In mid October 2012 based on the action brought on by the European Union v Czech Republic case C 37/11, the European Union Court of Justice has prohibited using the designation ‘pomazánkové máslo’ (butter spread ) for a traditional Czech product. The Czech Republic produces over 8 000 tonnes yearly and a large amount of production remains in the Czech market.
This happened after the Czech Republic tried negotiating an exception for the domestic market, where the product has been well established for over 30 years. The Commission has denied the exception.
The application for Traditional Speciality Guaranteed label for pomazánkové máslo has also been unsuccessful. This label is used for promoting traditional agricultural products with a specific character and taste features.
The judgement of the European Union Court of Justice is final and cannot be appealed. In case the Czech Republic fails to respect this judgement, it may be penalized millions of Euros.
What is wrong with butter spread
The European Union Court of Justice concluded that by authorising a milk product that cannot be described as butter to be marketed under the sales designation ‘pomazánkové máslo’, the Czech Republic has failed to fulfil its obligations under Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products
According to the valid EU regulation, butter is a mixture of actual butter and water. ‘Butter’ can be designated as a product with a milk-fat content of not less than 80%. Low fat spread is a product with a milk-fat content of not less than 39%.
However, Czech pomazánkové máslo has different contents and is produced by a different technology. Even if its milk fat content became higher, it could not comply with the EU regulation.
Current Czech legislation is more lenient in this respect as it allows using this designation even for products containing not less than 31% of milk fat. However, this legislation will have to change and since the EU Court of Justice does not lay down any deadline, this change should be introduced without any delay.
Surprising judgement?
The EU Court of Justice judgement caused a great displeasure in the Czech Republic. This measure seemed too harsh to many people, including left and right-wing populists, as it can be detrimental to the pomazánkové máslo producers, who have prepared packaging with this designation and have no alternative packaging ready.
However, this is not a new argument, as the Czech Republic used it many years ago as a reaction to an EU call to ‘rename’ pomazánkové máslo. The argument was based on possible damage in case this legislation was introduced immediately and promised a gradual change, which, however, has never happened.
It would be a short-sighted policy trying to use the same argument after many years of repeated EU calls and reminders.
Still, the Czech Confederation of Commerce and Tourism is pressing on the Ministry of Agriculture to make it possible by the means of prepared decree for the vendors to sell by a certain date the products already made and compensate the producers for packaging in storage, which is not going to be used any more. If the Ministry allows that, taxpayers are going to foot the bill.
We have to look at the broader picture and consider all circumstances. At the time of the Czech Republic accession to the EU there was no legislative way to apply for the exception, which some countries have for their products. The Czech Republic could have applied for this permanent exception during negotiations of its accession to the EU, but has not done so. Slovakia has conformed to European legislation and has refrained from using the designation pomazánkové máslo right after their accession to the EU.
Another valid argument is the actual damage to the Slovakian producers and the EUcommon market rules, resulting from Czechs ignoring their obligations laid down by EU law in this matter.
Finally, according to the European Union Court of Justice there is a danger of misleading consumers – foreigners, who are not familiar with local culture and could be under the impression it is butter indeed, provided they did not find it strange the product has slightly different packaging. One has to admit that pomazánkové ‘máslo‘ (butter spread) might be misleading and may cause damage to a foreign consumer, although not substantial, considering the product value.
We may conclude that when the Czech Republic accepted entry to the EU in a referendum, it obliged to conform to EU standards. Among others, this resulted in the obligation for the Czech Republic to rename pomazánkové máslo by means of domestic legislation.
Who is to blame?
To sum up, the Czech Republic made a noticeable mistake when it failed to apply for a permanent exception for this product (such as, for example, Spain, Great Britain or Sweden have done for similar products). It is something that could have been done during accession negotiations 8 years ago. This mistake meant that later on, that is after the Czech Republic has joined the EU, it was not possible to get the exception and it is due to its tardiness that the Czech Republic has lost a possibility to get pomazánkové máslo labelled as Traditional Speciality Guaranteed. The liability of pomazánkové máslo producers for breaching EU regulations is a separate issue.