PURPOSE: to amend Council Directive 2001/110/EC to align the implementing power of the Commission on the provisions laid down in the Treaty on the Functioning of the European Union (TFEU) and explicitly clarify the status of pollen, being a natural constituent particular to honey, rather than an ingredient of honey.

LEGISLATIVE ACT: Directive 2014/63/EU of the European Parliament and of the Council amending Council Directive 2001/110/EC relating to honey.

CONTENT: the Directive lays down that pollen is a natural constituent of, not an ingredient of, honey . It also clarifies the labelling requirements for the cases where honey originates in more than one Member State or third country. In these cases, the indicator of the country of origin may replaced by one of the the following indications, as appropriate: i) “blend of EU honeys”; ii) “blend of non-EU honeys”, iii) “blend of EU and non-EU honeys”.

Finally, the Directive reviews the scope of the existent power conferred on the Commission , in the light of the distinction between the delegated powers and the implementing competences of the Commission, introduced by articles 290 and 291 of the TFEU.

The Commission may, taking into account international standards and technical progress, by means of implementing acts , set out methods of analysis to verify whether honey is compliant with the provisions of this Directive.

In order to ensure fair commercial practices, to protect consumer interests and to enable the setting out of relevant methods of analysis, the power to adopt delegated acts should be delegated to the Commission to supplement the Directive lay down two parameters for the criterion of ‘mainly’ as regards the floral or vegetable origin of honey and the minimal content of pollen in filtered honey following removal of foreign inorganic or organic matter.

The power to adopt the delegated acts shall be conferred on the Commission for a period of five years (with tacit extension) from 23 June 2014 . The European Parliament or the Council may object to a delegated act within a period of two months from the date of notification (this period can be extended for two months). If the European Parliament or the Council make objections, the delegated act will not enter into force.

ENTRY INTO FORCE: 23.06.2014.

TRANSPOSITION: by 23.06.2015. The measures shall apply from 24.06.2015.

Products placed on the market or labelled before 24.06.2015, in line with Directive 2001/110/EC, may continue to be marketed until the exhaustion of stocks.

The European Parliament adopted by 283 votes to 248, with 45 abstentions, a legislative resolution on the proposal for a directive of the European Parliament and of the Council amending Council Directive 2001/110/EC relating to honey.

The report was referred back to the committee at the 15 January 2014 plenary sitting.

Parliament adopted its position at first reading following the ordinary legislative procedure. The amendments adopted in plenary are the result of an agreement reached between the European Parliament and the Council. They amended the proposal as follows:

Pollen : the compromise text stipulated that pollen, being a natural constituent particular to honey, should not be considered to be an ingredient, within the meaning of point (f) of Article 2(2) of Regulation (EU) No 1169/2011 on the provision of food information to consumers.

Labelling requirements : requirements as regards the case where honey originates in more than one Member State or third country have been clarified. If the honey originates in more than one Member State or third country, the indication of the countries of origin may be replaced with one of the following, as appropriate: (i) 'blend of EU honeys', (ii) 'blend of non-EU honeys', (iii) 'blend of EU and non-EU honeys'.

Commission powers : in order to ensure fair commercial practices and protect consumer interests and enabling the setting out of relevant methods of analysis, the Commission should be empowered to adopt delegated acts to supplement this Directive by laying down the quantitative parameters relating to the following: (a) the criterion of “mainly” as regards the floral or vegetable origin of honey; and, (b) the minimal content of pollen in filtered honey following removal of foreign inorganic or organic matter.

The duration of the delegation of power conferred on the Commission has been set at 5 years which may be tacitly extended.

The European Parliament adopted amendments to the proposal for a directive of the European Parliament and of the Council amending Council Directive 2001/110/EC relating to honey.

The matter was referred back for reconsideration to the committee responsible . The vote was postponed to a later session.

The main amendments adopted in plenary are as follows:

Geneticially modified pollen : Parliament rejected a proposal by its Environment Committee to consider GM pollen as an ingredient rather than a natural constituent of honey, in line with a Court of Justice ruling in 2011.

The amended text stipulates that pollen, being a natural constituent particular to honey , shall not be considered an ingredient , within the meaning of Article 2 (2)(f ) of Regulation (EU) No 1169 /2011 on the provision of food information to consumers. Current EU legislation on labelling will continue to apply.

Alignment with the Lisbon Treaty (delegated acts): the proposal seeks to allow the Commission to amend the technical characteristics related to names, product descriptions and definitions in Annex I and composition criteria in Annex II to the present Directive. However, Members considered that these are all essential elements of the Directive and should not be amended through delegated acts in accordance with Article 290 of the TFEU. Therefore, they deleted these parts of the Commission proposal.

