Procedure : 2017/0297(COD)
Document stages in plenary
Document selected : A8-0253/2018

Texts tabled :

A8-0253/2018

Debates :

Votes :

PV 11/09/2018 - 6.1

Texts adopted :

P8_TA(2018)0318

REPORT     ***I
PDF 676kWORD 60k
12.7.2018
PE 622.249v01-00 A8-0253/2018

on the proposal for a decision of the European Parliament and of the Council amending Council Decision 2003/17/EC as regards the equivalence of field inspections carried out in Brazil on fodder plant seed-producing crops and cereal seed-producing crops and on the equivalence of fodder plant seed and cereal seed produced in Brazil, and as regards the equivalence of field inspections carried out in Moldova on cereal seed-producing crops, vegetable seed-producing crops and oil and fibre plant seed- producing crops and on the equivalence of cereal seed, vegetable seed and oil and fibre plant seed produced in Moldova

(COM(2017)0643 – C8‑0400/2017 – 2017/0297(COD))

Committee on Agriculture and Rural Development

Rapporteur: Czesław Adam Siekierski

(Simplified procedure – Rule 50(2) of the Rules of Procedure)

AMENDMENTS
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS
 PROCEDURE – COMMITTEE RESPONSIBLE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a decision of the European Parliament and of the Council amending Council Decision 2003/17/EC as regards the equivalence of field inspections carried out in Brazil on fodder plant seed-producing crops and cereal seed-producing crops and on the equivalence of fodder plant seed and cereal seed produced in Brazil, and as regards the equivalence of field inspections carried out in Moldova on cereal seed-producing crops, vegetable seed-producing crops and oil and fibre plant seed- producing crops and on the equivalence of cereal seed, vegetable seed and oil and fibre plant seed produced in Moldova

(COM(2017)0643 – C8‑0400/2017 – 2017/0297(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2017)0643),

–  having regard to Article 294(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8‑0400/2017),

–  having regard to the opinion of the Committee on Legal Affairs on the proposed legal basis,

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the opinion of the European Economic and Social Committee of 14 February 2018(1),

–  having regard to Rules 59 and 39 of its Rules of procedure,

–  having regard to the report of the Committee on Agriculture and Rural Development (A8-0253/2018),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal,

3.  Instructs its President to forward to the Council, the Commission and the national parliaments,

Amendment    1

AMENDMENTS BY THE EUROPEAN PARLIAMENT(2)*

to the Commission proposal

---------------------------------------------------------

DECISION (EU) 2018/...OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of ...

amending Council Decision 2003/17/EC as regards the equivalence of field inspections carried out in the Federative Republic of Brazil on fodder plant seed-producing crops and cereal seed-producing crops and on the equivalence of fodder plant seed and cereal seed produced in the Federative Republic of Brazil, and as regards the equivalence of field inspections carried out in the Republic of Moldova on cereal seed-producing crops, vegetable seed-producing crops and oil and fibre plant seed-producing crops and on the equivalence of cereal seed, vegetable seed and oil and fibre plant seed produced in the Republic of Moldova

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 Committee(3),

▌Acting in accordance with the ordinary legislative procedure(4),

Whereas:

(1)  Council Decision 2003/17/EC(5) provides that under certain conditions field inspections carried out on certain seed-producing crops in the listed third countries are to be considered equivalent to field inspections carried out in accordance with Union law and that under certain conditions, the seed of certain species of fodder plants, cereal, beet, and oil and fibre plants produced in those countries is to be considered equivalent to seed produced in accordance with Union law.

(2)  The Federative Republic of Brazil (‘Brazil’) has submitted a request to the Commission to grant equivalence to its system of field inspections of fodder plant seed-producing crops and cereal seed-producing crops, and to fodder plant seed and cereal seed produced and certified in Brazil.

