on the proposal for a directive of the European Parliament and of the Council amending Directive 2000/75/EC as regards vaccination against bluetongue

(COM(2010)0666 – 05499/2011 – C7-0032/2011 – 2010/0326(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–   having regard to the Commission proposal to the Council (COM(2010)0666),

–   having regard to the Council letter of 26 January 2011, in which the Council considered that the legal basis should be modified and requested the European Parliament to adopt its position on the Commission proposal on the basis of Article 43(2) of the Treaty on the Functioning of the European Union (05499/2011 - C7-0032/2011),

–   having regard to Article 294(2) and Article 43(2) of the Treaty on the Functioning of the European Union,

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

–   having regard to the opinion of 15 March 2011 of the European Economic and Social Committee(1),

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

–   having regard to Rules 55 and 37 of its Rules of Procedure,

–   having regard to the report of the Committee on Agriculture and Rural Development (A7-0121/2011),

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

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

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

Amendment  1 Proposal for a directive – amending act Citation 1 Text proposed by the Commission Amendment Having regard to the Treaty on the Functioning of the European Union, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43(2) thereof, Justification The original proposal is based on the derived legal basis of Article 15 of Directive 92/119/EC whose use would not be in conformity with the Treaty. Under the Treaty of Lisbon, the legislative function is shared between Parliament and the Council (Article 14(1) TEU) and in the field of agriculture the ordinary legislative procedure applies (Article 43(2) TFEU). Amendment  2 Proposal for a directive – amending act Citation 2 Text proposed by the Commission Amendment Having regard to Council Directive 92/119/EEC of 17 December 1992 introducing general Community measures for the control of certain animal diseases and specific measures relating to swine vesicular disease, and in particular the second indent of Article 15 thereof, deleted Amendment  3 Proposal for a directive – amending act Recital 5 a (new) Text proposed by the Commission Amendment   5a. In order to enable the new rules to benefit the vaccination season 2011, the Directive should enter into force on the day following its publication in the Official Journal. Amendment  4 Proposal for a directive – amending act Article 2 – paragraph 1 – subparagraph 1 Text proposed by the Commission Amendment 1. Member States shall adopt and publish, by 30 April 2011 at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive. 1. Member States shall adopt and publish, by 30 June 2011 at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive. Amendment  5 Proposal for a directive – amending act Article 2 – paragraph 1 – subparagraph 2 Text proposed by the Commission Amendment They shall apply those provisions from 1 May 2011. They shall apply those provisions from 1 July 2011 at the latest. Amendment  6 Proposal for a directive – amending act Article 3 Text proposed by the Commission Amendment This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.

(1) Not yet published in the Official Journal.

Current situation

Bluetongue is a disease affecting ruminants (such as cattle, sheep and goats). Since the early 2000s several epidemic waves of disease have occurred in many Member States, including in central and northern Europe, causing significant losses in terms of morbidity, mortality and disruption of trade in live animals.

Council Directive 2000/75/EC of 20 November 2000 lays down specific provisions for the control and eradication of bluetongue, including rules on vaccination. These rules have been designed for the use of the so-called ‘live attenuated vaccines’ that were the only vaccines available when the Directive was adopted a decade ago. Those vaccines may lead to undesired circulation of the vaccine virus in unvaccinated animals. For this reason, Directive 2000/75/EC allows vaccination only in specially designated zones, where the disease has occurred and which have been subject to animal movement restrictions.

In the last few years however, new inactivated vaccines have become available. Unlike the ‘live attenuated vaccines’, these inactivated vaccines do not pose the risk of undesired vaccine virus circulation and could therefore be successfully used outside areas subject to animal movement restrictions.

Aim and scope of the Commission proposal

The objective of the Commission proposal is to make the rules on vaccination against bluetongue more flexible, in particular by allowing the use of inactivated vaccines outside areas subject to animal movement restrictions.

Rapporteur’s position

The rapporteur supports the substance of the Commission proposal. It would relax some restrictions, which have become unnecessary in light of the recent developments in vaccine production. The new rules would help Member States to make more effective use of vaccination to control bluetongue and reduce the burden on the agricultural sector posed by this disease.

The rapporteur is of the opinion that the legal basis used in the original Commission proposal needs to be modified. The rapporteur supports the position of the Council expressed in its letter from 26 January 2011 that the act amending Council Directive 2000/75/EC should be adopted by the co-legislators under the ordinary legislative procedure pursuant to Article 43(2).

