Explanatory Memorandum to COM(2012)530 - Amendment of Council Directive 2001/110/EC relating to honey - Main contents
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| dossier | COM(2012)530 - Amendment of Council Directive 2001/110/EC relating to honey. |
|---|---|
| source | COM(2012)530  |
| date | 21-09-2012 |
The aim of the proposal to amend Directive 2001/110/EC relating to honey[1] is to:
(a) align the existing Commission implementing powers with the provisions laid down in the Treaty on the Functioning of the European Union (TFUE); and
(b) in the context of the judgment of the Court of Justice in case C-442/09[2], and, without prejudice to the application of Regulation (EC) No 1829/2003 on genetically modified food and feed[3] to honey containing genetically modified (GM) pollen, clarify explicitly the status of pollen as a constituent particular to honey rather than an ingredient of honey.
(a) The proposal aims to align the existing Commission implementing powers in Directive 2001/110/EC to the differentiation between delegated and implementing powers of the Commission introduced by Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFUE) and to confer additional delegated powers on the Commission.
The Treaty makes a distinction between the powers delegated to the Commission to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act as laid down in Article 290(1) of the Treaty (delegated acts), and the powers conferred upon the Commission to adopt uniform conditions for implementing legally binding Union acts as laid down in Article 291(2) of the Treaty (implementing acts). In the case of delegated acts, the Legislator delegates to the Commission the power to adopt quasi-legislative acts. In the case of implementing acts, the context is very different. Indeed, Member States are primarily responsible for the implementation of legally binding acts of the European Union. However, if the application of the legislative act requires uniform conditions for its implementation, the Commission is authorised to adopt these acts. The alignment of Directive 2001/110/EC on new rules of the Treaty reflects this distinction.
In addition, still in the context of the review of the delegations of powers conferred on the Commission after the entry into force of the Lisbon Treaty, the provisions of the above mentioned Directive have also been scrutinized in order to identify possible supplementary needs in term of powers to be conferred to the Commission under the new classification of the Treaty.
(b) Following a reference for a preliminary ruling under Article 234 EC of the Bayerischer Verwaltungsgerichtshof (case C-442/09), the Court of Justice issued a ruling, whereby it qualifies pollen in honey as an ingredient within the meaning of Article 6(4)(a) of Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of laws of the Member States relating to the labelling, presentation and advertising of foodstuffs i. This conclusion by the Court was based on an assessment of facts brought before the Court according to which the presence of pollen in honey is mainly the result of the action of the beekeeper himself by virtue of centrifugation which he carries out for the purposes of collection. However, pollen only enters into the hive as a result of the activity of the bees. In fact, pollen is found in honey regardless of whether the beekeeper extracts the honey through centrifugation. It appears therefore necessary to clarify in Directive 2001/110/EC that pollen is a natural constituent and not an ingredient of honey. This clarification would however not prevent the applicability of Regulation (EC) No 1829/2003 to honey containing GM pollen[5], and in particular will not affect the conclusion of the Court of Justice that honey containing GM pollen can be placed on the market only if it is covered by an authorisation in accordance with that Regulation.
In light of these considerations, a draft proposal amending Directive 2001/110/EC has been prepared.
Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFUE) distinguish two different types of Commission acts:
Ÿ Article 290 of the TFUE allows the legislator to 'delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of a legislative act'. Legal acts adopted by the Commission in this way are referred to in the terminology used by the Treaty as 'delegated acts' (Article 290(3)).
Ÿ Article 291 of the TFUE allows Member States to 'adopt all measures of national law necessary to implement legally binding Union acts'. Those acts shall confer implementing powers on the Commission where uniform conditions for implementing them are needed. Legal acts adopted by the Commission in this way are referred to in the terminology used by the Treaty as 'implementing acts' (Article 291(4)).
