Nearly a month ago, due to the growing COVID-19 crisis across EU, Member states began taking decisions in order to safeguard their economies. Unfortunately, not all decisions were adequate and in line with EU rules and regulations. Some of them were rather chaotic and impulsive and as a result legally questionable. One of those decisions for which we already wrote was taken by Bulgaria. According this decision, which was formalized in Bulgarian law, retailers were obliged to offer distinct exposure and sale space for domestic food products, such as milk, fish, fresh meat and eggs, honey, fruits and vegetables, and to purchase 90% of milk and dairy products from domestic producers.
During the public debate held in Bulgaria the association of the retailers and various experts tried to explain that the proposed law is not only in breach of Article 34 of the Treaty on the Functioning of the EU by restricting the free movement of goods but is also in breach of Article 49 of the same treaty by restricting the freedom of retailers to decide on their assortment, on the lay out of their sales surface, and to adapt their supply chain. Despite those warnings the Bulgarian Minister of agriculture, food and forestry pushed the government and it passed this controversial legislation.
European union unites its members on the base of the following fundamental values – respect for human dignity and human rights, freedom, democracy, equality and the rule of law. So, it was no surprise to anyone when on the 14th of May 2020 the European Commission announced that a Letter of formal notice was send to Bulgaria regarding those discriminatory measures imposed on retailers, obliging them to favour domestic food products. With this letter the EC states that in its view Bulgaria has breached the most significant piece of EU legislation – the Treaty on the Functioning of the European Union by restricting two of the Union’s main freedoms – freedom of movement and freedom of establishment. The EC stipulates that “Such restrictions may only be justified by overriding reasons of general interest, such as public health, and must be suitable and necessary for attaining that objective. Due to the extraordinary circumstances due to the coronavirus sanitary situation and the weakening of EU economies, it is an imperative to preserve the free movement of goods and the freedom of establishment. Unjustified obstacles can undermine our collective efforts to keep freight moving freely and efficiently across the EU, and our capacity to fight this unprecedented crisis, in the spirit of European solidarity. Therefore, Bulgaria has one month to reply to the concerns raised by the Commission. Without a satisfactory response, the European Commission may decide to send to Bulgaria a reasoned opinion.”
The Bulgarian Ministry of Agriculture, Food and Forestry responded to this almost immediately. Later the same day the Bulgarian Minister send to the Bulgarian media the following statement which by the way is nowhere to be found on the website of the ministry: “The measure taken does not affect the free movement of goods produced in other countries, as the Decree issued on the basis of the Law on Measures and Actions during the State of Emergency does not provide for a ban and restrictions on the supply of products from EU Member States and third countries. The previous deliveries to the outlets of products imported from other countries and products that can be offered on the market in all outlets in the country are not disturbed in any way. Through the adopted Council of Ministers № 70, urgent measures were taken at a national level, which aim at guaranteed and facilitated access of consumers to the products of regional (local) producers. The actions of the Ministry are aimed at supporting the Bulgarian production, the small and local producers to preserve their livelihood given the quarantined areas, difficult transport connections and the risk of transmission of the infection during transportation. Art. 2 of the adopted Decree determines norms for raw milk and for the supply of dairy products, as the same is in the process of change after coordination with the interested parties. The measures introduced do not distort competition and the internal market, but are to the benefit of the consumer, without prejudice to any rules. They have been adopted in the context of an unprecedented and global health, economic and even trade crisis. The Ministry of Agriculture, Food and Forestry will send a reasoned opinion to the European Commission on the adopted Decree on the provision of regional production in retail chains.”
The outcome of this case is still unclear but we are certain in one thing – crisis or not European Commission should do its most to protect the EU’s fundamental values and the rule of EU law and internal market.
“Although it is too early to measure the effect of this legislation, I fear that the most vulnerable farms, the ones that need the most that access to markets will not benefit at all,” Svetlana Boyanova Chairperson of the Institute for Agrostrategies and Innovations, told to New Europe. “Unfortunately, our image as an EU member state will most likely suffer” added Boyanova. “The reason is that this controversial legislation will most probably give the wrong impression to the European Commission and the other Member states that Bulgaria wants to be part of the European internal market only to receive support from EU agricultural funds, but not to respect the two of the Union’s main freedoms – freedom of movement and freedom of establishment. Additionally after all these debatable measures aiming at preserving the farmers, there are no visible or measurable results showing that they are actually working. So, apart from the “benefits” for the image, it is not clear what all this noise and actions were all about.”
Letter of formal notice https://ec.europa.eu/commission/presscorner/detail/en/inf_20_859