7 February 1997 A4-0020/97/A
EP BSE Inquiry report
REPORT on alleged contraventions or maladministration in the implementation of Community law in relation to BSE, without prejudice to the jurisdiction of the Community and national courts Part A:
I. RESULTS OF THE INQUIRY
II. RECOMMENDATIONS FOR THE FUTURE
III. MINORITY OPINIONS (published separately)
Temporary committee of inquiry into BSE
Rapporteur: Mr Manuel Medina Ortega
C O N T E N T S Procedural page 3
I.RESULTS Of THE INQUIRY
EVIDENCE OF NEGLIGENCE, RESPONSIBILITIES AND PRESUMPTIONS OF MALADMINISTRATION 4
A) BRIEF OF THE COMMITTEE OF INQUIRY 4
B) DIFFICULTIES ENCOUNTERED IN THE COURSE OF THE WORK OF THE COMMITTEE OF INQUIRY 5
C) MISHANDLING OF THE CRISIS DURING THE PERIOD WHEN THE DISEASE WAS AT ITS HEIGHT 5 2. RESPONSIBILITIES IMPUTABLE TO THE UK GOVERNMENT 6
3. DETERMINATION AND ATTRIBUTION OF RESPONSIBILITIES AS BETWEEN THE COUNCIL AND COMMISSION 15
4. RESPONSIBILITIES OF THE COUNCIL 18
5. RESPONSIBILITIES OF THE COMMISSION 22
6. POLITICAL RESPONSIBILITIES OF THE COMMISSION 36
ANNEXES (published separately)
II. RECOMMENDATIONS FOR THE FUTURE 38
III.MINORITY OPINIONS (published separately)
At its sitting of 18 July 1996 the European Parliament adopted, pursuant to its powers under Rule 136 of its Rules of Procedure, the decision to set up a temporary committee of inquiry into bovine spongiform encephalopathy.
On 3 September 1996 the temporary committee of inquiry held its constituent meeting and appointed Mr Medina Ortega rapporteur.
At its sitting of 26 October 1996 Parliament decided to prolong the mandate of the temporary committee of inquiry for a further three months.
At its meetings of 3 and 19 September, 1-2, 8-9, 21, 24 and 28-29 October, 4, 11-12, 14, 18-19 and 25-26 November and 3, 9-10, 12 and 16-17 December 1996, the temporary committee of inquiry organized hearings with witnesses and experts in the field, and held a number of internal evaluation meetings.
At its meetings of 13, 15, 20-21 and 28 January and 5-6 February 1997 the committee examined the draft report.
At the last meeting it adopted the results of the inquiry and the recommendations unanimously.
The following took part in the vote: Böge, chairman; Santini and Kofoed, vice-chairmen; Medina Ortega, rapporteur; Barthet-Mayor, Bébéar, Dell'Alba (for Barthet-Mayor, pursuant to Rule 136(4, second paragraph)), Gillis (for Plumb, pursuant to Rule 136(4, second paragraph)), Goepel (for Böge, pursuant to Rule 136(4, second paragraph)), Graefe zu Baringdorf, Happart, Jensen (for Roth- Behrendt, pursuant to Rule 136(4, second paragraph)), Jové Peres, Laignel, Martin P., Martinez, des Places, Redondo Jiménez, Rosado Fernandes (for P. Martin, pursuant to Rule 136(4, second paragraph)), Roth-Behrendt, Thyssen (for Bébéar, pursuant to Rule 136(4, second paragraph)), Trakatellis and Whitehead.
The minority opinions (of the following Members: Happart, P. Martin, Martinez, des Places, Plumb and Whitehead) will be published separately from the results and recommendations of the committee of inquiry.
The results of the inquiry and the recommendations for the future were submitted on 7 February 1997.
I RESULTS OF THE INQUIRY
EVIDENCE OF NEGLIGENCE, RESPONSIBILITIES AND PRESUMPTIONS OF MALADMINISTRATION
A) BRIEF OF THE COMMITTEE OF INQUIRY
The decision of the European Parliament, adopted on 18 July 1996 (note 1), which set up the present temporary committee of inquiry into BSE mandated it to 'investigate alleged contraventions or maladministration in the implementation of Community law in relation to BSE, without prejudice to the jurisdiction of the Community and national courts'.
The committee's exercise of the functions entrusted to it is, according to its brief, to be carried out 'without prejudice to the jurisdiction of the Community and national courts'. It is, therefore, not for Parliament to determine individual responsibilities which must be the subject of actions brought before criminal and civil courts by the victims of the crisis. The attribution of political responsibility, and whether the committee should propose initiatives to that end to the plenary of Parliament, is another matter altogether.
In accordance with this mandate, the examination of the allegations of contraventions or maladministration has been divided into six chapters. The first chapter is introductory in nature and concerns the brief of the Committee of Inquiry and the difficulties encountered in the course of its work. The second concerns the responsibilities of the UK. The third attempts to establish the possible determination and attribution of responsibilities as between the Council and Commission. The fourth and fifth concern the responsibilities of the Council and the Commission respectively. The sixth and last concerns the Commission's political responsibilities. Section II sets out recommendations for the future.
It has become clear from the work of the Committee of Inquiry that the determination and attribution of responsibility as between the UK Government, the Council and the Commission is an extremely complex question. This difficulty is increased by the fact that BSE is a new and very strange disease. The pathogen has not been definitively identified and there is no live test for the condition..
B) DIFFICULTIES ENCOUNTERED IN THE COURSE OF THE WORK OF THE COMMITTEE OF INQUIRY
All Community officials who gave evidence to the Committee of Inquiry did so in accordance with Article 3(3) of the joint Decision of 19 April 1995 of the European Parliament, the Council and the Commission on the detailed provisions governing the exercise of the European Parliament's right of inquiry. Accordingly, officials gave evidence not as individuals but on behalf of their institution, acting in accordance with the Commission's instructions.
This presented an obstacle to the work of the Committee of Inquiry. In the first place, obtaining written replies was extremely slow. In addition, and more seriously, the Commission used blocking tactics, concealing the truth on various sensitive issues. The UK Government also adopted blocking tactics, right from the moment when its Minister for Agriculture refused to appear before the Committee of Inquiry. Consequently, the need to complete the work of the Committee of Inquiry within the deadlines laid down meant that a number of questions remained unanswered.
The pressure of time and the wording of the 1995 Interinstitutional Agreement made it impossible to attribute individual responsibility for maladministration. The Committee of Inquiry confined itself to the institutional framework, although it remains aware that, in addition to political responsibilities, there may also be administrative responsibilities which can be attributed to individuals who work and hold or have held office in the various institutions.
C) MISHANDLING OF THE CRISIS DURING THE PERIOD WHEN THE DISEASE WAS AT ITS HEIGHT
The main evidence of mismanagement of the BSE crisis can be traced to the period 1990-1994. In order to obtain a global view of events and attribute responsibility, consideration must be given both to the successes and failures of that period.
75% of the cases of BSE recorded in the UK occurred between 1990 and 1994. Towards the middle of 1990, France and Germany sought to introduce trade restrictions on British beef. Although these two countries were able to invoke the provisions of Article 36 of the EC Treaty, Commissioner MacSharry threatened to bring proceedings before the Court of Justice. In 1990 various internal notes were written which point to the existence of a policy of disinformation by the Commission. Although the Commission has denied on various occasions that such a policy was in force, written proof exists (see Annexes 20 and 22), as confirmed in the years that followed by a series of events which demonstrate how the problem was concealed.
- In 1990 scientific evidence was found that the infection could cross the barrier between species. There was evidence that the disease could be transmitted to cats and pigs. This was a serious development and should have prompted efforts to speed up the scientific research. However, from 1990 onwards the scientific research produced scant results.
- Between 1990 and 1994 veterinary checks on BSE in the UK were suspended.
- Between 1990 and 1994 Community legislative activity in the field of BSE was suspended, with the exception of the regulation on embryos.
- Between 1990 and 1994 the Council held no debates on BSE.
Consequently, although the Commission denies the existence of the policy of disinformation suggested by the written notes, the facts show that:
- the most important sources of information were not available; and
- the Council and Commission began to neglect their duties.
These two facts are connected, since if the flow of information is cut off and the Commission fails to fulfil its role in initiating legislation, the Council is sidelined. It is clear that the policy of disinformation was not confined to misleading public opinion, but played a full part in relations between the Community institutions.
The question of information is therefore of vital importance. There are two main sources of information, namely the results of veterinary inspections and the scientific evidence obtained from research. As far as veterinary inspections are concerned, it should be pointed out that, although the Commission sought to conceal the truth and attribute to the European Parliament the suspension of BSE inspection missions to the UK, this was a decision taken by the Commission in response to British pressure.
Research can be carried out when some stimulus exists, in other words where there is a problem and when there is sufficient raw material to carry out such research, in this case the organs of diseased animals. Although both these conditions were present in the UK during the years when the disease was at its height, no scientific findings were made. This is a further area where responsibility can be seen to lie with the UK.
A crucial factor before the legislative process gets under way is the work of the Scientific Veterinary Committee and the Standing Veterinary Committee. Once the sources of information had been cut off, both committees had little scope for action. Although the matter was taken up at a later date, it must be said that the BSE subgroup of the Scientific Veterinary Committee was chaired by a British official and that a large number of those who attended the meetings were of the same nationality.
