Cheesy? How raw milk cheese made its way through the EU’s legislative procedure like the village of indomitable Gauls

by Otto Möller (Author)

Term Paper 2017 25 Pages

Politics - International Politics - Topic: European Union




Policymaking: The legislative procedure in the EU, the balancing of interests

Theoretical Framework concerning the European integration and policy-making: How Liberal Intergovernmentalism can explain regional integration

Context and food legislation history: Health risk versus market interests?


Cheesy? How raw milk cheese made its way through the EU’s legislative procedure like the village of indomitable Gauls. The development of EU directives on raw milk production. Interest groups or food safety. How mature is the policy making process?


The following essay will examine the policy making process in the European Union (EU) concerning food safety in the case of raw milk cheese production. Food safety has been a key concern of the EU after several food scandals at the end of the 90´s such as the mad cow disease or more recently the usage of falsely labeled horse meat. As a reaction to that, the focus shifted from the creation of a common food market to food safety. "European citizens need to have access to safe and wholesome food of the highest standard."[1] this is one of the central statements of the EU food law that got passed after the scandals.

The case of raw milk cheese is in so far an interesting one because it symbolizes a dilemma for the EU. Firstly, because the milk that is used for the production is untreated. Untreated milk can be the cause of several diseases, yet this kind of cheese is deeply rooted in the culture of especially southern European cuisine. Secondly, the common market aims to standardized products with the aim to create an even bigger, more prosperous market and integrated market. However, the standardization takes place at the expense of product variety and the livelihood of small dairy farmers. The challenging task for the union is to find a compromise between these driving factors.

The working paper will address the question: The development of EU directives on raw milk production. Interest groups or food safety. How mature is the policy making process? Which actors interest are the decisive ones and how do they support their cause? The ordinary legislative process and the European food safety agency (EFSA) will as well as interest groups lobby work will be taken into account. Moreover, the theoretical framework concerning European integration and policy-making through the lens of Liberal Intergovernmentalism (LI) will be utilized to answer the research question. In addition to that, the phenomena of trading up and interstate bargaining will be applied too to illustrate how decision are being made with regard to cheese production regulation. The history of the development of raw milk food regulations will be shown to offer a context to understand the contemporary policy making situation. In which arrived at the motive that "The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers” (Art. 7 TFEU). Due to political integration of the past decades, the EU has become the central point for decision-making power on the continent. Four out of five national laws are currently is inspired by EU legislation. Therefore, lobby work has become more and more attractive for companies. To the present day, the EU holds power over crucial policies such as the Common Agricultural Policy or the food safety regulation. More than 1000 Committees and specialist task forces support the European Commission in the establishment and adaptation and upholding of directives and standards.[2]

The paper argues that policy making process concerning raw milk cheese is mainly driven by food safety concerns. However lobby groups support the trend towards pasteurized products, but for other reasons such as easier large scale production.

Policymaking: The legislative procedure in the EU, the balancing of interests

The substantially unique feature of the EU Commission (EC) is that it solely has the power to launch statute law into the legislative process. A procedure which offers sizable influence to it. In its role as an agenda determining institution for the entire union. [3]

The ordinary legislative procedure (OLP)[4] Is the general legal process to adopt directives and regulations. Occasionally, it is labeled as the community method to compare it with the intergovernmental methods such as the consultation procedure .[5] [6] The OLP is declared in Article 294 Treaty on the Functioning of the European Union.[7] Stating that the Commission passes a judicial proposal to the Parliament and Council. During the initial reading, the Parliament formulates its stands on the subject matter. The parliamentary positioning leaves space for lobbying since interest group can try to influence the parliamentarians. In case the Council accepts the Parliaments formulation of the legislation then it will be adopted. However, if that, not the case, then it gives a chance to the Council to express its perspective on the topic. This process again offers space to interference from non institutional groups, like industrial lobbying. The Council´s new wording then gets passed back to the Parliament including a commentary on the adjustments. The three most important legislative actors inform each other over their perspectives. The legislative process including first and second reading can take several years and thereby offers time opinions to change and lobbying activities to be launched. [8] However, there is not standardized EU policy making procedure. A magnitude of players creates the process together over countless channels.[9] The legislative decision-making process differs from the one on the nation-state level; it specific characteristics. According to Article 11 Treaty on the European Union (TEU) the EC is duty bound to confer with industry experts and interest groups during the process of writing a proposal for a law. Besides, to that several distinct interest groups possess the right to enter into talks with institutions.[10]