(3)  The Commission examined the relevant legislation of Brazil, and, based on an audit carried out in 2016 concerning the system of official controls and of certification of fodder plant and cereal seed in Brazil, and its equivalence with Union requirements, published its findings in a report entitled 'Final report of an audit carried out in Brazil from 11 April 2016 to 19 April 2016 in order to evaluate the system of official controls and certification of seed and its equivalence with European Union requirements'.

(4)  Following the audit, it has been concluded that field inspections of seed-producing crops, sampling, testing and official post-controls of fodder plant and cereal seed are carried out appropriately, and satisfy the conditions set out in Annex II to Decision 2003/17/EC and the respective requirements set out in Council Directives 66/401/EEC(6) and 66/402/EEC(7). Moreover, it has been concluded that the national authorities responsible for the implementation of seed certification in Brazil are competent and operate appropriately.

(5)  The Republic of Moldova has submitted a request to the Commission to grant equivalence to its system of field inspections of cereal seed-producing crops, vegetable seed-producing crops and oil and fibre plant seed-producing crops and to cereal seed, vegetable seed and oil and fibre plant seed produced and certified in the Republic of Moldova.

(6)  The Commission examined the relevant legislation of the Republic of Moldova, and, based on an audit carried out in 2016 concerning the system of official controls and of certification of cereal, vegetable and oil and fibre plant seed in the Republic of Moldova, and its equivalence with Union requirements, published its findings in a report entitled 'Final report of an audit carried out in the Republic of Moldova from 14 June to 21 June 2016 in order to evaluate the system of official controls and certification of seed and their equivalence with European Union requirements'.

(7)  Following the audit, it has been concluded that field inspections of seed-producing crops, sampling, testing and official post-controls of cereal, vegetable and oil and fibre plant seed are carried out appropriately, and satisfy the conditions set out in Annex II to Decision 2003/17/EC and the respective requirements set out in Council Directives 66/402/EEC, 2002/55/EC(8) and 2002/57/EC(9). Moreover, it has been concluded that the national authorities responsible for the implementation of seed certification in the Republic of Moldova are competent and operate appropriately.

(8)  Therefore it is appropriate to grant equivalence as regards field inspections carried out in respect of fodder plant seed-producing crops and cereal seed-producing crops in Brazil, and as regards fodder plant seed and cereal seed produced in Brazil and officially certified by its authorities.

(9)  It is also appropriate to grant equivalence as regards field inspections carried out in respect of cereal seed-producing crops, vegetable seed-producing crops and oil and fibre plant seed-producing crops in the Republic of Moldova, and as regards cereal seed, vegetable seed and oil and fibre plant seed produced in the Republic of Moldova and officially certified by its authorities.

(10)  There is a demand in the Union to import vegetable seed from third countries including the Republic of Moldova. Therefore, Decision 2003/17/EC should cover officially certified vegetable seed as referred to in Directive 2002/55/EC in order to address the demand for those seeds originating in the Republic of Moldova, as well as in other third countries in the future.

(11)  Taking into consideration the applicable rules of the International Seed Testing Association (ISTA), it is appropriate that the third country concerned provide an official statement that the seed has been sampled and tested in accordance with the provisions set out in the ISTA International Rules for Seed Testing ('ISTA Rules') with regard to Orange International Seed Lot Certificates, and that the seed lots be accompanied by such a certificate.

(12)  In view of the expiry of the 'Derogatory experiment on seed sampling and seed analysis' set out in Annex V(A) to the Decision adopted by the Council of the Organisation for Economic Co-operation and Development (OECD) on 28 September 2000 on the OECD Schemes for the Varietal Certification of Seed Moving in International Trade, any reference to that experiment should be deleted.

(13)  Any reference to Croatia as a third country should be deleted, in view of its accession to the Union in 2013.