2. RESPONSIBILITIES IMPUTABLE TO THE UK
BSE stemmed from the introduction from the United States of the 'Carver-Greenfield' system of manufacturing meat-and-bone meal. The UK Government, unlike those of other Member States, authorized the change in the system for manufacturing meat-and-bone meal. This led to the emergence of BSE. It also created conditions favourable to the spread of other diseases. In other states, when the process was changed, the introduction of a sterilization period was required.
Most of the testimonies and the greater part of the evidence supplied to the Committee of Inquiry suggest that the UK bears the greatest degree of responsibility. Even the Permanent Secretary, Mr Packer, and the Chief Veterinary Officer, Mr Meldrum, have admitted that mistakes were made in the management of the BSE crisis. The main elements demonstrating negligence on the part of the UK may be summarized under the following headings.
1. The UK authorities and the rendering industry
a) The UK authorities and the rendering industry paid insufficient attention to the risks involved in rendering a high proportion of sheep remains into meat-and-bone meal when scrapie was endemic in the British sheep population and the Carver- Greenfield rendering plants provided inadequate safeguards for the destruction of infectivity, although existing research results suggested that transmission to other species was possible.
However, by choosing to adopt new production techniques for animal meal, deemed more profitable, some manufacturers in the animal feedingstuffs sector bear a greater share of responsibility for the dissemination of the pathogen.
b) The UK authorities and the rendering industry continued to assume that, since scrapie was harmless to humans and BSE was a variant of scrapie in cattle, BSE must be purely an animal health matter
As early as 1979 a UK Royal Commission under Lord Zuckerman, set up to examine pathogenic transmission in general in the rendering process, warned about the wisdom, from an epidemiological viewpoint, of feeding rendered animal remains to ruminants.
c) In June 1987, British ministers were already aware of the existence of BSE and of the fact that scientists could not determine whether it could or could not be transmitted to other species or to humans. However, they decided to do nothing until 18 July 1988 when the ban on cattle feed was applied (this ban did not affect existing stocks). In December 1988, the UK prohibited the use of milk from suspect cattle for any purpose other than that of cows feeding their own calves. That action proves clearly that, in 1988, the British authorities suspected that there was a risk to public health if people ate meat from animals affected by BSE
2. The UK Government failed to ensure an effective ban on the feeding of meat-and-bone meal to ruminants:
a) the production techniques used for making feedingstuffs did not include sterilization and inactivation of the BSE or scrapie agents, and failed to prevent cross-contamination with mammal-derived proteins of all types of meal intended for livestock (the latter, although outlawed for ruminants, were still being used in the production of feedingstuffs for other animal species);
b) the absence of adequate control and recall measures (until August 1996 there were no legal penalties in the UK to back up the ruminant-protein feed ban) led to a failure to ensure the total disappearance of meat-and-bone meal (MBM) from ruminant feed;
c) The UK Government did not ask its own scientific advisers about the consequences of using stocks of meat- and-bone meal as animal feedingstuffs elsewhere where other ruminant animals might be exposed to it. Sir Richard Southwood told the Committee that he was not asked about these consequences:
' ... if you ask me whether in 1988 the working party [of which I was chairman] would have considered there was a risk to herds in other countries if UK-produced meal (with meat-and- bone meal) was exported I am totally confident that we would have answered in the affirmative. Knowing that the meal was almost certainly the cause of the outbreak in the UK it is clear that it was irresponsible (whatever the law) to make it available as cattle food elsewhere.'
The above is corroborated from the attestations of (among others) Mr Hoelgaard (Director, DG VI), Mr Pocchiari, Mr Dormont and Mr Riedinger. In addition, according to the documents forwarded to the Committee, the subject has been discussed on numerous occasions on the Scientific Veterinary Committee. The European Renderers' Association (EURA) expressed its concern over the functioning of feedmills in the UK at a number of meetings in 1990. In this connection, one may draw attention to paragraphs 4 and 5 of the communication sent by EURA to the Scientific Veterinary Committee on 27 February 1990 (Annex 1):
'4. From investigations in other countries in the EEC it appears very difficult to secure a complete separation in the feedmills between feed produced for ruminants and other feedingstuffs.
5. From the rendering industry it seems strange, that although brains, spinal cord, spleens and other organs [are] recognized as material with high potential of BSE-agent, these wastes are still processed in a rendering plant and used for feeding purposes, although in principle not for ruminants. The possibilities for mistakes in the feed-industry exist. The use of such end-products as for instance fertilizer could be recognized as a necessary alternative'.
3. It failed to respect the national prohibitive legislation outlawing imports of meal from the UK, or, at the least, it failed to take action to control the exports concerned. The liberalization of intra-Community trade cannot justify this serious failure to observe the principle of cooperation which should govern relations between all Member States.
The data supplied by Mr Packer, Permanent Secretary at the Ministry of Agriculture, Fisheries and Food, are highly significant. In 1989, just after the ban on feeding meat-based meal to ruminants in the UK, exports to the EU rose to 25 005 tonnes (as opposed to 12 553 in 1988). In 1990, when, it may be assumed, the national import bans were already in force, 10 072 tonnes were exported, and subsequent figures were: 2720 tonnes (1991), 1494 (1992), 2226 (1993) and 2343 (1994) (see Annex 2).
It is disturbing, to say the least, that UK animal feed producers continued to export their product to third countries (exports to the EU doubled after the ban in 1989) in spite of the then alleged links to BSE and unclear labelling of the origin of the ingredients. It is surprising that the responsibility of producing a defective product, and thereby causing a catastrophe on the beef market, has not been laid more firmly at the feet of the animal feed producers in the UK. Furthermore, the increase of exports of British animal-based meal at low prices following the ban imposed by the British Government on their use in the UK for feeding ruminants may be treated as a case of dumping.
On this point, there is a contradiction between, on the one hand, the statements by Mr Packer and Mr Meldrum, who admit to inadequacies over labelling but claim that regulation for international trade purposes was a matter for the EEC rather than the Member States, and, on the other, the Commission's justification of its failure to act on the grounds that no suitable legal basis existed. One cannot, however, accept Mr Meldrum's argument that the UK should therefore be exonerated from all responsibility (he claims that the UK government had written to the relevant Member State and third- country authorities, informing them of its BSE problem and urging them to ban the feeding of mammal protein to ruminants).
Given the fact that large amounts of possibly infected ruminant feed were exported to other EU countries, and that in evidence the Committee heard that up to 57 000 animals were also exported between 1985 and 1989 to EU Member States, it was the opinion of the Commission’s representative to the Committee, Mr Hoelgaard (Director, DG VI) and Dr Galo, of the National Veterinary Laboratory of Portugal, that there could be as many as 1600 cases of BSE in other Member States.
4. It put pressure on the Commission not to include anything related to BSE in its general inspections of slaughterhouses, as periodically carried out between 1990 and 1994 in the context of their adaptation to the internal market. This point may be illustrated by Mr Hoelgaard's declarations at the hearing of 28 October 1996.
Mr Hoelgaard's words may usefully be reproduced verbatim (see pp. 13 and 14 of the minutes of the hearings): 'I, therefore, do not know why this kind of inspection, that is slaughterhouse inspection with BSE on the side, did not continue in the subsequent years, although there is one piece of information which is perhaps relevant and which I have only recently become aware of. At the end of the inspection a discussion took place with the UK veterinary services on 29 June 1990. When BSE was raised by the inspectors about the deficiencies, Mr Keith Meldrum, Chief UK Veterinary Officer, apparently reacted angrily, stating that the Commission inspectors had no authority to investigate BSE matters; that BSE was not a technical but a political matter; the UK provided the best certificates in the world and the Ministry of Agriculture was reluctant to install computers in abattoirs due to issues of cost and confidentiality' (Annex 32).
The lack of BSE-related inspections between 1990 and 1994 seems symptomatic of an assumption by the British witnesses before the Committee that they knew all there was to know and could handle the problem without outside 'interference'. There was also an attitude of 'benign neglect' of the issue (a willingness to let a British problem be dealt with by the British) on the part of the Commission and, through the veterinary committees, by the other Member States.
One cannot but deplore the fact that top-ranking officials in DG VI in particular bowed to the wishes of Mr K. Meldrum, Chief UK Veterinary Officer, i.e. that Commission inspectors had no authority to investigate BSE matters in the UK even though these same inspectors had uncovered BSE-related deficiencies in some slaughterhouses.
The tape-recording of the meeting of the Standing Veterinary Committee of 5 September 1999 also provides evidence of Mr Meldrum's lack of awareness of the problem:
'Given that there is no risk to human beings, what we are now proposing is once again based on an extremely cautious approach, because there is public concern. People are worried about this new disease and, to tell the truth, it is more an issue of consumer confidence than consumer protection.
But we say that there is no risk, or indeed any proof of such a risk.'
5. The influence of British thinking on the Commission was obviously increased by the preponderance of British experts and Ministry of Agriculture officials on the BSE Subgroup of the Scientific Veterinary Committee. This initially derived from the fact that the UK had far more experience of BSE than any other Member State. With other diseases the experts came predominantly from the Member State concerned (for example with swine fever).
