Commission Regulation (EC) No 408/2003 of 5 March 2003 amending Regulation (EC) No 1148/2001 on checks on conformity to the marketing standards applicable to fresh fruit and vegetables
Date: 2003-03-05
Institutions: European Commission
Subjects: Community certification, food inspection, fresh fruit, fresh vegetable, marketing standard, quality label

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COMMISSION REGULATION (EC) No 408/2003

of 5 March 2003

amending Regulation (EC) No 1148/2001 on checks on conformity to the marketing standards
applicable to fresh fruit and vegetables

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 2200/96 of 28
October 1996 on the common organisation of the market in
fruit and vegetables (1), as last amended by Commission Regula-
tion (EC) No 47/2003 (2), and in particular Article 10 thereof,

Whereas:

(1)

(2)

(3)

(4)

(EC) No

Regulation

1148/2001 (3),
Commission
amended by Regulation (EC) No 2379/2001 (4),
lays
down rules for the application of checks on marketing
conformity to standards both for products for consump-
tion on the internal market and for exported products.

It is necessary to clearly establish that traders offering
sufficient guarantees of conformity and therefore bene-
fiting from special provisions at the export stage are not
necessarily only those who packaged the products at the
stage of dispatch. Indeed, some traders, offering such
guarantees, for example wholesalers practising re-export
or re-shipping after self-checking conformity do not
have packing facilities.
for clarification
purposes, the mention ‘Self-check’ shall be added in the
certificate issued at the stage of export when the inspec-
tion body did not itself carry out the physical check of
the goods.

In addition,

It is opportune to concentrate the checks carried out by
Member States at the import stage on lots and consign-
ments presenting the higher risks of non-conformity
with marketing standards. It is desirable to that effect
that Member States establish criteria on which such risks
are to be assessed, together with rules on how checks
may be relaxed where the risks of non-conformity are
low. For the purpose of harmonisation of checking prac-
tices among the Member States, it is opportune that the
Commission establish common guidelines.

Lots accompanied by conformity certificates issued by
third countries
the checks of which are approved
according to Regulation (EC) No 1148/2001 present less
of a risk of non-conformity than lots and consignments
which are not accompanied by such certificates. The
proportion of checks on such lots and consignments
should therefore be substantially lower than for goods
not accompanied by such certificate. It should also be
ensured in this case, given the lower proportion of
checks and the checking costs already generated in the

(1) OJ L 297, 21.11.1996, p. 1.
(2) OJ L 7, 11.1.2003, p. 64.
(3) OJ L 156, 13.6.2001, p. 9.
(4) OJ L 321, 6.12.2001, p. 15.

exporting third countries, that possible fees perceived by
Member States
than fees
perceived under the general import checks scheme and
are proportionate to the checks realised.

to that effect are lower

Additional provisions should be laid down concerning
cases where traders wish to bring goods into conformity
in a Member State other than that in which the goods in
question have been found not to conform and cases
where it
longer possible to bring goods into
conformity.

is not

Numerous packages, pre-printed before 1 January 2002
and still showing the mentions established by Commis-
sion Regulation (EEC) No 2251/92 (5), as last amended
by Regulation (EC) No 766/97 (6), are still available in
the stocks of certain traders. It is opportune to prolong
by six months the period during which these packages
can still be used.

The inspection methods laid down in Annex IV should
be updated,
in particular to take account of practices
specific to nuts and of ways of testing the degree of ripe-
ness of fruit and vegetables.

Regulation (EC) No 1148/2001 shall
amended accordingly.

therefore be

The measures provided for in this Regulation are in
the Management
accordance with the opinion of
Committee for Fresh Fruit and Vegetables,

(5)

(6)

(7)

(8)

(9)

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 1148/2001 is hereby amended as follows:

1. Article 5 is amended as follows:

(a) in paragraph 1, the third subparagraph is deleted;

(b) the following paragraph 1a is inserted:

‘1 bis. Member States may apply the provisions
mentioned in the second subparagraph to traders
fulfilling the following conditions:

(a) they offer sufficient guarantees of a consistent and
high rate of conformity for the fruit and vegetables
which they market;

(b) they have

inspection staff who have

received

training approved by the Member State;

(5) OJ L 219, 4.8.1992, p. 9.
(6) OJ L 112, 29.4.1997, p. 10.

