Fruit and Vegetables Marketing Standards Regulations, 2015

L.N. 109 of 2015

SUPPLIES AND SERVICES ACT

(CAP. 117)

Fruit and Vegetables Marketing Standards Regulations, 2015

IN exercise of the powers conferred by article 3 of the Supplies

and Services Act, the Minister for the Economy, Investment and

Small Business, in consultation with the Minister for Sustainable

Development, the Environment and Climate Change, has made the

following regulations:-

(1)

The title of these regulations is the Fruit and Citation and

scope.

Vegetables Marketing Standards Regulations, 2015.

(2) The scope of these regulations is to implement the relevant

provisions of Council Regulation (EC) 1234/2007 of 22 October 2007

establishing a common organisation of agricultural markets and on

specific provisions for certain agricultural products (single CMO

Regulation) and Commission Regulation (EC) 543/2011 of 7 June

2011 laying down the detailed rules for the application of Council

Regulation (EC) No. 1234/2007 in respect of the fruit and vegetables

sectors.

For the purpose of these regulations and unless the context Interpretation.

otherwise requires

"Act"’ means the Supplies and Services Act;

"competent authority"’ means the Agriculture Directorate;

"customs authority" means the Department of Customs;

"Director" means the Director responsible for Agriculture;

"Farmers’ Market” means a market established in terms of

regulation 3 of the Farmers’ Markets Regulations;

"finding of non-conformity" means a statement issued by the

competent authority in terms of regulation 13, stating that the

products in question do not conform to the relevant marketing

standards;

"general marketing standards" means those standards listed in

Part A of Annex I to EC Regulation No. 543/2011 or any subsequent

legislation;

"grower" means a person who cultivates fruit and vegetables;

"holder" means any natural or legal person physically in

possession of the products concerned;

"holding" means non-commercial premises where fruits and

vegetables are kept with a view of selling them directly to the

consumer;

"Inspectorate Unit" means the Inspectorate Unit within the

Regulatory Section within the Agriculture Directorate;

"Malta" shall have the same meaning as that assigned to it by

article 3 of the Interpretation Act;

"Minister" means the Minister responsible for Agriculture;

"product" means fruit and vegetables listed in Part IX of Annex

I of EC Regulation No. 1234/2007;

"specific marketing standards" means those standards listed in

Part B of Annex I to EC Regulation No. 543/2011 or any subsequent

legislation;

"trader" means any natural or legal person who

(a)

holds fruit and vegetables subject to marketing

standards with a view to

(i)

displaying or offering them for sale,

(ii) selling them, or

(b)

marketing them in any other manner, or actually

carries out any of the activities referred to in paragraph (a) as

regards fruit and vegetables subject to marketing standards.

The activities referred to in paragraph (a) shall cover

(a)

distance selling whether by internet or otherwise,

(b)

such activities carried out by the natural or legal

person for itself or on behalf of a third party, and

(c)

such activities carried out in the European Union

and/or by export to third countries and/or import from third

countries.

(1)

No trader may trade in products in Malta unless Marketing

such products conform to the general marketing standards or the standards.

specific marketing standards required in terms of these regulations.

(2) The following products shall conform to the specific

marketing standards

(a)

apples,

(b)

citrus fruit,

(c)

kiwifruit,

(d)

lettuces, curled leaved and broad-leaved endives,

(e)

peaches and nectarines,

(f)

pears,

(g)

strawberries,

(h)

sweet peppers,

(i)

table grapes,

(j)

tomatoes.

(3) The marketing standard applicable to bananas falling

within CN Code 080300, shall be as set out in Annex 1of Regulation

(EU) No. 1333/2011 and any subsequent Regulation.

(4) Products not required to conform to the specific marketing

standards shall conform to the general marketing standards

Provided that, where the holder is able to show that he is in

conformity with any applicable standards adopted by the United

Nations Economic Commission for Europe (UNECE), the product

shall be considered as conforming to the general marketing standard.

