Proposal for a Regulation of the European Parliament and of the Council amending Regulation No 11 concerning the abolition of discrimination in transport rates and conditions, in implementation of Article 79 (3) of the Treaty establishing the European Economic Community and Regulation (EC) No 852/2004 of the European Parliament and the Council on the hygiene of foodstuffs {SEC(2007) 301} {SEC(2007) 302} {SEC(2007) 303} {SEC(2007) 304}
Date: 2007-03-06
Institutions: European Commission
Subjects: administrative formalities, agri-foodstuffs, food inspection, micro-enterprise, simplification of legislation, transport company

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 6.3.2007 
COM(2007) 90 final 

2007/0037 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation No 11 concerning the abolition of discrimination in transport rates 
and conditions, in implementation of Article 79(3) of the Treaty establishing the 
European Economic Community and Regulation (EC) No 852/2004 of the European 
Parliament and the Council on the hygiene of foodstuffs 

{SEC(2007) 301} 
{SEC(2007) 302} 
{SEC(2007) 303} 
{SEC(2007) 304} 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

A  large  part  of  EC  legislation  was  introduced  to  correct  market  failures  and  ensure  a  level 
playing field. These goals could often only be achieved by imposing obligations on businesses 
to provide information and report on the application of the legislation. 

With  time,  some  of  these  procedures  have  become  needlessly  time-consuming  or  obsolete. 
These  unnecessary  administrative  burdens  hamper  economic  activity  and  have  a  negative 
impact on the competitiveness of European enterprises. 

The Commission is committed to reducing these unnecessary burdens to the maximum extent 
possible.  This  is  a  part  of  the  Better  Regulation  strategy  and  it  is  of  vital  importance  for 
achieving our "Lisbon" targets of more growth and jobs. 

•  General context 

On 14 November 2006, the Commission presented a Strategic Review of Better Regulation in 
the  European  Union  (COM(2006) 689),  including  a  proposal  for  a  target  to  reduce  the 
administrative burdens on businesses by 25% by 2012. 

Ten  concrete  proposals  for  "fast  track  action"  were  thereupon  identified  the  Action 
Programme for reducing administrative burdens in the EU (COM(2007) 23), based on broad 
stakeholder consultation and suggestions from Member States and Commission experts. The 
"fast track actions" aim at significantly reducing administrative burdens on businesses through 
minor legislative changes without challenging the level of protection or the original purpose 
of the legislation. 

One of these "fast track action" proposals concerns Regulation No 11 concerning the abolition 
of discrimination in transport rates and conditions, in implementation of Article 79(3) of the 
Treaty  establishing  the  European  Economic  Community.  It  is  envisaged  to  delete  outdated 
requirements  and  to  modify  certain  requirements  in  order  to  minimise  the  administrative 
burdens on businesses. Article 5 notably requested transport undertakings (as well as Member 
States'  governments)  to  provide  information  on  transport  tariffs,  rates  and  conditions  before 
1 July  1961.  This  Article  can  be  deleted  since  the  information  requirements  imposed  on 
transport  undertakings  are  outdated.  Article  6(1)  of  the  Regulation  requires  a  transport 
document containing several information elements concerning the consignor, the nature of the 
goods carried, the place of origin and destination of the goods as well as the route to be taken 
or distance to be travelled, including frontier crossing points where appropriate. Since these 
latter elements i.e. the route to be taken or distance to be travelled and frontier crossing points 
where  appropriate  are  no  longer  indispensable  to  achieve  the  objectives  of  the  Regulation, 
they can be deleted. The third sentence of Article 6(2) of the Regulation requires the carrier to 
retain  a  copy  showing  the  full  and  final  transport  charges  and  any  other  charges  and  any 
rebates  or  other  factors  affecting  the  transport  rates  and  conditions.  This  sentence  can  be 
deleted as nowadays, this information is available in the carriers' accounting systems anyway, 
so  there  is  no  need  for  the  carriers  to  fill  out  and  keep  a  separate  document  anymore. 
Article 6(3)  shall  contain  an  explicit  reference  to  consignment  notes,  which  are  very  well-

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known and often used in the inland transport sector. This reference improves legal certainty 
for transport undertakings as it clarifies that these consignment notes, if containing all details 
required by paragraph 1 of Article 6, suffice. 

