Foodlaw-Reading
Dr David Jukes, The University of Reading, UK
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Comission consultation, 18 June 2019
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Commission consultation: Temporary measures on entry into the Union of certain goods A copy of this consultation document is available on this site (click on image). For more details, see the Commission page at: https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-2570894_en. Consultation closes: 16 July 2019. |
The following are the recitals from the draft regulation:
Regulation (EU) 2017/625 integrates into a single legislative framework the rules applicable to official controls on animals and goods entering the Union in order to verify compliance with Union agri-food chain legislation. For that purpose, it repeals and replaces Regulation (EC) No 882/2004 [see note 1 below] and other Union acts governing official controls in specific areas.
Pursuant to Regulation (EU) 2017/625, certain categories of animals and goods from certain third countries are always to be presented at border control posts for official controls to be performed prior to their entry into the Union. In addition, Article 47(1)(d) and (e) of Regulation (EU) 2017/625 stipulate that goods subject to measures requiring a temporary increase of official controls or emergency measures respectively, should be subject to official controls at border control posts at their entry into the Union.
In that regard, pursuant to Regulation (EU) 2017/625, certain goods from certain third countries should be subject to a temporary increase of official controls at border control posts in those cases where the Commission has decided, by means of implementing acts, that these controls are necessary due to a known or emerging risk or because there is evidence of widespread serious non-compliance with the Union agri-food chain legislation. To that effect, the Commission should establish the list of such goods, indicating their codes from the Combined Nomenclature (CN) as laid down in Annex I to Regulation (EEC) No 2658/87 [see note 2 below] (hereinafter, "the list") and update the list as necessary to reflect any developments in that regard.
The list referred to in recital above should at this stage consist of an updated list of food and feed of non-animal origin set out in Commission Regulation (EC) No 669/2009 [see note 3 below], which lays down rules concerning the increased level of official controls to be carried out at designated points of entry into the Union on imports of certain food and feed of non-animal origin from certain third countries. It is therefore appropriate to set out in Annex I to this Regulation the list of food and feed of non-animal origin from certain third countries to be subject to a temporary increase of official controls at the entry into the Union, in accordance with Article 47(2)(b) of Regulation (EU) 2017/625.
Moreover, the Commission should establish rules on the frequency of identity checks and physical checks for the food and feed of non-animal origin from certain third countries subject to a temporary increase of controls, in accordance with Article 54(4)(a) of Regulation (EU) 2017/625, taking into account in particular the level of risk associated with the hazard under consideration and the frequency of border rejections.
Regulation (EU) 2017/625 and delegated and implementing acts adopted pursuant to Articles 47 to 64 of that Regulation, provide for one single system of official controls which applies to the areas covered by Commission Implementing Regulations (EU) No 884/2014 [see note 4 below], (EU) No 2015/175 [see note 5 below], (EU) No 2017/186 [see note 6 below], (EU) 2018/1660 [see note 7 below] and by Regulation (EC) 669/2009. For this reason and since the rules covered in these regulations are substantively linked as they all concern the imposition of additional measures governing the entry into the Union of certain food and feed from certain third countries, due to an identified risk and which continue to apply depending on the gravity of the risk, it is appropriate to facilitate the correct and comprehensive application of the relevant rules by establishing in a single act the provisions concerning the temporary increase of official controls on certain food and feed of non-animal origin and the emergency measures currently set out in these Regulations.
The food and feed of non-animal origin subject to the emergency measures set out in Commission Implementing Regulations (EU) No 884/2014, (EU) No 2015/175, (EU) No 2017/186 and (EU) 2018/1660 still pose a serious risk to public health which cannot be contained satisfactorily by means of measures taken by the Member States. It is therefore appropriate to set out in Annex II to this Regulation a list of food and feed of non-animal origin subject to emergency measures which consists of the updated lists of food and feed of non-animal origin laid down in Commission Implementing Regulations (EU) No 884/2014, (EU) No 2015/175, (EU) No 2017/186 and (EU) 2018/1660. In addition, with a view to ensure a proper control of the risks to public health, compound food containing any of the food of non-animal origin listed in Annex II due to the risk of contamination by aflatoxins, in a quantity above 20% of either a single product or as the sum of products listed, and falling within the CN Codes laid down in Annex II should also be included in that list.
Moreover, the Commission should establish rules on the frequency of identity checks and physical checks for the food and feed subject to emergency measures pursuant to this Regulation, in accordance with Article 54(4)(b) of Regulation (EU) 2017/625. It is therefore appropriate to establish such rules in this Regulation, taking into account in particular the level of risk associated with the hazard under consideration and the frequency of border rejections.
Measures requiring a temporary increase of official controls and emergency measures set out in this Regulation should apply to food and feed intended for placing on the Union market since those goods represent a risk from a public health perspective.
As regards consignments sent as trade samples, laboratory samples or as display items for exhibitions, which are not intended to be placed on the market, consignments intended for private use or consumption within the custom territory of the Union and consignment intended for scientific purposes, having regard to the low risk that such consignments pose to public health, it would be disproportionate to impose a requirement that these consignments be subject to official controls at border control posts and be accompanied by an official certificate or by the results of the sampling and laboratory analyses in accordance with this Regulation. However, in order to avoid misuse, this Regulation should apply to these consignments in the case where their gross weight exceeds a certain weight limit.
Measures requiring a temporary increase of official controls and emergency measures set out in this Regulation should not apply to food and feed on board means of transport operating internationally which are not unloaded and are intended for consumption by the crew and passengers since the placing on the Union market is very limited.
