PROPOSALS FOR SIMPLIFICATION OF EU-LEGISLATION

Prepared jointly by the Danish Minister for Business, Industry and Financial Affairs and the Danish Business Forum for Better regula-

tion March 2019

1

1. FOREWORD

The Danish Government share the European Commission’s strong focus on better

regulation. In our opinion the REFIT-Platform is an important element of the Commis-

sion's Better Regulation system. A pivotal part of the success of the REFIT-Platform

derives from its stakeholder driven approach. The REFIT-Platform provides a channel

for the input of stakeholder suggestions for the improvement of EU regulation and a

structure which evaluates these concrete suggestions from several perspectives and

ultimately feeds them back into the Commission’s policy-making process with addi-

tional weight and insight.

The Danish Government hereby submits 17 specific proposals for simplification of EU-

legislation developed by the Danish Business Forum for Better Regulation. Each of

the 17 proposals has been sanctioned fully or partly by the Danish government. Each

proposal presents a given challenge and a suggested solution and/or action. It is our

hope that the European Commission will take these proposals into consideration in

their important work to reduce unnecessary regulatory costs for European businesses.

Yours sincerely,

Rasmus Jarlov

2

Contents Future-proof directives on biological material ............................................................... 4

Transparency on the rules, procedures and authorities of other EU countries ............. 5

Free data flows across national borders to third countries ........................................... 6

National requirements in the way of the internal market for construction products ....... 7

Modernisation of the Customs Code system: more up-to-date customs codes ............ 8

Modernisation of the Customs Code system: capture of new types of products .......... 9

Exemptions in labelling requirements on fruit and vegetables close to date............... 11

Administrative easing in food product donation .......................................................... 12

Expansion of the Organic Cuisine Label..................................................................... 13

Labelling in distance selling (online sales of food products) ....................................... 14

Drop the requirement for posting of energy labels for larger buildings with public access ........................................................................................................................ 16

Simplification of the European Single Procurement Document, ESPD ...................... 16

Possibility for exemption in conjunction with veterinary control in the import of animal and non-animal food products from third countries .................................................... 18

Relaxation of the 1/3 rule ............................................................................................ 19

Relaxation of requirements for traceability at the batch level ..................................... 20

Relaxation of invoice requirements in trade standards for fresh fruit and vegetables . 21

Introduction of the "End of manure" provision in the Nitrates Directive for the purpose of promoting the recycling of organic residues ........................................................... 22

3

2. INTRODUCTION TO THE DANISH BUSINESS

FORUM FOR BETTER REGULATION

The Danish Business Forum for Better Regulation was established in 2012 by the Min-

ister of Business and Growth as an advisory body to the government to ensure a re-

newal of business regulation in close dialogue with the business community.

The Business Forum has the task of identifying those areas that businesses perceive

as the most burdensome and propose simplification measures. Simplification

measures can mean changed rules, new processes or less time spent on case work

by public authorities. The most essential is that efforts are made in the areas where

businesses express a need for changes.

The Business Forum consists of 20 members representing enterprises, business or-

ganizations and labour unions as well as independent experts with knowledge of sim-

plification. The members meet three times a year to discuss proposals submitted by

themselves or Danish enterprises. Prior to each meeting one or more working groups,

consisting of members of the Business Forum supported by a secretariat, prepare a

package of proposals to be discussed at the meeting. If the Business Forum agrees

on a proposal for simplification it submits the proposal to the Danish government. The

Business Forum is mandated to submit proposals on administrative burdens, and

compliance costs. Furthermore, since 2017 the Business Forum has had a mandate to

propose changes to the rules on taxes and charges that results in minor proceeds for

the state, if it can proof that the proceeds originally intended to secure the rules, are

limited in relation to the associated administrative consequences or other compliance

costs.

The Danish government has committed itself to a ‘comply-or-explain’-principle and is

obliged to either follow a proposal or publicly explain its reasons for not doing so. This

principle is a cornerstone of the set-up of the Danish Business Forum and vital to cre-

ate enough incentive for stakeholders to become engaged with and committed to the

process. All the proposals, government responses and status of implementations are

accessible at the Business Forum’s website (www.enklereregler.dk).

The Danish Business Forum for Better Regulation has overall been a great success.

Since 2012 it has submitted 803 proposals to the government and so far, the govern-

ment has replied to 730 of these and will comply fully or partly with 600 - more than 82

percent of the total. Several of the proposals from the Business Forum has contributed

to the Danish governments aim to reduce the overall compliance costs for businesses

with 4 billion DKK (536 million EUR).

