1 Food distribution to
deprived persons
| (31957)
13435/10
COM(10) 486
| Amended draft Council Regulation amending Council Regulations (EC) No 1290/2005 and (EC) No 1234/2007 as regards distribution of food products to the most deprived persons in the Union
|
| Legal base | Articles 42 and 43(2)TFEU; co-decision; QMV
|
| Document originated | 17 September 2010
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| Deposited in Parliament | 23 September 2010
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| Department | Environment, Food & Rural Affairs
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| Basis of consideration | EM of 4 October 2010
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| Previous Committee Report | None, but see footnotes 3 and 6
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
1.1 In order to avoid a build-up of public intervention stocks,
the Common Agricultural Policy (CAP) has over the years contained
provisions for the subsidised sale of produce to specified outlets.
In particular, a measure[1]
was introduced in 1987, enabling produce in intervention stocks
to be supplied free of charge to designated charitable organisations
for distribution to the most deprived persons in those Member
States which choose to participate.
1.2 According to the Commission, that measure contributed
to achieving two of the objectives of the CAP in the Treaty —
to stabilise markets, and to ensure that supplies reach consumers
at reasonable prices — and has proved to be a reliable supply
of food for the most deprived. It also says that the need for
it has increased following successive enlargements, and as a result
of recent rises in food prices, but it also notes that, with the
various reforms of the CAP, intervention has been removed in some
sectors,[2] whilst for
the others it has now been restored to its original function as
a safety net, thereby significantly increasing the programme's
reliance on market purchases.
1.3 It therefore proposed[3]
in September 2008 that the existing Community legislation in this
area should be amended so as:
- to allow food to be sourced
either from intervention stocks or from the market (though priority
would be given to the use of suitable intervention stocks where
these are available);
- to enable a wider range of products to be distributed,
allowing Member States to choose on the basis of nutritional criteria;
- to provide for the distribution to take place
under an EU plan which would be established for three years, rather
than annually at present;
- to provide for co-financing, with the EU making
a contribution of 75% for 2010-12 and 50% for 2013-15 (85% and
75% respectively in Member States eligible for the Cohesion Fund).
1.4 As our predecessors noted in their Report of
29 October 2008, the UK has not participated in this scheme since
the mid-1990s because of its dwindling intervention stocks and
the bureaucratic overheads involved, and the then Government remained
unconvinced as to the merits or appropriateness of the proposal,
believing that the EU should act only where there are clear additional
benefits. In particular, it considered that social measures are
a matter for Member States, more properly and efficiently delivered
through domestic social programmes[4]
which take account of the prevailing situation and available funding
in individual countries, and it therefore intended to work with
like-minded Member States to oppose an expansion of the scheme.
1.5 Our predecessors also noted that the proposal
was being made under the same legal base as the existing scheme
(Article 37 of the EU Treaty), but that, since the focus of the
revised scheme was more likely to be on the purchase of products
on the open market, a number of Member States had questioned the
appropriateness of that Article. In addition, they drew attention
to the Commission's financial statement that the scheme would
have no impact on the budget for 2008 or 2009, with any budgetary
implications taking effect from 2010 and being determined when
the first three-year food distribution programme (covering 2010-12)
is drawn-up: and they pointed out that, should the EU budget be
increased as a result of the new programme, this would have financial
implications[5] for the
UK.
1.6 In drawing the proposal to the attention of the
House, they noted that it clearly raised some important issues
on the future scope of the CAP, and the appropriateness of EU
as opposed to Member State action. In view of this, the lack of
clarity over the budgetary implications, and the questions over
the proposed legal base, they recommended the document for debate
in European Committee. That debate took place on 20 January 2009.[6]
1.7 Our predecessors also drew attention subsequently
to a Special Report[7]
(No 6/2009) by the European Court of Auditors on the EU's arrangements
in this area, in which the Court highlighted certain concerns
previously voiced by the UK and made a number of recommendations
(including the need for the Commission to consider whether it
is appropriate to continue financing such a measure through the
CAP).
