# EUR-Lex - 52012PC0530 - EN

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# 52012PC0530

**Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Directive 2001/110/EC relating to honey /* COM/2012/0530 final - 2012/0260 (COD) */**

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EXPLANATORY
MEMORANDUM

1.           CONTEXT
OF THE PROPOSAL

The aim of the proposal to amend Directive
2001/110/EC relating to honey[1]
is to:

(a)     align the existing Commission
implementing powers with the provisions laid down in the Treaty on the
Functioning of the European Union (TFUE); and

(b)     in the context of the judgment of the
Court of Justice in case C-442/09[2],
and, without prejudice to the application of Regulation (EC) No 1829/2003 on
genetically modified food and feed[3]
to honey containing genetically modified (GM) pollen, clarify explicitly the
status of pollen as a constituent particular to honey rather than an ingredient
of honey.

Grounds for and objectives of the proposal

(a)
The proposal aims to align the existing
Commission implementing powers in Directive 2001/110/EC to the differentiation between delegated and implementing
powers of the Commission introduced by Articles 290 and 291 of the Treaty on
the Functioning of the European Union (TFUE) and to confer additional delegated
powers on the Commission.

The Treaty makes a distinction between the
powers delegated to the Commission to adopt non-legislative acts of general
application to supplement or amend certain non-essential elements of the
legislative act as laid down in Article 290(1) of the Treaty (delegated acts),
and the powers conferred upon the Commission to adopt uniform conditions for
implementing legally binding Union acts as laid down in Article 291(2) of the
Treaty (implementing acts). In the case of delegated acts, the Legislator
delegates to the Commission the power to adopt quasi-legislative acts. In the
case of implementing acts, the context is very different. Indeed, Member States
are primarily responsible for the implementation of legally binding acts of the
European Union. However, if the application of the legislative act requires
uniform conditions for its implementation, the Commission is authorised to
adopt these acts. The alignment of Directive 2001/110/EC on new rules of the Treaty reflects this distinction.

In addition, still in the context of the review
of the delegations of powers conferred on the Commission after the entry into
force of the Lisbon Treaty, the provisions of the above mentioned Directive
have also been scrutinized in order to identify possible supplementary needs in
term of powers to be conferred to the Commission under the new classification
of the Treaty.

(b)
Following a reference for a preliminary ruling
under Article 234 EC of the Bayerischer Verwaltungsgerichtshof (case C-442/09),
the Court of Justice issued a ruling, whereby it qualifies pollen in honey as an
ingredient within the meaning of Article 6(4)(a) of Directive 2000/13/EC of the
European Parliament and of the Council of 20 March 2000 on the approximation of
laws of the Member States relating to the labelling, presentation and
advertising of foodstuffs[4].
This conclusion by the Court was based on an assessment of facts brought before
the Court according to which the presence of pollen in honey is mainly the
result of the action of the beekeeper himself by virtue of centrifugation which
he carries out for the purposes of collection. However, pollen only enters into
the hive as a result of the activity of the bees. In fact, pollen is found in
honey regardless of whether the beekeeper extracts the honey through
centrifugation. It appears therefore necessary to clarify in Directive
2001/110/EC that pollen is a natural constituent and not an ingredient of honey.
This clarification would however not prevent the applicability of Regulation (EC)
No 1829/2003 to honey containing GM pollen[5],
and in particular will not affect the conclusion of the Court of Justice that
honey containing GM pollen can be placed on the market only if it is covered by
an authorisation in accordance with that Regulation.

In light of these considerations, a draft
proposal amending Directive 2001/110/EC has been prepared.

General context

Articles 290 and 291 of the Treaty on the
Functioning of the European Union (TFUE) distinguish two different types of
Commission acts:

Ÿ        Article 290 of the TFUE allows the legislator to
"delegate to the Commission the power to adopt non-legislative acts of
general application to supplement or amend certain non-essential elements of a
legislative act". Legal acts adopted by the Commission in this way are
referred to in the terminology used by the Treaty as "delegated acts"
(Article 290(3)).

Ÿ        Article 291 of the TFUE allows Member States to "adopt
all measures of national law necessary to implement legally binding Union
acts". Those acts shall confer implementing powers on the Commission where
uniform conditions for implementing them are needed. Legal acts adopted by the
Commission in this way are referred to in the terminology used by the Treaty as
"implementing acts" (Article 291(4)).

