COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Regulation of the European Parliament and of the Council laying down health rules concerning animal by-products not intended for human consumption

1. BACKGROUND

Date of transmission of the proposal to the EP and the Council (document COM(2000)574 final 2000/0259 COD): // 19.10.2000

Date of the opinion of the Economic and Social Committee: // 26.04.2001

Date of the opinion of the European Parliament, first reading: // 12.06.2001

Date of adoption of the common position: // 20.11.2001.

2. OBJECTIVE OF THE COMMISSION PROPOSAL

The key issue of the first proposal is the prohibition on the recycling of certain animal by-products into the feed chain, namely dead animals and condemned animal material. The only raw material allowed to be used for the production of animal feed would then be material derived from animals declared fit for human consumption.

Furthermore, this proposal:

- introduces a number of alternative methods for the use or disposal of animal by-products;

- strengthens rules on controls and traceability of animal by-products;

- establishes a link with Environmental Community legislation;

- creates a new legal framework for the animal by-products sector;

- simplifies existing Community legislation by creating a consolidated legislative act dealing with all animal by-products not intended for human consumption.

3. COMMENTS ON THE COMMON POSITION

3.1. General overview of the Common Position

The Common Position, adopted by the Council by qualified majority, does not alter the basic objectives of the proposed Regulation and takes on board the vast majority of the European Parliament amendments adopted in first reading. Part of the amendments are taken on board in full, the others were rephrased to find a suitable solution for all Member States. However, there is no difference of opinion between the European Parliament and the Commission on the basic principles of the Regulation. In particular, there is a general agreement on:

- the principle that only animal by-products derived from animals fit for human consumption should be used in feed;

- the prohibition of intra-species recycling;

- the need to tighten certain provisions in order to improve control and traceability of animal by-products, and

- the need for additional flexibility in the Regulation in order to adapt legislation to technical developments and new scientific evidence and in case of special circumstances.

The Common Position does not take on board a small number of amendments of the European Parliament, which are in effect the same as those not supported by the Commission.

The Council adopted the Common Position by qualified majority. Two Member States voted against, because the Regulation does not expressly prohibit the use of processed animal protein and fats in feed and because the Regulation prohibits the use of catering waste in swill feeding.

3.2. Specific comments on the Common Position

3.2.1. Animal feed

The Council agrees with the European Parliament on the prohibition of intra-species recycling.

The Common Position introduces the possibility for a derogation from the above prohibition in order to allow the feeding of fish with fishmeal and the feeding of fur animals with products derived from fur animal carcasses. This derogation may be granted only following scientific advice.

The Commission can support the Common Position. However, the Commission considers that the potential risk in fish farming comes from recycling of fish waste derived from the commercial farming of the same species. Accordingly, the Commission wishes to clarify that the ban provided for in Article 22 (1) (a) of the Common Position will be applied on a species basis, and will not therefore apply to feeding of fish meal to farmed fish as long as the fish meal is derived from different species.

3.2.2. Catering waste

The Council agrees with the European Parliament that the Regulation should lay down rules on the use and disposal of catering waste. Therefore, catering waste is introduced in the scope of the Regulation, but only when it is destined to specific purposes in order to avoid duplication with environmental legislation or to avoid hindering the development of new environmental rules on biodegradable waste. A definition of catering waste is introduced. This definition includes waste from household kitchens to ensure consistency with forthcoming legislation on Classical Swine Fever, which was adopted by the Council on 23.10.2001. It is clarified that catering waste from international means of transport belongs to the highest risk category 1 and shall be destroyed as already required by existing Community legislation.

However, the Council does not accept the European Parliament amendments 102 and the part of amendment 103 aiming to allow the continuation of swill feeding using catering waste.

