Public AdministrationSupplementary written evidence submitted by the European Commission (Eggs follow up 5)

The answers to the five questions in the letter from UK Environment, Food and Rural Affairs Committee dated 30 April 2012 are as follows:

Question No 1.
Has Italy now provided a response to the Commission’s letter of formal notice sent on 27 January 2012, and, if so, what is Italy’s position with regard to compliance with the Directive?

Yes, Italy replied within the deadline on 27 April 2012. Their letter has been sent for translation.

Question No. 2. (DG AGRI contribution)
What action is the Commission taking to close the loophole in the Egg Marketing Regulations which allows non-compliant eggs to be sent for processing outside the originating Member State, and could you explain how this loophole currently operates?

No loopholes exist in the EU legislation.

Annex II to Commission Regulation (EC) No 589/2008 of 23 June 2008 laying down detailed rules for implementing Council Regulation (EC) No 1234/2007 as regards marketing standards for eggs (OJ L 163, p. 6) establishes minimum requirements for systems of production for the various egg farming methods. In particular, paragraph 3 states that eggs from caged hens must be produced by laying hens reared in enriched cages as of 1 January 2012. Although the primary objective of Annex II is to define the farming method for the purpose of labelling Class A eggs, the methods of farming apply equally to Class B eggs as well as to un-classified eggs. In fact the distinction between Class A and Class B eggs is made only on the basis of quality criteria and not on the basis of considerations concerning animal welfare.

The consequence of these provisions is that eggs produced from un-enriched cages should not be marketed after 1 January 2012 according to Regulation (EC) No 589/2008 as this farming method no longer falls within the scope of the marketing standards after this date

Question No 3.
In the view of the Commission, do Articles 54 and 55 of Regulation 882/2004 provide a legal basis for the UK to exclude both shell eggs and non-shell egg products from non-compliant hens? Would they also provide a legal basis for the UK to exclude all shell eggs and non-shell egg products from non-compliant Member States?

Article 54 of Regulation (EC) No 882/2004 provides the Member States with powers and authority to take action in case of non compliance identified by their competent authorities, with a view to eliminating such non compliance.

The Article lists a number of possible measures that can be taken by competent authorities for that purpose, among which are possible restrictions or prohibition of the marketing of certain products (but also the suspension of withdrawal of the establishment’s approval, the suspension or closure of the business, etc).

Thus, the prohibition of placing on the market of eggs produced through a non compliant process could indeed be considered an appropriate measure to obtain compliance.

Considering the purpose of the measure, competent authorities in the UK would only be able to issue measures under Article 54 in respect of operators which are subject to their enforcement powers and which are found to be non-compliant.

The same applies to sanctions issued in accordance with Article 55 of the same Regulation.

Question No 4.
If the UK were to identify that a non-compliant egg had entered the UK, could it legally refuse to allow that egg to be marketed within the UK, even if it were downgraded to Class B and sent for processing?

The UK could not unilaterally take measures to prevent the placing on the UK market (“exclude”) of products originating from another Member State based on the fact that an infringement investigation was initiated by the Commission (or even that that Member State has admitted that not all the establishments on its territory comply with the provisions of the Directive).

Would the UK authorities have reasons to believe that serious non–compliances are ongoing in another Member State which require action from them or from the authorities in that Member State in order to ensure full implementation of the Directive’s rules, they should resort to the mechanisms for administrative cooperation between Member States (Articles 34 to 40 of the Regulation).

Should the UK authorities find non-compliant eggs (or egg products) from another Member State on the UK market, their efforts should focus on apprehending the source of the non-compliance, and on asking the competent authorities in the Member State of origin to take action to terminate it.

As to the fate of the non-compliant egg (or egg product), action by the UK authorities must be appropriate and proportionate to what is necessary to ensure the enforcement of the Directive’s provisions. In that sense, Article 54 would enable them to restrict the placing on the market of such products in the context of their enforcement efforts.

Question No. 5.
What are the respective responsibilities of DG SANCO and DG AGRI with regard to the Welfare of Laying Hens Directive and what is the working relationship between the two DGs in connection with the Directive?

The Commission is guardian of the Treaty and is acting as one institution. With regard to the laying hens Directive 1999/74/EC (OJ L 203, 3.8.1999, p. 53), DG SANCO is chef de file, whereas DG AGRI is chef de file of the Egg marketing Regulation.

From Regulation (EC) No 882/2004

Article 37

Assistance without request

1. When a competent authority becomes aware of non-compliance, and if such non-compliance may have implications for another Member State or States, it shall pass such information to the other Member State (s) without prior request and without delay.

2. Member States receiving such information shall investigate the matter and inform the Member State that provided the information of the results of this investigation and, where appropriate, of any measures taken.

Article 38

Assistance in the event of non-compliance

1. If, during an official control carried out at the place of destination of the goods, or during their transport, the competent authority of the Member State of destination establishes that the goods do not comply with feed or food law in such a way as to create a risk to human or animal health or to constitute a serious infringement of feed or food law, it shall contact the competent authority of the Member State of dispatch without delay.

2. The competent authority of the Member State of dispatch shall investigate the matter, take all necessary measures and notify the competent authority of the Member State of destination of the nature of the investigations and official controls carried out, the decisions taken and the reasons for such decisions.

3. If the competent authority of the Member State of destination has reason to believe that such measures are inadequate, the two Member States’ competent authorities shall together seek ways and means of remedying the situation including, if appropriate, a joint on-the-spot inspection carried out in accordance with Article 36(3) and (4). They shall inform the Commission if they are not able to agree on appropriate measures.

May 2012