The European Commission’s Directorate-General for Health and Food Safety (EC’s DG SANTE) recently published a report on the effectiveness of EU Member States’ strategic approaches for fighting food fraud, which informed a guidance document published by EC Joint Research Center (JRC) that supports Member State efforts in this area.
The DG SANTE report summarizes the findings of a survey and pilot studies carried out between 2020 and 2022, with the aim of collecting information on the suitability and effective implementation of national arrangements to fight fraud along the agrifood chain in accordance with EU Regulation 2017/625 Article 9(2). The regulation requires Member States to organize proactive, risk-based controls to identify and combat fraudulent and deceptive practices along the agrifood chain, going beyond traditional official controls that exist only to verify compliance with food and feed safety law.
The findings of the project revealed several challenges that Member States still face when preparing and implementing Article 9(2), specifically:
- The lack of a clear definition for the term “fraudulent and deceptive practices” at the EU and national levels
- The complexity of planning risk-based Article 9(2) controls
- The resources required, or the nonexistence of resources, for food fraud-related control methods in some cases
- The need for intensified cooperation across enforcement authorities and control areas.
DG SANTE also found that, in general, where controls existed, they were more advanced in the food and food safety control area than in other controls areas referred to in the regulation, and none of the Member States had implemented the provisions of Article 9(2) across all control areas. However, the controls already in place clearly demonstrated that a risk-based approach for detecting fraudulent and deceptive practices can be successfully implemented. The project also concluded that risk-based planned Article 9(2) controls and targeted investigations based on intelligence are both suitable, complimentary strategies to fight fraudulent and deceptive practices. While some Member States focused more on an intelligence-based approach, other Member States prioritized Article 9(2) controls.
Although the activities of the EU Agency for Law Enforcement Cooperation (Europol) and EU-coordinated actions and programs do not constitute Article 9(2) controls (as they are not carried out regularly with a set frequency), such control campaigns can help Member States to gain experience in the fight against fraudulent and deceptive practices.
Article 9(2) controls require a planned targeted approach that is facilitated by the availability of suitable data, effective data analysis tools, and the availability of control methods that are accepted by the courts. Control data, including past records of operators and information collected during control campaigns, as well as information shared through the mechanisms of administrative assistance provided for in Articles 102–108 of the Regulation, can serve as data sources for the planning of Article 9(2) controls, which should be complemented by media-screening and horizon-scanning for the identification of emerging risks.
DG SANTE found that training of all control staff is needed to raise awareness of fraudulent practices, assist staff in detecting fraud, and ensure that control staff know what steps need to be taken when a suspicion of fraud arises. In addition, inspectors charged with Article 9(2) controls may require specific training to ensure that the controls are performed effectively.
In most cases the fight against fraudulent and deceptive practices requires close cooperation between different enforcement authorities, including the competent authorities and other law enforcement authorities (police, customs, tax authorities, and prosecution services), to exchange intelligence and experience and to coordinate actions. DG SANTE concluded that having access to specialized food fraud investigation teams of the competent authorities or the police, as well as prosecutors dedicated to agrifood fraud related cases, is an advantage that can help make the fight against fraudulent and deceptive practices more effective.
Although all Member States make use of the EU alert and cooperation network (ACN), which allows authorities to share information or request support from the authorities in another Member State through the IT Rapid Alert System for Food and Feed (iRASFF), DG SANTE found that, in some cases, there were significant delays with replies to other Member States. In other cases, the use of alternative communication channels meant the outcome of investigations were not recorded in iRASFF, leading to a reduced effectiveness of the network.
Feedback from the national courts and the prosecutors on the outcome of the cases was shown to be of high importance in order to allow enforcement authorities to improve and target their controls and investigations. DG SANTE also concluded that all Member States facilitate the reporting of noncompliance (e.g., complaints made by citizens or businesses), as well as follow up with whistleblower information like anonymous tip-offs, when sufficient information is provided to warrant investigations.
Finally, DG SANTE observed that, in most Member States, penalties and sanctions are at the discretion of the courts within the framework of the national legislation. This does not always ensure that the economic gain obtained by the operator through the fraudulent and deceptive practices is sufficiently taken into consideration when imposing penalties. Only two Member States included in the pilot and fact-finding study—Germany and Sweden—have measures in place to ensure financial penalties are sufficiently deterrent.
Based on the findings of DG SANTE, the JRC guidance document includes information on the scope of Article 9(2) of Regulation 2017/625, defining “fraudulent or deceptive practices” as used in Article 9(2) as, essentially, the same as a “fraud notification” within iRASFF. Specifically, this includes “a noncompliance notification in iRASFF concerning suspected intentional action by businesses or individuals for the purpose of deceiving purchasers and gaining undue advantage therefrom, in violation of the rules referred to in Article 1(2) of Regulation (EU) 2017/625.” The guidance also covers how a noncompliance should be categorized if intent is not evident, how to approach fraud within the agrifood chain, and how to design a “proactive, structured and targeted” strategy.
Examples for how key elements of control arrangements for the implementation of Article 9(2) are described in the guidance, specifically for cooperation, risk-based planning, official control, investigation and follow up, training, and awareness-raising activities.