Another  "fast  track  action"  relates  to  Regulation  (EC)  No  852/2004  of  the  European 
Parliament and the Council on the hygiene of foodstuffs. The purpose is to exempt small food 
businesses  able  to  control  food  hygiene  simply  by  implementing  the  other  requirements  of 
Regulation  (EC)  852/2004  from  the  requirement  to  putting  in  place,  implementing  and 
maintaining  a  permanent  procedure  or  procedures  based  on  the  hazard  analysis  and  critical 
control  points  ("HACCP")  principles.  This  exemption  applies  to  micro-enterprises1  that  are 
predominantly selling food directly to the final consumer. These enterprises have less than ten 
employees  and  have  an  annual  turnover  or  annual  balance  sheet  total  that  does  not  exceed 
2 million EUR. The exemption would therefore not apply to large surface supermarkets and 
franchisers of supermarket chains. 

•  Existing provisions in the area of the proposal 

The existing provisions that this proposal seeks to modify are Articles 5 and 6 of Regulation 
No  11  concerning  the  abolition  of  discrimination  in  transport  rates  and  conditions,  in 
implementation  of  Article  79(3)  of  the  Treaty  establishing  the  European  Economic 
Community and Article 5 of Regulation (EC) No 852/2004 of the European Parliament and 
the Council on the hygiene of foodstuffs. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Consultation methods 

In  the  Action  Programme  of  24  January  2007,  the  Commission  presented  ten  concrete 
proposals for "fast track actions". These proposals were based on consultations with experts 
and  in  particular  on  a  pilot  project  comparing  the  baseline  measurements  of  administrative 
burdens in the Czech Republic, Denmark, The Netherlands and the United Kingdom in 2006. 

One of these "fast-track actions" concerned the transport sector and proposed to "ease certain 
obligations  to  provide  transport  statistics".  Regulation  No  11  concerning  the  abolition  of 
discrimination  in  transport  rates  and  conditions,  in  implementation  of  Article  79(3)  of  the 
Treaty  establishing  the  European  Economic  Community  requires  transporters  to  carry  a 
transport document stating inter alia distances, routes and frontier crossing points. 

Another  "fast  track  action"  concerned  food  hygiene,  proposing  to  "exempt  small  businesses 
from certain HACCP (hazard analysis and critical control points) requirements". Article 5 of 
Regulation  (EC)  No  852/2004  requires  that  all  food  business  operators  put  in  place, 
implement and maintain a procedure based on the HACCP (Hazard Analysis Critical Control 
Point) principles. 

1 

As  within  the  meaning  of  Commission  Recommendation  2003/361/EC  concerning  the  definition  of 
micro, small and medium-sized enterprises of 6 May 2003, C(2003) 1422 OJ L 124/36. 

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Summary of responses  

Experts and industry have expressed concern that these requirements from 1960 in Regulation 
No 11 are outdated in the highly liberalised transport sector. Certain articles are found to be 
obsolete while others impose unnecessary burdens on businesses. 

Representatives  of  small  businesses  have  expressed  worries  with  regard  to  the  general 
implementation  of  the  HACCP  system  in  all  food  businesses.  In  spite  of  the  flexibility  that 
was  introduced  in  the  Regulation,  clarification  was  requested.  The  Commission  has  held  a 
series  of  meetings  with  experts  from  the  Member  States.  In  addition,  and  in  the  interest  of 
transparency,  the  Commission  has  promoted  discussion  with  stakeholders  so  as  to  allow 
different  socio-economic  interests  to  express  an  opinion.  To  this  end,  a  meeting  with 
representatives from producers, industry, commerce and consumers was organised to discuss 
issues related to the implementation of HACCP based procedures and to HACCP flexibility. 
The results of these discussions are laid down in a guidance document that was endorsed by 
the Standing Committee of the Food Chain and Animal Health and published at:  

http://ec.europa.eu/food/food/biosafety/hygienelegislation/guidance_doc_haccp_en.pdf  

Due to the significant impact on SMEs that a strict application of the HACCP requirements 
would  lead  to  and  the  fact  that  some  businesses  can  provide  the  same  level  of  hygienic 
protection  by  implementing  all  the  other  requirements  of  Regulation  (EC)  No  852/2004, 
without  there  being  a  need  to  implement  fully  fledged  HACCP  procedures  and  despite  a 
guidance  document  explaining  the  extent  to  which  flexibility  can  be  applied  with  regard  to 
HACCP,  there  is  a  need  for  an  exemption  for  some  enterprises  from  all  the  HACCP 
requirements.  It  must  be  considered  however  that  an  exemption  should  not  apply  to 
businesses reaching a wide public. The exemption should therefore be limited to businesses 
with  fewer  than  10  employees  which  can  be  classified  as  micro-enterprises  within  the 
meaning  of  Commission  Recommendation  2003/361/EC  of  6  May  2003  concerning  the 
definition of micro, small and medium-sized enterprises.  

