Approaches of legislators of some countries of the European Union and the Republic of Belarus to the formation of legislation in the field of food safety and the establishment of responsibility for its violation



The article analyzes the approaches of the legislators of Germany, France, Spain and Italy in matters of ensuring the protection of food safety in their comparative analysis with the Republic of Belarus. The tendencies of regulation of liability for encroachments on life, health, property during the turnover of unsafe products in the countries under consideration, as well as similarities and differences in the positions of legislators are revealed.

Keywords: safety, food products, criminal liability.

Currently, in the context of global globalization and integration, it is worth noting that ensuring the quality and safety of products is no longer only a purely national interest, is not limited to the internal borders of the state, but goes beyond it, acquiring an international character, concerns all countries, governments, producers, consumers and other participants in trade. In the Directive of the European Parliament and of the Council 2001/95/EC on general product safety adopted on December 03, 2001, a reservation was made that all manufacturers have a «common duty of safety», that is, we are talking about the need to take joint actions to achieve a single goal of providing the population with safe products [1].

All countries of the world, including members of such an international association as the EU, are concerned that low-quality and falsified products are entering the market, most of which are products that do not meet the requirements for the safety of life and health of consumers.

In order to ensure the safety of food products and the protection of the European population, common European standards apply in the EU member States. The fundamental document in the EU is Regulation No 178/2002/EC of the European Parliament and of the Council of 28 January 2002, which approves the European Food Safety Authority, and also establishes regulatory requirements for the quality and safety of products. Regulation No 178/2002 aims «to create a framework for ensuring a high level of protection of human health and consumer interests in the field of food products» [2].

It is noteworthy that this Regulation No 178/2002 introduces the concept of «food law», which includes a set of norms on food products, their safety at all stages, including production, manufacture, processing, transportation, storage, marketing, sale. Structurally, the EU food safety legislation can be presented in the form of the following levels: EU legislation in the field of food products, legislation on consumer information, legislation on food safety, legislative requirements for product quality [3].

In general, the technical legislation of the EU is a set of various legislative acts on food products, the EU has EU Directives and Regulations in this area. Examples of regulatory documents in the field of product safety include Directive 2001/95/EC on general product safety, which applies to all products, with the exception of those for which harmonized special regulations apply. For example, in relation to children's toys, food, cosmetics: Regulation No 10/2011 of 14 January 2011 on plastic materials and articles intended to come into contact with food [4], Regulation No 852/2004 of 29 April 2004 on the hygiene of foodstuffs [5], Directive 2009/48/EC of 18 June 2009 on the safety of toys [6], Regulation 2019/1020 on market surveillance and compliance of products [7] and others.

International standards in the field of food safety play a huge role in ensuring food safety at the international level: HACCP, ISO 22000, IFS Food, GMP+, FSSC 22000, FAMI-QS, Global Aquaculture Alliance, GRMS, SQF, which are applied in EU countries.

The directives and regulations cited as examples, as well as a number of other EU documents, are aimed at ensuring an appropriate level of product quality and safety. Despite the variety of regulatory and legal documentation, however, there are still situations when purchased products in EU countries may be unsafe and (or) of poor quality and pose a threat or harm to the life and health of the population, their property.

According to the results of a study conducted by the European Commission, which is the highest executive body of the EU, 2,142 alerts were circulated in 2021 to take appropriate measures against products that pose a security threat or a threat to the environment. Of the total number of such goods, the most dangerous were: «motor vehicles» (26 %), followed by «toys» (20 %), then — «electrical appliances and equipment» (9 %), jewelry (9 %), «protective equipment» related to COVID-19 (mostly protective masks) (8 %) and other products [8].

In the event of such circumstances, the question arises of bringing manufacturers and other entities to responsibility provided for by law. In this connection, the question arises, what norms are provided in the EU countries in the field of legal liability for such torts, both at the level of supranational and national legislation?

The starting point is the supranational legislation of the EU, which plays a key role in the application of mechanisms to protect the European population from the circulation of unsafe and (or) low-quality products, in the development of which national acts are adopted in the EU member States. The EU Directive 85/374/EC of 25 July 1985 has been adopted and is in force as the main act in the EU «On the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products» or, as it is also called, the Directive on Product Liability (hereinafter referred to as the Directive).