One of the primary objectives of the union is to offer a dependable and pervasive legal frame work that regulates activities. As it became apparent thought the abnormal conditions in the consumer rights directive, particularly this was the case for the EU consumer law.[11]

The secondary legislation in the field of EU product safety standards to stresses the value of uniformity over discontinuity. The necessity for a consistent and orderly application of EU jurisdiction has been put to use. Specialists in the EMA (European Medicines Agency) and EFSA commonly prefer unambiguous standards offer room for thorough risk assessment rather than fragmented and non-coherent rules. As previously argued for practitioners cohesiveness of EU laws is of significant importance. The “unity dogma”[12] Consequently clearly calls for uniformity and systematization.

Nevertheless, certain actors such as local governments small businesses and at the end of the value chain, the consumers might have a differing perspective. The over boarding diversity of European products, particularly in the food stuff sector is remarkable. Small companies which business concept rely on specific products such as dairy farmers are on the line. Centuries of product development and cultural influence reflect on the manufacturing process in the case of cheese and sausages. These producers base their being on their otherness, being different than the products from other areas. Charles de Gaulle´s famously pointed out the discrepancy between the development of the EU law and the cheese variety in France itself. Playing at the diversity and the impossibility of formulating a systematic legislation ”How can you govern a country which has two hundred and forty-six varieties of cheese?"[13] [14]

The majority of southern European cheese are produced with unpasteurized milk. Which is often labeled as Protected Designation of Origin (PDO). French, Italian and Greek cheese dairy rely on the know-how which has been build over centuries and producers and farmers attest to the safety of these cheeses. Moreover, raw cheese milk enjoys the admiration of a huge number of cheese lovers around the globe, who prefer the product over its pasteurized counterpart, regardless of the health risk that comes with its consumption. Nevertheless, the EFSA officials, who are mainly represented by states who do not have a raw milk cheese tradition, the northern member states beg to differ. Their opinion is based on research conducted by the agency which claims that goods made out of raw milk can be the reason for various diseases amongst others listeria and E. coli. As a result of that, they mostly voted for a prohibition of products fabricated with raw milk.[15]

Nearly 60% of specialist working for the EFSA boards have direct or indirect connections to the food branch they organize.[16] The agency has created a legal bottle neck so that raw milk can still be produced legally in the EU, yet only if it is made in a "new approach fashion" fulfilling specific safety regulations. In order, to complete these new standards checklist a costly testing machinery which the majority of the raw milk dairy farmers can afford is necessary.

Not only the French fromager but also his colleagues across the continent now fear that not only their income is put at risk, but also their traditional way of life and the culture that comes with it. For them its a high price to pay for the unifying attempt of the EU. The Union´s policy making process is caught in a dilemma, between the market demand for unpasteurized cheese and the need for a standardized food safety protocol. According to the perspective of the Union´s food safety authorities, the fromager is not following the concept of the EU, the continent which aims to be more than just a geographic name. Its objective is to set specific standards to enable a common market in the interest of peace in Europe.

F. Schauer has made an argument concerning the unique perplexity of the situation. The author claims that the European community, the name it had before the name the European Union became popular, only can exist as a patch work construct if all individual parts can sustain their unique features. Thus arguably the move towards an ever more integrated union, and with it coming to the more and more regulated procedures is the result of standardization and not necessarily lobbying.

