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| Procedure : 2013/0451(NLE) |
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Document stages in plenary
| Document selected : A8-0176/2015 | ||||||
Texts tabled : A8-0176/2015 |  | Debates : PV 09/07/2015 - 9CRE 09/07/2015 - 9 |  | Votes : PV 09/07/2015 - 12.2CRE 09/07/2015 - 12.2 Explanations of votes |  | Texts adopted : P8_TA(2015)0267 |
| REPORT * |
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| 2.6.2015 |
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on the proposal for a Council regulation laying down maximum permitted levels of radioactive contamination of food and feed following a nuclear accident or any other case of radiological emergency (COM(2013)0943 – C7‑0045/2014 – 2013/0451(NLE)) | |||||||||||||
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ERRATA/ADDENDA | |||||||||||||
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 DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION |
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on the proposal for a Council regulation laying down maximum permitted levels of radioactive contamination of food and feed following a nuclear accident or any other case of radiological emergency (COM(2013)0943 – C7‑0045/2014 – 2013/0451(NLE)) (Consultation) The European Parliament, – having regard to the Commission proposal to the Council (COM(2013)0943), – having regard to Articles 31 and 32 of the Treaty on European Union, pursuant to which the Council consulted Parliament (C7‑0045/2014), – having regard to the opinion of the Committee on Legal Affairs on the proposed legal basis, – having regard to Rules 59 and 39 of its Rules of Procedure, – having regard to the report of the Committee on the Environment, Public Health and Food Safety (A8-0176/2015), 1. Approves the Commission proposal as amended; 2. Calls on the Commission to alter its proposal accordingly, in accordance with Article 293(2) of the Treaty on the Functioning of the European Union and Article 106a of the Euratom Treaty; 3. Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament; 4. Asks the Council to consult Parliament again if it intends to substantially amend the Commission proposal; 5. Instructs its President to forward its position to the Council and the Commission.
</Amend>
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| EXPLANATORY STATEMENT |
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The European Union needs up-to-date legal instruments that include flexible, situation-specific decision-making procedures to address situations like those that occurred in the wake of the accidents at Chernobyl and Fukushima. In April 2010, the Commission brought forward a proposal for a recast of Council Regulation (Euratom) No 3954/87 laying down maximum permitted levels of radioactive contamination of foodstuffs and of feedingstuffs following a nuclear accident or any other case of radiological emergency, Commission Regulation (Euratom) No 944/89 laying down maximum permitted levels of radioactive contamination in minor foodstuffs following a nuclear accident or any other case of radiological emergency and Commission Regulation (Euratom) No 770/90 of 29 March 1990 laying down maximum permitted levels of radioactive contamination of feedingstuffs following a nuclear accident or any other case of radiological emergency. The legal basis of the proposal required that the European Parliament be merely consulted. In February 2011, in line with the opinion of its Committee on Legal Affairs, the European Parliament adopted a legislative resolution on the matter, replacing the legal basis of Articles 31 and 32 of the Euratom Treaty with Article 168(4)(b) of the Treaty on the Functioning of the European Union, meaning that that ordinary legislative procedure would apply. However, as the proposal moved through the circuit it became clear that the provisions of Regulation (Euratom) No 3954/87 were not compatible with the new comitology rules introduced following the entry into force of the Lisbon Treaty. The Commission therefore decided to withdraw its draft and submit a new one. The new proposal that is the subject of this report introduces a number of new elements that establish a clearer link with EU legislation on food safety. In its explanatory memorandum, the Commission points out that, taking into account developments in primary EU law with regard to food safety, and the need to ensure coherence of all legislative measures on conditions governing imports of food and feed from third countries affected by a nuclear accident or a radiological emergency, it is vital to align the ‘measures that were established in the post-Chernobyl context […] with the regime of implementing powers and procedures defined in the present Regulation. This might also imply, where necessary, a change of the legal basis.’ This could be interpreted as a sign that the Commission is perhaps ready to accept a change to the legal basis it has pursued until now. The annexes to the proposal lay down the maximum permitted levels that apply in the event of a radiological accident or emergency. These were confirmed in 2012 by the group of experts set up pursuant to Article 31 of the Euratom Treaty. The levels are listed in the Commission’s Radiological Protection Publication 105. In the event of a radiological accident or emergency, the Commission will adopt an implementing act so as to apply the maximum permitted levels of radioactivity in food. The Commission will have a lot of room for manoeuvre with regard to adapting the limits laid down in the annexes, if necessary under the circumstances. Under the new comitology rules, the Commission will for the first time have to be assisted by the section of the Standing Committee on Plants, Animals, Food and Feed responsible for toxicological safety of the food chain, dealing with radioactive contamination of food and feed referred to in Article 58(1) 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 safety. The rapporteur’s views In line with the position adopted by the European Parliament in 2010, the rapporteur proposes that the legal basis of the regulation should be changed so as to give Parliament the power of codecision. Food safety is the ultimate objective of the Commission proposal, and the regulation has to reflect developments in EU law since the adoption of the Maastricht Treaty in 1992, which included an article on public health (Article 168) that must be taken into account when amending legislation adopted prior to that. This is particularly relevant and something to which close attention needs to be paid in weighing up the European Parliament’s decision-making powers. The rapporteur proposes that the legal bases should be Article 168(4)(b) and Article 114 of the Treaty on the Functioning of the European Union, which grant Parliament the power of codecision with regard to both food and feed. The rapporteur takes the view that implementing acts are the best way of ensuring that action can be taken quickly to address critical situations in the wake of a nuclear accident or other radiological emergency. The Commission actually provides for a specific emergency procedure involving the adoption of an implementing act without prior consideration when immediate action is vital in order to guarantee consumer safety. Parliament would nevertheless reserve the right for codecision to apply in amending the limits laid down in the annexes to the regulation should this be necessary in the light of new scientific findings. The draft report also includes an obligation on the Commission to submit a report to Parliament and the Council on the measures taken in the event of a nuclear accident or other radiological emergency. With regard to implementing acts adopted in the event of a nuclear accident or other radiological emergency, the draft report makes it possible for such acts to be reviewed as many times as is necessary in order to take account of the way in which the contamination develops. In the recitals, the draft report points out which parameters were used to establish the maximum permitted levels laid down in the annexes to the regulation. The Commission proposal needs to be fleshed out by including references to the procedures provided for in Regulation (EC) No 178/2002 laying down the general principles of food law, which includes a ‘rapid alert system’ making it possible for information to be exchanged quickly. The relevant legislative references also need to be included with regard to the definitions of ‘food’, ‘feed’ and ‘placing on the market’ set out in the regulation. The inclusion of such references would ensure that any amendments to those definitions apply automatically. If this were not done, discrepancies might crop up between Regulation (EC) No 178/2002 and this regulation. | ||||
| OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS |
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Mr Giovanni La Via Chair Committee on the Environment, Public Health and Food Safety BRUSSELS Subject: Opinion on the legal basis of the Proposal for a Council Regulation (Euratom) laying down maximum permitted levels of radioactive contamination of foodstuffs and of feedingstuffs following a nuclear accident or any other case of radiological emergency (COM(2013)0943 – 2013/0451(NLE)) Dear Mr Chair, By letter of 5 February 2015 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 legal basis proposed by the Commission is Articles 31 and 32 of the Treaty establishing the European Atomic Energy Community (Euratom Treaty). Amendments tabled in the Committee on the Environment, Public Health and Food Safety aim at changing the legal basis to Articles 168(4)(b) and 114 of the Treaty of the Functioning of the European Union (TFEU). The Committee on Legal Affairs considered the above question at its meeting on 24 March 2015. I - Background The proposed Council regulation aims at replacing Council Regulation (Euratom) No 3954/87, Commission Regulation (Euratom) No 944/89 and Commission Regulation (Euratom) No 770/90, which all relate to permitted levels of radioactive contamination of food and feed. This proposal constitutes a modification of an earlier proposal for a recast of these acts made in 2010, which did however not align provisions to Article 291 TFEU on the conferral of implementing powers and the 2011 Implementing Acts Regulation(1). In 2011, Parliament adopted a legislative resolution on the 2010 recast proposal in which it changed the legal basis from Articles 31 and 32 of the Euratom Treaty to Article 168(4)(b) TFEU(2). The modified proposal, which is the object of this opinion, did however maintain Articles 31 and 32 of the Euratom Treaty as its legal basis. The draft report on the proposal in the Committee on the Environment, Public Health and Food Safety includes an amendment which aims at changing the legal basis to Articles 168(4)(b) and 114 TFEU, with the following justification: [AM 2] The regulation needs to take account of developments in the EU Treaties, and especially the inclusion in the Maastricht Treaty (1992) of Article 168 on public health, which post-dates the adoption of the Euratom regulations that are still in force. Article 168(4)(b) covers harmonisation measures for feed, and Article 114 on the