Nonetheless, the BSE Subgroup of the Scientific Veterinary Committee has almost invariable been chaired by a UK national, which made considerations of objectivity and impartiality particularly important. The minutes, in addition, are drawn up by a temporary Commission official of British nationality. The records of attendance attached to some of the minutes which we have received are sufficiently indicative (see Annex 3):
- meeting of 5 February 1990: 9 participants (4 British) - meeting of 28 May 1990: 9 participants (5 British) - meeting of 28 September 1994: 10 participants (4 British) - meeting of 19 June 1995: 9 participants (4 British)
The preponderance of UK scientists and officials, therefore, meant that the Scientific Veterinary Committee tended to reflect current thinking at the British Ministry of Agriculture, Fisheries and Food.
6. It made a partial and biased reading of the advice and warnings of the scientists. The views of certain scientists who could be considered as more critical were not taken into account. Some members of the Southwood Committee have said publicly that the minutes of its meetings were drawn up by a UK Ministry of Agriculture official and contain omissions and discrepancies.
The UK Government only recognized the serious and imminent risk of the disease spreading to humans on 20 March 1996. Research was for too long influenced by the belief that the disease was a form of scrapie in cattle: this meant there was insufficient research in the area of transmissible spongiform encephalopathies and their possible connection to Creutzfeldt-Jakob disease in humans.
The necessary research effort was not carried out, nor were the research fields properly defined so as to obtain information rapidly and determine the risk to humans; indeed, obstacles were put in the path of scientists adopting more critical attitudes to the inadequacy of the precautions being taken. At all events, the responsibility for negligence must be considered to be shared with the EU: the UK has spent £ 60 m on BSE research, according to Ministry of Agriculture figures, and the EU has spent ECU 3 745 000 (see Annex 4).
Although the UK Government has said that it has always accepted scientific advice, Professor Southwood has confirmed that in 1988 his working party was especially concerned with the possible risk to infants from the presence of homogenized meat products in infant food, and recommended that specific bovine residues (SBO/SBM) should not be permitted in infant food. It took the UK Government over a year to accept this recommendation (see letter from Professor Southwood to Mr Böge, PE 220.549).
7. The UK Government did not honour its undertakings made at the extraordinary Council meeting of 6 and 7 July 1990, held to deal with the initial BSE crisis. The conclusions of the minutes of that Council meeting state: 'The Council notes the United Kingdom's intention to introduce a surveillance mechanism of herds in which BSE has been detected, including inspection in approved slaughterhouses of cattle and carcasses from these herds. The results will be transmitted to the Commission and Member States for evaluation by the Standing Veterinary Committee.' (Annex 10).
This is particularly serious, since the UK at no moment acted on its undertaking to identify the herds affected, which would have been a necessary first step towards eradicating the disease. In addition, the failure to monitor trade in animals between BSE-free and BSE-affected herds is still hindering a proper eradication policy.
The fact that the UK at no moment acted on this undertaking puts it in breach of Article 5 of the Treaty.
8. It did not implement the legislation by which bovine animals should have been identified and branded and their movements registered. Formally, there were strict and specific obligations, set out in the 'Bovine Animals Order 1990' (SI 1990/1867), which came into force on 15 October 1990 in implementation of Commission Decision 90/261. Article 1(2) of this decision stipulates that the UK is to make exhaustive use of computer registers for ensuring identification of animals. The terms of this decision were, furthermore, strengthened in 1995.
In addition, Article 11 of Directive 92/102 on the identification and registration of animals obliges the Member States, in the case of bovine animals and as from 1 February 1992, to operate computerized registers and an identification system complying with the requisites laid down in the directive.
On 7 June 1990 restrictions were introduced on the export of meat from herds where cases of BSE had been detected in the previous two years (Commission Decision 90/261/EEC, amending Decisions 89/469/EEC and 90/200/EEC). Shortcomings in the British registration system led to the appearance of 'cesspool' farms (a question debated in the UK parliament). These farms, which already had a high incidence of BSE, bought animals in the first stages of the disease and received compensation for the slaughter of the diseased cattle. The farms which sold the sick animals eluded the restrictions by concealing their true health situation.
This undermined the reliability of statistics on the disease and made it difficult to study and control it. In addition, it reduced the effectiveness of the Community regulations, subjecting consumers to a risk that could have been avoided. The failure to apply the rules on branding, registration and control raises doubts as to the validity of any selective cull programme of the kind envisaged at the Florence summit.
The fact that the UK did not comply with this legislation puts it in breach of Article 5 of the Treaty. It is also to be regretted that the Commission did not use the means of redress provided for in the Treaty, in particular Article 169 thereof, in order to ensure the actual implementation of Community legislation.
9. It failed to implement the provisions of Directive 89/662 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market. According to this directive, the country of origin (the UK, in respect of its exports) is obliged to ensure strict compliance with the conditions of health policy and inspection for all animal products leaving its territory for the Community market. The same directive sets out specific obligations in case of epidemics, including the submission to the Commission of a programme including the controls to be carried out.
One can only be surprised by Mr Packer's declaration that his government should be exempted from blame, on the grounds that there are no proofs of non-compliance: if no checks are carried out, contraventions are very difficult to prove.
The fact that the UK did not comply with this legislation puts it in breach of Article 5 of the Treaty. It is also to be regretted that the Commission did not use the means of redress provided for in the Treaty, in particular Article 169 thereof, in order to ensure the actual implementation of Community legislation.
10. It took a blocking attitude within the Community institutions, with the aim of pressing the Commission and Council to lift or ease the embargo. Clear evidence of the explicit threat of political repercussions should the export ban on gelatin not be lifted is provided by the letter of 3 May 1996 from the British Prime Minister to the President of the Commission and from the reply of 8 May 1996 from Mr Santer (Annex 3, part B). Mr Major's letter to Mr Santer specifically urges the Commission to lift the embargo on gelatin, tallow and semen, calling on the Commission to submit a proposal to the Council to this effect. At one point the letter says: 'May I therefore underline the imperative need for the ban on gelatin, tallow and semen to be fully lifted and the stage clearly set for further rapid relaxation and a lifting of the whole ban on a speedy timetable. The first requirement for this is a proposal from the Commission. I hope very much that you will ensure that such a proposal is put forward for next week's meeting, as Franz Fischler told us he intended. We will put our full weight into persuading other Member States to support it'.
President Santer told the Committee in his hearing before it that he regarded the attitude of the British Government as a form of blackmail, amounting to an abuse of the rights and obligations of a Member State as laid down in Article 5 of the EC Treaty.
The approach taken by the Commission in response to UK pressure is clear from the minutes of the Commissioners' meeting of 5 June 1996 (Annex 5), at which Mr Fischler stated his intention to adopt the decision on the partial lifting of the embargo: the matter should be viewed in relation to what has come to be seen as the UK's abuse of its rights and blackmailing attitude towards the Community institutions, contrary to the obligations of each Member State as laid down in Article 5 of the EC Treaty. It is stated in the minutes concerned that the Commission asked Mr Santer to write to Mr Major to inform him of its intentions and call on him to review his decision concerning non-cooperation in the EU's decision- making process.
The outcome of the pressure brought to bear on the Commission and the Council by the UK, in that the UK was able to secure at the last moment the support of delegations which had previously been strongly opposed to a partial lifting of the ban, was the adoption by the Commission of its decision on the partial lifting of the ban. This turn of events was condemned by a number of Members during the debate with Commissioner Fischler in Parliament on 6 June 1996.
It should be remarked that the outrage caused by the embargo is in marked contrast to the UK’s muted response to earlier bans on British beef by the United States and other countries including Australia, Canada and even the UK's own Crown Colony of Hong Kong.
11. It did not display sufficient zeal in monitoring the maintenance of the embargo on meat and by-products. This is clear from Mr Fischler's letter of 10 September 1996 to the UK Minister of Agriculture and Mr Hogg's reply of 25 October 1996 (Annex 6). Mr Fischler's letter sets out the Commission's concerns in relation to the inspection mission carried out in the UK from 22 to 26 July 1996, when a visit to the port of Dover revealed the non-existence of the checks on shipments of beef products to the Member States required by Decision 96/239/EEC.
Similar instances of negligence by the UK had occurred earlier. The British Government, the principal victim but also bearing the bulk of the responsibility for the damage caused by this epidemic, must admit that it was negligent in some obvious areas; after underestimating the risks of BSE for years, having fought for the lifting of the embargo on gelatin for political reasons (Annex 3, part B), and yet not content with this lax approach, the British Government did not comply with the prohibitions on meal issued in 1989 and between 1990 and 1994, since beef and veal under prohibition and derived products were subject to inadequate inspections.
12. It did not abide by the timetable reached at the Florence summit: the selective culling programme was suspended, and no alternative proposal was formally put forward. The Florence agreements provide for the possibility of modifying the culling programme in the light of new scientific data; however, whatever the circumstances, a new programme substituting the old one has to be submitted and approved by the Commission and the Standing Veterinary Committee.
According to the Commission's replies of September 1996, the selective culling programme had still to be approved by the British Parliament. The programme was finally acknowledged as necessary and practicable at the end of 1996 and is now in progress. It was, then, not until 16 December 1996 that the British Government decided to carry out the culling programme agreed in Florence. At all events, there is still a procedural problem, insofar as British actions in this field should be agreed jointly with the EU, not carried out unilaterally: they should accordingly be approved by the Standing Veterinary Committee and the Commission, if the embargo is to be lifted at the earliest opportunity.