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(c) they undertake to check the conformity of the goods

they market;

(d) they undertake to keep a register recording all the

checks they have carried out.

For these traders, Member States may specify, for each
category of
trader concerned and based on a risk
analysis, the minimum proportion of consignments and
quantities subject to conformity checks by the compe-
tent inspection body at the export stage. This proportion
must be sufficient to ensure compliance with Commu-
nity rules. Where these checks reveal significant irregula-
rities, the inspection bodies shall increase the proportion
of consignments checked in the case of
the traders
concerned.’

(c) in paragraph 2, the following subparagraph is added:

‘Where, according to paragraph 1a, lots concerned by
the certificate of conformity have not been checked by
the competent inspection body at the export stage, the
mention “self-check (Art 5(1a) of Regulation (EC) No
1148/2001” shall be reported in box 13 (Comments) of
the certificate.’

2. Article 6(4) is replaced by the following:

‘4.
Notwithstanding paragraphs 1, 2 and 3, where the
competent inspection body at the point of import considers
that there is a low risk of certain lots not conforming to the
marketing standards, it may choose not to check those lots.
It shall send the customs authority a stamped declaration to
that effect or inform that authority in another manner that
it may carry out clearance procedures.

For the purposes of applying the first subparagraph, the
inspection body shall lay down in advance the criteria for
assessing the risk of lots not conforming and, on the basis
of a risk analysis, for each type of import it has defined, the
minimum proportions of consignments and quantities
which will be subject to a conformity check by the compe-
tent inspection body at the import stage. Any proportion
specified pursuant to this paragraph must in any case be
substantially higher than the ones applied according to
Article 7(5).

In order to improve the uniformity of application
4 bis.
of paragraph 4 in the Member States,
the Commission
elaborates common guidelines for its application. The coor-
dinating authority shall inform the Commission forthwith of
the rules for the application of paragraph 4, including the
criteria and minimum proportions referred to in paragraph
4, second subparagraph and any subsequent amendment to
those rules.’

3. The following subparagraph is added to Article 7(5):

‘If a Member State perceives a fee to cover the costs of the
checks referred to in this paragraph, the level of this fee
shall be such as to reflect the lower proportion of consign-
ments and quantities checked for these checks than for
those mentioned in Article 6.’

4. The following subparagraphs are added to Article 9(3):

‘If an inspection body accepts a trader's wish to bring the
goods into conformity in a Member State other than that
where the check leading to a finding of non-conformity has
been carried out, the Member States shall take any measures
which they deem appropriate, in particular with regard to
cooperation between them, to check that the goods have
been brought into conformity.

Where the goods can neither be brought into conformity
nor sent to animal feed, industrial processing or any other
non-food use, the inspection body may, if necessary, request
traders to take adequate measures in order to ensure that
the products concerned are not marketed.

Traders shall be obliged to supply all information deemed
necessary by the Member States for the application of this
paragraph.’

5. In Article 11(2), the date ‘31 December 2002’ is replaced by

the date ‘30 June 2003’.

6. Annex IV is replaced by the text of the Annex to the present

Regulation.

Article 2

This Regulation shall enter
into force on the third day
following its publication in the Official Journal of the European
Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 5 March 2003.

For the Commission

Franz FISCHLER

Member of the Commission

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ANNEX

‘ANNEX IV

Methods of inspection mentioned in Article 9(1)

Remark: the following methods of inspection are based on the provisions of the guide for the implementation of quality
control of fresh fruit and vegetables adopted by the UN/ECE (United Nations Economic Commission for Europe)
Working Party for standardisation of perishable goods and improvement of quality.