The power to adopt delegated acts relating to non-essential elements is still to be conferred on the Commission. Accordingly, Members called for the proposal in Article 4 for delegated acts to set out methods for the verification of compliance of honey with the provisions of this Directive to be maintained.

Members have also amended the length of time for which the power to adopt delegated acts can be conferred on the Commission. This has been changed from an indeterminate period to five years with tacit extension.

The Committee on the Environment, Public Health and Food Safety adopted the report by Julie GIRLING (ECR, UK) on the proposal for a directive of the European Parliament and of the Council amending Council Directive 2001/110/EC relating to honey.

The committee recommended that the European Parliament’s position adopted at first reading under the ordinary legislative procedure should amend the Commission proposal as follows:

Transformation of the ECJ-ruling of 6 September 2011 : the report recalled that following the judgment of the Court of Justice of 6 September 2011 in case C-442/09, pollen derived from genetically modified crops is to be considered as an ingredient of honey, or of food supplements containing pollen, within the meaning of Regulation (EU) No 1169/2011 on the provision of food information to consumers.

In order to ensure freedom of information and choice for consumers, and taking into account the special characteristics of honey, this Directive should consider pollen to be an ingredient , but solely within the meaning of Article 2 and Article 12(2) of Regulation (EC) No 1829/2003 on genetically modified food and feed.

The report stressed that honey and other foods or food supplements, containing pollen derived from genetically modified crops are to be labelled as foodstuffs containing ingredients produced from genetically modified organisms . As honey is a natural product, it should be exempted from the requirement to bear a list of ingredients.

Alignment with the Lisbon Treaty (delegated acts) : the proposal seeks to allow the Commission to amend the technical characteristics related to names, product descriptions and definitions in Annex I and composition criteria in Annex II to the present Directive. However, Members considered that these are all essential elements of the Directive. Therefore, the Commission proposal, in allowing amendment of essential elements, goes beyond the scope of delegated acts as outlined in the Treaty. For this reason, the report has removed these references from the Commission proposal.

The power to adopt delegated acts relating to non-essential elements should still to be conferred on the Commission. Therefore, Members called for the proposal in Article 4 for delegated acts to set out methods for the verification of compliance of honey with the provisions of this Directive to be maintained.

Members have also amended the length of time for which the power to adopt delegated acts can be conferred on the Commission. This has been changed from an indeterminate period to five years with tacit extension .

This Commission staff working document aims to give further explanations as regards the legality of the proposal for a Directive of the European Parliament and of the Council amending Council Directive 2001/110/EC relating to honey.

The legal certainty of the proposal was questioned by the Council Legal Service as regards the qualification of pollen as a “constituent” of honey as opposed to an ingredient within the context of t he ruling of the Court of Justice of the EU dated 6 September 2011, Bablok, C-442/09.

The Commission concludes that this proposal is based on different factual considerations than those put forward to the Court in the Bablok ruling and that it amends one of the acts (Directive 2001/110/EC) which was interpreted by the Court in the Bablok ruling.

Therefore, the Commission continues to consider that the proposal, as it stands, is fully compatible with the existing case-law and is therefore legal .

PURPOSE: to align existing Commission implementing powers with the provisions laid down in the Treaty on the Functioning of the European Union (TFUE) and clarify explicitly the status of pollen as a constituent particular to honey rather than an ingredient of honey.

PROPOSED ACT: Directive of the European Parliament and of the Council.

BACKGROUND: Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFUE) distinguish two different types of Commission acts:

· 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 (delegated acts);

· Article 291 of the TFUE allows Member States to adopt all measures of national law necessary to implement legally binding Union acts (implementing acts).

Following a reference for a preliminary ruling under Article 234 EC for 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 on the approximation of laws of the Member States relating to the labelling, presentation and advertising of foodstuffs.

In light of these considerations, a draft proposal amending Directive 2001/110/EC has been prepared.

IMPACT ASSESSMENT: no significant changes for interested parties are expected and for this reason, no impact assessment has been carried out.

LEGAL BASIS: Article 43 TFEU.

CONTENT : the proposal aims to:

· 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 TFUE;

· clarify, in view of the judgement of the Court of Justice in Case C-442/09, 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, but is a constituent of honey, which is a natural substance that has no ingredients. This clarification will not prevent the applicability of Regulation (EC) No 1829/2003 to honey containing GM pollen, 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.

BUDGETARY IMPLICATIONS: the proposal has no implications for the EU budget.