The introductory provisions in the Directive state: «The harmonization of the laws concerning the liability of the producer for damage caused defectiveness of his products is necessary, since existing differences may entail a different degree of protection of the consumer» [9]. The preamble to the Directive also notes that all manufacturers and importers involved in the production process are obliged to be responsible for their actions and be held accountable if there is a defective product.

Pursuant to Article 13, liability established under the Directive does not exclude other rights that an injured person may have under existing national laws that were in place when the directive was adopted [10, p.3]. Thus, this means that at the level of national acts of the EU member States, forms and methods of protecting citizens' rights to safe products can be determined, the scope and nature of which may differ. Similar provisions are contained in articles 7 and 18 (3) of the EU Directive 2001/95/EC on general product safety, according to which the definition of criminally punishable acts and the establishment of penalties for their commission is left to the discretion of national legislators of the EU Member States.

In their research, scientists, for example, the Italian lawyer Giorgio Risso, note that this Directive has not led to complete unification in this area, leaving some important issues, including regarding liability, to the discretion of the national laws of the member states, which causes some interest for further research [11, p.211]. To this end, we will consider the legislation of some EU member states, in particular, Germany, France, Spain and Italy, regarding the regulation of liability for acts related to the production and turnover of unsafe and (or) low-quality products, in their comparative analysis with the provisions of the national legislation of the Republic of Belarus.

In Germany, which is an EU member state, there are also regulatory documents regulating the circulation of safe and high-quality products and liability on the territory of Germany, most of which, of course, have been brought into line with the provisions of EU supranational law, in particular, the previously cited Directive.

The main provisions on liability are contained in the Product Liability Law of 15 December 1989 (abbreviated as «ProdHaftG») [12]. This regulatory document contains the following provisions: the concept of defective products, who bears the burden of proof, what liability measures follow in the event of consequences.

First of all, it is interesting that in the Directive, and in the implemented provisions of the Law of both Germany and other EU countries, the concept of a defective (low-quality) product is revealed through the concept of safety: «If a product is not able to provide security, which people have the right to rely on, it has a defect» [13, p.37].

It is interesting that in the Belarusian legislation, in particular, in the main regulatory document in the field of food safety — the Law of the Republic of Belarus of 29 June 2003 No 217-Z «On the quality and safety of food raw materials and food products for human life and health»: «In Article 1, which explains the main the terms of the Law, and in subsequent articles, in addition to the term «safety of food raw materials and food products», the term «quality of food products» is also used» [14].

An analysis of the provisions of this Product Liability Law suggests that it deals mainly with compensatory measures, in particular, compensation for damage by the manufacturer in the event that a product defect leads to the death of a person, bodily injury or damage to his health, or damage to an object of property, which is characteristic of civil law.

In Germany, in the field of food safety, the Law (Code) on Food Products, Essentials and Feed (Lebensmittel- und Futtermittelgesetzbuch — LFGB) has been adopted and is in force, which regulates the law enforcement practice of the current EU legislation and german food legislation, as well as other national legal acts in terms of safety, production rules, turnover, supervision, control, as well as rules for imposing administrative and criminal liability for violations of legislation [15, 16, p.1].

LFGB in § 58 «Criminal and Punishments» provides for various variants of actions for which a prison sentence of up to three years or a fine must be imposed.

The system of criminally punishable acts is formed by the following cases when a person:

1) in violation of the supply 1 part 1 § 5, it makes or processes a food product for others so that their consumption is harmful to health

2) in violation of paragraph 1 of Part 2, the substance introduces the substance as a food product that is not food products and the consumption of which is harmful to health

3) in violation of paragraph 2 of Part 2 § 5, manufactures, processes or introduces into circulation the product identical to the food product

4) in violation of the supply of 1 part 1 § 10, introduces food products produced by the animal if there are pharmacologically active substances

5) in violation of paragraph 1 of the sentence 1, 1 § 17 makes or processes the feed in such a way that, with proper and appropriate feeding with these feed, food products produced for other animals intended to obtain foods can be harmful to human health

6) in violation of a) paragraph 1 of the Offer 1 § 26 makes or processes a cosmetic product so that they can cause harm to health with proper or proposed use; b) paragraph 2 of the Offer 1 § 26 introduces a substance or mixture of substances as a cosmetic product that can cause harm to health with the proper or alleged use.

7) in violation of paragraph 1 § 30, makes or processes the essentials that do not meet the requirements for their manufacture

8) in violation of paragraph 2 § 30, it introduces into circulation an object or tool as an object of essential necessity, which, with proper or intended use, cause harm to health due to their composition of substances, especially due to toxicological active substances or due to pollution other [16, p.73].