1. DEFINITIONS

(a) Conformity check

Inspection carried out by an inspector in accordance with this Regulation to check that fruit and vegetables
conform to the marketing standards laid down in Regulation (EC) No 2200/96.

This inspection includes:

— where appropriate, an identity and documentary inspection: an inspection of the documents or certificates
accompanying the lot and/or the registers referred to in the third indent of the second subparagraph of Article
4(3) and in Article 5(1a) (d) of Regulation (EC) No 1148/2001, and an inspection of the goods and the parti-
culars in these documents, to check that they match,

— a physical inspection, by means of sampling, of the goods in the lot to ensure that it satisfies all the condi-
tions laid down by the marketing standard, including the provisions on the presentation and marking of
packages and packaging.

(b) Inspector

Person authorised by the competent inspection body who has an appropriate and regular training enabling them
to undertake conformity inspection.

(c) Consignment

Quantity of produce to be sold by a given trader found at the time of control and defined by a document. The
consignment may consist of one or several types of produce: it may contain one or several lots of fresh fruit and
vegetables.

(d) Lot

Quantity of produce which, at the time of control at one place, has similar characteristics with regard to:

— packer and/or dispatcher,

— country of origin,

— nature of produce,

— class of produce,

— size (if the produce is graded according to size),

— variety or commercial type (according to the relevant provisions of the standard),

— type of packaging and presentation.

However, if during the inspection of consignments, it is not possible to distinguish between different lots and/or
presentation of individual lots is not possible, all lots of a specific consignment may be treated as one lot if they
are similar in regard to type of produce, dispatcher, country of origin, class and variety or commercial type, if this
is provided for in the standard.

(e) Sampling

Collective sample taken temporarily from a lot during conformity check inspection.

(f) Primary sample

Package taken from the lot, or in the case of bulk produce, a quantity taken from a point in the lot.

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(g) Bulk sample

Several representative primary samples taken from the lot whose quantity is sufficient to allow the assessment of
the lot with regard to all criteria.

(h) Secondary sample

In the case of nuts, a secondary sample shall be a representative quantity of product taken from each primary
sample in the bulk sample, weighing between 300 g and 1 kg. If the primary sample is made up of packaged
foods, the secondary sample shall be one package.

(i) Composite sample

In the case of nuts a composite sample shall be a mix, weighing at least 3 kg, of all the secondary samples in a
bulk sample. Nuts in the composite sample must be evenly mixed.

(j) Reduced samples

Representative quantity of produce taken from the bulk sample whose size is sufficient to allow the assessment of
certain individual criteria. In the case of nuts, the reduced sample shall include at least 100 nuts taken from the
composite sample. Several reduced samples may be taken from a bulk sample.

(k) Packages

Individually packaged part of a lot, including contents. The packaging is conceived so as to facilitate handling and
transport of a number of sales units or of products loose or arranged, in order to prevent damage by physical
handling and transport. Road, rail, ship and air containers are not considered as packages. In some cases, the
package constitutes a sales package.

(l) Sales packages

Individually packaged part of a lot, including contents. The packaging of sales packages is conceived so as to
constitute a sales unit to the final user or consumer at the point of purchase. Among sales packages, pre-packages
are such as the packaging encloses the foodstuff completely or only partially, but in such a way that the contents
cannot be altered without opening or changing the packaging.

2. IMPLEMENTATION OF CONFORMITY CHECK

(a) General remark

A physical check shall be made by assessing bulk samples taken at random from different points in the lot to be
controlled. It is based on the principle of presumption that the lot conforms to the bulk sample.

(b) Identification of lots and/or getting a general impression of the consignment

The identification of lots shall be carried out on the basis of their marking or other criteria, such as the indica-
tions laid down under Council Directive 89/396/EEC (1). In the case of consignments which are made up of
several lots it is necessary for the inspector to get a general impression of the consignment with the aid of accom-
panying documents or declarations concerning the consignments. He then determines how far the lots presented
comply with the information in these documents.

If the produce is to be or has been loaded onto a means of transport, the registration number of the latter shall
be used for identification of the consignment.