Council Directive 2001/110/EC does not
explicitly state if pollen in honey is, or is not, an ingredient in the sense
of Article 6(4)(a) of Directive 2000/13/EC. In the absence of such a precision,
the Court of Justice, in case C-442-09, issued a ruling whereby it considers
based on the assessment of the facts brought before it that pollen is an
'ingredient' within the meaning of Article 6(4)(a) of Directive 2000/13/EC
(point 79 of the judgment) of honey. The consequences of this ruling are, inter
alia, that the labelling rules related to ingredients set out in Directive
2000/13/EC apply, and in particular the obligation to indicate on the label of
the product the lists of ingredients (Article 3(1)(2)). Given that pollen is
naturally present in honey and enters in the hive as the result of the bees
activity independently of the action of the beekeeper, it is necessary to
explicitly mention in Directive 2001/110/EC that pollen in honey is not an
ingredient within the meaning of Article 6(4)(a) of Directive 2000/13/EC
but a constituent. The fact that honey is a natural substance produced by honey
bees to which no food ingredient can be added is reflected in the Codex
Standard for Honey[6].

This amendment will not alter the conclusion of
the Court of Justice in case C-442/09 that honey containing GM pollen falls
under the scope of Regulation (EC) No 1829/2003. Indeed, after the amendment of
Directive 2001/110/EC, honey containing GM pollen will continue to fall under
Article 3(1)(c) of that Regulation, as "food produced from GMOs".

Existing provisions in the area of the
proposal

Articles 290 and 291 of the Treaty on the
Functioning of the European Union (TFUE) are applicable for the alignment
exercise.

Article 6(4)(a) of Directive 2000/13/EC defines
the term 'ingredient' as "any substance, including additives and enzymes,
used in the manufacture or preparation of foodstuff and still present in the
finished product, even if in altered form".

Consistency with the other policies and
objectives of the Union

Not applicable.

2.           RESULTS
OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

With regard to the alignment of Commission
implementing powers with the TFUE, there was no need for consultation of
interested parties or for external expertise or an impact assessment since the
proposal is an inter-institutional matter, inherent to the entry into force of
the Lisbon Treaty.

As regards the nature of pollen in honey, the
general interpretation which prevailed before the judgment was that, for the
reasons above stated, pollen was a constituent of honey, and not an ingredient
within the meaning of Article 6(4)(a) of Directive 2000/13/EC. As a result the
labelling rules applicable to ingredients set out in Directive 2000/13/EC (i.a.
the list of ingredients) were not deemed to apply to honey. The proposed
amendment of the Honey Directive aims at clarifying that pollen is not an
ingredient in honey and will therefore have the effect, with regard to the
application of the labelling rules set out in Directive 2000/13/EC, to come
back to the situation prevailing until the judgment, without prejudice to the
application of Regulation (EC) No 1829/2003 to honey containing GM pollen. As a
result, no significant change on interested parties are expected and for this
reason, no impact assessment has been carried out.

The Commission has carried out a series of
consultations with Member States, in particular in the context of the Standing
Committee on the Food Chain and Animal Health (SCFCAH), with stakeholders
(including beekeepers associations or NGOs) in particular in the context of the
Advisory Group on the Food Chain Animal Health and Plant Health, the Advisory
Group for Apiculture, and with third countries in specific meetings that have
been organised for this purpose after the ruling, and in the context of
different fora of the World Trade Organisation (WTO).

3.           LEGAL ELEMENTS OF THE PROPOSAL

Summary of the proposed action

Identify the delegated and implementing powers
that should be conferred upon the Commission as regards Directive 2001/110/EC
and establish the corresponding procedure for adoption of this act in the new
legal context determined by the entry into force of Articles 290 and 291 of the
TFUE.

Clarify that pollen in honey is not an
ingredient in the sense of Article 6(4)(a) of Directive 2000/13/EC of the
European Parliament and of the Council.

Legal basis

Article 43 of the Treaty on the Functioning of
the European Union.

