Influenta Internationala Asupra Legislatiei Europene

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International Influences on EU Food Law

4.1 INTRODUCTION

THE INTERACTION BETWEEN the regulation of international trade

and EU food law has increased significantly in recent years. In particular,since the inception of the World Trade Organization (WTO) in 1995, its

agreements have been used to challenge the introduction or continuance of anumber of EU rules or actions, most significantly those on the production andmarketing of genetically modified organisms and protected designations of origin.Community legislators must now account for these international trading rules inthe drafting of new legislation, or be open to challenge from other members beforethe WTO Dispute Settlement Body (DSB).1

Several of the WTO Agreements can impact upon EU food law, each of which

will be considered in turn below. In addition to the General Agreement on Tariffsand Trade (GATT), the most significant of these are the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPs), the Agreement onTechnical Barriers to Trade (TBT), the Agreement on the Application of Sanitaryand Phytosanitary Measures (SPS) and the Agreement on Agriculture. Essentially,where any aspect of EU food law, be it a piece of legislation, a decision of the Courtof Justice or the development of a Community policy, is deemed to be contrary toan aspect of one or more of these Agreements, another WTO member can initiatethe dispute resolution mechanism. Given the way in which the WTO has devel-oped thus far, it is most likely to be the United States of America that brings sucha challenge, as was the case when the EU introduced a de facto moratorium on themarketing of genetically modified food. There are two reasons for this. First, theEuropean Union offers a lucrative marketplace for American producers, where,given the level of exposure to American popular culture, there is already a degreeof familiarity with their products amongst European consumers. Second, the pro-duction and marketing of food in the United States is answerable to a very differ-ent regulatory regime than that applied in the EU. The American Food and DrugAdministration (FDA) tends to be far more liberal as regards the level of evidence

1 See also C Barnard, The Substantive Law of the EU: The Four Freedoms (Oxford, OUP, 2004),pp 3033; JHH Weiler (ed), The EU, the WTO and NAFTA: Towards a Common Law of InternationalTrade(Oxford, OUP, 2000); and, more generally, TC Hartley, European Union Law in a Global Context(Cambridge, CUP, 2004).


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of safety or security required to be presented prior to granting authorisation forthe marketing of a new product. As a consequence, where European Union rulessubject producers to more rigorous tests, or go further still and prohibit the sale of

a foodstuff for precautionary reasons, this lucrative and familiar marketplace isinaccessible to others who have not been subject to the same procedure or whoseproducts do not satisfy the standards set in the EU. In particular, where a prohibi-tion is introduced, recourse to the DSB of the WTO may be the only option avail-able to those whose products can be freely marketed elsewhere within the globaltrading system.

4.2 GLOBAL FREE TRADE: INTERNATIONAL RULES ON THE

FREE MOVEMENT OF FOOD

Currently, the main external threat to the way in which the European Union regu-lates its food industry is the application of the WTO Agreements, challenging anynew or existing EU rules. The WTO is essentially a negotiating forum. Everythingit does is a result of negotiations between the members. The Uruguay Round ofnegotiations of the General Agreement on Tariffs and Trade, which took placefrom 1986-1994, ultimately resulted in the establishment of the WTO. Key to theWTO global trading system are the WTO Agreements, which can create difficul-ties for the European Union when it tries to implement a highly regimented regu-

latory regime on more controversial aspects of the food sector. For the purposes ofthis book, the two key Agreements that need to be examined most closely are theAgreement on the Application of Sanitary and Phytosanitary Measures and theAgreement on Trade Related Aspects of Intellectual Property Rights. The SPSAgreement sets the parameters within which members of the WTO must operatewhen introducing rules that inhibit free trade in any way for purposes designed toprotect human health, animal health, plant health or the environment. It requiresa certain level of scientific evidence supporting the members claim that a measureis necessary because a failure to introduce it would expose animals, plants, humansor the environment to risk. Key to ascertaining when a member has operated

within these limits is an assessment of the suitability of any evidence presentedsupporting such action. It is this that arouses most controversy in relation todisputes, or potential disputes, under the terms of the SPS Agreement. This is dis-cussed in more detail below.

The TRIPs Agreement raises a number of issues in relation to the manner inwhich the European Union may protect the identity and character of many of itsfoodstuffs when trading with other WTO members. In particular, those elementsthat set rules on the protection of geographical food names need to be examinedin detail here. Many foodstuffs that are European in origin, and which owe their

geographical name to this fact, have been produced and marketed in othercountries for decades. Examples include champagne, which is a generic name forsparkling wine in some parts of the world, but a protected name in the EU enti-tling only those producers in the Champagne region who produce their beverage

134 International Influences on EU Food Law


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in a particular way to use it, or parma ham, which may be freely marketed as suchin Canada, despite the pig from which it was produced having never set trotter inItaly. This has obvious detrimental consequences for the producer of the original

version of the product who may be protected in the EU but is not accorded pro-tection elsewhere. Not only that, but where the producer of Canadian parma hamis operating under a trademark awarded by his own State, the Italian producer isunable to legally market his product in Canada under that name.

Resolving any of these issues within the WTO system, given the nature of inter-national trade law, and international law more generally, is not an easy task. Itrequires compromise amongst members who primarily seek to advance their owninterests. In order to understand this more fully, a brief examination of the rele-vant Agreements and the mechanism for resolving international trade disputes is

required. The discussion will then turn to a more detailed examination of the twokey issues identified here as case studies demonstrating the difficulties that canexist where EU food law and the regulation of international trade interact.

4.2.1 WTO Agreements and EU Food Law

The Agreement Establishing the WTO concludes with a series of annexes whichcontain the other international trade agreements and the detailed rules and pro-

cedures governing the operation of the Organization. Annex 1A contains the mul-tilateral agreements on trade in goods, such as the Agreement on Agriculture, theAgreement on Technical Barriers to Trade and the Agreement on Subsidies andCountervailing Measures. Annex 1B contains the General Agreement on Trade inServices and Annex 1C contains the Agreement on Trade Related Aspects ofIntellectual Property Rights. Annex 2 sets out the Understanding on Rules andProcedures Governing the Settlement of Disputes. Annex 3 details the TradePolicy Review Mechanism. Finally, Annex 4 contains the plurilateral trade agree-ments, such as the International Dairy Agreement and the International BovineMeat Agreement.

Agreement on Trade Related Aspects of Intellectual Property Rights

The TRIPs Agreement is designed to promote effective and adequate protection ofintellectual property rights, but also to ensure that, as far as possible, these andother measures and procedures do not themselves become barriers to legitimateinternational trade. Included in the scope of intellectual property rights covered bythe terms of the TRIPs Agreement are copyright,2 trademarks,3 industrial designs,4

4.2 Global Free Trade 135

2 Part II, Section 1, Arts 914.3 Part II, Section 2, Arts 1521.4 Part II, Section 4, Arts 2526.


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patents,5 topographies of integrated circuits,6 and, most importantly for the pur-poses of this book, geographical indications.7

For the purposes of the TRIPs Agreement, geographical indications are indica-

tions which identify a particular product as originating in the territory of a member,or a region or locality in that territory, where a given quality, reputation or othercharacteristic of that product is essentially attributable to its geographical origin.8

Members are to provide the legal means for interested parties to prevent the use of(a) any means in the designation or presentation of a good that indicates or suggeststhat the good in question originates in a geographical area other than the true placeof origin in a manner which misleads the public as to the geographical origin of thegood; and (b) any use which constitutes an act of unfair competition within themeaning of Article 10 of the Paris Convention (Stockholm Act 1967).9 If their legis-

lation permits, or if requested by an interested party, members are to refuse or inval-idate the registration of trademarks that contain or consist of a geographicalindication with respect to goods not originating in their territory if the use of thetrademark is likely to mislead the public as to the true place of origin.10

The TRIPs Agreement sets out additional protection for geographical indica-tions for wines and spirits. It states that each member is to provide the legal meansfor interested parties to prevent the use of a geographical indication identifyingeither wines or spirits that do not originate in the place indicated by the geo-graphical indication, even where the true origin of the goods is indicated or the

geographical indication is used in translation or accompanied by expressions suchas kind, type, style or imitation.11 Registration of a trademark for wines orspirits which contain or consist of a geographical indication is to be refused orinvalidated by a member if their legislation permits, or if requested by an inter-ested party, where such wines or spirits are not of this origin.12 In the case ofhomonymous geographical indications for wines, protection is afforded to eachindication, each member determining the practical conditions under which thehomonymous indications in question are to be differentiated from each other,taking into account the need to ensure equitable treatment of the producers con-cerned and that consumers are not misled.13 In order to facilitate the protection of