The fact that the UK did not fully comply with the undertakings it gave at the Florence summit for a period of six months put it in breach of Article 5 of the Treaty.
13. The refusal by the UK Minister of Agriculture, Mr Hogg, to give evidence to the Committee of Inquiry represents a breach by the British Government of the Member States' obligations under Article 3(2) of the Interinstitutional Decision of 19 April 1995). This is clear from his letters to the Committee dated 25 September 1996 and 10 October 1996 (Annex 7). According to the report drawn up for the Committee by Parliament's Legal Service on 8 October 1996 (Annex 8), 'a Permanent Secretary' attached to a British ministry could not be considered in legal terms to be a 'member of the government' within the meaning of Article 3(2) of the above- mentioned joint decision of the European Parliament, the Council and the Commission on the detailed provisions governing the exercise of the European Parliament's right of inquiry.
The unwillingness of the British Government to release documents and thereby help to clarify where responsibility for the BSE crisis lies severely hampered the work of the Committee of Inquiry. Moreover, the unwillingness of the UK Minister of Agriculture to appear before the Committee displays a blatant lack of interest in defending the interests of UK farmers.
14. All in all, since 1988 the UK authorities have introduced a considerable amount of legislation covering the various aspects of protection against possible BSE risks. The problem, therefore, lies not in any lack of appropriate legislative measures, but in the attitude of the government, which has failed to ensure the proper application of those measures and has not carried out the necessary checks. In addition, doubtless under pressure from the meat industry, the UK Government has, in its turn, exerted pressure on the Commission's veterinary services with the objective of keeping the matter within the national orbit, thus avoiding Community inspections and preventing publicization of the extent of the epidemic, since this would have provoked unilateral action by some Member States on public health grounds.
To sum up, the attitude of successive British governments may often be interpreted as a refusal to 'play the game' of the proper and transparent cooperation which must govern relations between the Member States of the European Union, even beyond the terms of the Treaty.
Finally, the Committee recognizes that there are regions of the UK that have low incidence of BSE, and have had strict monitoring and traceability of animals.
3. DETERMINATION AND ATTRIBUTION OF RESPONSIBILITIES AS BETWEEN THE COUNCIL AND THE COMMISSION
The determination and attribution of responsibility as between the Community institutions, namely the Council and the Commission, is an extremely complex question, for a number of reasons:
1. One reason is the nature of the problem itself. It was initially thought that BSE was a variant of scrapie which had infected cows instead of sheep. On the basis of the parallel with scrapie - an illness which was well-known and considered harmless to humans - it was supposed that BSE was an animal health matter alone.
However, once it began to look increasingly certain that BSE was a phenomenon different from scrapie, which could, in addition, jump the species barrier (having also been detected in cats), the matter took on a new dimension: it was no longer merely a veterinary and animal health problem, and the protection of consumer health became the first priority.
2. One must also bear in mind the decision-making system on veterinary matters and the respective roles of the Scientific Veterinary Committee and the Standing Veterinary Committee.
As a rule, the Commission bases its legislative proposals on the opinions of the Scientific Veterinary Committee, whose members are appointed by the Commission on the basis of nominations by the Member States. This committee acts as a consultative organ of the Commission.
A Commission proposal drawn up on the basis of recommendations by the Scientific Veterinary Committee is then forwarded for adoption to the Standing Veterinary Committee, which operates as a regulatory committee of the 'safety-net' (contre-filet') type - i.e. the Commission proposal is adopted provided it obtains the necessary majority. If that majority is not obtained, the Commission has to take the matter to the Council. It may happen that a sufficient majority for rejecting the Commission proposal is not reached in Council: at this point, the Commission is empowered to adopt the proposal under its own responsibility, in the absence of a decision from the Council that it should be withdrawn. This was the adoption procedure which applied to Commission Decision 96/362 lifting the embargo on semen, tallow and gelatin.
It follows that the responsibilities must be seen, in general terms, as being shared, on a non-absolute basis, between the Council, the Commission, the Standing Veterinary Committee and the Scientific Veterinary Committee. The complexity of the commitology system and the lack of transparency of the procedures inherent therein make it even more difficult to apportion responsibilities, be it with respect to the institutions or to the committees, and enables one institution to shift political and administrative responsibilities on to another.
The Standing Veterinary Committee enjoys by delegation powers which are the preserve of the Council. Nevertheless, the Commission convenes the committee and draws up its agendas. Provision is made at the Commission for posts in Unit B.II.2 for officials to act as the secretariat of the Standing Veterinary Committee with regard to animal health matters and the Scientific Veterinary Committee with regard to public health matters. In 1995 these posts had not yet been filled. It is known from the testimony of Mrs Amendrup that the Standing Veterinary Committee was subject to political pressures and was only partially aware of the information coming out of the Scientific Veterinary Committee.
Although the powers of the Standing Veterinary Committee were delegated by the Council, it is the Commission that exerts control over it. However, the committee's work is based on the opinions of the Scientific Veterinary Committee, and it is clear that the UK was able to control this latter committee through the convening of the meetings, the agendas and attendance, and the drafting of minutes.
Ceding control of the committee to another body and failing to monitor it could be seen as mismanagement on the part of the Council. In any case, the greatest share of responsibility must lie with those bodies which sought to exercise control over these procedures.
3. Another factor is the operation of the principle of subsidiarity in public health matters. On this subject, it is essential to distinguish between the situations prevailing before and after the entry into force of the Treaty of Maastricht. Since 1 November 1993, competence in the field of public health protection has been a joint matter for the Union and the Member States, pursuant to Article 129 of the TEU, but the EU has not to date been able to introduce a Community public health policy.
Nonetheless, as is pointed out in the report by Parliament's Legal Service dated 25 November 1996 (Annex 9), legislation already existed before Maastricht obliging the Commission to take account of health protection implications in the context of the proper functioning of the COMs under the CAP.
The Commission's powers in the field of public health protection have recently been confirmed by the Court of Justice (see: ECJ decision of 12 July 1996 - Case C-180/96; decision of the President of the Court of First Instance of 13 July 1996 - Case T- 76/96).
It is unacceptable, therefore, that the subsidiarity principle should be used as a pretext for shifting from one institution to another responsibility for errors such as the failure on the part of the Council or Commission to implement or monitor Community law. However, this happened repeatedly during the work of the Committee of Inquiry.
4. Public health protection competences are compartmentalized between a number of different Commission departments (as regards possible food product risks). The BSE affair has been handled variously by: DG VI (Agriculture), DG III (ex- Internal Market, now Industry), the Consumer Protection Service (currently DG XXIV), and the Directorate for Health and Safety (DG V).
This compartmentalization has hampered the coordination and efficiency of the services concerned, has facilitated the shifting of responsibility for maladministration between the various services of the Commission, and points up the lack of an integrated approach, a phenomenon exacerbated by DG VI's arrogating primary management of the BSE issue to itself. A coordinated policy would have been possible were there a body similar to the Food and Drug Administration in the US or the health administrations in some Member States, or even had a European Health Agency been created.
Nevertheless, it must be remembered that there were staff in all the directorates and services mentioned who should have dealt with the question and should have sought to prevent and eliminate any risks to animal and human health. Lack of coordination and malfunctioning are no excuse for the shortcomings in management and dissemination of information for which responsibility lies at individual and administrative level rather than at institutional level.
4. RESPONSIBILITIES OF THE COUNCIL
Given the Council's character as a representative organ of the Member States, the responsibilities that can be attributed to it at institutional level should be examined. There are some Member States to which individual responsibilities can be attributed. This is true of the United Kingdom, which, in view of its importance, has been dealt with in a separate chapter. Other Member States, such as France and Portugal, or Community institutions have set up committees of inquiry. These will be responsible for determining where responsibility lies in the states concerned. This does not mean that there were not other Member States responsible to a lesser or greater extent for the management of the crisis, but it is appropriate that such responsibility should be determined by the relevant parliamentary bodies.
In relation to the activities of the Council and the Standing Veterinary Committee, we have been helped by the testimonies of Mr Yates, the Irish Minister of Agriculture, in his capacity as President-in-Office of the Agriculture Council, and Mrs Amendrup, assistant director of the Danish national veterinary services and member of the Standing Veterinary Committee.
Mr Yates endeavoured to define the sphere of competence of the Council, pointing out that legislative powers in the veterinary field and, even more so, in that of public health are shared between the Commission, the Council and the Member State governments. However, he argued, the Council was responsible for a specific activity of political guidance and impetus, and was also obliged to cooperate closely with the Commission. He stressed that the Council was not to be held responsible in a number of important areas, stating: '... dissemination of information about BSE, publication of research findings about BSE, controls on the production and export of recycled animal protein and controls on the temporary ban on exports of cattle, beef and meat-based productions do not fall within the Council's sphere of responsibility, as they come under the powers of the Commission or the Member States'.
This committee, however, takes the view that the Council cannot evade its responsibility in this way. In view of the shortcomings, as set out in this report, in the work of the Standing Veterinary Committee, which also acts on behalf of the Council through the representatives of the Member States, the Council shares responsibility for the inaction and delays in connection with the control of the epidemic in the UK, the wrong decisions and poor coordination as regards health protection, and the disinformation supplied to the public.
