12 International Organisation for Vine
and Wine
| Committee's assessment
| Legally important |
| Committee's decision | (a) not cleared from scrutiny (b) cleared from scrutiny
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| Document details | (a)Draft Council Decision (as revised) establishing a common position on the EU's behalf in respect of certain resolutions of the International Organisation for Vine and Wine (OIV); (b) Draft Council Decision establishing a common position on the EU's behalf in respect of certain resolutions of the OIV
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| Legal base | Articles 43 and 218(9) TFEU; QMV
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| Department | Environment, Food and Rural Affairs
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| Document numbers | (a) (36293), 12679/14, + ADD 1 REV 1, COM(14) 528 (b) (34878), 8743/13, COM(13) 243
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Summary and Committee's conclusions
12.1 The International Organisation for Vine and Wine (OIV)[67]
is an intergovernmental organisation which sets standards for
viticulture, oenological practices, definitions, labelling and
methods of analysis. Twenty one EU Member States are members of
OIV; the UK and the EU are not.
12.2 Resolutions adopted by OIV (by the consensus of its participating
members) are not legally binding. However, since Regulation 1308/2013[68]
(the CMO Regulation) makes references to certain OIV resolutions,
those resolutions can affect the EU legal framework for wine.
For this reason, from 2012 onwards, the Commission has proposed
draft Council Decisions, in part based on Article 218(9) TFEU,
to establish common positions on OIV resolutions falling within
EU competence. The Council Decisions require the EU members of
the OIV to vote on resolutions at Annual General Assembly meetings
in line with the Decisions.
12.3 During our scrutiny of the 2013 Council Decision, document
(b), the Government informed us that it had not been not adopted
at the relevant Council meeting in May 2013 for lack of qualified
majority support from Member States. However, we kept that document
under scrutiny since the Government also told us that legal proceedings
challenging the 2012 Decision had been brought by Germany before
the Court of Justice, supported by the UK and other Member States.
In those proceedings, Germany has sought to annul the 2012 Decision,
on the grounds that the Article 218(9) TFEU legal base is incorrect.
Germany has argued that:
· the
EU's powers to establish such positions, pursuant to that Article,
could only apply where the EU was a party to the relevant organisation
(and/or treaty), not where the Member States were acting on the
EU's behalf as was the case for the OIV; and
· the
Article only applied where the organisation in question adopted
"acts having legal effects" whereas OIV recommendations
were not legally binding under international law.
12.4 Given the imminence of the next Annual Assembly
meeting (9-14 November), the Commission proposed the current Council
Decision, document (a), also based on Article 218(9) TFEU. This
was despite the fact that at that time the Court had yet to deliver
its judgment (though an Advocate General's Opinion favourable
to Germany had been released in April).
12.5 The Court delivered its judgment in favour of
the Council and against Germany on 7 October. So the Government's
view on document (a), as set out in this chapter, pre-dates that
development and remains unchanged from its view of the legal base
issue in relation to document (b).
12.6 We thank the Minister for his helpful Explanatory
Memorandum on the original proposal. We are also grateful for
the prompt deposit of a Supplementary Explanatory Memorandum on
the revised version of document (a).
12.7 We look forward to hearing from the Minister
in due course with the Government's view of the outcome of Case
C-399/12 Germany v Council, its implications for
document (a) (as revised) and the wider implications of the judgment
for the use of Article 218(9) TFEU as a legal base for other proposals
in future.
12.8 Given that the Court has now delivered its
judgment, we ask the Minister to confirm whether he intends to
support the adoption of document (a) (as revised) at the relevant
Council meeting.
12.9 We now clear document (b), but retain document
(a) under scrutiny pending the Minister's response.
Full details of
the documents: (a):
Draft Council Decision (as revised) establishing a common position
on behalf of the European Union with regard to certain resolutions
to be voted in the framework of the International Organisation
for Vine and Wine, (36293), 12679/14, + ADD 1 REV 1, COM(14) 528
(b): Draft Council Decision establishing the position to be adopted
on behalf of the European Union with regard to certain resolutions
to be voted in the framework of the International Organisation
for Vine and Wine (34878), 8743/13, COM(13) 243.
