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RUNNERS AND RIDERS: THE HORSEMEAT SCANDAL, EU LAW AND MULTI-LEVEL ENFORCEMENT

Published online by Cambridge University Press:  03 April 2017

Catherine Barnard  and
Niall O'Connor
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Abstract

The 2013 horsemeat scandal shone a bright light on some of the darkest corners of supply-chain governance across the EU, revealing a blind spot in current EU food law. “Beef” frozen-food products were found to contain up to 100% horse. The British and Irish are squeamish about eating horse. Even for those countries where horsemeat is seen as a delicacy, the horse getting into the frozen “beef” was often of poor quality and possibly contaminated with “bute”, a veterinary drug not permitted in food for human consumption. The ability of the EU's regulatory regime to prevent fraud on such a scale was shown to be inadequate. EU food law, with its (over) emphasis on food safety, failed to prevent the occurrence of fraud and may even have played an (unintentional) role in facilitating or enhancing it. Domestic law offered little better protection, thus showing the difficulties associated with the implementation of a multi-level and multi-agency regulatory regime. Beyond the regulatory system, the EU's core Treaty commitment to the free movement of goods may also have laid the ground for complex and opaque supply chains into which unscrupulous traders and middlemen could slip unnoticed.

Keywords

horsemeat scandalEU lawfree movement of goodsmulti-level enforcementfood safety
Type
Articles
Information
The Cambridge Law Journal , Volume 76 , Issue 1 , March 2017 , pp. 116 - 144
Copyright
Copyright © Cambridge Law Journal and Contributors 2017 

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Footnotes

* Professor of EU Law and Employment Law, Trinity College, Cambridge.
** PhD Candidate in Law, Girton College, Cambridge.
We should like to thank Milorad Radakovic, Clive Lewis, David Heald, Caoimhín MacMaoláin, Paul Davis, Steve Wearne, Stuart Lendrum and Rod Ainsworth for their advice, as well as the participants at the seminars in Dubrovnik PhD programme in April 2015, the Centre for European Legal Studies, Cambridge in January 2016 and Glasgow Law School in March 2016.

References

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2 Case C-178/84, Commission v Germany [1987] ECR 1227.

3 Case C-14/00, Commission v Italy [2003] ECR I-513.

4 Council and Parliament Regulation (EC) No. 178/2002 (OJ 2002 L 31 p. 1).

5 Press conference by Tonio Borg on findings of horsemeat in meat products containing different type of meat, Brussels, 13 February 2013.

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8 Case C-120/78, Rewe Zentrale [1979] ECR 649.

9 For an example of this, see the interview with Martin McAdam, whose meat, which he had sourced from two separate Polish factories, had tested positive as horsemeat: BBC News, 8 February 2013.

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13 Case C-120/78, Rewe Zentrale [1979] ECR 649.

14 MacMaoláin, Food Law, p. 88.

15 Case C-120/78, Rewe Zentrale [1979] ECR 649.

16 See European Commission Food Safety Overview, available at <ec.europa.eu/food/> (accessed 18 January 2017).

17 Council and Parliament Regulation (EC) No. 178/2002 (OJ 2002 L 31 p. 1).

18 Ibid., at Article 6(2).

19 Ibid., at Articles 6(3) and 7.

20 Ibid., at Article 10.

21 Ibid., at Article 9.

22 Ibid., at Article 8.

23 Ibid., at Article 14, provides that unsafe food is that which is injurious to health or unfit for human consumption.

24 Ibid., at Article 17(1).

25 Ibid., at Article 18.

26 Ibid., at Article 18(4).

27 Ibid., at Article 50. See also Commission Regulation No. 16/2011 (OJ 2011 L 6 p.7) and <ec.europa.eu/food/food/rapidalert/index_en.htm> (accessed 12 January 2017).

