COMMON POSITION (EC) No 53/96 adopted by the Council on 18 June 1996 with a view to adopting a Decision No . . ./96/EC of the European Parliament and of the Council, of . . ., on the maintenance of national laws prohibiting the use of certain additives in the production of certain specific foodstuffs (96/C 315/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof,

Having regard to Council Directive 89/107/EEC of 21 December 1988 on the approximation of the laws of the Member States concerning food additives authorized for use in foodstuffs intended for human consumption (1), and in particular Article 3 (a) thereof,

Having regard to the proposal from the Commission (2),

Having regard to the opinion of the Economic and Social Committee (3),

Acting in accordance with the procedure referred to in Article 189b of the Treaty (4),

Whereas the rules on additive harmonization should not affect the application of provisions in force in the Member States on 1 January 1992 which prohibit the use of certain additives in certain specific foodstuffs considered as traditional and produced on their territory;

Whereas the list of foodstuffs considered as traditional must be drawn up on the basis of notifications made by the Member States to the Commission before 1 July 1994; whereas, however, notifications from the new Member States sent after that date must be considered;

Whereas, however, the general purpose of this Decision is not to define the traditional character of foodstuffs; whereas, in particular, traditional character is not determined simply by a prohibition on the use of additives in such products;

Whereas, nevertheless, account must be taken of how significant the national legal prohibition in force on 1 January 1992 on the use of certain categories of additives is in foodstuff production practices as a whole; whereas the particular features of such a method of production should be retained; whereas account should be taken of fair practice in commercial transactions involving these products and of consumers' interests before authorization can be given to maintain the prohibition on the use of certain categories of additives;

Whereas designation of a product as a traditional product for which a Member State might maintain its national legislation must be without prejudice to the provisions of Regulations (EEC) No 2081/92 (5) and (EEC) No 2082/92 (6) on designation of origin and certificates of specific character respectively;

Whereas Directive 89/107/EEC and the specific directives authorize only additives which do not harm human health; whereas protection of public health cannot therefore be a criterion warranting prohibition of the use of certain additives in certain specific foodstuffs considered traditional;

Whereas, in principle, prohibition of the use of certain additives must not lead to discrimination with regard to other additives belonging to the same category as mentioned in Annex I to Directive 89/107/EEC and so must not affect Community harmonization;

Whereas, in the interests of transparency, bans on the use of certain categories of additive in certain categories of foodstuff which Member States may maintain in derogation from the provisions of Directive 89/107/EEC and the specific Directives 94/35/EC (7), 94/36/EC (8) and 95/2/EC (9) should be identified;

Whereas freedom of establishment and the free movement of goods must not be jeopardized either by the authorization to maintain national laws or by any regulations on labelling to distinguish these products from similar foodstuffs; whereas the free movement, placing on the market and manufacture in all Member States of similar foodstuffs considered as traditional or non-traditional must therefore be maintained in accordance with the provisions of the Treaty,

HAVE ADOPTED THIS DECISION:

Article 1

Pursuant to Article 3 (a) of Directive 89/107/EEC and under the conditions specified therein, the Member States listed in the Annex are hereby authorized to maintain in their legislation the prohibition on the use of categories of additives in the production of the foodstuffs listed in that Annex.

This Decision shall be applied without prejudice to Regulations (EEC) No 2081/92 and (EEC) No 2082/92.

Article 2

This Decision is addressed to the Member States.

Done at . . .

For the European Parliament The President For the Council The President

(1) OJ No L 40, 11. 2. 1989, p. 27. Directive as last amended by Directive 94/34/EC (OJ No L 237, 10. 9. 1994, p. 1).

(2) OJ No C 134, 1. 6. 1995, p. 20.

(3) OJ No C 301, 13. 11. 1995, p. 43.

(4) Opinion of the European Parliament of 16 January 1996 (OJ No C 32, 5. 2. 1996, p. 22), Council common position of 18 June 1996 (not yet published in the Official Journal) and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(5) OJ No L 208, 24. 7. 1992, p. 1. Regulation as amended by the 1994 Act of Accession.

(6) OJ No L 208, 24. 7. 1992, p. 9. Regulation as amended by the 1994 Act of Accession.

(7) OJ No L 237, 10. 9. 1994, p. 3.

(8) OJ No L 237, 10. 9. 1994, p. 13.

(9) OJ No L 61, 18. 3. 1995, p. 1.

ANNEX

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 19 April 1995 the Commission submitted a proposal for a decision (1), based on Article 100a of the EC Treaty, on the maintenance of national laws prohibiting the use of certain additives in the production of certain specific foodstuffs.

2. The European Parliament and the Economic and Social Committee delivered their opinions on 16 January 1996 (2) and 13 September 1995 (3) respectively. In the light of the European Parliament's opinion, the Commission submitted an amended proposal on 6 May 1996 (4).

3. On 18 June 1996, the Council adopted its common position in accordance with Article 189b of the Treaty.

II. AIM

The aim of the proposal is to establish a list of foodstuffs considered as traditional, so as to safeguard the Community food heritage. In order to attain that objective the Member States concerned may maintain their national legislation prohibiting the use of certain additives in the production of certain foodstuffs.

III. ANALYSIS OF THE COMMON POSITION

1. The European Parliament suggested three amendments, namely:

- precise details of the description of foodstuffs considered as traditional (amendment 2),

- the addition of two Danish foodstuffs and one Swedish (amendment 3),

- provisions requiring it to be stated on the label that the traditional method of production has been used (amendment 1).

2. After examining the proposal the Council generally recast, specified and enlarged the scope of the proposal, on the one hand to take greater account of national legislation and on the other hand to take account of the European Parliament amendments, especially amendments 2 and 3.

The Commission agreed to all the amendments to the amended proposal as adopted by the Council.

3. In line with amendment 2 (accepted by the Commission in its amended proposal), the Council agreed to the amendments to the definitions of foodstuffs in respect of which Member States may retain the relevant legislation. However, the Council could not agree to the term 'traditional Greek` being applied to 'feta` cheese, stressing that the latter is in principle produced only in Greece and therefore does not require such specification.

4. Next, as 'pain de tradition française` can be translated into all the official languages, the Council decided not to place the expression in inverted commas.

5. As regards 'traditional French goose, duck and turkey preserves ("confit")`, taking into account the method of production, the Council stated that France may maintain the prohibition on all categories of additives.

6. The Council incorporated all the foodstuffs in amendment 3 (the Commission rejected this amendment). However, the Council specified the categories of additives for which a ban may be maintained in respect of the Danish products 'leverpostej` and 'koedboller`. The Council also added Finland to the category 'Traditional Swedish fruit syrups`, as Finland also produces such foodstuffs.

7. Lastly, the Council added a Spanish product, 'lomo embuchado` to the list, as well as three Italian products, 'salame cacciatore`, 'mortadella` and 'cotechino e zampone`.

The four products in question are regarded as traditional, and the legislation prohibiting the use of certain additives in those foodstuffs has existed for many years.

8. The Council did not adopt amendment 1, under which the label must state that the foodstuff has been produced using the traditional method of the Member State. The Council felt that manufacturers themselves should decide whether such particulars were necessary (the amendment was also rejected by the Commission).

9. Having retained two out of three amendments proposed by the European Parliament and taken into account the criteria for establishing the list of traditional products, the Council feels that overall it has struck a balanced compromise.

(1) OJ No C 134, 1. 6. 1995, p. 20.

(2) OJ No C 32, 5. 2. 1996, p. 21.

(3) OJ No C 301, 13. 11. 1995, p. 43.

(4) OJ No C 186, 26. 6. 1996, p. 7.