Following these scandals, the European Union established a European Food Safety Authority, now located in Parma, Italy, and introduced 84 legislative initiatives including “general principles of food law” across the EU. It also revamped the European Rapid Alert System for Food and Feed to be better able to deal with a food emergency. While all the achievements of European food law that have taken place in the past few years are commendable, we are again left wondering whether they will prove to be sufficient to deal with the next food-chain disaster that threatens Europe. If the isolated incidences of avian flu identified in Europe turn into a significant outbreak should we be worried that there are still deficiencies in the legislative tools and cross-border institutions available to the EU?

The Union has been preparing for this possible outbreak by drawing up an overhaul of the 1992 directive on measures for the control of avian influenza. This directive is before the European Parliament and is intended to take into account the new threat to human beings that avian flu in South-East Asia has revealed. Unfortunately, it is anticipated that the directive will not be adopted until December — by that stage, and once we have taken into account any lessons that can be drawn from the recent outbreaks in Turkey, Romania and Greece, the legislation may need to be further adapted.

The directive will introduce the compulsory surveillance in all member states for low pathogenic, less severe, avian influenza that can mutate into the high pathogenic form. At the moment, only high pathogenic avian influenza is monitored. Other measures include new, more flexible provisions on vaccination, provisions to ensure co-operation between member states veterinary and public health authorities in case of detection of avian influenza and give the European Commission powers to adopt further and more specific avian influenza control measures, as well as to establish a vaccine bank.

We might well ask why this legislation is not already in place. Much of the information being supplied by the EU after its special Council meeting in Luxembourg last week centred on enhancing co-operation between member states and ensuring that each has an adequate emergency plan to cope with an avian influenza outbreak. The Avian Influenza Directive touches on an area of food law that is precious to member states — the official control of foodstuffs. Some states have shown themselves reluctant to allow Brussels to have any say in the way in which food inspections, sampling and testing and laboratory procedures are carried out in their country.

The EU has gained new powers to deal with food emergencies that have a food-safety dimension on a Europe-wide scale, but issues such as foot-and-mouth and avian flu also have to be approached through the veterinary field — an area guarded fiercely by many states as being part of national policy. Some of this reticence is because the official animal disease status of a country has important trade implications for its agri-food industry — you just have to look at how Ireland worked strenuously to keep out foot-and-mouth so that it could continue to trade its meat on EU and world markets, whereas the UK, which was already locked out of markets because of BSE, had fewer concerns over that matter.

It is also interesting to note that, in establishing the European Food Safety Authority, the EU has created a scientific advisory body rather than an independent agency that will be able to make management decisions even when there is a food emergency. Again, this is because however much some member states might commend the US Food and Drug Administration, they are reluctant to cede powers to such an EU-wide agency. Whether we need a European FDA with the power to step in and direct a food emergency response when it is thought that a member state’s action is inadequate might well be open to debate again.

Avian influenza may turn out to be the issue that finally demonstrates to member states that they can no longer have 25 different ways of inspecting, monitoring and controlling the agri-food industry and that it is time to approach this matter in an EU-wide fashion.

It will not be easy to get national administrations to change their ways but in the long run it will prove to be the logical way forward. In the 1980s with stories of Brussels legislating for “straight bananas” etc, there was a view that food should be regulated at national rather than European level and it took BSE and the other food disasters to make the case for regulating foodstuffs at a European level. Unfortunately it may well take the threat of bird flu to decide whether the remaining gaps in EU food law should be filled in.

The writer is the author of European Food Law, published by Sweet & Maxwell

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