4

Future-proof directives on biological material

Problem The Danish health sector is innovative and continuously developing

new products. EU legislation in this area is, however, unfortunately

constructed in silos, with directives for blood, tissue, medicines,

medicines for advanced therapy and medical devices. New innova-

tive products such as substrates, regenerative cell therapy prod-

ucts and frozen sperm do not necessarily fit into only one of these

categories and, depending on the production process they can

change from one directive to another. At the same time it is difficult

for companies to obtain clear guidance from either Danish or Euro-

pean authorities. There are currently different schemes under the

EMA, CAT, and the Innovation Task Force (ITF) that advises

whether a new product belongs under the ATMP category and their

decisions are public. The problem is that if the response from CAT

is that a company's product is not ATMP, they will not receive guid-

ance on what legislation their product is subject to. If it is not medi-

cal equipment or is not covered by the tissue directive, the compa-

ny is left without guidance and without guidelines as to how they

can ensure patient safety. The ITF's advice is not specific enough

to provide answers to these companies' questions. This situation creates a high degree of uncertainty and therefore

administrative burdens and significant time wasting for innovative

health companies in both the development process and in the pro-

cess of bringing products to the market. The companies want to en-

ter into a dialogue on how they may best comply with the rules and

ensure patient safety, but this is not currently possible. Time waste

is due to the fact that the companies risk initiating procedures for

compliance with rules, only to find out at a later stage in the pro-

cess that they should have followed parts of another directive. The

lack of clarity may also ultimately result in risks to patient safety.

Proposal The Business Forum proposes that, in conjunction with evaluation

of the tissue and blood directive, among others, to future-proof the

regulatory framework for biological material. This can be achieved

through developing a new and more flexible directive for the types

of products that are not transplanted in the traditional sense. It is

proposed that the experiences from the US legislation in the area

where, for example, a monograph has been established for raw

materials in the category "Ancillary material for gene and cell ther-

apy" and the use of these materials in advanced therapy medi-

cines, be used as a basis. The Business Forum further recommends that a European advisory

unit be established to assist the companies in finding out which

rules their new products must comply with. A body is requested

who, based on a description of the product, production process and

mechanism of action, could advise on how the product is to be cat-

egorised. The ideal would be easy access to guidance on the inter-

5

pretation of the requirements in the individual regulatory frame-

work.

Transparency on the rules, procedures and authorities of other EU countries

Problem Companies exporting or wanting to export goods or services to

other EU countries would like to make sure that they are compliant

with all rules of the export market. The companies therefore con-

sume resources finding out which rules they must comply with in

the individual EU countries and what procedures they must go

through to comply with the rules, and what authorities they must be

in contact with. There is often a lack of transparency as to where

the company can find the necessary information and at times the

information is only available in the local language. One example could be a Danish manufacturing company that has

sold an installation to a customer in another EU country. This might

be, for example, a system to be used in the customer's food pro-

duction operation. As part of the agreement, the Danish company

installs the system in the customer's manufacturing facility and the

company provides "after sales service" on the system as needed.

This is a case where export of both a product and a service are in-

volved. Such a delivery can, depending entirely on the specific

product and specific service provision, be covered by many differ-

ent national requirements in other EU countries. This may, for ex-

ample, be national requirements for: - type approval, insurance and/or service for the purpose of safety; - employee qualifications, certificates of employee competence, lo-

cal safety certificates, documentation for working capacity and

health etc.;

- other working environment-related requirements; - information on posted workers' employment contracts and sala-

ries; - various tax conditions, including registration of employees with

the local tax authorities; - use of vehicles and work machines used to perform the service; - permits, if the work requires, for example, transportation of over-

size objects. The companies are met with many different portals, entries and in-

6

formation websites. Some are national, while others are European.

There is a need for each individual EU Member State to have an

entry that effectively provides the companies with the necessary

overview of what rules they must comply with (step by step guid-

ance), what they need to do to uphold them (procedures), what

documents they need to have in place, and when and what authori-

ties they must be in contact with.

Proposal The Business Forum proposes that each EU country has a single

comprehensive point of access to information on the rules, pro-

cesses and authorities that a foreign company must interact with to

comply with the country's rules and with guidance on how the com-

pany is to comply with these rules. The information on this single

point of access should pertain to goods and services as well as

employees. Information, guidance and documents must be availa-

ble in English in all EU countries.

Until one comprehensive point of access to information in each EU

country is established, it is proposed that the Danish authorities, in-

cluding the Danish "point of single contact" assist in establishing

contact with relevant authorities or points of access in other EU

countries.

Free data flows across national borders to third countries

Problem One of the major trade policy topics in the EU is how free data that

flows across national borders are to be secured in the future. It is

therefore a cause for concern that, among other things, China,

Russia, Indonesia and Vietnam have introduced so-called "data lo-

calisation requirements", meaning that data must be stored on local

servers and that there is either an absolute or predominant ban on

transferring data out of the country. This trend is also being seen in

other parts of the world. The think tank ECIPE has illustrated that

the number of data localisation requirements on the global stage

has increased from 42 to 84. EU Member States have reached a consensus on prohibiting data

localisation requirements within the EU's internal market, unless

required by special security concerns. However, this is not the case

when it comes to free data flows between the EU and third coun-

tries, where there is no consensus among the Member States. The

concern among sceptical EU countries is that there will not be suf-

ficient protection of personal data when such data is stored outside

the EU's national borders. The Commission has initially submitted a proposal on how provi-

sions on data flows should look in the EU's free trade agreements,

7

but no plan has been made for political negotiations. The Commis-

sion's proposal is very broadly formulated, and this opens up the

possibility for the EU and trade partners to be able to introduce da-

ta localisation requirements to protect personal data. This is prob-

lematic, as it may lead to barriers to digital trade to a large extent.

