Protective Regulation and I'rotectionism

in the European Community; I

the Creation of a Common Market fbr Food and Beverages
by David Vogel I
Haas School of Business
University of California at Berkeley
Working Paper Serle I #37
This paper was originally prepared for the biennial co ference Jthe European Community
Studies Association, George Mason University, Virginik, May 1 9 ~ 1 1 . It was revised February
1992.
ABSTRACT I : I
I ' I
This paper describes the efforts 0f the European community to
create a single European market for f and Ibeverages as well as
agricultural animals and plants betw en the early 1960s and the
present. I
10d
The first section places these a broader context.
Divergent national health and standhrds have become an
increasingly important source and..! focus IOf trade conflict
throughout the industrialized world. The challenges faced by the EC
are similar to those faced by an1 or quasi-system,
including the united states, namely, the reconciliation of the
interests of political sub-units in the health and
safety of their citizens with the goal 9f removing national
regulations that function as non-tariff trade barriers.
By the early 1960s, tariffs on 900dJ with the EC had been
eliminated. Accordingly the communitylbegan to turn its attention
to the removal of non-tariff barriers. In the case of foodstuffs,
the Commission initially attempted t9 harmoqize divergent member
state safety and compositional standards. This effort to create
"Euro-food," was, for the most P!t, national
culinary traditions proved too divers to bel harmonized.
In 1979, the European Court ffered I a' solution to this
impasse. Cassis de Dij on established the I principle of mutual
recognition. This meant that any could be lawfully
sold in one member nation could be sOQd thropghout the EC, unless
the importing state was able to dejnonstrate that its national
restrictions were necessary to protec the hehlth of its citizens.
1
Cassis allowed the European Commission Jo distinguish between
non-essential and essential food I safet* and compositional
regulations. The former could be left in I the hands of member
states, subject only to food labeling requirements; only the latter
needed be harmonized. In its 1985 White on the Creation of
the Single European Market, the Commi$sion a new strategy
for removing intra-Community trade barrier1s. This new approach
formed an important basis for the sipgle Act, which was
approved as an amendment to the Treaty of the following year.
Since 1985, the Council has appJoved a!significant number of
framework directives. Its efforts, aleng with a number of European
Court decisions that have struck a nubber of long-standing
national trade barriers, have allowep the EC to make substantial
progress in creating a single European market for food and
beverages. I
Nonetheless, significant areas of conflict remain. The
divergence of national inspection as well as significant
differences in the views of both and consumer groups in
various member states regarding a nUmber oIf highly visible food
safety issues, reveal the persistence of impdrtant tensions between
I !
I
consumer protectioi and f ee trade within the EC.
I. Introduction
, , "I d' th 1 t' h'
Th1S paper exam1nes the po11t1cs surroun ,1ng e re a 10ns 1p
between protective regulation and traf. It rPeCifiCallY focuses
on the Community's efforts to create a
,
single
I
European market in
food, beverages and other related
The policy areas of internationaj trade, and national health
safety and environmental regulation, have become more
interdependent. A growing number of trade disputes
now focus on the impact of different - and in the case of
the EC regional, regulatory on trade in both
manufactured goods and agricultural I producFs. Similarly, many
national regulatory policies, including those the member nations
, i,I,
of the European Commun1ty, have been mod1:B1ed as a result of
international pressures, negotiations Jnd agrJements. The politics
of protective regulation, like so many lother PFliCY areas that have
historically been almost exclusively Jomestic in focus, have thus
acquired an important international
The expansion of international tJade haJ meant that national
differences in regulatory standards lare inJreasinglY likely to
affect citizens in a number of As the
international trade has grown in rerent dJcades, both citizen
groups and regulatory officials have become mhch more aware of the
potential or actual health hazards impoz!ted products. The
I I
growth of political influence of and environmental
organizations in a number of industrialized cbuntries represents a
1mpor
t f 11 ,
new and
'
an
t
source 0 po
l't'
1 1ca, pressure
I
to restr1ct both
imports and exports. In addition, mJny producers and government
I
officials who represent their interests, have sought to capitalize
I I
on the public's \heightined concern with health, safety and
environmental issies, in\ order to increase public support for
protectionist In some cases, producers, consumer and
environment qroUPSI have formed political alliances, both within
countries and acrois natirnal boundaries, to maintain or promote
trade restrictionsl
The increase protrctive requlation at the national level
does not by threjen the principles of a liberal world
economic order, ali the last three decades have witnessed
a increase in national health, safety, and
environmental a major expansion of international
trade. Whether or \ not Pitective regulations are protectionist
depends in part on whetrer they are imposed unilaterally or
, I ,
It! thi former that have become an important
source of internatirnal tride friction. By contrast, the adoption
of common or similar regulatory standards by different countries
represents a way govkrnment officials to both satisfy the
. I J
interests of their constitents for stronger or stricter regulation
I I
, I,
and reduce the use Qf as a non-tariff trade barrier.
I I
We are thus e\XPerienFing two contradictory trends. On one
hand, domestic pressures from consumer and environmental
't' t I d b d ' 1,
- a eicourage y pro ucers - are a
number of industriil nations to adopt increasingly strict and
comprehensive reguiatory I standards - many of which either
explicitly or restrict international trade. On the
!
2
other hand, in order to both reduce he use of regulation as a
trade barrier and also preserve or enhJnce the goals of protective
regulation, there has been a substantiJI in international
efforts to harmonize health, safety and regulations.
The EC's trade disputes with the unitedlstateslfall into the former
category: the Community's own efforts create a single European
market fall into the latter.
The growth of protective regulation clearly poses an important
i
challenge to the relationships among Inationll and international
political institutions. National govJrnment1 the right - if
not the responsibility - to determine Ifor thjmSelVes the level of
consumer protection and environmental lqualitj they wish to accord
their citizens. Because the citizens of different industrial
nations have different values and pri ritie+ ,national standards
are apt to differ widely. But this in urn increases the potential
role of protective regulations as a source oJ trade friction. How
can the international community respeLt the of citizens to
national regulatory self-determinati n, while at the same time
minimize the use of protective regulat'on as 1non-tariff barrier?
This is an issue with which the juropeJn ,community has been
wrestling since its formation: it is also an ilsue that affects any
I .
federal or quasi-federal structure. The United states federal
I '
government also faces the challenge of balancing the rights of the
I i
citizens of each of its fifty states to enact regulations that
I
protect their environment and health with the need to preserve
interstate commerce. The American suggests that an
3
integrated is no' incompatible with a wide diversity of
state and local regulatory standards - some of which obviously will
be stricter than Jthers. I This is also true at the international
level: an integralted world economy does not require identical
national policies.
But 1t 1S also the ase that widely divergent national and
local standardS,', +not 1estrained by some extra-local or extra
national can seriously undermine both interstate and
international commirce. 1n this sense, the challenges faced by the
European CommunitJ are analogous to those faced by both the
American Federal and the GATT. All three institutions
are committed to minimiZinb\ trade restrictions within the political
. t d th' . I . . d' t' 11 . t
una s un er e1r Jur1s 1C 10n. However, a a.n urn are
confronted with from political subunits to preserve or
enact health, safety and e, vironmental regulations that may differ
from those of other
\
subun1ts and thus inhibit trade.
I
II. The Legal IFramework of EC Regulation
\
I
A central purpose if the establishment of the European
Community in 1957 to permit the free movement of goods among
its member states. I From
he outset, the EC understood that the
achievement of thik goal require major changes in a wide
variety of national
Article 3 of the Treaty of Rome
, I
specifies two requirements for the creation of a common market:
"the elimination, a1 betwein member states, of customs duties, and
I
4
I I
. . I d
all of quantitative restrict10ns on the export of goo s,
and of all other methods having e,ivalen1 effect," and "the
approximation of the laws of the meinber s,ates to the extent
required for the proper functioning of the c0lMtl0n market.,,1
Each of these requirements are amPlifiedl in other provisions
of the Rome Treaty. Article 30 rt, "Quantitative
restrictions on imports and all other I measures having equivalent
effect shall. . . be prohibited between Member states, ,,2 while
Article 100 empowers the Council of lithe EuJopean Community to,
"issue directives for the approXimatJon of iuch provisions laid
down by law, regulation or administrajiVe acJion in member states
as directly affect the establishment 1r of the common
market. ,,3 These two articles pursue d1fferenJ objectives, but are
. I I I .
essent1a ly complementary: the purpose of the former 1S to remove
quantitative national restrictions on 1rade w1ile the latter's goal
is to "enable obstacles of whatever k1.nd arising from disparities
between (nations) to be reduced. ,,4 I I
However, the Rome treaty also includ+s' a provision that I
explicitly limits the purview of Article 30.1 Article 36 permits
1 Diana Welch, "From 'Euro Beer' to Brown," A
Review of European Community Action tt> Dismantle Divergent "Food"
Laws, " Journal of Common Market Studies,1 Vol. XXII, No. 1
September, 1983, p. 48 I
2 Quoted in T.R. Stocker, "Fooq Law and 1992," unpublished
paper prepared for Worldwide Information Conference on Food Law:
Current Changes and their Implication!;." 199b, p. 2
3
Welch, ibid
4
Welch, Ope cit., p. 48
,
5
member states to restrict or even han imports, exports or goods in
transit if such are necessary for reasons of "public
morality, public
i
policy or public security (or for) "the
protection of and life of humans, animals or plants
lls
(This provision islsimilar to Article XX of the General Agreement
on Tariffs and Tr de, wJich states that, "... nothing in this
agreement shall hie bonstruld to prevent the adoption or enforcement
: \ \ .
of measures 1. necessary to protect human, anI-mal or plant
life, or health. 11
6
) . Articrle 36 also contains a qualifying clause:
the restrictions: ikposed . y a member state cannot "constitute a
means of arbitraryl discribination or a disguised restriction on
trade between memblr statLs. ,,7 They must also meet the test of
"proportionalitY:'"\a membJr state seeking to justify a regulation
under Article 36 must demohstrate that the means it has chosen are
proportional to the\objectlve it is pursuing and it interferes with
free trade as lit'tl1e as pdssible.
As a to public demands for additional
health, safety and. environmental regulation in western Europe
during the 1970sl the EC has subsequently modified its
interpretation oi Jrticle 100. Instead of restricting community
directives to rules and re lations that were necessary to promote
,
: ::::::ri::.,Joine sLierre. "Business
and the Environment"
The International Dtmensior),11 Global Business Issues, Vol. 2 No. 3
p. 3 I
7
Welch, Ope cit., p. 48
6
intra-community trade, the community has ijsUed an increasing
number of directives whose primary ha, been to improve the
health, safety and welfare of its citizens.1 liThe basis of the
Commission thinking has been changing Ifrom thrt, of improving free
trade to improving the quality of life b}j' protection of the
, 8 ' I I I h'
consumer and publ1c health. II AcCOrd11g y, "jeasures w Lch do not
affect trade but which are intended fir healih and safety reasons
directly affect the common market within a briad interpretation of
Article 100."
9
This change in emPhasis was made official by the
I I i
Single European Act, which came into effect OJ July 1, 1987. This
amendment to the Treaty of Rome eblicitly acknowledged the
Community's commitment to improve the quaJity of the physical
environment and to enhance consumer prltectioh - as well as pursue
the EC s or1g1na purpose 0f promo I I" t "I t'1n
l
eCOnOj1C 1n egrat'10n.
The Community has thus moved from IIneg,tive
ll
harmonization,
whose purpose is to remove national 01stacles to the operation of
a common market to "positive" harmonijation"l whose objective is,
lito attune the legal systems of the jember states to the common
policies developed by the EC"' ln 1sense,I the EC has come to
employ Article 100 in much the same manner that the United States
I ' I
has interpreted the interstate commerci clausi 0if the Constitution.
Originally intended to provide cong1ess the authority to
prevent the states from restricting commerce among themselves - as
I I
8
Quoted in Welch, op cit p. 49
9
Ibid.
10
Quoted in Welch, Ope cit., p. 50
7
they had done undlr the Articles of Confederation - Article I,
Section 8, has been used to justify a wide variety of
"positive" contlrols imposed on the states by the federal
,I I t' ' d t d'" t
government, rang1fg fro1 non- 1scr1m1na 10n 0 a1r an wa er
quality standards. I;
A somewhat ,anal09ts process has taken place at the
international The GATT Standards Code constitutes an
agreement on "Tedhnical \ Barriers to Trade. " Its purpose is
essentially a neJative it is "to assure that products
introduced into trade could not be discriminated
against or treated!unfairJy because of arbitrary standards-related
11
activities on the !parts governments . Disputes that cannot
be satisfactorily Jesolved bilaterally are referred to a Committee
on Technical tJ Trade, which has the power to make
iud t
s an
d'

I
pena 1es. ]U gmen
lit'
Yet there havJ also blen a number of international agreements
affecting cdmmerce whose purpose has been to promote
consumer and quality. In 1962, the Food
and Agriculture codmittee r.nd the World Health organization of the
United Nations j oinhl
Y
established a food standards program that is
administered by the Codex llimentarius Commission. It objective is
to develop common food saJety standards that will both facilitate
international tradl consumers. Moreover, during the
last two decades, iwo impbrtant international treaties have been
\
11 Eddie Kimblrell, Standards and Non-Tariff
Trade Barriers," Fdod Technology, July 1985, p. 70
8
enacted that have sought to improve ori protec the quality of the
1
global environment by restr1ct1ng ra e 1n enV1ronmen a , , tIl" , tI
"bads. n namely various endangered s ecies I a'i'd chemicals that
threaten the ozone layer. These cJn be as examples of
"positive" harmonization at the glOballlevel.1 !