(14)  Decision 2003/17/EC should therefore be amended accordingly,

HAVE ADOPTED THIS DECISION:

Article 1

Amendments to Decision 2003/17/EC

Decision 2003/17/EC is amended as follows:

(1)  In Article 1, the introductory part is replaced by the following:

'Field inspections concerning the seed-producing crops of the species specified in Annex I to this Decision carried out in the third countries listed in that Annex shall be considered equivalent to field inspections carried out in accordance with Directives 66/401/EEC, 66/402/EEC, 2002/54/EC, 2002/55/EC and 2002/57/EC provided that they:';

(2)  Article 2 is replaced by the following:

‘Article 2

Seed of the species specified in Annex I to this Decision, produced in the third countries listed in that Annex and officially certified by the authorities listed in that Annex shall be considered equivalent to seed complying with Directives 66/401/EEC, 66/402/EEC, 2002/54/EC, 2002/55/EC and 2002/57/EC, if it satisfies the conditions laid down in point B of Annex II to this Decision.’;

(3)  Article 3 is amended as follows:

(a)  Paragraph 1 is replaced by the following:

‘1.  Where equivalent seed is ‘relabelled and refastened’ in the Community, within the meaning of OECD Schemes for the Varietal Certification of Seed moving in International Trade, the provisions of Directives 66/401/EEC, 66/402/EEC, 2002/54/EC, 2002/55/EC and 2002/57/EC concerning the reclosing of packages produced in the Community shall apply by analogy.

The first subparagraph shall be without prejudice to the OECD rules applicable to such operations.’;

(b)  In paragraph 2, point (b) is replaced by the following:

‘(b)  for small EC packages within the meaning of Directives 66/401/EEC, 2002/54/EC or 2002/55/EC.’;

(4)  The Annexes to Decision 2003/17/EC are amended in accordance with the Annex to this Decision.

Article 2

Entry into force

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

Article 3

Addressees

This Decision is addressed to the Member States.

Done at ...,

For the European Parliament  For the Council

The President  The President

ANNEX

Annexes I and II to Decision 2003/17/EC are amended as follows:

(1)  Annex I is amended as follows:

(a)  in the table, the following entries are inserted in alphabetical order:

'BR

Ministry of Agriculture, Livestock and Food Supply

Esplanada dos Ministérios, bloco D

70.043-900 Brasilia-DF

66/401/EEC

66/402/EEC'

'MD

National Agency for Food Safety (ANSA)

str. Mihail Kogălniceanu 63,

MD-2009, Chisinau

66/402/EEC

2002/55/EC

2002/57/EC'

(b)  in the footnote to the table referred to in point (a), the following terms are inserted in alphabetical order: ‘BR – Brazil’, ‘MD – the Republic of Moldova’;

(c)  in the footnote to that table, the term 'HR - Croatia' is deleted;

(2)  Annex II is amended as follows:

(a)  in point A, paragraph 1, the following indent is added:

‘▌–  vegetable seed, in the case of the species referred to in Directive 2002/55/EC.’;

(b)  Point B is amended as follows:

(i)  in paragraph 1, first subparagraph, the following indent is added:

‘▌–  vegetable seed, in the case of the species referred to in Directive 2002/55/EC.’;

(ii)  in paragraph 2.1, the following indent is inserted after the third indent:

▌‘–  Directive 2002/55/EC, Annex II,’;

▌(iii)  paragraph 2.2 is replaced by the following:

'2.2.  For the purpose of the examination to check whether the conditions set out in paragraph 2.1 have been satisfied, samples shall be taken officially or under official supervision in accordance with the ISTA Rules, and their weights shall conform to the weight stipulated under such methods, taking into account the weights specified in the following Directives:

  Directive 66/401/EEC, Annex III, columns 3 and 4,

  Directive 66/402/EEC, Annex III, columns 3 and 4,

  Directive 2002/54/EC, Annex II, second line,

  Directive 2002/55/EC, Annex III,

  Directive 2002/57/EC, Annex III, columns 3 and 4,’;

(iv)  paragraph 2.3 is replaced by the following:

'2.3.  The examination shall be carried out officially or under official supervision in accordance with the ISTA Rules';