28 Ibid., at Article 53(1).

29 Subsequently renamed the Standing Committee on Plants, Animals, Food and Feed.

30 Council and Parliament Regulation (EC) No. 178/2002 (OJ 2002 L 31 p. 1).

31 See <efsa.europa.eu/en/aboutefsa> (accessed 12 January 2017). See more generally Alemanno, A. and Gabbi, S. (eds.), Foundations of EU Food Law and Policy: Ten Years of the European Food Safety Authority (Farnham 2014)Google Scholar.

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33 Council and Parliament Regulation (EC) No. 882/2004 (OJ 2004 L165 p. 1).

34 Council and Parliament Regulation (EC) No. 853/2004 (OJ 2004 L 193 p. 55).

35 Council and Parliament Regulation (EC) No. 854/2004 (OJ 2004 L139 p. 206).

36 Council and Parliament Directive 2000/13/EC (OJ 2000 L109 p. 29) and Council Directive 90/496/EEC (OJ 1990 OJ L276 p. 40), since replaced by Regulation 1169/2011 discussed in detail below.

37 Commission Regulation (EU) No. 37/2010 (OJ 2010 L 15 p. 1).

38 Commission Regulation (EC) No. 504/2008 (OJ 2008 L 149 p. 3).

39 Department of Agriculture Report on the Investigation into Equine DNA and the Mislabelling of Processed Beef, 14 March 2013, available at <agriculture.gov.ie/media/migration/publications/2013/EquineDNAreportMarch2013190313.pdf> (accessed 12 January 2017).

40 Ibid., at p. 9.

41 Ibid.

42 Ibid.

43 Ibid., at p. 10.

44 Ibid., at p. 14.

45 Ibid., at p. 4.

46 Ibid., at p. 17.

47 Ibid., at p. 18.

48 Ibid., at p. 21.

49 Ibid., at p. 5.

50 Ibid.

51 Ibid., at p. 8.

52 Ibid., at p. 10.

53 See FSA, “Findus Beef Lasagne Products Found with Horsemeat”, available at <webarchive.nationalarchives.gov.uk/20150624093026/ http://food.gov.uk/news-updates/news/2013/5514/findus> (accessed 10 January 2017).

54 For a full map of the trade in horsemeat, see <theguardian.com/uk/datablog/interactive/2013/feb/15/europe-trade-horsemeat-map-interactive> (accessed 10 January 2017).

55 See FSA, “Tesco Finds Horsemeat in Some Everyday Value Spaghetti Bolognese Product”, available at <webarchive.nationalarchives.gov.uk/20150624093026/ http://food.gov.uk/news-updates/news/2013/5529/tesco-bolognese> (accessed 10 January 2017).

56 See FSA, “Hungarian Horsemeat Labelled as Beef”, available at <webarchive.nationalarchives.gov.uk/20150624093026/ http://food.gov.uk/news-updates/news/2013/5604/hungary> (accessed 10 January 2017).

57 See FSA, “Very Low Levels of Bute Found in Asda ‘Smart Price Corned Beef’”, available at <webarchive.nationalarchives.gov.uk/20150624093026/ http://food.gov.uk/news-updates/news/2013/5623/asda-bute> (accessed 10 January 2017).

58 See FSA, “More Results of Beef Product Testing Published”, available at <webarchive.nationalarchives.gov.uk/20150624093026/ http://food.gov.uk/news-updates/news/2013/5694/beef-product-testing> (accessed 10 January 2017).

59 Commission Recommendation 2013/99/EU (OJ 2013 L 48 p. 28).

60 See outcome of the coordinated control plan with a view to establish the prevalence of fraudulent practices in the marketing of certain foods 2013, available at <ec.europa.eu/food/safety/official_controls/food_fraud/horse_meat/tests_en > (accessed 10 January 2017).

61 Commission Recommendation 2014/180/EU (OJ 2014 L 95 p. 64).

62 See outcome of the coordinated control plan with a view to establish the prevalence of fraudulent practices in the marketing of certain foods 2014, available at <ec.europa.eu/food/safety/official_controls/food_fraud/horse_meat/tests_en> (accessed 10 January 2017).