I I
III. Early Harmonilzation I
I
A useful way to begin to explore lithe compiex dynamics of the
relat10nsh1p
"
between pro
t
ec ave regu
I
a
t' I'd'
an
t t'
10n : an ra-commun1
't
y
trade is to examine the way the commuJity haJ the issue
I I i
of food safety. "The food sector has al:Ways been, the trailblazer of
1
policy making in creating the intern1l markJt. ,,'2 The EC' s very
first directive, issued in 1962, specified thl permitted
in foodstuffs. Subsequently, the kel of the European
Court which interpreted the scope of Irticle 1 36 , namely Cassis de
Dijon (1979), struck down a national !regulation that defined the
alcoholic content of liquor. ThrOUgh11988, more than half of all
cases brought before the European cdurt violations of
Article 30 had to do with national fobd regulations. Of the 300
regulations listed in Lord White Paper as
requiring action by the European counJil in to complete the
I i I
creation of an internal market by 1992, nearly one-third involved
the elimination of restrictions on trade food, beverages,
I !
12 Paul Gray, "Food Law and the I ternal Market," Food Policy,
April 1990, p. 111 i
9
animals and Plants! indeel the notable inability of the Be to make
substantial in ireating a single market for foodstuffs
during the 1970s'.played ar important role in persuading the EC of
, I
the need to develop a new approach. Finally, the foodstuffs sector
is an extremely iJportan one. It is the biggest contributor to
jobs and value-addld of a I EC industries, accounting for slightly
I I
more than 4 % of the ECI s GNP. 13
I I . f h
By the m1ddle of the 1960s, tar1f s among t e member states of
the community had been eliminated. Accordingly, in May
ii I I
1969, the EC Council of Ministers began to turn its attention to
the removal of n01-tarif1 or "technical" barriers to trade, and
developed a general program to accomplish this objective. The ECls
strategy for aChieYing objective was to rely primarily upon
't d I I .. .
1 S powers un er 100 to barmcndae nat.Lona), regulat10ns. As
a Community
I I
document put it: "a national legal act in principle
i I
calls for a
. I
Community legal act. ,,14 The Council establ ished a
i I I
detailed sChedule frr the 1doption of forty-two directives designed
l
to ensure free trade in flOdstuffS. Each of these directives was
, \
intended to be "total," J. e., they were meant to supercede all
relevant national Jegulations.
, II I
In 1973, the Community, faced with a lack of progress in I
meeting the deadiifes it established four years earlier, and
confronted with thlee addJtional member states, adopted a revised
13Paol o cecchidi et ale The European Challenge. 1992 Aldershot,
England: Wildwood p.57,58
14 Quoted in
'I
o cit., p. 112
10
harmonization program. The EC now decided to lemPhasize the use of
"optional" directives, which requirej the fll'ee movement of all
products that conform to EC standa rs, allow distinctive
I '
national standards for products sold in the Ciuntry where they are
produced. I
The Commission's efforts to harmorize meet
with some success. For example, the Ef's f1rst d1rect1ve reduced
I I
the number of food colors permitted in fhe (thin six) member states
by 60%. "It was widely regarded as a triumPh net; i only for diplomacy
but also for consumer protection. ,,15 However subsequent progress
was extremely slow. Between 1962 and 1979, commission only
managed to adopt directives for matters (1962)
preservatives (1964), antioxidan s
I .
(1970) emulsifiers,
stabilizers, thickeners and gelling agentf saccharin
(1978), dietary foodstuffs (1977), frdit juiies (1975), cocoa and
chocolate products (1973), preserved milk f1976) and jams and
jellies (1979). Not only was it jble tOI harmonize national
regulations in only a small proportion of the areas specified in I'
I
both its 1969 and 1973 plans, but even I these did not include
all relevant European food law regulatiions.
I !
The Commission found it somewhat to secure agreement on
I .
"horizontal" directives, which regular'ed the use of a particular
additive or preservative in all foods, than "ver,tical" ones, which
I .
specified the composition of an individual f09d product. Indeed it
was not until 1973 that the Commission was abie to adopt its first
I
15
Gray, op cit p. 111
11
vertical directive - for cocoa and chocolate. It took fourteen
years of negotiat1ions before another vertical directive which
specified the composition of fruit jams, jellies, marmalades and
,
chestnut puree directive, was adopted.
Moreover, ainhmber food directives were far from "total:"
in order to facilitate agrlement, the Council was frequently forced
to compromise by ,leaVing standards up to the discretion of
national authorities. F(i)r example, the EC' s directive on food
additives lists for various kinds of
additives. states only permitted to authorize the use
of additives on \ these lists.
16
However, a nation was
still permitted to or restrict the use of any approved
additives in any specific item, subject to the sole provision
that it could not comPleJrlY ban an additive on the Community's
positive list. Thus France, for example, decided to permit the use
of the food coloring amar1nth only in a single product -- caviar.
Likewise, the EC's cocoa and chocolate directive excluded from its
scope a number of substanJes commonly used in these products.
An important reason it proved difficult to harmonize food
, \ I
standards was that nationrl customs, traditions and regulations
were widely divergent - product, in many cases, of centuries of
distinctive patterns of iood production and consumption. For
, I I
example, in the case of bread, some nations permitted the long-
lasting loaf IdeSigned for use in the English sandwich
I t. LUdwig Kramer, "EJC Action in Regard to Consumer Safety,
:Particularly in the Food sector," Journal of Consumer Policy,
December 1984, p. ,475.
12
while others assumed that this commod1
Y
was purchased on a daily
basis. Developing a standard that cou d be aJPlied to both proved
I I .
to be extremely difficult. As one put it, the concept of
"Eurobread" was like, "trying to a with a loaf of
pumpernickel. ,,17 Similarly, German beer law,
restricted the ingredients that were in this product; its
standards embodied the "state of the art" for beer production in
1516 and had been modified only sl other nations
brewed beer very differently; most included additives that
I ' I
were prohibited by German law. Nlit surprisingly, it proved
I I
impossible for German and British brewers to agree on the
I
appropriate composition of "EurObeer.'r' The same was true of jam:
the Dutch preferred smooth jam, the rench, chunky jam and the
British liked marmalade. I I
The European Commission's effort to stanpardize such products
!
as bread, beer and biscuits throughout urope soon became an object
of derision. The EC was accused of t ing to everyone to eat
hEuro-B1and" food. made by hEuro-,eciPes.lh "Harmonizing all
existing law was leading to a confliJt betwejn CUlinary cultures
and traditions with an attempt to producfs which had CUlinary
diversity into unique product "1
18
. In addition, the
rigidity of those compositional standards on which the Commission
I
17 Shawn Tully, "Europe Gets ,Ready if or 1992," Fortune,
February 1, 1988. p. 83.
18 Paul Gray, "Food law and the market," Food Policy
April 1990, p. 112 I
13
was able to agree threatened to undermine technical progress in
what was a highly and innovative industry. One industry
observer wrote 1979 I that, "the result of EEC food law
harmonization programme seems merely to burden us with regulations
I I
of unnecessary without benefiting consumers or
manufacturers or t ade. ,,19 The pUblication Eurofood added:
I I
At its worst can damage companies, forcing
them to give longlstanding and harmless production
and ingredie'ts. best harmonization can be
restrictive tQ new in the food industry. 20
\ I
The attempt tlo horizontal directives also ran up
against an the divergence of national food safety
standards. For ekamPle I in the case of food additives, some
nations employed a: Posit'e list, i.e. only additives that were
specifically apprO]iVed we e permitted, while others employed a
negative list, i.e, any additive could be used unless its use was
specifically There was also a lack of scientific
consensus about addit,'ves were and were not safe - differences
compounded by the dlvergenbe of national eating habits and recipes.
For example, whiiel poultry producers traditionally used
arsenic in ChiCkenrfeed, law prohibited the sale of eggs
from arsenic-fed chickensl even though eggs produced in Britain
contained no arsenib Likewise, the British permitted the
use of thousands ofl food ahditives, while French food law was more
----+-1 I
19 Quoted in Welch, p. 55
20
Ibid.
21 John Abraham and Erik Millstone, "Food Additive Controls;
Some International pompari ons,"Food Policy, February, p. 43 - 57.
14
restrictive. 22
To help address these issues, a stJnding Committee on
I i
Foodstuffs was established by the ciouncil 1969.
23
It was I
composed of representatives from each state and intended to
I I..
serve as an advisory body to the European Comm1ss1on. In 1974 a
I I I
Scientific Committee for Food was established as an
advisory body to the Commission and twl a Consultative
I i
Committee for Food was organized. Thelformer consisted of fifteen
scientific and technical experts, Ichosen I from member state
nationals, but not as representatlives if i their respective
countries. However, given the u1usual of the
foodstuffs sector to public concerns aDout sa4ety, these bodies had
only a modest impact: no nation was prepared to defer to their
expertise.
Moreover, the Community' s requ' rement I that all directives
receive the unanimous agreement of th of Ministers proved
extremely cumbersome - particUlarly a ter the number of EC member
states was increased from six to hine. I Nations which were
committed to preserving the status quo ofl their own domestic
regulations for foodstuffs, but w ich har. not succeeded in
persuading the Commission's staff frequently attempted to
renegotiate the details of various directives when they came before
I '
I
22 John McCarthy, "Protectionism land pro,duct Harmonization in
the EEC" Economic and Social Review, April, 11.979 p. 191
23R. Haigh, "Harmonization of on Foodstuffs' Food
Additives and Contaminants in the European I Economic Community, "
Journal of Food Technology Volume 13, i (1978) I, p. 255 - 264
15
the Council. The latter came to function less as a vehicle for
advancing CommuniJy inter I ests than as a forum for diplomatic
. I
bargaining in which each state pursued its own interests.
Consequently, propolals for a directive from the Commission
were blocked at thb counJil and many were even sent back to the
commission for and reworking. ,,24 Between 1969 and
1970, a total of drJft directives regarding products ranging
from mayonnaise to butteJ, beer, ice-cream and margarine, were
withdraw by the commissioJi
While the comJunity 1as making relatively little progress in
harmonizing eXistJng regulations for food safety,
processing and the number of national regulations
governing was increasing. Some were inspired by
producers seeking fO insulate themselves from competition from
foodstuffs and prodUcts produced in other member
states. "Particularly prevalent were national specifications on
the safety of produdts, soJe of which were so restrictive that only
nationally produced goods bOUld meet them without modification. ,,25
For example, the Janned drinks with sugar substitutes in
order to protect their \ domestic sugar-beet industry, thus
t I 26
prevent 1ng he of a European d1et soft-dr1nk 1ndustry.
Others were a resprnse ti the public s demands for heightened
24 J. H .Byrn!e, "Foepd Law Harmonization in the European
Economic Food Technology, July, 1985, p. 78
I
25stephen George, Politics and Policy in the European
community. Oxford: Oxford Press, 19991, p. 159
26 Tully, op clt, p , 83
16
I
consumer and environmental protection I a development that was also
occurring in the united states at about the same time. As one
observer noted, " there has been aJ great l.ncrease in consumer
awareness of possible dangers in prod cts ;1 there has also been
increased concern for the environment. Thus have been led
to protect their citizens and countU from unsafe products or
manufacturing processes. ,,27 I
The result was that the commudity'S internal
market was becoming increasingly 'a proliferation of
non-tariff barriers. In short, the the effort to
I I
create common market in food and beVejages hid not only lost much
of its earlier momentum, but on a number of dimensions it appeared
to have reversed course.
In 1980, the Commission conceded that the goals established in
its 1969 General Proqramme of eliminlting barriers to
trade had been unrealistic. It that, "in the foodstuffs
sector progress has been less spectlcular (than in industrial
products) largely because of the structure of, food industry.""
The Commission's food directives still cove,ed only a relatively
small portion of the food and food substances consumed within the
I . I
Community. The result was that "new productsI had to be adapted to
pass a complex maze of different and tephnical standards for
I
I
27 John McCarthy, Protectionism and Harmonization in
the EEC," Economic and Social Review, I April 1979 p. 188-9
28 Quoted in Alan Swinbank, "EEC Food Jaw and Trade in Food
Products," Journal of Agricultural Edonomics, September, 1982 p.
17
345
each European This outcome, of course, was precisely
the opposite of intended by the community's proponents: the
European food market had [ecome even more fragmented, the profit
margins of EuropeJn food1processors had decreased and consumers
were confronted ;W+h higJer costs.'" In sum, the community was
faced with
commission s
a serious
"foodstuffs
notwithstanding
constitute (d)
all
the a
of
rea
the
most
hampered by non-tariff baJriers to trade.,,31
I I
, IV. IIMutual Recognition
I
An important step in reaking this logjam was provided by the
European Court in its decision in Cassis de Dijon, handed down in
1979. Cassis de Dijon is a low alcohol (15 to 20%) liqueur
manufactured in IA German firm wanted to import this
liqueur into Germany, butf,was refused a license to do so on the
grounds that German law re ires that any product sold as a liqueur
have a minimum crntent of 32% The German government
justified its restriction In the grounds of both public health and
consumer protectibnl It akgued that the importation of Cassis de
Z9 Its Impact on Nontarif Barriers Mitzi ElkeJ 1992:
and Trade Relations with the united States," Food, Drug and
I
Cosmet1c Law Journal, September, 1989, p.471
30 Mitzi "Eurobe 1992: Its Impact on Nontariff Trade
and Trade with the united States," Food, Drug
Cosmet1c Law Journal, September, 1989, p. 571
31 G. ChamberJ Food and 1992 Scientific and Policy
Technological Assessment, European Parliament, May 17, 1990
p. 36
18
Dijon was harmful to public health be
1ause
a coholic drinks with
low alcoholic content induced more alcohol than did
beverages with higher alcoholic conteJt. Thl European court was
unpersuaded: it held that the German r1gulatiln' had no legitimate
public health justification and that I therefbre Community trade
principles took precedence over German law.
