Romania Suspends Unclear Food Waste Law

Today I receive and publish an interesting contribution about the recent “food waste” law recently entered into force in Romania, coming from Oana Constantinescu and Toma Barbărasă (respectively partner and attorney at law at Schoenherr si Asociatii SCA).

After France and Italy to my knowledge that is the most concrete attempt in EU to mitigate the problem by law: the path seems nonetheless paved of difficulties. Compared to the Italian legislation (already covered on this blog) a point of merit is the provision of sanctions; but the negligible amounts of the fines could foster the lack of application of the law.

It will be extremely useful to follow the developments of these bills and try to measure the impact of them in the mid-term, since doubts on their real effectiveness seems to remain.

A new law meant to fight food waste in Romania came into force in late May but is now inapplicable, as its provisions are unclear and application norms have yet to be published.

On 21 May 2017, Law 217/2016 on Food Waste Reduction entered into force (the “Law“). The Law aims to reduce food waste by imposing measures on all operators in the food industry.

The issues

In its current form, the Law has already raised concerns about its scope as well as the practical measures that operators need to take in order to comply with it.

For instance, it is not clear which entities must comply with the Law, as the Law stipulates that it applies to operators in the agri-food sector without defining who these are. This may raise more difficulties, since the Law only refers to enterprises (in terms of applicable sanctions), but does not define them.

In addition, the Law does not provide a definition for products that are close to expiry. This is important, since a clear distinction needs to be made between highly perishable products that can only stay a few days before becoming unsafe and products with a longer validity.

Another cause for concern is the lack of clear procedures, as food operators are given no guidelines or instructions on how to implement the measures in practice. Of course, each operator must assess its activity on a case-by-case basis and proceed depending on the products and its specific activity.

All of these issues are meant to be resolved through the application norms, which were supposed to be drafted by 21 May 2017, but have now been pushed back pending analysis.

In the beginning of June, the Ministry of Agriculture issued a statement saying that the legal mechanisms included in the normative act cannot be applied and that the enforcement of the law is postponed until further notice.

Outline of the measures imposed

Under the Law food operators must take the following effective measures:

  1. Accountability measures for the reduction of food waste in the entire agri-food chain, from the manufacturing stage to the marketing stage, and to the final consumer;
  2. Low-priced sale measures for products close to expiry;
  3. Transfer measures by donation or sponsorship for products close to expiry; such transfers shall be made to entities specifically registered in this respect;
  4. Measures for the direction of by-products not intended for human consumption under Regulation (EC) 1774/2002, under certain conditions, for the disposal of animal by-products;
  5. Measures for the direction of agri-food products unfit for human or animal consumption by transformation into compost;
  6. Measures for the direction of agri-food products unfit for human or animal consumption for their transformation into biogas;
  7. Measures for the direction of by-products left after going through the above stages to an authorised neutralising unit.

The Law gives food operators the opportunity to offer nearly expired products to associations, foundations and social enterprises. It also sets maximum amounts in this respect, namely 3 % + VAT of the purchase price (for food marketers) or of the production price (for food manufacturers or processors). In their turn, associations and foundations may market the offered products at maximum 25 % + VAT of the purchase price (in case they receive the products from food marketers) and at maximum 25 % + VAT of the production price (in case they receive the products from food manufacturers or processors).

Sanctions

Operators who fail to observe the above measures will face fines ranging from RON 1,000 to RON 10,000 (approx. EUR 220 to EUR 2,200). The fines depend on the size of the entity, i.e. big enterprises will face higher fines.

Conclusions

Although the Law officially came into force on 21 May 2017, its provisions are not clear enough to be applicable in practice. Moreover, the Ministry of Agriculture and Rural Development had the legal obligation to enact application norms for the Law before 21 May 2017. Although the norms were initially published on the Ministry’s website for public debate, they are now no longer available.

A serious issue that the Law may trigger is so-called parallel trade caused by the obligations imposed on operators. On the one hand, operators must donate or sell products close to expiry at a low price. On the other hand, associations and foundations that purchase these products at a low price may then market them at maximum 25 % + VAT of the purchase/production price. Since the Law sets a maximum value for the latter, there is a risk that the price may raise competition issues by becoming fixed, thus affecting operators on a free market.

Obviously the Law will have a major impact on all players in the agri-food sector. A deeper analysis of the impacts will be required before the issues (or at least some of them) can be resolved.

Oana Constantinescu and Toma Barbărasă (respectively partner and attorney at law at Schoenherr si Asociatii SCA)

 

Commission launches IT tool to boost cooperation on possible fraudulent practices

The European Commission has today launched a dedicated IT tool, on the ground of articles 34-40 Reg. (EC) No 882/2004, known as the Administrative Assistance and Cooperation (AAC) system to facilitate the exchange of administrative information between national authorities working to combat cross-border violations in Europe.

