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					COMPLAINT TO THE COMMISSION OF THE EUROPEAN COMMUNITIES CONCERNING FAILURE TO COMPLY WITH COMMUNITY LAW: http://europa.eu.int/comm/secretariat_general/sgb/lexcomm/index_en.htm

1.

Surname and forename of complainant: Don Staniford

2.

Where appropriate, represented by: The Salmon Farm Protest Group

3.

Nationality: British Address or Registered Office1: c/o Bruce Sandison (Chairman of The Salmon Farm Protest Group), Hysbackie, Tongue, By Lairg, Sutherland, Scotland, IV27 4XJ

4.

5.

Telephone/fax/e-mail address: Tel: 00 44 1847 611 274 or 00 44 7880 716082 Fax: 00 44 1847 611 262 Email: don.staniford@virgin.net or bruce@hysbackie.freeserve.co.uk

6.

Field and place(s) of activity: Wild salmon protection, consumer safety and environmental

7.

Member State or public body alleged by the complainant not to have complied with Community law: United Kingdom

1

You should inform the Commission of any change of address and of any event likely to affect the handling of your complaint.

8.

Fullest possible account of facts giving rise to complaint:

The UK has failed to enforce the Fish Labelling Regulation (No 2065/2001) which came into force on 1st January 2002 (http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnum doc&lg-EN&numdoc=32001R2065&model=guichett). It took England, Wales and Scotland until 28th March 2003 to introduce a Statutory Instrument and until 28th April 2003 in Northern Ireland. Now, 18 months after Commission Regulation No 2065/2001 came into force, the UK still have not properly implemented EU law. The Food Standards Agency, the competent authority, only published „Fish Labelling Guidance‟ on their web-site on 1st May 2003 (despite a date given as „March‟: http://www.food.gov.uk/foodindustry/guidancenotes/labelregsguidance/119221) but it transpires that the FSA failed to give enforcement authorities (Trading Standards in England and Wales and Environmental Health Departments in Scotland) sufficient time to police and implement Commission Regulation No 2065/2001.

A series of complaints from members of the Salmon Farm Protest Group have been lodged with Trading Standards since April (a full list is available via: http://www.salmonfarmmonitor.org/supermarketwatch.shtml). Consequently, it became apparent that even after 28th March 2003 the UK were still not enforcing the labelling laws even though national legislation was now in place. The EC (DG FISH) confirmed on 24th April 2003 that implementation of Commission Regulation No 2065/2001 had been “patchy” and on 2nd June 2003 DG FISH confirmed that the UK (and Ireland, Belgium, Luxembourg and Greece) had not properly enforced the Fish Labelling Regulation.

Approaches to the relevant UK authorities responsible for enforcing Commission Regulation No 2065/2001 revealed serious shortcomings. For example, Edinburgh City Council‟s Environmental Health Department claimed on 11th June that the Fish Labelling Regulation had not yet been transposed.

After being corrected by the SFPG and pointed to the 28th March 2003 Statutory Instrument (http://www.hmso.gov.uk/legislation/scotland/ssi2003/20030145.htm), Edinburgh City Council admitted that the Food Standards Agency Scotland had failed to alert them. In fact, Edinburgh City Council were not notified by FSA Scotland until 18th June 2003. Similarly, Cumbria Trading Standards admitted to the SFPG on 24th June that the Food Standards Agency had been late in notifying them as to the new legislation. Trading Standards have also admitted that an “Enforcement Concordat” (published by the Cabinet Office, Welsh Office and the Scottish Office in 1998) effectively allows manufacturers of packaging and supermarkets “indulgence in enforcement”. In this particular case, both Waitrose and Sainsbury‟s claim that Trading Standards have given them a „period of grace‟ so as to give them extra time to ensure that their labelling complies with Commission Regulation No 2065/2001. Waitrose, for example, claimed on 13th June 2003 that: “In view of the extended period of consultation and discussions the government indicated there would be an informal „grace period‟ of 6 months to allow all the changes to be implemented”. Sainsbury‟s claim that they will change their labelling by 11th July 2003.