5 Part II, Section 5, Arts 2734.6 Part II, Section 6, Arts 3538.7 Part II, Section 3, Arts 2224.8 Article 22.1.9 The Paris Convention for the Protection of Industrial Property was concluded in 1883, and has

been revised several times since then. As of 12 February 1998, 145 States were party to the Convention.The Convention is administered by the World Intellectual Property Organization (WIPO). TheConvention applies to industrial property rights, including patents, trademarks, industrial designs,utility models, trade names, indications of source, appellations of origin, and the repression of unfaircompetition. In respect of Parts II, III and IV of the TRIPs Agreement, WTO members are obliged tocomply with Articles 1 through 12, and 19, of the latest act of the Convention, the Stockholm Act of

1967.10 Article 22.3.11 Article 23.1.12 Article 23.2.13 Ibid.


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geographical indications for wines, negotiations are to be undertaken in theCouncil for TRIPs concerning the establishment of a multilateral system of noti-fication and registration of geographical indications for wines eligible for protec-

tion in those members participating in the system.14There are some exceptions to the protection of geographical indications by the

TRIPs rules. For example, members are not required to prevent the continued useof a particular geographical indication of another member identifying wines orspirits by any of its nationals who have used that indication in a continuous man-ner with regard to the same goods in the territory of that member for at least 10years preceding 15 April 1994, or in good faith before 15 April 1994.15 Where atrademark has been applied for or registered in good faith by a member before thedate of application of the TRIPs Agreement, or before the geographical indication

became protected in its country of origin, any measures adopted to implement thesection of the TRIPs Agreement on protected geographical indications do notprejudice eligibility for or the validity of the registration of a trademark, or theright to use a trademark, on the basis that this trademark is identical with, or sim-ilar to, a geographical indication.16 In addition, a member is not required to applythe TRIPs provisions in respect of geographical indications of another memberwhere the relevant indication is identical to the term that is customary in commonlanguage as the common name for such goods in the territory of that member.Similarly, members are not required to apply the TRIPs provisions on geographi-

cal indications of another member with respect to vine products for which therelevant indication is identical to the customary name of a grape variety existingin the territory of that member at the date of entry into force of the WTOAgreement.17 There is no obligation on any member to protect geographicalindications which are not, or which cease to be, protected in their country of ori-gin or which have fallen into disuse in that country.18 However, members must bewilling to enter into negotiations aimed at increasing the protection of individualgeographical indications and these exceptions should not be used by members asa reason for refusing to conduct such negotiations or to conclude any bilateral ormultilateral agreements, nor should any member use the exceptions to diminish

the protection of geographical indications that existed in that member immedi-ately prior to the entry into force of the WTO Agreement.19

The EU system for registering protected designations of origin and protectedgeographical indications had been found by the Dispute Settlement Body of theWTO to be contrary to the TRIPs Agreement. In the ECTrademarks andGeographical Indications dispute, complaints were brought by both the UnitedStates and Australia, who claimed that Regulation 2081/1992 limited the access of


14 Article 23.4.15 Ibid.16 Article 24.5.17 Article 24.6.18 Article 24.9.19 Article 24.1 and 24.3.


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nationals of other WTO members to the registration procedure and protectionsavailable, contrary to TRIPs Articles 2 (intellectual property conventions),3 (national treatment), 4 (most-favoured nation treatment), 16 (trademark

rights), 22 (protection of geographical indications), 24 (international geographi-cal indications), 63 (transparency) and 65 (transitional arrangements).20 After thefailure of the consultation process, the establishment of a panel was requested. Itsreport, which was circulated to members in March 2005, found that Regulation2081/1992, as amended, did not provide the required level of national treatmentto other WTO members trademark rights holders and products because: (i) reg-istration of a geographical indication from a country outside the EU was contin-gent upon the government of that country adopting a system of similar protectionequivalent to that established by the regulation and offering reciprocal protection

to registered European geographical indications; and (ii) the Regulation2081/1992 procedures required that applications and objections from other WTOmembers were to be examined and transmitted by the governments of those mem-bers, and required those governments to operate systems of product inspectionsimilar to those carried out in the EU Member States.21 As a result, foreign nation-als were not guaranteed access to the Regulation 2081/1992 procedure, unlike EUnationals. This reciprocity requirement was contrary to WTO obligations arisingout of the TRIPs Agreement, in particular Article 3(1) thereof.

As a direct result of the decision in this dispute, a proposal was introduced for a

new amending protected geographical names regulation in December 2005.

22

Asdiscussed in Chapter 3, amendments made to Regulation 2081/1992 primarilyconcern the issue of registering geographical products from third countries thatare members of the WTO. The offending provisions of the original regulation aredeleted, and the reciprocity and equivalence requirements are removed. This newregulation came into effect in March 2006.23

Agreement on the Application of Sanitary and Phytosanitary Measures

The SPS Agreement applies to all such measures that may, directly or indirectly,

affect international trade. Sanitary or phytosanitary measures are defined in theAgreement as being any measure that is applied:

to protect animal or plant life or health within the territory of the Member from risks

arising from the entry, establishment or spread of pests, diseases, disease-carrying organ-

isms or disease-causing organisms; to protect human or animal life or health within the

territory of the member from risks arising from additives, contaminants, toxins or dis-

ease-causing organisms in foods, beverages or feedstuffs; to protect human life or health


20 WTO DS 174 and DS 290, ECTrademarks and Geographical Indications.21 Article 12 of Regulation 2081/1992.22 Proposal for a Council regulation on the protection of geographical indications and designations

of origin for agricultural products and foodstuffs. COM (2005) 698.23 Council Regulation (EEC) No 510/2006 of 20 March 2006 on the protection of geographical indi-

cations and designations of origin for agricultural products and foodstuffs. [2006] OJ L 93/12.


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within the territory of the Member from risks arising from diseases carried by animals,

plants or products thereof, or from the entry, establishment or spread of pests; or to pre-

vent or limit other damage within the territory of the Member from the entry, establish-

ment or spread of pests.24

The term measures covers all relevant laws, decrees, regulations, requirementsand procedures including, inter alia, end-product criteria; processes and pro-duction methods; testing, inspection, certification and approval procedures;quarantine treatments including relevant requirements associated with the trans-portation of animals or plants, or with the materials necessary for their survivalduring transportation; provisions on relevant statistical methods, sampling proce-dures and methods of risk assessment; and packaging and labelling requirementsdirectly related to food safety.25

Members do have the right to take sanitary and phytosanitary measures that arenecessary for the protection of human, animal or plant life or health, provided thatthese measures are not inconsistent with other aspects of the SPS Agreement.These measures can only be applied to the extent that they are necessary, and pro-vided that they are based on scientific principles and are not maintained withoutsufficient scientific evidence to support them. They may not arbitrarily or unjus-tifiably discriminate between members, nor should they be applied in a mannerthat constitutes a disguised restriction on international trade.26 Where possible,and preferably, any measures adopted should be based on international standards,

guidelines or recommendations where they exist, such as those of the FAO/WHOCodex Alimentarius Commission. Where measures do conform to these inter-national standards they are to be considered as being consistent with theSPS Agreement and the GATT. Measures that result in a higher level of sanitary orphytosanitary protection than that which would be achieved by the application ofthe relevant international standards are allowed, but only where there is scientificjustification for this. Members are to play a full part in the development of inter-national standards in this area, in particular those of the Codex AlimentariusCommission, the International Office of Epizootics and the organisations operat-

ing within the framework of the Plant Protection Convention. The Committee onSanitary and Phytosanitary Measures is to monitor the international harmonisa-tion process and co-ordinate efforts in this regard with the relevant internationalorganisations.27

Members should accept the sanitary or phytosanitary measures of other mem-bers as being equivalent to their own, even where these measures differ from theirown or from those of other members trading in the same product, if the exportingmember can objectively demonstrate to the importing member that its ownmeasures achieve the same level and type of protection as theirs. Reasonable access