In the wake of the horsemeat scandal of 2013, the Commission developed an action plan to strengthen controls of the food supply chain. One of these measures was to set up a pan-European mechanism to ensure the rapid exchange of information between national authorities and the Commission in cases of suspected food fraud cases. As a result, the European Food Fraud Network (FFN) was born and tasked with handling requests for cross-border cooperation. Each Member State has appointed a contact point to handle requests from contact points in the other Member States that form part of the network. This network has been operational since July 2013 and since its creation, the Commission has observed a marked increase in the number of exchanges from 30 in 2013 to 90 so far in 2015, adding up to 180 cases in total since its creation.

Cross border cooperation helps to improve the capability of national authorities to:

  • detect and prevent cross border breaches of EU food chain rules; and if necessary
  • collect the information that is needed to refer a case for further investigation and to ensure appropriate enforcement action

The AAC system will ensure that the Food Fraud Network works even more efficiently and is able to respond more swiftly to information requests.

The Activity Report of the FFN for 2014 reveals that exchanges on suspected frauds mostly relate to mislabelling (for instance with regard to date marking, adding water or ingredients), falsified certification and/or documents and substitution, such as replacement of a higher value species with a lower value species (for example substituting pollock for cod). Importantly, however, statistical conclusions cannot be drawn from these data given that Member States may also exchange information outside of the FFN and that cases which do not have a cross-border dimension, i.e. which occur at purely national level, are not exchanged via the Network.

Next steps and main issues

The system will be used in the first phase by the Food Fraud Network. At a later stage, it will be made available also to the liaison bodies working on cases of Administrative Assistance and Cooperation not related to fraudulent practices.

The details about the AAC systems are provided by Commission Implementing Decision (EU) No 2015/1918, establishing the Administrative Assistance and Cooperation system (‘AAC system’) pursuant to Regulation (EC) No 882/2004 of the European Parliament and of the Council on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules, published on the Official Journal of the European Union on 22nd October 2015.

Key points for a smooth functioning of the systems will be:

  • coordination with other existing IT systems, namely RASFF and TRACES;
  • confidentiality.

On the first point, the whereas (9) of the Decision is clear:

“In certain cases, information concerning non-compliance with food or feed law is disseminated by and among the competent authorities in the Member States through the Rapid Alert System for Food and Feed (RASFF), established in accordance with Regulation (EC) No 178/2002 of the European Parliament and of the Council , and through the Trade Control and Expert System (TRACES), established by Commission Decision 2004/292/EC. In order to avoid unnecessary duplication, that information should be made available through the AAC system to the liaison bodies designated in accordance with Regulation (EC) No 882/2004, so that the Member State notifying that information to the RASFF or TRACES is not required to upload the same information onto the AAC system for the purposes of administrative assistance and cooperation. Accordingly, the RASFF and TRACES applications should be enabled to provide data to the AAC system in order to streamline the process.”

Regarding data protection and security, art. 10-12 provide a general framework, which is well summarized in the whereas (13) of the Decision. These provisions are necessary to ensure an effective investigative and prosecution activity:

“Where the exchange of information provided for in Regulation (EC) No 882/2004 and in this Decision involves the processing of personal data, a careful assessment should be carried out to ensure that the processing is strictly necessary to achieve the purposes of efficient administrative assistance and cooperation, and that such processing is in accordance with the national provisions implementing Directive 95/46/EC of the European Parliament and of the Council and with Regulation (EC) No 45/2001 of the European Parliament and of the Council.

Where exemptions and restrictions of certain rights of the data subjects and obligations of the data controller laid down by Directive 95/46/EC and Regulation (EC) No 45/2001 are considered in order to safeguard the interests referred to in Article 13(1)(d) and (f) of Directive 95/46/EC and in Article 20(1)(a) and (e) of Regulation (EC) No 45/2001, those exemptions and restrictions may only be adopted if they are necessary and proportionate to the objective pursued.

Restrictions to the rights of data subjects should constitute a necessary measure to prevent interference with the official control tasks of the competent authorities and with the assessment of compliance with food law or feed law.

In particular, rights of the data subjects may be restricted, in accordance with Directive 95/46/EC and Regulation (EC) No 45/2001, during the period in which actions are carried out for the purpose of sighting or discrete surveillance, where granting them would jeopardise or undermine the purpose of official controls or investigations.

In order to guarantee a high level of data protection, it is appropriate to establish a maximum timeframe to ensure that personal data do not remain in the AAC system longer than it is necessary to achieve compliance with the rules laid down in Title IV of Regulation (EC) No 882/2004. In particular, a retention period of 5 years, starting from the closure of the administrative assistance and cooperation procedure, should be established, after which time personal data should be removed from the AAC system. The length of the retention period is necessary to give the possibility to the liaison bodies and the Commission to consult the information over a sufficient period of time after the administrative assistance and cooperation procedure has been closed, in order to ascertain the timely identification of reoccurring, connected or widespread non-compliance with food or feed law.”