The exemption for free data flows should, in line with the regulation

on data flows in the EU internal market, be proportionate and im-

pose as little restriction on trade as possible. It is essential that the EU's free trade agreements be used to break

with data localisation requirements. This is firstly because require-

ments for data to be stored and/or processed locally often result in

significant additional cost for foreign companies. Without compulso-

ry data localisation, for example, a Danish company can build a

wind farm in a third country and then use data from the turbines for

continuous optimisation and maintenance from the headquarters in

Denmark. With compulsory data localisation, however, the Danish

company must meanwhile pay for the maintenance of a dedicated

data server in the third country. Secondly, compulsory data locali-

sation causes companies to miss out on potential productivity im-

provements. Another important point is that SMEs can improve

their cost savings. The reason for this is a growing market for cloud

computing that provides computer services via the Internet. Cloud

computing provides SMEs with the opportunity to outsource data

storage, operation and development of software solutions.

Proposal The Business Forum proposes that the EU write into bilateral free

trade agreements that data can be freely transferred between the

EU and the third country in question and that the parties agree to

comply with the requirements of the EU GDPR. This ensures a

balance between the interests of privacy and companies' abilities to

transfer data across national borders. It is essential that consumer

confidence in companies be maintained, while at the same time al-

lowing companies to seize digital opportunities to optimise their

products and services.

National requirements in the way of the internal market for con-struction products

Problem The Construction Products Regulation regulates trade in construc-

tion products in the EU and has been fully applied since July 2013.

According to the Construction Products Regulation, a manufacturer

can market its products throughout the entire internal market if the

product in question has a valid CE marking and a Declaration of

Performance that describes the product's properties in accordance

with a relevant harmonised standard. The individual Member

States must not set requirements for additional labelling of the de-

8

clared properties (for example, a Member State must not set a re-

quirement for a specific national fire rating if the fire properties have

already been declared in the Declaration of Performance). The EU Commission has previously launched information cam-

paigns on the Construction Products Regulation (2012 and 2014),

which were primarily directed at companies, particularly SMEs, but

also public authorities and consumers of construction products.

Several industry organisations and public authorities also ran in-

formation campaigns directed towards their respective members or

areas._ftn1 Even so, there are still a number of Member States in the EU that

set requirements on, for example, national type approvals and doc-

umentation of fire properties for ceiling panels (in wood and wood-

like products). This applies in, among others, Sweden, Belgium and

France, where requirements are set for SITAC, SBM and ACERMI,

respectively, which are foreign fire approvals.

Proposal The Business Forum proposes this challenge to be addressed

through the Commission to take additional measures – such as in-

formation campaigns and direct communication with the authorities

in the Member States – to clarify and increase focus on the fact

that national authorities are not permitted to set additional require-

ments on construction products if the same requirements are cov-

ered by the provisions of the Construction Products Regulation.

This shall also include focus on CE marking, where there are still a

number of challenges with respect to communication across the

EU. In their information campaigns, the Commission should focus

on improving the function of points of contact and expanding

awareness of these in the construction sector.

Modernisation of the Customs Code system: more up-to-date cus-toms codes

Problem The World Customs Organization (WCO), which is part of the

WTO, has adopted a Customs Code system that ensures that

countries speak the same language when trading with one another.

The WCO Customs Code system includes the so-called "Harmo-

nised System Codes", which are normally referred to as "HS

codes". These are the over-arching customs codes that include the

first six digits of the Customs Code system. In the countries and

trade blocks that are members of the WCO, sub-codes have been

adopted with reference to the HS codes. In the EU, this involves

the "Combined Nomenclature" (CN codes), which establish the

seventh and eighth digits in the Customs Code system.

9

The problem is that the HS codes are only updated at five-year in-

tervals and that the WCO has many member states that need to

reach consensus. The Customs Code system has, for this reason,

been lagging behind technological development for years. Every

year, national authorities and European industry organisations

have until 30 April to submit proposals for updates to the CN codes

and the related explanatory notes. After this point, the EU Commis-

sion (DG TAXUD), Eurostat and Member State representatives in

the Customs Code Committee then decide on what proposals will

be implemented. Despite the annual updates, it has proven difficult

for companies – among them electronics companies that produce

technology – to figure out how they are to classify their products

within the Customs Code system. The Danish translation of the Customs Code system is given in the

Danish Customs and Tax Administration's search systems eVita

and Taric. This includes, for example, categories such as "televi-

sion sets, telephones, sound recorders, sound reproducers etc."

These are outdated descriptions that make it difficult for the com-

panies to find correct customs tariffs for products that function on

the basis of WiFi, Bluetooth and other wireless connections. The

Customs Code system thus uses terms that are outdated in relation

to technological development. Furthermore, there is doubt in sev-

eral cases as to whether the explanatory notes for each customs

code have been correctly translated into Danish. It is important that the companies have an up-to-date and compre-

hensible basis for correct tarification. As an example: if the Danish

Customs and Tax Administration, is determined following a cus-

toms inspection where the product is incorrectly tariffed, according

to EU rules a customs penalty must be paid for the last three years. A high level of uncertainty seems to prevail among all parties

(companies, the Danish Customs and Tax Administration, Force

and the international shipping providers the companies use for

clearance) as how to do it correctly.