Background and previous scrutiny
12.10 The full background to document (b), an overview
of its provisions and the Government's view of it, particularly
concerning the proposed legal base, are set out in our Third Report
of 2013-14. Document (a) (as revised) shares much of the same
background, but is new, as explained in paragraph 0.4 above and,
is addressed by the Minister's Explanatory Memorandum and the
Supplementary Explanatory Memorandum, referred to in paragraphs
0.14-0.18 below.
The Minister's letter of 11 June: document (b)
12.11 The Parliamentary Under-Secretary for Farming,
Food and Marine Environment (George Eustice) wrote to update us
on progress in the legal proceedings referred to in paragraphs
0.3-0.4 above, namely the release on 29 April of the opinion of
the Advocate General. Although such opinions are not binding on
the Court in either outcome or reasoning, the Minister said "the
Advocate General's opinion often provides an indication of how
the court will preside". He said that the Government did
not expect a final decision of the Court until the summer but
would keep us informed of this and other material developments,
and on request "any further information which might allow
the Committee to release this matter from scrutiny".
Our letter of 18 June: document (b)
12.12 We responded to the Minister, saying that we
thought it was premature to release document (b) from scrutiny
before the outcome of the proceedings was known and that we looked
forward to receiving a further update once the Court's decision
was delivered.
The current document (a) (as revised)
12.13 The draft Council Decision (document (a))
fulfils the same function as the previous Council Decisions, including
document (b): to establish the voting position of EU Member States
at the Annual General Assembly in relation to particular OIV resolutions.
It has since been revised to set out the specific EU position
on certain resolutions to be adopted at the next Annual General
Assembly of OIV in November.
The Government view: document (a) (as revised)
12.14 The Minister comments on the policy implications
for the UK of the original version of document (a) in his Explanatory
Memorandum of 14 September 2014 as follows:
"The EM for the decision at the corresponding
meeting last year set out our concerns over legal base. The UK
Government considers that Article 218(9) is an inappropriate legal
base for this proposal. Article 218(9) 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'. The OIV recommendations which are the subject
of this Decision are non-binding, but have legal effect within
the EU by virtue of EU legislation. We do not consider that legal
effects within the EU by virtue of EU legislation give rise to
the need for an Article 218(9) Decision.
"The UK is not alone in having concerns
over the use of Article 218(9) TFEU in this case. In Case C-399/12,
Germany challenged an earlier decision relating to an OIV meeting,
with support from the UK, the Czech Republic, the Grand Duchy
of Luxembourg, Hungary, the Kingdom of the Netherlands, the Republic
of Austria and the Slovak Republic. The Advocate General has issued
his Opinion in this case and proposed that the Court annul the
Decision in line with Germany's request. We are still awaiting
judgment in the case. Pending resolution of this from the Court,
the Commission are maintaining their view that article 218(9)
applies to OIV recommendations."
12.15 He then provides a more detailed explanation
of why it is inappropriate to rely on Article 218(9) as legal
base where the subject matter concerns non-binding resolutions:
"Regulation No 1308/2013 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.
"Article 218 is concerned with international
agreements and not with legal effects within the EU on the basis
of the Single CMO. 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 Single CMO 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."
12.16 The Minister also reminds us of the ongoing
challenge before the Court of Justice in Case C-399/12, International
Organisation of Vine and Wine: Bundesrepublik Deutschland v Council
of the European Union:
"On 28th August 2012, Germany filed for
annulment of a Council Decision taken on 18 June 2012 to establish
the position to be adopted on behalf of the EU on certain resolutions
to be adopted at the 10th General Assembly of the OIV, Izmir,
Turkey in June 2012. Germany has argued that the legal base used
for that decision (Article 218(9) TFEU) was incorrect as this
applies only to international agreements concluded by the European
Union itself and not to international agreements concluded by
Member States of the Union in bodies set up by international agreements.
"Additionally they claimed that Article
218(9) TFEU covers only 'acts having legal effects', meaning acts
binding under international law and stating that OIV 'resolutions'
are not acts in that sense. The UK agreed with this and intervened
in support of Germany on this point at the oral hearing which
took place 26 November 2013.
"On 29th April 2014 the Advocate General
provided an 'opinion' which found in favour of Germany. The Court's
judgment is expected on 7 October 2014."
