WRITTEN QUESTION E-3219/97 by Ursula Schleicher (PPE) to the Council (15 October 1997)

Subject: Article 43 versus Article 100a

In the wake of the BSE affair serious shortcomings have come to light at all levels, including in the EU's legislative and administrative procedures. In response to the demands made by Parliament's Committee of Inquiry, the Commission has not only taken administrative measures but has promised in future to base all relevant legal acts concerning foodstuffs and health policy on Article 100a. The Commission has kept this promise and has changed the legal basis of proposals, including those in respect of which the legislative procedure is still pending, from Article 43 to Article 100a.

The Council is counteracting the efforts of Parliament and the Commission by reversing this measure, most recently in the 'Directive relating to the fixing of maximum levels for pesticide residues in and on fruit and vegetables, etc.'. I understand that the Council is now once again seeking to base the 'Amended directive laying down the principles governing the organization of veterinary checks on products entering the Community from third countries' (COM(97) 0321) on Article 43, contrary to the wishes of Parliament and the Commission.

Does not the Council consider that this damages the European Community's credibility as regards the seriousness of its efforts to stem the dangers of BSE?

Answer (16 February 1998)

1. In choosing the legal basis for an act, the Council bases itself on the established case law of the Court according to which, even if the legislation in question concerns both the objectives of the common agricultural policy and other objectives which, in the absence of specific provisions, are pursued on the basis of Article 100a of the Treaty, that Article cannot be used as an argument for restricting the scope of Article 43 of the Treaty. Furthermore, efforts to achieve the objectives of the common agricultural policy cannot disregard requirements of public interest, such as the protection of consumers or of the health and life of humans and animals ((Case 68/86 UK v. Council [1988] ECR855, paragraph14; Case131/86 UK v. Council [1988] ECR905, paragraph 19; Case C-180/96 R UK v. Commission [1996] ECR I-3903, paragraph 63. )) ((The relationship between Articles 43 and 100a is currently sub judice before the Court of Justice. )).

2. As regards Directive97/41/EC of 25June1997 ((Directive 97/41/EC of 25 June 1997 amending Directives 76/895/EEC, 86/362/EEC, 86/363/EEC and 90/642/EEC relating to the fixing of maximum levels for pesticide residues in and on, respectively, fruit and vegetables, cereals, foodstuffs of animal origin, and certain products of plant origin, including fruit and vegetables. OJ L 184, 12.7.1997, p. 33. )) relating to the fixing of maximum levels for pesticide residues in and on fruit and vegetables, interalia, the Council considers that Article43 is the appropriate legal basis.

In effect, its main aim is to contribute towards the achievement of the objectives of the common agricultural policy.

Under these circumstances, the Council does not share the Commission's opinion that Article 100a is the appropriate legal basis, even if the harmonization measures in the Directive result in improving public health protection and consumer protection and facilitating the smooth functioning of the single market.

It should be added that the question of the relationship between Articles 43 and 100a of the Treaty as regards veterinary legislation is currently sub judice before the Court of Justice (see Case C-269/97, Commission v. Council).

3. As regards the proposal for a Directive laying down the principles governing the organization of veterinary checks on products entering the Community from third countries, the Council notes that the Commission had initially based its proposal on Article 43 of the Treaty, but amended it in favour of Article 100a of the Treaty further to the European Parliament's Opinion. Examination by the Council of the proposal, thus amended, is continuing and should be concluded soon.

4. The Council does not consider that the European Union's credibility, in its efforts to stem the dangers caused by BSE, is damaged if the Council bases itself, as regards the legal basis for its decisions, on the established case law of the Court of Justice, the institution which is responsible for interpreting the Treaty.

5. Finally, the Council would draw the Honourable Member's attention to the new Article 129 as amended by the Treaty of Amsterdam.

In order to ensure a high level of human health protection, paragraph 4 of this new Article provides that:

'The Council, acting in accordance with the procedure referred to in Article 189b and after consulting the Economic and Social Committee and the Committee of the Regions, shall contribute to the achievement of the objectives referred to in this Article through adopting:

(...)

(b) by way of derogation from Article 43, measures in the veterinary and phytosanitary fields which have as their direct objective the protection of public health;

(...).'

The Treaty of Amsterdam was signed on 2 October 1997 and will enter into force once national ratification procedures have been completed.