The Commission supports the above Common Position. In particular, on the swill feeding it shall be noted that, first of all, this practice is not compatible with the prohibition on intra-species recycling and with the demand for full traceability of feed ingredients, both of which have been strongly requested by the European Parliament. Secondly, the recent dioxin crisis and the current outbreaks of foot-and-mouth disease, both adequately illustrate why the continuation of this feeding practice is not appropriate. It shall be noted that the Common Position will not exclude for use in animal feed waste food which comes from industrial food business, where traceability of the products can be ensured. For reasons of transparency, clarity and legal security, the date of entry into force of this ban should be the same as the one set in the forthcoming legislation on Classical Swine Fever (i.e. 31.10.2002).

3.2.3. Cross-contamination

The Council agrees with the European Parliament on the need to introduce additional and stricter requirements to avoid cross-contamination.

The Commission supports the above Council position.

3.2.4. Traceability

The Council agrees with the European Parliament on the need to introduce additional requirements to improve traceability of products or to strengthen the requirements on traceability established by the Commission proposal. However, the requirement of the marking of unprocessed Category 1 and 2 animal by-products is not accepted by the Council, as applying markers to cadavers or to manure is not believed either to bring any additional benefits and is not practicable.

The Commission can accept the above Council position, as the marking of certain unprocessed category 1 material, such as the Specified Risk Material (SRM), is already established by the TSE Regulation (EC) No 999/2001 and an additional marking of ruminant cadavers would not be in line with that TSE Regulation, which derogates from this requirement. Furthermore, it must be noted that additional rules on marking, including the possibility of extending marking to other raw material, may be laid down under Comitology procedure in Annex II of the animal by-products Regulation.

3.2.5. Incineration/Review of methods of disposal

The Council agrees with the European Parliament on the need to setting public health requirements for incinerators which are not covered by the scope of Directive 2000/76/EC on the incineration of waste and to introduce the legal possibility for reviewing the authorised methods of disposal following new scientific advice.

The Commission supports the above Council position.

3.2.6. Derogation for burial and burning

The Council agrees with the European Parliament on the need to introduce a derogation for burial and burning of cadavers and Specified Risk Material in remote areas and in case of outbreaks of serious transmissible diseases because of the danger of propagating health risks or because of a lack of disposal capacity.

The Commission can accept the above Council position.

3.2.7. Rendered fats, fats derivatives and fertilisers

The Council agrees with the European Parliament on the need to prohibit the use of rendered fats from category 2 material for the production of fat derivatives for the cosmetic and pharmaceutical industry. However, the Council does not accept the European Parliament' amendment 88 aiming to restrict the importation of ruminant fats due to a TSE risk, as this matter is regulated by the TSE Regulation (EC) No 999/2001.

The Council also agrees that the Regulation should lay down specific rules for the placing on the market and importation of organic fertilisers, soil improvers and fat derivatives produced from Category 2 material. Pending the adoption of those Community rules following scientific advice, Member States may maintain their national legislation.

The Commission can support the above Council position.

3.2.8. Exports and Transit

The Council agrees with the European Parliament on prohibiting the exportation of Category 1 and Category 2 material. However, certain animal products such as game trophies, which are derived from category 1 material, manure and processed manure, organic fertilisers and fat derivatives, which belong to Category 2 material or are derived therefrom, are currently exported to third countries (and imported from them), subject to conditions established by Community legislation, which are recast in the Regulation. Therefore, it is clarified in the compromise text that these amendments are without prejudice to those products. Furthermore, the Council agrees with the European Parliament on the need to clarify that the requirements for the placing on the market of products shall also apply for their exportation.

In addition, the Council agrees that the Regulation should lay down minimum standards for transit of products through the Community.

The Commission can support the above Council position.

3.2.9. Date of application

The Council agrees with the European Parliament on an earlier date of entry into force of the Regulation and on the need for Member States to forward a report to the Commission attesting the actual implementation of the Regulation.

The Commission supports the above Council position.