Subsidiarity principle

The proposal falls under shared competence
between the EU and the Member States. In light of the technical nature of the
amendment proposed (alignment on rules as regards Commission's implementing
powers and clarification of the status of pollen), the proposal does not modify
the repartition of competence between the EU and MS as set out by the amended
legislation and thus is in line with the subsidiarity principle.

Proportionality principle

The objective pursued by the proposal is to
clarify EU legislation to state that pollen is not an ingredient in honey but a
constituent in order to adequately reflect in the legislation the natural origin
of the presence of pollen in honey. In this context, the proposal introduces in
the Honey Directive a limited amendment of a technical nature which does not
exceed what is necessary to attain this objective. No alternatives other than
amending EU legislation are possible to reach the above mentioned objective, in
light of the existence of an ECJ ruling which provides interpretation of
existing EU legislation.

In addition, the alignment of the existing
Commission implementing powers in Directive 2001/110/EC with the provisions
laid down in TFUE stems from the adoption of the Lisbon Treaty and is thus in line
with the proportionality principle.

2012/0260 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

amending Council Directive 2001/110/EC
relating to honey

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 43(2) thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee[7],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       Following the judgment of
the Court of Justice of 6 September 2011 in case C-442/09[8], pollen in honey is to be
considered as an ingredient within the meaning of
Directive 2000/13/EC of the European Parliament and of the Council of 20 March
2000 on the approximation of the laws of the Member States relating to the labelling,
presentation and advertising of foodstuffs[9].
The judgment of the Court was based on the
consideration relying on the facts brought before it that pollen in honey is mainly
due to the centrifugation carried out by the beekeeper for the purposes of honey
collection. However, pollen only enters into the hive as a result of the
activity of the bees and it is naturally present in honey regardless of whether
or not the beekeeper extracts the honey through centrifugation. It is necessary therefore to clarify, without prejudice to the application of Regulation (EC) No 1829/2003
of the European Parliament and of the Council of 22 September 2003 on genetically
modified food and feed[10] to genetically modified pollen in honey,
that pollen is a constituent of honey, which is a natural
substance that has no ingredients, and not an ingredient within the meaning of
Directive 2000/13/EC. Therefore, Council Directive
2001/110/EC of 20 December 2001 relating to honey[11] should be amended accordingly.

(2)       Directive
2001/110/EC confers powers on the Commission in order to implement some of its
provisions. As a consequence of the entry into force of the Lisbon Treaty,
those powers need to be aligned to Article 290 of the Treaty on the Functioning
of the European Union (the Treaty). It is of particular
importance that the Commission carries out appropriate consultations during its
preparatory work, including at expert level. The Commission, when preparing and
drawing-up delegated acts, should ensure a simultaneous, timely and appropriate
transmission of relevant documents to the European Parliament and to the Council.

(3)       In
order to ensure uniform compliance, the power to adopt
acts in accordance with Article 290 of the Treaty should be delegated to the
Commission to adopt methods to permit verification of compliance of honey with
the provisions of Directive 2001/110/EC.

(4)       The
Annexes to Directive 2001/110/EC contain technical elements which might have to
be adapted or updated to take account of developments in relevant international
standards. That Directive does not confer on the Commission appropriate powers
to promptly adapt or update those Annexes to take account of developments in
international standards. Therefore, for the consistent implementation of
Directive 2001/110/EC, the power to adapt or update the Annexes to that
Directive to take account not only of technical progress but also of
developments in international standards should also be conferred on the
Commission.

(5)       Following the adoption of Regulation (EC) No 178/2002 of the European Parliament and of the
Council of 28 January 2002 laying down the general principles and requirements
of food law, establishing the European Food Safety Authority and laying down
procedures in matters of food safety[12],
which applies to all stages of production, processing and distribution of food
and feed at Union and national level, general Union provisions on foodstuffs
apply directly to the products covered by Directive
2001/110/EC. As a consequence, it is no longer necessary for the Commission to
have the powers to align the provisions of that Directive to the general Union legislation
on foodstuffs. The provisions conferring such powers should therefore be
deleted.

(6)       Therefore, in order to
take account of technical progress and, where appropriate, the developments in
international standards, the power to adopt acts in accordance with Article 290
of the Treaty should be delegated to the Commission to adapt or update the technical
characteristics related to the product descriptions and definitions in the
Annexes to Directive
2001/110/EC.