63 Environment, Food and Rural Affairs Committee – Eighth Report of Session 2012–2013 on Contamination of Beef Products, 14 February 2013, at para. 17.

64 Ibid., at para. 18. In Ireland, on the other hand, labelling issues are more integral to the work of the FSAI; see <fsai.ie> (accessed 18 January 2017).

65 Vapnek, J., “Legislative Implementation of the Food Chain Approach” (2007) 40 Vanderbilt Journal of Transnational Law 987 Google Scholar, at 995.

66 Environment, Food and Rural Affairs Committee – Eighth Report of Session 2012–2013 on Contamination of Beef Products, 14 February 2013, at para. 19.

67 Department of Agriculture Report on the Investigation into Equine DNA and the Mislabelling of Processed Beef, at p. 18.

68 Ibid., at para. 11.

69 J. Forsyth, “The Horsemeat Scandal Shows the True Extent of Europe's Power in Britain”, The Spectator, 16 February 2013.

70 Environment, Food and Rural Affairs Committee – Eighth Report of Session 2012–2013 on Contamination of Beef Products, 14 February 2013, at para. 6.

71 Ibid., at para. 7.

72 Ibid., at para. 8.

73 UK Local Authority Food Law Enforcement Annual Report 2014/15, 28 January 2016.

74 J. Doward, “Food Checks 25% Down Despite Horsemeat Crisis”, The Guardian, 30 January 2016.

75 See in relation to poultry self-regulation and animal welfare <theguardian.com/business/2016/mar/25/uk-poultry-deregulation-risk-food-scares-bse-foot-mouth> (accessed 12 January 2017).

76 See Unison, “Meat Inspectors Deserve Fair Pay”, available at <unison.org.uk/our-campaigns/meat-inspectors-deserve-fair-pay/> (accessed 12 January 2017).

77 Environment, Food and Rural Affairs Committee – Eighth Report of Session 2012–2013 on Contamination of Beef Products, 14 February 2013, at para. 21.

78 van der Meulen, S., Boin, G., Bousoula, I., Conte-Salinas, N., Paganizza, V., Montanari, F., Fuentes, V. Rodriguez, van der Meulen, B. “Fighting Food Fraud, Horsemeat Scandal; Use of Recalls in Enforcement throughout the EU” (2015) 10 European Food & Feed Law Review 1 Google Scholar, at 3.

79 Ibid., at p. 13.

80 Ibid.

81 Environment, Food and Rural Affairs Committee – Eighth Report of Session 2012–2013 on Contamination of Beef Products, 14 February 2013, at para. 13.

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84 D. Heath, Written Evidence to the Environment Committee (Volume II), Ev. 19.

85 FSA, Written Evidence to the Environment Committee (Volume II), Ev. 29.

86 HC Deb. vol. 558 col. 741 (12 February 2013).

87 S. Lynch, “European Commission Abdicates Responsibility for Horse Meat Scandal”, Irish Times, 14 February 2013.

88 Case C-180/96, United Kingdom v Commission [1998] ECR I-2265, at para. 58.

89 HC Deb. vol. 558 col. 744 (12 February 2013).

90 Department of Agriculture Report on the Investigation into Equine DNA and the Mislabelling of Processed Beef, at p. 26.

91 “‘I Didn't See or Handle Horsemeat’ Says Monaghan Meat Broker”, BBC News, 8 February 2013.

92 Council and Parliament Regulation (EU) No. 1169/2011 (OJ 2011 L 304 p. 18).

93 Article 26.

94 See European Commission, “Questions and Answers on Food Information to Consumers”, available at <europa.eu/rapid/press-release_MEMO-14-2561_en.htm> (accessed 12 January 2017).

95 Commission Report regarding the mandatory indication of the country of origin or place of provenance for meat used as an ingredient COM(2013) 755 final.

96 Ibid., at p. 13.

97 Commission Staff Working Document of 17 December 2013 SWD (2013) 437 final.

98 European Parliament Resolution of 11 February 2015 on country of origin labelling for meat in processed food (2014/2875(RSP)).