Despite clear evidence of the failure to comply with the export bans and control measures which it itself had imposed with a view to protecting public health, the Council took no effective steps to enforce those bans and measures and failed to make representations to the Commission to ensure that they were complied with. With a view to the completion of the internal market, the Council also gave the economic interests of the meat industry political priority over health protection. It was particularly culpable in giving in to the British efforts at political blackmail between 1995 and 1996.
Prior to the March 1996 crisis, the Agriculture Council had specifically examined BSE at its meetings of 6 and 7 June 1990 and 18 and 19 July 1994 (see Annex 10). Both meetings were called to deal with the threats of unilateral measures by certain delegations (France and Germany) which were calling for tougher guarantees on meat imports from the UK.
In addition, at several other Council meetings, according to the minutes supplied to us, certain delegations expressed the following requests:
- BSE should be included on the agenda, for assessment of the most recent scientific data (German delegation to the Council, 25 and 26 April 1994, 30 and 31 May 1994 and 20, 21, 22, 23 and 24 June 1994) (Annex 11);
- the Council of Health Ministers should be asked to participate in possible public health protection measures (German delegation to the Council, 28 and 29 March 1994) (Annex 12);
- there should be reinforced controls on feedingstuffs given to ruminants and on the use of potentially dangerous tissue in the manufacture of cosmetics and medicines (French delegation to the Council, 28 and 29 March 1994 and 25 and 26 April 1994) (Annexes 11 and 12);
- action should be taken on the request of the French delegation, forwarded to the Council of Health Ministers, for extension to all the Member States of France's unilateral measures banning the use of at- risk bovine tissue in the manufacture of cosmetics, medicines and baby-foods (meeting of 30 and 31 May 1994) (Annex 11).
Following the statement by the UK Government of 20 March 1996 concerning new scientific data, the Agriculture Council held two extraordinary meetings, on 1-3 April and 29 and 30 April 1996 (Annex 13). At these meetings, it recognized the seriousness of the situation and urged the adoption of a number of urgent measures for health protection and support of the beef market. The subject was discussed again on numerous occasions throughout 1996, with the Council awaiting the statements of the UK delegation concerning the evolution of the situation, with a view to resolving the crisis.
On 30 March 1994 the Council of Health Ministers met to discuss the proposal by the German delegation concerning discussion of the possible risks of transmission of BSE to humans. The German delegation insisted on making a separate statement, in which it urged the adoption of further protection measures (Annex 14). Over the rest of 1994 after March the Council of Health Ministers discussed the subject several more times.
One may cite, as visible proof of the attention which has been paid to the subject in various policy areas, the discussions in the Council of Research Ministers, at its meeting of 7 October 1996, as well as the statements by Commissioner Cresson included in the minutes of the Commissioners' meeting of 9 October 1996 (Mrs Cresson reported on the disappointing outcome of the discussions in the Council of Research Ministers on this subject, and drew attention to the inconsistent position of the ministers, who had called for a greater research effort but had refused to provide the necessary resources) (Annexes 15 and 16). Following this Council meeting, the Commission submitted a communication to the Council and Parliament (COM(96)0582) allocating an additional ECU 50 m for BSE research. The subject was to be re-examined at the Research Council meeting of 5 December 1996.
The following statements may accordingly be made:
1. Responsibility for the problem is divided between the authorities concerned with agriculture and animal health and those concerned with public health protection. This applies at both EU and national level, with the division of responsibilities varying from one Member State to another. The situation is aggravated by the effects of the principle of subsidiarity, which has operated in this field, following the entry into force of the TEU, since November 1993, and by the fragile state of progress in the exercise of Community powers in the public health field.
2. With the exception of the statements by certain delegations since March 1994, as referred to above, the Agriculture Council did not deal with BSE at all between June 1990 and its meeting of 18 and 19 July 1994, at which the subject returned to the agenda, in response to the threats to the marketing of British meat in the wake of the complaints of the German government demanding tougher guarantees for the extraction of nerve and lymph tissue from deboned meat and a longer non-contamination period for herds before the export of carcasses. At this meeting, the Council endorsed the Commission's proposals.
3. The absence of a debate in Council, either to examine the state of affairs or to verify compliance with the June 1990 conclusions, in view of their importance, may be considered to imply neglect by omission on the Council's part; or it may be interpreted as an abandonment of its duties by the institution which led it to delegate its responsibility to the Standing Veterinary Committee. The 1990 conclusions mandated the Commission to adopted a number of measures of control and monitor the disease, to examine the risks arising from the manufacture of feedingstuffs for ruminants containing animal proteins, and to launch a wide-ranging programme of research. In addition, the Council had taken note of the undertakings of the UK delegation concerning the inspection of slaughterhouses and the identification of cattle. It is surely surprising that the Council should at no moment have acted to ascertain the degree of compliance with these conclusions, and that it should not have asked to be informed of the result of any inspections carried out by the Commission or the national authorities.
4. As is clear from the testimony of Mrs Amendrup and the documents in our possession, the question of the Council's responsibility should also be considered in relation to the actions of the Standing Veterinary Committee. This committee is made up of representatives of the Member States (the heads of the national veterinary services), and acts, in a certain sense, by delegation of the Council. According to Mrs Amendrup, a number of technical debates took place on the committee, based on the evaluation of the documents supplied by the Scientific Veterinary Committee. Once a subject had become of significant political interest, it was forwarded to the Council. The Standing Veterinary Committee should, it may be argued, have, on certain occasions, called for the debate on the subject to be transferred to the Council, in view of its major political significance, going well beyond purely technical considerations.
5. It is extremely difficult to evaluate the actions of the Standing Veterinary Committee: as it seems, no minutes are kept of its meetings, other than brief summaries, which have not been forwarded to the Committee of Inquiry, despite repeated requests to this effect by its chairman. The sole available information consists of the minutes of the meetings drawn up by the Danish delegation and forwarded by Mrs Amendrup.
6. The Agriculture Council's silence between June 1990 and July 1994, the period when the number of cases of BSE was reaching its peak in the UK, is an indictment of its inability or, at least, of its lack of determination to manage this issue. Since June 1990, when the Commission proposal to prohibit exports of meat from the UK was rejected, the Agriculture Council has frequently taken positions that were less stringent than the stricter precautionary proposals submitted by the Commission. The most recent confirmation of this is the Agriculture Council meeting of 17 December 1996, when the Commission proposal for a total ban on the use of at-risk bovine, ovine and caprine tissue carrying scrapie or BSE was rejected.
7. It seems inconsistent that, although the Council noted, on 6 and 7 June 1990, British undertakings to carry out inspections in slaughterhouses, Community veterinary inspectors were never invited to publish the results of the inspections they carried out in the UK or their conclusions, either before the Council or before the Standing Veterinary Committee. The latter, in particular, therefore enabled statutory measures on the management of BSE to be adopted while not in full knowledge of the facts.
8. The view that the Council has tried to leave the responsibility in the hands of the Commission is confirmed by Mrs Amendrup's statement that in practice, other than in exceptional circumstances, the Council only considers veterinary subjects, whether affecting animal health or public health, when their political interest is such as to exceed the 'technical' competences of the Standing Veterinary Committee. The fact that this committee, in its turn, bases its work on the opinions of the Scientific Veterinary Committee, which is essentially a consultative committee of the Commission, and on which, as far as BSE is concerned, the British influence has been considerable, points up the ineffectiveness of the existing system of committees with respect to the protection of public and consumer health
9. Another aspect which we have been able to establish, on the basis of information provided by Parliament's Committee on Budgets, is the Council's position with regard to the budgetary procedure: the tendency has been to reduce the sums initially earmarked by the Commission in the preliminary draft budget, for the headings relating to programmes for the eradication of diseases and measures concerning veterinary and phytosanitary inspections and controls. This is in contradiction to the Commission's pledges made in response to Parliament's positions in the various debates over the last few financial years.
10. With respect to the compromise reached at the Florence summit regarding the carrying out of a selective cull in the UK, there must be serious doubts as to the efficiency of such a programme, bearing in mind the failure to comply with legislation on the identification, branding and registration of the movements of cattle in the UK.
I.4. RESPONSIBILITIES OF THE COMMISSION
Since the beginning of the European Community, no debate has affected the daily life of individuals as much as this one. We must not underestimate the damage that the BSE crisis is causing among the general public, in particular the questioning of the food chain; and the eventual number of deaths remains an unknown quantity.
