Abstract
The EU legal order reveals the influence of the FAO in five policy fields: fisheries, food law, animal health, international food security and forestry. In this chapter, two policy fields which may serve to exemplify FAO’s influence on the EU legal order, namely food security and food law, are discussed against the background of FAO’s institutional set-up and the history of FAO-EU interaction. The developments in the fields of food security and food law bring to light a shift from a partnership between equals to a more hierarchical relationship in which the EU acts as one of the FAO’s members. This contribution examines the Codex Alimentarius example (international administrative activity) and the CFS example (policy discussions). EU participation in these fora is examined in order to assess whether more intense participation leads to stronger effects in the EU legal order. The contribution also examines whether the Lisbon Treaty has had an effect on EU participation in the FAO. The CFS example is found to show some effects of the FAO’s work on EU policy thinking whereas EU participation was mostly limited to representation by a Member State. The Codex example shows considerable effects in the EU legal order. The extent of these effects, however, is determined by the EU legislator and judiciary. The participation of EU officials in the Codex Alimentarius Commission has led to some degree of informal influence.
Françoise Schild is legal counsel in the International Law Division of The Netherlands Ministry of Foreign Affairs and was Alternate Permanent Representative at the Permanent Representation of the Kingdom of the Netherlands to the UN organisations in Rome from 2009 to 2011. The author is currently preparing a PhD thesis on EU participation in the FAO and the European Convention on Human Rights as prototypes for multilevel governance. The author wishes to thank the FAO for allowing access to its archives in the spring of 2011. Part of the information in this chapter is based on discussions with FAO, EU and Member State officials. All views expressed in this chapter are personal.
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- 1.
The author participated as a Member State diplomat in EU coordination meetings in Rome and Brussels on the EU participation in the 2010 CFS, on the implementation of the Lisbon Treaty at the FAO and also participated in the 2010 CFS negotiations.
- 2.
In fact, the concept of the independence or autonomy of international organisations is widely debated; see for instance Collins and White 2011.
- 3.
D’Aspremont 2011, 63.
- 4.
D’Aspremont 2011, 64.
- 5.
ECJ Case C-45/07 Commission v Greece (International Maritime Organisation) [2009] ECR I–701.
- 6.
For a recent overview and analysis of the Court’s case law in this regard see Eckes 2010.
- 7.
Collins and White 2011, 14.
- 8.
Cremona 2011, 234.
- 9.
It is also unresolved to what extent the observance of procedures for the establishment of Union positions have a bearing on the determination whether a norm adopted within an international organisation has direct effect. The Court has in the past based its conclusion that a certain norm was part of the Community legal order on the finding that the decision in question was “directly connected with the underlying international agreement”, Martenczuk 2001, 156–157; ECJ Case 204/86 Greece v Council [1988] ECR 5323, ECJ Case 30/88 Greece v Commission [1989] ECR 3711 and ECJ Case C-192/89 Sevince [1990] ECR I-3461. Also Lavranos 2004, 23–45.
- 10.
Food and Agriculture Organisation of the United Nations 2011.
- 11.
ECJ Case 104/81 Hauptzollamtmainz v Kupferberg [1982] ECR 3641. In short, Kupferberg states that agreements concluded by the Union are binding on both the Union institutions and the Member States and are capable of having direct effect.
- 12.
Cremona 2011, 236.
- 13.
This category of competence is described in Article 2(5) TFEU which states that “the Union shall have competence to carry out activities and conduct a common policy, however the exercise of that competence shall not result in the Member States being prevented from exercising theirs”. Instead of the term “complementary competence”, the term”non-exclusive competence” might be more suitable: Cremona 2011, 252, footnote 179.
- 14.
ECJ Case 22/70 Commission v Council (AETR/ERTA) [1971] ECR 263, para 19.
- 15.
AETR, its consequences and subsequent case law are covered extensively in Cremona 2011.
- 16.
Council document 8460/95, Provisions regarding a line of conduct on speaking and voting rights, as well as an accelerated written procedure for consulting delegations.
- 17.
A complete overview (100 projects) is available at http://www.fao.org/europeanunion/eu-partnership-home/en/, accessed 14 June 2012. For an overview extending beyond development and humanitarian aid see Maersk Pedersen 2006.
- 18.
Financial and Administrative Framework Agreement between the European Community, represented by the Commission of the European Communities, and the United Nations (2003), Available at http://ec.europa.eu/health/ph_international/documents/un_ec_fafa_en.pdf. Accessed 14 June 2012. The FAFA was foreshadowed in December 1978 by a”Protocol d’Accord” between the EC (DG Development) and FAO.
- 19.
Strategic partnership between the Commission of the European Communities and the Food and Agriculture Organisation in the field of development and humanitarian affairs (2004). Available at: http://www.eeas.europa.eu/delegations/rome/documents/eu_united_nations/fao_ec_working_doc_final_en.pdf. Accessed 14 June 2012.
