Trade, food/feed safety risk and Industry Competitiveness A Legal perspective
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Trade, food/feed safety risk and
Industry Competitiveness
A Legal perspective
Nicole COUTRELIS, Avocat
COUTRELIS & ASSOCIES
55 Avenue Marceau – 75116 PARIS
Tel : 01 53 57 47 95
235 Rue de la Loi – 1040 BRUXELLES
Tel :02 230 48 45
n.coutrelis@coutrelis.comMain Legal Issues • Sharing Responsibilities • Competition Law • Contracts • Dispute Resolution June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 2
Responsibilities
Who is responsible for what ?
June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 3Who ?
• In the chain :
– Internationally : Seller/ Buyer / Transport / other
– Within the EU :
• Seller / Buyer - Producer / Manufacturer – Industry / Retail
• More and more governed by EU Law
– Food Safety Rules (Reg 178/2002)
– Product Liability Rules (Dir. 85/374)
• In each company :
– The Company as such / Individuals
Mainly national law
June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 4For what ?
• Breach of regulatory obligations :
– General safety obligation,
– Product specifications,
– MLR of residues and contaminants,
– Labeling (warnings, instructions for use, etc.)
• Consequences of the lack of safety :
– Loss of products / recalls, etc.
– Injury / death of consumers
• Breach of contract (with buyers)
• Etc…
June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 51st case : Safety rules
• Rt. 178/2002 : every actor in the chain is responsible at his own level
• A product may be unsafe (i.e. defective) by its composition or by its
presentation (labeling may be part of safety : warnings, allergens,
specific conditions of use or storage, etc.)
• Who is responsible :
– Vis à vis the Administration (penal law) : the one who has failed to fulfill
his duty
– Vis à vis consumers (civil law on product liability): the producer – i.e.
the one who presents himself to the consumer as the producer (i.e. the
retailer in case of private label)
• But the « real » responsible may be someone else :
– The retailer (lack of safety due to the storage)
– The manufacturer of a private label product, the provider of a component
• Recursory actions may then take place (after having compensated the
consumer) – and contractual clauses may then be essential for
determining respective responsibilties
June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 62nd case : Labeling
– Labeling may be part of safety (see above)
– In most cases, mislabeling is an infringement to the
regulation as such, and sometimes misleads the consumer
– Normally, the responsible person is the producer (who
makes the label)
– But the retailer may also be held responsible (not only in
case of private label) : see the Lidl Italia case (ECJ 23 nov
2006), and the Commission proposal on the information of
the consumer. Raises serious problems as to the share of
responsibilities/ power between the producer and the
retailer
June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 73rd case :
Non conforming Product
– All actors in the chain may be held responsible for placing a non conforming
product on the market
– For innovative products, pitfalls may also come from :
• Novel Food regulation (in the EU)
• Unknown specifications
• Claims, etc.
– Contractual clauses are often used – and recommended for civil responsibility
purposes –to determine the respective responsibilities in the chain (who is checking
the regulatory issues, who will make all the controls ?). This is most crucial within
the industry chain (ingredient producer / final product producer)
– But contractual clauses cannot derogate to penal rules governing responsibilities,
and…
– May be dangerous for the one who promises something he cannot guarantee
(! allergen free, fully controlled, etc…)
June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 8Competition// Antitrust
Competition
• EU (art 101 TFEU) and national law : All
agreements or concerted practices between
companies which restrict competition are
prohibited
– Vertical agreements (« intra-brand » competition)
– Horizontal agreement (inter-brand competition)
• But all agreements are not considered « anti-
competitive » - and some « anti-competititve »
agreements may be accepted if the end-result
proves to « pro-competitive »
• Competion Law also prohibits abuses of dominant
positions (art 102 TFEU)
June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 9What is pro or anti competitive ?
– Collaboration may include so-called « non competitive »
issues : Safety, or information to the consumer should not
be a competitive issue. But is it so easy to draw the line ?
– Example : Very high safety standards decided by market
leaders might not be practicable for competitors (small
companies, potential entrants on the market, foreign
companies…). If they are not proportionate to the real
risk, couldn’t they be deemed « anti-competitive » ?
– After all, the precautionary principle, which applies to
States, includes the proportionality principle. Why not
apply the same principle to cooperation between
companies (vertical or horizontal) ?
June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 10Contractss
Contract
– The main legal tool to try to avoid trade problems in
advance : the Contract
– The contract is « the law of the parties ». This is still
the case (although subject to public order restrictions
such as, inter alia, competition law, or consumer law) in
the relationship between professionals
– A Contract should be very carefully written regarding
• What is required from each party by the other
• What a party is able to promise to the oher
• Respective responsibilities
• Which law is applicable, and before which Judge
– And so, the Contract will allow a better cooperation in
the chain and limit legal hurdles if a problem arises
June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 11However, everything cannot be
However,
decided by contract
– Some rules are public order : no derogation by
contract is admitted, for instance, regarding :
• Strict liability towards consumer (in EU Law)
• Product specification applicable in the country where the
product is to be placed on the market
• General safety obligations
• EU safety rules for exported products (apart from
exception required by the importing country)
In some cases, clauses contrary to public order would be nul
and void – and therefore not applicable even between the parties
June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 12And a contract cannot avoid
every dispute
• A well written contract can help to solve
many disputes, or at least avoid useless and
time consuming debates. Particularly :
– Many issues on the sharing of responsibilities,
and on applicable law, can depend on the
Incoterm, or on the type of contract
– Specific clauses on applicable law and
jurisdiction (which may be different) should be
inserted
June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 13Two main kinds of litigation
• Criminal : Operator sued by
– Public Authorities,
– Victims (consumers)
• Civil : Operator sued by
– Victims again (for damages)
– Other operators in the chain / Co-contractors
(before judges, or arbitrators)
Both kinds of litigation may happen at the same time.
June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 14Collective solutions ?
Yes,, but up to a limit
Yes
• Safety professional standards v/
Competition Law
• Contracts / clauses (ICC, FOSFA, etc. ) v/
Public Order requirements
• Professional arbitration bodies v/
Criminal Law issues
June 24, 2011 Nicole COUTRELIS - FEDIOL General Assembly Conference 15Thank you for your attention
June 24, 2011 Nicole COUTRELIS - FEDIOL 16
General Assembly ConferenceYou can also read
