Article 9 of Regulation (EC) No 852/2004 — Community guides to good practice

Rationale and origin

Article 9 closes Chapter III and represents its supranational tier. Where Article 8 entrusts the development and assessment of guides to the Member States, Article 9 sets up a parallel track for Community guides, intended for sectors whose scale or supply chains cross national borders. The rationale is twofold: to harmonise HACCP application practices where the market is integrated, and to avoid fragmentation into twenty-seven diverging national approaches. The Commission leads the process, acting with the support of the Committee referred to in Article 14 — named in the Regulation as the Standing Committee on the Food Chain and Animal Health, a role now performed by the Standing Committee on Plants, Animals, Food and Feed.

Personal scope

The lead actor is the Commission, which consults the Committee upstream Article 9(1) of Regulation (EC) No 852/2004, ensures the guides are developed and disseminated Article 9(2) of Regulation (EC) No 852/2004 and arranges their periodic review Article 9(4) of Regulation (EC) No 852/2004. The Article 14 Committee — the comitology body that assists the Commission Article 14(1) of Regulation (EC) No 852/2004 — performs the technical assessment of the draft guides Article 9(3) of Regulation (EC) No 852/2004. Representatives of European food business sectors are involved, with an explicit mention of SMEs, alongside consumer groups and the competent authorities of the Member States Article 9(2) of Regulation (EC) No 852/2004. The food business operators, as with national guides, are the end users who will use them voluntarily under Article 7 Article 7 of Regulation (EC) No 852/2004.

Material scope

The Article sets out a four-stage procedure. First: the preliminary consultation of the Committee, which considers the case for the guide, its scope and subject matter Article 9(1) of Regulation (EC) No 852/2004 — an opportunity filter preceding any drafting. Second: participatory development, with the four conditions of paragraph 2 — involvement of European sectors and SMEs (point (a)), collaboration with parties whose interests may be affected including competent authorities (point (b)), regard to the Codex Alimentarius codes of practice (point (c)) and, for primary production, to the recommendations in Part B of Annex I (point (d)) Article 9(2) of Regulation (EC) No 852/2004 Annex I, Part B, point 1 of Regulation (EC) No 852/2004. Third: the Committee's assessment of the drafts, on criteria mirroring the national ones of Article 8 but calibrated to the Union scale — procedural conformity, practicability "throughout the Community" and suitability to promote compliance with Articles 3, 4 and 5 Article 9(3) of Regulation (EC) No 852/2004. Fourth: periodic review, to keep the guides practicable and aligned with technological and scientific developments Article 9(4) of Regulation (EC) No 852/2004. Publicity is ensured by publishing titles and references in the C series of the Official Journal Article 9(5) of Regulation (EC) No 852/2004: note that it is the reference, not the full text, that is published, consistent with the non-binding nature of the guide.

Coordination with other provisions

Article 9 completes the trio with Article 7 and Article 8: same voluntary nature, different scale. Compared with national guides, the assessment is entrusted to the Article 14 Committee rather than to individual States, and publicity runs through the Official Journal instead of an internal register Article 8(4) of Regulation (EC) No 852/2004. In substance, Community guides serve the same objectives: the good practice of Article 4 Article 4(2) of Regulation (EC) No 852/2004 and the food safety procedures of Article 5 Article 5(1) of Regulation (EC) No 852/2004, with the prerequisite programmes as their base. In practice, validated Community guides feed into the establishment's own food safety management manual alongside national ones. Commission Notice 2022/C 355/01 (see Sources) is itself a horizontal instrument accompanying the flexible application of HACCP at Union level, distinct from but complementary to the sector guides.

Application and interpretive issues

Few guides, high value. Community guides are limited in number and focused on transnational supply chains. In our view their value lies not in quantity but in their function as a common reference: where a Community guide exists, it reduces divergence between national practices and offers the operator a model recognised across the Union, while remaining voluntary.

"Community" now reads "Union". The Regulation's terminology dates from 2004: the references to "Community guides" and to the "Community" are to be understood, after the Treaty of Lisbon, as referring to the European Union. The substance is unchanged; only the vocabulary has moved on.

The Official Journal reference is not the text. Publication in the C series concerns titles and references Article 9(5) of Regulation (EC) No 852/2004: the guide itself is available from the bodies that developed it. Mistaking publication of the reference for the conferral of binding force is an error: the guide remains a voluntary aid.

Penalties

As with Article 7 and Article 8, Article 9 provides for no penalty: not using a Community guide is not an offence. Penalties attach to the substantive obligations of Articles 4 and 5 and are left to the Member States; for Italy, Legislative Decree No 193 of 6 November 2007 Article 6 of Italian Legislative Decree No 193/2007 and the country pages.

As at the date of this page, there is no case law of the Court of Justice of the European Union specifically addressing Article 9 of Regulation (EC) No 852/2004. The procedure for developing Community guides, technical and administrative in nature and producing no direct binding effect on operators, has given rise to no supranational litigation.

Article 9 requires no transposition: it operates directly through the Commission, assisted by the Committee referred to in Article 14 Article 14(1) of Regulation (EC) No 852/2004. State implementation is indirect and concerns the dissemination of Community guides published in the C series of the Official Journal Article 9(5) of Regulation (EC) No 852/2004 and their coordination with national guides Article 8(4) of Regulation (EC) No 852/2004. The Italian framework is set out on the Italy page; the training profiles of food handlers on the HACCP training page.