99 Draft Report on the food crisis, fraud in the food chain and the control thereof of 8 October 2013 (2013/2091(INI)).

100 See European Commission, “What Has the EU Done So Far to Address the Horse Meat Scandal?”, available at <ec.europa.eu/food/food/horsemeat/timeline_en.htm> (accessed 12 January 2017).

101 See <ec.europa.eu/news/agriculture/130311_en.htm> (accessed 18 January 2017).

102 F. Cafaggi, “Private Regulation, Supply Chain and Contractual Networks: The Case of Food Safety”, EUI Working Papers RSCAS 2010/10, 3.

103 Environment, Food and Rural Affairs Committee – Fifth Report of Session 2012–2013 on Contamination of Beef Products, 16 July 2013, at para. 19.

104 Elliott Review into the Integrity and Assurance of Food Supply Networks – Final Report A National Food Crime Prevention Framework, July 2014, 2.

105 Environment, Food and Rural Affairs Committee – Fifth Report of Session 2012–2013 on Contamination of Beef Products, at para. 26.

106 Elliott Review, p. 3.

107 Tesco, “Farm to Fork”, available at <eathappyproject.com/farm-to-fork/> (accessed 12 January 2017).

108 B. Bold, “Tesco Tackles Horsemeat Scandal with Website Showing Food Suppliers”, available at <marketingmagazine.co.uk/article/1171099/tesco-tackles-horsemeat-scandal-website-showing-food-suppliers> (accessed 12 January 2017).

109 R. Ford, “Tesco Wins CorpComm Award for Horsemeat Scandal Response”, available at <thegrocer.co.uk/home/latest-news/tesco-wins-corpcomms-award-for-horsemeat-scandal-response/352991.article> (accessed 12 January 2017).

110 Trading Responsibly: Improving the Way We Serve Our Customers and Work With Our Suppliers, Tesco, February 2014.

111 “Tesco's Supply Chain Shake Up to Cut Out Middlemen, Farmers”, The Guardian, 26 May 2013.

112 UK Government, “Transparency in Supply Chains etc.: A Practical Guide”, available at <gov.uk/government/uploads/system/uploads/attachment_data/file/471996/Transparency_in_Supply_Chains_etc__A_practical_guide__final_.pdf> (accessed 12 January 2017).

113 Cafaggi, “Private Regulation”, p. 1.

114 Ibid.

115 Havinga, T., “Private Regulation of Food Safety by Supermarkets” (2006) 28 Law & Policy 515 Google Scholar, at 526.

116 Cafaggi, “Private Regulation”, p. 2.

117 “Abattoir Boss Fined £8,000 over Horsemeat Charges”, The Guardian, 23 March 2015.

118 L. Harding and I. Traynor, “Horsemeat Scandal: Dutch Meat Trader Could Be Central Figure”, The Guardian, 13 February 2013.

119 See G. Guyton, “Dutch Trader Charged over Horsemeat Scandal”, available at <globalmeatnews.com/Industry-Markets/Dutch-business-charged-over-horse-meat-scandal> (accessed 12 January 2017).

120 Harding and Traynor, “Horsemeat Scandal”.

121 “Horsemeat Scandal: Dutch Trader Found Guilty and Jailed”, BBC News, 7 April 2015.

122 M. Dreyer and O. Renn, “EFSA Stakeholder and Public Involvement Policy and Practice: A Risk Governance Perspective” in Alemanno and Gabbi, Foundations of EU Food Law and Policy, pp. 171, 174.

123 See <ec.europa.eu/dgs/health_food-safety/dyna/enews/enews.cfm?al_id=1652> (accessed 12 January 2017).

124 Janssens, The Principle of Mutual Recognition in EU Law, p. 107; J. Pelkmans, “What Strategy for a Genuine Single Market?”, CEPS Special Report No. 126/January 2016, 14.

125 Janssens, The Principle of Mutual Recognition in EU Law, p. 107.