Schauer´s analysis indeed justify the undeniable need for a generalizing systematization in EU regulations. Which has already been stated previously as a defining component of the rationalization of regulation and thus as a part of the EU market and the formation of a market society. Even though, Schauer´s line of argument concerning the unity argument is very valuable it does not offer insight into the limits of such an approach. If the Union would only be uniformity-driven as the author's argument suggest then, the union would ultimately end up only having one standard EU cheese and would contradict the cheese producers claim. Current EU law offers a responds to a uniform adoption of the community-argument would stop the further integration of the market and trade Inter alia, recital 2 of Council Regulation (EC) No 509/2006[17] Explicitly stipulates:

“The diversification of agricultural production should be encouraged. The promotion of traditional products with specific characteristics could be of considerable benefit to the rural economy, particularly in less favored or remote areas, both by improving the income of farmers and by retaining the rural population in these areas.”[18]

The Union´s approach to managing this legal double bind that arouses to the nature of "the product was to establish legal circumstances that permit the niche existence and exceptions to the general food law scheme”[19] through a change of the regulatory frame work. It has developed a list of good that are excluded by the general food law. The EU also follows the European primary law which demands in Art. 191 (2) sentence 1 TFEU that the EU should "take into account the diversity of situations in the various regions of the Union."

Despite the fact that this rule is only part of the treaty condition on environmental law, it is valid for the entire EU area of EU goods safety regulation,[20] In which regulatory separation has always taken an important role.[21] Art. 167 TFEU and Art. 22 CFR, which stresses the EU´s responsibility to consider the various cultures within the continent, even more, supports this approach.

The decisive character of the EU is its diversity. It´s integration is not dominated by a bipolar procedure, which contrasts communitarianism vs. individualism, and where the interests of a smaller group such as the cheesemakers are balanced against the interests of a larger group. The driving forces behind harmonization of EU product law, as it becomes evident among other things in the information paradigm,[22] Is to balance the need for uniformity on the one hand and to secure diversity of products on the other.[23] This rationale resembles the ethos of the market state, which primarily aims is to enable a variety of economic choices. From this point of view, one coherent cheese standard is, in fact, no option of market-state regulation. Quite the contrary: Europe is proud to have a rich culture of diverse languages, food, music, and literature that is well respected all over the world. Food does shape the image of certain regions, a fact which is taken into account at European level to ensure this European identity. To this end, Member States were, and are still keen on securing the cultures they represent when governing the EU. One prominent example is Reg. 2081/92/EEC, which ensures that certain brand names may only be named according to the area their stem from.[24] [25]

The EC starts an effect analysis to gain an insight into the possible "economic, social and environmental” [26] Ramifications of the legislation in question in a positive or negative way when it starts its policy making. Moreover, the Commission turns to interest groups such as NGOs or lobby and civil society groups. Technical problems are being looked at by field experts to propose solutions. Thereby, the legislations fit the demands of the groups that will be concerned by it. Member state parliaments can officially state their discontent with the legislation if they consider the problem to be better dealt with on a nation state level. [27] Food that stems from animals like raw milk cheese has to be labeled as such. According to EU hygiene legislation, it is in the power of the individual member state to forbid or limit the market access of raw milk which is supposed to be consumed by humans.[28] In addition to that governments can develop deeper going legislation.[29]

The raw milk cheese regulation is a good example of inter state bargaining because the market access is more important to some member states than to others. Especially, France was raw milk cheese production contributes to 18% of the overall cheese production has a vast interest. Raw milk cheese is regarded to be a specialty which is superior to pasteurized cheeses.[30] The specialty has obtained cultural heritage statutes throughout the nation.[31] [32]

Theoretical Framework concerning the European integration and policy-making: How Liberal Intergovernmentalism can explain regional integration

Liberal Intergovernmentalism (LI) as stated by Moravcsik and Schimmelfenning has acquired the status of a fundamental theory in the field of regional integration. It brings to the table an indispensable account which gets related and compared to competing theories frequently. Its a form of "rational institutionalism"[33] a broad theory dedicated to the study of interstate cooperation in international affairs. LI creates links between the well established school of thoughts when it comes to European integration such as the sui generis approach by new functionalism, yet it to refers to traditional ‘intergovernmental,’ as formulated by Hoffmann. LI strives to establish these concepts into a more consistent and strict set of micro-foundational assumptions.