The maximum levels of mycotoxins, including of aflatoxins in food are established by Commission Regulation (EC) No 1881/2006 [see note 10 below] 10 and in feed by Directive 2002/32/EC of the European Parliament and of the Council [see note 11 below]. The maximum levels for pesticide residues are established by Regulation (EC) No 396/2005 of the European Parliament and of the Council [see note 12 below]. The European Union Reference Laboratory for Dioxins and polychlorinated biphenyls (PCBs) in food and feed has carried out a study on the correlation between pentachlorophenol (PCP) and dioxins in contaminated guar gum from India. From this study it can be concluded that guar gum containing a level of PCP below the Maximum Residue Limit (MRL) of 0.01 mg/kg does not contain unacceptable levels of dioxins. Therefore compliance with the MRL on PCP, ensures in this specific case also a high level of human health protection as regards dioxins.
In relation to the rules referred to in recital above, the provisions on sampling and analyses for the control of mycotoxins, including aflatoxins, in food are established by Commission Regulation (EC) No 401/2006 [see note 13 above] and in feed by Commission Regulation (EC) No 152/2009 [see note 14 above]. The provisions on sampling for the official control of pesticide residues are established by Commission Directive 2002/63/EC [see note 15 above]. With a view to ensure uniform methods of sampling and laboratory analyses in third countries and Member States, the sampling and the analyses for food and feed subject to this Regulation should be carried out in accordance with the aforementioned Union rules on sampling and analyses both in Member States and third countries, as appropriate.
Moreover, Regulation (EU) 2017/186 lays down sampling procedures and analytical reference methods for the control of Salmonella in food subject to that regulation. Such rules should be consolidated in this Regulation and they should also apply for the control of Salmonella in all food subject to this regulation.
Model official certificates for the entry into the Union of certain food and feed are laid down in Commission Implementing Regulations (EU) No 884/2014, (EU) No 2015/175, (EU) No 2017/186 and (EU) 2018/1660. In order to facilitate the performance of official controls at the entry into the Union it is appropriate to establish a single model official certificate for the entry into the Union of food and feed subject to special conditions for the entry into the Union pursuant to this Regulation.
Such official certificates should be issued either on paper or in electronic form. Therefore, it is appropriate to establish common requirements as regards issuance of official certificates in both cases, in addition to the requirements laid down in Chapter VII of Title II of Regulation (EU) 2017/625. In this regard, Article 90(f) of Regulation (EU) 2017/625 makes provisions for the establishment by the Commission of rules for the issuance of electronic certificates and for the use of electronic signatures including in relation to official certificates issued in accordance with this Regulation. In addition, provisions should be made in this Regulation to ensure that the requirements for official certificates not submitted in IMSOC laid down in Commission Implementing Regulation (EU) 2019/628 [see note 16 below] also apply to official certificates issued in accordance with this Regulation.
Model certificates are included in the electronic system TRACES, set up by Commission Decision 2003/623/EC [see note 17 below], to facilitate and accelerate administrative procedures at Union borders and to enable electronic communication between the competent authorities which helps preventing possible fraudulent or deceptive practices in respect of the official certificates. Since 2003, computer technology has evolved considerably and the TRACES system has been modified to improve the quality, processing and secure exchange of data. In accordance with Article 133(4) of Regulation (EU) 2017/625, the TRACES system is to be integrated into the Information Management System for Official Controls referred to in Article 131 of Regulation (EU) 2017/625 (IMSOC). The model official certificate laid down in this Regulation should therefore be adapted to IMSOC.
Point (c) of Article 90 of Regulation (EU) 2017/625 empowers the Commission to lay down, by means of implementing acts, rules concerning the procedures to be followed for the issuance of replacement certificates. To avoid misuse and abuse, it is important to define the cases where a replacement official certificate may be issued and the requirements that need to be met by such certificate. Such cases have been laid down in Commission Implementing Regulation (EU) 2019/628 in relation to official certificates issued in accordance with that Regulation. With a view to ensure a coherent approach, it is appropriate to provide that, in the case of issuing replacement certificates, official certificates issued in accordance with this Regulation should be replaced in accordance with the procedures for the replacement certificates laid down in Commission Implementing Regulation (EU) 2019/628
Provisions should be established to regularly review whether modifications of the lists out in Annexes I and II to this Regulation, including of the frequency of identity and physical checks, are necessary. This should take into account new information related to risks and non-compliance, such as the data resulting from notifications received through the Rapid Alert System for Food and Feed (RASFF), data and information concerning consignments and the results of the documentary, identity and physical checks communicated by the Member States to the Commission, reports and information received from third countries, information resulting from the controls carried out by the Commission in third countries and information exchanged between the Commission and Member States and between the Commission and the European Food Safety Authority.
The rules to be established by the Commission in accordance with Articles 34(6)(a), 47(2)(b), and 54(4)(a) of Regulation (EU) 2017/625 are substantively linked since they all concern requirements on official controls at the entry into the Union on certain goods from certain third countries subject to a temporary increase of official controls at their entry into the Union and should therefore apply from the same date. To facilitate the correct and comprehensive application of those rules, it is appropriate to establish them in a single act.
The rules to be established by the Commission in accordance with Articles 54(4)(b) and 90 (c) of Regulation (EU) 2017/625 and with Article 53(1)(b)(ii) of Regulation (EC) 178/2002 are substantively linked since they all concern requirements for the entry into the Union of goods subject to emergency measures pursuant to Article 53(1)(b)(ii) of Regulation (EC) 178/2002 and should therefore apply from the same date. To facilitate the correct and comprehensive application of those rules, it is appropriate to establish them in a single act.
For the purposes of simplification and rationalization, the rules laid down in Commission Regulations (EC) 669/2009, (EU) No 884/2014, (EU) No 2017/186, (EU) No 2015/175 and (EU) 2018/1660 are consolidated into this Regulation. These Regulations should therefore be repealed and replaced with this Regulation.
The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,
Notes