(v)  paragraph 2.4 is deleted;

(vi)    in paragraph 3.1, the second indent is replaced by the following:

‘−  a statement that the seed has been sampled and tested in accordance with current international methods: ‘Sampled and analysed in accordance with the provisions set out in the ISTA International Rules for Seed Testing with regard to Orange International Seed Lot Certificates by …, (name or member code of the ISTA seed testing station)’,’;

(vii)  paragraph 4 is replaced by the following:

‘4.  The seed lots shall be accompanied by an ISTA Orange International Seed Lot Certificate giving the information relating to the conditions in paragraph 2.’.

(1)

  OJ C 227, 28.6.2018, p. 76.

(2)

* Amendments: new or amended text is highlighted in bold italics; deletions are indicated by the symbol ▌.

(3)

  OJ C , p. .

(4)

  Position of the European Parliament of … (not yet published in the Official Journal) and decision of the Council of ….

(5)

  Council Decision 2003/17/EC of 16 December 2002 on the equivalence of field inspections carried out in third countries on seed-producing crops and on the equivalence of seed produced in third countries (OJ L 8, 14.1.2003, p. 10).

(6)

  Council Directive 66/401/EEC of 14 June 1966 on the marketing of fodder plant seed (OJ 125, 11.7.1966, p. 2298).

(7)

  Council Directive 66/402/EEC of 14 June 1966 on the marketing of cereal seed (OJ 125, 11.7.1966, p. 2309).

(8)

  Council Directive 2002/55/EC of 13 June 2002 on the marketing of vegetable seed (OJ L 193, 20.7.2002, p. 33).

(9)

  Council Directive 2002/57/EC of 13 June 2002 on the marketing of seed of oil and fibre plants (OJ L 193, 20.7.2002, p. 74).


OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS

Mr Czesław SIEKIERSKI

Chair

Committee on Agriculture and Rural Development

BRUSSELS

Subject:  Opinion on the legal basis of the Proposal for a Decision of the European Parliament and of the Council amending Council Decision 2003/17/EC as regards the equivalence of field inspections carried out in Brazil on fodder plant seed-producing crops and cereal seed-producing crops and on the equivalence of fodder plant seed and cereal seed produced in Brazil, and as regards the equivalence of field inspections carried out in Moldova on cereal seed-producing crops, vegetable seed-producing crops and oil and fibre plant seed- producing crops and on the equivalence of cereal seed, vegetable seed and oil and fibre plant seed produced in Moldova (COM(2017)0643 – C8‑0400/2017 – 2017/0297(COD))

Dear Mr Chair,

By letter of 24 April 2018 you asked the Committee on Legal Affairs pursuant to Rule 39(2) to consider whether the legal basis of the above Commission proposal was appropriate.

The committee considered the above question at its meeting of 20 June 2018.

The proposal states as the legal basis the Treaty on the Functioning of the European Union (TFEU), without any further specification and provisions contained in the four sectorial directives and empowering the Council to decide on equivalence (respectively, Article 16(1) of Directive 66/401; Article 16(1) of Directive 66/402; Article 37(1) of Directive 2002/55; Article 20(1) of Directive 2002/571).

I.  Background

The above mentioned Commission proposal relates to import of seeds from non-EU countries. It proposes to add Brazil and Moldova to the list of countries whose control systems are recognised with respect to certain species of seeds. For this purpose Council Decision 2003/17/EC on field inspections and equivalence of seeds in non-EU countries would be amended.

Union legislation on marketing of seeds is set out in a horizontal directive (Council Directive 2002/53/EC on the common catalogue) and several sectorial directives covering specific types of crops (fodder-plants, cereals, oil and fibre plants, fruit, beets, etc.). Moreover, under those directives several implementing measures have been adopted over time. The objective of this legislation is to contribute to agricultural productivity and availability of supplies by ensuring that marketed seeds have sufficient germination capacity and are free from disease. The main rule is that seeds can be put on the Union market only if they belong to a registered variety (that they appear in a “catalogue”) and that they are part of a lot which has been certified.

