3. We have given further
consideration to the following on the basis of a further Supplementary
Explanatory Memorandum. We maintain our opinion[7]
that it raises questions of political importance. We now consider
that it also raises questions of legal importance. Our recommendation
is set out in paragraph 3.12 below:-
MINISTRY OF AGRICULTURE, FISHERIES AND FOOD
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(17535)
10495/96
COM(96)460
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(1) Proposal for a Council Regulation (EC) establishing a system for the identification and registration of bovine animals;
(2) Proposal for a Council Regulation (EC) regarding the labelling of beef and beef products.
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Legal base:
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Article 43; qualified majority voting. We have, however, been told that the Commission has adopted a revised proposal under Article 100a which would require the co-decision procedure.
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Background
3.1 The proposal aims
to strengthen the present system of animal identification and
registration and to introduce labelling requirements for beef
and beef products. On 30 October last year we recommended it
for debate. That debate took place in European Standing Committee
A on 13 November 1996. Since the debate, further changes have
been made, which we considered on 5 February 1997. The changes
addressed concerns that the system should be effective and capable
of adoption throughout the Community. In particular, the revised
text would allow for the retention of the use of alphanumeric[8]
cattle ear-tags which are currently used in Great Britain. This
would reduce the need for large scale re-tagging, which has animal
welfare as well as cost implications.
3.2 The second Supplementary
Explanatory Memorandum sets out the current position.
Second Supplementary Explanatory
Memorandum
3.3 In her second Supplementary
Explanatory Memorandum of 10 March, the Parliamentary Secretary
(Commons) at the Ministry of Agriculture, Fisheries and Food (Mrs
Browning) tells us that experts are currently examining a text
drawn up by the Presidency in collaboration with the Commission.
In so far as this relates to the identification and registration
of bovine animals, it envisages:
"(i) mandatory
double tagging for newly born animals and those intended for intra-Community
trade;
(ii) animal passports
recording movements with the proviso that once a Member State
has access to a computerised database, passports would not be
compulsory;
(iii) set periods
for tagging animals and for producers to notify details of births,
deaths and movement of animals to the central authority in a Member
State; and
(iv) provision
for technical issues, like tag characteristics and content of
farm registers, to be subject to separate detailed rules".
3.4 The Parliamentary
Secretary states that the Government's objective is to seek agreement
on a text as soon as possible, but that there are certain technical
points requiring resolution, in particular that:
"(i) the
final text and the detailed rules would not require mandatory
tagging of cattle already alive before adoption of the new requirements,
with the exception of animals for intra-Community trade;
(ii) a reasonable
time is given to tag newly born cattle. 14 days as suggested
is too short and the Government is seeking to have this extended;
(iii) the text,
as currently drafted, continues to allow the option of not requiring
passports once a Member State has access to a computerised database;
(iv) calves can
be accompanied by temporary documents rather than passports;
(v) deadlines
for notifying births, deaths and movements to the central authority
in a Member State are realistic; and
(vi) the option
is provided for Member States to pass to the Industry the costs
of introducing and running the identification and registration
system".
3.5 On the second proposal
relating to the labelling of beef and beef products, the Presidency
text envisaged changes as follows:
"(i) the
scope of the proposal has been restricted to cover only the detailed
labelling of fresh and frozen beef including mince;
(ii) labels containing
information which can easily be checked at the point of sale,
such as the product weight and/or type of cut, need not comply
with the scheme's conditions;
(iii) all labels
must contain a reference number which provides a link to the animal
or animals of origin;
(iv) based on
reports from Member States on the implementation of this labelling
system, the Commission will be mandated to bring forward further
proposals for the introduction of a compulsory labelling system
in all Member States to take effect from 1.1.2000; and
(v) subject to
Commission approval, those Member States with sufficiently developed
identification and registration systems for cattle may introduce
a compulsory labelling system before 1.1.2000 for beef from animals
born, fattened and slaughtered on their territory, provided such
action does not give rise to disruption of trade in the beef market".