24 Annex A to the SPS Agreement.25 Ibid.26 Article 2.27 Article 3.


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should therefore be given to the importing member to assess the efficacy of theexporters measures in this regard. Where possible, this should be brought a stagefurther by the development between members of bilateral or multilateral agree-

ments on the recognition of equivalence of sanitary or phytosanitary measures.28Most importantly, for a members sanitary or phytosanitary measures to stand up

to international scrutiny, or for them to be objectively justifiable to those withwhom they trade in the affected products, members must ensure that any such mea-sures taken are based on an appropriate assessment of the risks to human, animal orplant life or health, taking into account the risk assessment techniques developed bythe relevant international organisations. In the assessment of risk members are totake account of the available scientific evidence; the relevant processes and produc-tion methods; the relevant inspection, sampling and testing methods; the prevalence

of specific diseases or pests; the existence of pest or disease free areas; the relevantecological and environmental conditions; and quarantine or other treatment. Inassessing the risk to animal or plant life or health and in determining the measure tobe applied for achieving the appropriate level of sanitary or phytosanitary protec-tion from such risk, members are to take account of the relevant economic factors,including the potential damage in terms of loss of production or sales in the eventof the entry, establishment or spread of a pest or disease; the costs of control oreradication of a pest or disease in the importing member; and the relative cost-effectiveness of alternative approaches to limiting risks. In making such decisions on

the appropriate level of protection, regard should always be had to the objective ofminimising negative trade effects. In order to ensure that there is consistency in theapplication of sanitary or phytosanitary measures amongst members, efforts shouldbe made to avoid arbitrary or unjustifiable distinctions in the levels of protectionconsidered appropriate in different situations if these distinctions result in discrim-ination or a disguised restriction on international trade. To further this aim of har-monisation and certainty in the taking of such measures, members are to co-operatewith the Committee on Sanitary and Phytosanitary Measures in order to developrelevant guidelines on this. In developing such guidelines, the Committee is to takeaccount of all relevant factors, including the exceptional character of human health

risks to which people voluntarily expose themselves. When establishing or main-taining sanitary or phytosanitary measures, members are to ensure that these are notmore restrictive on trade than that which is required to achieve the appropriate levelof protection, taking into account both technical and economic feasibility. A mea-sure is not deemed to be more trade restrictive than that required unless there isanother measure, reasonably available, also taking into account technical and eco-nomic feasibility, that achieves the appropriate level of protection and which is sig-nificantly less restrictive to trade. Where there is insufficient scientific evidence tosupport a measure, a member may provisionally adopt the measure on the basis of

the available pertinent information, including information from the relevant inter-national organisations. In such circumstances, members must seek to obtain the


28 Article 4.


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additional information necessary for a more objective assessment of the risk posedand review the measure accordingly within a reasonable period of time. Wherea member believes that a measure introduced by another member is constraining,

or has the potential to constrain, its exports, and the measure is not based on therelevant international standards, guidelines or recommendations, or where thesestandards, guidelines or recommendations do not exist, an explanation of thereasons for the measure may be requested and, where such a request is made, mustbe provided.29

Members must ensure that their sanitary or phytosanitary measures are adaptedto the characteristics of the areawhether a country, part of a country, or all orparts of several countriesin which the product originates and for where theproduct is destined. In assessing these sanitary and phytosanitary characteristics,

members are to take account of the level of specific diseases or pests, the existenceof eradication or control programmes, and appropriate criteria or guidelineswhich may be developed by the relevant international organisations. Exportingmembers who claim that their territories are pest- or disease-free areas must pro-vide evidence of this.30 Again, in preparing and applying sanitary and phyto-sanitary measures, members are to take account of the needs of developingcountry members, in particular the least-developed countries. For example, longertime frames for compliance and certain exceptions should be allowed wherepossible.31 The Agreement also establishes a Committee on Sanitary and

Phytosanitary Measures to provide a forum for regular consultations, to improveinternational harmonisation of measures, and to encourage the use of inter-national standards, guidelines or recommendations where appropriate.32

The potential for the SPS Agreement to impact upon EU food law and policy isclearly evident from the dispute that has arisen over the implementation of thegenetically modified organisms moratorium. Complaints have been brought bythe United States, Canada and Argentina, claiming that the actions of the EU insuspending the approval of biotech products has restricted international trade infood.33 It is also alleged that individual EU Member States have maintainednational marketing and import bans on biotech products, even where their use has

already been approved by Community law. At the time of going to press, the dis-pute panel were considering whether this action/inaction by the Community wascontrary to Articles 2 (basic rights and obligations), 5 (assessment of risk anddetermination of the appropriate level of sanitary or phytosanitary protection), 7(transparency) and 8 (control, inspection and approval procedures), as well asAnnex B (transparency of sanitary and phytosanitary regulations) and Annex C(control, inspection and approval procedures) of the SPS Agreement.34 The panel


29 Article 5.30 Article 6.31 Article 10.32 Article 12.33 WTO DS291, DS292 and DS293, ECApproval and Marketing of Biotech Products.34 The Panel Report was circulated to WTO Members on 29 September 2006. The Report had not

yet been adopted by the Dispute Settlement Body on 31 October 2006.


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is also examining whether the moratorium and Member State actions are contraryto aspects of the Agreement on Agriculture,35 and the Agreement on TechnicalBarriers to Trade.36 A decision on this has been delayed on several occasions, the

request for consultations originally being made in May 2003, and the panel estab-lished in March 2004. After a series of delays, it was estimated that a final reportwould be presented by June 2005, then October 2005, then December 2005, thenMarch 2006, then September 2006.

Agreement on Technical Barriers to Trade

All products traded between members, including agricultural products, are sub-ject to the provisions of the TBT Agreement.37 Under the terms of the Agreement,

members are to refrain from preparing, adopting or applying technical regulationsthat create unnecessary obstacles to international trade. Technical regulationsmust therefore be no more trade-restrictive than necessary to fulfil a legitimateobjective. The legitimate objectives listed in the Agreement include national secur-ity requirements, prevention of deceptive practices, protection of human health oranimal or plant life or health, and protection of the environment. In assessing suchrisks, members are to consider the available technical and scientific information,related processing technology and the intended end-uses of products.38 Technicalregulations are defined in the Agreement as a:

document which lays down product characteristics or their related processes and pro-duction methods . . . with which compliance is mandatory. It may also include or deal

exclusively with terminology, symbols, packaging, marking or labelling requirements as

they apply to a product, process of production method.39

Technical regulations should not be maintained if the circumstances or objec-tives giving rise to their adoption no longer exist or if the changed circumstancesor objectives can be addressed in a less trade-restrictive manner.40 Where techni-cal regulations are required and relevant international standards exist, or theircompletion is imminent, members are to use these standards as a basis for their

technical regulations, except when the use of such standards would be ineffectiveor inappropriate for the fulfilment of the legitimate objectives pursued, forexample because of fundamental climatic or geographical factors or technologicalproblems.41 Members must also play a full part in harmonising technical regula-tions at the international level by assisting the appropriate international standard-ising bodies.42 Any member preparing, adopting or applying a technical regulation


35 Article 4 (market access).36 Articles 2 (preparation, adoption and application of technical regulations by central government

bodies) and 5 (procedures for assessment of conformity by central government bodies).37 Article 1.3.38 Article 2.2.39 Annex 1 to the TBT Agreement.40 Article 2.3.41 Article 2.4.42 Article 2.6.


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which may have a significant effect on the trade of other members must, whenrequested by another member, explain the justification for that technical regula-tion. Where a technical regulation is introduced for one of the legitimate objec-

tives listed and is in accordance with the relevant international standards, it ispresumed that it does not create any unnecessary obstacle to international trade.43

Members must, as far as possible, accept the technical regulations of other mem-bers, even where they differ from their own, provided that they are satisfied thatthese regulations adequately fulfil the same objectives as their own.44 In particular,members must provide differential and more favourable treatment to developingcountry members on TBT matters. This includes recognising that developingcountry members should not be expected to use international standards as a basisfor their technical regulations or standards which are not appropriate to their

development, financial and trade needs.45

Members must ensure that their central government standardising bodiesaccept and comply with the Code of Good Practice for the Preparation, Adoptionand Application of Standards, set out in Annex 3 to the TBT Agreement. They areto take the necessary reasonable measures as may be available to them to ensurethat local government and non-governmental standardising bodies within theirterritories, as well as regional standardising bodies (bodies whose membership isopen only to some WTO members: see Annex 1 to the TBT Agreement) of whichthey or one or more bodies within their territory are members, accept and comply

with the Code of Good Practice.