Certification aims to ensure that seeds actually belong to the variety they are claimed to be, that they are healthy and of good quality. Certification is carried out by official bodies or under official supervision; it involves “field inspections”, that is, visual inspections on the growing field and on lots, as well as sampling and testing.

The present proposal relates to four sectorial Directives: Council Directive 66/401/EEC dealing with marketing of fodder plant seed, Council Directive 66/402/EEC on marketing of cereal seed, Council Directive 2002/55/EC on marketing of vegetable seed and Council Directive 2002/57/EC on marketing of seed of oil and fibre plants.

Those acts provide for the possibility that seed harvested in a third country and affording the same assurances as regards characteristics and examination is considered equivalent to seed harvested in the Union, or that field inspections carried out on seed-producing crops in a third country are considered compliant with EU requirements. The four above mentioned directives provide that the Council, acting by a qualified majority on a proposal from the Commission, determines the third countries to be granted equivalence.

On the basis of those provisions, Council Decision 2003/17/EC (the act to be amended by the current proposal) has established that certain seeds - namely fodder plant, cereal, vegetable and oil and fibre plants seeds - produced in listed third countries are to be considered equivalent to seeds of the same kind produced in the Union and that field inspections on seed-producing crops carried out in those countries comply with the relevant Union requirements. The Decision also contains some provisions on relabeling and refastening of seed taking place in the Member States’ territory. Annex I to the Decision contains the list of crops and of third countries for which equivalence is granted.

The proposal at issue would add Brazil to that list of third countries with respect to fodder plant seed and cereal seeds and Moldova with respect to cereal seed, vegetable seed and oil and fibre plant seed. The proposal also makes minor modifications to the provisions on relabeling and refastening of seed.

II.   Proposed legal basis

The proposal has a multiple legal basis: the Treaty on the Functioning of the European Union (TFEU), without any further specification and the provisions contained in the sectoral directives(1) and empowering the Council to decide on equivalence (respectively, Article 16(1) of Directive 66/401; Article 16(1) of Directive 66/402; Article 37(1) of Directive 2002/55; Article 20(1) of Directive 2002/571).

III.  Relevant provisions of the Treaty

Article 43(2) TFEU reads:

“The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 40(1) and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy”.

IV.   Case-law on the choice of legal basis

According to the settled case law of the Court of Justice, “the choice of legal basis for a [Union] measure must rest on objective factors amenable to judicial review, including in particular the aim and the content of the measure”.(2) The generic reference to the TFEU is therefore insufficient as it makes the legal basis undetermined, which would prevent the Court from being in a position to review its appropriateness. Thus, a reference to the Treaty as a whole as it stands does not comply with the basic requirement set by the Court in this regard.

One of the main principles of the European Union is that it derives its powers from the Treaty, and that it may not act in the absence of such powers as confirmed by the Court of Justice: “[...] the rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaties and are not within the discretion of the Member States or of the institutions themselves. [...] Accordingly, to acknowledge that an institution can establish secondary legal bases for the adoption of legislative acts or implementing measures, whether for the purpose of strengthening or easing the detailed rules for the adoption of an act, is tantamount to according that institution a legislative power which exceeds that provided for by the Treaties”(3) Relying on sectorial directives as legal basis would therefore not comply with the case law of the Court of Justice and an act adopted on that basis would be invalid. The proposed legal basis therefore constitute a case of illegal secondary legal basis.

V.  Content and aim of the proposal

The proposal relates to import of seeds. It adds Brazil and Moldova to the existing list of third countries benefiting from EU equivalence with respect to certain species of seeds. By broadening the perspective of imports of good quality seeds. In this sense, the proposal pursues the objective of increasing agricultural productivity and a rational development of agricultural production. It also pursues the objective of securing availability of supplies. Those objectives pertain to the Common Agricultural Policy and are set out in point (a) and (c) of Article 39(1) TFEU.