The current proposal
1.8 The Commission has now brought forward this amended
proposal, which is intended mainly to align it with the Lisbon
Treaty (notably by enabling the Commission to adopt delegated
and implementing legislation under Articles 290 and 291 of the
Treaty) and to reflect some of the views raised by the European
Parliament. However, notwithstanding the comments by the Court
of Auditors, it retains unchanged the main aspects of the original
proposal, the only significant changes being to specify a lower
minimum contribution from participating Member States of 25% (10%
for cohesion countries), as compared with the 50% rate in the
original proposal (25% for cohesion countries) after a three year
transitional period, and to establish an annual ceiling of €500
million for the contribution from the EU budget. In addition,
the proposal introduces enhanced reporting obligations on participating
countries, and there would also be an obligation on the Commission
to provide a report on the scheme in 2014.
The Government's view
1.9 In his Explanatory Memorandum of 4 October 2010,
Minister of State for Agriculture and Food at the Department for
Environment, Food & Rural Affairs (Mr Jim Paice) reiterates
most of the points made by the previous Government, including
in particular reservations over the proposal's appropriateness
on subsidiarity grounds, and stresses that measures of this kind
should more properly be delivered through domestic social programmes
and national funding. He also points out that, although the Lisbon
Treaty now provides the legal base, that now proposed (Article
43 TFEU) is similar to the one used for the existing scheme, and
that there remains a question-mark over its appropriateness given
the prospect of purchases being made in future from the open market.
Conclusion
1.10 In light of our role under the Lisbon Treaty
to monitor compliance with the principle of subsidiarity, we ask
the Minister to clarify to what extent the Government objects
to this proposal on the grounds of subsidiarity and to what extent
on the grounds of competence, since this was not clear from his
Explanatory Memorandum. In the meantime, we are setting out our
preliminary analysis below, and we would be grateful for the Minister's
comments on this in his response.
1.11 It seems to us that, where intervention stocks
are relied on for food aid, the Commission is competent to act
under Articles 39(1)(c) and (e) and 43(2) TFEU, and that it is
better placed to do so than a Member State, given its role in
managing EU intervention stocks, as set out in Article 27 of Regulation
(EC) No 1234/2007 (which establishes a common organisation of
agricultural markets, and is thus a key component of the CAP).
So we do not consider that food aid sourced from intervention
stocks could be argued to infringe subsidiarity.
1.12 On the other hand, although the Commission
says that "priority would be given to the use of suitable
intervention stocks where these are available", where the
food is sourced from the open market — which according to
the Court of Auditors is more often the case — the link
with the CAP is tenuous, and so the legal base no longer seems
to us to be valid, as the Court of Auditors also found. Moreover,
as there appears to be no alternative legal base in the TFEU,
and Article 352 TFEU is not invoked, we question where the EU
gets its competence to act. This, however, is an argument about
competence rather than subsidiarity (if the EU is not competent
to act, subsidiarity does not come into play). So our initial
conclusion is that the proposal raises questions of competence
rather than subsidiarity.
1.13 We would be grateful if, in responding, the
Minister could also tell us to what extent other Member States
share the Government's views, and what his assessment is of the
likelihood of Member States opposing the Commission's proposal.
1.14 Finally, because the timetable for issuing
a reasoned opinion is so tight, we would be very grateful for
a response in time for our meeting on 3 November.
1 Council Regulation (EEC) No 3730/87 (OJ No. L 352,
15.12.87, p.1.) This measure was subsequently repealed, and integrated
into Council Regulation (EC) No 1234/2007 (OJ No. L 299, 16.11.07,
p.1.) which consolidated into one instrument existing sectoral
legislation under the CAP. Back
2
Such as olive oil, sugar and maize. Back
3
See (29981) 13195/08: HC 16-xxxiii (2007-08), chapter 1 (29 October
2008). Back
4
Such as Healthy Start in the UK. Back
5
Either through its contributions to expenditure by other Member
States (or, should it join the programme, being required to contribute
25% of any funds received under the co-financing arrangements,
rising to 50% from 2013, in addition to which any receipts would
serve to reduce the size of the UK's budget abatement). Back
6
Gen Co Deb, European Committee A, 20 January 2009, cols
3-7. Back
7
See (30962) 13721/09: HC 19-xxix (2008-09),Chapter 7 (28 October
2009). Back
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