Analysis of scientific and literary foreign sources [17] has shown that criminal liability against persons who have committed acts that caused death, injury to health, property, can be applied on the basis of general norms on criminal liability for committing acts against property, personal integrity, etc. We are talking, for example, about such criminal acts as: § 222 («Causing death by negligence») 16 of the section «Criminal acts against life» of the Criminal Code of the Federal Republic of Germany, § 223 «Causing bodily harm», § 226. «Grievous bodily harm» 17 of the section «Crimes against bodily integrity» Criminal Code of the Federal Republic of Germany, §303 «Damage to property» [18, 19].

In the Criminal Code of the Federal Republic of Germany, article § 314 «Causing public danger by poisoning» also establishes criminal liability for the commission of the following acts: «Whoever poisons or releases substances which are harmful to health into 1. water in contained springs, wells, pipes or drinking water storage facilities or 2. objects intended for public sale or use, or sells, offers for sale or otherwise puts into circulation poisoned objects within the meaning of no. 2 or those into which substances which are harmful to health have been released incurs a penalty of imprisonment for a term of between one year and 10 years» [19].

In France, the provisions of the EU Directive on Liability for defective Products 85/374 /EC have also been accepted and implemented in French legislation, in particular, in the French Civil Code (articles 1245 to 1245–17), respectively, we are talking mainly about compensation for damage to health, property in case of turnover of defective products, the concept of which, as in Germany, is revealed through its ability to provide security.

However, the provisions of the French Criminal Code in the case of harm to health, life and property, as the consequences of trafficking in unsafe products, apply to persons on a general basis. For example, article 222–19 of the French Criminal Code, «which establishes liability for unintentional bodily injury as a result of awkwardness, negligence, inattention, negligence or failure to comply with the obligation to observe caution or safety imposed by law or regulation» [13, p.20; 20], article 223–1 of the French Criminal Code, «which regulates the provisions on liability for acts in case of putting a person in danger as a result of an obviously intentional violation special obligation to exercise caution or safety, imposed by law or regulations» [13, p.20; 20] and others.

Italy has also implemented the provisions of Directive 85/374/EC into national legislation, namely, the Civil Code and Legislative Decree No 206 of September 6, 2005 (commonly known as the Consumer Code).

By analogy with the provisions of the legislation of Germany and France, the concept of a low-quality, defective product is revealed through the concept of safety (Article 117 of the Consumer Code) [21].

According to Article 112 of the Code of Consumer, there is criminal liability if the manufacturer places a dangerous product on the market (part 1), places a dangerous product on the market in violation of the decision on the restriction issued by the relevant authorities (part 2), the specified actions should be carried out for the commission punishment of imprisonment or fine [21]. The analysis suggests that the provisions of the Italian criminal law will be applied in the event that acts related to the turnover of such products will lead to the onset of consequences, that is, harm to life, health, etc.

In Spain, the rules on liability for defective, low-quality products are established by the provisions of the Royal Legislative Decree 1/2007 of November 16, which approved the text of the General Law on the Protection of Consumer and User Rights and other additional provisions («RDL 1/2007»). In accordance with the provisions of this regulatory document, the manufacturer is liable (Articles 128–146 of RDL 1/2007) for any damage caused by death or bodily injury, and/or any damage or destruction of any property. It is worth noting that this system of strict civil liability does not exclude other types of liability for committing acts against unsafe products [22].

In the scientific literature, the following groups of crimes are distinguished in the sphere of trafficking in products that are unsafe:

The first group of crimes covers the general norms of the Spanish Criminal Code, which establish liability in cases where, as a result of acts committed with unsafe products, there were consequences in the form of death, bodily injury.

The second group of crimes is represented by a group of acts contained in articles 359–366 of Chapter III «On crimes against public health» of Section XVII of the Spanish Criminal Code.

Article 359 of the Criminal Code of Spain establishes criminal liability for «the production of substances harmful to health or chemicals that can cause damage, dispatch, supply, trade in them without a permit» [23] (punishable by imprisonment for a term of six months to three years and a fine of six to twelve months, as well as deprivation of the right to engage in a special profession or trade for a period of six months to two years) or if there is a permit, but without observing the established rules and requirements (Article 360 of the Spanish Criminal Code) [23].