In fact, supermarkets and retailers have been given numerous opportunities and advance notice of the new Fish Labelling Regulation. The UK‟s Food Standards Agency have consulted twice already with retailers over the Fish Labelling Regulations; firstly in June 2001 before the Fish Labelling Regulation came into force (http://archive.food.gov.uk/consultations/scotland/fish_products1stpg.htm) and secondly in February 2002 after Regulation 2065/2001 came into force (http://www.foodstandards.gov.uk/foodindustry/Consultations/completed_consu ltations/compconsulteng/48110). A further FSA statement in December 2002 advised that: “The Regulation has direct effect in all member states from 1 January 2002 but national legislation is required to provide for penalties and enforcement of the new rules” (http://www.food.gov.uk/foodindustry/regulation/foodlawguidebranch/foodlawg

uidech03/foodlawguidech408). The FSA finally published „Giudance Notes‟ on 1st May 2003 (http://www.food.gov.uk/foodindustry/guidancenotes/labelregsguidance/119221 ) but is appears that they did not find time to notify either the European Commission or the relevant enforcement authorities until much later (if at all).

In summary, the Food Standards Agency in the UK have clearly failed in their statutory duty to enforce and police Commission Regulation No 2065/2001. It is 18 months since the Fish Labelling Regulation came into force and the UK have clearly breached EU law. Supermarkets, fishmongers and packaging manufacturers have had several warnings and to allow them further time to comply with Commission Regulation No 2065/2001 is unlawful and unacceptable from a consumer safety and public health perspective.

9.

As far as possible, specify the provisions of Community law (treaties, regulations, directives, decisions, etc.) which the complainant considers to have been infringed by the Member State concerned: Failure to enforce the Fish Labelling Regulation (No 2065/2001)

10.

Where appropriate, mention the involvement of a Community funding scheme (with references if possible) from which the Member State concerned benefits or stands to benefit, in relation to the facts giving rise to the complaint:

11.

Details of any approaches already made to the Commission's services (if possible, attach copies of correspondence): Attached is a copy of a letter dated 2nd June 2003 from Mr Jorgen Holmquist of DG FISH to Mr Don Staniford detailing how all member-states should have notified the Commission of steps taken to implement the regulation and a list of those countries who have not done so. This included the UK, Ireland, Greece, Luxembourg and Belgium An email from DG FISH to Mr Don Staniford on 24th April 2003 stated that:

“The Commission is aware that this application has been patchy not only in Ireland but in other Member States, too. The Commission is currently reviewing the situation across the Community. Depending on the outcome of this review, the Commission may decide to take action against Member States which fail in their implementation duty as appropriate”. Please find this email attached.

12.

Details of any approaches already made to other Community bodies or authorities (e.g. European Parliament Committee on Petitions, European Ombudsman). If possible, give the reference assigned to the complainant's approach by the body concerned:

13.

Approaches already made to national authorities, whether central, regional or local (if possible, attach copies of correspondence): 13.1 Administrative approaches (e.g. complaint to the relevant national administrative authorities, whether central, regional or local, and/or to a national or regional ombudsman): a) Food Standards Agency In an email dated 17th March 2003, Mark Browne of the Food Standards Agency stated: “As you rightly note, EC Regulation 2065/2001 came into force on 1st January 2002. One of the requirements of the Regulations was for certain fish products to be labelled with their production method (i.e., whether farmed or caught wild). A Statutory Instrument providing for the enforcement of the EC Regulations was laid earlier this year, and will come into force on the 28th March. There has unfortunately been some delay in laying this SI, principally because of the enormous amount of administrative work involved in verifying some 200 additions to the list of commercial designations for fish species”. An email from Mark Browne dated 10th April 2003 stated that: “We have now finalised the Agency's guidance notes to accompany the new requirements. These also apply UK wide. The guidance will be available on the Agency's website next week”. However, this „Guidance‟ was not posted until 1st May