internal market guarantees harmonisation of the maximum residue limits for food. The following amendments tabled to the draft report also aim at changing the legal basis, with the following justifications: [AM 24] To ensure a high level of health protection for EU citizens in the event of radioactive contamination and to give democratic legitimacy to the adoption of this Regulation, the legal basis should be changed to Article 168(4) of the Treaty on the Functioning of the European Union, to give the Parliament a decision-making role on a regulation potentially affecting public health. [AM 28] To ensure a high level of health protection for EU citizens in the event of radioactive contamination and to give democratic legitimacy to the adoption of this regulation, the legal basis should be changed under the new Lisbon Treaty to give the European Parliament a decision-making role on a regulation potentially affecting public health. The proposal is to consider public health (Article 168) and consumer protection (Article 169(1)). II - Relevant Treaty Articles The following Articles of the Euratom Treaty, under Chapter 3 entitled "Health and safety" are presented as the legal basis in the Commission proposal (emphasis added): Article 31 The basic standards shall be worked out by the Commission after it has obtained the opinion of a group of persons appointed by the Scientific and Technical Committee from among scientific experts, and in particular public health experts, in the Member States. The Commission shall obtain the opinion of the Economic and Social Commttee on these basic standards. After consulting the European Parliament the Council shall, on a proposal from the Commission, which shall forward to it the opinions obtained from these Committees, establish the basic standards; the Council shall act by a qualified majority. Article 32 At the request of the Commission or of a Member State, the basic standards may be revised or supplemented in accordance with the procedure laid down in Article 31. The Commission shall examine any request made by a Member State. The expression "basic standards" is defined in Article 30 of the Euratom Treaty (emphasis added): Article 30 Basic standards shall be laid down within the Community for the protection of the health of workers and the general public against the dangers arising from ionizing radiations. The expression 'basic standards" means: (a) maximum permissible doses compatible with adequate safety; (b) maximum permissible levels of exposure and contamination; (c) the fundamental principles governing the health surveillance of workers. The following Articles of the TFEU are proposed by the Committee on the Environment, Public Health and Food Safety to form the legal basis (emphasis added). Article 168 (ex Article 152 TEC) [...] 4. By way of derogation from Article 2(5) and Article 6(a) and in accordance with Article 4(2)(k) the European Parliament and the Council, acting in accordance with the ordinary legislative procedure 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 in order to meet common safety concerns: (a) [...] (b) measures in the veterinary and phytosanitary fields which have as their direct objective the protection of public health; [...] Article 114 (ex Article 95 TEC) 1. Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market. 2. [...] 3.The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts. Within their respective powers, the European Parliament and the Council will also seek to achieve this objective. [...] 8. When a Member State raises a specific problem on public health in a field which has been the subject of prior harmonisation measures, it shall bring it to the attention of the Commission which shall immediately examine whether to propose appropriate measures to the Council. III - The proposed legal basis Article 31 of the Euratom Treaty provides the legal basis for the adoption of basic standards for the protection of the health of workers and the general public against radiation, whereas Article 32 of the Euratom Treaty provides the legal basis for the revision of the basic standards and the provisions supplementing them. The Council acts unanimously and the Parliament is consulted. Article 168(4)(b)TFEU provides the legal basis for the adoption of measures in the veterinary and phytosanitary fields which have as their direct objective the protection of public health. These measures are adopted in accordance with the ordinary legislative procedure. Article 114 TFEU provides the legal basis for the establishment and the functioning of the internal market by the adoption of measures for the approximation of provisions in this respect. Such measures are adopted in accordance with the ordinary legislative procedure. IV - Case-law and previous opinions on legal basis It is settled case law of the Court of Justice that "the choice of legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and content of the measure"(3). The choice of an incorrect legal basis may therefore justify the annulment of the act at stake. The Legal Service of Parliament has pointed the Committee's attention to the fact that the Court has recently ruled(4) on the question of the correct legal basis for a legislative act(5) which raises the same questions as concerning the proposal in question. The Court stated the following in relevant parts (emphasis added): 35. However, the Court has repeatedly held that the provisions of Chapter 3 of Title II of the EAEC Treaty are to be interpreted broadly in order to give them practical effect [...]