From the examination of the testimonies received by the present committee, the Commission's written replies and the documentation supplied to us, we may state that, in general, the Commission's actions may be characterized as follows:
1. It has given priority to the management of the market, as opposed to the possible human health risks existing in the light of the numerous scientific uncertainties concerning the possible effects of BSE on humans, and has neglected the principle of preventive action. There is a considerable body of material confirming this attitude. The most important evidence includes the following:
- the attitude of the then Commissioner, Mr MacSharry, in the days leading up to the extraordinary Council of 6 and 7 June 1990, when, instead of instigating the necessary measures at European level as he should have done, he confined himself to making public threats to take out infringement proceedings against Member States introducing unilateral measures against British beef exports pursuant to Article 36 of the Treaty, or even to take such Member States to the Court of Justice (as confirmed in internal Commission notes - see Annex 17). In addition, Commissioner Van Miert, in his testimony, has confirmed his disagreement with Mr MacSharry on a number of points during the preparation of the extraordinary Council; in this connection, it should be emphasised that, during the same period, no similar threat was brandished, and no attempt was made to commence infringement proceedings, against the UK for failure to comply with its obligations under the Treaty;
- the alarming attitude of Mr MacSharry at the extraordinary Council, at which, as stated in the note of 28 October 1996 from Mr Berlingieri to Mr Hoelgaard (Annex 18), the then Commissioner received from Mr Mansito, Assistant Director-General for Agriculture, a proposal drawn up by the veterinary services of DG VI (Annex 19) to the effect that, in view of the existing difficulties relating to animal identification and checks, exports of British beef should be permitted only in deboned form. The third paragraph of Mr Berlingieri's note states: 'This approach has been presented to the Commissioner by Mr. Mansito, yourself and myself in the Council on 7 June 1990. The reaction has been quite rough and we have not got any longer the possibility of discussing it because we had been excluded from the meeting room ';
- in addition, the actions of the former Agriculture Commissioner, Mr MacSharry, in connection with the Commission's suspension of all BSE-related checks in the UK between 1990 and 1994. The fact that Mr MacSharry, in his hearing before the Committee of Inquiry on 19 November 1996, failed to answer repeated and quite explicit questions leads the Committee to the conclusion that the Commissioner responsible, if he did not order this measure, at least turned a blind eye to it;
- the instructions issued on 18 September 1990 by Mr MacSharry to Mr Legras, Director-General for Agriculture, which have been publicized in the press in the form of an annotation by Mr Legras: 'BSE: Stop any meeting' (Annex 20). Mr Legras states in his testimony of 1 October 1996 that this instruction should be interpreted as a manifestation of bad temper on the part of Mr MacSharry. However, in view of the Commission's management approach to the issue and the former Commissioner's admitted interest in averting disturbances of the beef market, this supposed interpretation is scarcely credible; Mr MacSharry failed to answer a question concerning these actions when giving evidence to the committee. It seems significant that at a seminar on 12 September 1990 scientists re-opened the discussion on the correctness of the Council decision of 6 and 7 June 1990 and, with the exception of the British scientists, proposed that only deboned meat should be exported (Annex 39);
- the exchange of correspondence between Mr Legras and Mr Perissich, Director-General of DG III, on baby food (Annex 21).
2. It has tried to follow a policy of downplaying the problem, despite a wide variety of discussions in scientific bodies. It had an interest in minimizing or not re-opening public debate in order to avoid disrupting the beef market. In this connection, the background note of 12 October 1990 (Annex 22) by Mr Castille, then an official of the Consumer Policy service (now DG XXIV), on the statements by representatives of DG VI at the meeting of the Standing Veterinary Committee of 9 October 1990 constitutes evidence of the Commission's attitude to the matter. It may be deduced from Mr Legras' annotation, as reproduced in Annex 20 and quoted in the third indent of the preceding paragraph, that the representative of DG VI was acting under instructions from his superiors. No proofs exist, however, that the statements in question were made in the terms of Mr Castille's note, and the Commission representatives, in their testimonies to the present committee, offer the following qualifications:
- there was no need to discuss BSE at every meeting of the Standing Veterinary Committee, since, given that it was a notifiable illness, the Member States were automatically kept informed;
- the Commission wanted to be informed of the results of the work of the British scientists before its publication, so as to be able to make its evaluation immediately, since this work could contain new elements tending to favour changes in the existing legislation.
At all events, according to Mr Legras' testimony, the note has never been officially contested by DG VI. That the Commission's handling of the BSE affair has been lacking in transparency is obvious from the contradictions existing in the ex-Commissioners' and DG VI officials' testimonies and in numerous pieces of written evidence which have appeared in the press or have been supplied by the Commission to the present committee.
Although the Commission denies that there was a policy of disinformation between 1990 and 1994, two important questions arise. The absence of scientific findings and the suspension of BSE veterinary inspection missions to the UK show that a policy of concealment was being pursued by closing off the two most important sources of information. In addition, there were chronic shortcomings at this time in the flows of information between the Community institutions and in the information provided to the Member States' veterinary authorities. These two factors helped reduce the efficiency of the commitology. In this way, the disinformation policy not only affected public opinion but also restricted the Community's capacity to legislate.
3. There has been an arrogation to itself of the BSE issue by DG VI and a lack of cooperation and coordination among all the departments with responsibility for food products (DG VI - agriculture; DG III - internal market/industry; DG V - health; DG XXIV - consumer protection). This is confirmed by the testimonies of Commissioner Van Miert and Mr Perissich, the former Director of DG III.
Mr Van Miert says there was a lack of coordination between his office and that of the then Commissioner MacSharry during the preparation of the extraordinary Agriculture Council of 6 and 7 June 1990.
Mr Perissich informed us of the initial difficulties which he encountered in DG VI in relation to his initiatives on baby food, which, however, later bore fruit in cooperation and joint activity on the part of the Scientific Committee for Food (DG III) and the Scientific Veterinary Committee (DG VI).
On the basis of the testimonies of Mr Hoelgaard and Mr Steichen, it must be assumed, however, that despite clear efforts by France to protect the health of infants the competent services failed to display the requisite level of vigilance, and the necessary political decisions were not taken. Mr Hoelgaard and Mr Steichen have repeatedly denied all knowledge of the measures concerning baby food.
4. DG V failed to act to prevent the risks to human health arising from BSE
In a letter of 22 March 1994 the head of the public health division in DG V, Mr Gouvras (GR), advised his superior, Mr Hunter (UK), Director, to give in to the pressure from the German Council delegation and immediately launch an investigation into the link between BSE and new forms of Creutzfeldt-Jakob disease. At that time it was known that BSE could be transmitted to cats and pigs. Mr Hunter rejected this proposal, stating that no such investigation could be started pending the results of a planned programme on research into unusual diseases. As from 1993 the Commission, and DG V in particular, was responsible for health protection in the Union. The testimony given by Mr Hunter to the committee of inquiry demonstrates that DG V was not adequately prepared to carry out its tasks under the Maastricht Treaty and was not therefore in a position fully to assume its responsibility. In addition, although it received sufficient evidence pointing to BSE-related risks to humans, DG V failed to take the steps needed to highlight the importance of health protection in the Community, although this is one of its tasks. It thwarted research into links between CJD and BSE at a time when the risks to humans were already largely foreseeable.
5. Too much weight was placed on the role of the Scientific Veterinary Committee. This is clear from the testimonies of the senior DG VI officials, especially that of Mr Legras, Director-General for Agriculture, who has repeatedly stated that the Commission could not go beyond the recommendations of the Scientific Veterinary Committee since, should it try to do so, it would not have the support of the Member States on the Standing Veterinary Committee. It may be deduced from this that the Commission was unwilling to make a further political effort to take public health protection measures going beyond the recommendations of the Scientific Veterinary Committee: this is particularly serious in view of the strong pressures exerted by the British members of that committee. This illustrates perfectly the Commission's minimalist approach to the management of the BSE issue, since it has no legal obligation to comply with recommendations made by the Scientific Veterinary Committee. Furthermore, political imperatives and considerations should not be the main objective of the Commission's technical services when it is drawing up its proposals for submission to the Council.
Further, there are no clear channels of communication between the Scientific Veterinary Committee and the Standing Veterinary Committee. This means that there are no guarantees that a scientific position of the Scientific Veterinary Committee will necessarily be adequately represented on the Standing Veterinary Committee; responsibility for ensuring the flow of information appears to lie with the Commission. In this connection, it is surprising that the Commission does not possess detailed minutes of the meetings of the Standing Veterinary Committee; if there are no minutes of the decisions and debates, it is scarcely possible to carry out effective monitoring of the policy lines expressed by the delegations on the Standing Veterinary Committee.
6. Criticisms may be made of the workings of the Scientific Veterinary Committee. This committee consists of experts appointed by the Commission from a list of names put forward by the Member States. In principle, the criteria for appointment have to be based on professional qualifications, and there is therefore no criterion of nationality balance in its membership.
In the BSE affair there has been, at the least, a lack of transparency. This should appear clearer if one recalls that BSE has been the subject of an ongoing analysis by the BSE Subgroup of the Scientific Veterinary Committee. This subgroup has, almost throughout, been chaired by a UK national (first Mr Plowright and then Mr Bradley), and has included a substantial number of British scientists. Mr Bradley, who from 1969 to 1991 was head of the UK's Central Veterinary Laboratory and was subsequently an adviser to the British Ministry of Agriculture, has acted as rapporteur on BSE at the full meetings of the Scientific Veterinary Committee; it emerges, furthermore, from some of the minutes of the committee meetings that a number of members have suggested that Mr Bradley may have withheld information (see minutes of the meeting of the public health section of the Scientific Veterinary Committee, 11 May 1995 - Annex 23).
