8 International organisation for
Vine and Wine
| (34878)
8743/13
COM(13) 243
| Draft Council Decision establishing the position to be adopted with regard to certain resolutions to be voted in the framework of the International Organisation for Vine and Wine
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| Legal base | Articles 43(2) and 218(9) TFEU; QMV
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| Document originated | 25 April 2013
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| Deposited in Parliament | 30 April 2013
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| Department | Environment, Food and Rural Affairs
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| Basis of consideration | EM of 7 May 2013
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| Previous Committee Report | None
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| Discussion in Council | Shortly
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared; further information requested
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Background
8.1 The International Organisation for Vine and Wine (OIV)
is an intergovernmental scientific and technical organisation
which sets standards for viticulture, oenological practices, definitions,
labelling and methods of analysis, with decisions being taken
at its Annual General Assembly through the adoption of draft resolutions
based on consensus of participating members. The resolutions adopted
are not legally binding, but Council Regulation (EC) No. 1234/2007
stipulates that, when authorising new oenological practices in
the EU, the Commission should base itself on those recommended
and published by the OIV.
The current proposal
8.2 As acts adopted by the OIV can have consequences for the
EU legal framework for wine, the Commission has invoked the principle
of cooperation laid down in Article 218(9) TFEU by seeking in
this draft Council Decision to establish a common position on
those draft resolutions being considered at the OIV meeting which
fall within its competence. In particular, it would require EU
members of the OIV to vote in line with that decision.
The Government's view
8.3 In his Explanatory Memorandum of 7 May 2013, the Minister
of State for Agriculture and Food (David Heath), says that the
UK has two concerns on the proposal, and consequently considers
that there should be no mandate granted in this situation, but
that instead a coordinated EU position, as set out in position
papers agreed at working level, should be taken forward within
the OIV on behalf of the EU by the Member States which are Members
of the Organisation. He describes the concerns as follows:
It is not appropriate to rely on Article 218(9) TFEU where
the subject matter concerns non-binding resolutions
"Council Regulation (EC) No 1234/2007 provides for dynamic
references to certain rules and practices adopted and published
by the OIV so that they are binding within the EU with no further
action. The effect of this proposal is that non-binding recommendations
agreed at the international level are incorporated directly into
EU Law each time new practices are recommended by the OIV.
"We do not think this is consistent with the
substantive treaty base (Article 43(2)), because this effectively
delegates amendments of EU legislation to an international body.
It is for the legislature to decide how to give effect to international
law within the EU. It may decide to confer powers on the Commission
to amend legislation to give effect to changes similar to those
at issue here, but it cannot delegate legislative powers to another
body."
The rationale for the Decision is flawed
"Article 218 TFEU is concerned with international
agreements, and not with legal effects within the EU
on the basis of Council Regulation (EC) No 1234/2007. That Article
is reserved for 'establishing the positions to be adopted on the
Union's behalf in a body set up by an agreement, when that body
is called upon to adopt acts having legal effects'.
"Moreover, in our view, the provisions in the
Council Regulation (EC) No 1234/2007 referred to in the proposed
Council Decision represent an improper delegation of the legislative
function within the EU. We do not consider that legal effects
within the EU give rise to an Article 218(9) Decision, and this
is certainly the case where the underlying provisions that give
rise to those legal effects are themselves flawed."
8.4 The Minister adds that the UK intends to
intervene in an ECJ case being bought by Germany to challenge
the Council over the adoption of a virtually identical proposal
in June 2012, which again cited Article 218(9) as its legal base.
Conclusion
8.5 We
share the Minister's concerns about EU competence to legislate
in this instance, in particular regarding the unlawful delegation
of legislative to the OIV, as an international body, by means
of Council Regulation No. 1234/2007, which, appears contrary to
the legal base of Article 43(2) TFEU. We also agree with the Government's
interpretation that Article 218(9) TFEU:
- can only be used as a basis
for a Council Decision in respect of adopting a common position
within an international body whose acts have "legal effects";
and
- cannot be used where the non-legally binding
acts of an international body are purportedly given legal effect
by internal EU legislation, especially where that process involves
an unlawful delegation of legislative powers.
8.6 These are legally important issues which
we note are already being pursued in the context of other proceedings
being brought by Germany before the Court of Justice and in which
the Government is intervening. We therefore urge the Minister
to inform us of the eventual outcome of the imminent discussions
in Council. We should also like to be kept informed of developments,
to the extent that they can be disclosed, in the proceedings being
brought by Germany.
8.7 In the meantime, we shall retain the document
under scrutiny.
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