3.6 The Parliamentary
Secretary states that there has been some restriction in the product
coverage, but that otherwise the implications remain as detailed
in the earlier proposals which were debated in European Standing
Committee A. The UK Government therefore wants certain guarantees,
possibly in the form of statements entered into the minutes of
the Agriculture Council, to ensure that the adoption of compulsory
beef labelling régimes in some Member States before 1.1.2000
would not give rise to discrimination against countries operating
voluntary régimes, so that distortion of trade in the Community
market can be avoided.
Proposed change in legal base
3.7 The Parliamentary
Secretary tells us that the Commission is proposing to change
the legal base for both proposals to Article 100a. The Government
is opposed to such a change, which it considers is likely to lead
to delays in the adoption of both proposals. We have therefore
looked at this issue carefully. In our view, the Commission's
change of legal base conflicts with the ruling in Case 68/86[9]
where the ECJ held.
".... that Article
43 of the Treaty is the appropriate legal basis for any legislation
concerning the production and marketing of agricultural products
listed in Annex II to the Treaty which contributes to the achievement
of one or more of the objectives of the common agricultural policy
set out in Article 39 of the Treaty. There is no need to have
recourse to Article 100 of the Treaty where such legislation involves
the harmonisation of provisions of national law in that field."
3.8 The Court further
ruled:
"Consequently,
even where the legislation in question is directed both to objectives
of agricultural policy and to other objectives which, in the absence
of specific provisions, are pursued on the basis of Article 100
of the Treaty, that Article, a general one under which directives
may be adopted for the approximation of the laws of Member States,
cannot be relied on as a ground for restricting the field of application
of Article 43 of the Treaty...."
"In that regard
it must first be observed that there are common organisations
of the markets in the sectors of beef and veal.... each of those
regulations provides the adoption of Community measures designed
to promote better organisation of production, processing and marketing,
and to improve quality."
3.9 We have seen no reasons
given for the Commission's change of legal base. In an area where
action must be taken quickly, the co-decision procedure is slower
and so less effective. We have today been considering a proposal
which after five years has not yet been agreed (foodstuffs, geographical
indications and designations and generic names)[10].
It would be a retrograde step for similar delays to be built
into procedures dealing with the common organisation of the market
in animals and meat.
Conclusion
3.10 We have no formal
text of what the Presidency and Commission are now proposing.
We are therefore relying on the explanations given by the Parliamentary
Secretary, for which we are grateful. The substance of the proposals
has been debated in European Standing Committee A, on assumption
that the legal base would be Article 43. The textual changes
in the Presidency proposal would not require a further debate.
However, the change of legal base to Article 100a raises questions
of legal as well as political importance and, if the Council were
to consider agreeing to that legal base, a further debate could
well be necessary.
3.11 We note from
the Explanatory Memorandum, however, that the Parliamentary Secretary
does not rule out the possibility that the Agriculture Council
on 17 March will unanimously reject the Commission's change of
legal base, and we would not wish to prevent the United Kingdom
Government from joining in that consensus.
3.12 We do not clear
the document, as we wish to receive a report from the Government
on the outcome of the Agriculture Council on 17 March. However,
we agree that, exceptionally, the Government should not withhold
its agreement to the adoption of the proposal with a legal base
of Article 43 solely on the grounds that the Scrutiny process
is incomplete. This does not apply if the Commission's
proposed legal base of Article 100a is accepted.
3.13 If a legal base
of Article 100a is used, we may wish to recommend a further debate.
A new legal base would also generate a new document which would
still be subject to Scrutiny.
7 (17535) 10495/96; see HC 36-i (1996-97), paragraph 5 (30 October 1996); HC 36-iii (1996-97), paragraph 8 (13 November 1996); and HC 36-xii (1996-97), paragraph 7 (5 February 1997). See also Official Report, European Standing Committee A, 13 November 1996. Back
8 Alphanumeric is identification by both letters and numbers. Back
9 United Kingdom v the Council (substances having a hormonal action - action for a declaration that a measure is void - legal bases - duty to state reasons - irregularities in the legislative procedure). Back
10 Not reported. Back
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