- 20.
Regulation (EC) No. 1337/2008 of the European Parliament and of the Council of 16 December 2008 establishing a facility for rapid response to soaring food prices in developing countries, OJ 2008 L 354/62. The legal basis for this regulation is Article 209 TFEU (former 179 TEC).
- 21.
FAO Initiative on Soaring Food Prices available at http://www.fao.org/isfp/about/en/, accessed 14 June 2012.
- 22.
This process was started in 2007 with an independent external evaluation and implemented by the organisation in the Immediate Plan of Action. More information available at http://www.fao.org/iee-follow-up-committee/home-iee/en/, accessed 14 June 2012.
- 23.
List of members available at http://www.fao.org/Legal/member-e.htm, last updated 25 June 2011, accessed 14 June 2012.
- 24.
Article V (6)(b) FAO Constitution.
- 25.
At the time there was some discussion as to whether the European Commission or the Council of Ministers should have been a party to the agreement, Letter by Orbaneja to St. Pol, 28 October 1959, FAO Archives.
- 26.
Letter from the Director-General of FAO, Sen, to the President of the European Commission, Hallstein, dated 4 August 1959, FAO Archives. In the correspondence from this period the agreement between the International Labour Office and the Common Market (possibly concluded in 1958, not clear in the FAO Archives) was quoted as an example.
- 27.
A draft position paper was apparently prepared to be submitted to the Tenth Session of the Council but was never used (a handwritten note at the top of the page); ‘Cooperation Agreement with European Economic Community’, Agenda item No. 15(d)(iii) C 59/48, October 1959, FAO Archives.
- 28.
Exchange of letters Between the Director-General of the FAO, Sen, and the President of the European Commission, Hallstein, 25 October 1962 and 11 December 1962, FAO Archives.
- 29.
A draft in October 1959 (FAO Archives) even foresaw “reciprocal representation” although it is hard to imagine now how this would exactly have worked in practice: observers from the FAO at the EEC’s meetings concerned with agriculture?
- 30.
Op. cit. Paragraph 4 of the arrangements reads as follows: “la possibilité de constituer éventuellement des Comités mixtes charges d’ examiner certains questions d’interêt commun”.
- 31.
Letter from Tetro to Leeks, 29 May 1970, FAO Archives.
- 32.
Pennison (the FAO’s representative to the EEC) 1975, FAO Archives.
- 33.
By now the EU has joined a number of international bodies as a member, among which is the Codex Alimentarius Commission (more on this in Sect. 10.4) and the World Trade Organization. The EU has (“special”) observer status in most other international organisations. For a thorough overview see annexes A., B. and C. of Emerson et al. 2011.
- 34.
This process is described in detail in De Pinho 1993.
- 35.
Two declarations of competences were submitted, one contained in Council Decision of 25 November 1991 Declaration of Competence by the European Community in respect of matters covered by the Constitution of the Food and Agriculture Organization of the United Nations, OJ 1991 C 238, which was updated by the “Declaration of competence by the European Community”, letter sent on 4 October 1994 from the President of the Council to the Director General of the FAO; Commission document SEC 94 (437) final.
- 36.
See for instance FAO documents CFS/2010/INF/5, ‘Statement of competence and voting rights submitted by the European Union’, available from http://www.fao.org/docrep/meeting/019/k9271e.pdf and COFO/2010/Inf.4 ‘Statement of competence and voting rights submitted by the European Union and its Member States’, available from: http://www.fao.org/docrep/meeting/019/k9204e.pdf, both accessed 16 May 2012.
- 37.
Council documents 10478/91, Arrangement between the Council and the Commission regarding preparation for FAO meetings, statements and voting, 9050/92, Application of the Council and Commission Arrangement 10478/91, in particular regarding the approval of reports of FAO meetings, and 8460/95 Provisions regarding a line of conduct on speaking and voting rights, as well as an accelerated written procedure for consulting delegations. Also relevant is an information note from the Commission of 3 May 2005.
- 38.
The subsequent 1992 and 1995 arrangements provide for procedural improvements. The 1992 text creates an additional procedure regarding the adoption of reports of meetings which in theory could lead to the chairman of an FAO meeting having to proceed to a separate vote on each agenda item to allow the Commission and the Member States to vote separately on matters within their own competence. The 1995 text sets rules regarding the division of competence, among which procedural, financial and personnel matters fall within exclusive Member State competence and constitutional and legal matters fall within “mixed competence” (=shared competence).
- 39.
ECJ Case C-25/94 Commission v Council [1996] ECR I-1469 and Heliskoski 2000. The 1991 arrangement is described by the Court as a “… fulfilment of the duty of cooperation…” and as a legally binding commitment between the Council and the Commission, para 49.
