Proposal for a EUROPEAN PARLIAMENT AND COUNCIL DECISION on the maintenance of national laws prohibiting the use of certain additives in the production of certain foodstuffs
Date: 1995-04-19
Institutions: European Commission
Subjects: consumer protection, food additive, foodstuff, foodstuffs legislation, human nutrition, national law

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels,  19.04.1995 
COM(95)  126 final 

95/0085 (COD) 

Proposal  for  a 

EUROPEAN PARLIAMENT  AND COUNCIL DECISION 

on the maintenance of national laws prohibiting the use of 
certain additives in the production of certain  foodstuffs 

wm 

(presented  by the Commission) 

EXPLANATORY MEMORANDUM 

1. 

Subsidiarity impact statement 

1. 

What  are the  objectives  of  the proposed  measure  with regard  to the  Community's 
obUgations? 

During  its  discussions  on  the  adoption  of  the  sweeteners  Directive,  the  Council 
recognized the need to protect the wealth of Europe's food  heritage.  To that end  k 
seemed expedient to authorize Member States to allow derogations from  the various 
additives directives so as to enable special production methods to be maintained for 
foods considered traditional and produced on their territory. 

2. 

Does competence for  the proposed measure  lie solely  with the Community  or  is U 
shared with the Member States? 

Competence for the proposed measure lies solely with the Community. 

3. 

T&what extent is this a problem on a Community scale? 

On  30 June  1994  the  Council  adopted  Directive  94/34/EC  amending  framework 
Directive  89/107/EEC  on  the  approximation  of  the  laws  of  the  Member  States 
concerning  food  additives  authorized  for  use  in  foodstuffs  intended  for  human 
consumption. 

The amending Directive introduced a new Article 3a into the framework  Directive on 
additives, enabling Parliament and the Council, under the Article 100a procedure, to 
authorize Member States to maintain their prohibitions on the use of certain additives 
in the production of certain foodstuffs  considered traditional.  Such prohibitions must 
have been in force  since  1 January  1992.  The Member States concerned must also 
authorize the production  and sale on their  territory  of  all foodstuffs  not considered 
traditional  which  conform  to  the  rules  provided  for  in  Article 3  of  Directive 
89/107/EEC. 

Member  States  had  to  send  the  Commission  a  list  of  the  foodstuffs  they  consider 
traditional  before  1 July  1994.  The  three  new  Member  States  were  granted  an 
extended deadline. 

Paragraph 2  of  the  new  Article 3a  required  that  the  list  be  accompanied  by  an 
explanation  of  why  the  foodstuffs  were  considered  traditional,  together  with  the 
relevant legislative provisions. 

Before  1 April  1995 the Commission must submit a proposal to Parliament  and the 
Council, on which they must act before  1 April 1996. 

Paragraph 3  of  the  new  Article  stipulates  that,  until  such  time  as  the  Council  has 
given  a  ruling,  Member  States  may  maintain  any  prohibitions  which  have  been 
communicated  to  the  Commission  provided  they  comply  with  the  general  conditions 
laid down in paragraph  1. 

4. 

What is  the most  effective solution taking into account the  means available  to  the 
Community and the Member States ? 

The  Commission  feels  the  experience  gained  since  the  adoption  of  Directive 
89/107/EEC  and  the  recent  adoption  of  three  new  texts  on  additives  shows  that  the 
adoption  of  measures  at  Community  level  is an effective  way  of  creating  an  internal 
market in foodstuffs  while at the same time showing proper concern for  public health. 
Radical  amendment  or  outright  abolition  of  existing  Community  provisions  would 
create a climate of uncertainty  which would be damaging to the long-term  interests of 
producers and consumers. 

5. 

What practical  additional benefit will the proposed measure provide  and what would 
be the cost of failure to take action? 

The  Commission's  proposals  will  protect  the  traditional  character  of  certain  very 
specific  foodstuffs.  Failure  to adopt the proposed  measure  will  lead  to a situation of 
legal uncertainty. 

6. 

What forms of action are open to the Commission? 

A decision adopted by Parliament  and the Council on the basis of Article  100a  seems 
the best way of allowing for such derogations. 

7. 

Is  it  absolutely necessary to  adopt  uniform  rules or  would  a  directive  establishing 
general principles and leaving implementation to the Member States be sufficient? 

Since  the main  aim of  the proposed  measure  is  to  allow  laws  to  be  maintained,  the 
most appropriate legal framework  would appear to be a decision. 

2. 

PARTICULAR  COMMENTS 

I. 

Facts 

All  15  Member  States  now  covered  by  the  Directive  replied  within  the  given 
deadlines.  The  new  Member  States  were  granted  an  extended  deadline  for 
communicating their lists. 

Six  Member  States  said  they  had  no  traditional  foodstuffs  liable  to  fall  within  the 
scope  of  such  a  text.  These  were  Belgium,  Ireland,  Luxembourg,  the  Netherlands, 
Portugal and the United Kingdom. 

Nine Member States notified products.  These totalled around 300 foodstuffs,  mainly 
cheeses, prepared meat products and spirit drinks. 

2. 

