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Clear-cut Legal Basis for the RASFF: Mere Formalisation or a Concrete Move Forward?
Published online by Cambridge University Press: 20 January 2017
Abstract
The Rapid Alert System for Food and Feed (the socalled ‘RASFF’) is at the heart of food risk management within the European Union. It aims at providing authorities with an effective tool for exchanging information on measures taken to ensure food safety. It was created in 2002 by the General Food Law Regulation to help Member States to coordinate their food safety actions. Nearly ten years later, the adoption of Regulation 16/2011 of 10 January 2011, laying down implementing measures for the RASFF, intends to clarify the specific conditions and procedures applicable to the transmission of notifications through this tool, thus providing more legal certainty in the system.
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References
1 Commission Regulation (EU) No. 16/2011 of 10 January 2011 laying down implementing measures for the Rapid alert system for food and feed (OJ, L 6, 11.1.2011, p. 7 et sqq.). For an extensive description of the measures implemented by the Regulation No. 16/2011, see E. Fernandez Marilgera, “El Reglamento (UE) n° 16/2011 de la Comisión por el que se establecen medidas de ejecución del Sistema de Alerta Rápida RASFF”, Revista de Derecho Alimentario, No. 65, March 2011.
2 For a detailed overview of the history and functioning of the RASFF, see Bánáti, Diána and Klaus, Barabara, “30 Years of the Rapid Alert System for Food and Feed – An overview on the European Alert Network, combined with a case study on melamine contaminated foods”, 5 EFFL (2010), p. 10 et sqq. Google Scholar, at p. 10 et sqq.
3 Regulation (EC) No 178/2002 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.
4 Article 50(1) of GFR.
5 Namely Belgium, Denmark, France, Germany, Ireland, Italy, Luxembourg, the Netherlands and the United Kingdom.
6 Council Decision No 84/133/EEC of 2 March 1984 introducing a Community system for the rapid exchange of information on dangers arising from the use of consumer products (OJ L 70, 13.3.1984, p. 16). The Proposal was, however, published as early as 1979 (see ‘Proposal for a Council decision introducing a community system for the rapid exchange of information on dangers arising from the use of consumers products’, COM/79/725 final; OJ C 321, 22.12.1979, p. 7).
7 See Article 1 of Council Decision 84/133/EEC.
8 OJ L 228, 11.8.1992, p. 24: then repealed by Directive 2001/95/ EC of the European Parliament and of the Council of 3 December 2001 on general product safety, OJ L 11, 15.1.2002.
9 See Press Release IP/09/1155, Brussels 16 July 2009, “The Rapid Alert System for Food and Feed more efficient than ever on its 30th birthday” available on the Internet at <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1155&format=HTML&aged=0&language=EN&guiLanguage=en> (last accessed on 16 January 2012).
10 Switzerland is only member of the system as far as border rejections of products of animal origin are concerned.
11 It should be noted that the European Commission and RASFF work with the World Health Organization (WHO) alert system called the ‘International Food Safety Authorities Network’ (INFOSAN). This network comprises contacts, or national focal points, in over 160 member countries that receive information from the WHO in the form of INFOSAN notes about food safety issues and disseminate it to all relevant ministries in their respective country. RASFF works with INFOSAN and the two share information on a case-by-case basis. For further information on this topic, see: <http://ec.europa.eu/food/food/rapidalert/docs/rasff30_pres_WHO_INFOSAN_en.pdf> (last accessed on 16 January 2012).
12 Article 35 of GFR.
13 Article 10 of GFR.
14 Article 50 of GFR.
15 For an interesting analysis of the balance to be found between the protection of public health and the protection of the reputation of food business operators, see Fuentes, Vincente Rodríguez, “The Regulation of Food Risk Communication in Spain and in the EU”, 5 EFFL (2010), pp. 204 et sqq. Google Scholar – also available on the Internet at <http://www.legalagrifood.com> (last accessed on 16 January 2012).
16 <https://webgate.ec.europa.eu/rasff-window/portal/> (last accessed on 16 January 2012).
17 It should be noted that, since the entry into force of Regulation (EC) No. 183/2005 of the European Parliament and of the Council of 12 January 2005 laying down requirements for feed hygiene (OJ L 35, 8.2.2005, p. 1), the scope of the RASFF has been extended to serious risks to animal health and to the environment. Indeed, Article 29 of said Regulation states as follows: ‘Should a specific feed, including feed for animals not kept for food production, present a serious risk to human or animal health or to the environment, Article 50 of Regulation (EC) No 178/2002 shall apply mutatis mutandis’.