2003 (http://www.food.gov.uk/foodindustry/guidancenotes/labelregsguidance/119221 ). In the same email dated 10th April, Mark Browne stated: “The Fish Labelling England) Regulations 2003 came force on 28th March. As you rightly note, after this date, businesses not complying with the requirements of the Regulations will be open to legal action. Responsibility for the enforcement of the Regulations falls to local enforcement bodies (usually trading standards departments at local authorities) as is the case with all food labelling legislation. If you have a seen product for sale in a supermarket that you believe is not labelled in line with the new requirements, you may wish to contact your local trading standards department (contact details for which can be found at www.tradingstandards.gov.uk)…. You ask about consistency between the England Regulations and the Scotland Regulations. I can assure you that the provisions of the England, Scotland, Wales and Northern Ireland enforcing Regulations are entirely consistent. All products will therefore be labelled on the same basis throughout the UK.”

Yet it is now becoming clear that the FSA failed to notify Trading Standards and Environmental Health authorities in sufficient time – in the case of Edinburgh it was not until 18th June 2003. In an article in a newspaper on 15th June 2003, the Food Standards Agency admitted a delay in informing the relevant enforcement agencies: “On this occasion we have been later than usual in preparing our information letter, but the agency is taking steps to ensure that local authorities are informed of the introduction of the Fish Labelling (Scotland) Regulations 2003, should they not be aware of these changes” (“Food agency caught out over salmon labelling delay”: http://www.sundayherald.com/34586). This is not the first time the UK‟s failure to implement the Fish Labelling Regulation has attracted media attention in The Sunday Herald (24th March 2002): “Stores ignore EU laws on fish labelling: supermarkets 'mislead' public over seafood”: http://www.sundayherald.com/23050). In an article published on Intrafish on 18th June 2003 the FSA refused to comment further: “The Food Standards Agency was asked if they could clarify the „period of grace‟ during which the new laws are not being enforced, but they have not, thus far, replied”.

b) Edinburgh City Council, Environmental Health Department

In a phone conversation with the SFPG, Mr Stephen Williamson (Tel: 00 44 131 469 5768) admitted that “The Food Standards Agency Scotland have not advised us of the new Fish Labelling Regulations. It is the FSA‟s fault”. In an email dated 24th June 2003, Mr Stephen Ballantyne stated that: “Between the 19th of June 2003 and the 21st of June 2003 I visited the main Edinburgh stores of the five main supermarket chains. Included in these visits was Safeway, Ferry Road and Sainsbury's, Craigleith, two supermarkets that had been specifically mentioned as not complying with the Fish Labelling (Scotland) Regulations 2003….It was found in two of the supermarket chains that fish prewrapped in-store was not correctly labelled. These stores have been written to and advised that all fish intended for sale requires to be labelled as per the Regulations”. In another email dated 24th June 2003, Mr Stephen Ballantyne admitted that: “I can confirm that this Department was formally informed of the Fish Labelling (Scotland) Regulations 2003 on the 19th of June 2003 via an email dated the 18th of June 2003”.

c) Cumbria Trading Standards According to Intrafish (18th June 2003): “Brookside Products, which produces the smoked salmon under licence, has local Cumbria TSO [Trading Standards Office] agreement to use up existing packaging. Although the UK's Food Standards Agency has had the duty of overseeing the implementation of the new legislation, enforcement is done via trading Standards Officers in England and Environmental Health officers in Scotland. Earlier this week, the FSA confirmed that they have not yet informed these enforcement officials of the new labelling laws, which were passed almost three months ago. Sainsbury have already told IntraFish that the new John West Smoked Salmon packaging will be in place next month. The Food Standards Agency was asked if they