This decision made explicit the cin,cept of "mutual
recognition:" nations were free to maintain and enforce their own
regulations for products produced witJin thelr jurisdiction, but
I
they could not legally prevent thei from consuming
I I
products that met the legal standards of another member state of
the community. This concept was not njw. It Las both implicit in
Article 30 and underlay a community dir ctive In'food labeling that
was also put into effect in 1979. In dditioh,: Article 57 of the
1957 Treaty of Rome had explicitly used the teJm in connection with
education and professional qualificati ns as Lmeans of promoting
the free movement of persons with the Jc. the court's
.. . C . d .. b 1.
1
1 d1f' . .
deC1S10n 1naSS1se D1JOn, y exp 11t y e 1n1ng the scope of
Article 30 and limiting the purview of 36, made legal
I .
history. I
The Court acknowledged that "obstacles td movement within the
. t It . f d . . t . I It'
Commun1 y resu 1ng rom 1spar1 1es
l
ue
t
ween Ina 10nal laws
must be accepted insofar as [they are] necessary in order to
I
satisfy mandatory requirements relating in I particular to the
protection of public health and thel of the consumer.
n32
I
32
Quoted in Welch, Ope cit., p. 60
19
The question the Court was whether the German regulation was
in fact tlo one of these "mandatory requirements?"
l
! d Ito to t d rt lOf 0 0
In other words, d1 the res r1C 10n 1 1mpose on 1mpo s qua 1 y
as one of the exceJtions Jo free trade permitted under Article 36?
The Court concluled th+t the German 32% alcoholic content
requirement servedlno pUblic or national interest. Not
only was this bting lawfully produced in France, but,
equally importantlt, the German regulation "was not considered by
i I I
the court as a necessa%jy means to protect the consumer. ,,33
Accordingly, it had the "equivalent effect" of a
"quantitative restriction on imports," it constituted a violation
of Article 30.
34
,
I
I I
It is importaJt to n9te that the Court struck down the German
regulation even lit applied equally to imported and
domestically produJed goo+. The Court concluded that the standard
of "equivalent effebt, n applies to "any national measure capable of
d
10
h
O d 0 dOt'1
l
0 1 0 0
1n er1ng, 1rec 1or 1n ir e c t y, actually or potent1ally, 1ntra
community trade. In 'other words, the test of "equivalent
effect," is not whlther a measure discriminates against imports,
but whether it them. ,,36 This represented an important
change in EC law, ! since five years earlier, the Commission had
stated that non-diJcriminJtOry measures were DQt to be considered
33 I I
Quoted in cit., p. 65
34 W 1 h lOt I
e c , op !1 , p. 161
35 Quoted in 1elch, op cit p. 60
36 Quoted in Welch, Jp cit., p. 62
20
violations of Article 30.
The court did recognize that in ti' e absence of "common rules"
I !
i.e. harmonization, each member state had the right "to regulate
all matters relating to productiol and marketing in their
own territory. ,,37 Thus Germany was free to i that liquor
produced in Germany have a minimum alc+ol conrent of 32%. But what
it could not do was impose that requirement rn, products lawfully
produced in another member nation. Inlother words, Cassis did not
require that any nation change its laws: it only
I I
restricted their scope. As the commissiict noted in its
interpretation of the Cassis decision: I I
... any . product must be admitited has been lawfully
produced elsewhere in the community and conforms to rules
and processes of manufacture Ithat re customarily and
traditionally accepted in the count1r' and is
lawfully marketed in the of
The principle of mutual recognition articulated in Cassis
I :
exposed a wide variety of national itandards to jUdicial
scrutiny. Following Cassis, "a statel' using [a health and
I '
I '
safety defense] must present an argl!1lllent that wl.ll bear harsh
scrutiny by the Court if it expects Ito maihtain the regulatory
measure. ,,39 The following year the court rolled that an Italian
regulation prohibiting the sale of all produJts labeled "vinegar"
37 Quoted in "Environmental protlction lnd the Free Movement
of Goods: the Danish Bottles Case," Jt:>urnal of Environmental Law,
Vol. 2, No.1 (1990), p. 93. J ' .
38 Quoted in Alan Swinbank, "EE Food rlaJ and Trade in Food
Products," Journal of Agricultural E onomicsl September, 1982, p.
344-5 I
39
Welch, Ope cit., p. 65
21
other than wine vinegar riolated Article 30.
It held that the
! \
purpose of Italy's regulation was to favor a national product,
namely wine and lhat by not allowing vinegars made from
apple cider or to bL sold in Italy under the same product
designation, produbts in other member states were placed
at a disadvantage. \ \
In Fietje (ll80) court overruled a Dutch law on the
labeling of alcoholic drihks that prohibited the sale of various
beverages unless wire labeled in accordance with Dutch
government court concluded that this statute was
not justified onichnsumer protection grounds since its objective
I
could be equally well meet by adequate product labeling. That same
year in Kelderman,! the struck down a Dutch statute that
specified the drJ mattJr content required in bread. The
Netherlands had imJosed a ban on imports of French "brioches" on
I
the grounds that did jot conform to its Broodbesluit or "Bread
the Court rlasoned that consumers could easily be informed
by other means, "a::.Ubh as r quiring labelling showing, for example,
the weight and COkposition of an imported product.,,4D
,I \
The follow1ng year 1n Bau v De Smedt. the court decided that
a Belgian rule that!requirld margarine to be sold in cubic form in
. \
I
\. l
\
order to av01d confus10n w1th butter violated the Treaty of Rome.
I I I
It noted that althodgh a pabkaging requirement was not an absolute
barrier, it did imp0rfS more expensive and difficult. Aqain
40 Quoted in T1Venables, "The Impact on Consumer Protection
On International Presented at an OECD Symposium on Consumer
Policy and Internat10nal Paris, November, 1984, p. 15
22
the court concluded that consumers
could equally well be protected
I . i h f
by a label ing requirement, which would not l.nterfere Wl.t ree
I
trade.
V. The Impact of raSSiS
The doctrine of mutual had 1 impact on the
ECIs effort to harmonize national requljtOry Cassis made
harmonization both easier and more ejSentiaJ. It made it easier
because the Community could now diSpenje with need to reconcile
an almost infinite number of different natiional standards and
regulations. their maintenance no a barrier to
intra-community trade since they no ilOnger applied to products
produced in other EC member states. It was in large measure the
... .!.I
derequ1atory l.mpll.catl.ons of Cassl.S that lal.r the groundwork for
I I
the amendments to the Treaty of Ro 'e ed in the Single
European Act of 1987. :
On the other hand, it now became even more urgent for the EC
I
to establish and enforce uniform health and Isafety requirements,
lest all EC consumers find themselves products produced
according to the standards of the least stringent national
authority. As one observer warned, "if (Cassis) applied .
I
without any restrictions, we should be steeripg straight towards .
a common market where there woul , not any leqal standards
23
and where thfi! bad products would drive out the good ones. ,,41
I
Not surprisingly, BEUC, a European consumer lobby, expressed
concern that the! CjmmiSsi n would use Cassis as a way of solving
its inability to health and safety standards, which would
in turn lead to a {owerin of food safety and quality standards.
42
In principle, this diw ward spiral could have been avoided by
permitting nations to inrke the "escape clause" of Article 36.
After all, Jn1Y restricted the use of this article; it did
not prohibit it., And in
l
fact, following Cassis, the court did
uphold a IOf na,ional consumer protection laws that
restricted trade. ,or example, in Eyssen (1980), the court upheld
I I
a Dutch ban on the Use of hisin in processed cheese on the grounds
that since clear hel1th ribks had not yet been established for the
maximum permissib1J daily Iintake of this preservative, the Dutch
were entitled to 1ts use. Two years later, in Sandoz the
I I
court relied on reisOning to uphold a Dutch prohibition on
the addition of viJamins tb foodstuffs. It wrote:
in view of [the Jncertainties inherent in scientific
assessment, nationa][ rules prohibiting, without prior
authorization, I the of foodstuffs to which vitamins
have been added\ are jur:tified on principles within the meaning
of article 36 of the Treaty on grounds of the protection of
human health. 43
In any case,! relia1ie on mutual recognition subject to
41 Quoted in, op cit, p , 65
42 1 h i't I
We c , op , p. 4
43 Quoted in'vLnable, op cit, p. 18-19
24
jUdicial review was not a viable sol tion flor several reasons.
Politically, the Commission considereJ it to re-assure
I ' I
consumers that progress toward the creation single European
market would not result in any re1axaiion protection
standards for Community residents; iL want1d the creation of a
common market to be associated with a not a
diminution of European health and slfety From an
economic point of view, allowing diVLrgent :nationa1 health and
l
' 'f' t'f' 1 1 d' f
saf e t y regulat 10ns - even 1 JUs 1 - wou
1d
un erm1ne many 0
Ci::CY t
:::a:::: agai::n::: :o::::.e f::m :::
administratively cumbersome, since tJe European Court might be
required to review the literally tel of tto+sands of national
rules and regulations regarding food dOmpOSijion.
A Commission official noted in 1981, "we cannot agree with
those who have concluded from this bew cale law that the new
principles set out by the court bring all harmonization
activity within the scope of Article 3J." He that it is the
Commission' s view that, "there remai s a nekd for harmonization
programmes but that harmonization wil' now arPlY over a narrower
but better defined fie1d.,,44 In shor" harmonization would begin t
l
where liberalization left off. 45
1 I
I
"
I
44
Quoted in ibid.
45A1an Dashwood, "Hastening Slowly: Tpe Community's Path
Towards Harmonization," in in the European Community
edited by Helen Wallace, William Wallace and Garo1e Webb, New York:
John Wiley & Sons, 1983, p. 182 I
25
Initially, the Commission continued the program of
harmonization had begun in 1969 and revised in 1973, though
it now proposed feJer ver1ical and more horizonal directives. But
progress remained slow. By the mid 1980s, directives had been
adopted for OnlY, If of 50 sectors falling within the general
category of food six more were pending. In 1985, the
Commission that it had succeeded in implementing only
two fifths of 'iJs 196i-73 Even this statistic
exaggerated the progress in creating a common market
for foodstuffs, sibce a n er of new products and processes had
I
emerged since 1973 and were thus not on the Commission's initial
list. Nor was' food ical: through 1985, the Council was
, . I f h . t' t th t fIt
approv1ng armon1za 10n a e ra e 0 on y en per
41
year. \ i
Nonetheless, some progress had been made. At a conference
held in 1984, a manlger frim a major European food producer stated
that "during the lJst dec+e. EEC food law harmonization has made
substantial progreJs toward the creation of an integrated common
market .48 The of European affairs for Coca Cola
concurred with this ass+sment as did the European food law
coordinator for cpclEurope. But other industry participants noted
----+' 1 I
46 "completioh of th Internal Market: Community Legislation
on Foodstuffs," Commissionlof the European Communities, November,
1985 ! \
41J ohn Pinder, European Community; The Building of a Union
Oxford University Press, 1991, p.71
48J. H. Byrne, LaL Harmonization In the European Economic
Community," Food TebhnologY, July, 1985, p. 79
26
that substantial trade barriers remained. Jordan of the
Food Drink and Tobacco Federation of Iriland stated that, "we would
I I I
be less than honest if we did not of food laws
where so-called hygiene or sanitary exist primarily to
act as a barrier to imports." cited French He and
I I :
Germany regulations that prevented 1ihe entn of cuts of meat
I I :
weighing less than 3 kgs. Another ob,erver 10ted that mayonnaise
in the UK only had to contain 25% vegetable oil, while in other EC
. I d h ..
countr1es, the standard was between f5 an t us mak1ng 1t
impossible to market the same product the Community.
I I
Diane Welch concluded that, "as far as alcoholic beverages are
concerned, the EEC internal market does not exist," adding that
"citing further technical obstacles t tradeI poses no problem.,,49
VI. The White raper I
I I i
In 1985, frustrated by the slow rate at which non-tariff trade
barriers were being removed in a of sJctors - of which food
I I '
was one - the Commission decided thaf a nej ,pproach was called
for. In 1985, Lord Cockfield, the EC'r Commissioner for Trade and
Industry, produced a White Paper in the Internal
Market. 5. This document listed 300 sePfrate subsequently
reduced to 279, that were required to ,1iminaJe non-tariff barriers
I ! .
49 Diane Welch "Alcoholic BeveraJe Legi*lation," Food Policy
February, 1985, p. 41, 42 I I !
50 Completing the Internal Market Luxembourg: Commission of the
European Communities, June 1985
27
to trade in goods, services, people and capital. Seventy-one of
these measures, uded Iin the category, "removal of physical
barriers," encompa1ssed vlterinary and phytosanitary controls.
Another thirty-thrJe refeJred to the harmonization of food laws;
these were c1assifild undeJ the category, the "removal of technical
I I I
barriers for the movelent of goods." The report also included
a timetable by the community was to legislate on each
measure; all were' Jo be cobpleted by the end of 1992.