46

In addition, members are not to take measuresthat have the effect of requiring or encouraging such standardising bodies to act ina manner inconsistent with the Code. The obligations of members with respect tothe compliance of standardising bodies with the provisions of the Code of GoodPractice apply irrespective of whether or not a standardising body has accepted theCode.47

Under the terms of the Code of Good Practice for the Preparation, Adoptionand Application of Standards, standardising bodies must accept many of the prin-ciples of the TBT Agreement that also apply to individual members. For example,there is to be recognition of international standards, such as those of the Codex

Alimentarius; standardising bodies are not to introduce standards that createunnecessary obstacles to international trade; and standardising bodies are to con-tribute to the preparation of harmonised international standards. However, thereare additional responsibilities placed on standardising bodies. For example,they are to avoid duplication of, or overlap with, the work of other standardising


43 Article 2.5.44 Article 2.7.45 Article 12.46 The procedures for the assessment of conformity by central government bodies, local govern-

ment bodies and non-governmental bodies with the terms of the TBT Agreement are set out in Articles5 to 9 thereof. Requirements relating to the availability of information about technical regulations,standards and conformity assessment procedures are set out in Articles 10 and 11 of the TBTAgreement.

47 Article 4.1.


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bodies in the national territory or with the work of relevant international orregional standardising bodies. Standardising bodies should also, under the termsof the Code, specify standards that are based upon product requirements in terms

of performance, rather than design or descriptive characteristics.The TBT Agreement also establishes a committee on technical barriers to trade.

It is composed of a representative of each member and meets as necessary, but atleast once a year, for the purpose of affording members the opportunity of con-sulting on any matters relating to the operation of the TBT Agreement. TheCommittee may establish working parties as appropriate to carry out further tasksor investigations.48 Where a dispute arises over the application of the TBTAgreement, a dispute panel may, either on its own initiative or at the request ofone of the parties to the dispute, establish a technical expert group to assist in ques-

tions of a technical nature that may arise which require detailed consideration byexperts.49 These groups are under the authority of the panel, which determinestheir terms of reference and detailed working procedures on a case-by-case basis.50

Agreement on Agriculture

The WTO Agreement on Agriculture aims to liberalise international trade in theagricultural sector, in particular by easing access to all member markets. TheAgreement attempts to achieve this by prohibiting impeding measures, such as

quantitative import restrictions, minimum import prices, voluntary exportrestraints and discretionary import licensing.51 This is to be done by convertingexisting measures into ordinary customs duties.

The Agreement also sets out a series of commitments to be undertaken by mem-bers regarding import and export subsidy levels. Members are to undertake toreduce these subsidies by agreed amounts. However, it is in relation to the enforce-ment and monitoring of this that the Agreement falls short. There is no effectiveprocedure in place. The Agreement does provide that the implementation ofcommitments is to be reviewed by a Committee on Agriculture.52 However, theevidence suggests that members do not adhere to this in a manner that is con-

ducive to achieving the stated aim of subsidy reduction. This is due to two factors.First, not all members submit the required information to the Committee regard-ing how they have met their agreed commitments, and second, the informationthat is submitted tends to be presented in a manner that is both confusing and mis-leading, making it difficult to establish whether set subsidy reduction targets havebeen met.53


48 Article 13.49 Article 14.50 Annex 2 to the TBT Agreement.51 Article 4.2.52 Article 18.53 See B OConnor, A Note on the Need for More Clarity in the World Trade Organization

Agreement on Agriculture (2003) 37Journal of World Trade839.


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The second key shortcoming of the Agreement on Agriculture relates to theso-called peace clause, inserted into the Agreement after stalemate was reachedduring negotiations. This clause requests that members exercise due restraint

when considering bringing a matter before the DSB.54 Essentially it is a plea tomembers not to bring any such action, in particular in relation to domestic sup-port measures and export subsidies, unless absolutely necessary. In fact, some suchactions are expressly ruled out by this.

Overall, the Agreement on Agriculture fails to achieve its key aim, the lib-eralisation of trade in agricultural products. This is not to say that it is devoid ofpotential, however. For this to be realised, particularly the issue of domestic sup-port and export subsidies, a more rigid monitoring and enforcement mechanismis required to ensure that the commitments undertaken are implemented. It

would also be necessary to re-negotiate the peace clause in a manner that furtherfacilitates the possibility of resolving disputes relating to trade in agriculture.

4.2.2 Dispute Settlement at the World Trade Organization

The system of dispute settlement set out in the GATT differed in many ways fromthat established for the WTO after the Uruguay Round negotiations. The mecha-nism set out in GATT Articles XXII and XXIII were primarily designed to appraise

the practices of the contracting parties rather than to cast judgment on theiractions. States were to give sympathetic consideration to complaints that theywere acting contrary to the terms of the Agreement. Initially there was not even aformal specific procedure for dealing with these complaints. However, from theearly 1950s onwards, panels were established to investigate possible breaches ofGATT rules, although their findings did not result in orders being given to states toalter their behaviour where they were found to be acting contrary to their inter-national trade regulation obligations. Suggestions were made as to how compati-bility with the terms of the GATT could be increased. Aspects of this customaryprocedure were later codified during the Tokyo Round negotiations in 1979, result-

ing in the drafting of an Understanding Regarding Notification, Consultation,Dispute Settlement and Surveillance, including an Agreed Description of theCustomary Practice of the GATT in the Field of Dispute Settlement as an Annex.55

The development of a codified system of dispute settlement had led to an increasein the use of the complaints procedure. However, this had also led to an increase inblocking the adoption of panel reports by the losing contracting party. It was iden-tified, prior to the Uruguay Round, that the dispute settlement procedure wouldneed to be improved and strengthened to counter this. The WTO DisputeSettlement Understanding (DSU) was thus developed to address the issue.


54 Article 13.55 For further discussion and analysis see AF Lowenfeld, International Economic Law(Oxford, OUP,

2002), pp 13550 and RE Hudec, GATT Dispute Settlement after the Tokyo Round: An UnfinishedBusiness (1980) 13 Cornell International Law Journal145.


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Annex 2 to the WTO Agreement, the Understanding on Rules and ProceduresGoverning the Settlement of Disputes, details the manner in which disputes maybe both heard and resolved at WTO level. The WTOs dispute settlement system

is described in the Understanding as a central element in providing security andpredictability to the multilateral trading system.56 The manner in which thismechanism has developed since its initial inception under the GATT would sug-gest that it has, by and large, been successful in this regard. The prompt settlementof situations in which a member considers that any benefits accruing to it directlyor indirectly are being impaired by measures taken by another member is clearlyrecognised as being essential to the effective functioning of the WTO and themaintenance of a proper balance between the rights and obligations of members.57

A solution that is mutually acceptable to the parties to a dispute and consistent

with the covered agreements is preferred. In the absence of a mutually agreedsolution, the first objective of the dispute settlement mechanism is to secure thewithdrawal of the measures concerned if they are found to be inconsistent with theprovisions of any of the covered agreements. The provision of compensationshould only be resorted to if the immediate withdrawal of the measure is imprac-ticable and as a temporary measure pending the withdrawal of the inconsistentmeasure. As a very last resort, the Understanding provides the claimant memberwith the possibility of suspending the application of concessions or other obliga-tions under the covered agreements to the infringing party, subject to authorisa-

tion of any such measures by the DSB.