could clarify the "period of grace" during which the new laws are not being enforced, but they have not, thus far, replied”. Following a request by the SFPG for clarification on the „period of grace‟ being given to manufacturers and supermarkets, Eamon Quinn of Cumbria Trading Standards spoke to the SFPG on 24th June 2003. Mr Quinn (Tel: 00 44 1224 894522) told the SFPG that “when the regulations came in businesses asked for indulgence in enforcement”. Referring to an “Enforcement Concordat” (which he sent the SFPG), Mr Quinn admitted that the manufacturers of the illegally labelled John West smoked salmon product had been given permission to break the law. He blamed the Food Standards Agency for not informing Trading Standards earlier: “Ideally the FSA should have given us the necessary information in September 2002 – 6 months prior to the enforcement legislation passed by Parliament on 28th March 2003 – so as to give us all sufficient changeover time”. In response to the question of whether Cumbria Trading Standards had given Sainsbury‟s until 11th July 2003 to up-date their labelling, Mr Quinn merely replied: “We have given manufacturers sufficient and reasonable time to comply”. A subsequent request on 24th June by the SFPG for a formal statement from Cumbria Trading Standards was refused.

d) Swindon Trading Standards In a letter dated 20th June, Adele Brown stated that: “I write with reference to your complaint that John West fresh salmon is incorrectly labelled in that it does not state its place of origin (i.e. salmon farm). In accordance with this Councils policy, I have brought the matter to the attention of Corporation of London, who are the Home Authority for Sainsbury‟s and who have agreed to discuss the matter with Sainsbury‟s Head Office. I have also contacted the two Sainsbury‟s stores in the Swindon Borough and advised them of this problem. They are going to seek advice from their Head Office as to the correct remedial action. Currently neither stores are stocking this item and I anticipate that there is only a potential problem until 11 July 2003. I do not therefore anticipate any further action being taken against either Sainsbury‟s or John West”.

e) Lancashire Trading Standards In an email dated 24th June 2003, Mr Ian Reader said he had contacted “Sainsbury HQ Trading Standards Department which is in London to pass on the market intelligence and await their response to my request for further and better particulars”. Mr Reader told the SFPG in a phone conversation on 27th June (Tel: 00 44 1772 534680) that Lancashire Trading Standards were in the process of conducting a „fish survey‟ and would use the information gathered by the SFPG‟s “Supermarket Salmon Watch” to assist them in their inquiries.

f) Wirral Trading Standards In a letter dated 16th May 2003, Gordon Glascott stated that: “Further to your recent correspondence relating to the labelling of fish I can inform you that I am examining the labelling of such products on sale in this area and shall take appropriate action when my investigation is complete.” In an email of 2nd June 2003, Gordon Glascott stated that: “I have visited the Safeway store and noted that fish packed on the premises was indeed not correctly marked. Fish packed centrally and fish sold loose was labelled correctly. Management at the store was advised accordingly and a follow up visit has found that the fish packed on the premises is now labelled with the species, origin and means of production”. In an email of 6th June 2003, Gordon Glascott stated that: “An officer from this Department will visit the Sainsbury store at Upton and instruct them to mark the Orkney salmon with the method of production. As regards your complaint about Marks and Spencer, the labelling of the prepacked fish will be examined and any contraventions of the legislation will be referred to Westminster City Council Trading Standards to be raised with the company” In a letter dated 25th June 2003, Gordon Glascott wrote: “Thank you for your recent emails concerning breaches of the Fish Labelling (England) Regulations 2003: 461 at various locations within the United Kingdom. Wirral MBC is a

food authority for the purposes of the Food Safety Act 1990 and as such the authority‟s statutory Food Service Plan supports the Home Authority Principle as an aid to good enforcement practice as it provides a system for the resolution of problems and disputes without recourse to legal action. Details of your complaints have been referred to the appropriate Home Authority in order that they may advise the relevant company”.

g) Midlothian Council Environmental Health Department:

Following a complaint re: illegally labelled John West smoked salmon sold at a Sainsbury‟s store in Loanhead (Edinburgh), Mary Ryan telephoned the SFPG on 13th June 2003 to say that: “people seem to have been caught on the hop with the new regulations”. When it was pointed out that it was law since 1st Jan 2002 she stressed that it had only been enforceable by Scotland since 28th March 2003 but that the FSA Scotland had been late in notifying enforcement agencies.

13.2 Recourse to national courts or other procedures (e.g. arbitration or conciliation). (State whether there has already been a decision or award and attach a copy if appropriate):

14.