Thereby, the theory is capable of stating more precisely the driving factors of actors such as states and to make a prediction on their future actions. It is that point which sets it apart from traditional schools of regional integration.[34]

LI manages to explain regulatory approximation, "trading up and interstate bargaining”[35] as part of the union's food markets legislation. Due to the regulatory approximation in the common EU market, an interesting dynamic is set into motion. The differing member state product regulations which are commonly social laws and intended to secure consumer health have an adverse impact on the unions trade. Member states which have more rigorous legislation, given that it is still in the realm of the Unions legal framework are in a privileged bargaining position. Their products, such as cheeses can be exported to less strictly regulated markets whereas in contrast other member states with less stringent regulations whose products do not fulfill the quality criteria are excluded. The regulatory approximation dynamic occurs when the excluded producers build up pressure towards their home governments to adjust their legislation towards the ones of exclusive markets. As a result of that, the trade becomes liberalized. Since the stricter quality member state barely has anything to gain from an agreement it has a strong incentive to push for a beneficial deal. Hence, the negotiated interstate agreement will be more in line with the regulation of the more rigorous government, because the state in the stronger negotiation position faces lower potentials losses in case of a nonagreement.This dynamic in the common market leads to leveling of standards and an overall increase of common standards. This dynamic which can also be found about the raw cheese legislation is called ‘trading up’.

Moreover, especially since the late 1990s, interest groups, and interstate bargaining has gained in dynamic. Negotiations have been strengthened by a conceptional legal environment that benefits risk avoiding approaches to social regulation. The most distinct expression of this approach can be found in the ‘precautionary principle.' The principle allows taking measures even before definitive scientific proof has been presented against a potentially risky product. In general, the precautionary principle tends to even strengthen more strict regulation. Particularly, concerning the union's food safety regulations this strictness is apparent. Especially, concerning raw milk cheese and its contamination risk. The food scandals of the late 1990s have triggered the favoring of more rigorous regulations and aimed to counteract the crisis in legitimacy in EU regulations. [36]

Context and food legislation history: Health risk versus market interests?

Before the creation of the EU, food legislation and safety was entirely in the hands of the individual state. Many EU current member states have food traditions concerning their legislations and safety that reach several centuries back, especially when it comes to cheese and sausages. The treaty of Rome marks the first indirect legislatorial step of the Union towards a common food policy. The primary aim of the first set of EU food legislation was to build the foundation of a common market for food. Since food trade has contributed to a significant share of the inter state trade ever since the foundation of the EU. The legislative process for food has been burdensome and lengthy. A landmark development towards the mutual recognition of food products was the Cassis judgment of the European Court of Justice from the Mid-1980s. Through this judgement regional specialities were protected for the first time and gave voice to the demands of rural producers.

The EU Commission initiated the compatibility of food legislation which caused the EU to formulate food laws which were more detailed. The next milestone development was noticeable by the combining of “vertical directives into horizontal ones."The main objective thereby was to establish a wider range of broad principles and requisites. Finally, the arguably biggest turning point came in the 1990s trigger through various food scandals such as the mad cow disease which caused consumer concerns and brought food safety back on the agenda. Through his development the institutional focus altered from the building of a common food market towards food safety at its core. The public pressure that had build up through the scandals resulted in the formulation of the White Paper on Food Safety in 2000. The paper was the first step to redeveloping the food safety legislation and introduced an EU-wide regulatory framework for the food chain. Furthermore, this all-embracing legislation also included the incorporation of a scientific risk analysis for the single steps of the food chain. The majority suggestion from the White Paper was integrated and passed in the Regulation EC/178/2002. This landmark legislatorial piece today builds as the General Food Law the foundation of the new ear of food policy making. It states the main conventions and operational methods of regulation for food safety on state and interstate level. It marks the constitution of the European Food Safety Authority.