Proposal The Business Forum proposes a close cooperation to be estab-

lished between European industry organisations for the purpose of

clarifying how the EU's CN codes should be updated so that the

customs codes can be brought up to date and thus adequately

serve to categorise new types of products in fields such as elec-

tronics, technology and digital solutions.

Modernisation of the Customs Code system: capture of new types of products

10

Problem The World Customs Organization (WCO), which is part of the

WTO, has adopted a Customs Code system that ensures that

countries speak the same language when trading with one another.

The WCO Customs Code system includes the so-called "Harmo-

nised System Codes", which are normally referred to as "HS

codes". These are the over-arching customs codes that include the

first six digits of the Customs Code system. In the countries and

trade blocks that are members of the WCO, sub-codes have been

adopted with reference to the HS codes. In the EU, this involves

the "Combined Nomenclature" (CN codes), which establish the

seventh and eighth digits in the Customs Code system. The problem is that the HS codes are only updated at five-year in-

tervals and that the WCO has many member states that need to

reach consensus. The Customs Code system has, for this reason,

been lagging behind technological development for years. Every

year, national authorities and European industry organisations

have until 30 April to submit proposals for updates to the CN codes

and the related explanatory notes. After this point, the EU Commis-

sion (DG TAXUD), Eurostat and Member State representatives in

the Customs Code Committee then decide on what proposals will

be implemented. Despite the annual updates, it has proven difficult

for companies – among them electronics companies that produce

technology – to figure out how they are to classify their products

within the Customs Code system. The Danish translation of the Customs Code system is given in the

Danish Customs and Tax Administration's search systems eVita

and Taric. This includes, for example, categories such as "televi-

sion sets, telephones, sound recorders, sound reproducers etc."

These are outdated descriptions that make it difficult for the com-

panies to find correct customs tariffs for products that function on

the basis of WiFi, Bluetooth and other wireless connections. The

Customs Code system thus uses terms that are outdated in relation

to technological development. Furthermore, there is doubt in sev-

eral cases as to whether the explanatory notes for each customs

code have been correctly translated into Danish. It is important that the companies have an up-to-date and compre-

hensible basis for correct tarification. For the reason that if the

Danish Customs and Tax Administration determines following a

customs inspection that the product is incorrectly tariffed, according

to EU rules a customs penalty must be paid for the last three years. A high level of uncertainty seems to prevail among all the bodies

(companies, the Danish Customs and Tax Administration, Force

and the international shipping providers the companies use for

clearance) as to how to do this correctly.

11

Proposal The Business Forum proposes that the initiative to develop pro-posals in dialogue with European industry organisations on how the HS codes can be updated to capture new types of products in the areas of electronics, technology and digital solutions. The proposal can be brought into play in conjunction with the WCO's next update of the global Customs Code system.

Exemptions in labelling requirements on fruit and vegetables close to date

Problem Fruit and vegetables constitute the greatest food waste in the retail

sector. This is a category that is difficult to manage, partly because

there are no date labels on the goods and customers often seek

out the freshest goods. This often means that goods with a less

appealing appearance are left in the shops. Fruit and vegetables

are subject to a number of labelling requirements cf. EU trade

standards for fresh fruit and vegetables, such as information on

origin, variety and class. The requirements also mean that if a

piece of less desirable fruit or a vegetable is sorted out and placed

in a new location in the shop for the purpose of donation or sale at

a reduced price in the shop, the labelling information on the prod-

uct, such as for origin, must follow the product. If a shop wants to combat this food waste by collecting less desira-

ble fruit and vegetables and selling these elsewhere in the shop at

a reduced price or as a give-away to customers, it will therefore be

very difficult to ensure full compliance with the labelling require-

ments, as the goods will be randomly mixed together. In some cas-

es, there may be two types of the same product with different

origin, thereby running the risk of misleading consumers. The con-

sumer does, however, always have the possibility of declining "date

goods" if they cannot accept the lack of traceability information. Fruit and vegetables cannot be marked down in the same way as,

for example, a package of sliced meat or a litre of milk. One solu-

tion might be to remove less desirable fruit and vegetables from the

usual shelves and repackage them in a "grab bag" at a greatly re-

duced price. However, in practice this will not be possible with the

current labelling requirements for fruit and vegetables.

Proposal The Business Forum proposes an exemption from the labelling

requirements for fruit and vegetables through in-shop donations or

repackaging food waste bags at a significantly reduced price, which

would also be sold in-shop, so that retailers have more opportuni-

ties to combat food waste.

