Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Directive 2001/110/EC relating to honey
Date: 2012-09-21
Institutions: European Commission
Subjects: European Commission, Treaty of Lisbon, enforcement of ruling, genetically modified organism, honey, powers of the institutions (EU), quality standard

EUROPEAN COMMISSION 

Brussels, 21.9.2012  
COM(2012) 530 final 

2012/0260 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Directive 2001/110/EC relating to honey 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

The aim of the proposal to amend Directive 2001/110/EC relating to honey1 is to: 

(a) 

(b) 

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

in the context of the judgment of the Court of Justice in case C-442/092, and, 
without  prejudice  to  the  application  of  Regulation  (EC)  No  1829/2003  on 
genetically modified food and feed3 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 
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. 

to 

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.  

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3 

OJ L 10, 12.1.2002, p. 47. 
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. 
OJ L 268, 18.10.2003, p. 1. 

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(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 
foodstuffs4. 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 pollen5, 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: 

(cid:121) 

(cid:121) 

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)). 

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 

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5 

OJ L 109, 6.5.2000, p. 29. 
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". 

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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 Honey6. 

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 
the  amendment  of  Directive  2001/110/EC,  honey 
1829/2003.  Indeed,  after 
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 

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CODEX STAN 12-1981. 

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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. 

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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 Committee7, 

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-
442/098,  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 foodstuffs9. 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 
feed10  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 honey11 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, 

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11 

OJ C […], […], p. […]. 
OJ C 311, 22.10.2011, p. 7. 
OJ L 109, 6.5.2000, p. 29. 
OJ L 268, 18.10.2003, p. 1. 
OJ L 10, 12.1.2002, p. 47. 

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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. 

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.  

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. 

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 safety12, 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. 

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. 

(3) 

(4) 

(5) 

(6) 

(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,  

12 

OJ L 31, 1.2.2002, p. 1. 

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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. 

2. 

3. 

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. 

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). 

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. 

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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. 

2. 

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. 

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. 

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

Article 3 

Article 4 

This Directive is addressed to the Member States 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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