(5) By way of derogation from Article 113a(3) of Regulation

(EC) No. 1234/2007 as regards the specific marketing standards, fruit

and vegetables other than the ‘Extra’ Class, at stages following

dispatch, may show a slight lack of freshness and turgidity and slight

deterioration due to their development and their tendency to perish.

(1)

By way of derogation from Article 113a(3) of Exceptions and

Regulation (EC) No. 1234/2007, the following products shall not be exemptions

from the

required to conform to the marketing standards

application of

marketing

standards.

(a)

provided they are clearly marked with the words

‘intended for processing’ or ‘for animal feed’ or any other

equivalent wording, products

(i)

intended for industrial processing, or

(ii) intended for animal feed or other non-food

use;

(b)

products transferred by the producer on his holding

to consumers for their personal use;

(c)

products recognised in a Commission Decision

taken at the request of a Member State in accordance with the

procedure referred to in Article 195(2) of Regulation (EC) No.

1234/2007 as products of a given region which are sold by the

retail trade of the region for well established traditional local

consumption;

(d)

products having undergone a trimming or cutting

making them ‘ready to eat’ or ‘kitchen ready’;

(e)

products marketed as edible sprouts, following

germination of seeds of plants classified as fruit and vegetables

under Article 1(1)(i) and Part IX of Annex I to Regulation (EC)

No. 1234/2007.

(2) By way of derogation from Article 113a(3) of Regulation

(EC) No. 1234/2007, the following products shall not be required to

conform to the marketing standards within a given production area

(a)

products sold or delivered by the grower to

preparation and packaging stations or storage facilities, or

shipped from his holding to such stations; and

(b)

products shipped from

storage

facilities

to

preparation and packaging stations.

(3) By way of derogation from Article 113a(3) of Regulation

(EC) No. 1234/2007, the competent authority shall exempt from the

specific marketing standards products presented for retail sale to

consumers for their personal use and labelled ‘product intended for

processing’ or with any other equivalent wording and intended for

processing other than those referred to in sub-regulation (1)(a)(i).

(4) By way of derogation from Article 113a(3) of Regulation

(EC) No. 1234/2007, the competent authority may exempt from the

marketing standards products directly sold by the grower to the final

consumer for personal use on markets reserved only for producers

within a given production area defined by Member States.

(5) By way of derogation from Article 113a(3) of Regulation

(EC) No. 1234/2007 as regards the specific marketing standards, fruit

and vegetables other than the ‘Extra’ Class, at stages following

dispatch, may show a slight lack of freshness and turgidity and slight

deterioration due to their development and their tendency to perish.

(6) By way of derogation from Article 113a(3) of Regulation

(EC) No. 1234/2007, the following products shall not be required to

conform to the general marketing standard

(a)

non-cultivated mushrooms of CN code 0709 59,

(b)

capers of CN code 0709 90 40,

(c)

bitter almonds of CN code 0802 11 10,

(d)

shelled almonds of CN code 0802 12,

(e)

shelled hazelnuts of CN code 0802 22,

(f)

shelled walnuts of CN code 0802 32,

(g)

pine nuts of CN code 0802 90 50,

(h)

pistachios of CN code 0802 50 00,

(i)

macadamia of CN code 0802 60 00,

(j)

pecans of CN code ex 0802 90 20,

(k)

other nuts of CN code 0802 90 85,

(l)

dried plantains of CN code 0803 00 90,

(m)

dried citrus of CN code 0805,

(n)

mixtures of tropical nuts of CN code 0813 50 31,

(o)

mixtures of other nuts of CN code 0813 50 39,

(p)

saffron of CN code 0910 20,

(q)

plantains, fig bananas and bananas intended for

processing not falling within CN code 080300.

Evidence shall be supplied to the competent authority that the

products falling under this sub-regulation and sub-regulations (1) to

(5) fulfil the conditions laid down, in particular with regard to their

intended use.