A more detaiieh documtnt, "Completion of the Internal Market:
community on Fb[OdstUffS," was released in the form of
a "communication ft-om the Commission to the Council and to the
I
European parliament!" in 19. 5. Its main thrust was to distinguish
between those arJ1as ofl regulation that required Community
, I
legislation and thaf could be left to the member states.
h
,I \ th I'd b ' t ,,51 h "l

This distinction was tr be based on the "principle of
proportionality: legal measures must no go further than is
'
necessary t 0 ac e 0 j ec ave , T e es
developed by the JuropeaJ Court in Cassis and the cases that
I I
followed it had
I
freed the EC from the need to harmonize all
national laws, df their importance. Now the Commission
could concentrate 'oJ those !legal measures that were "essential" or
"genuinely necessaJ" to Jrotect the health and life of humans
within the context of the ftee movement of goods within the EC. As
a senior EC put it, "it is not a case of
I '
applying the minimum rule b t of applying the necessary rules, and
I
51
Ibid, p. 5
28
applying them more strictly than in t Ie past. 1152
I
In practice this meant that the would officially
abandon its clearly fruitless effort tb specify the composition of
foodstuffs' there would be no more vtrticalldfrectives, no more
attempts to create "Euro-bread or IIEUZi[-beer
1
. ! Following Cassis,
all compositional standards would be by mutual
recognition. Thus future Community ! in the area of
foodstuffs would be confined to those! rules regulations that
were necessary to protect public heaith, pr&vide consumers with
adequate information, ensure fair tradJng and for necessary
public controls.
53
Based on these Icriteria,i the White Paper
specified six areas that required .1ommuniJy legislation: food
additives, materials and articles iT with foodstuffs,
foodstuffs for particular nutritirn usJs, labeling, some
manufacturing processes and official
The Commission specifically indicLted thlt: its approval would
I I ,
be required for all additives used in food sotd'within the EC. It
also planned to require the mandatoh. of all foods
entering a member state - regardless of wherher or not the food
was intended for consumption in thal state. : In addition, the
Commission emphasized the need for ,he EC ! develop labeling
requirements that would protect boJh and producers
against misleading or deceptive labels] - an itsue that had assumed
particular importance since Cassis. The stated:
52
Gray, op cit, p. 8
53
Completion of the Internal Market, 1985, p. 6
I
i
29
The rejection lof reci e law implies a well-developed and clear
system of labeling, presentation and advertising that should
take the formlof a binding legal act so that producers may be
protected agajinst competition and consumers against
misleading practice. \ 54
Equally imporkantlY, I the Commission outlined a new approach
that it hoped expedite the approval of directives in these
"essential" In reviewing its lack of progress on
harmonizing fOOd: {egiSla1tiOn, the Commission had observed that
. I I
while "member statJs are able to agree on the general principles of
. I I
food law... differences of opinion exist on
points of detail, Jrevent Ing any decisions from being taken. ,,55 For
example, during ',e prev"ous ten years the community had been
unable to secure agfeement from the Council of Ministers to approve
a single new food ladditije. Even when there was agreement, the
Community's procedures prived extremely cumbersome. Thus the EC's
food coloring direltive had to be amended six times between 1962
and 1978, while thJ preservative directive was amended
. . I I
14 tl.mes between 1964 and 1979. Each change required the I
development of prLposals by the Commission followed by the
unanimous of the Council of Ministers. The Commission
concluded: ! I
The problems above are extremely serious as they
demonstrate that the Community is frequently unable to
equip itself uniform legislation, nor to manage its
existing legilslation! properly. The directives tend to
freeze a r technical situation existing at a
I
54
Ibid, p. 9
55
Ibid, p.

30
I
given time without allowing for future ahaptions. 56
l
Accordingly, the Commission propoked a nrw division of labor
I '
between it and the Council. The latter would establish the basic
rules for food law, while the woulq implement them in
specific cases. For example, in the base Of! additives, the
,
would
'h
t e genera
1,11
pr1nc1p es govern1ng
'th
e Counc1l estab11sh
approval of food additives while the commissibn would draw up the
list of approved food additives as as the conditions
for their use. A roughly similar procedure govern the making
and implementation of EC policy in eabh of the! other "essential"
I
areas of food regulation. I
I
I n s hor, t i nst ead 0f 1ssu1ng e a1 e regu a 10ns a 1n e
' , d t ]1 d I Ii t' th t' th
past had become the subject of negotiations by
national officials, the Council directives that
established a "framework" or "general to standards. ,,57
(A precedent for this approach had bren esJablished by the Low
Voltage Directive of 1973, which had defined general objective
of safety, and then left it up to Committee for
Standardization to draw up detailed sPtcifications.) The specific
task of implementing these "framework" Direltives would then be
left to the Commission, working in lcoopeJation with national
regulatory officials and private stal dard letting bodies. This
procedural change not only promised t
l
exped1ite the making of EC
regulatory policies, but it also broug t the cbmmunitytS regulatory
56
Completion, p. 16
57Pi nde r , p. 72
31
structure more closely i, line with those of its member states,
. I J ..
each of whose legislatures delegated autihort ty to
I
administrators. , l'
The Council a cepted most of the procedural changes outlined
l
; I
in the White Papet. How because of the lack of scientific
I I
consensus about opriate procedures for assessing the
technical need for
I
food dditives as well as the wide range of
national approachek for approving food additives, the Council was
unwilling to deleglte thiJ critical area of food regulation to the
Commission. Ina1ditiOn.\ the Council required the Commission to
consult with the SicientiftiC on Food, which operated on
the basis of brfore making any decisions that affected
the publ ic s health: preiiouslY, the SCF' s role had been only
advisory. I '
One of this consultation requirement was to
help implement a 1ritiCa] provision of the Single European Act,
; I
adopted the namely that the Commission, in
developing proposa:ls in fhe area of consumer and environmental
, I
protection, should "take r a base a high level of protection. ,,58 II
The mandatory sysiem ofl consultation was intended to assure
consumers that, nSitringen\t scientific criteria [sic] were being
applied by an independent body to ensure safety," and that
.. 'lid h I
h armom.aat.Lon wou \ t erefore not lead to a reduction in food
quality.59 This further brought EC regulatory policy-
I
,I
I

58
Chambers, p. 39
: I
59
Gray, opcit, p. 3
I 32
making in line with those of its me er strtes, most of whose
I :
regulatory authorities relied on the advice similar independent
or quasi-governmental committees. *e subsequently
developed a set of cooperative arrangerents several national
scientific institutes in order to exchange I scientific
information and avoid duplication lamong regulatory
authorities. I i
The Single European Act further simplified the Community's
regu1atory deC1S10n-ma
k'
1ng processes L

Y
a
L
e unan1m1
'
y
" b
anron1ng
't
rule for legislation whose purpose ras to Iremove obstacles to
intra-EC trade. Now, only a "qualified defined as fifty-
I
four of seventy-six votes from t member states, was
required to approve Council directive takenl under Article 100A.
Equally importantly, by defining the C legal objective as
I I
the creation of "an area without internal in which the
,
free movement of goods, persons, servi es and capital is ensured,"
the Single European Act created a "Blueprint for 1992," the
symbolic date for the creation of a single Ebropean To
reenforce the significance of this deadline1 the SEA included a
provision giving the Commission the ption 1fdeClaring that all
national laws, regulations and ,practices that had
not been harmonized by the end of 992 be recognized as
I
I . I
ee Quoted in Mitzi Elkes, "E;urope 1992: Its Impact on
nontariff Barriers and Trade Re1lationsl with the United
' I ,
States, "Food, Drug and Cosmet1c Law Journal ,I September, 1989, p ,
568 ' I
33
equivalent. "61
I
To create political momentum for the creation of a
I
single market, in th Commission released a report describing
the economic that would flow from the removal of all trade
barriers.
62
The' cicchini Report, named after the EC Commission
under whose ausPicls it w s prepared, cited the foodstuffs sector
as one of the that was most likely to benefit
substantially froml the rlmoval of trade barriers. 63 The report
! I
estimated that removal\ of national trade barriers would reduce
the industry's by approximately 2 - 3 % or 500-1000 million
Ecu. (As of JanJary, 1992, one Ecu was worth $1.25). It
J218 specifically non-tariff barriers that were
interfering with tJe crea ,ion of a single European market in food
I I
I i
and beverages. Mist took one of four forms: specific import I
restrictions, paikaging/labeling laws, specific ingredient
restrictions and Fontentrdenomination regulations. The most
significant trade Ibarriers cited in the Cecchini Report were
national regulatio1s that restricted the vegetable fat content of
I I
ice cream and Jnd a variety of national beef and pasta
purity laws; two ?f!these Darriers - restrictions on vegetable fat
in chocolate andibe-creal - alone accounted for 40% of current
II
non-tariff barriers The eport predicted that the benefits to
I
61 Quoted in xll
YPso
'icolaidis, "Mutual Recognition: The New
Frontier of Promethee, June, 1989, p. 29
I I
62Paolo CecchiJili, Thel European Challenge, 1992, Aldershot:
Wildwood House, i
63ibid, pp. 5'7 1- 61
34
i
consumers that would result from the creatioi of a genuine common
market in food and beverages inclu ed, less expensive pasta
. If!' t db'
products in Italy and France, a w1der . range 0 1mpor e eers 1n
1
Germany, lighter beers in Italy and S ain
the availability of diet soft drinks in and spain.
M
I I !.
VII. Progress toward
The result of the Community's ne; to the removal of
t . ff b' t' I..f' I tl the number of
non- ar1 arr1ers was 0 1ncrease vS1gn1 y
directives approved by the Council. Betwee1 and 1989, more
than forty-five directives were appro led in the area of foodstuffs
and by June 1990, the Council had ldOptedl Directives covering
seventeen of the twenty-six in the area of
foodstuffs identified by the White pJper. IJ related area of
veterinary and phytosanitary controls,! by Junl i991 the Council had
completed action on fifty-three of thJ eighty/-two obstacles to the
completion of the internal market idJntified In the White Paper.
This rate of progress was slower Jhan thlt specified by the
. I '
timetable outlined in the White in due to a serious
shortage of Commission staff, but it Jas faster than
the rate at which food law had been harmonized during the first
half of the 1980s. I
One of the most important framework ves approved by the
I !
Council regulated the use of foodI within the EC.
I
MCecchini, op cit, p. 61
35
I
(89/107). This difective called upon the Commission to propose a
"comprehensive ... i1ective"l that would specify a list of approved
additives as as th
r
conditions for their use. It also
established generat labelJing requirements. Approved additives will
1
be granted an 1label. Once the Commission had completed this
list, only additiv s incl ded on it were to be permitted in the EC.
Firms seeking 01 additional additives could then either
apply to a member I state. lor directly to the Commission. Through
1989, the Commission had issued E-numbers for approximately half of
" I I
the 400 - 500 other than flavorings used in food produced
and sold in the EC
I
In 1990, the commission announced that it planned to propose
four \ addit'lve Directives covering sweeteners,
preservatives, s, all other categories except colors,
, I
and colors. As of IAUgust 1991, only the Colors Directive has been
approved by the corncil, hough substantial progress has been on
each of the othersi Final agreement on the later continues to be
I, I
frustrated by national differences regarding appropriate safety
, I I
standards. For in February 1989, the Council rejected a
proposal from the 6ommisslon that three emulsifiers commonly used
by the baking confecJionery industries be permitted for use
throughout the Community. they were given a clean bill of
health by the Committee for Food, Italy, Greece and
I I I
Germany persuaded. a majort'ty of their colleagues that the use of
! I
karaya gum, polysorbates nd soybean oil should remain subject to
I
36
I
he British objected to a national authorization. 65 In 1991,
proposed EC Directive on food coloring on the grounds that maximum
coloring levels had been set at too h1gh a level for a number of
And, as of August, 1991, GermaJ has held
up Council approval of a proposed Directiv1 if Sweeteners: the
Germans want them kept out of beer. J
On the other hand, the Council has s in enacting
framework Directives regulating the us and of extraction
I
+
I I
solvents, flavoring agents including thie use of the term Ii
"natural" - materials and articles contact with foodstuffs,
quick-frozen foodstuffs, dietetic fO(l)ds, anb' organic or health
foods.'7 In the Council appro+d a designed to 1990,
guarantee the safety of plastics usbd in he preparation and
packaging of food products. Regarded as an '.'1mportant step to a
I
single market in food," it is based on "positive list"
principle: after January 1, 1993, no IfOOd may be sold in the EC
which has come into contact with IWhiCh has not been
approved by the Scientific commissioh on F6od.
68
While a more
comprehensive labeling directive is ltill negotiated, the
Commission has issued guidelines gJvernin, the use of trade
65"Food Additives Stuck in European Throats,"
Financial Times, February 2, 1989 I i
Challenges EC Standards," Chemistry and Industry May 20,
I I
1991
61
Gray op cit, p. 114
I !