Mr Marchant, a temporary Commission official entrusted by DG VI with the day-to-day management of the BSE affair, who was formerly an official of the British Ministry of Agriculture, has been responsible for drawing up the minutes and providing Commission administrative support for the BSE Subgroup, in close cooperation with Mr Bradley. The letter of 31 January 1992 in which Mr Bradley provides Mr Marchant with instructions, which is in the possession of the present committee (Annex 24), clearly reveals the nature of the professional relationship between the two. It is a typical example of correspondence between two officials (one from the Commission, one from a national government), rather than an instance of cooperation between an independent scientist and a Community institution.
This lack of transparency is also illustrated by the fact that no Community veterinary inspector was ever invited to submit the results and conclusions of his inspections to the UK.
In addition, the arrangements practised by the Commission for reimbursing expenses incurred by participants in the meetings are such that, as is recognized by Mr Pocchiari in his testimony, scientists from certain Member States may be unable to attend the meetings on a regular basis for cash-flow reasons, thus only being able to monitor matters at a distance.
7. The Commission has no provision for consulting independent, multidisciplinary advisory committees; had this been the case, it would have been easier to make a correct assessment of the evolution of the epidemic and the possible public health risks.
The chairmen of the animal health and public health sections of the Scientific Veterinary Committee, Mr Meurier and Mr Del Real, have expressed strong reactions in a communication to the present committee, arguing that the collaborators and the work of their committee should be treated with respect and trust.
However, the recent creation, in the wake of the March 1996 crisis, of the multidisciplinary 'Weismann' and 'Interservices' committees (on the respective initiatives of Commissioners Fischler and Bonino) may be interpreted as a response to the need to fill a gap not covered by the previously-existing system of committees.
8. It has not encouraged the expression of the views of those scientists who, on the basis of the most recent research findings available at the relevant times, drew conclusions which diverged from the views held by the majority of the members present in the Scientific Veterinary Committee, and at those moments expressed minority opinions. In principle, the opinions of the Scientific Veterinary Committee or the BSE Subgroup are adopted by consensus: divergent opinions are not recorded. The differences of opinion between Professor Somogyi, the Deputy Director-General, Mr Mansito and the Director-General, Mr Legras, must be interpreted in this way. It is nonetheless also necessary to consider the testimony and documentation provided by Mr Legras in reply to Mr Somogyi's charges. The third paragraph of the report of the meeting of the Scientific Veterinary Committee (animal health and public health sections) of 3 November 1994 states that Mr Somogyi's dissenting view was communicated through the Commission representative, and that his letter, containing comments addressed to Mr Legras, was annexed to the minutes of the meeting (see Annex 25).
At the instigation of the Deputy Director-General, Mr Mansito (letter of 20 September 1994), on 21 September 1994 the Director-General of DG VI, Mr Legras, called on the German Ministry of Health to ensure that German scientists whose assessment of the risks posed to humans by BSE diverged from the 'consensus view' reached in the Scientific Veterinary Committee did not express that opinion in public. Mr Legras wrote as follows (wording suggested by Mr Mansito): 'I find it quite unacceptable that officials of a national government should seek to undermine Community law in this way, particularly on such a sensitive subject. The persons concerned have had their opportunity in the Community committees to debate their opinions. These have been rejected by the vast majority of EU experts. I would ask you, therefore, to ensure that this debate is not continued, particularly in an international forum'.
Minority opinions were often only incorporated into the minutes as notes; in the case of the meeting of 19 October 1994, they were only attached as an annex to the minutes of the meeting of 3 November 1994 following a protest by Professor Somogyi and a vote.
In a letter to Mrs Petes (Federal Ministry of Health, Bonn), Mr Legras, Director-General, protested at the fact that, at a joint meeting of the WHO and the IOE on 1 and 2 September 1994, German experts had put forward the view that meat from animals from BSE-affected herds born before 1 January 1991 should not be released for human consumption. Mr Legras accused those experts of undermining Community law and called for steps to be taken to ensure that the debate did not continue (Annex 25). It must be pointed out that it is clear, on the basis of the testimony (Dr Merlin, WHO, Professor Somogyi, IOE minutes), that only the IOE Group produced recommendations, whereas the WHO Group did not achieve a consensus.
Another instance of the difficulties involved in registering the positions of the participants in the meetings of the Scientific Veterinary Committee is provided by the note of 28 November 1996 from Mrs Berge (of DG VI), which is in the possession of the present committee (Annex 26). This note states, inter alia: ' ... this is a consensus document and it is impossible to get the agreement on every point, since opinions are sometimes diverging'. The note from Dr Ahl (Annex 27) may be interpreted along similar lines.
9. It has not made efforts to adapt its staffing policy to the real needs arising from the establishment of the internal market.
This is clear from the note of 26 February 1991 from Commissioner MacSharry to his fellow Commissioners, the fourth paragraph of which describes the staffing situation in the inspection departments as 'particularly fragile' (Annex 28). The Commissioners did not act on Mr MacSharry's requests.
However, in the documents relating to staff requirements in DG VI, and, in particular, in a report on the internal situation of the veterinary services which has been made available to the present committee, while reference is repeatedly made to the urgent need for more human resources for tasks arising from the internal market or relating to certain priority illnesses such as foot-and-mouth disease, we have not found any reference to the need for staff to improve the monitoring of BSE.
After hearing evidence from President Santer as well as Commission officials, the Committee remains unconvinced of the seriousness of attempts by senior officials of DG VI and by the Commissioner to press this point as far as possible.
Further specific aspects in which one may speak of negligence or responsibility on the part of the Commission in relation to its management of the BSE affair include the following:
10. It did not carry out inspections between June 1990 and May 1994.
Initially, the Commission justified this omission on the grounds that it lacked the necessary staff. However, as the work of the present Committee of Inquiry advanced, the Commission admitted that it had received political pressure from the UK Government not to include BSE checks in the general slaughterhouse inspections carried out over the period (according to Commission documents, there were 37 general inspections of the marketing conditions for fresh meat).
In early 1990, according to a note of 31 January 1990 from Inspector Golden to Mr Bourjac, Head of Veterinary Inspection, Mr Mansito gave instructions for BSE-related inspections to be carried out in the UK in March of that year (Annex 29). It appears from Mr Hoelgaard's note of 6 March 1990 (Annex 30) that, according to the last inspection mission, carried out in early March, the situation in the UK was deemed satisfactory. The negative results of the June 1990 inspection were, for some reason that has not been established, not forwarded to the relevant higher authorities. All this justifies the expression of profound concern at the failure of high-ranking officials in DG VI to react to :
a) the negative results of the June 1990 inspection, on the one hand;
b) and the comments by the UK Chief Veterinary Officer that 'BSE was a political, not a technical issue' (Annex 32, both documents), on the other.
Mr Hoelgaard admitted (Annex 32) that, at a meeting of 29 June 1990 following an inspection mission, the UK authorities brought pressure to bear to have the inspections suspended. The fact that inspections were suspended and reports not passed on to the authorities is very serious; it would be even more serious if this was done in response to political pressures. The fact that these events coincided suggests that this was the case and, if so, the Commission should remedy its failure to exercise its powers correctly caused by its bowing to political pressure from the UK.
All this is worsened by the current situation in the UK. In addition, the investigations carried out by the management consultancy firm Cowi Consult into the veterinary services of the Member States revealed, in the UK in November 1992, shortcomings which are highly significant in connection with the combating of BSE (Annex 40).
11. There has been a lack of coordination between the veterinary legislation unit and the inspection unit. In practice, this has meant either no follow-up at all or no satisfactory follow-up to the inspection reports. After the June 1990 inspection, Mr Niederberger forwarded the report dated 3 August 1990 to Mr Bourjac, then Head of Veterinary Inspection, asking him to pass it on to the veterinary legislation unit (then under the responsibility of Mr Janssen), for 'information and possible action'. This note was sent only to Mr Janssen, Mr Berlingieri and Mr Marchant (Annex 31), and appears never to have got any higher up the hierarchy. More surprising is the fact that Mr Janssen himself declares in his testimony that he had seen the report for the first time only three weeks before his appearance before the present committee. This may be symptomatic of the internal workings of the Commission's veterinary services.
The failure to ensure adequate monitoring and assessment of the inspection reports is further pointed up in the notes sent to Mr Bourjac on 23 and 24 October 1996 by Mr Niederberger and Mr Kairis respectively, which, furthermore, confirm that pressure was exercised by the UK's Chief Veterinary Officer, Mr Meldrum (Annex 32). It should be pointed out that these inspectors were never invited to submit the results and conclusions of their inspections in the United Kingdom to the appropriate committees.
12. The Commission has failed to guarantee the proper functioning of veterinary controls within the internal market, thus breaching Directive 89/662, under which the Commission is empowered and obliged to carry out on-the-spot inspections to ensure the effectiveness of veterinary controls. Under Article 16 of this directive, the Commission has, in general terms, to monitor and oversee the national authorities' control programmes. The failure of the Commission to undertake initiatives in this field vis-à-vis the British Government could be interpreted as implying an unacceptable lack of vigilance ('culpa in vigilando') on its part and a deliberate resolve to leave management of this issue in the hands of the British, all the more so since, at that time, they were the only ones affected by the disease.