General selection criteria for  the notified foodstuffs 

Some  Member States  felt  it  would  be unhelpful  to notify  a  list  of  foodstuffs  which 
might be considered traditional;  to enumerate them in that way would necessarily be 
reductive.  Accordingly,  a lot of Member States notified very few or no products, or 
accepted  large cuts in the  lists  they  did communicate.  The Commission  shares this 
point of  view,  finding  that the number and range of traditional products would make 
any  list  limitative.  It  believes  the  Member  States  would  do  better  to  protect  their 
products  through  Regulations  (EEC)  Nos 2081/92  and  2082/92  on  designations  of 
origin and certificates of specific character. 

The  Commission  has  chosen  the  following  selection  criteria  for  specific  foodstuffs 
considered traditional within the framework of Community legislation on additives. 

The  Commission  wanted  to avoid  introducing preferential  arrangements  for  specific 
additives  within  a  single  category.  Its  aim  is  to  avoid  pointless  derogations  from 
Community  harmonization. 
It  therefore  discounted  foodstuffs  for  which  Member 
States  authorized  a particular  additive  but  excluded  other  additives  from  the  same 
category. 

Furthermore, the Commission felt that requests were not justified where the main aim 
in prohibiting  an additive  was  to  protect public  health; partly  because  protection  of 
public  health  does  not  point  to  any  traditional  character  in  a  product,  but  mainly 
because  all Community  legislation on additives pays scrupulous attention to essential 
health requirements, which means requests for derogation are without object. 

Foodstuffs  with a defined geographical designation were also discounted as they could 
be  better  protected  under  the  Regulation  on  designations  of  origin.  Similarly, 
foodstuffs  were rejected because they could be better protected under the Regulation 
on certificates of specific character. 

Spirit  drinks were  excluded  as they  are  already  defined  and protected  as traditional 
spirit  drinks  by  Regulation  (EEC)  No 1576/89.  The  Regulation  establishes  their 
recipes,  while  Article 4(2)  lays down that  "the list  of  authorized  food  additives,  the 
directions  for  their use  and the  spirit  drinks  concerned  shall  be  determined  by  the 
procedure  laid down in Council  Directive  89/107/EEC of  21 December  1988  on the 
approximation of the laws of the Member States on the additives which may be used 
in foodstuffs. " 

3. 

Further comments 

The Commission has been unaèle to clarify  ail the technical details owing to lack of 
time. 

As  certain  notifications  do  not  contain  all  the  data  required  by  Article 3a(2) 
(particularly  the Spanish and Kalian notifications),  the Commission reserves the right 
to amend the list proposed in annex if necessary. 

DECISION ..../..EC of the European Parliament and the Council 

.  -of  -

on the maintenance of national laws prohibiting the use of 
certain additives in the production of certain  foodstuffs 

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 as amended by Directive 94/34/EC,2 and in particular Article 3a thereof, 

Having regard to the proposal from the Commission,3 

Having regard to the opinion of the Economic and Social Committee,4 

Acting in accordance with the procedure referred  to in Article  189b of the Treaty,5 

Whereas  the  rules  on  additives  harmonization  ought  not  to  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 traditional and produced on their territory; 

Whereas the list of  foodstuffs  considered  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; 

! 
OIL  40,  11.2.1989, p. 27. 
3  OJ L 237,  10.9.1994, p.  1. 

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,  however,  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  means  of  production  should  be  retained; 
whereas  account  should  be  taken  of  fair  practice  in  commercial  transactions  involving  these 
products  and  in  respect  of  consumers  so  as  to  be  able  to  authorize  the  maintenance  of  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 2081/926  and  No 2082/927  on  designation  of  origin  and  certificates  of  specific  character 
respectively; 

Whereas  Directive  89/107/EEC  and  its  implementing  directives  only  authorize  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  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  its  specific  Directives  94/35/EC,8  94/36/EC9  and  95/../EC10  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  thus  granted  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  traditional  or  non-
traditional must therefore  be maintained  in accordance with the provisions of the Treaty, 

HAVE DECIDED AS FOLLOWS: 

?  OJ L 208, 24.7.1992, p. 1. 
1  OIL208, 24.7.1992, p. 9. 
!  OJL 237, 10.9.1994, p. 3. 
j0  OJL237,  10.9.1994, p. 13. 

Article 1 

Pursuant to Article 3a of Directive 89/107/EEC, as amended by Directive 94/34/EC,  and under the 
conditions specified therein, the Member States listed in annex are hereby authorized to maintain in 
their  legislation  the  prohibition  on  the  use  of  categories  of  additives  in  the  production  of  the 
corresponding foodstuffs  listed in that annex. 

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

Article 2 

This Decision is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

ANNEX 

Table of products for which the Member States concerned may 
maintain the prohibition of certain categories of additive 

Member 

Foodstuffs 

Categories of additives for which a prohibition 

State 

may be maintained 

Germany 

beer 

all except propellent gases 

Greece 

"feta" cheese 

France 

"traditional French bread" 

France 

preserved truffles 

France 
France 

preserved snails 
goose, duck and turkey 
preserves  ("confît") 

all 

all 

all 

all 
all except preservatives 

Austria 

"Bergkase" 

all except preservatives 

Finland 

"Màmmi" 

all except preservatives 

ISSN 0254-1475 

COM(95) 126 final 

DOCUMENTS 

EN 

03 

Catalogue number  :  CB-CO-95-135-EN-C 

ISBN 92-77-87601-8 

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