I
Dickson, "EC Approves Food ",rap Rulfes," Financial Times
Feb. 27, 1990, p. 3 I
37
descriptions: an importer can either keep the name under which the
product is marke ed in the member states or manufacture,
or adopt the tradl descr.' ption under which similar products are
marketed in the imborting member state, or This policy is
; \
designed to prevent me er states from using compositional
standards to imp
In order to nations from enacting new barriers to
trade, in 1989 the issued a directive requiring member states to
submit drafts techJical regulations to the Commission, thus
bringing the on line with industry, whose introduction
of new rules and t1chnical standards had been sUbject to a similar
restriction since 1983. Tre Commission was given the authority to
require member to refrain from enacting national legislation
while Community . measures were being prepared or pending an
assessment of their! compat1bility with Community law. Though 1991,
the Commission recerved lot such requests, about one-third of which
related to "recipe law." Ii most of these cases, the Commission has
d t
" .
encourage na l.on:a_ to el.ther use voluntary standards
1
or to insert a dr Dij on ' clause in national law, thus
unequivocally pre'se1rving the Common Market. ,,70
The EC has!, J1SO mare progress in harmonizing standards
relating to food and processing. The Council has
I
---i- \
691lcommunicatiob on free movement of foodstuffs within the
Community," Officietl Jourhal of the European Communities 89/C
271/03 I
7Op. S. Gray, "EEC Food Law and International Tracie,"
unpublished paper, June 1991, p. 3
38
approved a directive establishing maximum Lvels for pesticide
residues in cereals, fruit and "Nr bushel of or
peck of apples can therefore be kept of EC state 1f has
less pesticide residue than the EC maximum. j,71 I The EC has also
approved directives designed to promOll intr4-t.rade in meat, eggs
and milk; since 1989, heat-treated milk must satisfy various
I ;
conditions before it can be sold in another EC state while
beginning in January 1992, the of EC-traded eggs must
conform to Community wide standards. The EJ has also issued a
directive which lists permitted antiiiotic for cattle
feed and the Council of Ministers has I.0ted 10 ban the use of all
growth-promoting hormones, (previously the latter had been
permitted in Britain, Ireland and tAus provoking a major
I
trade dispute with the united states.
On balance, substantial progr ss has been made. At a
I :
conference on "Food Law and 1992," convened in late 1989, the
Director for EEC and International oJ the Food and Drink
Federation, while noting that the "co"jcept 01 the Internal Market
[was] a gradually evolving Phenomenon!" concluded that "the main
message" [of the EC report on the free mOlement of foodstuffs
released in October, 1989] is that th,1 Internal Market is already
open for business." He added: "Do not wait 1992.,,72 That same
I
,
71Ni c h ol a s Colchester and David Buchanl :Europe Relaunched
London: Economist Books Ltd, 1990, p.
72 T. R. Stocker, Food Law and 1
:::" A Ipaper presented at a
Worldwide Information Conference on F
od Law:1 Current Changes and
Their Implications" p. 1, 5.
39
year in 1989, The Timesl, after taking note of Directives in
progress, conclJdJd that 1 "the internal market for foodstuffs,
excluding labeling[ is f . all but complete.
73
In the fall of
1991, according td a representative of the Confederation of the
Food and Drink Indulstries r
l
f the EEC, "while a few important issues
I I
remained to be resolved p ior to 1992, virtually all economically
I
significant obstacles to free trade in foodstuffs within the EC
have either been removed or were in the process of being
removed. ,,74 I
The progress the Council and the Commission has
made in natiJnal food regulations owes much to the
momentum created bJ the Paper. By establishing December 31,
I \ .
1992 as a "target date" for the completl.on of the sl.ngle market,
the White Paper haJ put pressure on European industry
to reach agreement. Indeedf a kind of informal rivalry has emerged
among different sectors, lith each seeking to make more progress
than other sectors remoring obstacles to intra-European trade.
In the case of the prbcessing sector, its noticeable lack of
success in redUCing!trade through the mid 1980s had become
a source of placed additional pressure on it to
redouble its following the issuance of the White Paper,
.1l I
lest l.t be left behl.nd. The Single European Act also has played a
critical role, not inlY by introducing a system of weighted voting
73Ri c ha r d Owen \ and Mi hael Dynes, The Times Guide to 1992
London: Times Books, 1989
witi s. VAn Caenagem, October 23, Brussels, 1991
40
for legislation aimed at completing !he market, but by
giving the Commission the option that all national
I
regulations not harmonized by the end of 1992 ,will be considered
equivalent. The uncertainty created this later provision has I
, I , I ,
placed substant1al pressure on the C0unc1l fO, harmon1ze as many
I , i
regulations as possible by this deadline, since after that date
nations may find themselves forced tb accepf ithe importation of
goods produced according to the rules lnd regUlations of anyone of
their trading partners. The dellelopmeJt: of Community-wide
standards for food safety, and their acceptJnce in most cases by
national governments, has also been prrmoted 1y'the decision of the
Commission not to establish a European Food agency. Instead
the commission has established a cooterative arrangement between
the Scientific commission for FOOr and national regulatory
authorities. The assessments of food safety in ,which the SCF bases
its jUdgments are based on the scient'fic carried out by the
latter.
It was thought preferable to opt for cobperation in the food
sector since legislative power were I already to a large
extent vested in the Ec or the EC Council. The
constituent national assessmentl bodies could nevertheless
mobilize a scientific potential in of food similar in
size to that of the USA FDA. othbr for the system
could include joint work on ttie intake of food additives
or the coordination of microbiblogicall surveys. 75
i I I
This not only has freed the SCF from the needito develop and secure
funding for its own professional but Jas provided the SCF's
1
I'
s. Gray, "EEC Food Law," Add ess to the Annual Conference
of Lawyers, Edinburgh, June, 1991 p. 8
41
i
jUdgments with ad itiona legitimacy, since they are based on
research carried oJt by thl same bodies that historically regulated
food safety in w7sfern Since 1990, most app1ications for
the approval of new packaging etc, come directly to
Brusse1s, which \turn fakms them out to the appropriate national
regUlatory officials or In forms a cross-national committee of
I
experts.
I
VII. The European Court
The Europeari dourt has also continued to playa critical role
in reducing tradJ barriers in foods and beverages by
clarifying the d!oc1rtrine Jf mutual recognition. In both Motte
(1985) and Muller (1986)1 the court reviewed the validity of
national regulati6ns thatrohibited the sale of imported products
i \
on the grounds they contained an additive whose use was
authorized in the! cbuntry f the manUfacturer, but was either not
approved or proh1bited in the state to which they were
I I
being exported. The\ court ruled that the latter nation must allow
the foodstuff to be\sold, Jrovided the additive does nort present a
risk to public Jccording to international scientific
I
research and meets a genuine need. In addition, Muller required
member states to': formulaie procedures to permit importers to
request authorization foJ the use of specific additives not
. I
permitted in the nation in which they were seeking to sell their
product.
42
The most controversial and i1portan, case on national
regulation of foodstuffs decided durl.ng the! half of the
1980s concerned the ReinheitsgebotI a statute that
prohibited the sale of any product labeled "bier" in the Federal
Republic made with any ingredient othJr than 1 malted barley, hops,
yeast and water. The oldest law I in the world, the
Reinheitsgebot, had been Origina11yl by the Bavarian
Parliament in 1516: it was re-issued ln sli
9Jt1Y
modified form by
the Federal Republic of Germany in 195'. of its original
purposes, it now served to protect a1 important German
industry - in 1986 German per capita beer consumption was 148
liters (38.3 gallons), the higheJt in the world from
international competition: less thaJ one of the beer
consumed in Germany was imported, evln a number of other
I I !
member states were large beer "
I ' I
In 1981, a French brewer complained to thj European Commission
that Germany was unfairly blocking the export of his product
because it contained various additives whose use was permitted in
France, but which violated GermanJ,s beer! purity law. The
I !
I
Commission agreed and the following year ,t, declared that the
German regulation violated Article 30. Thel German reaction was
furious: there were large public ,Irotests: former Bavarian I
I I
Minister-President Franz Josef strauss equafed the Commission's
"unacceptable attack on one of Ithe world's oldest food
legislation," with, "a menace
,
I
1ead
ln
g to
I .
I .
I the second loss of
43
paradise. ,,76 The \ president of the German Brewers Association
presented a petition signld by 2.55 million citizens in favor of
maintaining the ipJrity dJcree. The Commission was unmoved and,
after Germany ignoked a to-month deadline to comply, filed suit
I
with the European Court.
In
't
1 s
d ,I,
eC1110n,
, d
on
M h
arc
12
,
1987
,
th
e
C t
our
acknowledged that since tJe Council had not yet completed its task
., ; I d' , lIt' mb t t ' t' d
of harmon1z1ng EC ad 1t1ve regu a 10ns, me er s a es ma1n a1ne
total responsibiliJy for dltermining which additives they wished to
permit: they could Ichose Jo ban an additive entirely or limit its
use for specific prbaucts.\ However, if their restrictions limited
the import of a prohuct containing an additive approved for use in
another member statl, they \had to meet two tests: they had to prove
that the additive Jas dan,erous and that the legislative response
to the danger was Jot disproportional.
I 'I "
The court concluded ttlat the Re1nhe1tsgebot fell short on both
counts. German, ahthOritfes had failed to present persuasive
scientific evidence that the additives contained in imported beer
were harmful. (All other IEC countries other than Greece permit
brewers to use as twenty additives). Indeed some of the
same additives for beer in other member states were
permitted in otheJ Genna, y beverages including German beer
! I
produced for eXPjrt. I The German rule also failed the
76 Quoted in John Weinkopf, "Pure Beer Law and Free Movement
of Beer in the cobmon Market after Commission v. Germany: A
casenote on the Decision for the Beer Lover "
Prepared for European commuhity Law Seminar, Boalt Hall, 1989, p.33
44
proportionality test, since German laj no mechanism by
which importers could petition to allow specific additives to be
I I i
permitted in beer sold in Germany. TheIcourt 6bserved that, "while
it is legitimate to seek to enable consumers specific
qualities to beer manufactured fram raw materials to
make their choice in light of that this objective
did not require restricting the deSignaiiOn "bter to products made
in a specific way: it could be aChieVJd equalllY:, well by mandatory
labeling requirements."
I ' , ,
While German consumer groups applauded court's dec1s10n,
Germany beer producers were much less enthus1astic. In order to
'I
restrict the market share of imP9rts, the German Brewer's
I :
Association decided to adopt the quali,y trademark "Pure Beer." It
launched a vigorous add campaign to promote tJe Reinheitsgebot and
I I
discourage the consumption of "alien bhemicai beers." Two major
I I "
Germany supermarkets announced they WiUld noti imported beer.
The German Government cannot legally ristrict I use of the "pure
beer" label to beer that conforms to the Reinheitsgebot: that would
be considered a form of "negative labeling," Jhlch had been banned
by the European Court in the Italian 11inegar
l
case. On the other
hand, German brewers are permitted to abel beer as "made in
I :
conformity with the Reinheitsgebot," WiiCh they have done.
The actual extent of German compliance with both the letter
and sp1r1
"t
0
f th
e
C
ou
rtf
s ru
I'
1ng represen
I t
s
I i't' 1 t
a1ci1 1ca est of the
T7 "communication on the free mJement foodstuffs within
the Community,"Official Journal of ,the European communities,
October 24, 1989, C. 271 4 !'
45
. I
Community's to di mantle trade barriers. Cassis may have
made legal histoA" I but Relnheitsgebot dramatically illuminates the
tension between cfstoms and traditions and the creation of
a single European I,market. "How quickly and responsively Germany
implements the ru11ng and bow actively private entities resist the
jUdgement through campJignS and boycotts reveal the real 1\
commitments on the part df member states to make sacrifices for
achieving the 1992 1 goaL "1 on the other hand, the very fact that
the EC commission Jad to the case in the first place reveals
.
s
h I . If th
e
't'
re
l'
1ance
, d'
1C1a
1
an 1mportant ortcom1ng
I
0 Commun1 y s on JU
,
I I
procedures: j I
companies try1ng to sell food in West Germany observe rather
sourly that the government has almost never won any
of the cases! that have been brought against it for the
misuse of Art:icle 301, but that the time the cases come to
court an effective protective umbrella for small
Germaw farmrrs a1d small food processors just the
same. I !
also illustrates the close relationship between
harmonization !rec
09nitiOn.
Had the sc continued its
original effort t6 the composition of "Euro-beer" under the
: I I
terms of Article 100, there would still not be a single European
. I I
market in beer. ',ClearlY interpretation of Article 30 by the
i I I .
European Court has 'played ian indispensable role in removing non-
tariff barriers lntra-cJmmunity trade in food and beverages. In
. I I
fact, the principlelof mutual recognition remains important even in
'II \
n weinkoPf,' ob cit, b. 97
, 7911 strategies' Food companies: Innovation and the
Market," Eurrean Trends 4N60. 4 1989, p. 51
those areas that the EC has determined "essential" to
harmonization. Food additives are a case in point. Currently,
between 400 and 500 additives other than flavlrlngs are being used
in food produced and sold within the Ef. Yet of January, 1989,
the Commission had managed to issue regulatiojS or "E-numbers" for
only half of them. This means that It he rest. remain under the
. I .
control of national authorities - sUbJect ito the constra1nts
imposed by the European court on non-tiariff 1arriers.
