It Is Typical and Must Be Protected, But in the Name of Consumers

FOR EU LEGISLATION, THE AGRICULTURAL AND FOOD INDUSTRY REPRESENTS A MULTIPLE CHALLENGE. ON THE ONE HAND, IT MUST REGULATE THE ACTIVITY OF PRODUCERS' CONSORTIA ENTRUSTED WITH PROTECTING LOCAL SPECIALTIES, ON THE OTHER IT MUST BALANCE NATIONAL INTERESTS WITH EUROPEAN PRIORITIES, WHILE KEEPING FOOD SAFETY ALWAYS IN MIND

by Miriam Allena, Dept. of Legal Studies, Bocconi
Translated by Alex Foti

EU regulation concerning the food industry initially developed with the aim to eliminate barriers to the free movement of goods, creating a single European agricultural market. Only subsequently considerations of consumer protection have become relevant, particularly in terms of food safety, but also in terms of the credibility of geographic origin designations and related intellectual property rights.
 
From this second point of view, recent EU legislation underscores the role and importance of producers' groups, namely the associations of producers and manufacturers responsible for the protection of typical geographical indications (PDO, PGI) and, in general, the preservation of quality, reputation and authenticity of agri-food products.
 
➜ Between public and private
By resorting to such private entities, policymakers are able to combine the natural interest of producers to commercially exploit the typicality of their products with the interest of consumers in being properly informed about such designations. Since the task falls on producers, tax-payers do not have to bear the cost, at least not directly, of enforcing such geographic protection.
 
All this poses new challenges to the legal theorist, especially in terms of public and administrative law, since what is a government regulatory activity (the protection of typical products) is delegated to private individuals (in the Italian tradition, to consortia for the protection of typical products). It should then be avoided that those who come into contact with these subjects find themselves deprived of the legal guarantees associated with the exercise of administrative action. So, in the face of a private power that can be equally unilateral and imperative, at least the traditional safeguards of transparency and participation, but also of judicial protection, must be ensured. The refers in particular to the possibility for the parties concerned (and any third parties) to challenge these acts and resolutions before administrative courts which can annul the legal protection afforded by the designation, in addition of ruling equivalent compensation.
 
The analysis of the legal discipline and role of producer groups also makes it possible to look, admittedly from a peculiar perspective, at the more general theme of the relationship between national traditions and the EU. In particular, it is a question of finding the right balance between supporting national entrepreneurial energies (of which is the typical product is a manifestation) and more general priorities advanced by the EU, such as safeguarding market forces and defending consumer health.
 
➜ balancing national and EU interests
In terms of market freedom, one needs to ask whether the cooperation between companies within consortia protecting typical products is compatible with the autonomy of business decisions stipulated by EU and national competition laws. In particular, entrusting private subjects having a particular interest with a public function in the general interest could result in collusion practices aimed at restricting output of a typical product. In fact, the modern state disbanded the corporatist organization of production, whereby medieval guilds fulfilled a series of public functions, but in the economic interest of their associates rather than society as a whole. From the point of view of food safety, it is well known that the need to protect local specialties often clashes with EU rules on food hygiene. This is because the peculiarity and value of typical food products  reside in many cases in ancient production techniques that are difficult to reconcile with the existing EU rules and standards.
 
So, in a historic moment in which the European project is undergoing a deep crisis and nationalist demands are re-emerging across the Continent, the real challenge is to find new solutions that dispel the notion of EU food law acting as a limitation to the creativity of national entrepreneurs exploiting the opportunities for the survival and development of local food traditions.