An autonomous scientific EU authority is managing risk classifications and offering perspectives on food safety related measures. The General Food law due to is far reaching scope also widens the legislative range of the EU level. Mostly the legal tools utilized in this respect are regulations and not directives. This has been a recent development in food safety jurisdiction. Thus, resulting in an even increased European integration, gathering the legislative power at the EU level, because it marks the end of the demand for national level consent.[37] On top of the General Food law, the Union established procedural regulation with the objective to keep untreated milk cheese products on the market but simultaneously assuring the quality of the product.


[1] General Food Law - Food Safety - European Commission." Food Safety. Accessed October 06, 2016. http://ec.europa.eu/food/safety/general_food_law/index_en.htm.

[2] "LOBBYING IN THE EUROPEAN UNION: CURRENT RULES AND PRACTICES." EUROPEAN PARLIAMENT Directorate-General for Research. April 2003. Accessed October 10, 2016. http://www.europarl.europa.eu/RegData/etudes/etudes/join/2003/329438/DG-4-AFCO_ET(2003)329438_EN.pdf.

[3] Schmidt, S. K. "Only an Agenda Setter?: The European Commission's Power over the Council of Ministers." European Union Politics 1, no. 1 (2000): 37-61. doi:10.1177/1465116500001001003.

[4] "THE TREATY ON EUROPEAN UNION AND THE TREATY ESTABLISHING THE EUROPEAN COMMUNITY." EU Concilium. October 5, 2005. Accessed October 15, 206. http://www.consilium.europa.eu/uedocs/cmsUpload/cg00001re01en.pdf.

[5] Craig, P. P., and G. De Búrca. EU law: text, cases, and materials. Oxford: Oxford University Press, 2015. P 145.

[6] "EUR-Lex Access to European Union law." Glossary of summaries - EUR-Lex. Accessed December 06, 2016. http://eur-lex.europa.eu/summary/glossary/glossary.html?locale=en.

[7] Formerly Article 251 TEC pre-Lisbon Treaty

[8] Craig, P. P., and G. De Búrca. EU law: text, cases, and materials. Oxford: Oxford University Press, 2015., p 144.

[9] Nugent, Neill. The government and politics of the European Union. Durham: Duke University Press, 2006. p. 289

[10] "Lobbying the EU institutions." Library of the European Parliament. June 18, 2013. Accessed November 11, 2016. http://www.europarl.europa.eu/RegData/bibliotheque/briefing/2013/130558/LDM_BRI(2013)130558_REV1_EN.pdf

[11] Weatherill, S. "The Consumer Rights Directive: How and why a quest for “coherence” has largely failed,'" Common Market Law Review, 2012th ser., 49 (2012): 1279.

[12] Them, D. "United in Diversity" – The Integration of Enhanced Cooperation into the European Constitutional Order,'" German Law Journal, 2005th ser., 6 (2005): 1731.

[13] Mignon, Ernest. Les mots du general. Paris: Fayard, 1972. p. 52

[14] Schauer, Frederick F. Profiles, Probabilities, and stereotypes. Cambridge, MA: Belknap Press of Harvard University Press, 2003. pp. 279 et seqq.

[15] For further information Art. 3 of Council Directive 92/46/EEC of 16 June 1992 defining the health legislation for the manufacturing and marked introduction of raw milk products OJ L 268/1.

[16] "More than half of experts at the EU food safety authority have conflicts of interest." Corporate Europe Observatory. October 23, 2013. Accessed November 06, 2016. https://corporateeurope.org/pressreleases/2013/10/more-half-experts-eu-food-safety-authority-have-conflicts-interest.

[17] Council Regulation (EC) No 509/2006 of 20 March 2006 on agricultural products and foodstuffs as traditional specialities guaranteed, OJ L 93, 31.3.2006, p. 1.

[18] Ibid.

[19] Council Regulation (EC) No 509/2006 of 20 March 2007 on… http://www.olivoolivetree.com/regolamenti/Reg._CE509-2006_en.pdf( accessed January 01, 2017).

