Food Law News - EU - 2008

FSA Document, 10 October 2008

OFFICIAL CONTROLS – FSA October 2008 update on EU Regulation 882/2004 on official controls – implementing rules for import controls for 'high-risk' feed and food of non-animal origin

The following is the initial part of this FSA document. They are requesting views by 31 October 2008. The full document contains a draft of the proposed EU Regulation. A copy of the full FSA document is available on this site – see: October 2008 update on EU Regulation 882/ 2004


1. Since the update on 15 July 2008 about the above implementing rules, there has been a Commission Working Group meeting in Brussels on 3 October at which a new draft of the proposed Regulation was discussed.

2. The Commission is hoping to present the proposed Regulation to the Standing Committee on the Food Chain and Animal Health (SCoFCAH) in November or December. In view of this, I would appreciate comments on the latest text and your views on the main issues (see below) as soon as possible but by 31 October 2008 at the latest.

Latest Commission text

3. A copy of the latest text - Rev 21 - is at Appendix 1 [see link above]. Please note that the draft may not necessarily represent the views of the Commission and the document that is presented for formal adoption may differ.

Main issues

Designated points at which checks should be undertaken

4. The proposals regarding the arrangements for official controls on the products listed at Annex 1 to the Regulation has now changed. Previously, the requirement was for documentary checks to be carried out at the first point of entry into Community territory (Designated Point of First Arrival) but identity and physical checks could be carried out inland at a separate designated point (Designated Point for Identity and Physical Checks). The new proposal requires that all controls be carried out at the point of entry onto Community territory (at the external border) i.e. a Designated Point of Entry (DPE). The Commission explained that this change has been adopted, on advice from its Legal Service, to reflect the provision at Article 15(5) of Regulation 882/2004 on official controls.

5. The UK has previously taken the view that all controls - documentary, identity and physical checks - should be undertaken at a 'designated point of entry' unless there are exceptional circumstances that would justify physical checks being carried out inland. We believe that what is important is that points of entry should only be designated if they have the appropriate facilities to carry out the controls. We propose to maintain this position and seek clarification that there will be sufficient flexibility within the new proposal for this.

Minimum requirements for DPEs

6. The minimum requirements, as regards the facilities, equipment and staff that must be made available at DPEs have been amended and are now set out in the body of the latest text at Article 3 – these were at Annex III in the previous text. These provisions are consistent with those set out in the consolidated safeguard measure on aflatoxins – Commission Decision 2006/504.

7. Authorisation of DPEs - The UK has previously highlighted the need for the rules to be clearer regarding the responsibilities of the Member State (MS) in authorising designated points of entry, the requirements that must be met in order to achieve 'designated' status, and the measures that should apply in the case of those designated points that perform poorly. We hope that there will be further opportunities to discuss these issues.

8. Transitional measure - The latest text (see Article 14) provides for a transitional period of five years for designated points of entry to meet the minimum requirements set out in Article 3. During this period, other ‘points of control' may be approved to carry out identity and physical checks provided that these also meet the minimum requirements for the DPE. These ‘points of control' may be located inland. During this period all documentary checks must still be carried out at the DPE.

Detention of consignments

9. The latest text, at Article 7(2), provides for consignments of products listed in Annex 1 to be placed under the 'control' of the competent authorities until the results of any physical checks (laboratory analysis etc.) have been obtained. There remain differing views on this issue with some MSs (including the UK) maintaining that such consignments must remain under 'official detention' at the DPE until the results are obtained so as to ensure that public health is not compromised. Others believe that, provided the competent authority retains ‘control', consignments may be removed from the DPE pending the outcome of any physical checks and prior to release for free circulation.

Release for free circulation

10. The latest text – at Article 8 – provides for the release for free circulation of consignments subject to the presentation of the completed ‘common entry document‘ (CED), duly endorsed by the competent authority, to customs authorities. During discussion at the last meeting, the Commission agreed that that customs services may facilitate clearance and release for free circulation on receipt of transmission of an electronic copy of the completed CED or notification of its endorsement from the competent authority.

Criteria for ‘listing/delisting products in Annex 1

11. The criteria for listing/delisting products in Annex 1 are no longer set out in the Articles as the Commission believes that it is sufficient to refer to these more generally by means of a reference to the legal procedure for establishing the list of products i.e. Article 15(5) of Regulation 882/2004. This is achieved at paragraphs (3) and (4) on page 2 of the latest text. During discussion of this, a number of MSs (including the UK) argued that there must be greater transparency as to the criteria used for the inclusion, and removal of products from the list.


12. The Commission has acknowledged the difficulty, at least at this stage, in reaching agreement on minimum fees for the controls set out in the Regulation. The latest text simply makes it mandatory for fees to be imposed and that the criteria provided in Annex VI of Regulation 882/2004 are taken into account in calculating these. This means that MSs can ensure that the competent authorities can recover their full costs (including those for sampling and analysis).

List of 'high-risk' products - Annex I

13. There was no progress on the development of the list. A number of MSs once again emphasised the importance of ensuring that the implementing rules do not disrupt or create unnecessary barriers to trade and highlighted that clear and robust criteria for the inclusion of products in the list is required. The Commission acknowledged that the current draft of the list is now out-of-date and will be reviewed in the light of more recent evidence concerning notifications received from the Rapid Alert System for Feed and Food (RASFF); reports received from the Food and Veterinary Office (FVO) and reports from third countries, other Member States and the European Food Safety Authority (EFSA).

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