58

The dispute settlement process commences with a member making a complaintagainst another member which it feels to be in contravention of one or more of thecovered agreements. The covered agreements are listed in Appendix 1 to theUnderstanding and include the Agreement Establishing the WTO and the multi-lateral and plurilateral agreements on trade in goods. Consultation then takesplace, during which members should attempt to find a satisfactory resolution tothe matter. If consultation fails to settle the dispute within 60 days after the date ofreceipt of the request for consultation, the complaining party may request theestablishment of a panel. This may also take place before the expiry of the 60 day

period if the parties agree. This period is reduced to 20 days where the disputerelates to perishable goods.59 Conciliation and mediation procedures may berequested at any time by any party to a dispute in an attempt to resolve the mat-ter. All parties to the dispute must agree to the use of these procedures. Once theprocedures terminate, the complaining party may proceed with a request for theestablishment of a panel. If the parties to a dispute agree, these procedures mayalso continue while the panel process proceeds.60


56 Article 3.2.57 Article 3.3.58 Article 3.7.59 Article 4.60 Article 5.


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Where the formation of a panel is requested and/or agreed by the parties to adispute, it is to be established at the DSB meeting following the meeting at whichthe request first appeared as an item on the DSB agenda. Any request to establish

a DSB must be made in writing, indicating whether consultations were held andidentifying the specific measures at issue, providing a brief summary of the legalbasis of the complaint.61 Panels are to be composed of well-qualified governmen-tal and/or non-governmental individuals, including, inter alia, persons who haveserved on or presented a case to a panel or who have taught or published on inter-national trade law or policy. They are to be independent and they cannot be citi-zens of members whose governments are parties to the dispute, unless the partiesto the dispute agree otherwise. There are generally to be three panellists, but insome circumstances there may be five. Objections to proposed nominations to the

panel may be raised by any party to the dispute: such an objection must be basedon a compelling reason. When a dispute is between a developing country memberand a developed country member the panel should include, where the developingmember requests this, at least one panellist from a developing country member.62

Whenever feasible, a single panel may be established to examine more than onecomplaint on the same matter.63 Any member who has a substantial interest in amatter before a panel and having notified this interest to the DSB must be heardby and be permitted to make written submissions to the panel.64

The function of the panels is to assist the DSB in discharging its responsibilities

under the Understanding and the covered agreements. Accordingly, a panelshould make an objective assessment of the facts of the case and the applicabilityof and conformity with the relevant covered agreements, and to make such furtherfindings as will assist the DSB in making the recommendations or in delivering therulings provided for in these agreements. In order to achieve this, panels mustmeet regularly with the parties to the dispute to give them adequate opportunityto develop a mutually satisfactory solution.65 Panels have the right to seekinformation and technical advice from any individual or body that it deemsappropriate.66 All panel deliberations are confidential.67

Following the consideration of submissions and arguments, the panel is to issue

the descriptive sections of its draft report to the parties to the dispute. The partiesare then invited to submit their comments on this in writing. The panel issues aninterim report to the parties, including details of its overall findings and conclu-sions. Requests may be made to review the report at this stage, before it is circu-lated to all members. If no comments are received, the interim report is consideredto be the final report and it is circulated to all members.68 The reports are then to


61 Article 6.62 Article 8.63 Article 9.64 Article 10.65 Article 11.66 Article 13.67 Article 14.68 Article 15.


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be adopted by the DSB, unless it is decided otherwise or a party to the disputeformally notifies the DSB that it is appealing the decision. It may, of course, beadopted if any such appeal is unsuccessful.69 The standing Appellate Body is com-

posed of seven persons, three of whom sit in any one case, serving in rotation. Onlyparties to a dispute, and not third parties, may appeal a panel report, althoughthird parties who have notified the DSB of their substantial interest in the matterunder review may make written submissions to, and be given an opportunity to beheard by, the Appellate Body. Appeals are limited to issues of law covered in thepanel report and legal interpretations developed by the panel. The proceedings ofthe Appellate Body are confidential and their reports are drafted without the pres-ence of the parties to the dispute and in the light of the information provided inthe statements. The Appellate Body may uphold, modify or reverse the legal find-

ings and conclusions of the dispute panel. Appellate Body reports are to beadopted by the DSB and unconditionally accepted by the parties to the disputeunless the DSB decides otherwise.70 Where a panel or the Appellate Body con-cludes that a measure is inconsistent with a covered agreement, it recommendsthat the member concerned bring the measure into conformity with that agree-ment. In addition to its recommendations, the panel or the Appellate Body maysuggest ways in which the member concerned could implement the recommenda-tions. Neither the panel nor the Appellate Body can add to or diminish the rightsand obligations provided in the covered agreements.71

Prompt compliance with recommendations or rulings of the DSB are seen to beessential in order to ensure the effective resolution of disputes. Particular attentionis to be paid in this regard to matters affecting the interests of developing countrymembers. The member that is the subject of the ruling is to inform the DSB of itsintentions in respect of the implementation of the recommendations made within30 days of the adoption of the report. Longer periods of compliance may be per-mitted in some circumstances.72

Where the rulings or recommendations are not implemented within a reason-able period of time, compensation and the suspension of concessions or otherobligations may be used as temporary measures to deal with the matter. However,

full implementation of a recommendation is always preferred. The payment ofcompensation is voluntary. Where no deal on compensation is reached, the partythat invoked the dispute settlement procedure may request authorisation from theDSB to suspend the application of concessions to the member concerned. Severalprinciples should be followed by the complaining party when considering whatconcessions to suspend. The general principle is that concessions should be sus-pended in the same sector as that in which the panel or Appellate Body has founda violation. If this is not practicable, or will not be effective, then concessionsmay be suspended in other sectors dealt with under the Agreement that has been


69 Article 16.70 Article 17.71 Article 19.72 Article 21.


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violated. If this is neither practicable nor effective, and the circumstances areserious enough, then concessions that are covered by another agreement may besuspended. The level of the suspension of concessions authorised by the DSB

should be equivalent to the level of violation of the Agreement. The suspension ofconcessions is a temporary measure and it can only be applied until the inconsis-tent measure has been removed, or until the member that is obliged to implementthe recommendations or rulings provides a solution to the impasse, or untilsome form of mutually satisfactory solution is reached between the parties to thedispute.73

The Understanding includes a series of measures designed to make the disputesettlement procedure more attractive, and compliance with recommendationsand/or rulings more feasible, for least-developed country members. Those dis-

putes that involve a least-developed country member must give particular consid-eration to the position of such complainants or respondents. For example,members are to exercise due restraint in raising matters under the disputesettlement procedure. Complaining parties are also to exercise due restraint inasking for compensation or seeking authorisation to suspend the application ofconcessions pursuant to these procedures. Where a satisfactory solution is notfound in the course of the consultation stage of the dispute settlement process,either the Director-General of the WTO or the Chair of the DSB is, whenrequested by a least-developed country member, to offer conciliation and media-

tion with a view to assisting the parties to settle the dispute before a request for apanel is made.74

Arbitration may be used as an alternative means of dispute settlement in somecircumstances. Resort to arbitration is subject to the mutual agreement of the par-ties, which must also agree the procedures to be followed in their case. Othermembers, who are notified of arbitration in advance of the actual commencementof the process, may become party to the proceedings where the other parties agree.All parties to the proceeding must agree to abide by the arbitration award.75

4.2.3 Effect of WTO Rules on EU Food Law

There can be little doubt about the fact that EU food law must now, where pos-sible, conform to the Communitys WTO obligations. The actual impact of thisshould not, however, be overstated. The difficulties that arise in other areas ofinternational law also arise in international trade regulation. Key to the properfunctioning of any such international system of rules is compliance. Member self-interest, delays in proceedings and lack of effective remedy continue to reduce thepotential of the WTO dispute settlement mechanism for resolving international

disagreements over non-compliance that impedes global trade in food. However,


73 Article 22.74 Article 24.75 Article 25.


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there are also clearly circumstances in which WTO rules can affect the nature ofEU food lawsultimately obliging the Community to alter its legislation orbehaviour in some way.

Take, for example, the well-established system for the protection of geographi-cal food names, as originally set out in Regulation 2081/1992.76 Here, a lack ofeffective access for applicants from third countries to the EU registration systemfor these foodstuffs led to findings that this legislation would have to be changed.An emphasis on prompt compliance with the findings of panel reports means thatthese alterations must be effected quickly. In such circumstances, the dispute res-olution process can be judged a success. Compare this to the endless rounds ofdelay in making a decision on the EU moratorium on the approval and use ofgenetically modified organisms. Such procrastination minimises the impact of a

ruling when it ultimately arrives. The facts here centre on actions that wereinitiated in the late 1990s, but the dispute panel report will not appear until at leastlate 2006. Nearly a decade will have passed between the trade-inhibiting actions ofthe EU and any finding in relation to the incompatibility of this action with WTOrules and obligations.77 By then, the moratorium will have been lifted. Public con-cern over the use of genetic modification techniques in food production that ledto the moratorium and individual Member State action has already died down.The EU has not suffered as a result of its actions and no effective remedy, such asthe suspension of trade concessions or fines, can be imposed.

