2 Animal cloning
| (a)
(35688)
18152/13
+ ADDs 1-2
COM(13) 892
(b)
(35689)
18153/13
COM(13) 893
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Draft Directive on the cloning of animals of the bovine, porcine, ovine, caprine and equine species kept and reproduced for farming purposes
Draft Directive on the placing on the market of food from animal clones
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| Legal base
| (a) Article 43(2) TFEU; co-decision; QMV
(b) Article 352(1) TFEU; consent; unanimity
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| Department
| Environment, Food and Rural Affairs
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| Basis of consideration
| Minister's letter of 24 February 2014
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| Previous Committee Reports
| HC 83-xxxii (2013-14) chapter 1, (5 February 2014), HC 83-xxviii (2013-14), chapter 3 (22 January 2014)
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| Discussion in Council
| No date known
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| Committee's assessment
| Legally and politically important
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| Committee's decision
| (a) Not cleared
(b) Not cleared; pending evidence session with Minister
|
Background and previous scrutiny
2.1 We set out in full the background
to these proposals, a summary of their provisions and the Government's
initial view on them in our Report of 22 January 2014.[4]
To recap, the two draft Directives would respectively:
· prohibit the commercial cloning
of traditionally farmed species (cattle, sheep, pigs, goats and
horses), and the placing on the market of animal clones and embryo
clones (document (a)); and
· require Member States to
prevent food from animal clones from being placed on the market,
and to ensure that food of animal origin imported from third countries
where food from clones can be legally placed on the market is
only placed on the EU market where it can be established that
it does not derive from animal clones (document (b)).
However, the proposals will allow the
continuation of the use of reproductive material from clones for
livestock breeding purposes; for scientific research into cloning
and its use for the preservation of rare breeds or endangered
species; and for sporting purposes.
2.2 After further correspondence with
the Government following this initial Report on the question of
whether document (b) complied with the principle of subsidiarity,
we decided to recommend a Reasoned Opinion on it for breach of
the subsidiarity principle in a further Report on 5 February 2014.[5]
2.3 The motion recommending a Reasoned
Opinion was debated and agreed in European Committee on 11 February.[6]
On 12 February the House of Commons approved the motion and the
Reasoned Opinion was submitted to the EU institutions.
LEGAL BASE — ARTICLE 352 TFEU
2.4 Article 352 TFEU states that:
"If action by the Union should
prove necessary, within the framework of the policies defined
in the Treaties, [...] and the Treaties have not provided the
necessary powers, the Council, acting unanimously on a proposal
from the Commission and after obtaining the consent of the European
Parliament shall adopt the appropriate measures."
2.5 We had asked the Government, before
that debate took place, to write to us with a detailed legal analysis
setting out why it considered that Article 352 TFEU was a
sound legal base for document (b).
2.6 The Government had previously stated
that although the draft Regulation was not strictly necessary:
"We are satisfied that the
Commission has no express powers within the Treaty to enable it
to exercise what it sees as the necessary controls over the placing
of food products on the Community market to protect animal welfare
(rather than consumer safety or product quality)."
2.7 We, on the other hand, thought
it amounted to EU competence creep. We noted that it was a condition
for the use of Article 352 that the action "by the Union
[...] should prove necessary" but considered that the Commission
had not demonstrated that the proposal was necessary. We also
pointed out that the Commission had conceded that the objective
of document (b) was not to protect animal welfare (as the facility
already existed for this at EU level in existing legislation)
but to address adverse consumer perceptions of food derived from
animal clones. This objective must be, in the words of Article
352 "one of the objectives set out in the Treaties",
but we doubted this to be the case.
2.8 We were also mindful of the Parliamentary
time needed to approve a proposal given that relying on that
legal base requires primary legislation pursuant to section 8
of the European Union Act 2011, and noted that the Government
has a veto over the adoption of document (b). We said that if
the Parliamentary Under Secretary of State for farming, food and
marine environment (George Eustice) could not persuade us that
the use of Article 352 TFEU was legitimate, we would consider
inviting him to give oral evidence before us.
Minister's letter of 24 February
2.9 The Minister says:
"In the Committee's latest
report you asked for a detailed legal analysis setting out the
Government's rationale for why it thinks that Article 352 of the
Treaty on the Functioning of the European Union (TFEU) is a sound
legal base for the Commission's proposal on controls on the placing
on the market of food from animal clones. I am sorry that it
was not possible to provide this before last Tuesday's (11 February
2014) debate on the Reasoned Opinion as you had requested, and
I hope that you will accept that there was sufficient opportunity
to discuss the issue with members of European Committee A on the
day. Nonetheless, I would like to explain our position to you
and those members of your Committee who were not able to participate
in the debate.
"I should perhaps begin by
making clear that we share many of the concerns of your Committee,
in particular, that the European Commission has not been compelling
in justifying the need for a measure designed to prohibit the
marketing of food from animal clones in the EU. As the Committee
rightly identifies, the Commission even in their own Explanatory
Memorandum, acknowledges both the strong scientific evidence indicating
the absence of any particular human health concerns (with the
consumption of cloned material) and the existence of robust EU
and national controls to protect the wellbeing of the animals
concerned.
"I understand that the Greek
Presidency will invite the Commission to explain its rationale
for the proposals when negotiations begin in Brussels on 26 February.
At that time we will ask it to provide robust justification for
these measures and explain the rationale for proposing them under
Article 352 TFEU. We will be very clear that the UK Government
has reservations about the policy objectives and hence about the
use of Article 352. The Committee's analysis in the Reasoned
Opinion is helpful in this respect, and we will request a full
explanation from the Commission for the proposal that has been
made.
"As we are yet to have the
opportunity to question the Commission fully, we have not raised
legal concerns at this stage. It is important that we play an
active role in the ultimate determination of Union policy on animal
cloning. However, it is clear that there would need to be some
very significant changes in the proposal to make it acceptable,
and this is what we would want to explore in the negotiations."
Conclusion
2.10 The Minister's comment that
"the UK Government has reservations about policy objectives
and the use of Article 352 TFEU" is the sum total of his
views on Article 352 TFEU, and falls far short of the detailed
legal analysis that we asked for. Given that the Minister's response
did not arrive before the debate, as we had requested, but almost
a fortnight afterwards, we were expecting a considerably more
substantial response.
2.11 The Government's policy on the
use of this legal base appears to have shifted but is still unacceptably
vague. In previous correspondence with us, referred to in paragraph
0.6 above, the Government was unconcerned about the use of Article
352 TFEU despite conceding from the outset that the proposal in
question was not necessary. Now the Government says it has "reservations"
about the use of Article 352 TFEU but without being specific about
what they are.
2.12 Given these circumstances we
ask that the Minister appear to give oral evidence, at the earliest
opportunity, to account both for his approach to Parliamentary
scrutiny of document (b) and for the lack of rigour with which
the Government seems to be policing the use of the "flexibility
provision", Article 352 TFEU, by the Commission as a means
by which the competence of the EU can be expanded.
2.13 In the meantime, both documents
remain under scrutiny.
4 See headnote. Back
5
See headnote. Back
6
http://www.publications.parliament.uk/pa/cm201314/cmgeneral/euro/140211/140211s01.htm. Back
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