Report on meeting of Commission Working Group on food hygiene legislation: 27 October 2008

• The Commission outlined the measures it will next bring forward under comitology procedures. The Commission will send the list to Member States (MSs).
• Further discussion of the draft regulation rolling forward certain transition measures.
• Further discussion of the amendments to the Commission guidance documents. To be considered at next meeting.
• Member States encouraged to send substantive responses to the questionnaire on national measures. Some confusion over use of the 98/34 procedure and the procedure in the hygiene legislation. Commission will produce a short paper to clarify what is required.
• Discussion surrounding the approach to validation of apparatuses for the detection of Trichinella. MSs to offer technical comments.
• A restricted Working Group to be set up to consider the draft Community Guide from ENSCA (European Natural Sausage Casing Association) (not reported further).
• Commission explains that the proposals on frozen products of animal origin and the traceability of food of animal origin have had to be referred to the Commission unit dealing with Impact Assessments. The unit is seeking more detail and the proposals cannot proceed until they have been cleared internally (for further information on these proposals please see previous reports).
• Commission announces that COPA-COGECA (a European-wide farming industry pressure group) has provided a draft Community guide to controlling Salmonella in the poultry industry. MSs will be asked to give an opinion at the next meeting.

24 November - Working Group on hygiene legislation; 1 December – Restricted working group on parasites in fish and 9 December – Restricted working group on live bivalve molluscs.

Copies of the relevant documents are linked to this page.

Discussion on further proposals using the comitological procedure

The Commission introduced the issues likely to feature in the next wave of comitolgy proposals and undertook to send details to the MSs to help them prepare for the next meeting. These reflect what MSs and the Commission consider important (although it is not clear at this stage the degree to which these are proportionate and risk based). The list comprises:

Regulation 852/2004

• Fishing and primary production – in particular the measures applying to aquaculture establishments.

Regulation 853/2004

• ID marking
• Food Chain Information and its provision in advance (Commission indicates it is looking for more subsidiarity)
• Status of blood as a foodstuff and the provisions applying to it
• Temperature requirements for poultry and lagomorphs during transport and storage and freezing
• Wild game – the hunters’ declaration (i.e. completion of a form that the game concerned has no abnormalities etc.)
• Post-mortem inspection of unskinned game
• Minced meat and MSM – raw materials for their manufacture
• Shellfish and excess levels of contaminants
• Storage and transport of fishery products in chilled water
• Fishery products with additives – whether they are fresh or processed products
• Gelatine and collagen raw materials (industry request now that collagen can be derived from bones)
• Crocodile meat

Regulation 854/2004

Amending reference to World Organisation for Animal Health (OIE – known by its older previous, French acronym) list of animal diseases.

Contaminants in shellfish

Issues to be addressed in the Commission guidance were included in the drafts under discussion. The Commission confirmed that proposals for co-decision amendments will follow consideration and discussion of the Commission report on the hygiene legislation. These will be issued in 2010/11 with a view to being adopted in 2012. The comitology proposals will probably be adopted before Summer 2009. They will be considered under the enhanced comitology procedure which will apply from January 2009.

Proposed transitional arrangements to the hygiene regulations (SANCO/1733/2008 rev1)

The Commission explained that draft recitals had been added to the proposal. In relation to the measure on imports, a date had been added to allow more time for the possibility that in some cases harmonised Community measures might be adopted over the lifetime of the transition measure. The Commission report on the operation of the hygiene legislation would need to address the issues that had arisen in relation to imports. MSs were reminded of legal advice stating that transition measures could only be extended for very good reasons.

Some discussion by MSs. The Commission indicated the provision did not need to be taken up by Member States that objected to it. The Commission felt confident that measures to replace the current derogation in respect of food chain information could be included. No comments were made in relation to the composition criteria and labelling requirements for minced meat. The Commission intends to adopt this measure this year, so the proposal will feature on the agenda of the next meeting.

Proposed amendments to the Commission guidance documents (SANCO/1731/2008 rev.2 and SANCO/1732/2008 rev.2)

The intention was to gain consensus on the texts and present them to a future SCoFCAH meeting for endorsement. As previously, there would be no formal vote. The Commission reminded MSs that the guidance was intended to clarify the regulations rather than interpret them (which was the province of the courts).