But the Court tends to rely on lhe views of the Scientific
I I I
Commi ttee on Foodstuffs in deciding I or not a national
I I
restriction on the use of an additiye is justified. Thus this
Committee is in effect making an autho1itative judgement as to what
additives are and are not safe, elen in II the absence of EC
legislation. This has provided the cOlncil with another important
incentive to reach a consensus, since if it does not do so, EC
policy will be made by default by the Committee, acting
through the Court. Accordingly, Whi11 the Et ras decided not to
create an independent regulatory agency with the authority to make
authoritative jUdgments on food safe1r' to the European
court, the Scientific Committee hrS the functional
equivalent of such a body. As a consultant .to the Commission
recently put it, "The deference sJown byl Court to the
I II
Scientific Committee makes my job of drafting
7
legislation a lot
easier. If the Council cannot agree ho grant
lE
EC approval to an
additive deemed by the Committee to be lafe, elch country will wind
I
I
47
"
up having to accept it an ay. "so
Since ReinheiLsgebot the European Court has struck down a
number of other l'oJg-standing national foodstuffs regulations. In
1988, the Court ihJew out Llongstanding Italian ban on pasta that
was not made rcertJin hard wheat grown mainly in southern
Italy, thus permitting pasta made with soft wheat to enter
Italy.S1 That year Ithe court ruled that France could not
restrict imports ofI ItaliaD salami. In 1989, the Court decided that
I \
Germany could not
!
protect ,the integrity of its wursts by banning
the sale of foreigt sausares made from products other than meat
such as milk, br soybeans; instead it could only require that
the ingredients o'f sold in Germany be clearly labeled. 82
The Court also ruled that could not forbid the sale of non
dairy coffee imitat\ion crelm for desserts. 83
i
IX. The
i
Politics of Hygiene and Inspection
I
I
In spite of'tbe progress that has been made in creating a
single European maJket foJ foodstuffs, tensions between national
i \ \
P.S. Adviser, Ec Commission, Brussels,
October, 1991 I \
S1 Philip Revzin, "Italians Must Change Their Business Style
in Integrated EUrOp$," street Journal, November 21, 1988, p.
1 \ I
82 "Court of, Jr'stice I ans Some National Food Laws," Europe,
#285, p. 42
83 "community IFOOd , ,, Reuter Library Service, February 23,
1989.
,
, I
,
48
regulations and the creation of persist.
Indeed in recent years, a new focus of has emerged - one
significant enough to be described by he of the Commission's
Foodstuffs Division as a "fourth level of pr+e.ctionism. ,,84 It is
rooted in the divergence of nationrl control and inspection
standards. For even if national standards lre harmonized - and
other non-tariff barriers rendered mool by of mutual
recognition - both national and local IgovernJents will still vary
in both their ability and willingnessJto safety standards
for foods and beverages. If inspecti n is ndt uniform throughout
the Community, consumers are likely td be indreaSinglY exposed to
hazards from food produced in nationsI with llesis effective public
controls. ! II
Indeed, it is precisely the succlss of EC in creating a
single European market that has brougJt this issue to the fore: a
growing proportion of the products consumed by Europeans are
produced outside their own country, thus making the health of all
consumers increasingly dependent oh the competence of the II
I I
inspectors of other nations. (This well to food
imported by a member state from non-EC member and then
distributed within the community.) Ah the slame time, the steady
growth in the consumption of processbd food, combined with new
I
technologies of food production, have increaJeJ the vulnerability
of all European consumers to food borne diseJses.
According to a recent study, each !year 161.5 million people, or
I '
84
Gray, op cit p. 118
49
roughly 5 per cent I of thelcommunity'S population, become ill as a
result of food po!i.soningi85 In 1989, large-scale outbreaks of
I I' "d dth
foodborn disease; o'ccUrredll.n the Un;Lted Kl.ng om, France an e
Netherlands. EurJpean consumer's have recently been exposed to
I
botulism in nut-flavored yoghurt, the contamination of wine by
. I
I ,
methanol, salmonelta in 1hickens, eggs and powdered milk, lead-
contaminated milk powder, harmful bacteria in soft cheeses from
I
France and the uniited Kingdom, benzene in bottled water, the
illegal use of h0ri0nes in beef cattle, and high-levels of
radiation in a variety of foods as a result of the nuclear accident
, I I
I ,
at Chernobyl. In ,1'90, th,y became hl.ghly alarmed by the outbreak
of B.S.E or dis,ase in Britain.
and food inspection have emerged as
important and cont1tious issues in Europe. Public concerns
about the adequaCy!of national control and inspection system not
only pose an chaillenge to intra-Community trade; in many
, I
" ,
cases they an l.m
1ortant
economl.C threat to both European
farmers and food Not only does the lack of common
principles of food rontrolr undermine public trust in the quality
of imports, but ,importing\ countries are frequently required to
duplicate the inspettions 9arried out in the country of production,
thus creating an obstacle to the creation of a single
I
European market.
II
I,
I
85 J .A. Papadakis, "The Control of Foodstuffs in the Context
of the Completion bf the IE. C. Internal Market," Scientific and
Technological optiOJ1S European Parliament, Strausbourg,
May 17, 1990, forward.
I 50
In November 1989 the ECls Farm Commissioner stated that he was
"very much aware of the growing consumlr inteJest in the safety of
I I i
the food" and promised to propose hejlth rulle,s on eggs, and to
establish a system to insure a common approach controlling
I I I d
dangerous micro-organisms in food. H also rr:ed commun1ty-w1 e
rules on fish and dairy products and that regulations
that applied to trade in red meat pro ucts and poultry should be
extended to domestic The second on foodstuffs
control in the EC, held in Rome the attracted more
than 650 participants - a clear inlicatiot :Of "the increased
interest in control as the programme of food law and Article 30
case law have increased the free circllation of foodstuffs in the
Community ,,87
the operated a For more than a decade, rapid
alert system for dangerous fOOdstUffsr upon aware of a
l
problem, they notify appropriate national, authorities and
coordinate appropriate national or Community tide restrictions, in
effect establishing a system of mutual in reverse. This
system has worked reasonably well ona numbLr of occasions. For
example, following Chernobyl, "the ralid aleJt system was used on
J I'
an almost continuous basis to relay state or contamination of
I 88
foods 1n and outs1de.. the EC... toI control
I
authorities." The
"EC Plans Battle Against FooJ POisoJing," Reuter Library
Report, November 28, 1989.
I
I
87 "The Second symposium on foodstuffs control," unpublished
paper, p. 1
88
Gray, Ope cit., p. 119
51
Commission also worked closely with the FDA in the United states to
develop a coord'inlted rJsponse to the health issues raised by
Chilean grapes thar were bontaminated with cyanide. In the case of
two wine contamination scandals, the Commission was able to
, I
national governments to track down the
the e;f,orts 0
and prevent, sale.
Yet this system has number of shortcomings. Most obviously,
'i \ \ f d f bl f th h
purpose to reSPOnd\to 00 sa ety pro ems a ter ey ave
occurred rather to!prevenu such problems from arising in the first
place. Even more \importJntl
Y,
the commission's effectiveness is
limited by the that the legal responsibility for inspecting
foods, both at the point of production and sale, remains the sole
responsibility of nationll authorities; the Commission has no
police powers. vJrr widely in both their scale and method
of reporting outbJeaks of illness. In some nations, reporting
threats to public Ihe a l th from food contamination is centralized
, I
while in others it lis the responsibility of more than one agency.
National reporting batternf are also affected by cultural factors:
all Community resibents re not equally likely to resort to a
doctor in cases of!gastrotintestinal illness of short durations,
thus preventing a'clordinaued EC response to various unsafe foods.
HistoriCallY!,' be Commission paid relatively little
attention to quesJions food hygiene, instead focusing its
efforts on food combositioh and labeling. In 1987, the Commission
polled officials' membJ,r states about the adequacy of their
systems for foodiJspectio . Not surprisingly, all member st3tes
52
reported that their inspection s yste were good. However this
I
"rosy picture contrasts rather sharp y with the picture that a
l
1 number of Members of the European Par' iament for their
. h' t
l
fl"
l
t' .
own countrl.es." In fact, lit e organl.za l.on 0 Il.nspec l.on servl.ces,
I ..
the training of inspectors and the fundamental l.nspectl.on
I
philosophy differ enormously. II As a result,
I
I"l.n many cases what
I :
looks splendid on paper turns out to harej little basis in
reality. 1189 I
The ECls 1989 directive on the official control of foodstuffs
while emphasizing the need for IIharmonlzation'll and approximation of
I '
different national food control system!., II a11 member states to
10wed
continue to maintain their own inspections syltems. Moreover, the
I '
food inspection Directive made no attempt to harmonize either the
frequency of inspections or the fihes to I be imposed when a
I '
violation is found. At a result, national piactices and policies
. . . I, I
contl.nue to dl.verge wl.de1y; some ,have perfunctory I'
I I
inspection systems, while others have quiteI comprehensive ones.
Their administration also varies sign'ficantiy. For example, in
I :
Britain, food inspection is the respon local authorities
and individual inspectors enjoy substantial autonomy. By contrast,
Germany has a system of centrally emPlfyed intPectors who follow a
strict inspection program. The inspection systems of these two
I I '
nations have no more in common than thby had prior to the creation
of the EC.
The Commission has encouraged repzresentat+ives of national food
i .
89 G. Chambers, "Food Hygiene Po1l.cy ana
I
1992, II p. 30
53
inspection systems to meet together on a regular basis. But these
meetings have relatively little - in part because of
language barriers] "A rer of representatives of national
inspection services at the Second symposium on the Control of
Foodstuffs held in Rome In December, 1989 were dismayed at what
they described as totll lack of progress" during the previous
decade.
9O
The \ commis1ion has appropriated 80,000 ECUs
(approximately Slld,ooo) a five-year program to enable 200 food
law enforcement to visit their opposite numbers in other
. I
EC countries. Whi11 initial results have been encouraging, but its
long-term impact remains unclear.
91
A Directive eJtabliShing common standards for food inspection
officially goes intr effect in June, 1992, but for it to accomplish
its objective of cfeatingla single market in foodstuffs, nations
must have, "a high cjlegree df trust in each other's controls," which
they do not now hJve.
92
hignificantlY, the EC has yet to reach
agreement on a foJd hygiLne directive; their failure to do so
Ii.
represents one fhe mor mportant obstacles to the
EC's 1992 program,!. I
The creation of a co on market in animals and plants has meet
with similar .. Many nations are wary of allowing diffJ
animals to freely eAter th-tr country, because of the diseases that
\ .

90
Ibid
i
91 Paul Allen, ,,"FoOd and EEC Deregulation Policy," British
Food Journal, Jan/Feb 1989 Vol 91 No 1, p. 11
. I B'uChan
l
, P.' 240
92Colchester ana
54
they may carry. The importance of t is lack of trust in each
nation's system of animal inspectioJs, and its potential as a
obstacle to creation of a single in animals as
I I .
well as processed beef, was revealed in the winter of 1989 - 1990,
when widespread outbreaks of diJease occurred among
cattle in Great Britain. Within mont.s, 9,500 British
cows were "spongy-brained, mad and dead.,,93 Britain's Ministry of
AgriCUlture stated that the disease bosed Jo: danger to humans,
although they did ban the feeding of diseased bows to other animals
in order to prevent the spread 0 the lisease among their
I
, k " I ' ,
1vestoc. Br1t1sh consumers were Com1ng shortly
, , , 1- I "
after w1dely pub11c1zed outbreaks of Salmonella, l1ster1a and
botulism, the government's assurancesl- eSP1ci:allY coming from a
Ministry widely regarded as "the faTer's jOuthPiece, ,,94 - had
little impact: sales of domestic beefl in thl United Kingdom fell
between 20 and 30 per I
Th tb k f d
' I, B 't
l
, t d t '
e ou rea 0 mad -cow 1sease 11n r1 la1n crea e ensrone
between Britain and some of its traJing paftners in the EC. In
January, 1990, Germany officiallr banhed British beef;
subsequently, a number of other countries, France and
Italy, prohibited imports of this pr1duct flom Britain as well.
1
93 "Mad, Bad and Dangerous to E t," EJonomist, February 3.
1990, p. 89 I
I
Ibid
Nigel DUdley, Robert Melcher and Paterson, "Shoppers
Snub the Experts in Mad Cow Crisis," The European June 8 - 10,
1990, p. 1. See also Marianne McGowan "In Britain, Concern Grows
About Cattle Disease," New York Times June 21,1990, B7
55
I
Although a veterinary community of the European Commission ruled
that the risk of riS disease being transmitted to humans was
"remote", the panel did 11 not declare the infected beef to be
ii,, 'b1 f
completely safe. Neverthe ess, the EC commaasaonez responsl. e or
the operation of thl commoJ Agricultural Policy formally criticized
the ban.% . I
The French initially refused to rescind their ban until a team
of French experis had the opportunity to meet with their
British Theil French Minister of Agriculture stated
. I
I I
that "We have taken these I severe measures against the UK so that
I I
French people can Jat meatt in safety."w The British were furious.
, \ " h' th'
The Tl.mes labeled France's reJectl.on of t e EC s request at l.t
, I I
lift its ban as act of naked protectionism", adding that the
"French Minis has sided with his farming lobby
[which] fear[s] icJmpetiti n from cheap British imports." The
editorial npro1ecting home markets under the guise of
protecting public hla1th d fies the spirit as well as the letter of
Community law. ,,98' I
The British tJreatene to retaliate. Indeed, both France and
Britain have a long history of using health and safety concerns to
protect domestic agricu1thra1 producers from their competitors
across the Channel. I This p rticular fracas threatened to provoke a
I
56
trade war similar to the one that had meen avoided a year
earlier when the British had threatened to banlsales of French soft
cheeses and the grounds that they conbained acteria that caused I
the disease listeria. The French in tuJn had threatened a
retaliatory ban on British eggs on the groundi that they contained
Salmonella. "The press in both countri s induIFe,d in campaigns that
owed more to petty patriotism than lcommon: Now the
British once again threatened to ban s les of French soft cheeses.
I
The dispute was eventually settled by the A9jiCultural Council in
June, 1990. After the British agreed to new controls to
prevent the export Of' affected meat, F,la nc e, w1es.t Germany and Italy
I I
agreed to lift their ban on imports of! British beef. The
controversy has however left a resiJue of lutual suspicion and
distrust, as well as considerable eco omic losses on the part of
British producers.