Council Directive 2001/110/EC does not explicitly state if pollen in honey is, or is not, an ingredient in the sense of Article 6(4)(a) of Directive 2000/13/EC. In the absence of such a precision, the Court of Justice, in case C-442-09, issued a ruling whereby it considers based on the assessment of the facts brought before it that pollen is an ingredient within the meaning of Article 6(4)(a) of Directive 2000/13/EC (point 79 of the judgment) of honey. The consequences of this ruling are, inter alia, that the labelling rules related to ingredients set out in Directive 2000/13/EC apply, and in particular the obligation to indicate on the label of the product the lists of ingredients (Article 3(1)(2)). Given that pollen is naturally present in honey and enters in the hive as the result of the bees activity independently of the action of the beekeeper, it is necessary to explicitly mention in Directive 2001/110/EC that pollen in honey is not an ingredient within the meaning of Article 6(4)(a) of Directive 2000/13/EC but a constituent. The fact that honey is a natural substance produced by honey bees to which no food ingredient can be added is reflected in the Codex Standard for Honey[6].
This amendment will not alter the conclusion of the Court of Justice in case C-442/09 that honey containing GM pollen falls under the scope of Regulation (EC) No 1829/2003. Indeed, after the amendment of Directive 2001/110/EC, honey containing GM pollen will continue to fall under Article 3(1)(c) of that Regulation, as 'food produced from GMOs'.
Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFUE) are applicable for the alignment exercise.
Article 6(4)(a) of Directive 2000/13/EC defines the term ingredient as 'any substance, including additives and enzymes, used in the manufacture or preparation of foodstuff and still present in the finished product, even if in altered form'.
Not applicable.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- LEGAL ELEMENTS OF THE PROPOSAL
- Grounds for and objectives of the proposal
- General context
- Existing provisions in the area of the proposal
- Consistency with the other policies and objectives of the Union
- Summary of the proposed action
- Legal basis
- Subsidiarity principle
- Proportionality principle
With regard to the alignment of Commission implementing powers with the TFUE, there was no need for consultation of interested parties or for external expertise or an impact assessment since the proposal is an inter-institutional matter, inherent to the entry into force of the Lisbon Treaty.
As regards the nature of pollen in honey, the general interpretation which prevailed before the judgment was that, for the reasons above stated, pollen was a constituent of honey, and not an ingredient within the meaning of Article 6(4)(a) of Directive 2000/13/EC. As a result the labelling rules applicable to ingredients set out in Directive 2000/13/EC (i.a. the list of ingredients) were not deemed to apply to honey. The proposed amendment of the Honey Directive aims at clarifying that pollen is not an ingredient in honey and will therefore have the effect, with regard to the application of the labelling rules set out in Directive 2000/13/EC, to come back to the situation prevailing until the judgment, without prejudice to the application of Regulation (EC) No 1829/2003 to honey containing GM pollen. As a result, no significant change on interested parties are expected and for this reason, no impact assessment has been carried out.
The Commission has carried out a series of consultations with Member States, in particular in the context of the Standing Committee on the Food Chain and Animal Health (SCFCAH), with stakeholders (including beekeepers associations or NGOs) in particular in the context of the Advisory Group on the Food Chain Animal Health and Plant Health, the Advisory Group for Apiculture, and with third countries in specific meetings that have been organised for this purpose after the ruling, and in the context of different fora of the World Trade Organisation (WTO).
Identify the delegated and implementing powers that should be conferred upon the Commission as regards Directive 2001/110/EC and establish the corresponding procedure for adoption of this act in the new legal context determined by the entry into force of Articles 290 and 291 of the TFUE.
Clarify that pollen in honey is not an ingredient in the sense of Article 6(4)(a) of Directive 2000/13/EC of the European Parliament and of the Council.
Article 43 of the Treaty on the Functioning of the European Union.
The proposal falls under shared competence between the EU and the Member States. In light of the technical nature of the amendment proposed (alignment on rules as regards Commission's implementing powers and clarification of the status of pollen), the proposal does not modify the repartition of competence between the EU and MS as set out by the amended legislation and thus is in line with the subsidiarity principle.
The objective pursued by the proposal is to clarify EU legislation to state that pollen is not an ingredient in honey but a constituent in order to adequately reflect in the legislation the natural origin of the presence of pollen in honey. In this context, the proposal introduces in the Honey Directive a limited amendment of a technical nature which does not exceed what is necessary to attain this objective. No alternatives other than amending EU legislation are possible to reach the above mentioned objective, in light of the existence of an ECJ ruling which provides interpretation of existing EU legislation.
In addition, the alignment of the existing Commission implementing powers in Directive 2001/110/EC with the provisions laid down in TFUE stems from the adoption of the Lisbon Treaty and is thus in line with the proportionality principle.