Committee Reports > List of Committees > Joint > 1977 > Committee on the Secondary Legislation of the European Communities > Report No. 58 - European Communities (Fresh Poultry Meat) Regulations, (S.I. No. 317 of 1976)

REPORT

1. Introduction

The Joint Committee has examined the European Communities (Fresh Poultry Meat) Regulations, 1976 [S.I. No. 317 of 1976] which were made by the Minister for Agriculture and Fisheries on 31st December, 1976 under section 3 of the European Communities Act, 1972. These Regulations purport to implement Council Directives 71/118/EEC and 75/431/ EEC which deal with health problems affecting trade in fresh poultry meat.

In the course of its examination of the Regulations the Joint Committee wrote to the Minister’s Department asking for comments on certain provisions in the instrument. Copies of the Joint Committee’s minute and of the Department’s reply are set out in the Appendix to this report.

2. Provisions of the Directives

The Directives impose certain obligations on Member States to ensure that standard conditions apply when fresh poultry meat of domestic fowls, turkeys, guinea-fowls, ducks and geese for human consumption is marketed in domestic or intra-Community trade. Broadly speaking, Member States are required to ensure that trade is allowed only in products coming from approved slaughterhouses and cutting premises and that various requirements relating to veterinary inspection, health markings, storage, packaging and transport are observed. Trade in products treated with bleaching or colouring substances or with antibiotics, preservatives or tenderisers is to be prohibited. The Directives are not to apply to direct sales by the producer to the final consumer or, until 15th August, 1981, to sales by farmers to consumers at adjacent weekly markets or to retailers in their locality.

Fresh poultry meat exported to another Member State must be accompanied by a specified health certificate signed by an official veterinarian attesting that the product or the packaging bears a mark proving that the meat has come from animals slaughtered in approved slaughterhouses or has been cut in approved cutting premises; that the meat has been passed fit for human consumption; and that the transport vehicles or containers and loading conditions meet the requirements of the Directives. The importing State may, however, prohibit the marketing of the meat on its territory if it is found that it is unfit for human consumption or that provisions of the Directives have not been complied with and in that event, the importer has the right to seek an examination of the meat by a veterinary expert from a third Member State.

The Joint Committee made a report to the Houses on these Directives in its twentieth report (Prl. 5139) of 11th December, 1975.

3. Offences Created by Regulations

To ensure compliance with its provisions implementing the Directives, the domestic Regulations create certain offences the penalty for which is a fine of up to £200 or 6 months imprisonment or both. Paragraphs (1) and (2) of Regulation 3 provide:-

“(1) Fresh poultry meat which is intended to be exported to a Member State or has been imported shall not be sold unless it complies with the provisions of the Council Directive.

(2) Fresh poultry meat shall not be exported to a Member State or imported unless it complies with the provisions of the Council Directive.”

It will be noted that in the case of imported meat, paragraphs (1) and (2) seek to make its importation or sale unlawful if the provisions of the Directive have not been complied with in the exporting State. This provision appears to the Joint Committee to be most unreasonable. In its view, the only obligation that should arise from the Directives for anyone in this country dealing in imported poultry meat is to ensure that it is accompanied by the health certificate specified in the Directives. Such a certificate would not absolve a person trading in meat from complying with the Food Hygiene Regulations, 1950 [S.I. No. 205 of 1950] which adequately protect consumers and which, apparently, are not affected by the Directives.

The Joint Committee also finds Regulation 4 (1) of the domestic instrument objectionable. It provides as follows:-

“(1) Subject to paragraph (2), fresh poultry meat shall not be sold in the State unless it complies with the provisions of the Council Directive.”

If this provision creates an absolute offence, it seems to the Joint Committee that a person may be liable for acts of others over whose actions he has no control. In the Joint Committee’s view the Regulations should specify precisely what obligations in the matter of sale necessarily arise from the Directives for the processer, wholesaler and retailer and make each liable for contraventions over which he has control.

From the Department’s reply to its minute of 18th January, 1977 the Joint Committee concludes that the purpose of Regulation 3 (3) of S.I. No. 317 of 1976 is to enable officers of the Department to carry out functions under the Food Hygiene Regulations, 1950. The paragraph reads:-

“(3) Without prejudice to paragraphs (1) and (2) of this Regulation, fresh poultry meat which has been imported shall not be sold if it is found, on examination by an authorised officer in the State, to be unfit for human consumption or not to comply with Articles 3, 8 or 14 of the Council Directive.”

Regulation 9 (1) of the Food Hygiene Regulations, 1950 provides that “no person shall sell or offer or keep for sale—(a) any article of food intended for human consumption, (b) any food animal or (c) any food material which is diseased, contaminated or otherwise unfit for human consumption.” It is not clear to the Joint Committee how the extension of the Department’s functions or any other purpose is served by virtually repeating this provision (insofar as it is applicable to imported food) in Regulation 3 (3) without, incidently, any reference to the 1950 Regulations. Moreover, the rest of Regulation 3 (3) is open to the same objections as those which the Joint Committee has expressed in relation to the other provisions dealing with imported poultry meat.

In its thirtieth report (Prl. 5419) of 28th April, 1976 the Joint Committee drew attention to the need for ensuring that the dimensions of any offences created by Ministerial regulations under the European Communities Act, 1972 are made perfectly clear. Concern for individual rights as understood in this country should, in the Joint Committee’s view, require that obligations imposed on individuals arising out of Community legislation should be reasonable. The Joint Committee believes that it will rarely be enough merely to provide that “products shall comply with Directives” or even that “traders shall comply with Directives” particularly if the consequence of failure to comply is the imposition of fines and imprisonment. In the Joint Committee’s judgement, the provisions in S.I. No. 317 of 1976, to which reference has been made, fall short of the standard desired.

4. Fees

Regulation 15 (1) of S.I. No. 317 of 1976 provides as follows:-

“(1) There shall be charged such fees in respect of services performed by the Minister or an officer of the Minister in connection with matters to which these Regulations relate as the Minister, with the consent of the Minister for Finance, may determine.”

In its eighth (Prl. 4596) and twelfth (Prl. 4670) reports the Joint Committee dealt with provisions in statutory instruments relating to fees. It pointed out, firstly, that the charging of fees could not always be treated as an “incidental” matter coming within section 3 (2) of the European Communities Act, 1972 and, secondly, that, even where the charging of fees was reasonable, the amount of the fee should be specified in the statutory instrument. If the latter recommendation is followed, a fresh instrument has to be made whenever a fee has to be varied. Only if this is done can the Houses exercise any control over such fees.

While the Joint Committee can accept the need for fees in the present case, it cannot agree that the Ministers concerned should be allowed to fix and vary the amount of the fees by administrative action.

5. Recommendation

In accordance with section 4 of the European Communities Act, 1972 [inserted by section 1 of the European Communities (Amendment) Act, 1973] the Joint Committee, for the reasons given, recommends that the European Communities (Fresh Poultry Meat) Regulations, 1976 [S.I. No. 317 of 1976] be annulled. They should be replaced by a new instrument containing appropriate amendments of Regulations 3, 4 (1) and 15 (1).

(Signed) CHARLES J. HAUGHEY,

Chairman of the Joint Committee.

4th May, 1977.