- 40.
Emerson et al. 2011, 44.
- 41.
A new arrangement was designed for each EU Presidency, for instance “EU representation in UN bodies based in Rome”. Local arrangements between the Permanent Representation of Hungary to FAO (HUPR) and the EU Delegation in Rome (EUREP) 17 May 2011 (FAO-COORD 2011-019 REV 3, author’s copy).
- 42.
CFS Secretariat, Committee on World Food Security (CFS) Information Note, available at: http://www.fao.org/fileadmin/templates/cfs/Docs0910/InfoNote/CFS_General_Info_Note_EN.pdf accessed 14 June 2012.
- 43.
http://www.un.org/en/issues/food/taskforce/, accessed 14 June 2012.
- 44.
http://www.g8italia2009.it/G8/Home/News/G8-G8_Layout_locale-1199882116809_1246708102771.htm, accessed 14 June 2012.
- 45.
http://www.foodsecurityportal.org/g20-reports-highlight-need-address-food-insecurity, accessed 14 June 2012.
- 46.
http://www.gafspfund.org/gafsp/, accessed 14 June 2012.
- 47.
Reform of the Committee on World Food Security, final version, CFS:2009/2 Rev.2, http://www.fao.org/fileadmin/templates/cfs/Docs0910/ReformDoc/CFS_2009_2_Rev_2_E_K7197.pdf, accessed 14 June 2012.
- 48.
Most ostensibly Article I (2)(a) FAO Constitution.
- 49.
European Parliament, Council, Commission 2006/C 46/01, Joint statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament and the Commission on European Union Development Policy: “The European Consensus” OJ 2006 C 46/1.
- 50.
Council conclusions on an EU policy framework to assist developing countries in addressing food security challenges, 3011th Foreign Affairs Council meeting Brussels 10 May 2010, available at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/114357.pdf, accessed 14 June 2012.
- 51.
COM (2010) 127 final.
- 52.
Council Conclusions on Humanitarian Food Assistance, 3011th Foreign Affairs Council meeting Brussels 10 May 2010, available at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/114354.pdf, accessed 14 June 2012.
- 53.
COM (2010) 126 final.
- 54.
An example is the International Treaty on Plant Genetic Resources for Food and Agriculture which was initiated and developed within FAO structures. Its secretariat is currently housed at the premises of FAO. More information on the history of the International Treaty and FAO’s role therein is to be found at http://www.fao.org/nr/cgrfa/cgrfa-about/cgrfa-history/en/, accessed 14 June 2012.
- 55.
CFS Final report, CFS:2010/final report/thirty-sixth session, available at: http://www.fao.org/fileadmin/templates/cfs/Docs0910/CFS36Docs/CFS_FINAL_REPORT_REV_w_Annexes_Logos.pdf, accessed 14 June 2012. The chairman’s summary is not available online but was distributed at the end of the session.
- 56.
COM (2010) 126 final, 4.
- 57.
SEC (2010) 374, Commission Staff Working Document, accompanying document to the Communication from the Commission to the Council and the European Parliament, Humanitarian Food Assistance.
- 58.
The list of references at the end of this contribution mentions a FAO research report and the 1996 Rome Declaration and Plan of Action, which was the outcome of the 1996 World Food Summit organised by FAO.
- 59.
As previously stated, a general declaration of competences was submitted to the FAO in the 1990s. For every FAO meeting an individual statement of competence and voting is prepared.
- 60.
The FAO’s Membership consists of the following regional groups: Europe (ERG, 48 members, including the 27 EU Member States and the EU), Asia (23 members), Africa (48 members), South-West Pacific (16 members), Latin America and the Caribbean (33 members), the Near East (21 members), Northern America (2 members).
- 61.
Council doc. 15901/11 EU Statements in multilateral organisations, General Arrangements draft 19 October 2011, adopted by the Council on 22 October 2011.
- 62.
CFS Final report, CFS:2010/final report/thirty-sixth session, available at: http://www.fao.org/fileadmin/templates/cfs/Docs0910/CFS36Docs/CFS_FINAL_REPORT_REV_w_Annexes_Logos.pdf, accessed 14 June 2012, para 25 (i). More research would be needed to ascertain the exact degree of EU influence on this report.
- 63.
So far no new policy documents have been developed by the European Commission on this subject.
- 64.
Secretariat of the Joint FAO/WHO Food Standards Programme 2006, 7.
- 65.
- 66.
Afonso Pereira 2010.
- 67.
Masson-Matthee 2007, 95.
- 68.
Annex II to Council Decision 2003/822 on the Accession of the European Community to the Codex Alimentarius Commission, OJ 2003 L 309/14 op. cit. contains a “Single Declaration by the European Community on the exercise of competence according to Rule VI of the Rules of Procedure of the Codex Alimentarius Commission”.
