Food Labelling Regulations (Amendment) Bill

I will. I shall be citing a number of cases that have been heard in the European courts, which illustrate that not just the French but many other countries have come up against these issues and that there is a developed jurisprudence. As Peter Oliver says in his book,"““in determining whether a particular measure falls under Article 28…it is imperative to proceed in two stages. The first question to ask is: does this measure restrict imports (or exports) so as to be caught by Article 28…? If so, then the second question arises, namely: is the measure nevertheless justified in Community law and thus lawful?””" Mr Oliver examines explicitly the question of the obligation to make a declaration of origin. He makes it clear that in ““certain circumstances””, case law has held—in the past—that"““the requirement that the importer make a declaration of origin is contrary to Article 28. This was laid down in the Donckerwolke judgment, already discussed””" —earlier in his book, that is—"““where the Court held:""'the requirement by the importing Member State of the indication of the country of origin on the customs declaration document for products in free circulation…does not in itself constitute a measure of equivalent effect'””" —in other words, one that would produce the equivalent of quantitative restrictions—"““'if the goods in question are covered by measures of commercial policy adopted by that State in conformity with the Treaty.'””" The judgment went on to say, however—and this is the point—"““'such a requirement would, however, fall under the prohibition contained in Article [28] of the Treaty if the importer were required to declare, with regard to origin, something other than what he knows or may reasonably be expected to know'””." I would say that meat suppliers should"““reasonably be expected to know””" where the meat that they are supplying comes from. On the face of it, the requirement would not fall under the prohibition in article 28. Unfortunately for that line of argument, however—as Mr Oliver goes on to say—"““At least since January 1, 1993, when Article 14””" —the former article 7A—"““of the Treaty took effect, all obligations to make a declaration of origin constitute measures of equivalent effect. The qualifications in Donckerwolcke, which related to the now moribund Article 134…no longer apply.””" It might be thought that that constituted ““Game, set and match””, or ““I am done middle stump””—depending on whether a tennis or a cricketing analogy is preferred—but even then it is not as simple as that, because the treaty also contains article 30. Mr Oliver's book is devoted almost entirely to article 28 and article 30. The main exception, as he describes it—article 30—includes the subject of mandatory requirements. Article 30 states:"““The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of””—" and a whole laundry list follows—"““public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property.””" We could drive a pyramid through that group of exceptions. That makes plenty of work for lawyers, of course, but it also shows that the issue is not quite as clear as some might try to make us believe. Mr Oliver goes on to say:"““The wording of this provision shows that it applies both to quantitative restrictions and to measures of equivalent effect. Furthermore, it covers that latter whether they are 'distinctly' or 'indistinctly' applicable.””" He continues:"““it is also clear from the wording of Article 30 that, subject to certain limits, it merely entitles the Member States to exercise certain powers: it does not oblige them to do so.””" We must bear in mind that I am not trying to impose any restrictions on imports. I am merely trying to ensure that the consumer has clear information. Therefore, my proposals should receive the lightest possible interpretation in respect of these rules. Mr Oliver goes on to point out that as the European Court of Justice"““held in Bauhuis v Netherlands, Article 30 'constitutes a derogation from the basic rule that all obstacles to the free movement of goods between Member States shall be eliminated'””." In other words, such derogations are possible. Mr Oliver continues:"““To be justified under Article 30, national provisions””—" which is what mine would be—"““must fall within one of the grounds of justification covered by the first sentence of Article 30””." I think mine do that. Public policy says there should be better information for consumers so they can make informed choices, and public policy is one of the justifications under article 30. As Mr Oliver points out, to be justified under article 30 national provisions must also"““not constitute arbitrary discrimination nor a disguised restriction on trade between Member States and must be justified.””" I am not trying to put any disguised restrictions on trade between member states. I simply want information for consumers, and what I am trying to do is certainly not arbitrary. To continue:"““the Court in 'Cassis de Dijon'””—" one of the most famous cases in European jurisprudence—"““has recognised a series of 'mandatory requirements' in addition to the grounds of justification expressly set out in Article 30.””" As is clearly set out in the book,"““the better view is that the 'mandatory requirements' fall under that provision””—" article 30—"““despite the Court's traditional view that they were subsumed within Article 28.""The 'mandatory requirements' recognised so far are: the prevention of tax evasion, consumer protection, the prevention of unfair competition, the protection of the environment, the improvement of working conditions, the maintenance of press diversity””" and so forth. To continue:"““One questions left open by 'Cassis de Dijon' was the relationship between the 'mandatory requirements' laid down by that judgment and Article 30, which is not mentioned at all in the judgment. Two schools of thought evolved on this matter:""(a) According to the first view, the 'mandatory requirements' are to be weighed up within Article 28, not Article 30. Moreover, only 'indistinctly applicable' measures may qualify, so that 'distinctly applicable' measures may only be justified on the grounds expressly set out in Article 30. On this view, therefore, 'indistinctly applicable measures' are granted more favourable treatment in that the 'mandatory requirements' apply to them alone.""