•  Impact assessment 

The impact assessment concerning Regulation No 11 considered two options: 

Option 1 

No-Policy Change.  

Option 2 
Abolishing the obligation to provide information on routes, distances, rates and 
other transport conditions, and allowing the use of consignment notes to provide information 
on the remaining requirements related to the current transport document. 

Option  2  was  the  preferred  option  because  it  provides  for  a  reduction  of  unnecessary 
administrative burdens while the same level of essential information continues to be available.  

The impact assessment concerning Regulation (EC) No 852/2004 considered three options:  

Option 1 

No-Policy Change.  

Option 2 

Exempting certain businesses from the HACCP requirements.  

Option 3 

Abolition of HACCP procedures for all businesses.  

Option  2  was  the  preferred  option  because  it  provided  a  sound  balance  between  reducing 
administrative burdens on businesses while maintaining a high level of consumer protection. 

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3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The  aim  of  the  action  regarding  Regulation  No  11  is  to  reduce  administrative  burdens  for 
transport enterprises by removing outdated documentation requirements regarding the route to 
be taken, distance to be travelled, frontier crossing points etc.  

The  actions  concerning  HACCP  requirements  aims  at  introducing  an  amendment  to 
Regulation (EC) No 852/2004 excluding micro-enterprises from the requirement to putting in 
place,  implementing  and  maintaining  a  permanent  procedure  or  procedures  based  on  the 
HACCP  principles.  This  exemption  applies  to  businesses  with  less  than  ten  employees  that 
are predominantly selling food directly to the final consumer. 

•  Legal basis 

The legal base of Community action in the area of Transport is laid down in Article 75 EC 
Treaty, and the legal base of Community action in the area of Food hygiene is laid down in 
Article 95 and 152 (4) (b) EC Treaty.  

•  Subsidiarity principle 

Action by the Member States would not suffice to reduce administrative burdens in these areas 
as the information requirements were imposed for transport enterprises and food businesses by 
way of EC Regulations. A reduction can therefore only be achieved by way of modifications 
of the Regulations concerned at European Union level. 

EU  action  will  ensure  that  all  European  transport  enterprises  and  food  businesses  concerned 
can benefit from these administrative burdens reductions. 

The proposal therefore complies with the subsidiarity principle. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reason(s). 

The goal of reducing administrative burdens caused by the information requirements imposed 
by  Regulation  No  11  and  Regulation  (EC)  No  852/2004  can  only  be  reached  by  modifying 
these  Regulations,  which  can  only  be  done  by  way  of  a  binding  EC  legal  instrument  of  the 
same level, a Regulation. This is in line with the proportionality principle contained in Article 
5 EC Treaty. 

This  proposal  ensures  that  the  administrative  burdens  falling  upon  transport  enterprises  and 
small food businesses caused by the information requirements contained in Regulations No 11 
and (EC) No 852/2004 are minimized. 

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•  Choice of instruments 

Proposed instruments: Regulation. 

Other means would not be adequate for the following reason(s). 

The  objective  of  reducing  administrative  burdens  caused  by  the  information  requirements 
imposed  by  Regulation  No  11  and  Regulation  (EC)  No  852/2004  can  only  be  reached  by 
modifying  these  Regulations,  which  can  only  be  done  by  way  of  a  binding  EC  legal 
instrument of the same type and level, a Regulation. 

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5. 

ADDITIONAL INFORMATION 

•  Simplification 

The proposal provides for simplification of administrative procedures for private parties. 

The administrative procedure to be followed by transport enterprises will be simplified in the 
sense that some documentation requirements that are not absolutely indispensable regarding 
the route to be taken, distance to be travelled, and frontier crossing points will be removed. 
The administrative procedures for small food businesses able to control food hygiene simply 
by implementing the other requirements of Regulation (EC) No 852/2004 will be simplified 
as micro-enterprises predominantly selling food directly to consumers will be exempted from 
the requirement to put in place, implement and maintain a permanent procedure or procedures 
based on the HACCP principles.  

•  European Economic Area 

The  proposed  act  concerns  an  EEA  matter  and  should  therefore  extend  to  the  European 
Economic Area. 