(7) Products directly sold by the grower directly to the final

consumer for personal use represented in the ‘Farmers’ Market’ shall

be exempt from the application of marketing standards

Provided that in case growers selling in the Farmers’

Market decide to apply the marketing standards, the relative fruit and

vegetables will become subject to all the provisions of these

regulations. Traders opting to be included in the database shall inform

the competent authority accordingly.

(8) Products sold by a grower from his own personal premises,

being a garage or a farmhouse shall be exempt from the application of

marketing standards.

(9) Imports from third countries referred to in Annex IV of the

Commission Implementing Regulation (EU) No. 543/2011, which are

in compliance with Article 15 of the said Regulation, shall be exempt

from the application of marketing standards.

(10) Products subject to specific marketing standards presented

for retail sale to consumers for their personal use and labelled

‘‘product intended for processing’’ or with any other equivalent

wording and intended for processing, other than those referred to in

sub-regulation (1)(a)(i), shall not be required to conform to specific

marketing standards.

(11) Products recognised in a Commission Decision taken at the

request of a Member State in accordance with the procedure referred

to in Article 195(2) of Regulation (EC) No. 1234/2007 as products of

a given region which are sold by the retail trade of the region for well

established traditional local consumption shall not be required to

conform to specific marketing standards.

(12) The competent authority may, where it deems relevant,

demand evidence to trace the intended use of the product.

(1)

The information particulars required by the general

marketing standards and the specific marketing standards shall be

shown legibly and clearly on one side of the packaging, either by

being printed directly onto the package or by means of a label, which

is either an integral part of the package or which is affixed to it.

(2) For goods shipped in bulk and loaded directly onto a

means of transport, the information particulars referred to in sub-

regulation (1) shall be given in a document accompanying the goods

or shall be shown on a notice board placed in an obvious position

inside the means of transport.

(3) In the case of distance contracts in terms of Article 2(1) of

Directive 97/7/EC of the European Parliament and of the Council,

conformity with the marketing standards shall require that the

information particulars shall be made available before the purchase is

concluded.

(4) Invoices and accompanying documents, excluding receipts

from the consumer, shall indicate the name and the country of origin

of the products and, where appropriate, the class, the variety or

commercial type, if required, in a specific marketing standard, or the

fact that they are intended for processing.

(1)

At the retail stage, the information particulars Information

required by the general marketing standards and the specific particulars

retail stage.

marketing standards shall be displayed legibly and in a conspicuous

manner.

(2) Products may be presented for sale provided the retailer

displays prominently, adjacent to and legibly, the information

particulars relating to country of origin and, where appropriate, class

and variety or commercial type, in such manner as not to mislead the

consumer.

(3) For products which are pre-packaged within the meaning

of Directive 2000/13/EC of the European Parliament and of the

Council, the net weight shall be indicated, in addition to all the

information provided for in the marketing standards

Provided that, in the case of products sold by number, the

requirement to indicate the net weight shall not apply, if the number

of items may be clearly seen and easily counted from the outside or, if

the number is indicated on the label.

(1)

The marketing of packages of products of a net Mixes.

weight of 5kg or less containing mixes of different types of fruit and

vegetables shall be allowed, provided that

(a)

the products are of uniform quality and each

product concerned complies with the relevant specific

marketing standard or, where no specific marketing standard

exists for a particular product, with the general marketing

standard;

(b)

the package is appropriately labelled in accordance

with the general marketing standards and the specific marketing

standards; and

(c)

the mix is not such so as to mislead the consumer.

(2) The requirements of sub-regulation (1)(a) shall not apply

to products included in a mix which are not products of the fruit and

vegetables sector referred to in Article 1(1)(i) of Regulation (EC) No.

1234/2007.

(3) If the fruit and vegetables in a mix originate in more than

one Member State or third country, the full names of the countries of

origin may be replaced with one of the following, as appropriate

(a)

"mix of EU fruit and vegetables",

(b)

"mix of non-EU fruit and vegetables",

(c)

"mix of EU and non-EU fruit and vegetables".