In order to prevent this a d similar incidents from
reoccurring, the Commission has advanbed a of proposals to
eradicate or control animal diseases JUCh as LWine fever, foot and
mouth disease, brucellosis and tubeJculosiJ . It also announced
I '
plans to issue directives regulating
I
It:r:ade in and the
transportation of pedigree cattle, pi s and sheep as well as their
embryos and semen. Agreement on the lifting bf, border controls on
the transit of live animals - espe ially livestock - proved
difficult, largely because Britain ana Ireland were worried about
I I
the importation of rabies from the continent.
i
(So great is the
99
Dudley, op cit
57
I
I
British fear of that they are installing special barriers in
the Chunnel in to [prevent wild animals from France from
., I
crossing the with ut being inspected.) However in June
1990, the council'vlted to remove border controls on the transit of
live animals Membe states by the end of 1992. (A parallel
agreement for animajl products had been approved the previous year.)
However health continue on animals at the points of
departure and IJ March, 1991, the European Parliament
approved a \ of pr!POSa1S designed to expedite the free
movement of plants 1he community, although agreement has not
yet been reached 01 a Directive that would establish a
European-wide system for pesticide registration. A number of other
proposals in the of and animal health have yet to be
adopted.
II
x. The EC and Consumer Protection
I
, I
The mad-cow 't4ade diiPute raised a more profound issue: to
what extent does. thie crea1ion and smooth functioning of a Single
European market tr interfere with the ability of Member
States to and maintain their own consumer protection
standards? In princJple, problem has been resolved: the health
, I I
and safety of European \ consumers will be assured by the
promulgation of EC which will take as their standard the
I
maintenance of a "1igh level of protection."100 "Non-essential"
100
Chamber op cit, p. 39
58
regulations will remain under the contjOl of n1at1ional authorities,
who however are not allowed to apply them to goods produced
. h .I t f llh" t't'
elsewhere 1n the EC, unless t ey can JUs 1 y res r1C 10ns on
consumer protection grounds.
The combination of harmonization land recognition have
been relatively effective in trade. barriers. But it
J I;
remains unclear how well they have addressed uhe issue of consumer
I I :
protection. The approach of the EC has been the issue of
consumer health and safety primarily 1s a or scientific
matter. Thus both the Commission and the Court rely heavily on the
advice of the Scientific committee for FOrd' - the former to
determine appropriate standards for and the latter to
assess the claims of Kember States 10 trade under the
provisions of Article 36. In mostJ cases, there is a clear
scientific consensus, particularly a nation has imposed
restrictions that clearly are designed to protect producers rather
I I
than consumers: it would be hard tol make al argument
that the Court's decisions in casJis or Reinheitsgebot have I
I
undermined the health of the German people. I: But in the case
of many other regulatory issues and poJicies, issue of consumer
safety is less straightforward: people can and do
disagree about the degree and scope of'regulatiion that is needed to
I
assure an adequate margin of safety. Not surprisingly, the food
I
safety issues with which the EC has rjcentlYlbeen wrestling, such
as the spraying of particular pestifides or. crops, the use of
antibiotics in animal feed, the use of I rowth-promoting hormones in
59
cattle feed, theinc1usiolof both natural and synthetic additives
in processed fOOd,! and fo d irradiation, have also been the focus
i I \. U d
of controversy
th
e
t
e
St
a
t
es.
The differer4e' how1ver, is that in the united states, the
resolution of these issues does not, for the most part, raise any
jurisdiction lin most cases, the federal role is pre
eminent and in areas\Where it is not, state regulation is not
viewed as a threaJ to interstate commerce or federal authority.
Precisely IAmericJns can take the existence of a single
internal market !fJr granied, they are less threatened by state
regulation. As in America these regulatory issues are
primarily about b
1n
s umer protection, not protectionism: for the
most part, they pit co, sumers against producers, not those
consumers or produders of political jurisdiction against those
of another. \
In Europe, situaiion is very different: the debate over
consumer protectio1 frequlntlY raises issues of protectionism as
well. The legitimaoy of tle Eels authority as a source of health
and safety regui1aCion ils still problematic, while national
governments have long trJdition of regulation in the area of food
safety. The tlchnocratic approach to the regulation of
food safety may malke sense from the perspective of creating a
single European bJt it is less persuasive when measured
. \ I
against the standards of cbnsumer protection. The latter has less
'th . t 1. d j. k' .
t o d0 than social values
l
values on which t e govlrnments elected by the citizens of
60
,
I
democratic societies can and do disagr e. I
l
The aftermath of the nuclear at IChernObYl provides a
clear illustration of the community'slcontinuing difficulties in
agreeing on common health and safety sbandardl,i particularly when
important economic interests are at s1akeo Italy, Spain,
and Germany unilaterally banned 'fresh fruits and
vegetables from Eastern Europe, while lnd Spain, which were
less affected by the fallout from sovi!et
l
Union did not. 101
j , I
More importantly, the EC's foreign min1sters Jere initially unable
to agree on common radioactivity levels for produced within
the EC. Germany insisted on maintainling I strict standards.
However, Italy, fearful of losing its marJet for early-season
produce, insisted on more flexible ones, I 6laiming that the
I
standards proposed by the EC discriminared Italian farmers.
On the other hand, Italy, which had previouslJ been embarrassed by
the methyl alcohol poisoning of some IOf itsl red wines, demanded
health certificates for all importel:i This in turn
threatened the export of French fruitJ and vJgetables.
The result was a serious of free movement of
agricultural products within the EC, a, each nation established its
own standard. In frustration, Carlo riPa dJ Meana, the Italian
Commissioner responsible for a "citiz nsf declared that
the EC "does not exist as a political ard sCiettific entity capable
of reacting speedily to the problT by the nuclear
101E.J. Dionne Jr. "Europeans Sque;tbbling Over Food: Is Their
Produce Free of Radiation? New York 10, 1986, p. 5
61
emergency. ,,102 ItoOk several weeks of negotiations before the
: L I
EC was finally abl
r
to on temporary safety levels for both
imported and domestic
I I
However, eff9rts to establish permanent maximum radiation
. I
levels for food hare proven far more difficult. In May, 1987, the
commission propose1 radiation limits for food and drinking
water than those recommended by its own scientists on the grounds
that it was imporJant to leave a safety margin in the event of
another nuclear The Commission also expressed concern
that EC food exporrs COUld be badly affected if the community's
standards were belloW those of its maj or trading partners. This
, 't' t' 1 I d " 1
a.na aa l.ve was strong y . ppose by those natn.one commatted to
I
nuclear power, Fran e, Britain and Belgium, but was in turn
I
supported by countries w'th strong anti-nuclear movements, most
notably Germany aJd Denm;r.'rk.
104
Stanley Clinton-Davis, the EC
Environment commiskion w 0 proposed the new safety standards,
described the EC' failJre to reach a decision as, "totally
unacceptable and for the Community. ,,105
' I, Il'f' d ' 't
As a comproml.s
r
, a qua l. l.e maJorl. y of member states agreed
to continue the limposed after the accident at Chernobyl
: 1
102"EEC confiJs Ban On Food Imports From East Europe,"
Financial Times, May 13, 3 1
186,
p.
103Paul cheeslright, I "EEC To Set N-Safety
Level in
Food,"Financial Tim!es, May 5, 1986, p , 3
I ,
104Quentin "CoJnission Calls for Stricter Limits on
Radiation In Food, "I Times. May 21, 1987, p. 2
105Que ntin peell "EC in Deadlock Over Food Radiation Limits,"
Financial Times, OCfober 21, 1987, p. 4
62
for an additional two years: GermaiY' Lu embourg and Denmark
supported tougher standards, but wer 106 In a special
i fl, . 't
meeting held in November 1987, t h e EC s orel.gn marias ers were
unable to agree on permanent standarJs. ThL Community remained
J
I i
deadlocked between France, Britain, S Iain and Greece, which favor
a relaxation of the EC I s post-Chernoby] standa1rds, and Germany, the
Netherlands and Denmark, which favor stricJer ones. As Clinton
observed, "There are still massive between member
states. ,,107
No surprisingly, one of the ECls mbst conspicuous failures has
been its inability to develop cbmmon Ltandards for food
irradiation. six EC member nations bermit Ilirradiation for the
, , I I , ,
treatment of certal.n foods whl.le two -lGreat Brl.tal.n and Germany
ban it. The others neither formally permiJ or ban it. While
irradiation has been endorsed by both e worlb Health Organization
and the ECls own scientific advisors, Ian intJrnal EC report notes
I I
that the idea is "one which public opinion dcbesnlt appreciate.,,108
Faced with strong opposition from GerLany aJdLUXembOUrg, the EC
I .
was recently forced to abandon its effort to legalize the sale of
irradiated herbs, spices and teas in tJe EC, it has resisted
I I ..
the demands of the Green Party members of the European Parliament
"'.William Dawkins, "EC MinisterJ Agree I on Radiation Safety
Levels for Food," Financial Times, Dec::ember 15, 1987, p. 2
I I
107 "EC Fails in New Bid To Agree IRadiatIon Limits for Food,"
Reuters Library Service, November 8, i987 I
I
108"Irradiated Food Row Splits European Community," Reuter
Library Report, December 13, 1990 I I
63
II
for an immediate 'ban on the irradiation of foodstuffs in the
community. 109
I
I
Moreover, bOfh conr
I
ume r groups and national regulatory
authorities have expressed considerable reservation about the EC's
approach to the regulatory policy. The commission has
, I
been criticized foJ re1yig too closely on a small group of experts
, ,I h' t t rt" t ' 't
and not pezuu,ttl.ng ot er l.nteres groups 0 pa acapa e an l. s
! I
deliberations. In alddition, Member states have expressed reluctance
, I
about giving .. \much pwer to the Commission on possibly very
sensitive nation.all issJes relating to public health and
: I
safety. ,,110 In a on food policy in the EC issued in
,I I , 1
1987, Consumers
I,
an the European Communl.ty Group, an umbre la
organization of 2711 British consumer groups, argued that the "EEC
has no overall COrlsistenJ food policy. . the Commission is
mainly rem1Ving barriers to trade. consumer
protection is of ory1y seCindary importance. ,,111
Their 1engthy!statement identified scores of areas in which
; I I
they thought EC standards iid not adequately protect consumers and
,
w l.C
h' h C
ommunl.
"t
l
ru
1
e were l.n
'f'
erl.or to
, ,
ones. A l.n
r
Brl.tl.sh
I I
subsequent document expressed particular concern about the EC's
'1 i 1 I, " , I I,
unwl. 1 ngness to a1 ow riatl.ons to mal.ntal.n any composl.tiona1
I[
10911Irradiated I Food
Rpw Splits European Community. "Reuter
Library Report,
13, 1990. "EC Commission Rejects Call for
Ban on Food Reuters Library Service. March 10, 1987
110 Chamber opl cit, pi 41
I I r
111 A Hot Ai Pamphlet produced by Consumers in the
European Communl.ty Froup, May 1987, p. 9
64
I
I
standards, since they believe that in ome these standards
provide consumers with important informatiln.
112
It contended
that "we must weigh up the desire to movement of goods
against the wish to prevent food from Jeing throughout the
Community, and losing high quality fo ds thro11u9h competition from
lower-quality ones. ,,113 CECG speci ically . cited the case of
I
mayonnaise, where national standards oil :content vary between
35 and 80%. They argued that if each ok these I products are allowed
to be sold as "mayonnaise" throughout Jhe EC, bs the Commission has
I
proposed, many consumers are likely to wind ub purchasing products
I :
that differ substantially from the I ones fhey purchased when
mayonnaise was subject to national composition standards.
The European Consumer Law Group I also hls expressed concern
about the EC' s commitment to consJmer pr1otection. They have
criticized the Commission for thL principle of mutual
recognition too narrowly, contending that I "quality standards,
regulations about labelling and information, and
I prescriptions about denominations" Ishould not be considered
unlawful per se but should be balanced against reasonable consumer
interests. 114 They have also suggest d that I harmonization should
be minimal rather than total. ACOrdingl1y, EC rules should
establish a floor, not a ceiling, thJs alloJing member states to
I
I
112 Food Labelling and Standards:,
A New Beg1nn1ng, CECG 87/17
I
113 Ibid, p. 6 I
114 "European Consumer Law Group:1
consuler Protection in the
EEC After Ratification of the Single Act, "I Journal of Consumer
Policy. September, 1987, p. 322
65
. I
enact stricterh1alth 01 safety regulations even if they
interfere with infegration. Another critic of EC consumer
regulation has attlcked the Commission for not attempting to apply
the principle Of, +tual J1ecognitiOn in reverse,'" Ludwig Kramer
has suggested that] a prodrct determined to be unsafe by a member
state therefore shbuld be prohibited from being sold throughout
the EC. Indeed, le notJs that while the EC has established
. I I
procedures for approving ihe use of a new substances or products,
it has not either criteria or procedures for banning
I
throughout the a product or substance that subsequent
evidence has shown lito be unsafe.
I I
The emergence: of mire militant consumer groups, such as
I d' . .
