The Internal Market Affairs Directorate in The EFTA Surveillance Authority (ESA) concludes that the article 17 of the Norwegian Food Safety Authority’s quality regulation, falls outside the scope of the EEA Agreement, according to a letter from the ESA to the Danish Seafood Association.
In the letter, which SalmonBusiness has received a copy of, The Internal Market Affairs Directorate in ESA responds to a complaint from The Danish Seafood Association against Norway concerning certain requirements in the Norwegian legislation on quality of fish and fish products related to quality standards for fish from aquaculture.
Based on the colour, consistency and other factors all Norwegian salmon is graded on a 3-point scale: Superior, ordinary and production quality (for domestic customers only).
In the complaint, the Danish Seafood Association alleges that the requirements in the Norwegian legislation stating that aquaculture fish products with certain quality defects cannot be sold for human consumption unless they have been subject to corrective measures in Norwegian establishments with the necessary equipment are in breach of EEA law.
In a so-called “pre-closure letter”, The Internal Market Affairs Directorate intends to propose to the ESA that the authority closes the case.
“The authority may, however, revert to the matter should any relevant developments occur in EEA or EU law,” the directorate adds in the letter.
“Our view is completely unchanged”
The Internal Market Affairs Directorate also encourages the Danish Seafood Association to provide their feedback on the letter by August 23.
Paul Melgaard Jensen of the Danish Seafood Associaton confirmed to SalmonBusiness that they will respond to the letter.
“We have received the decision of the EFTA Surveillance Authority (ESA), regarding the Norwegian quality regulation for fish, and note that the Norwegian requirement cannot be unlawfully judged on the basis of the EEA agreement. As we read from the decision, the requirement for the correction of salmon with certain quality defects lies on land in Norway and on Norwegian companies, outside the scope of the EEA agreement,” Melgaard Jensen wrote in an e-mail to SalmonBusiness.
“However, our view is completely unchanged. The Norwegian requirement acts as an export blockade for fish of production quality, and the claim cannot in any way be justified on the basis of ordinary commercial principles. We stand by that, and are now considering our next step,” Melgaard Jensen added.
What might be the next step beyond responding to ESA, Melgaard Jensen didn’t address.
“We have not yet had the opportunity to look properly into this,” he said.
In the letter, the Internal Market Affairs Directorate of ESA first goes through the complaint, and article 17 of the Norwegian Food Safety Authority’s quality regulation.
Then reference is made to Article 8 of the EEA Agreement, which states that:
“Unless otherwise specified, the provisions of this Agreement shall apply only to:
(a) products falling within Chapters 25 to 97 of the Harmonized Commodity Description and Coding System, excluding the products listed in Protocol 2;
(b) products specified in Protocol 3, subject to the specific arrangements set out in that Protocol.”
According to the Internal Market Affairs Directorate, the fish products concerned by Article 17 of the Norwegian Regulation fall within Chapter 3 of the Harmonized Commodity Description and Coding System, and are not specified in Protocol 3 of the EEA Agreement.
“It follows that they are not subject to the provisions of the EEA Agreement unless otherwise specified. In particular, they are not subject to Article 12 of the EEA Agreement concerning restrictions on exports,” the Internal Market Affairs Directorate writes in the letter.
The Internal Market Affairs Directorate also questioning whether Article 17 of the Norwegian Regulation is subject to relevant provisions of Protocol 9 of the EEA Agreement on trade in fish and other marine products.
“This provision does not cover restrictions on exports of fish products or measures having equivalent effect imposed by the EFTA States. It follows that the measures at issue are not subject to this provision,” The Internal Market Affairs Directorate concludes.
“Thirdly, fish products are subject to EEA legislation concerning food safety incorporated in Annexes I and II of the EEA Agreement. These acts contain provisions applicable to fish products, however, they concern food safety and hygiene requirements, and not quality standards. Article 17 of the Norwegian Regulation concerns quality and marketing aspects which are not regulated in EEA food safety legislation,” the letter states.
Finally, the authority questioning whether Article 17 of the Norwegian Regulation is subject to the provisions of the EEA Agreement concerning the freedom to provide services.
“In this regard, it appears that sorting and processing operations are inseparably linked to the sale of fish, as they are processing steps for the purpose of the sale of fish. Measures imposing restrictions on these operations, such as the one at issue, therefore fall outside the scope of Article 36 of the EEA Agreement,” writes the Internal Market Affairs Directorate.
Based on the things above, the Internal Market Affairs Directorate intends to propose that the ESA closes the case.