In the guidance to Regulation (EC) 852/2004, all MSs endorsed the approach being taken to fishery products and to the use of clean water. The need was for the legislation to be changed (if necessary) rather than to push the guidance too far. The guidance now reflected what was contained in the amended hygiene legislation. The Commission agreed to a suggestion that the additional wording on cross-border trade and the application of the Treaty could be further supplemented to explain what the quoted Articles cover. In relation to the wording on transport (section 9.3) Member States agreed to the first change which reflected more closely the terminology of Codex. France and Netherlands thought that the second change had rendered the guidance more restrictive than previously. The Commission undertook to reflect further.

New wording had been added to clarify the concept of 'premises'. It emerged that a number of other language versions of the legislation used vocabulary which restricted the concept to 'rooms'. The Commission undertook to revisit this with Jurist/Linguists. The UK welcomed the intent to clarify what should be considered a “premises” but felt that the proposed wording had not captured this fully. The Commission concluded that no-one dissented from the intention of the guidance on this point and it would revise it for the next meeting.

In relation to the guidance on Regulation 853/2004, MSs continued to have difficulties with the provisions applying to 'composites'. More examples were given of products whose status was doubtful. The Commission did clarify that it did not consider sweetening to be a technological function in the terms of the guidance. The Commission clearly signalled that many of these issues could only be resolved by changing the legislation. This would be fully drawn out in its report on the operation of the legislation.

The addition to clarify the status of yak and zebu was agreed and the Commission was reminded that clarification was required of the status of reindeer as farmed game. The amendment in relation to clean animals was also agreed, as was the new wording in relation to meat preparations made from minced meat or MSM.

With regard to whether additives could be added to meat preparations, the Commission said this would have to be checked with additives experts but reminded MSs that the status of adding salt had already been clarified. In relation to milk from other animals (i.e. other than bovines, ovines or caprines), the Commission responded that MSs could adopt measures in relation to raw milk and invited MSs to send in any information it had on microbiological status.

The issue was raised as to whether food businesses with shared premises could be approved. The Commission began by insisting this was not possible, but MSs had examples of share or communal usage which they had approved; the Commission invited them to send in further information on this point. The Commission maintained that the requirement to have clear responsibility for hygiene in premises meant shared use of premises and staff could not be possible. It was not clear whether this was going to be included in a further draft of the guidance.

Questionnaire on Member States’ national measures and their notification to the Commission

The Commission explained that some MSs had responded to the questionnaire but replies were outstanding – MSs were encouraged to send the remainder in. The Commission further stated that a number of MSs did not appear to have notified some national measures which they had adopted – again MSs were asked to notify their measures if they had not done so. The Commission legal expert explained that if national measures were adopted without prior notification they were invalid and a food business operator could challenge their legality in the courts.

In discussion, it transpired that there was confusion about the operation of the procedures of Directive 98/34/EC (whereby MSs are obliged to notify to the Commission and to each other all the draft technical regulations concerning products and Information Society Services before they are adopted in national law) under the hygiene legislation. A number of MSs alluded to difficulties with “hygiene” notifications which were not handled via the TRIS system of DG Enterprise. There was confusion about who within MS should be sent notifications (the Commission felt that permanent representatives should be used if other contacts were not known). The Commission legal representative suggested that MSs should notify those instances where the competent authority was able to authorise different requirements or approaches. A number of MSs disagreed, pointing out this was expressly permitted in the hygiene legislation and was not necessarily captured in measures which could be notified.

The Commission agreed to produce a brief guide to the notification requirements to capture the information MSs had been given.

Discussion and agreement on the parasites CRL draft guidelines for the validation of apparatuses for the detection of Trichinella larvae in meat samples by digestion

The Commission explained the paper’s contents and why it had been thought appropriate to work with the CRL rather than the national laboratories in relation to validating the apparatus of individual firms. This was questioned by MSs with regard to Trichinella when in other cases the approach was to have a reference method in the regulation and to permit the use of alternatives that had been validated. The Commission indicated that the approach had already been endorsed and therefore now needed to be followed.

A number of technical issues were raised. MSs queried the repeated specification of species and muscle type, suggested that the reference should be to both larvae and capsules and that there should be references to decontamination of the equipment. The Commission invited any further technical comments which it would feed back to the CRL.