12.17 The Minister concludes:
"For the reasons given above, the UK considers
that there should be no mandate granted in this situation, but
instead for coordinated EU positions, as set out in position papers
agreed at Working Party, to be taken forward within the OIV on
behalf of the EU by the Member States which are Members of the
OIV."
12.18 He adds that a Council Working Group was due
to consider the original proposal (a) and the OIV resolutions
on 19 September. He informs us that the Council Position is due
to be adopted in advance of the next meeting of the General Assembly
of the OIV on 9-14 November.
12.19 A Supplementary Explanatory Memorandum of 6
October 2014 relates to the publication of the revised proposal
for a Council Decision which resulted from that Working Group
meeting in September. It informs the Committee that although the
proposal does not include any change to the policy, the contents
differ from the previous proposals only in that they reflect the
EU position, established at the Working Group meeting, on those
draft resolutions that could affect the Union acquis if
adopted by 12th General Assembly of the OIV on 14 November in
Mendoza (Argentina).
The judgment of the Court of Justice
12.20 On 7 October, subsequent to the Minister's
Explanatory Memorandum and the Supplementary Explanatory Memorandum,
the Court of Justice delivered its judgment in case C-399/12
International Organisation of Vine and Wine: Bundesrepublik Deutschland
v Council of the European Union.[69]
This judgment is also relevant to another Chapter in our Report
on Forced Labour. Deciding the case in favour of the Council and
dismissing the action brought by Germany, the Court found that
Article 218(9) TFEU was the correct legal base for the contested
Council Decision. The Court found that:
· the
fact that the EU is not a party to the OIV Agreement does not
prevent it from applying Article 218(9) TFEU;
· this
was because there is "nothing in the wording of Article 218(9)
TFEU to prevent the European Union from adopting a decision establishing
a position to be adopted on its behalf in a body set up by an
international agreement to which it is not a party";
· there
was also no merit in Germany's arguments that "(i) the provisions
preceding Article 218(9) TFEU in Title V of Part V of the TFEU
concern only agreements between the European Union and one or
more third countries, or between the European Union and international
organisations, and (ii) the adoption by the European Union of
a decision suspending application of an agreement — also
referred to in Article 218(9) TFEU — cannot be envisaged
except in the context of an international agreement concluded
by the European Union";
· on
the contrary, those other provisions "have as their object
the negotiation and conclusion of agreements by the European Union.
By contrast, Article 218(9) TFEU concerns the establishment of
positions to be adopted on the Union's behalf in a body set up
by an agreement, which, unlike a European Union decision suspending
application of an agreement, can….be adopted even in the
context of an agreement to which the European Union is not a party";
· also,
where an area of law fell within a competence of the EU, (as is
the case for the common organisation of the wine market as a part
of the Common Agricultural Policy), the fact that the EU "…did
not take part in the international agreement in question does
not prevent it from exercising that competence by establishing,
through its institutions, a position to be adopted on its behalf
in the body set up by that agreement, in particular through the
Member States which are party to that agreement acting jointly
in its interest (see judgment in Commission v Greece, C45/07)…";
and
· OIV
recommendations, "in particular by reason of their incorporation
into EU law by virtue of Articles 120f(a), 120g and 158a(1) and
(2) of Regulation No. 1234/2007[70]
and the first subparagraph of Article 9(1) of Regulation No. 606/2009,
have legal effects in that area for the purposes of Article 218(9)
TFEU and that the European Union, while not a party to the OIV
Agreement, is entitled to establish a position to be adopted on
its behalf with regard to those recommendations, in view of their
direct impact on the European Union's acquis in that area".
Previous Committee Reports
(a) None; (b) Third Report, HC 83-iii, (2013-14),
chapter 8 (21 May 2013).
67 From the French acronym for Organisation Internationale
de la Vigne et du Vin. Back
68
This has now repealed the Regulation we have referred to in our
Third Report of 2013-14: Reg No. 1234/2007. Back
69
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62012CJ0399&rid=1 Back
70
This Regulation has now been repealed and replaced by the new
CMO Regulation 1308/2013, referred to in para 0.2 of this Report. Back
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