Mr Paolo De Castro

Chair

Committee on Agriculture and Rural Development

BRUSSELS

Subject:           Opinion on the legal basis of the Proposal for a Council Directive amending Directive 2000/75/EC as regards vaccination against bluetongue (COM(2010)0666 – C7-0032/2011 – 2010/0326(COD))

Dear Mr Chair,

By letter of 10 February 2011 you asked the Committee on Legal Affairs pursuant to Rule 37(2) to give its opinion on the envisaged amendment of the legal basis of the above Commission proposal, i.e. the change of the legal basis from Article 15 of Council Directive 92/119/EEC to Article 43(2) TFEU.

The committee considered the above question at its meeting of 28 February 2011.

Background

The proposal for a Council Directive amending Directive 2000/75/EC as regards vaccination against bluetongue was submitted to the Council by the Commission on 15 November 2010. On 18 November 2010 the Chair of AGRI asked the opinion of the Parliament’s Legal Service as to the validity of the legal basis of the proposal and the Legal Service replied on 25 November. Following that, on 8 December 2010 the Chair of AGRI sent a letter to the Commission and the Council in which he raised serious doubts about the procedure for the adoption of the proposal. He also asked the Commission to withdraw its proposal and the Council not to adopt it but to wait for the submission of a new one by the Commission. It was proposed that the new proposal should be based on Article 43(2) TFEU. The letter stressed that the Commission had used a secondary legal basis, which ‘(...) seems to be illegal in the light of the case law of the Court of Justice (in particular its judgment of 6 May 2008 in case C-133/06)’ and further stated that ‘(...) under the Treaty of Lisbon, the legislative function is now shared between Parliament and the Council and, as Article 202 EC has been repealed, the Council no longer has an autonomous legislative power. With regard to legislative acts in the field of agriculture under Article 43(2) TFEU, it is the ordinary legislative procedure which applies to their adoption.’

The proposal was discussed by the Council Working Party of Chief Veterinary Officers on 2 December 2010. At that meeting the Council Legal Service advised delegations against the use of the secondary legal basis for the proposal and expressed the view that it should be based on Article 43(2) TFEU.

In view of all this, the Council decided not to use the legal basis proposed by the Commission. The Commission explained that it could not be expected that the proposal could be withdrawn and replaced by a proposal based on Article 43(2) TFEU so as to allow for its adoption by the Parliament and the Council in time for the 2011 vaccination campaign.

Given the urgency of that objective, in a letter dated 26 January 2011 addressed to the President of the Parliament, the Council transmitted the proposal to the Parliament and proposed that the co-legislators modify its legal basis to Article 43(2) TFEU. The Council also invited the Parliament to adopt its position on the Commission proposal on this basis under the ordinary legislative procedure. The Commission representatives made it clear that the Commission would not object to this approach.

The Committee on Agriculture and Rural Development as the committee responsible intends to amend the legal basis of the proposal as suggested by the Council.

I. The legal bases in question

The Commission proposal is based on Article 15 of Council Directive 92/119/EEC of 17 December 1992 introducing general Community measures for the control of certain animal diseases and specific measures relating to swine vesicular disease(1), which reads as follows:

‘Article 15

By way of derogation from the general provisions laid down in this Directive, specific provisions relating to the control and eradication measures for each respective disease:

— are, for swine vesicular disease, set out in Annex II for swine vesicular disease,

— are, for each of the other diseases listed in Annex I, adopted by the Council, acting by a qualified majority on a proposal from the Commission.’

Annex I is entitled ‘List of compulsorily notifiable diseases’ and includes bluetongue.

The legal basis proposed by the Council and AGRI is Article 43(2) TFEU, which reads as follows: ‘2. 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.’ (emphasis added)

II. The Commission’s choice of legal basis

The legal basis proposed by the Commission is Article 15 of Council Directive 92/119/EEC, i.e. a so-called secondary legal basis. The choice of the legal basis is explained by the Commission in the explanatory memorandum as follows: ‘The legal basis of Directive 2000/75/EC is the second indent of Article 15 of Council Directive 92/119/EEC of 17 December 1992 introducing general Community measures for the control of certain animal diseases and specific measures relating to swine vesicular disease (the ‘basic act’), which provides that the Council may adopt specific provisions relating to the control and eradication measures for any of the animal diseases listed in Annex I to the Directive, acting on a qualified majority on a proposal from the Commission. Since the basic act providing for this legal basis is still in force, the legality of the powers vested in the Council in this act are not affected by the entry into force of the Lisbon Treaty and these powers remain solely with the Council.’ (emphasis added) Similar wording was used in a letter of 15 November 2010 from the Director General of DG SANCO to the Chair of AGRI: ‘ The legal basis of Council Directive 2000/75/EC on the control and eradication of bluetongue is [to be] found in Council Directive 92/119/EEC, which provides that the Council may adopt specific provisions relating to the control and eradication measures for a number of animal diseases, amongst which bluetongue, acting on a qualified majority on a proposal from the Commission. Since the basic act providing for this legal basis is still in force, the legality of the powers vested in the Council in this act are not affected by the entry into force of the Lisbon Treaty. For these reasons, the Commission proposal is addressed to the Council, only.’

