Bulgaria: Is This Chicken That I Have, Or Is This Fish?*

Why this confusion?

The Bulgarian Ordinance on the qualification, storage and marketing of poultry meat (the Ordinance) was amended in January 2013 (the Amendment). Long before the latter came into force, the bill had become a media star: unusual for a legislative act. It had unlocked hysteria about the "water in the chicken meat", which ensured endless discussions in prime time and triggered society's interest, which it kept for a long time.

The Amendment introduced a requirement that the total water content in poultry meat preparations and products meet the requirements for total water content in fresh poultry meat. It also banned the manufacture of poultry meat preparations through spraying or tumbling and introduced a proscription on the use of humectants and hydrocolloids as food additives. Lastly, the Amendment provided new definitions of "poultry meat preparation" and "poultry meat product" that conflicted with EU legislation.

Was it necessary?

Before the Amendment, the law envisaged that manufacturers would include on the label of their products information about whether the meat had undergone any processing (eg, spraying or tumbling) and therefore label such products as "meat preparation/product" if so processed or "fresh poultry meat". The law also guaranteed the consumers’ right to obtain information on whether the product contained humectants, hydrocolloids, added water or vegetable proteins.

In other words, before the Amendment, there was no gap in the Bulgarian legislation on the classification of chicken meat, and there were clear requirements on the labelling of the ingredients and quantity of the added water. So the law was clear and the official control was actively monitoring its compliance.

Then why was the Amendment adopted? The answer came from the Bulgarian Supreme Administrative Court (SAC).
In early 2013, the SAC was approached with a complaint that sought to have the Amendment repealed as contradictory to European legislation of higher rank, for lack of notification according to Directive 98/34/EC² and for non-conformity with the case law of the European Court of Justice.

The SAC in two instances (eight judges were involved) held that "[the contested provisions fall within the scope of Article 10 paragraph 1, first item, of Directive 98/34/EC]" and that "[the fact that under Regulation 1129/2011³ certain additives are permitted to be used does not mean that the Member States are prevented from introducing national provisions to limit their use]". In general, the SAC stated that the Amendment was completely in line with the applicable European and Bulgarian legislation and the procedure rules of its adoption, and that the contested legislative act actually aimed to "[protect the interests and health of the consumers.]"

In parallel with the judicial review before the SAC, a signal about the existence of a discrepancy between the fully harmonised Community food law and the Amendment was sent to the European Commission.

The Commission examined the signal and held that it was justified. It started an EU Pilot procedure against Bulgaria and sent an official statement in which it asserted that:

• the Bulgarian authorities had not fulfilled their obligations under Art. 8 of Directive 98/34/EC;
• the use of humectants and hydrocolloids could not be limited by national measures according to Regulation 1333/2008⁴;
• there were no prohibitions for the use of humectants in the poultry meat products, according to Regulation 853/2004⁵;
• the definitions differed from the harmonised definitions, laid down in Regulation 1308/2013⁶; and
• EU hygiene rules did not prohibit the manufacture of poultry meat products through spraying or tumbling.

The EC requested a timetable for the actions the Bulgarian authorities will undertake to bring the local legislation into line with EU law. So in early May 2014, the Ministry of Agriculture and Foods prepared a new bill. With its adoption at the beginning of August 2014, the Bulgarian authorities managed to avoid the risk of the European Commission imposing sanctions on Bulgaria, which would eventually be charged to the … consumers in their capacity as taxpayers.

What is the outcome a year later?

In general, so far in Bulgaria an effective protection against legislative acts that violate EU law is possible only through a procedure before the European Commission. If the signal to the Commission is structured properly, the Commission responds within the same time frames in which the Bulgarian SAC issues its final decisions. However, since the reaction of the Commission is based on established Community law and the practice of the European Court of Justice, it is more predictable than the decisions of the SAC.

An effective protection in Bulgaria against legislative acts that violate EU law is possible only through a procedure before the European Commission.

^*Jessica Simpson's quote.
²Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations.
³Commission Regulation (EU) No 1129/2011 amending Annex II to Regulation (EC) No 1333/2008 on food additives.
⁴Regulation (EC) No 1333/2008 of the European Parliament and of the Council on food additives.
⁵Regulation (EC) No 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin.
⁶Regulation (EU) No 1308/2013 of the European Parliament and of the Council establishing a common organization of the markets in agricultural products.

author: Elena Todorova