Dual food quality: a recipe for east-west EU friction

The implied accusation – that food companies were discriminating against some EU citizens – put the European Commission in a tough spot last year. Internal commission documents, made public at the request of EUobserver, show that the commission's various directorates-general had different thoughts about how to tackle the issue – or even the extent of the problem.

In March 2017, it was not yet a given that the commission would get involved at all. At a meeting in Brussels on 8 March 2017, EU commissioners were discussing the summit that would take place later that week. Justice commissioner Vera Jourova mentioned that the dual food quality issue was likely to come up at the summit, according to minutes of that meeting.

"She noted at the outset that this was not an issue relating to the safety of foodstuffs and other products, nor was it solely about their price and quality; it concerned the perception by consumers in the member states involved that they were not being treated equally," the minutes state.

No impossible promises

Commission president Jean-Claude Juncker agreed with Jourova's remark that the commission should not make any promises it was unable to keep. "The president felt that, even though this problem was perceived as real in some member states, it did not fall within the competence of the commission," said the minutes, adding that the commission "was not in a position to deliver results".

Two weeks later, the commission held an in-house meeting with participants from five directorates-general. Minutes from that meeting showed that at least one participant warned against the commission promising to launch any study into the issue.

"The process would be too long and the sample used would be too small to be representative of the situation on the market," the internal document said. The paper also noted, however, that it "would be good to show that this was not an 'East vs West' problem".

East vs West?

On 4 April 2017, there was a meeting between commission official Eduard Hulicius – a member of Jourova's cabinet – and the European Brands Association (AIM). The lobby group told Hulicius that differences in food products were normal, because of differing raw materials as well as varying tastes. AIM also noted that it was not "an East vs West issue", because the while the share of fish in fish fingers in Slovakia (58 percent) was lower than in Austria, it was the same as in the Netherlands, Poland, and the UK.

Around the same time, member states replied to a commission questionnaire about dual food quality. Not only western European states like Germany and France reported that they had never received complaints, but neither did Slovenia, Estonia, or Malta.

Nevertheless, in the summer of 2017, some of the EU member states that were suspicious of being treated differently, lobbied commission president Jean-Claude Juncker to view the issue as a pan-EU problem. Successfully.

After a meeting with then Slovak prime minister Robert Fico, at the end of July 2017, Juncker came out in defence of Slovak consumers, saying they have the right to have the same quality of products.

"I don't like the idea that there would be some kind of second-category citizens in Europe, so we are working on that," Juncker said.

What does 'dual quality' mean?

Since there was no appetite for new legislation, the commission opted to write a 'guidance note' – a non-binding paper – to explain how EU law can be used to tackle potential instances of unfair commercial practices. The paper came out in September 2017, but only after an initial draft was substantially amended.

The directorate-general for competition (DG COMP) said in a response to a draft version of the 'guidance note' that quality has different meanings to citizens. Taste is subjective: Some would say that more alcohol or sugar in a product means it has a higher quality, while others would argue the opposite. "DG COMP has not received evidence about the products for which there are complaints of 'dual-quality'. DG COMP therefore does not understand fully what is meant by 'dual quality' (…)," said the contribution of the anti-trust department.

The secretariat-general meanwhile took to rewriting whole parts of the draft, which had been prepared by the directorate-general for justice and consumers. A high-level civil servant of the secretariat-general wrote that the political context should be made more prominent – and in the final document, it was.

And despite earlier warnings not to commit to doing any study because it would take too long, this was in the end the chosen route. The Joint Research Centre (JRC) – the commission's in-house think tank – was tasked with investigating the extent of the dual-food quality phenomenon.

The document laying out the assignment said that the JRC should come up with a methodology, and analyse between 100 and 500 products. The interim report is scheduled for December 2018, and the final report for September 2019 – months after the European Parliament elections and only two months before Juncker's term is up.

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