Liability in Food Law: The Problem of Determining the Subject to Liability and Its Obligation of Due Diligence

Asta Šamulevičiūtė

Abstract


Summary. The institute of liability in food law is introduced in order to protect consumers’ rights and health, as well as to restore their confidence in the European Union’s food control system after a number of food scandals which took place throughout the Europe.

Interactions between food business operators are becoming increasingly complex and involving more intercontractual obligations. As a result, food safety of a specific food product can be affected by more than one food business operator. Taking this into account, the article examines the issue as to which food business operator in such case is responsible for the safety and therefore is subject to liability.

Pursuant to provisions of the European Union food law, regulating the division of responsibilities in the food chain, it is not entirely clear whether food business operators are equally responsible for non-compliance with food law requirements at all production, processing and distribution stages or their responsibility is rather dependent on the exercise of control over business at the respective stage.

The author concludes that it would be unreasonable and indeed unfair to apply the rules of joint liability in all cases and accordingly to hold food business operators liable for the problems that may occur off their sphere of responsibility or off their control.

The joint liability should not be applied in all cases because of the fact that different food business operators have to apply different standards of due diligence (the highest standards being applicable to producers and importers). The present article suggests that in each case when the fault is a necessary prerequisite for liability the content and scope of due diligence of each food business operator should be clarified. This would help to avoid cases of unfounded liability and to prevent unnecessary burden to business.

National provisions of the Lithuanian food law also do not explicitly define the limits of responsibility of food business operators in the food chain. Determination of the subject of liability, the content and scope of his due diligence, depends on the type of the applicable liability.

The article also examines the peculiarities of legal regulation and application of administrative liability, when the fault is a necessary prerequisite for liability. Therefore, the fact whether a food business operator has fulfilled his due diligence must be assessed case by case. Meanwhile, provisions regulating special tort, i. e. liability for damage caused by defective products or services, foresee strict liability. Furthermore, in the case of contractual liability the final food business operator as a businessman is subject to liability without fault. Hence, the paper from the perspective of consumer discusses the interaction between provisions, regulating contractual liability, and provisions, regulating special tort.

Keywords


Food business operator; liability of food business operators; responsibilities of food business operators; due diligence; food safety

Full Text:

PDF (Lithuanian)


DOI: http://dx.doi.org/10.13165/SPV-13-1-5-12

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"Health Policy and Management" ISSN online 2029-9001 / ISSN print 2029-3569