We note two final points at this stage regarding the interaction between inter-national trade regulation and EU food law. First, increased use of the precaution-ary principle by the EU institutions, in other words the taking of trade-restrictiveactions where a possibility of risk to human health or the environment is reason-ably suspected, is likely to increase accusations that such actions are in direct con-flict with WTO rules, in particular those set out in the SPS Agreement. This willdefinitely be the case until more transparent criteria are devised to establish whensufficient evidence that supports any such behaviour exists. This is discussed inmore detail in Chapter 5. Second, the WTO negotiations and Agreements are onlypart of a package of international trade-related rules that affect EU food law. The

well-established principles and standards of the FAO/WHO Codex AlimentariusCommission have consistently been used to shape EU food legislation and Courtof Justice determinations. These have been influencing the nature of EU food lawin a persuasive manner since both the corpus of EU rules and the Codex itselfbegan to develop in the 1960s.


76 These provisions are now contained in Council Regulation 510/2006 of 20 March 2006 on theprotection of geographical indications and designations of origin for agricultural products and food-stuffs. [2006] OJ L 93/12.

77 As noted earlier, the Panel Report circulated on 29 September 2006 had not yet been adopted by

the Dispute Settlement Body on 31 October 2006. However, it is noted here that the Report did findthat the EU, by applying the moratorium, had acted contrary to its SPS obligations, in particular Article8 (Control, Inspection and Approval Procedures) thereof. It was also found that the national market-ing and import bans imposed by individual EU Member States were inconsistent with the essential riskassessment criteria set out in Articles 2.2. and 5.1. of the SPS Agreement.


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4.3 FAO/WHO CODEX ALIMENTARIUS

The Codex Alimentarius (food code) is the seminal global reference point for food

standards. UN Resolution 39/248 stipulates that the Codex should be taken intoaccount and, where possible, transposed by States into their domestic laws on foodstandards. The importance and relevance of the Codex has increased significantlysince the formation of regional trade areas, such as the EU, and since the inceptionof the WTO. Both the SPS Agreement and the TBT Agreement encourage har-monised international food standards. Both have chosen the standards, guidelinesand recommendations established by the Codex Alimentarius Commission. TheSPS Agreement adopts Codex standards for food additives, veterinary drug andpesticide residues, contaminants, methods of analysis and sampling, and codes

and guidelines on hygienic practice. Article 2 of the TBT Agreement states thatmembers of the WTO are to use international standards, such as those of theCodex Alimentarius, where they exist, as a basis for their own technical regula-tions.78 This is also the case in situations where no such standards exist but theircompletion is imminent.79 As a consequence, Codex standards have become thebenchmark for European Union decisions and measures on international trade infood, forming the basis for the specific requirements of many Community regula-tions and directives. They have also been adopted by the North American FreeTrade Agreement (NAFTA), the Southern Common Market (MERCOSUR), and

the Asia-Pacific Economic Co-operation Council (APEC).

4.3.1 Historical Development of the Codex Alimentarius

The idea behind the FAO/WHO Codex Alimentarius came from a system of foodcodes used in the Austro-Hungarian Empire between 1897 and 1911. This systemestablished a collection of standards and product descriptions for a wide variety offoods. It was known as the Codex Alimentarius Austriacus. Although it lacked true

legal force, this system was used extensively as a reference resource by courts todetermine the typical standards for or identity of a particular foodstuff. TheFAO/WHO Codex Alimentarius, which takes its name from the Austrian code, wasinitiated in 1961. Among the first foodstuffs to be standardised by the code in 1966were cheddar, edam and gouda, followed by emmenthal in 1967, and cottage cheeseand saint paulin in 1968. Among the more recent foodstuffs to be standardisedthrough the Codex are fruit juices (2005),80 oranges (2004),81 and canned bambooshoots (2003).82 The two main purposes behind the formulation of a global food

4.3 FAO/WHO Codex Alimentarius 151

78 Article 2.4 of the TBT Agreement. The Codex Alimentarius is not specifically mentioned but it is

clear that it is this type of international harmonised standard to which the TBT Agreement alludes.79 Article 2.4 of the TBT Agreement.80 Codex Standard 247/2005.81 Codex Standard 245/2004.82 Codex Standard 241/2003.


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standards code are food security and consumer protection.83 However, the remit ofthe Codex Alimentarius Commission has evolved with the development of theCodex itself. The Codex now covers standards relating to food composition, codes

of hygiene and technological practice, evaluation and limitation of the use of pesti-cides, guidelines on contaminants, and the evaluation of additives and veterinarydrugs. Among some of the standards set by the Codex are those on the analysis ofcontaminants and pesticides, maximum levels for toxins in milk, cadmium incereals and lead in foodstuffs, the collection, processing and marketing of naturalmineral waters and the transportation of food in bulk. The Codex also sets an inter-national numbering system for additives.

Codex standards may be fully accepted, accepted with minor deviations, oraccepted by free distribution by the member countries. The FAO and the WHO

provide assistance to developing countries to ensure that they have the technicaland administrative infrastructure in place to enable them to adopt Codex stan-dards. Such assistance includes convening expert meetings to advise the CodexAlimentarius Commission on relevant issues, conducting workshops and trainingcourses, strengthening analysis and inspection capabilities, and assisting in theestablishment of food control agencies.

The other key accomplishment of the Codex is that food hazards and theimportance of quality in food have been put in the spotlight. Through its work, theCodex Alimentarius Commission generates scientific studies and convenes expert

committees, such as the Expert Committee on Food Additives and the ExpertCommittee on Pesticide Residues, and consultations, such as those on risk assess-ment and food safety (1995), biotechnology and food safety (1996), and the roleof government agencies in assessing HACCP (the application of hygienic practicesin food production) (1998). The Codex Commission is a useful forum for theexchange of ideas and information relating to the need for, and the identificationof, best practice in the production and marketing of food globally. It has alsoprompted action to be taken within individual States that may otherwise havefailed to act on many of the key issues. In particular, through the expansion anddevelopment of the Codex, many States have recognised the need for domestic

food agencies to be created to oversee the implementation of these best practices,or at the very least, an acceptable version of them.

4.3.2 Operation of the Codex Alimentarius Commission

Both the eleventh session of the Conference of the FAO in 1961 and the sixteenthWorld Health Assembly in 1963 passed resolutions to establish the Codex


83 Food security is deemed to exist when all people, at all times, have physical and economic accessto sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active andhealthy life. World Food Summit, Rome, November 1996. For further discussion see K Mechlem,Food Security and the Right to Food in the Discourse of the United Nations in F Snyder (ed),International Food Security and Global Legal Pluralism (Brussels, Bruylant, 2004).


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Alimentarius Commission and adopted statutes and rules of procedure for theCommission. The statutes provide the legal basis for the work of the Commission.Article 1 states the purpose of the Commission, and sets out its terms of reference

and objectives. It states that the Commission is:

responsible for making proposals to, and shall be consulted by, the Directors-General of

the FAO and the WHO on all matters pertaining to the implementation of the Joint

FAO/WHO Food Standards Programme, the purpose of which is:

(a) protecting the health of consumers and ensuring fair practices in the food trade;

(b) promoting co-ordination of all food standards work undertaken by international

governmental and non-governmental organisations;

(c) determining priorities and initiating and guiding the preparation of draft standards

through and with the aid of appropriate organisations;(d) finalising standards elaborated under (c) above and, after acceptance by govern-

ments, publishing them in a Codex Alimentarius either as regional or world wide

standards, together with international standards already finalised by other bodies

under (b) above, wherever this is practicable;

(e) amending published standards, after appropriate survey in the light of develop-

ments.