(1)

The competent authority shall be responsible for

the implementation and enforcement of these regulations, including

the establishment of the necessary contacts and coordination

mechanisms relating to marketing standards.

(2) The Inspectorate Unit shall be responsible for carrying out

conformity checks at each stage of marketing. The Inspectorate Unit

shall report all its findings to the competent authority.

(1)

The competent authority shall set up a database on

traders in fruit and vegetables, which shall list, under the conditions

established in Article 10 of Commission Implementing Regulation

(EU) No. 543/2011, traders involved in the marketing of fruit and

vegetables for which standards have been laid down pursuant to

Article 113 of Regulation (EC) No 1234/2007.

(2) The following traders shall not be required to be included

in the database

(a)

natural or legal persons whose activities in the fruit

and vegetables sector are limited either to the transport of

goods, or to the sale at the retail stage;

(b)

natural or legal persons whose activities in the fruit

and vegetable sector are limited to processing.

(3) Traders shall provide such information as the competent

authority considers necessary to set up and update the database. The

traders database shall consist of

(a)

the registration number, name and address;

(b)

information needed for its classification in one of

the risk categories mentioned in Article 11(2) of Commission

Implementing Regulation (EU) No. 543/2011, in particular,

position in the marketing chain and information concerning the

importance of the firm;

(c)

information concerning findings made during

previous checks of each trader;

(d)

any other information considered necessary for

checks such as information concerning the existence of a quality

assurance system or self-check system related to the conformity

to the marketing standards.

(4) The competent authority may if it deems necessary request

from other authorities information which lies within the scope of

these regulations, in order to be able to compile the database

Provided that the data subject concerned is informed about

the processing of personal data in accordance with article 19 of the Cap. 440.

Data Protection Act.

(5) The updating of the database shall be carried out in

particular using the information collected during conformity checks.

(6) These regulations shall also be applicable to traders not

established in Malta, but are trading within it.

(7) Traders shall supply all information deemed necessary by

the competent authority for the application of this regulation.

(1)

The Inspectorate Unit shall perform conformity Conformity

checks which are to be carried out selectively, based on a risk checks.

analysis, and with appropriate frequency, so as to ensure appropriate

compliance with the marketing standards and other provisions of

these regulations.

(2) Where the conformity checks conducted in terms of sub-

regulation (1) reveal significant irregularities, the Director shall order

the increase in the frequency of checks in relation to traders, products,

origins, or other parameters.

(3) Traders shall provide the competent authority and the

Inspectorate Unit with all such information as they consider

necessary for organising and carrying out conformity checks.

(4) The competent authority shall in advance publish the

criteria for assessing the risk of non-conformity of lots, on the basis

of a risk analysis for each risk category. The competent authority shall

in advance publish these criteria through a notice in the Gazette.

(5) The sample of the minimum rate of on-the-spot checks

shall be drawn partly on the basis of a risk analysis and partly at

random. The competent authority shall establish the risk factors. To

assure relevant and efficient risk analysis, the effectiveness of the risk

analysis shall be assessed and updated on an annual basis taking into

account the relevance of each risk factor, comparing the results of

randomly and risk-based selected samples and the specific situation

in the particular risk category.

(6) The minimum control rate in respect of the marketing

standards’ obligations shall be established in accordance with the

provisions of this regulation. In this regard the control rate shall be

fixed at a minimum of 10% of traders present in the traders database

and subject to marketing standards.

(7) The sampling of on-the-spot checks for marketing

standards shall take into account the participation of such traders in

relevant certifications systems. It should, however, be demonstrated

when taking that participation into account, that the traders

participating in such schemes represent a lesser risk than traders not

participating in those schemes.

(8) (a)

Control samples for on-the-spot checks under this

regulation shall be selected by the competent authority on the basis of

a risk analysis, as per data available in the traders database.