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2007/0037 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation No 11 concerning the abolition of discrimination in transport rates 
and conditions, in implementation of Article 79(3) of the Treaty establishing the 
European Economic Community and Regulation (EC) No 852/2004 of the European 
Parliament and the Council on the hygiene of foodstuffs 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article 75(3), Article 95 and Article 152(4)(b) thereof, 

Having regard to the proposal from the Commission2, 

Having regard to the opinion of the European Economic and Social Committee3, 

Having regard to the opinion of the Committee of the Regions4, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty5, 

Whereas: 

(1) 

Community policies on Better Regulation, in particular the Communication from the 
Commission  to  the  Council,  the  European  Parliament,  the  European  Economic  and 
Social  Committee  and  the  Committee  of  the  Regions:  "A  strategic  review  of  Better 
Regulation in the European Union"6 and the Communication from the Commission to 
the Council, the European Parliament, the European Economic and Social Committee 
and the Committee of the Regions: "Action Programme for Reducing Administrative 
Burdens in the European Union"7, stress the importance of reducing the administrative 
burdens  imposed  on  enterprises  by  existing  legislation  as  a  crucial  element  for 
improving  their  competitiveness  and  for  achieving  the  objectives  of  the  Lisbon 
agenda. 

2 
3 
4 
5 
6 
7 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
COM(2006) 689. 
COM(2007) 23. 

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(2) 

(3) 

(4) 

(5) 

(6) 

The Community rules required under Article 75 of the EC Treaty in order to abolish 
certain  forms  of  discrimination,  as  regards  inland  transport  within  the  Community, 
have been laid down in Regulation No 118. In the interest of reducing administrative 
burdens on businesses that Regulation should be simplified by removing outdated and 
unnecessary  requirements  in  particular,  the  requirement  to  retain  on  paper  certain 
information which, on account of technical progress, is now available in the carriers' 
accounting systems. 

Article 5(1) of Regulation (EC) No 852/20049 requires that all food business operators 
put  in  place,  implement  and  maintain  a  procedure  based  on  the  Hazard  Analysis 
Critical Control Point (HACCP) principles. 

Experience has shown that in certain food businesses, food hygiene can be ensured by 
the correct implementation of the food hygiene requirements laid down in Regulation 
(EC)  No  852/2004  without  having  recourse  to  the  HACCP  system.  The  businesses 
concerned  are  in  particular  small  businesses  predominantly  selling  their  products 
directly to the final consumer, such as bakeries, butchers, grocery shops, market stalls, 
restaurants, and bars, , which are micro-enterprises within the meaning of Commission 
Recommendation  2003/361/EC  of  6  May  2003  concerning  the  definition  of  micro, 
small and medium-sized enterprises10.  

It  is  appropriate  therefore  to  provide  an  exemption  to  those  businesses  from  the 
requirement of Article 5(1) of Regulation (EC) No 852/2004, it being understood that 
they must comply with all the other requirements of that Regulation.  

As  the  amendment  of  Regulation  (EC)  No  852/2004  and  that  of  Regulation  No  11 
have  the  common  aim  of  reducing  administrative  burdens  on  businesses,  without 
changing  the  underlying  purpose  of  those  Regulations,  it  is  appropriate  to  combine 
these amendments in a single Regulation  

HAVE ADOPTED THIS REGULATION: 

Article 1 

Regulation No 11 is amended as follows: 

(1) 

(2) 

Article 5 is deleted. 

Article 6 is amended as follows: 

(a) In paragraph 1 the fifth and sixth indents are deleted; 

(b) In paragraph 2, the third sentence is deleted. 

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10 

OJ P 52, 16.8.1960, p. 1121. Regulation as last amended by Regulation (EEC) No 3626/84 (OJ L 335, 
22.12.1984, p. 4). 
OJ L 139, 30.4.2004, p. 1; corrected version in OJ L 226, 25.6.2004, p. 3. 
OJ L 124, 20.5.2003, p. 36. 

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(c) Paragraph 3 is replaced by the following: 

"3.  Where  existing  documents  such  as  consignment  notes  or  any  other  transport 
document  give  all  the  details  specified  in  paragraph  1  and,  in  conjunction  with 
carriers’  recording  and  accounting  systems,  enable  a  full  check  to  be  made  of 
transport  rates  and  conditions,  so  that  the  forms  of  discrimination  referred  to  in 
Article 75(1) of the Treaty may be thereby abolished or avoided, carriers shall not be 
required to introduce new documents." 

Article 2 

In Article 5(3) of Regulation (EC) No 852/2004, the following sentence is added: 

"Without prejudice to the other requirements of this Regulation, paragraph 1 shall not apply to 
businesses which are micro-enterprises within the meaning of Commission Recommendation 
2003/361/EC of 6 May 200311 and the activities of which consist predominantly in the direct 
sale of food to the final consumer." 

Article 3 

This Regulation shall enter into force on the twentieth day following that of 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,  

For the European Parliament 
The President 

For the Council 
The President 

11 

OJ L 124, 20.5.2003, p. 36. 

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