Article 2 defines eligibility for membership of the Commission, which is opento all member nations and associate members of the FAO and WHO. There are

currently 173 members of the Codex Commission.The Rules of Procedure of the Codex Alimentarius Commission state the condi-tions for membership of the Commission, and provide for the appointment of

Commission officers, including the chair, three vice-chairs, regional co-ordinators

and a secretary, setting out the responsibilities of each; the establishment of an

executive committee to meet between Commission sessions and to act on behalf of

the Commission as its executive; the frequency and operation of Commission ses-

sions; the nature of agendas for Commission sessions; voting procedures; the role of

observers; preparation of Commission records and reports; the establishment of sub-

sidiary bodies; the procedures to be adopted in the elaboration of standards; budget

allocation; and the languages to be used by the Commission. The Commission meetsevery two years, alternating between the FAO headquarters in Rome and WHOs

headquarters in Geneva. National delegations at plenary meetings are generally led

by government-appointed officials, who may be accompanied by representatives

from industry and consumer organisations, and academics. International govern-

mental and non-governmental organisations may also attend as observers. While

their opinions may be heard at the meetings, they are not allowed to partake in the

final decisions, which must be made exclusively by the member governments.

Contact with the member governments is meant to be continuous. In order to facil-

itate this dialogue many members have set up Codex contact points and nationalCodex committees to co-ordinate and report on national activities.

The Codex Alimentarius procedural manual sets out the process by which stan-dards are prepared. First, a proposal for a standard to be developed is submitted



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by a national government or a subsidiary committee of the Commission. Then,either the Commission or the Executive Committee decides that the proposedstandard should be developed, and creates a subsidiary body under the Formal

Criteria for the Establishment of Work Priorities and for the Establishment ofSubsidiary Bodies, which is to be responsible for steering the standard through itsdevelopment. A proposed draft standard is formalised by the Commission secre-tariat and circulated to the member governments for comment. These commentsare considered by the subsidiary body that has been made responsible for thedevelopment of the proposed draft standard. This body may then present the textto the Commission as a draft standard. If the Commission decides to adopt thedraft standard, it is sent to member governments a number of times (usuallybetween five and eight times) in a step procedure. If the parties are satisfied, the

draft becomes a Codex standard and part of the Codex Alimentarius. The estab-lished format for a Codex standard includes information relating to the name ofthe standard; description, essential composition and quality factors defining theminimum standard for the food; food additives (as only those accepted by theFAO and WHO may be used); contaminant details; hygiene, weights and measuresdetails; labelling, in accordance with the Codex General Standard for the Labellingof Prepackaged Foods; and methods of analysis and sampling.

Codex standards are both horizontal (applying to all foodstuffs) and vertical(applying to specific foodstuffs) in nature. Horizontal standards are set for food

labelling, food additives, contaminants in food, methods of analysis and sampling,food hygiene, nutrition and foods for special dietary uses, food import and exportinspection and certification systems, residues of veterinary drugs in food, and pes-ticide residues in food. The complete Codex is set out in volumes on: generalrequirements and food hygiene; pesticide residues in foods; residues of veterinarydrugs in food; foods for special dietary uses (including those for babies and chil-dren); processed and quick-frozen fruits and vegetables; fresh fruit and vegetables;fruit juices; cereals, pulses (legumes) and derived products and vegetable proteins;fats and oils and related products; fish and fishery products; meat and meat prod-ucts, soup and broths; sugars, cocoa products, chocolate and miscellaneous prod-

ucts; milk and milk products; and methods of analysis and sampling. Theseindividual volumes are structured in sections, each dealing with individual aspectsof the subject area. For example, volume 1A on general requirements is dividedinto eight sections on general principles, definitions, code of international tradeethics, food labelling, food additives, contaminants, irradiated foods, and foodinspection and certification systems.

Under its Rules of Procedure, the Codex Commission is empowered to estab-lish two kinds of subsidiary body: Codex Committees, which prepare draft stand-ards for submission to the Commission; and Co-ordinating Committees, through

which regions or groups of countries co-ordinate food standard activities in theirregion, including the development of regional standards. The Codex Committeesmay be either general subject committees or individual commodity committees.The general subject committees deal with horizontal issues. There are existing



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committees on general principles, food labelling, methods of analysis andsampling, food hygiene, pesticide residues, food additives and contaminants,import/export inspection and certification systems, nutrition and foods for special

dietary uses, and veterinary drug residues. Generally, these committees are hostedby a member country, which is extensively responsible for the maintenance andadministration costs of the committee and for providing its chair. Host statesinclude France (general principles), Canada (labelling), Hungary (analysis andsampling), the United States of America (hygiene and veterinary drugs), TheNetherlands (pesticides and additives and contaminants), Germany (nutrition)and Australia (inspection and certification systems). These general subject com-mittees develop all-embracing concepts and principles applying to foods in gen-eral and specific foods or groups of foods; endorse or review relevant provisions in

Codex commodity standards; and, on the basis of expert scientific advice, developmajor recommendations pertaining to consumer health and safety.

The commodity committees are responsible for developing standards for spe-cific foods or classes of food, their work being vertical in nature. Again, these com-mittees are hosted by member countries who meet much of the administrative costof their operation. There are committees on fats and oils; sugars (both hosted bythe United Kingdom); fish and fishery products (Norway); milk and milk prod-ucts; meat hygiene (both New Zealand); fresh fruit and vegetables (Mexico); cocoaand chocolate; natural mineral waters; soups and broths (all by Switzerland);

processed fruits and vegetables; cereals, pulses and legumes (both by the UnitedStates of America); vegetable proteins (Canada); and processed meat and poultryproducts (Denmark). The Commodity Committees convene as necessary. They gointo recess or are abolished once the Commission feels that their work is complete.New committees may be established on an ad hoc basis to cover specific needs anddevelop new standards as necessary.

The co-ordinating committees have no standing host country. Meetings arehosted by countries of a region, usually a continent or combination of continents,on an ad hoc basis and in agreement with the Codex Commission. There areco-ordinating committees for Africa, Asia, Europe, South America and the

Caribbean, and North America and the Southwest Pacific. The reports of the co-ordinating committees, which must reflect regional interests, are submitted to theCodex Commission.

4.3.3 Codex Alimentarius Standards

Article 1 of the FAO/WHO Codex statutes states that one of the main priorities isthe protection of the health of consumers and the maintenance of fair trade prac-

tices in the food trade. Other United Nations bodies also recognise the importanceof consumer protection. In 1985 a UN General Assembly resolution gave rise to thedrafting of Guidelines for Consumer Protection, published in 1986. These guide-lines identify food as one of three priority areas that are of essential concern to the



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health of consumers. The document specifically identifies the Codex as the referencepoint for these consumer protection-related issues with regard to food. Two impor-tant international FAO/WHO conferences were held in the 1990s on food and

nutrition. In 1991 the Conference on Food Standards, Chemicals in Food and FoodTrade, held in co-operation with GATT, recommended continuing and strength-ened consumer participation in food-related decision-making at both national andinternational levels. The 1992 International Conference on Nutrition recom-mended that consumers be protected through improved quality and safety and out-lined measures designed to accomplish this. The FAO/WHO also held an expertconsultation on the Integration of Consumer Interests in Food Control in 1993.

The Codex standards clearly, by their very nature, offer consumers a level ofprotection by specifying minimum quality levels for foodstuffs. In addition to this,

the Codex also sets general horizontal standards which have a direct bearing onconsumer protection levels. For example, there is a General Standard for theLabelling of Prepackaged Foods, and there are the Codex General Guidelines onClaims and Codex Guidelines on Nutrition Labelling. Other general standardshave a role to play in protecting the consumer too, such as those for food hygiene,food additives, contaminants and toxins in food and irradiated foods. Other, morespecific standards have been set relating to consumer health protection, such as theLevels for Radionuclides in Foods Following Accidental Nuclear Contaminationfor Use in International Trade.

The Codex also sets out a series of codes of practice, such as the RecommendedInternational Code of PracticeGeneral Principles of Food Hygiene and theRecommended International Code of Practice for Control of the Use of VeterinaryDrugs. There are also a number of codes of technological practice which aredesigned to ensure that the processing, transportation and storage of foodsproduced to Codex standards are such that the end product that consumersreceive attains the expected quality level. Such codes exist for infant foods, thetransportation of fresh fruit and vegetables and the storage and transportation ofedible oils and fats.

The work of the Codex Alimentarius Commission is not limited to the removal

of barriers to international trade. It also supports and encourages food traders toadopt voluntary ethical practices to promote fair trade. The Commission has pub-lished the Code of Ethics for International Trade in Food to aid this endeavour.