Specify any documents or evidence which may be submitted in support of the complaint, including the national measures concerned (attach copies): 1. Letter from Jorgen Holmquist (Directorate-General Fisheries) to Don Staniford dated 2nd June 2003 2. List of countries that have not notified the Commission as required under article 9(1) of the Regulation (enclosed with the above) 3. Email to Don Staniford from DG Fish on 24th April 2003 4. Email correspondence with Food Standards Agency

5. Correspondence with Trading Standards Confidentiality (tick one box)2:

15. 

"I authorise the Commission to disclose my identity in its contacts with the authorities of the Member State against which the complaint is made."

16.

Place, date and signature of complainant/representative:

Hysbackie, Tongue, By Lairg, 1st July 2003

2

Please note that the disclosure of your identity by the Commission's services may, in some cases, be indispensable to the handling of the complaint.

(Explanatory note to appear on back of complaint form)

Each Member State is responsible for the implementation of Community law (adoption of implementing measures before a specified deadline, conformity and correct application) within its own legal system. Under the Treaties, the Commission of the European Communities is responsible for ensuring that Community law is correctly applied. Consequently, where a Member State fails to comply with Community law, the Commission has powers of its own (action for non-compliance) to try to bring the infringement to an end and, if necessary, may refer the case to the Court of Justice of the European Communities. The Commission takes whatever action it deems appropriate in response to either a complaint or indications of infringements which it detects itself. Non-compliance means failure by a Member State to fulfil its obligations under Community law, whether by action or by omission. The term State is taken to mean the Member State which infringes Community law, irrespective of the authority central, regional or local - to which the non-compliance is attributable. Anyone may lodge a complaint with the Commission against a Member State about any measure (law, regulation or administrative action) or practice which they consider incompatible with a provision or a principle of Community law. Complainants do not have to demonstrate a formal interest in bringing proceedings. Neither do they have to prove that they are principally and directly concerned by the infringement complained of. To be admissible, a complaint has to relate to an infringement of Community law by a Member State. It should be borne in mind that the Commission‟s services may decide whether or not further action should be taken on a complaint in the light of the rules and priorities laid down by the Commission for opening and pursuing infringement procedures. Anyone who considers a measure (law, regulation or administrative action) or administrative practice to be incompatible with Community law is invited, before or at the same time as lodging a complaint with the Commission, to seek redress from the national administrative or judicial authorities (including the national or regional ombudsman and/or arbitration and conciliation procedures available). The Commission advises the prior use of such national means of redress, whether administrative, judicial or other, before lodging a complaint with the Commission, because of the advantages they may offer for complainants. By using the means of redress available at national level, complainants should, as a rule, be able to assert their rights more directly and more personally (e.g. a court order to an administrative body, repeal of a national decision and/or damages) than they would following an infringement procedure successfully brought by the Commission which may take some time. Indeed, before referring a case to the Court of Justice, the Commission is obliged to hold a series of contacts with the Member State concerned to try to terminate the infringement.

Furthermore, any finding of an infringement by the Court of Justice has no impact on the rights of the complainant, since it does not serve to resolve individual cases. It merely obliges the Member State to comply with Community law. More specifically, any individual claims for damages would have to be brought by complainants before the national courts. The following administrative guarantees exist for the benefit of the complainant: (a) Once it has been registered with the Commission's Secretariat-General, any complaint found admissible will be assigned an official reference number. An acknowledgment bearing the reference number, which should be quoted in any correspondence, will immediately be sent to the complainant. However, the assignment of an official reference number to a complaint does not necessarily mean that an infringement procedure will be opened against the Member State in question. Where the Commission's services make representations to the authorities of the Member State against which the complaint has been made, they will abide by the choice made by the complainant in Section 15 of this form. The Commission will endeavour to take a decision on the substance (either to open infringement proceedings or to close the case) within twelve months of registration of the complaint with its Secretariat-General. The complainant will be notified in advance by the relevant department if it plans to propose that the Commission close the case. The Commission's services will keep the complainant informed of the course of any infringement procedure.

(b)

(c)

(d)


				
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