(c) Presentation of produce

The inspector decides which packages are to be controlled. The presentation shall be made by the operator or his
representative. The procedure should include the presentation of the bulk sample.

If reduced or secondary samples are required, these are identified by the inspector himself from the bulk sample.

(1) OJ L 186, 30.6.1989, p. 21.

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(d) Physical check

— Assessment of packaging and presentation on the basis of primary samples:

The packaging, including the material used within the package, shall be tested for suitability and cleanness
according to the provisions of the marketing standards. If only certain types of packaging are permitted, the
inspector checks whether these are being used.

— Verification of marking on the basis of primary samples:

first, it is ascertained whether the produce is marked according to the marketing standards. During control a
check is made on the accuracy of marking and/or the extent of amendment required.

Fruit and vegetables individually wrapped in plastic are not considered as pre-packed foodstuff in the meaning
of European Parliament and Council Directive 2000/13/EC (1) and do not necessarily need to be marked in
accordance with the marketing standards. In such cases, the plastic wrapping can be considered a simple
protection for fragile products.

— Verification of conformity of the produce using bulk sampling or composite and/or reduced sampling:

The inspector shall determine the size of the bulk sample in such way as to be able to assess the lots. He shall
at random select the packages to be inspected or in the case of bulk produce the points of the lot from which
individual samples shall be taken.

Damaged packages shall not be used as part of the bulk sample. They should be set-aside and may, if neces-
sary, be subject to a separate examination and report.

The bulk sample should comprise the following quantities whenever a consignment is declared unsatisfactory:

Packed produce

Number of packages in the lot

Number of packages to be taken
(primary samples)

Up to 100

From 101 to 300

From 301 to 500

From 501 to 1 000

More than 1 000

5

7

9

10

15 (minimum)

Bulk produce

Quantity of lot in kg or number of bundles in the lot

Quantity of primary samples in kg or number of bundles

Up to 200

From 201 to 500

From 501 to 1 000

From 1 001 to 5 000

More than 5 000

10

20

30

60

100 (minimum)

In the case of bulky fruit and vegetables (over 2 kg per unit), the primary samples should be made up of at
least five units. In the case of lots comprising fewer than 5 packages or weighing less than 10 kg, the check
shall cover the entire lot.

If the inspector discovers, after an inspection, that a decision cannot be reached, he may carry out another
inspection and express the overall result as an average of the two checks.

Certain criteria on the degree of development and/or ripeness or on the presence or absence of internal
defects may be checked on the basis of reduced samples; this applies in particular to control which destroys
the trade value of the produce. The size of the reduced sample shall be restricted to the minimum quantity
absolutely necessary for the assessment of the lot. If, however, defects are ascertained or suspected the size of
the reduced sample shall not exceed 10 per cent of the size of the bulk sample initially taken for the inspec-
tion.

(1) OJ L 109, 6.5.2000, p. 29.

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(e) Control of produce

The produce has to be removed entirely from its packaging for the control; the inspector may only dispense with
this in the case of nuts or if the type of packaging and form of presentation allow an inspection without
unpacking the produce. The inspection of uniformity, minimum requirements, quality classes and size shall be
carried out on the basis of the bulk sample, or on the basis of the composite sample in the case of nuts. When
defects are detected, the inspector shall ascertain the respective percentage of the produce not in conformity with
the standard by number or weight.

The criteria on the degree of development and/or ripeness can be checked using the instruments and methods laid
down to this end in the marketing standards or in accordance with accepted practice.

(f) Report of control results

Documents mentioned in Article 9 are issued where appropriate.

If defects are found, the trader or his representative must be informed in writing about the reasons fur complaint.
If the compliance of produce with the standard is possible by a change in marking, the trader or his representa-
tive must be informed about it.

If defects are found in a product, the percentage found not to be in conformity with the standard must be indi-
cated.

(g) Decline in value by conformity check

After the control, the bulk sample is put at the disposal of the operator or his representative.

The inspection body is not bound to hand back the elements of the bulk sample destroyed during the control.’