Codex Alimentarius Code of Ethics

The Codex Alimentarius Commission adopted the Code of Ethics for InternationalTrade in Food at its thirteenth session in December 1979. The Code was lateramended by the sixteenth session of the Commission in July 1985. The

Commission recognised that adequate, safe, sound and wholesome food is vital toachieving acceptable standards of living. The right to such a standard, particularlyin relation to the health and well-being of the individual, is proclaimed in theUnited Nations Universal Declaration of Human Rights.



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Food is also vital to international trade. Food quality is influenced primarily byprevailing commercial practices, food legislation and control measures. Given thatconsumers spend such a significant portion of their income on food, it is important

that unfair trade practices should be minimised and that the safety and whole-someness of food should be maximised. The Commission felt it necessary to actdue to underdeveloped food legislation and control infrastructures in many states,leaving them vulnerable to unethical trading practices and consequently exposed topoor quality and unsafe food imports. The Codex Alimentarius Commission was,it was claimed, particularly well placed to draft a code on this issue, given that itsprincipal objectives include the protection of consumer health and ensuring fairpractices in international trade in food, facilitating such trade through the har-monisation of standards and practice in food production. Its role, and that of the

Code of Ethics, would be to assist individual members in establishing or strength-ening their food legislation and food control infrastructures and, where necessary,to take advantage of the work of international organisations competent to adviseand provide assistance in such matters, such as the Codex AlimentariusCommission itself. The hope was that the Code would help to establish an interna-tionally agreed norm and a framework for the realisation of effective internationalco-operation on those ethical aspects of trade covered by it. In particular, the Codeseeks to establish standards of ethical conduct for all those engaged in internationaltrade in food or responsible for regulating it and thereby to protect the health of the

consumer and promote fair trade practices.

84

In order to achieve this, thoseengaged in international trade in food would have to commit themselves morallyto the code and voluntarily undertake to support its implementation.

The Code states that international trade in food should be conducted on theprinciple that all consumers are entitled to safe and wholesome food and to pro-tection from unfair trade practices.85 Therefore, no food should be traded inter-nationally which contains any substance in an amount that renders it poisonousor otherwise harmful to human health; consists in whole or in part of any filthy,putrid, rotten, decomposed or diseased substance or foreign matter, or is other-wise unfit for human consumption; is adulterated; is labelled or presented in a

manner that is false, misleading or deceptive; or is sold, prepared, packaged, storedor transported for sale under unsanitary conditions.86

The Code also sets out a series of specific requirements on individual aspects ofthe production and marketing of food in international trade.87 It states that appro-priate standards should be established and enforced, taking into account thatuniform consumer protection and the orderly marketing of food can be betterachieved through the acceptance of food standards elaborated by the CodexAlimentarius Commission or the adaptation of national standards to such inter-national recommendations. In addition to this, food should be subject at all times


84 Article 1. The Code also applies, mutatis mutandis, to concessional food and food aid. Article 2.1.85 Article 4.1.86 Article 4.2.87 Article 5.


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to sound hygienic practices; it should be accompanied by accurate and adequatedescriptive labelling information; it should contain only Codex Alimentariusapproved additives; pesticide residues and contaminants should be limited to the

maximum Codex recommendations; all food should be free from micro-organisms and parasites in harmful amounts; irradiated food should be producedand controlled in accordance with the provisions and standards of the CodexAlimentarius Commission; food for infants and children and other vulnerablegroups should be in accordance with Codex standards; no claims should be madeabout any food, particularly processed food, with minimal nutritive value whichimplies that the food can make a valuable contribution to the diet; and anyinformation concerning the nutritional value of food should not mislead thepublic.

The implementation of the Ethics Code is deemed to be a matter for govern-ments, who should provide adequate food legislation and food control infra-structures, including certification and inspection systems and other legal oradministrative procedures as necessary.88 It is recognised that, in some emergencysituations, such as famines, it may not be possible or desirable to apply certain pro-visions of the Code. However, in such circumstances, due regard should still behad to the basic principles of the safety of food and other provisions of the Codeas may be applicable under those circumstances.89

Codex Alimentarius Food Labelling Standards

The Codex Ethics Code sets appropriate food labelling information as one of theprimary mechanisms to be used in efforts to ensure that internationally tradedfood is both safe and wholesome and that the consumer is protected. By obligingthe producer to state the composition of a product clearly on an accompanyinglabel there is less potential for consumer deception. Codex standards have thusbeen devised for labelling requirements generally,90 foods for special dietaryuses,91 and individual generic food products, such as chocolate and butter.92

Guidelines have been set for nutrition labelling,93 the production and labelling of

organic foods,94 and claims made on food labelling.95 It is hoped that through theinternational adoption of these harmonised standards consumers will be pro-tected to the best possible level throughout the trading world.


88 Article 7.89 Article 8.90 Codex Standard 1/1985. Revised 1991 and 2005.91 Codex Standard 146/1985.92 Codex Standard 87/1981. Revised 2003.93 Codex Guidelines 2/1985. Revised 1993 and 2003.94 Codex Guidelines 32/1999. Revised 2001 and 2004.95 General Guidelines on Claims, Codex Guidelines 1/1979, revised 1991; Guidelines for Use of

Nutrition and Health Claims, Codex Guidelines 23/1997, revised 2004.


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The Codex General Standard for the Labelling of Prepackaged Foods applies toall prepackaged foods, including those for catering purposes.96 Prepackaged foodmust not be described or presented on any labelling in a manner that is false,

misleading or deceptive or which is likely to create an erroneous impressionregarding its character in any respect, including suggesting that the product is infact another with which it might be confused, or in such a manner that may leadthe consumer to suppose that the food is connected with any other such product.97

The Codex Food Labelling Standard sets out those aspects of information thatmust appear on all prepackaged foods. These include:

(i) Food Name

The Codex states the purpose of the food name is to indicate the true nature of the

food. It should normally be specific and not generic. It may also be a Codex legalname, that is, one that has been established for a food in a Codex standard. Inother cases the name prescribed by national legislation is to be used. In the absenceof any such name, either a common or usual name must be used which exists bycommon usage as an appropriate descriptive term and which is neither mislead-ing nor confusing to consumers. Brand names and trade marks may only be usedif they accompany a Codex legal, national legal or customary name. The labelshould also contain, in close proximity to the name of the food, additional wordsor phrases as necessary to avoid misleading or confusing the consumer about thetrue nature and/or physical condition of the product, detailing, for example, anytreatment the foodstuff has undergone, such as reconstitution, drying, concen-trating or smoking.98

(ii) List of Ingredients

A list of ingredients must appear on all prepackaged food, with the exception ofsingle ingredient foods. The list is to be preceded by an appropriate title whichincludes the word ingredient. Ingredients are to be listed in descending order ofweight at the time of manufacture of the food. Where an ingredient is the productof two or more ingredients, this may be declared in its compound form, provided

that it is immediately accompanied by a list, in brackets, of its ingredients indescending order of proportion. Where a compound ingredient, for which a namehas been established in a Codex standard or in national legislation, constitutes lessthan five per cent of the food, the ingredients, other than food additives whichserve a technological function in the finished product, need not be declared. Foodsand ingredients which are known to cause hypersensitivity should always bedeclared. These include cereals containing gluten, eggs, fish, peanuts, soybeansand milk. The presence in any food or ingredient obtained through biotechnologyof an allergen transferred from any of these foods must be declared. Where it is not

possible to provide adequate information in this regard, the food containing the


96 Article 1 thereof.97 Article 3.98 Article 4.1.


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allergen should not be marketed at all. Added water should also be declared in thelist of ingredients, except where it forms part of another ingredient used in a com-pound food, such as broth or brine. Water that evaporates in the course of manu-

facture need not be declared. Where a food is to be reconstituted by the additionof water, the ingredients may be listed in order of their proportion in the recon-stituted product, provided that this is made clear on the label. Class names are alsoset for groups of ingredients that may all be labelled under the same generic name.For example, all refined oils other than olive oil may simply be listed in theingredients listing as oil, provided that this is preceded by the term vegetable oranimal as appropriate, and further qualified by the term hydrogenated or par-tially hydrogenated where applicable. Similarly, refined fats may all be labelledfat if preceded by the term animal or vegetable where appropriate, just as all

types of cheese or a mixture of cheeses may be labelled cheese, provided that thelabelling and presentation of the food does not refer to a specific type of cheese,and all poultrymeat may simply be listed in the ingredients as such, provided thatthe labelling does

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Influenta Internationala Asupra Legislatiei Europene