Parents for Safe rood, iounde by Br1t1sh enterta1ner, Pamela
I
Stevenson, threaters to \make the creat10n and enforcement of
European food standrrds even more complex. Like a number of
American environme1tal grorps, PSF favors a sharp reduction in the
use of pesticides and chemical preservatives in order to protect
I
, I
the health of cinsumer 116 Again, the contrast with the
situation in the -pnited States is instructive. In the united
States, this it was not able to influence federal
regulatory policy tl its satisfaction, could seek to affect policy
, I I
at the state level 'I State rOOd safety regulations do not pose any
11SLudwig "EEC Action In Regard to Consumer Safety,
Particularly in thrl Food I Sector," Journal of Consumer Policy,
December, 1984, pp. 473 -
116 See, for ,axamPle\, Erik Millstone, "Food Additives: A
Technology Out of cbntrol?" New Scientist, October 18, 1984, pp.
20-24. I
66
constitutional issues, provided they srnject produced in
the state to the same standards as "imported" Jnes. For example, if
It'
Propos1t1on
, ,
128, wh1c
Lch
wou
Id h
ave 1mp0se
,I d
severe res r1C
t'
10ns on
the use of pesticides on food sold aJd qr0w1 in California been
approved by California voters in the fall 1990, it would not
1
1
have violated the interstate commerce clause. (However, it might
well have violated the GATT.) I
But it is highly unlikely that t e European Community would
permit a Member state to enact an equivl1ent tion. Not would
the EC's Directive on pesticide residuls preempt similar
regulations by a Member state, but ven if I the EC had not yet
succeeded in harmonizing regulatory I policy in this area, the
doctrine of mutual recognition would have required all Member
states to permit the import of made with pesticides and
preservatives that were legal in states -- unless
the SCF had judqed them to be Brdssels has souqht to
preempt national requlations to a qreater than Washington
has preempted state regulatory actioJs. Similarly, the European
Court has been far more willinq to strike down!national requlations
'1 ,I
th ht
I
on e grounds tathe V10 ate Art1cle 30 of the Treaty of Rome
than the American Supreme Court hJs been to overturn state
regulations on the grounds that they VI'Ilate the commerce clause of
the American Constitution.
117
Thus in the event that a member ation were persuaded of the
117 See Lawrence Tribe, t.merican lonstitutional LaW, Mineola.
New York: The Foundation Press, 1988, Second Edition,p. 408 - 427
67
I
. I
desirability of I,prop 128," the stage would be set for a
major confrontatiot between free trade at the community level and
consumer protection at the\national one. This particular occurrence
is highly unlikel
y i.
but i1 does illustrate the extent to which the
emergence of a activiit consumer movement in Europe threatens
to expand the of conflicts between the EC and
national in tle foodstuffs sector. The Community has
made substantial pJoqress\in reducing non-tariff barriers created
by producers; it row faces the challenge of also effectively
addressing the to he creation of a single European market
posed by consumers.\
It is true the Ef will find it easier to formulate rules
for new products I or ptocesses than to harmonize national
regulations governipg ones. However as new issues of food
I I .
safety emerge - and th1s seems to be occurr1ng at an accelerated
pace due both to innovations in food production and
processing technology and increased public concern about food
safety and hygiene: - will become new potential sources of
trade barriers within the EC. Some national regulatory authorities,
and some national will invariably feel that their
legitimate concerns\about fne public's health and safety have been
given short-shrift fn BrusjselSO And they in turn will find allies
among producers, lr}ho st nd to benefit from more restrictive
I
national or EC reguiat1ons.
I
I ..
XI. Harmon1zat1on and National Culture
I .
68
II
I
I
Finally, national assessments of ood and compositional
standards also remain strongly influenced bt national
i
customs and traditions. NotwithstaJding the ECls decision to
abandon its effort to impose "Euro-rtciPes.l producers and
consumers throuqhout the Community fear thjl :the creation of a
single European market in foodstuffl their culinary
traditions. This concern was echoed i1 an published in the
French publication, Le Point in Februah, 19891. Entitled, "Our Good
Food In Danger," it described in the ways in which
French food quality was being by EC:
What could happen on our Platel Withib four years? All
that is needed is look at the astonishing menus our
neighbors are preparing for uSi: spanish foie gras, made
with pork fat: mock snails (from west I Germany,) ice cream
made with vegetable fat Holland), chocolate made
with animal fats (from Britain),lmincedlmeat mixed with soya
(from Belgium), sausages made with flour (from Britain), (a
nation with) no cUlinary ani' chocolate made with
cocoa butter (from Britain.) 118 I
Doubtless many Germans, who have recJntlY had I the European Court
strike down regulations for two of tieir moit cherished national
products, namely and wurt, wouldjoffer f appraisal of
recent developments in European food the former product,
the Germans are now required to the of beer from I
Belgian, which contain, among other I ingredients, "strawberries,
apples, wheat, anything that I s not tied dOJ.1I119
I I
1989, Food In Danger, IJI Le POilPt February 13 - 19,
119David Brooks, "Jam Sessions," ew Repu lic November 4, 1991,
p. 15 I I
69
In November of 1991 the French had another reason to be
upset. The EC prlposed regulations restricting the amount of
bacteria allowediJ chees1' justifying its proposal on the grounds
\ \
of consumer safet1Y.i However about one-tenth of the cheese produced
in France is made with Iunpasteurized or raw milk, including
Camembert, Brie, l'Evrque and "other names close to the French
epicurean heart.,,'-r Thre cheeses are allowed to ripen with
their naturally produced bacteria, some of which the Commission has
determined to j The French Ministry of Agriculture
accused the Jf being "obsessed with hygiene" and
promised that JOUld be done to "protect our cheeses."
Claire Marcellin NotmandY Milk Union, contended that the EC
I I h h
restr1ct1on would, rmean t,e loss of a whole wealt of very Frenc
flavors,,121 while ihe re1idents of Camembert (population 185),
noting that "no on
r
has rver fallen ill from eating raw-milk
camembert," of trying, "to ruin the product which
has made them ...122 II In response, Brussels promised to set
. ' I
speci f1C standards for raw m1lk cheese, but farmers feel that these
standards will requlre to purchase expensive new equipment.
The British, fbr theit part also have found grounds on which
to protest food ltandarJs emanating from Brussels. German
influenced sausage 1tandards proposed by the EC would prohibit the
I
simonb, "The Message from Camembert to Europe: Don It
I
Mess W1th Cheese," New York T1mes, November 29, 1991, p. Bl
121ibid I
122"Cheesed Off," Economist December 7, 1991, p. 78
70
use of gristle, cheekmeat and sinew, each of which is currently
used to make sausages in Britain, relerred to as bangers.
The British press promised "blood, swJat, and tears in defense of
their peculiar breakfast delicacy." AJter EC pointed out
that the EC standards would make British sausages healthier and
better, the Daily Telegraph responded llith thel headline: "Hands Off
Our Bangers, We Like Them Lousy. ,,'23 \
Those who live on the continent are equally alarmed about the
prospect of EC food being sold in Jheir Commission
officials are fond of repeating the ltory 01 an English sausage
I I
manufacturer who lay dying. "He gatherrld his around him and
I i
said, Imy children, I must pass on to a sepret that has been in
our family for many years. You can sausJges using meat. 1,,124
I
I
I
The creation of a common mark for !fOOd, beverages and
animals within Europe must be underst od not so much as a goal as
an ongoing process. The Community haS!ade sUDstantial progress in
establishing a legal, political an sCienLific framework for I
' , t mb ,,1 i
enabl1ng 1 s me er states to 1dent1f and address the regulatory
issues that must be resolved before a common: can actually
come into existence. And it has act,ally managed to resolve an 1
I 'I
123
Br ooks,
op cit I L
124"people 1s Europe: A Consumer Vie oint, EIU European Trends
no. 2, 1990, p. 78
71
impressive number 0f these issues. But the number of such issues
! !! I
is not, as the White Paper implies, finite. "Nineteen ninety-two"
I I , . h'
makes sense less as a goal than as a V1S10n. As such t e quest10n
1 I
is not when or even if it rill ever be realized, but the extent to
which there is toward it. Seen in these terms,
,I .1
the progress made since the White Paper is impressive. Important
obstacles remain' Jrr the creation of a single market in foods,
I d I, 1 f th b
beverages, plant!s I an ai1ma s , Some 0 ese may never e
overcome, while newl ones wtll undoubtedly emerge. But the momentum
is now clearly in iavor ofi integration.
However while or reduction of non-tariff barriers
: I I
is a necessary condition for the creation of an internal market, it
I
is not a sUfficient one. An integrated market also requires
' :1 d d b h ' 1
c h anges an consumer an pro ucer e aV10r. For examp e, one
important obstacle increased intra-Community trade in processed
foods is the Europelan system. There is little point
in allowing consumeks to food produced in other Ee states
unless an efficientl system is available to move it
across national wholesalers are both interested in
and capable of dist1ibutinl it to retail outlets. Accordingly, the
creation of a marketi in transportation services, along with
a reduction of the JelayS by border inspections, are likely
. I , J
to contribute significantly to the creation of a common market in
L
' k : ,I ,I d
f 00d t ff 1 eW1se, 1ndrease purchases of food from from sus.
. I I
supermarkets Willatso proiote economic integration.
The creation of a co on market in foodstuffs also requires I
72
changes in consumer attitudes ior. Unless consumers are
actually willing to purchase goods 0
i. .
commoq1t1es from other EC
I
countries, many of the efficiency : ains with the
creation of single European market may prove Jlusive. The evidence
is so far mixed. On one hand, as a of Europeans
travel to, or in some cases work or stJdY in, lother nations in the
Community, both their taste for and in the quality of
"foreign" foods is likely to increase.J Just many Italian dishes
that were once strictly local or regi ,nal ha1e became accepted as
national dishes in the hundred years ince unification, so is the
political and economic integration of Europe [likelY to contribute
to the development of a "European" cuisine.
Likewise, the growth of consumptJon of qonvenience, packaged
and frozen foods is also likely to prJmote iJtra-community trade,
since their production benefits from s1ale ecbnomies and processed
I ,
food is less likely to have a distiJctive or national
identity. As of 1989, between ten and fifteeh percent of all food
sold in Europe was "processed" - a figure has been rising
steadily for a generation.
125
HoweverI, this lis an average figure
that conceals substantial national vlriatioAs: it is highest in
Britain and lowest in Greece andl portuJal. Similarly, the
consumption of frozen foods varies si nificaJtlY within the EC as
does the proportion of households wit* microJave ovens.
On the other hand, national tastes andl cUlinary traditions
"'Christopher Farrands, 'Strat gies Food Processing
Companies: Innovation and the Single EU! European Trends,
No. 4 1989, p. 44
73
I
remain strong in a numbelr of European countries. For example,
notwithstanding th1 of the European Court, "imported" beer
still accounts than 1% of Germany consumption. One
. I
suspects that regaidleSs f whatever edicts emanate from Brussels,
the Dutch are unlikely tol ever purchase much chocolate or cheese
from other Member Nor are the French likely to consume
more than negligiblF quantities of "foreign" cheese, bread or wine.
And the Belgians to relinquish their predilection for
their own country's chocolate, or the Italians for their
I I
domestically produc\ed pasla. For these and countless other number
of similar products, int:ua-community trade is likely to remain
modest. . J
In addition, Europea markets remain SUbstantially different
I
in a number of respects. For example, in recent years
both the Outch and the Ge1'ans have become more health conscious
a change in attitude that 's less apparent in Britain and virtually
I
non-existent in Ireland. n France, there has been a significant
reaction against mlny fa1ty foods, but virtually no change in
public attitudes totards Silt, sugar or additives. The maintenance
of substantial difftrenceslin national, or in some cases, regional
tastes, is likely to comp11cate the efforts of food processors to
engage in and marketing. Nonetheless,
niche markets, such as in diet soft-drinks, organic foods or
l
. . candy 'bars or nac s are eg1nn1ng t 0 d eve1 1nexpens1ve r k b" op across
national boundariesj
As a single European Jarket in food actually develops, it is
74
likely to result in the restructurinr and consolidation of the
European food and beverage industry. 'The brraking down of trade
barriers in likely to favor the larger compan
1
, able to make cross
border investment of some kind, wheth r mergJr acquisition, joint
venture or simply expansion smaller which fail to
secure their markets [are likely to fOld."126 with two notable
exceptions, namely Unilever and N L stle, i ost European food
companies remain nationally focused: s of 1988, only one out of
ten European firms had a presence in the largest EC Member
States.
127
J:ronically, the major beneficiari+ .of the creation of
a common market in food and beverages may weil be American-based
multinationals. Eight out of ten of the Jorld I s largest food
producers are American, and each hJs long had a strategy of
producing and marketing throughout wesJern Europe. Unless European
firms rapidly adj ust their structu and marketing, many of I
economies of scale that are availa be captured by the
creation of a common market in food and are likely to be
captured by non-European firms.
126vivienne Kendall, "Food Industiry - Keeping the European
Customer satisfied," Eui European Tredds, NP.I 2:, 1989, p , 65-6
127c e c chini, op cit, p. 61
75
I
!
!
I ,
The Minda de Gunzburg Center for E pean
The Minda de Gunzburg Center for European Stud'es is an interdisciplinary
program organized within the Harvard Faculty of Arts and stiences and
designed to promote the study of Europe. The Center's governihg committees
represent the major social science departments at Harvard aJd the
Massachusetts of Technology. I I
Since its establishment in 1969, the Center has to orient students towards
questions that have been neglected both about past developments in
eighteenth- and nineteenth-eentury European SOOt Ities and about the present.
The Center's approach is comparative and interd sdplinary, IWith a strong
emphasis on the historical and cultural sources w, tch shape a country's
political and economic policies and social structures, Major irlterests of Center
members include elements common to industrial role of the state
in the political economy of each country, politica.ll social movements,
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