. Those provisions, which include Articles 30 EA and 31 EA, accordingly are intended to ensure the consistent and effective protection of the health of the general public against the dangers arising from ionising radiations, whatever their source and whatever the categories of persons exposed to such radiations [...]. 36. In addition, if the Treaties contain a more specific provision that is capable of constituting the legal basis for the measure in question, the measure must be founded on that provision [...]. 37. Article 31 EA constitutes a more specific legal basis for protecting the health of populations against radioactive substances in water intended for human consumption than the general legal basis resulting from Article 192(1) TFEU. The EAEC Treaty contains a set of rules relating precisely to the protection of populations and the environment against ionising radiations [...]. 38. In any event, if the mere finding that a measure relating to radioactive substances is to protect human health within the meaning of Article 191(1) TFEU were sufficient for Article 192(1) TFEU to be accepted as the appropriate legal basis for that measure, Article 31 EA could no longer serve as the legal basis for Community action since the basic standards within the meaning of Article 30 EA have, by their nature, the protection of human health as their objective. The Parliament’s argument accordingly misconstrues not only the practical effect of Article 31 EA, which constitutes a more specific legal basis than Article 192(1) TFEU, but also the principle enshrined in Article 106a(3) EA, according to which the provisions of the TFEU are not to derogate from the provisions of the EAEC Treaty. The Court has therefore unambiguously determined that the procedure in Article 31 of the Euratom Treaty takes precedence over more general provisions in the TFEU when it comes to Union measures aimed at the protection of the health of the general public against radiation and radioactive contamination. In its opinion of 17 September 2013 to the Committee on the Environment, Public Health and Food Safety on the legal basis of the proposal for a legislative act on safety standards against the dangers of radiation(6), the Committee on Legal Affairs recommended that the appropriate legal basis should be Articles 31 and 32 rather than Article 192(1) TFEU. V - Aim and content of the proposed regulation The aim of the proposal is to consolidate existing Euratom legislation in order to establish basic safety standards for the protection of the health of workers, general public, patients and other individuals subject to medical exposure against the dangers arising from radioactive contamination of food and feed following a nuclear accident or any other case of radiological emergency for the purpose of their uniform implementation by Member States. The proposal and its annexes lay down the maximum permitted levels of radioactive contamination of food, the maximum permitted levels of minor food, and the maximum permitted levels of radioactive contamination of feed, which may be placed on the market following a nuclear accident or any other case of radiological emergency which is likely to lead or has led to significant radioactive contamination of food and feed, and the procedures to render these maximum permitted levels applicable. VI - Determination of the appropriate legal basis The acts being repealed by the proposal were all based on Article 31 of the Euratom Treaty, and the same maximum permitted levels pre-established for future accidents are maintained in the proposed regulation. Taking into consideration the development of scientific knowledge on doses and the risks of the radioactive contamination, the basic standards will possibly have to be revised or supplemented in the future. Article 32 of the Euratom Treaty has therefore also been included as a legal basis for the proposal. In order to establish whether this choice of legal basis is appropriate, as the principles derived from the jurisprudence of the Court indicate, the aim and content of the proposed measure constitute the decisive factors. The predominant aim of the proposal is to establish basic safety standards against the dangers arising from radioactive contamination of food and feed following a nuclear accident or any other case of radiological emergency under the Euratom system. The proposal therefore contains the maximum levels of radiation for food and feed, and the procedure for updating them. Against the background of the Court's case-law and the Committee's previous practice, in particular the above-cited judgment in Case C-48/14 and the opinion on the legal basis of the 2013 ionising radiation directive, Articles 31 and 32 of the Euratom Treaty must therefore constitute the legal basis for the proposal. The use of any suggested alternative legal bases from the TFEU which are of a more general nature when it comes to public health, the environment or consumer protection, including Articles 168(4)(b) and 114 TFEU, would most likely lead to the annulment of the act if challenged at the Court. VII - Conclusion Articles 31 and 32 of the Euratom Treaty constitute the appropriate legal basis for the proposal. VIII - Recommendation At its meeting of 24 March 2015 the Committee on Legal Affairs accordingly decided, by 21 votes in favour and 2 against, with 2 abstentions , to recommend to the Committee on the Environment, Public Health and Food Safety to not alter the legal basis of Articles 31 and 32 of the Euratm Treaty as proposed by the Commission, unless substantive provisions of the regulation are amended so as to make possible to add additional legal bases. Yours sincerely, Pavel Svoboda
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