumer with food [46]. Today – roughly two decades after the BSE crisis and more than one decade after the White Paper on Food Safety and the adoption of GFL – when we talk about transparency in EFL, we talk of a polysemic paradigm used in various declinations, not necessarily uniform, even if having common inspiration and common goals, which on a provisional and tentative basis, taking into account specific provisions adopted in some main areas of food legislation, can be summarised as: i) transparency in regulation and in governance; ii) transparency within food business undertakings; iii) transparency within market, in market transactions, in relations B2B; iv) transparency in communication and information to consumers, on safety and on quality, both from public authorities and from business undertakings and private organisations, in relations B2C. All these declinations are subject to specific and express rules of law, first of all in Regulation No 178/2002, where transparency is largely mentioned both in the reasons of the act and in detailed articles. A specific section, Section 2, within Chapter II on principles of “GFL – General Food Law”, sets the framework, objects, and operating procedures intended to guarantee an effective implementation of this principle, under two different but interlaced perspectives. Reference is made to transparency in regulation and in governance, [continua ..]

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9. A fil rouge

Starting with GFL, transparency paradigm may be now considered as a sort of fil rouge of all subsequent European food legislation. Regulation No 1169/2011 on food information to consumers [56], which entered in application from 13 December 2014, insists on providing a basis for final consumers to make informed choices and to make safe use of food, protecting the legitimate interests of producers and promoting the production of quality products, guaranteeing transparent public consultation, offering both mandatory information and fair information [57], and introducing a specific notification procedure aimed at ensuring that the process of adopting new food information legislation is transparent for all stakeholders [58]. In a different area, Regulation No 1308/2013 on Common Organisation of Agricultural Markets [59], which has been recently introduced as part of the reform of the Common Agricultural Policy, and which entered in application from 1 January 2014, underlying the value of Market transparency as basic principle of agri-food markets regulation [60], introduces specific rules to grant the implementation of such principle in public aids [61], encourages the recourse to regulatory agreements among producers, interbrach organisations, producers organisations [62], and to written agreements [63] as tools capable to promote “best practices and market transparency” [64] and to help to handle market crises, getting over two strong traditional taboos of EU competition laws: a) the prohibition of previous agreements among producers to regulate the offer of agri-food products; b) the prohibition of previous agreements to regulate prices of agri-food products [65].

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10. A winding and still not covered path towards transparency

In this complex process driven by transparency some questions remain still largely open: – is transparency a passive or an active paradigm? – in other words: does transparency means only to be subject to scrutiny in decisions, or is it also an expression to designate participation and not mere subsequent control? – how does transparency effectively work in EFL, with specific reference to transparency in sources of law and in governance, especially after the Lisbon Treaty and the increased amount of delegated and implementing powers assigned to the Commission? A recent case of conflict between the EU Parliament and the EU Commission, arising from the new Commission Regulation on the origin of meat different from bovine, induces to consider with caution the effective rate of transparency in the exercise of EU regulatory powers, and – by consequence – in the agri-food market. The Regulation (EU) No 1169/2011 on food information to consumers [66], established, inter alia, that the indication of the country of origin or place of provenance shall be mandatory for fresh, chilled and frozen meat of swine, sheep, or goats or poultry [67], and that the EU Commission should adopt implementing acts introducing such labelling provisions [68]. On 13 December 2013 the Commission adopted the foreseen implementing regulation [69], but did not extend to such meat the rigorous origin provisions introduced in 1997 for beef and beef products, and with specific reference to minced meat and trimmings admitted a general (and generic) indication “Origin: EU” [70]. Such provisions have been criticized by some commentators, underlying that a generic indication of EU origin appeared not coherent with the transparency framework provided and supported by Regulation (EU) No 1169/2011. Moreover such generic EU origin indication appeared not capable to prevent new crises like the horse meat crisis [71] caused by minced meat coming from specific EU countries; so that – according to those commentators – it was necessary to specify the country of origin of any meat with reference to each MS to restore trust among consumers. The EU Parliament adopted a severe resolution, expressly mentioning the recent food scandals, including the fraudulent substitution of horsemeat for beef, observed [continua ..]

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NOTE

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