12

Administrative easing in food product donation

Problem Retailers with food sales experience unnecessary stringent tracea-

bility requirements in the donation of surplus food products, such

as to charitable organisations, shelters etc. This results in unnec-

essary food waste, as it is too expensive and complicated for the

companies to donate. When delivering goods to other food product businesses, the gen-

eral provisions on traceability must be upheld – i.e. requirements

on traceability one step forwards and one step backwards in the

chain (cf. Danish Veterinary and Food Administration guidelines on

traceability). In addition, there are a number of additional require-

ments for traceability on a number of products, such as meat. Traceability is an important tool, as food companies have a duty to

withdraw products that do not meet requirements with food product

safety from the market. This is usually done on the basis of invoice

and IT systems. Traceability requirements are not inherently problematic for whole-

sale companies, for example. But for retailers, which are not nor-

mally covered by the "one step forward" traceability requirement, it

is very difficult under the current rules to donate surplus food items

to charitable organisations. This is due to the fact that retailers sell

to the end consumer, who only receives a receipt for purchase and

thus not an invoice that can be traced to the party having pur-

chased the product. The companies therefore do not have electron-

ic systems to handle traceability documentation one step forward in

the chain. Ensuring traceability from one retail shop to another food product

business must therefore rely on manual handling in the shop, i.e.

an invoice must be manually drawn up and a register kept of recip-

ients in the event of recalls. In conjunction with a recall, the shop

must manually review lists of the food companies that received the

goods and contact them for the purpose of recall, which can be a

major administrative burden. These rules also apply if retailers

choose to donate to other companies, such as organised food

banks. The current traceability rules thus limit the incentive to do-

nate surplus products to charitable organisations etc.

Proposal The Business Forum proposes an exemption from traceability re-

quirements in the donation of surplus food products to charitable

organisations. The recipient companies, i.e. charitable organisa-

tions etc., must instead be considered equivalent to end consum-

ers. It may also be added that a recipient must declare that they will

stay up-to-date through the website of the Danish Food and Veteri-

nary Administration with regard to any food product recalls.

13

Expansion of the Organic Cuisine Label

Problem Artisan shops with food product production, such as craft bakers,

delicatessens etc., currently refrain from using organic raw ingredi-

ents because they cannot use the Organic Cuisine Label but in-

stead must live up to very expensive and outdated rules for organic

accountability. If a business involves both conventional and organic raw ingredi-

ents in its production, and therefore sometimes mixes the raw in-

gredients in a single product, such as a main dish in a restaurant,

the red organic label may not be displayed. The Organic Cuisine

Label solves this problem. The company must keep a collective

volumetric account of its purchased raw materials and calculate

from this its total percentage of organic product, such as 52 per

cent, which equates to a bronze label. The Organic Cuisine Label can currently be obtained only by res-

taurants, cafes and commercial kitchens. The label is a good op-

portunity to display organic labelling to customers, and the different

tiers of the label, i.e. gold, silver and bronze, give companies the

possibility to use organic goods in different amounts. Retailers with food production, i.e. artisan shops – such as bakers,

butchers, fish mongers and cheese mongers, are currently not

covered by the Organic Cuisine Label, even though the label is fully

suitable for such retailers. Sales of organic food and beverages totalled DKK 2 billion in 2016,

equivalent to an increase of 21% compared to previous year. There

is, however, a significant unrealised growth potential in the sale of

organic goods produced in retail. Comparing the development be-

tween, for example, wholesalers and retailers, there is a clear trend

towards slower expansion in the retail segment. In 2005, 494

wholesalers were covered by organic classification, compared to

only 113 retailers. In 2015, these figures had grown to 1,364

wholesalers and 256 retailers. A cuisine label system, such as for

artisan shops with their own food production, will support growth

and thereby also the demand for organic raw materials in Denmark. There are currently 2,223 organic cuisine labels in Denmark, but

the potential is much higher.

Proposal The Business Forum proposes that artisan shops specialising in

food production can be covered by the Organic Cuisine label on

equal footing with commercial kitchens and restaurants.

14

Labelling in distance selling (online sales of food products)

Problem The current labelling rules for food products, cf. EU's food product

information regulation, present a number of challenges for compa-

nies wanting to offer online sales of food products directly to the

end consumer. The applicable rules as to when information on a

food product must be made available to the consumer are in prac-

tice much more difficult to comply with in so-called distance selling

for several reasons. This serves to reduce the development of

online sales of food products in Denmark significantly. The existing rules on labelling of food products are regulated by the

EU's food product information regulation (1169/2011). According to

legislation, all statutory information, with the exception of expiry

date, must be available to the consumer in distance selling (online

sales). In addition, many products are subject to specific statutory

disclosure requirements. For meat, for example, information must

be provided on the country in which the animal was born, raised,

slaughtered and butchered. There are also specific labelling re-

quirements for packaged self-produced goods in shops, depending

on whether the goods are sold over the course of one day or sev-

eral days, or if they are sold as unpackaged food products, such as

fruit and vegetables. In practice, it is very difficult to ensure that all mandatory infor-

mation is correctly provided and fully up-to-date at the time of pur-

chase on a website, as the range (product) is subject to continual

variation. This is particularly applicable for certain digital sales solu-

tions, such as click-and-collect, where the product is purchased

online, but physically retrieved in a self-selected shop. In practice,

this results in significant restrictions on the number of goods that

can be sold online, as it is highly resource-intensive to ensure full

consistency between a product listed on a website, and all similar

products in a warehouse or in a shop. In a physical shop, one purchases a physical pre-packaged food