(b) According to the second view, the 'mandatory requirements' are regarded as being subsumed under Article 30, on the grounds that they constitute additions to the list of grounds of justification expressly set out in Article 30. On this view, the mandatory requirements are subject to precisely the same tests as the latter grounds.””" Mr Oliver continues:"““In support of the first theory, it should be said that the Court has repeatedly held that Article 30 must be interpreted narrowly since it constitutes an exception to a fundamental principle of Community law.””" He adds:"““Yet it is submitted that that is outweighed by the following considerations:""(a) The second view avoids the undue harshness resulting from the first theory with respect to 'distinctly applicable' measures necessary on such grounds as consumer protection. According to the first theory, even though they are necessary, such measures are quite simply prohibited. According to the second theory, they are considered to fall under Article 28, but may be justified under ""Article 30. Since the Court has now accepted that consumer protection may justify restrictions otherwise prohibited by Article 28, does it make sense to approach it differently from, say, plant health merely because in 1957 (when the Treaty of Rome was first drafted) consumer protection did not yet arouse much passion?””" Mr Oliver continued:"““It always seemed clear that the 'mandatory requirements' have the same properties as the grounds of justification in Article 30. As van Gerven””—" the then advocate-general—"““remarked in Aragonesa de Publicidad v Departamento de Sanidad '…the conditions governing the applicability of the Cassis de Dijon doctrine and of Article [30] are the same””." He continued:"““For these reasons, the second approach has been firmly and consistently advocated in this book since its very first edition, which appeared in 1982. This is despite the fact that…the Court had already chosen to follow the other approach, which was also backed by most commentators for many years.””" Mr Oliver's point in this text, which is one of the leading reference books on the free movement of goods, is that the second approach is gaining favour. He continued:"““What is more, the Court has on occasion had recourse to some far-fetched—not to say exotic—devices so as to maintain the façade that the 'mandatory requirements' apply only to 'indistinctly applicable measures'. Thus the Court has been driven to holding the following measures to be 'indistinctly applicable' so as to be able to consider the 'mandatory requirements' at all: a German statutory provision to the effect that only wines from certain specific regions of Germany could be marketed in bottles of a particular shape; legislation prohibiting the importation and marketing of meat products containing non-meat ingredients; and a measure prohibiting the use of the letter R in a circle (which indicates that a name constitutes a registered trade mark) unless such registration had occurred in the Member States in question.""Perhaps the most striking example occurred in Commission v Belgium (waste disposal), which concerned a blatantly discriminatory ban on imports of waste into Wallonia from other Member States.””" Mr Oliver goes on to talk about a ““most welcome”” move made by advocate-general Jacobs, whom I sat next to at lunch once in Luxembourg and I found to be a thoroughly excellent chap. Mr Oliver describes how Mr Jacobs"““has criticised the Court's traditional approach on at least two occasions. In Chemische Afvalstoffen Dusseldorp v Minister van Milieubeheer””—" I think that that is Dutch, rather than German—"““referring to the last edition of this book, he acknowledged that the Court had been 'obliged to adopt rather tortuous reasoning' in the cases just mentioned and most particularly in the Walloon Waste case. In PreussenElektra v Schleswag, the same Advocate General went further, saying that 'the reasoning in Walloon Waste is flawed and that 'it is desirable that even directly discriminatory measures can sometimes be justified on grounds of environmental protection', the latter being a 'mandatory requirement'. He then added: 'In view of the fundamental importance for the analysis of Article 30 of the Treaty of the question whether directly discriminatory measures can be justified by imperative requirements, the Court should, in my view, clarify its position in order to provide the necessary legal certainty'." Mr Oliver goes on to say:"““Without expressly renouncing its earlier position, the Court has grudgingly moved in this direction…first…in Konsumentenombudsmannen v De Agostini””." That case basically considered whether an outright ban on advertising certain products on television, which was held to have a greater effect in some member states than in others, could be justified. He continued:"““Likewise, in Decker v Caisse de maladie des employés privés, the Court considered a 'distinctly applicable' Luxembourg rule requiring the prior authorisation of the purchase of glasses from another Member State…in PreussenElektra, blatantly discriminatory legislation on wind energy was held to be justified for the protection of the environment (a mandatory requirement)." Mr Oliver continued:"““Although these developments must surely be applauded, it is a pity that the Court has not yet shown the courage to disown its earlier approach expressly, as this would undoubtedly be in the interests of legal certainty.””" His fundamental point is as follows:"““In short, the view consistently espoused in all the previous editions of this book has been gaining ground in recent years.””" Why trouble the House with all this jurisprudence, especially as a non-lawyer? The reason is extremely simple: I want to make it clear there is an argument to be had. Indeed, having listened to what the Prime Minister has said on the subject of food labelling, I venture to suggest that he agrees with me. He said at the Oxford farming conference:"““Food can be imported to Britain, processed here, and subsequently labelled in a way that suggests it's genuinely British. That is completely wrong. I cannot overstate the importance of enabling informed consumer choice. Effective marketing can only be achieved if labelling is accurate and clear.””" He went on:"““I know that this may raise issues with the European Union. But the role of a Government that cares about British farming is not to sit on its hands and say 'there's nothing we can do', but instead to test these rules and if necessary challenge and change them.””" That is exactly what my Bill is designed to do and would accomplish, and I hope that the House will read it a Second time.