(7)       Directive 2001/110/EC
should therefore be amended accordingly.

(8)       Since the amendments related
to the alignment to the Treaty concern the Commission powers only, they do not
need to be transposed by the Member States,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive
2001/110/EC is amended as follows:

(1)          In
Article 2, the following point is added:

"5.     Pollen,
being a natural constituent particular to honey, shall not be considered an
ingredient, within the meaning of Article 6(4) of Directive 2000/13/EC, of the
products defined in Annex 1 to this Directive".

(2)          Article 4 is replaced by the following:

"Article
4

The Commission shall be empowered to adopt
delegated acts in accordance with Article 6a to set out
methods to permit verification of compliance of honey with the provisions of
this Directive. Until the adoption of such methods, Member States shall,
whenever possible, use internationally recognised validated methods such as
those approved by Codex Alimentarius to verify compliance with the provisions
of this Directive."

(3)          Article 6 is replaced by the
following:

"Article
6

The Commission shall be empowered to adopt
delegated acts in accordance with Article 6a to amend the technical
characteristics related to the names, product descriptions and definitions in
Annex I and to the composition criteria for honey in Annex II, to take account
of technical progress and, where appropriate, of the developments in relevant
international standards.

Article
6a

1.      The power to adopt the delegated acts
referred to in this Directive is conferred on the Commission subject to the
conditions laid down in this Article.

2.      The power to adopt delegated acts
referred to in Articles 4 and 6 shall be conferred on the Commission for an
indeterminate period of time from (...). (Publications Office is to fill in
the date of entry into force of this amending Act).

3.      The delegation of power referred to in
Articles 4 and 6 may be revoked at any time by the European Parliament or by
the Council. A decision to revoke shall put an end to the delegation of the
power specified in that decision. It shall take effect the day following the
publication in the Official Journal of the European Union or at a later
date specified therein. It shall not affect the validity of the delegated acts
already in force.

4.      As soon as it adopts a delegated act,
the Commission shall notify it simultaneously to the European Parliament and to
the Council.

5.      A delegated act adopted pursuant to
Articles 4 and 6 shall enter into force only if no objection has been expressed
either by the European Parliament or the Council within a period of two months
from the date of notification of that act to the European Parliament and the
Council or if, before the expiry of that period, the European Parliament and
the Council have both informed the Commission that they will not object. That
period shall be extended by two months at the initiative of the European
Parliament or of the Council."

(4)          Article 7 is deleted.

Article 2

1.           Member
States shall bring into force the laws, regulations and administrative provisions
necessary to comply with Article 1, point (1) by [date]. They shall forthwith communicate to the Commission the text of those provisions.

When Member States adopt those provisions, they
shall contain a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. Member States shall
determine how such reference is to be made.

2.           Member States shall communicate
to the Commission the text of the main provisions of national law which they
adopt in the field covered by Article 1, point (1) of this Directive.

Article 3

This Directive shall enter into force on the twentieth
day following that of its publication in the Official
Journal of the European Union.

Article 4

This Directive is addressed to the Member
States

Done at Brussels,

For the European Parliament                       For
the Council

The President                                                 The
President

[1]               OJ L 10, 12.1.2002, p. 47.

[2]               Case C-442/09, Judgment of the Court (Grand Chamber)
of 6 September 2011 (reference for a preliminary ruling from the
Bayerischer Verwaltungsgerichtshof (Germany)) — Karl Heinz Bablok and Others v.
Freistaat Bayern, OJ C 311, 22.10.2011, p. 7.

[3]               OJ L 268, 18.10.2003, p. 1.

[4]               OJ L 109, 6.5.2000, p. 29.

[5]               Indeed, after the amendment of Directive 2001/110/EC,
honey containing GM pollen will continue to fall under Article 3(1)(c) of that
Regulation, as "food produced from GMOs".

[6]               CODEX STAN 12-1981.

[7]               OJ C [...], [...], p. [...].

[8]               OJ C 311, 22.10.2011, p. 7.

[9]               OJ L 109, 6.5.2000, p. 29.

[10]             OJ L 268, 18.10.2003, p. 1.

[11]             OJ L 10, 12.1.2002, p. 47.

[12]             OJ L 31, 1.2.2002, p. 1.