(1)

In accordance with Article 45(1) of Regulation (EU) No 1169/2011, the Romanian authorities notified to the Commission on 18 November 2019 a national draft order regarding the requirement for economic operators to ensure that consumers are informed about the freshness of fish (‘the draft order’).

(2)

Regulation (EU) No 1169/2011 establishes the general principles, requirements and responsibilities governing food information, and in particular food labelling. In this regard, Article 9(1) of Regulation (EU) No 1169/2011 list the particulars that are to be provided on foods, in accordance with Articles 10 to 35 and subject to the exceptions contained therein.

(3)

Article 39(1) of Regulation (EU) No 1169/2011 provides that in addition to the mandatory particulars referred to in Article 9(1) and in Article 10, Member States may, in accordance with the procedure laid down in Article 45, adopt measures requiring additional mandatory particulars for specific types or categories of food, justified on one of the grounds of the protection of public health, the protection of consumers, the prevention of fraud or the protection of industrial and commercial property rights, indications of provenance, registered designations of origin and the prevention of unfair competition.

(4)

By laying down national measures requiring to inform the consumers about the freshness of fish, the draft order establishes additional mandatory particulars for specific categories of foods within the meaning of Article 39(1) of Regulation (EU) No 1169/2011. Therefore, it is necessary to examine its compatibility with the above mentioned requirements of that Regulation and the provisions of the Treaty on the Functioning of the European Union.

(5)

Article 2 of the notified draft order provides that economic operators shall display immediately next to the wild or farmed, non-prepacked, whole, fresh fish, one of the following four indications: (a) this fish was caught 0-2 days ago, (b) this fish was caught 2-3 days ago, (c) this fish was caught 3-4 days ago, or (d) this fish was caught more than 5 days ago.

(6)

The Romanian authorities explain that the draft order is intended to ensure that consumers in Romania are better informed regarding how fresh are products, in this case fish, marketed to them as well as concerning the fact that the products offered to them do not affect their lives or their health. The Romanian authorities explain that inspections by the National Authority for Consumer Protection (ANPC) have revealed that food products are being marketed in the fresh fish range that are not in fact fresh, thereby endangering the health of consumers using them.

(7)

Following a request for clarification from the Commission, the Romanian authorities clarified by letter of 25 June 2020 the scope of application of the draft order, as well as the information that would be required to be provided to consumers, and reiterated the justifications for its adoption.

(8)

Article 1(4) of Regulation (EU) No 1169/2011 provides that the Regulation applies without prejudice to labelling requirements provided for in specific Union provisions applicable to particular foods.

(9)

Regulation (EU) No 1379/2013 of the European Parliament and of the Council (2) of the European Parliament and the Council of 11 December 2013 on the common organisation of the markets in fishery and aquaculture products sets out common marketing standards for fish, including specific provisions on consumer information. Amongst others, it provides rules for the mandatory and voluntary consumer information that need to be indicated on fishery and aquaculture products that are marketed within the Union, irrespective of their origin or of their marketing method.

(10)

Article 35(1)(a to e) of Regulation (EU) No 1379/2013 lays down the five mandatory indications that apply specifically to fishery and aquaculture products. According to Article 39(1)(a) of Regulation (EU) No 1379/2013, the date of catch of fishery products or the date of harvest of aquaculture products constitutes information that may be provided on a voluntary basis, provided it is clear and unambiguous.

(11)

The information required by the draft order, even though expressed differently, is tantamount to providing information on the date of catch or the date of harvest. The indications of Article 2 of the draft order enable the consumer to calculate the date of catch or the date of harvest. They also serve the same purpose as the indication of the date of catch or the date of harvest, namely to inform the consumers about the freshness of the fish.

(12)

As the provision of information on the date of catch or the date of harvest is harmonised at EU level as a voluntary indication, Member States may not require any indications concerning the date of catch or the date of harvest as an additional mandatory particular. Such national measure would be in conflict with provisions of EU law.

(13)

In addition, the protection of health and the provision of information to consumers, which are the reasons for the adoption of the draft national measure according to the Romanian Authorities, constitute objectives served by Regulation (EU) No 1379/2013. This is evidenced by recitals 20 and 21 and Articles 7(1)(c) and 35(1)(e) of that Regulation.

(14)

EU legislation provides the means to the competent national authorities to protect human health and safety, and to ensure that consumers are not mislead about the characteristics of fishery products placed on the market in their territories.

(15)

According to Article 14(1) of Regulation (EC) No 178/2002 of the European Parliament and of the Council (3), food shall not be placed on the market if it is unsafe.

(16)

Article 17(2) of Regulation (EC) No 178/2002 establishes a general duty for the competent Authorities in the Member States to monitor and control that food law requirements have comprehensively and effectively been enforced at all stages of the food chain.

(17)

Article 17(1) of Regulation (EC) No 178/2002 imposes an obligation on food business operators to actively participate in implementing food law requirements by verifying that such requirements are met. Food business operators hold primary legal responsibility in ensuring compliance with food law, and in particular food safety.

(18)

Article 7(1)(a) of Regulation (EU) No 1169/2011 requires that food information shall not be misleading as to the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production.

(19)

As the EU legislation provides the means to the competent national authorities to protect human health and safety, and to ensure that consumers are not mislead about the characteristics of fishery products placed on the market in their territories, the national measure cannot be justified on those grounds.

(20)

In view of the abovementioned elements, the provisions of the draft order regarding the requirement for economic operators to ensure that consumers are informed about the freshness of fish would be contrary to Article 39(1)(a) of Regulation (EU) No 1379/2013.

(21)

In light of these observations, the Commission has delivered a negative opinion on the draft order, on 22 September 2020, pursuant to Article 45(3) of Regulation (EU) No 1169/2011. The Commission notified the negative opinion to Romanian authorities on 23 September 2020.

(22)

The Romanian authorities should accordingly be requested not to adopt the notified order.

(23)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,