- 69.
Maersk Pedersen 2006, 83.
- 70.
For instance, the main EU foodstuffs regulation, Regulation (EC) No. 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs, OJ 2004 L 139/1; and Council Decision 2003/822 on the Accession of the European Community to the Codex Alimentarius Commission, OJ 2003 L 309/14 mention these Articles in their preambles as a legal basis.
- 71.
Strictly speaking, development policy is an area in which Union and Member State action should complement each other (“complementary competence”; Article 4(4) TFEU), see also above.
- 72.
The EFSA was set up in 2002 by 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, OJ 2002 L 31/1.
- 73.
For more information on EFSA’s international activities, see http://www.efsa.europa.eu/en/networks/international.htm, accessed 14 June 2012.
- 74.
Poli 2004, 614–615.
- 75.
Poli 2004, 613.
- 76.
For a more detailed discussion of this point see Afonso Pereira 2010, 547–556.
- 77.
See for instance Regulation (EC) No. 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs, OJ 2004 L 139/1, and Poli 2004, 616–617, footnote 18. Masson-Matthee 2007, 95–133, has thoroughly analysed the effects of Codex standards in the EU up until 2002.
- 78.
Letter by Kermode to Rapp, 4 April 1971, OJ C 76/9, 7 June 1969.
- 79.
Masson-Matthee 2007, 102–103.
- 80.
Poli 2004, 616. Articles 5 (1) and (2) 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, OJ 2002 L 31/1 sums up these objectives as follows: “a high level of protection of human life and health and the protection of consumers' interests, including fair practices in food trade, taking account of, where appropriate, the protection of animal health and welfare, plant health and the environment” and “the free movement in the Community of food and feed”.
- 81.
Masson-Matthee 2007, 103.
- 82.
- 83.
ECJ Case 178/84 Commission v Germany (Reinheitsgebot) [1987] ECR 1227, para 44.
- 84.
ECJ Cases 13/91 and 113/91 Debus [1992] ECR I-3617, paras 16–17.
- 85.
Ibid., para 29.
- 86.
ECJ Case 286/86 Deserbais [1988] ECR 4907, paras 14–16.
- 87.
ECJ Case 192/01 Commission v Denmark [2003] ECR I-9693.
- 88.
ECJ Case C-196/05 Sachsenmilch [1996] ECR I-5161, para 33.
- 89.
ECJ Case C-236/01 Monsanto [2003] ECR I-8105, paras 77–79.
- 90.
ECJ Case 298/87 Smanor [1988] ECR 4489, para 22.
- 91.
Opinion of AG Leger in ECJ Case 465/98 Unwesen vs Darbo [2000] ECR I-2297, Opinion of AG Leger, Opinion of AG Fenelly in ECJ Case 42/99, Fabrica de Queijo [2000] ECR I-7691, para 33 and Opinion of AG Jacobs in ECJ Case C-198/03 P Commission v CEVA Santé Animale and Pfizer [2005] ECR I-6357, paras 6, 34, 36 and 76.
- 92.
ECJ Case C-448/06, cp-PharmaHandels GmbH [2008] ECR I-5685, para 36.
- 93.
ECJ Case C-192/01, Commission v Denmark [2003] ECR I-9693.
- 94.
Afonso Pereira 2010, 557.
- 95.
Letter by Commissioner Lardinois to DG FAO Boerma, 20 June 1975.
- 96.
Council Decision 2003/822 on the Accession of the European Community to the Codex Alimentarius Commission, OJ 2003 L 309/14.
- 97.
Statutes of the Codex Alimentarius Commission, available at: http://www.fao.org/DOCREP/005/Y2200E/y2200e02.htm, accessed 14 June 2012.
- 98.
As explained above, the EU is not a Member State of FAO, but has membership on the basis of its status as a regional economic integration organisation. Strictly speaking, it is not a “Member Nation” of FAO, but apparently this fact was not deemed to preclude EU accession.
- 99.
ECJ Case C-246/07 Commission v Sweden (Stockholm Convention on persistent organic pollutants) [2010] ECR I-3317 and ECJ Case C-45/07 Commission v. Greece (International Maritime Organization) [2009] ECR I-0000 p. 25.
- 100.
- 101.
Rule of Procedure II (5), Procedural Manual Version 20. See for instance. http://ec.europa.eu/food/fs/ifsi/eupositions/cac/archives/cac_ec_comments_33session_en.pdf
- 102.
Masson-Matthee 2007, 103.
- 103.
Masson-Matthee 2007, 104.
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Schild, F.D. (2013). The Influence of the Food and Agriculture Organization (FAO) on the EU Legal Order. In: Wessel, R., Blockmans, S. (eds) Between Autonomy and Dependence. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-903-0_10
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