18 Article 7(1) of GFR.
19 Article 7(2) of GFR.
20 van der Meulen, Bernd, “The Function of Food Law – On the objectives of food law, legitimate factors and interests taken into account”, 5 EFFL (2010), p. 87 and 88Google Scholar.
21 See also the important study by Professor van der Meulen: Bernd van der Meulen, “Science based Food Law”, 4 EFFL (2009), p. 58 et sqq.
22 Case T – 177/02, Malagutti-Vezinhet v. Commission, 10 March 2004, ECR 2004, page II-827, at para. 54.
23 Rodríguez Fuentes, “The Regulation of Food Risk Communication in Spain and in the EU”, supra. note 15, p. 207. See also: Bernd van der Meulen, “Transparency & Disclosure – Legal dimensions of a strategic discussion”, 2 EFFL (2007), p. 270 et sqq.
24 Cf. Klaus J. Henning, “Public Authority Communication on Consumer Protection”, EFFL, 5/2009, p. 333 and example given.
25 See lecture given by Barbara Klaus on the Annual Conference on European Food Law 2010, “Liability and share of responsibilities between the different actors”, Trier, ERA 8-9 November 2010.
26 See References RASFF notifications: 2010.0826; 2010.0823; 2010.08168, notified by Italy; hazard: altered organoleptic characteristics (blue coloured) – mozzarella from Germany, available through the online RASFF portal at <https://webgate.ec.europa.eu/rasff-window/portal/> (last accessed on 16 January 2012).
27 See Klaus, “Liability and share of responsibilities between the different actors”, supra note 25.
28 Article 14(5) of GFR, emphasis ours.
29 RASFF Annual Report 2009, published in 2010 by the European Union, ISBN 978-92-79-15314-3, 76 pages, at pp 12-13, also available on Internet at <http://ec.europa.eu/food/food/rapidalert/docs/report2009_en.pdf> (last accessed 16 January 2012).
30 Please note that Article 50(3) of the GFR foresees that the conditions are cumulative (‘and’), while the Commission has extended this to an alternative form (‘or’): notifications are classified as alert notifications if they contain information relating to a product presenting a serious risk to human health or if rapid action is required.
31 See above, heading II (1).
32 Recital 5 of Regulation 16/2011.
33 Article 14 of GFR.
34 See footnote 17.
35 See Regulation 16/2011, recital 4.
37 The FVO is a Commission Directorate within DG (Directorate-General) Health and Consumer Protection, and it is tasked with overseeing the implementation of EU food law at national level. Its duties notably involve implementing effective verification by checks of compliance with food safety law by Member States, which is one of the Commission's key duties. In this respect, it bears pointing out that one of the obligations of Member States is the verification of compliance by food and feed business operators with food safety law.
38 Alemanno, Trade in Food, supra. note 36, at p. 204 et sqq.
39 Cf. examples of newspaper articles at <http://www.guardian.co.uk/uk/2006/oct/12/eu.foodanddrink> (last accessed on 16 January 2012). <http://forums.canadiancontent.net/international-politics/50757-eu-bans-british-cheese.html> (last accessed on 16 January 2012).
40 See Parliamentary question of 23 February 2007, OJ C 45, 16 February 2008, available on the Internet at <http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2006-5797&language=EN> (last accessed on 16 January 2012). The Commission justified its actions in the following manner: ‘The Commission had no purpose in the Bowland Dairy case other than to ensure that the high level of food safety, which European consumers have come to rely on, was maintained. It was never its intention to close down the company and to make its workers redundant. The management of the plant bears full responsibility in respect to its employees’ jobs. The Commission also sent a reply to the Sunday Telegraph editor to explain its action, but that reply has not been published’.
41 Order of 12 September 2006 in Case T-212/06 R, Bowland Dairy Products v Commission, not published in the ECR, quoted in Case T-212/06, Bowland Dairy Products Ltd v. Commission, 29 October 2009, OJ 2009, C 312/27, at para. 18.
42 Bowland Dairy Products Ltd v. Commission, supra. note 41, at para. 39.
43 Bowland Dairy Products Ltd v. Commission, supra. note 41, at para. 41.
44 James Lawless, “Conflicting Notifications in the EU's Rapid Alert System for Food and Feed (RASFF): ‘Destabilization’ in Food Risk Communication? – Case T-212/06, Bowland Dairy Products Ltd v. Commission”, EFFL, 4/2010, pp. 451-454, at p. 453.
45 Malagutti-Vezinhet v. Commission, supra. note 22.
46 Malagutti-Vezinhet v. Commission, supra. note 22, at para 51 and 52. It should be noted that this decision refers to the previous RASFF system, as set up by Directive 92/59 on general product safety.
47 Article 50(2) of GFR.
48 Article 8 of the Regulation.
49 Article 9 of the Regulation.