item on which the statutory labelling is printed. If the product

changes from day to day, the label follows, because the individual

suppliers are responsible for labelling on the individual products. In

the case of distance selling via a website, this same flexibility is not

there, and there is not the same simultaneity between time of pur-

chase and delivery. It is difficult to ensure a detailed labelling of

products such as meat, fish, vegetables and other products where

suppliers and origin and other mandatory information can change

on a daily basis, including overnight. For instance, an example could be 1 kg of apples or 500 g minced

beef, offered for sale online today from 8:00 AM and available until

the shop's closing time at 9:00 PM. A customer orders a package

of 1 kg of apples at 8:55 PM. The order is packaged the following

day at 8:00 AM, when a new batch of 1 kg of apples has been de-

15

livered. The product presented online is available in the shop at the

time of purchase, but the actual product that can be delivered at

the time when the order is packaged comes from another country

and is of another variety and size. Examples of information that is very difficult to keep fully updated in

all sales situations include: Fresh meat: Origin, raised and slaughtered Fresh fish: Area and catch method. Fruit and vegetables: Country, variety and class Organic: Control code number and geographical origin. Use/preparation methods. Packaging: Packaged in a protective atmosphere. Currently there are only exemption possibilities where variation in

country of origin is concerned for fruit and vegetables, while there

are no exceptions with regard to variety or control code number re-

garding organic products. As such, the current exemptions in prac-

tice are not sufficient. The consequence for the companies is that

they may be required to have a very limited selection online in or-

der to be able to fully comply with the labelling rules.

Proposal The Business Forum proposes that exemptions in distance selling

can be expanded, as it is already the case for expiry date and vari-

able country of origin for fruit and vegetables, so that a pragmatic

solution to the problems of labelling in distance selling can be

found. In concrete terms, the Business Forum proposes that specific min-

imum requirements be introduced for the information that must be

available to the consumer in distance selling, i.e. information on the

website. For example, there may be the following minimum re-

quirements for distance selling: Product name, list of ingredients,

nutritional declaration and information about origin. Consumers will still receive all statutory labelling information upon

delivery/retrieval of the goods, as these are always available on the

packaging itself, and the company can reconcile expectations with

the customer at the time of purchase by pointing out that there may

be some variance in the product provided.

16

Drop the requirement for posting of energy labels for larger build-ings with public access

Problem It is currently a requirement that hotels, restaurants and other build-

ings with a floor space of more than 250 m2 must display the build-

ing's energy label. This means that hotels and restaurants must

post a physical sign at the entrance to their business. It is the experience of these businesses that guests do not make

use of the physical energy label at the entrance when first arriving

at the hotel or restaurant, which is why these businesses consider

this to be unnecessary bureaucracy imposed on them. Physical

energy labelling is out of date, as most guests use digital channels

when they are either searching for or making a booking at a hotel

or restaurant. At the same time, hotels and restaurants are increasingly furnished

according to stringent concepts, and the companies generally con-

sider the label to be disruptive to their visual designs.

Proposal The Business Forum proposes that the requirement to post energy

labels in publicly accessible spaces such as restaurants and hotels

or other large buildings with floor space of more than 250 m2 be

withdrawn or replaced with the option of, instead providing infor-

mation on, the building's energy label on the company's website.

Simplification of the European Single Procurement Document, ESPD

Problem The new European Single Procurement Document, ESPD, is used

by both public contracting entities and companies in the procure-

ment of public contracts for construction and engineering jobs and

purchase of goods and services. The ESPD was introduced in con-

junction with the revision of the EU's procurement directives in

2013 and entered into force in the beginning of 2016, with a view to

making it easier for companies to participate in public procurement.

The basic idea behind the ESPD is that the companies can satisfy

requirements by submitting an ESPD instead of complete docu-

mentation with annual accounts, service certificates etc. when ten-

dering on public projects. At the same time, the ESPD has been

digitised for the purpose of making the ESPD an easy-to-use tool

for the companies. Unfortunately, the ESPD is in practice unnecessarily complicated to

complete, includes items that are unclear and superfluous, and the

electronic version is encumbered with a number of technical prob-

lems. These problems make the ESPD difficult to handle and at the

17

same time add to the risk that the companies will be judged non-

conformant in the tendering process if they submit an ESPD with

errors. Companies that only occasionally submit tenders for public works

(typically smaller companies) have particular difficulty completing

the ESPD, partly because they have not developed a routine for

completing the form. Companies spend a lot of time filling out the

form every time and this requires extensive resources. The compa-

nies state that it is not uncommon to spend 3-4 hours filling out the

form. This is on top of the time spent drawing up the tender itself, of

course. Many companies have also found it necessary to obtain ex-

ternal legal assistance to correctly complete the form. The following problems encumber the ESPD: Unclear/superfluous items: - The structure of the ESPD blends information specific to the indi-

vidual tender with information that is generic for the company. The

ESPD is not intuitively designed and therefore difficult to under-

stand and complete correctly. - Contracting entities determine

which fields in the ESPD are necessary for the companies to com-

plete. This applies, for example, in relation to what grounds for ex-

clusion shall apply for the specific tender. The fields that the con-

tracting entity does not want to have completed nevertheless ap-

pear in the ESPD. This creates uncertainty among the companies

as to what the contracting entity wants to have completed. - The

text in the ESPD is unclear in some places, sometimes reverts to

heavily legal language or refers to certificates that do not exist in

the industry in question. - References need to be written in one

long entry and the layout in the digital solution makes it unclear as

to whether or not the contracting entity can see the whole thing.