VI.  Analysis and determination of the appropriate legal basis

As stated above, only the Treaty may form a basis for the adoption of an act as the one proposed by the Commission. The secondary legislation referred to by the Commission is thus irrelevant as it cannot be part of the legal basis for the proposal.

Furthermore, a simple generic reference to TFEU is not sufficient, but the co-legislators must amend the proposal by setting out which provision, given the aim and content of the proposal, ought to form the legal basis for it. Given that the content and aim is, as set out above, to implement the Common Agricultural Policy as regards the aspects set out in the proposal, the appropriate legal basis for the proposal is Article 43(2) TFEU.

VII.  Conclusion and recommendation

In light of the foregoing, the legal basis of the proposal does not comply with the basic requirements set by the Court of Justice, since it is undetermined as regards its reference to the provisions of the Treaty and consists of provisions of secondary legislation for the rest.

At its meeting of 20 June 2018 the Committee on Legal Affairs accordingly decided, unanimously(4), to recommend to the Committee on Agriculture and Rural Development to retain Article 43(2) TFEU as the legal basis of the proposal.

Yours sincerely,

Pavel Svoboda

(1)

Council Directive 66/401/EEC dealing with marketing of fodder plant seed; Council Directive 66/402/EEC on marketing of cereal seed; Council Directive 2002/55/EC on marketing of vegetable seed; Council Directive 2002/57/EC on marketing of seed of oil and fibre plants.

(2)

[footnote]

(3)

Judgment in Parliament v Council, Joined Cases C‑14/15 and C‑116/15, ECLI:EU:C:2016:715, paragraph 47. On this principle, see also Parliament v Council, Case C‑363/14, ECLI:EU:C:2015:579, paragraph 43; Parliament v Council, Case C‑540/13, ECLI:EU:C:2015:224, paragraph 32; Parliament v Council, Joined Cases C‑317/13 and C‑679/13, ECLI:EU:C:2015:223, paragraph 42; Parliament v Council, Case C-133/06, ECLI:EU:C:2008:257, paragraphs 54 to 56.

(4)

The following were present for the final vote: Pavel Svoboda (Chair), Jean-Marie Cavada, Lidia Joanna Geringer de Oedenberg (Vice-Chair), Axel Voss (rapporteur for opinion), Joëlle Bergeron, Marie-Christine Boutonnet, Sergio Gaetano Cofferati, Geoffroy Didier, Angel Dzhambazki, Rosa Estaràs Ferragut, Enrico Gasbarra, Mary Honeyball, Sylvia-Yvonne Kaufmann, Gilles Lebreton, António Marinho e Pinto, Angelika Niebler, Evelyn Regner, József Szájer, Francis Zammit Dimech, Tadeusz Zwiefka


PROCEDURE – COMMITTEE RESPONSIBLE

Title

Equivalence of field inspections carried out in Brazil (on fodder plant seed-producing crops and cereal seed-producing crops, and of fodder plant seed and cereal seed produced in Brazil) and in Moldova (on cereal seed-producing crops, vegetable seed-producing crops and oil and fibre plant seed- producing crops, and cereal seed, vegetable seed and oil and fibre plant seed produced in Moldova)

References

COM(2017)0643 – C8-0400/2017 – 2017/0297(COD)

Date submitted to Parliament

14.11.2017

 

 

 

Committee responsible

       Date announced in plenary

AGRI

16.11.2017

 

 

 

Rapporteurs

       Date appointed

Czesław Adam Siekierski

22.11.2017

 

 

 

Simplified procedure - date of decision

21.2.2018

Legal basis disputed

       Date of JURI opinion

JURI

20.6.2018

 

 

 

Date adopted

10.7.2018

 

 

 

Date tabled

12.7.2018

Last updated: 26 July 2018Legal notice