Articles 361 and 362 of the Spanish Criminal Code provide for criminal liability for the following criminal acts: «In the form of production, import, export, supply, sale, placing on the market, storage of medicines without permission, overdue or not meeting technical requirements» [23] (punishment in the form of imprisonment for a period of six months to three years, fine for a period of six to twelve months and deprivation of the right to engage in a special profession or craft for a period of six months to three years) or changes in the quantity, dosage or composition of the drug, which enhance or reduce its effect, the sale of medicines, knowing that they have been changed, provided that the actions pose a danger to the life or health of people (article 362 of the Spanish Criminal Code) [23].

This chapter also contains crimes related to food (articles 363–365 of the Spanish Criminal Code). These are crimes that involve the production or sale of beverages or food intended for public consumption, which are harmful to health or have been ignored the requirements of legislative acts on expiration dates (Article 363 of the Criminal Code of Spain), the modification of food, beverages with additives that can harm human health or in the case of the killing of animals and the use of them meat in the future, if they were fed with prohibited substances capable of harming human health (Article 364 of the Spanish Criminal Code) [23].

As part of the comparative analysis, we note that the Law of the Republic of Belarus No 217-Z of 29 June 2003 «On the quality and safety of food raw materials and food products for human life and health» states that «in case of violation of legislation in the field of quality and safety of food raw materials and food products, the perpetrators are responsible, established by legislative acts» [14].

In our opinion, the Criminal Code of the Republic of Belarus No 275-Z of 09 July 1999 (hereinafter referred to as the Criminal Code of the Republic of Belarus) [24] contains several independent elements of crimes regulating the protection of public health from the turnover of low–quality and non-compliant products. As an example, article 336 of the Criminal Code of the Republic of Belarus («Violation of sanitary-epidemiological, hygienic requirements and procedures established by technical regulations, sanitary norms and rules, hygienic standards») [24], article 337 of the Criminal Code of the Republic of Belarus «Release or sale of substandard products» [24], articles 338–1 and 338–2 of the Criminal Code of the Republic of Belarus in relation to medicines, medical devices [24].

Comparative legal analysis of the legislation of Germany, France, Spain and Italy allows us to come to the conclusion that the experience of the EU countries that have adopted the most effective approaches in terms of ensuring food security, and develop their legislation mobile, responding to constant threats and challenges, is extremely important for the Republic of Belarus and other CIS countries that their legislation was based on the pre-existing system of the USSR.

Nevertheless, in the legislation of the EU countries and the Republic of Belarus there are similar legal definitions, mechanisms for responding to the facts of identifying unsafe products, but a number of distinctive features can also be identified:

Firstly, the creation and existence of a single body, whose competence includes making decisions in the field of providing the population of EU countries with high-quality and safe products, the transfer by EU member States of part of their functions in the field of normative activity for the adoption of directives, regulations extending their direct effect to the territory of EU countries, is a necessary step in resolving issues ensuring the consumption of safe products by the EU population;

Secondly, we can say that an independent branch of food law has been formed within the EU, which has signs of supranational, while this is not mentioned in the Republic of Belarus;

Thirdly, within the EU, Directive No 178/2002 is the fundamental regulatory document. It seems that in the Republic of Belarus, the Law of the Republic of Belarus No 217-Z of 29 June 2003 «On the quality and safety of food raw materials and food products for human life and health» is the main special legislative act of the Republic of Belarus in the field of food safety;

Fourth, the legislators of Germany, France, Spain and Italy have different approaches to determining the range of those acts that should be considered criminal. The peculiarities of the legislation of the EU countries is that the signs of the objective side of criminal acts in the field of encroachments on product safety can be determined both in special regulatory documents in the field of product safety, for example, in Laws, etc., and in the Criminal Code itself. Mainly in most EU countries, responsibility under the Criminal Code comes under general rules providing for liability for causing death, bodily injury, etc., which, in our opinion, may cause some difficulties in the interpretation and application of legal norms. However, in some EU countries, for example, in Spain, there are special rules focused on the sphere of criminal law protection of public health. In the Republic of Belarus, the Criminal Code is the only main source of criminal law, which defines which acts, including those related to encroachments on the health of the population during production and turnover of products, are criminal. The peculiarities are also that in the Republic of Belarus all the previously listed compounds are designed as material, unlike the legislation of the EU countries, where liability can occur in the case of an act that endangers the life and health of the population.

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