There is often a need for more than five references, which is why

some contracting entities request a description of references sepa-

rately. This creates extra work for tenderers, as they must both

complete the ESPD and an annex with nearly identical information.

- Some fields do not include sufficient space to write the entire rel-

evant text, for which reason this must be added by hand in cases

where the ESPD is printed. - Accounting information is indicated in

the ESPD template as covering the entire calendar year. This cre-

ates confusion, as many companies stagger their annual accounts

in relation to the calendar year. Technical problems: - If one saves an ESPD that is only partially completed, all the text

is missing when it is re-opened. - Uploading and downloading of

the ESPD in electronic format is unnecessarily complicated, as it

requires use of XLM files that are not readable using standard

software. The files are only readable when they are opened

18

through the Commission's web-based ESPD website. - When the companies wish to reuse a previously completed ver-

sion of the ESPD for a new tender, the ESPDs need to be merged

via the Commission's ESPD website. This functionality does not

work and it is therefore not possible to reuse already completed in-

formation. - Use of ID numbers from the EU publication office does

not work. - The print function results in an unorganised and not par-

ticularly presentable print-out. The companies are complaining

about this, as the material actually constitutes part of their sales

material, and the companies do not wish to appear unorganised to

their public customers. - The companies have found that the alpha

function (which makes it possible for the tenderers to report with

one click that they pass all the exclusion criteria) was invisible

online but visible in the printed version. The same was found to be

the case with the selection criteria, for example.

Proposal The Business Forum proposes a review and streamlining of the

ESPD in its current form. This can include, among other things: - A reorganisation of the ESPD's structure, as the current layout of

the ESPD blends base information from the companies with tender-

specific information. The structure of the ESPD appears illogical

and unclear, which creates confusion in the companies. - Fields

that is not requested for completion should be left out of the ESPD.

This should, if possible, also apply to sections that are irrelevant in

a national context (e.g. the question about whether a company is

included on official lists of approved companies). - A warning

should come up if a company has neglected to fill in fields that

should have been completed. - The field to enter references does

not function optimally. This is partly because five references are of-

ten not enough and the layout makes it impossible to provide clear

descriptions. - The ESPD typically turns out to be 16-18 pages

long, but it would be made shorter and clearer by not reproducing

the entire test for all requirements, such as the exclusion criteria

that the Commission has indicated in the ESPD. Only the text from

the contracting entity and tenderer should be visible.

Possibility for exemption in conjunction with veterinary control in the import of animal and non-animal food products from third coun-tries

Problem The import of animal and non-animal food products from third

countries must be carried out through selected border control sites

where the goods are subject to veterinary controls. If procedural er-

rors occur – for example, if the lorry driver makes a driving error

and delivers the goods directly to the customer – there is currently

no possibility for exemption.

19

The food products are seized by the authorities and the importer

must either return the goods to the country of origin (such as Thai-

land), reprocess the food products as animal feed or destroy the

lot, cf. Section 11 para. 2 and Section 19 of Guideline no. 268 of 7

April 2015 (on veterinary control in the import of animal food prod-

ucts and penalties for violation of related EU acts). These requirements may, for example, mean that a lot of goods

(such as spices, tinned food etc.) needs to be sent all the way back

to the third country (such as Thailand) because of a documentation

error, after which the very same goods are simply returned with

new documentation. This can result in significant financial costs for the importers in ad-

dition to an unnecessary environmental and climate impact.

Proposal The Business Forum proposes the introduction of an exemption in

Regulation 669/2009 and relevant guidelines so that the national

authorities have the option, through physical inspection of the

goods, to derogate from the requirements if the goods do not pose

a food safety risk. Such a decision shall always depend on a risk-

based assessment by the authorities.

Relaxation of the 1/3 rule

Problem A registered retail company must, in order not to lose its status as a

retail company, have limited sales to other retailers that sell directly

to the end consumer. The limited sales can be, for example, to su-

permarkets and restaurants. This activity must be recorded. The

so-called 1/3 rule this limits the sale of animal food products from

retailers to retailers.

It is very time consuming to sort through and find all the animal-

based products in the shop (dairy products, sliced meats, tinned

products, fish products, mixed products etc.) and then calculate the

proportion of goods sold to retailers, just as the fact that a company

may not deliver the products more than 50 km away in itself limits

the opportunity for sales from one retailer to another. It is not only very time-consuming to calculate the volume of animal

goods sold from retailer to retailer in relation to the total volume of

animal products sold, but also nearly impossible to quantify, and as

a retail shop it is very difficult to see the purpose in this. Many convenience shops are registered for 1/3 sales, as there are

sales daily to institutions and other retailers that buy both animal

and non-animal products in the chain's shops.

20

It is a very great administrative burden to keep record of these vol-

umes. Finally, a company operating in both wholesale and retail under the

same company registration number may not return goods to its

own stock, as the stock is not considered part of the retail opera-

tion. This creates problems for a business procedure where goods

with extended expiry dates are taken from the shelves in the retail

shop and stored in a central warehouse to later be offered for retail

sale. Elimination of this rule requires an amendment to the articles of the

regulation. This means that this rule should be relaxed on the EU

level.