3.2.10. Others

The Council also agrees with the European Parliament on the following:

- regulating the temperature of raw category 3 material during storage and transportation;

- requiring the marking of imported petfood's raw material derived from hormone-treated animals;

- clarifying the possibility for authorising equivalent processing treatments for manure following scientific advice. However, the Council considers premature to make reference to a concordance table before evaluation of the scientific committee. Therefore the part of amendment 92 referring to that table, has not been taken into account by the Council. Furthermore, the part of amendment 62 which aiming to excluding solid dung and composting from the prohibition of spreading on pasture land, has not been taken into account by the Council, as manure in any form is already excluded by this prohibition and as there is no justification for excluding compost from a general policy relating to the spreading of proteinaceus material on pasture land;

- introducing stricter requirements for the use of blood in animal feed;

- improving clarity in a number of recitals, Articles and Annexes.

Furthermore, the Council agrees on

- clarifying that Member States can regulate the importation and placing on the market of products for which Annexes VII and VIII of the Regulation contain no rules;

- providing more flexibility for movement of manure;

- allowing the feeding of endangered species of necrophagous animals with whole bodies of dead animals following appropriate rules to be adopted by the Commission;

- introducing a number of editorial changes aiming to improve the clarity of the Regulation.

Finally, the Council Compromise does not take on board a small number of the amendments of the European Parliament, related to various recitals, as they are not matched by provisions in the text, or they are not in line with the provisions in the text of the Regulation (amendments 3, 4, 6, 10 and 12) or they are not correct (amendment 11).

The Commission has no objection on the above. However, the Commission supports the part of the European Parliament's amendment 11 aiming to remove the reference to increase productivity.

4. CONCLUSION

The Commission supports the Presidency text on the Common Position, adopted by the Council by qualified majority.

5. COMMISSION DECLARATIONS

The declarations made by the Commission at the Council of Agriculture of 19 June 2001 are attached in the Annex to the present communication.

ANNEX

COMMISSION DECLARATIONS

Re Article 12 (interpretation of Directive 2000/76/EC on incineration)

The Commission will, in the six months following adoption, provide guidance on the interpretation of Article 2(a)(vii) of Directive 2000/76/EC to clarify the scope of that Directive in relation to the disposal of animal by-products, including the legal possibility to dispose of specified risk material in low capacity incinerators, while considering long term approach. Furthermore, within the same period, the Commission will evaluate the SEAC risk assessment on the potential risks arising from the use of small incinerators to dispose of that material.

Re Article 22 (intra-species recycling ban)

The Commission undertakes to seek the opinion of the SSC, before the adoption of the Regulation, on whether the feeding of feed derived from fish to farmed fish and the feeding of feed derived from fur animals to fur animals, presents a risk to animal or human health. If the opinion of the SSC does not establish any risks, the Commission will propose, in accordance with the procedure of Article 33(2), as soon as possible, a derogation enabling such practice to continue.

Re Article 24 (burial and burning of ruminant bodies containing SRM)

The Commission will do its utmost to make early proposals to permit the adoption of detailed arrangements for the implementation of Article 24 following scientific advice. These will, in the light of scientific advice, specify safe methods of burning and burial of animal by-products including TSE infected material. If appropriate, the arrangements will provide that burning and burial is carried out in ways which fulfil the objectives referred to in Article 4 of Directive 75/442/EEC, as amended.

Re Article 32 (Transitional measures)

The Commission will propose transitional measures, where justified and appropriate, to allow time to adapt to the new requirements of the Regulation, in particular for low capacity incineration plants and processing plants.

Re Article 23 (Derogation for the feeding of necrophagous animals)

The Commission will propose through committee procedure appropriate rules for the use of category 1 material for the feeding of necrophagous animals under Article 23 and consequential amendments to the annex of the TSE Regulation.

Re Annexes VII and VIII (trade and importation)

The Commission will review the detailed rules on trade and importation in the light of comments received from Member States and, if necessary, will propose the adoption of technical amendments under the committee procedures, as soon as possible, following entry into force of the Regulation.