III. Approach of the Court of Justice

Certain principles emerge from the case law of the Court. First, in view of the consequences of the legal basis in terms of substantive competence and the procedure, the choice of the correct legal basis is of constitutional importance(2). Secondly, under Article 13(2) TEU, each institution is to act within the limits of the powers conferred upon it by the Treaty(3) and the rules regarding the manner in which the Community institutions arrive at their decisions are laid down in the Treaty and are not at the disposal of the Member States or of the institutions themselves(4).

In the judgment of 6 May 2008 in Case C-133/06, the Court of Justice ruled against the use of a secondary legal basis by the EU institutions in the following terms:

‘56   To acknowledge that an institution can establish secondary legal bases, 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 Treaty.

57     It would also enable the institution concerned to undermine the principle of institutional balance which requires that each of the institutions must exercise its powers with due regard for the powers of the other institutions (Case C-70/88 Parliament v Council [1990] ECR I-2041, paragraph 22).’

It follows from the Court’s judgement that EU legislator can adopt a legislative act only by acting in accordance with procedures provided for by the Treaty and cannot establish on its own additional legal basis and procedures for the adoption of an act.

IV. Aim and content of the proposed measures

The proposal seeks to amend Council Directive 2000/75/EC of 20 November 2000 laying down specific provisions for the control and eradication of bluetongue(5), which was adopted on the basis of Article 15 of the Council Directive 92/119/EEC of 17 December 1992 introducing general Community measures for the control of certain animal diseases and specific measures relating to swine vesicular disease. Directive 92/119/EEC was adopted on the basis of Article 43 of the Treaty establishing the European Economic Community, which is currently Article 43 TFEU, as a measure in the field of agriculture.

It should be noted that the choice of the legal basis for an act does not turn on the relevant institution’s conviction as to the objective pursued but must be ‘based on objective factors which are amenable to judicial review’(6), such as the aim and content of the measure(7).

The objective of the proposal is to introduce additional vaccination possibilities against bluetongue disease and to ‘reduce the burden on the agricultural sector posed by that disease’ (recital 5 of the proposal). It therefore concerns agricultural policy and should be based on Article 43(2) TFEU.

V. Conclusion

It is considered that Article 15 of Directive 92/119/EEC is not a valid legal basis for the adoption of the proposal, which should rather be based on Article 43(2) TFEU.

At its meeting of 28 February 2011 the Committee on Legal Affairs accordingly decided unanimously(8), by 14 votes to recommend that the proposal be based on Article 43(2) TFEU.

Yours sincerely,

Klaus-Heiner Lehne

(1) OJ L 62, 15.03.1993, p. 69. (2) Opinion 2/00 Carthagena Protocol [2001] E.C.R. I-9713, para. 5; Case C-370/07 Commission v Council, paras 46-49; Opinion 1/08, General Agreement on Trade in Services[2009] ECR I-11129, para. 110. (3) Case C-403/05 Parliament v Commission [2007] ECR I-9045, para. 49, and the case-law cited therein. (4) Case C-68/86 United Kingdom v Council, [1988] ECR 855, para. 38. (5) OJ L 327, 22.12.2000, p. 74 (6) Case 45/86 Commission v Council [1987] E.C.R. 1493, para. 11. (7) Case C-300/89 Commission v Council [1991] E.C.R. I-2867, para. 10. (8) The following were present for the final vote: Klaus-Heiner Lehne (Chair), Raffaele Baldassarre (Vice-Chair), Evelyn Regner (Vice-Chair), Sebastian Valentin Bodu (Vice-Chair), Piotr Borys, Françoise Castex, Sergio Gaetano Cofferati, Christian Engström, Eva Lichtenberger, Toine Manders, Antonio Masip Hidalgo, Alajos Mészáros, Bernhard Rapkay, Francesco Enrico Speroni, Alexandra Thein, Cecilia Wikström, Zbigniew Ziobro, Tadeusz Zwiefka.