[20] Schomberg, René Von. "The Precautionary Principle and its Normative Challenges." European Journal of Risk Regulation, 2013th ser., 3 (March 2013): 147. doi:10.4337/9781847201676.00011.

[21] See for more A. Héritier, ‘Die Koordination von Interessenvielfalt im europäischen Entscheidungsprozeß und deren Ergebnis: Regulative Politik als "Patchwork,"MPIFG Discussion Papers, No. 4 ’ (1995)

[22] Franck, Jens-Uwe, and Kai Peter Purnhagen. "Homo Economicus, Behavioural Sciences, and Economic Regulation: On the Concept of Man in Internal Market Regulation and Its Normative Basis." SSRN Electronic Journal. doi:10.2139/ssrn.2180895. (2013)

[23] AG Capotorti, 16 January 1979, Case 120/78, Rewe v Bundesmonopolverwaltung für Branntwein, [1979] ECR 666, 673: “But the idea of this widespread, if not general, incapacity on the part of the consumer seems to me to doom to failure any effort to protect him, unless it be to impose upon him a single national product the composition of which is constant and is rigorously controlled.”

[24] See on this Case C-66/00, Judgment of the Court of 25 June 2002, Dante Big (Parmigiano Reggiano) [2002] ECR I-5917; Case C-312/98, Judgment of 12 September 2000, Warsteiner

[25] Purnhagen, Kai. The politics of systematization in EU product safety regulation: market, state, collectivity, and integration. Dordrecht: Springer, 2013. p. 170

[26] "How EU decisions are made." European Union website, the official EU website - European Commission. November 24, 2016. Accessed December 7, 2016. https://europa.eu/european-union/eu-law/decision-making/procedures_en.

[27] Ibid.

[28] "Corrigendum to Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin" (PDF). 25 June 2004. Retrieved 20 November 2016.

[29] "Raw drinking milk: what are the risks?" Raw drinking milk: what are the risks? | European Food Safety Authority. January 13, 2015. Accessed December 06, 2017. https://www.efsa.europa.eu/en/press/news/150113.

[30] Hesser, Amanda. "The French Resist Again: This Time, Over Cheese." The New York Times. May 19, 1998. Accessed October 06, 2016. http://www.nytimes.com/1998/05/20/dining/the-french-resist-again-this-time-over-cheese.html?pagewanted=all.

[31] "Cheese etiquette; discovering cheese; wine and cheese; raw milk; fromages français." Cheese etiquette; discovering cheese; wine and cheese; raw milk; fromages français. Accessed November 12, 2017. http://www.understandfrance.org/Food/Cheese.html.

[32] Wiedmann, Martin, and Wei Zhang. Genomics of foodborne bacterial pathogens. New York: Springer, 2011. P 242

[33] Schimmelfennig, Frank. "Liberal intergovernmentalism and the euro area crisis." Journal of European Public Policy 22, no. 2 (2015): 177-95. doi:10.1080/13501763.2014.994020.

[34] Schimmelfennig, Frank. "Liberal intergovernmentalism and the euro area crisis." Journal of European Public Policy 22, no. 2 (2015): 177-95. doi:10.1080/13501763.2014.994020.

[35] Why the European Commission is not the unexpected winner…, http://tandfonline.com/doi/10.1080/07036337.2015.1101957 (accessed. December 11, 2016)

[36] Young, Alasdair R., and John Peterson. Parochial global Europe: 21st century trade politics. Oxford: Oxford Univ. Press, 2014. p.140

[37] Falkner, Gerda. EU policies in a global perspective: shaping or taking international regimes? London: Routledge, Taylor & Francis Group, 2014. p.58-60


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University of Kent – Brussels School of International Studies
EU Politics EU Governance Lobbyism Regulations policy making food safety legislative procedure the precautionary principle common market raw milk cheese EC EFSA OLP


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    Otto Möller (Author)


Title: Cheesy? How raw milk cheese made its way through the EU’s legislative procedure like the village of indomitable Gauls