(b)

To provide the element of representativeness, the

competent authority shall select randomly 20% of the minimum

number of traders to be subject to on-the-spot checks

Of 100%

20% Random

•

20% Random

80% Risk

•

20% largest amount of revenue

•

20% largest variety of fruit and vegetables subject

to specific marketing standards

•

40 % previous cases on non-compliance

The effectiveness of the risk analysis shall be assessed and

updated on an annual basis

(a)

by establishing the relevance of each risk factor

(b)

by comparing the results of the risk based and

randomly selected sample

(c)

by taking into account the specific situation.

The competent authority shall keep records of the reasons for

the selection of each farmer for an on-the-spot check. The inspector

carrying out the on-the-spot check shall be informed accordingly

prior to the commencement of the on-the-spot check.

(1)

The customs authority may only accept export Acceptance of

declarations and, or declarations for the release for free circulation for declaration.

the products subject to specific marketing standards, if

(a)

the products are accompanied by a conformity

certificate issued in terms of regulation 12; or

(b)

the competent authority has informed the customs

authority that the lots concerned have been issued with a

conformity certificate in terms of regulation 12; or

(c)

the competent authority has informed the customs

authority that it has not issued a conformity certificate for the

lots concerned, because they do not need to be checked in the

light of the risk assessment referred to in regulation 10(1).

(2) The provisions of sub-regulation (1) shall be enforced

without prejudice to any conformity checks that the Inspectorate Unit

may carry out pursuant to regulation 10.

(3) Sub-regulation (1) shall also apply to products subject to

the general marketing standards and products referred to in regulation

4(1)(a) if the Director considers it necessary in the light of the risk

analysis referred to regulation 10(1) and also Article 11(1) of

Commission Regulation 543/2011.

Conformity certificates confirming that products conform Certificate of

to the relevant marketing standard shall be issued by the competent conformity.

authority, in terms of Article 14 of Commission Implementing

Regulation (EU) No. 543/2011.

(1)

The competent authority shall publish in advance

guidelines for specific arrangements for checking conformity at the

point of retail or sale to the end consumer.

(2) The Inspectorate Unit may, at any time, and without giving

any previous notice, except in cases of import and export, enter any

premises for the purpose of inspection and of ensuring the carrying

out of the provisions of these regulations or of any other law relating

to the sale of fresh fruit and vegetables. For this purpose the

Inspectorate Unit may request the assistance of the members of the

Police Force.

(3) Where the Inspectorate Unit finds that the products

conform with the marketing standards, the Inspectorate Unit shall

make its recommendations to the competent authority. The competent

authority shall then issue a conformity certificate in terms of

regulation 12 on the form set out in Annex III of Commission

Implementing Regulation (EU) No. 543/2011.

(4) (a)

Where the products do not conform with the

standards, the competent authority shall issue a finding of non-

conformity for the attention of the traders or their representatives.

(b)

Goods for which a finding of non-conformity has

been issued may not be moved without the authorisation of the

competent authority which issued that finding. That authorisation can

be subject to the respect of conditions laid down by the competent

authority.

(5) Traders may decide to bring all or some of the products

into conformity. Products brought into conformity may not be

marketed before the competent authority has ensured that the

products have actually been brought into conformity.

(6) The competent authority shall issue, where applicable, a

certificate of conformity on the form set out in Annex III of

Commission Implementing Regulation (EU) No 543/2011 for the lot

of products or part thereof, only after such products have been

brought into conformity

(7) (a)

If the competent authority accepts a trader’s wish

to bring the goods into conformity in a Member State other than that

where the check leading to a finding of non-conformity has been

carried out, the trader shall notify the competent authority of the

destination Member State of the non-conforming lot.

(b)

The competent authority issuing the finding of non-

conformity shall send a copy of that finding to the other Member

States concerned including the Member State of destination of the

non-conforming lot.

(8) In the case of products that can neither be brought into

conformity nor be sent as animal feed, industrial processing or any

other non-food use, the competent authority may, if necessary, request

traders to take adequate measures, in order to ensure that the products

concerned are not marketed.

