Prevention of Conflicts and ‘Out-of-court’ Dispute Settlement in the Field of Food Safety
In view of the sensitivities of food safety regulation, the Union legislation has provided for two interesting procedures which see to conflict situations, one procedure concerns conflicts in scientific opinion and the other concerns conflicts between Member States.
A. Scientific ‘Conflicts’
First, in addition to the embedment of EFSA in networks of national authorities and scientists and the installation of a possibility of administrative review as regards acts of the EFSA in the framework of the GM food and feed regulation, the General Food Law (GFL) encourages the convergence of opinions of European Food Safety Authority (EFSA) and other European and national bodies by pro-actively encountering possible conflicting opinions. Thus the General Food Law requires first EFSA to be vigilant in determining the possibility of diverging scientific opinions at an early stage of the analysis process. It ‘shall exercise vigilance in order to identify at an early stage any potential source of divergence between its scientific opinions and the scientific opinions issued by other bodies carrying out similar tasks’. Subsequently, the GFL addresses the problem of the actual existence of ‘diverging scientific’ opinions of national authorities and/or other European organs and the EFSA. In order to prevent situations such as the conflict on the lift of the export ban on British beef from recurring in the future, the GFL imposes a kind of duty of cooperation on the EFSA and the bodies involved.160 It herewith builds on an informal practice of the Scientific Committee on Foodstuffs which acted as ‘arbiter’ (with an advisory status) in conflicts between Member States as regards the free movement of certain foodstuffs and provided scientific assessments of the requests for approval for any compound or preparation of food by a manufacturer, which were submitted to the Commission. Where EFSA is aware of a potential divergence in opinion between it and a national authority, it must contact the national authority to ensure that they share all of the relevant information and to identify the points on which there is potential divergence.
In the case of a substantial divergence of opinion, EFSA and the national authority or other Union organs with the divergent opinion shall be obliged to cooperate with a view to resolving the divergence.163 It is important to note that, in view of the fact that EFSA has not been conferred upon the power to resolve the conflict, it here operates more as a kind of ‘watchdog’.164 In case of diverging scientific points of view, it is not automatically EFSA’s advice which is determinant. In such cases, the advice of other bodies must, rightly so, be taken into account. In case EFSA and the bodies concerned cannot come to a common solution and ‘substantive divergence over scientific issues’ continues to exist, they are required to submit a joint document to the Commission in which the contentious scientific issues are clarified and the scientific uncertainties are identified and communicated to the Commission.165 It may be wondered whether in such cases a credible compromise can be reached. Damien Chalmers even warns that in situations where different methodologies or opposing data are used, a joint document could be used to undermine the credibility of the other. Such a document could therefore highlight internal crises of sciences and provoke crises of confidence in scientific expectations, and, at the same time, promote beliefs in a zero-risk world. This, in turn, could affect confidence in the analytical rigour of the EFSA.
B. Member State vs Member State: the Mediation Procedure
Second, the GFL introduces a, what is called, mediation procedure which concerns situations of conflicts between Member States. In these cases the Commission acts as a mediator. This mediation procedure resembles the above mentioned ‘conflict procedure’. If one Member State considers that another Member States’ measure is either not compatible with the provisions laid down in the GFL or with the internal market, the Member State informs the Commission of the measure. The two Member States and the Commission shall, so the GFL prescribes, ‘make every effort to solve the problem’. If no agreement is reached, the Commission may request EFSA to give an opinion on any relevant contentious scientific issue. A similar procedure already exists in the field of medicines and seems quite successful. The practice in the field of GMO’s shows that this is likely to be more difficult in the field of foodstuffs. The introduction of the mediation procedure certainly is an interesting development. Apparently there was a need felt for a procedure outside of the normal comitology committee, the SCFCAH. This is all the more interesting as the SCFCAH has formally been assigned a broader task outside of the comitology procedure, being allowed to examine ‘any issue falling under those provisions, either at the initiative of the Chairman or at the written request of one of its members’.Does this mean that deliberate problem- solving within the framework of the SCFCAH is at risk or does it ‘simply’ give expression to the need for pursuing a faster and slimmer procedure outside of the forum offered by the SCFAH?
