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Food Safety Regulation in the European Union: Toward an Unavoidable Centralization of Regulatory Powers

ABSTRACT As the threat of foodborne illnesses is becoming increasingly obvious, the future of the European Union (EU) is becoming clearer. The study of food safety regulation in the EU sheds light on the future of the European regulatory system as a whole. Looking at the evolution of the European Union and the EU institutions, and how food safety has been regulated over the years, one can predict a centralization of regulatory powers in the EU. Despite the fact that the present decentralized system is not able to prevent food scares, the centralization of food safety regulatory powers in the EU has been both supported and criticized. However, an analysis of the present food safety measures in the EU demonstrates that the movement toward centralization has already begun. Today's de facto centralization will eventually lead to tomorrow's de jure centralization. I. INTRODUCTION In October 2004, two eagles, smuggled from Thailand, were transported on a plane and arrived in Belgium, despite the ban on imports of birds from countries that faced bird flu outbreaks.1 The birds were inspected and tested positive for Influenza A virus subtype H5N1, commonly known as "bird flu."2 In February 2006, the virus was detected in France, Germany, Greece, and Italy. Birds at a turkey farm in the department of Ain in France were found to be infected with the bird flu virus in approximately the same area where a wild duck was found dead from the same disease.3 In Germany, a cat died from the virus, becoming the first European Union mammal to succumb to avian flu.4 Avian flu was also detected in dead swans in Greece, Bulgaria, and Italy.5 In January 2007, a farm in Hungary was infected with the virus; as a result, 3000 geese were slaughtered.6 In February 2007, turkeys on a commercial farm in England owned by one of Europe's largest poultry producers were found infected with the H5N1 strain of bird flu.7 Even if bird flu is not currently a threat to human beings, some fear the virus might mutate and endanger human lives.8 These incidents are merely a sample of the numerous similar occurrences of hazards that do not recognize national borders which have happened over the past years in the Member States of the European Union (EU). Given the way food safety is regulated in the EU, each country essentially bears the responsibility to address the problem. Council Directive 2005/94/EC of December 20, 2005, on Community Measures for the Control of Avian Influenza was enacted in order to create measures for Member States to deal with sudden outbreaks of bird flu.9 However, Member States were not required to implement it until July 1, 2007.10 In the meantime, more bird flu outbreaks occurred and endangered not only the country primarily touched with the virus, but also any other country where goods can freely travel with little or no inspections.11 These events demonstrate how decentralized the EU is in terms of food safety regulation and raise the question of whether a centralized system would have prevented the spread of avian influenza. This article will focus on the food safety regulation system in the EU by looking at how centralization of food regulatory powers is a necessary step to protect the public health as well as the future of the EU in a more general sense. It will show how food regulation in the EU reflects the most fundamental controversies that are also seen in the international arena, and it will demonstrate how centralization of risk assessment and risk management is not only preferable, but is unavoidable. This article will first present an analysis of the issue of centralization of powers for food safety regulation purposes, addressing the historical developments of food safety regulation in the EU, analyzing the various arguments that have been made in favor of centralization, and considering the "single food agency debate" occurring in the United States. Then the article will take a more practical approach by discussing why a centralized power in Europe is difficult to attain. …