Proposal The Business Forum proposes that the documentation require-

ments become more flexible in relation to the 1/3 rule. For exam-

ple, one can relax the distance requirement and eliminate the rule

that larger players who have both wholesale and retail operations

under the same business registration number may not return goods

to a warehouse for the purpose of later retail sales.

Relaxation of requirements for traceability at the batch level

Problem There are more and more requirements for traceability at the batch

level. These requirements have been introduced into EU regula-

tions on the basis of food safety and recalls. But this objective can

be satisfied through other methods that we in Denmark have al-

ready practised for many years. Registration on the batch level of

all goods sent to the shops will require investments in the double-

digit millions for wholesalers.

Traceability on the batch level means that the wholesaler must not

only know/record what product has been sent to what shop, when

and in what quantity, but also what batch (the batch must be indi-

cated on the product, such as with a batch code, as a production

date, expiry date or similar). So it is not sufficient to say that a shop

receives 20 x 500 g of liver pate, item no. xyz, on 7 December

2015. It must also be made known that the shop on Nørregade and

17 other shops received liver pate produced on 4 December and

the shop on Søndergade (and 27 other shops) received goods pro-

duced on 5 December. We presume that these rules were established in the belief that this

information would be necessary in order to be able to recall a prod-

uct if problems with it were discovered. But Danish retailers can

easily recall goods that may have issues without having to record

21

the batches of the goods supplied. If, for example, dangerous bac-

teria are discovered in the liver pate produced on 4 December, an

electronic message is sent to all shops that received liver pate,

item no. xyz, and the shops look at the goods they have in their

cold counter, and if there is anything with the production date 4 De-

cember, it is discarded. A corresponding press release is issued so

that consumers can discard the liver pate if they have it. Commission Implementing Regulation (EU) No 931/2011 of 19

September 2011 on the traceability requirements set by Regulation

(EC) No 178/2002 of the European Parliament and of the Council

for food of animal origin. Regulation (EC) No 178/2002 of the European Parliament and of

the Council of 28 January 2002 laying down the general principles

and requirements of food law, establishing the European Food

Safety Authority and laying down procedures in matters of food

safety, as amended by 1642/2003, 575/2006, 202/2008, 596/2009

and 652/2014.

Proposal The Business Forum proposes that if the purpose of the rules is to

be able to recall defective goods, it must be legal to have other sys-

tems that can, with equal certainty, ensure that the defective goods

can be recalled. It should be examined whether it is necessary in

the various stages of the food supply chain to have such a detailed

traceability as has been established.

Relaxation of invoice requirements in trade standards for fresh fruit and vegetables

Problem It is defined in the trade standards for fresh fruit and vegetables

that "Invoices and accompanying documents, excluding receipts for

the consumer, must indicate the name of the products and country

of origin and class, sort or trade type, where relevant, if this is re-

quired in a specific trade standard or that the product is intended

for processing". The same Regulation states that the requirement

was established to ensure that correct and effective controls can be

carried out. Many companies in Denmark cannot meet the above

requirements in their existing electronic systems, and it would be a

major administrative and financial burden to introduce this. We currently have an effective control of the trade standards for

fresh fruit and vegetables. This is due, among other things, to the

fact that the products are labelled with the required information –

and we have a very well-functioning and effective traceability sys-

tem that ensures at all times that defective goods can be rapidly

and effectively recalled from the market. This is not due to the

22

abovementioned requirement for this information to be included on

invoices/accompanying documents, as many companies do not

have the possibility in their IT systems to fulfil this requirement. The

requirement therefore does not measure up to the desired effect.

Proposal The Business Forum proposes a repeal of this requirement, as

other existing legislation already ensures that correct and effective

controls can be carried out.

Introduction of the "End of manure" provision in the Nitrates Di-rective for the purpose of promoting the recycling of organic resi-dues

Problem The EU's Nitrates Directive (Directive 91/676) establishes an upper

limit on the amount of livestock manure that may be added to the

soil in nitrate-sensitive areas. The maximum limit is set to the

amount of livestock manure that corresponds to 170 kg of nitrogen

per hectare per year (Annex III, 2.). In this directive "livestock manure" is understood to be excrement

from livestock, or a mixture of litter and excrement from livestock,

including in processed form (article 2, g). The provision stating that

this also applies to livestock manure in processed form creates un-

certainty as to how nitrogen extracted from livestock manure

should be regulated in relation to the Nitrates Directive. If the nitro-

gen from livestock manure undergoes processing in which the ni-

trogen is extracted in a form so that it can be included in formulated

fertiliser products, it should be considered the equivalent of trade

manure in regulatory terms.

Proposal The Business Forum proposes that the Danish Government work

for the introduction into the Nitrates Directive of a parallel provision

to the waste directive's "end-of-waste" and the biproduct regula-

tion's "final point in the manufacturing chain" provision – so that

livestock manure or fractions of livestock manure can reach a point

in the processing process where it is a new product/secondary raw

material and can therefore be regulated and marketed without a

history as livestock manure.