(1)

Any person who contravenes or fails to comply Offences and

with any of the provisions of these regulations shall be guilty of an penalties.

offence against these regulations and shall, upon conviction, be

liable -

(a)

on a first conviction, to a fine (multa) of not less

than five hundred euro (€500) but not exceeding one thousand

two hundred euro (€1,200);

(b)

on a second or subsequent conviction, to a fine

(multa) of not less than one thousand two hundred euro (€1,200)

but not exceeding two thousand and three hundred and twenty-

nine euro and thirty-seven cents (€2,329.37), and to the

suspension of any permit, pass or licence, for a period of not

less than one month but not exceeding six months.

(2) In every case of conviction for an offence against these

regulations, the Court may order the forfeiture of the articles to which

the offence relates and such articles shall be forfeited to the

Government.

(3) Offences against these regulations shall be deemed to be

contraventions but proceedings in respect thereof may be commenced

at any time within one year of the commission of the offence.

(4) Proceedings in respect of an offence against these

regulations shall be taken before the Courts of Magistrates sitting as a

court of criminal judicature and the provisions of the Criminal Code Cap. 9.

relating to criminal proceedings before such court shall, subject to the

preceding sub-regulations of this regulation, apply in respect of

proceedings for offences against these regulations.

(1)

Where the Director has reasonable cause to believe Administrative

penalties.

that -

(a)

an offence against these regulations has been

committed by any person; and

(b)

having regard to the previous conduct of the person

concerned, it would be appropriate to impose a penalty under

this article,

he may cause a notice in writing in accordance with sub-regulation

(2) to be served on that person.

(2) A notice under sub-regulation (1) shall specify -

(a)

the date and nature of the offence;

(b)

a summary of the facts upon which the allegation

that an offence has been committed is based (being a sufficient

summary fully and fairly to inform the person of the allegation

against him);

(c)

any other matters (not being previous convictions)

that the Director considers relevant to the imposition of a

penalty; and

(d)

the amount of the penalty due, and where the

penalty due depends on a previous conviction, the date of such

conviction, and shall be endorsed on a statement setting out the

provisions of this article.

(3) Any person on whom a notice under sub-regulation (1) is

served may, within thirty days after such service by notice in writing

in the appropriate form served on the Director, require that

proceedings in respect of the alleged offence shall be dealt with by

the Court, in which case the following provisions shall apply

(a)

no further proceedings shall be taken under this

regulation by the Director; and

(b)

nothing in this regulation shall be construed to

prevent the institution of any proceedings in respect of the

alleged offence or the conviction of the person for the offence

by the Court or the imposition of any penalty or forfeiture under

these regulations upon such conviction.

(4) Any person on whom a notice under sub-regulation (1) is

served who does not wish that proceedings in respect of the alleged

offence be dealt with by the Court may by notice in writing served on

the Director -

(a)

admit the offence, and

(b)

pay the amount of the penalty to the Director

within thirty days after the notice of the penalty is served or

after such subsequent period as the Director may determine.

(5) Where under this regulation a person admits an offence,

the Director shall impose a monetary penalty on that person in respect

of the offence amounting to one-third of the maximum penalty to

which the person would be liable if he were convicted of the offence

by the Court under these regulations.

(6) The penalty imposed under sub-regulation (5) shall be due

as a civil debt enforceable by the competent Court of civil jurisdiction

in favour of the Government and the declaration by the person on

whom the penalty is imposed that he admits the charge shall

constitute an executive title for the purposes of article 253 of the

Code of Organization and Civil Procedure in the same manner as if it Cap. 12.

were a judgement of the competent Court of civil jurisdiction.

(7) Notwithstanding any other provisions of these regulations

or of any other enactment, where an offence has been admitted under

this regulation no charge may be laid in respect of the offence against

any person by whom it has been admitted.

(8) Where a person on whom a notice under sub-regulation (1)

is served does not, within thirty days after the notice is served on him

admit the offence or does not serve the Director with a notice in

accordance with sub-regulation (3), the Director shall institute

proceedings or cause proceedings to be instituted before the Court in

respect of the alleged offence.

€1.44