It is nonetheless true that the Commission has shown a lack of political nerve in its dealings with the UK, allowing itself to be intimidated by the pressure put on it by the British Chief Veterinary Officer, Mr Meldrum. This is confirmed by Mr Hoelgaard's testimonies and the notes from the two inspectors, Mr Niederberger and Mr Kairis, mentioned in the previous paragraph
13. Its endeavours to regulate the problem of meat-and-bone meal came too late and were ineffective and contradictory, in the following aspects:
- There were no controls over the conditions of manufacture and export of the products concerned applying to the UK as from 1989: the Commission claimed no legal basis existed. It must be stressed that the then Commissioner, Mr MacSharry, replied to the present committee that he had not asked the Commission's Legal Service to report on the possibility of obtaining a legal authorization which would have made legislation on the matter possible prior to the existence of the internal market. The document sent by Mr Hoelgaard to Mr Böge, chairman of this committee (Annex 33), of which we were only informed on 16 December 1996, contradicts Commissioner MacSharry's statements, and would have been of major significance if it had been supplied to us before his appearance before it. This may be seen as substantially indicative of the Commission's political responsibility in the context of its attitude to the investigatory work of the present committee.
On 13 February 1990, the Director-General of DG VI, Mr Legras, forwarded to Commissioner MacSharry the draft of a proposal for a Commission decision banning exports of British meat- and-bone meal, based on Directive 89/662/EEC and the need to prevent health risks in the other Member States (see the second recital of the proposal for a decision). On 26 February 1990, the Commission's Legal Service delivered a negative opinion on the subject of the Commission's legal power to adopt such a proposal for a decision, on the grounds that the deadline (i.e. 31 December 1991) for incorporation of Directive 89/662/EEC into Member State law was still in the future. Mr Legras returned to the attack on 30 March 1990, in a note to the Director-General of the Commission's Legal Service, in which he called on him to examine the matter in greater detail and suggested that the decision could be based on Article 9.4 of Directive 89/662, which, being a general safeguard clause, did not need to be incorporated into Member State law.
On this subject, as is also the case with most BSE-related action from June 1990 up to 1994, there exist a silence and a passivity which, given the findings unearthed by the present committee, cannot be considered accidental. It was only after six years that the Commission, in its decision of 26 March 1996 decreeing an embargo, finally acted to block exports of meat-and-bone meal from the UK. In the light of events, this is particularly grave: more timely action could arguably have stopped the spread of the epidemic in Europe (one may note the severe problems now existing in Switzerland).
- There was only a belated reaction as regards regulation, since until July 1994 there was no ban on the use of mammal proteins in feedingstuffs for ruminants (this had already been banned in the UK in 1989): according to the Commission, until this date the final results of the first phase of the study on the deactivation of TSE agents in animal meal manufacturing processes were not available.
- There was a delay in adopting an effective procedure for deactivating the BSE agent. Despite Parliament's recommendations in the Garcia report, in line with the views of numerous scientists who have studied the subject (see Mr Riedinger's testimony), and the warnings of the European Renderers' Association concerning cross- contamination risks which the manufacturing techniques used could not eliminate, it was only in July 1996 that the Commission adopted Decision 96/449/EEC, which will come into force on 1 April 1997 and authorizes a single method for processing animal and mammal waste so as to ensure inactivation of the BSE agent. In addition, until early 1996 the Commission was not in possession of the results of the second phase of the above-mentioned study on animal meal manufacturing processes. The consistent application and the monitoring of a single procedure for the inactivation of the BSE agent, not only as from 1 April 1997 but considerably earlier - Parliament had already called for the application of this procedure in 1993 in the Garcia report - would have substantially reduced the spread of BSE and would not have raised health doubts concerning the processing of animal waste to form meat-and-bone meal for use as feedingstuffs.
At all events, as is clear from Mr Riedinger's testimony, the Commission's authorization of alternative methods for treating animal waste (Decisions 92/562 and 94/382) has had the effect of watering down the effectiveness of the principles which should govern the implementation of Directive 90/667, which lays down the veterinary rules for the disposal and processing of animal waste, for its placing on the market and for the prevention of pathogens in feedingstuffs of animal or fish origin.
In addition, following intervention by the Association of European Meat Meal Manufacturers of 18 December 1989 and an ensuing minority vote by the German Meat Meal Industry Association, the original proposal for a regulation - COM(89)0509 of 17 October 1989 - was amended (Annex 41).
- There is no clear division of powers and responsibilities concerning labelling standards for meat-and-bone meal. The May 1990 inspection mission had already noted shortcomings in labelling practices and the need to correct them.
- The Commission has not been sufficiently active in the face of the continued administration of meat-and-bone meal to swine, animals which can develop BSE in experimental conditions, as was shown in 1990. On this point Community law is lagging behind British law, which now outlaws the administration of such meal to all farm animals. The note of 29 April 1994 (Annex 34) from Mr Mansito to the then Commissioner Mr Steichen drew attention to the desirability of banning the use of such meal for feeding swine. The subject had been discussed by the Scientific Veterinary Committee and the Standing Veterinary Committee, and the note referred to various statements by Mr Steichen, asking him for instructions with a view to a possible ban on administering meal of this type to swine. Mr Steichen, in his testimony of 26 November 1996, said that in June 1994 the Standing Veterinary Committee had rejected his proposal to outlaw the use of such meal in feedingstuffs for swine. The present committee is not aware of any subsequent action by the Commission on the matter.
14. The Commission did not act on the mandate given it by the Council on 6 and 7 June 1990 to carry out a wide-ranging programme of research. Its sole response was to approve research commitments to the sum of ECU 1 m - an amount well under what would have been required for a 'wide-ranging programme'. Following subsequent requests by its own veterinary services, the Commission replied, in a letter of 21 May 1991 signed by Mr Hennessey (Annex 35), the assistant head of the then Commissioner MacSharry's office, that no funds were available to finance a BSE eradication programme.
The Commission at no point until the outbreak of the crisis took responsibility for any large-scale research programme: its action on the matter was at all moments dominated by the notion of complementing the British research, and there was at no point any question of verificatory or confirmatory monitoring of the research carried out in the UK. This is confirmed by the note from Mr Hoelgaard to Mr Sevinate Pinto (ref. 90.12.52 - BM:nf; Annex 4), which states: 'Community action would therefore be designed to complement the UK research', and by the Commission's statement to Parliament at the sitting of 22 January 1993, namely: 'The Commission has instigated a wide programme of research complementary to that of other Member States, notably the UK'. One may conclude that there has been a deliberate political decision by the Commission to subordinate Community to British research. Obviously, the point here should have been not to duplicate efforts but to operate an adequate system for the reception and verificatory and confirmatory monitoring of the national research.
EU research programmes should ideally have been carried out in Member States other than those most affected by the relevant disease, public health or consumer protection issue.
In response to the present crisis, Parliament, during the budget debate for the 1997 financial year, adopted, with the aim of ensuring adequate funding for the main priorities identified, including research and technological development, a decision to restore the provisions of the Commission's preliminary draft budget, entering ECU 100 m in the reserve for the fourth framework research programme, 10% of this total being allocated to the programme on biomedicine for BSE.
15. The Commission did not take account of Parliament's expressions of concern in numerous oral and written questions, or of the various recommendations made by Parliament to the Commission in its resolutions (Annex 36). The following may be cited:
- the resolutions of 14 June 1990 and 22 January 1993, drawing attention to the need to carry out inspections in order to combat animal epidemics in the Community and to tighten controls within the internal market;
- the resolution on the Garcia report, adopted at the January 1993 part-session, in which:
a) Parliament called for the setting-up of an interdisciplinary team to undertake more rigorous assessment of the evolution of the disease. It was only three years later, and in the wake of the present grave crisis, that the Commission proposed the creation of the 'Weismann' committee - on the initiative of Commissioner Fischler - and the 'Interservices' group - under DG XXIV (Consumer Protection) and on the initiative of Commissioner Bonino;
b) Parliament proposed amendments for the regulation of the production techniques for meat-and-bone meal. Commissioner Scrivener, representing the Commissioner for agriculture, told the plenary, in justification of the Commission's rejection of Parliament's amendments, that the duration and temperature parameters proposed in paragraph 13 (134o C over 20 minutes at 3-bar pressure) were not acceptable to the scientific community, as, in reality, they offered no guarantees and could even give a false impression of security.
Paradoxically, Directive 96/449/EEC, which is to come into force in April 1997, contains provisions very similar to the recommendations of the Garcia report (133o C, 20 minutes and 3 bars): it has, then, taken nearly four years for the Commission to change its opinion. This attitude confirms, once again, the Commission's resistance to the adoption of precautionary measures, even in the absence of scientific certainty. Because of its failure to act, the danger has thus been incurred of exposure to risks both to human and to animal health, in a context where scientific certainty does not obtain;
- the resolution on the Martinez report on protective measures against animal diseases, adopted at the September 1996 part-session, in which Parliament proposed the creation of an annex for 'potential' animal diseases, including BSE, to be differentiated from the other annex, reserved for 'verified' diseases. The Commission said in plenary that it could not accept Parliament's view that BSE should be included in the directive on protection against animal diseases, on the grounds that it was sufficient for BSE to be governed by Directive 82/894 on notifiable diseases in the EEC.
16. The Commission did not adopt additional protection measures following identification of the cases of infected animals born subsequently to the ban on administering mammal proteins to ruminants.
The Scientific Veterinary Committee, from 1989 up to its meeting of 22 March 1996, consistently maintained the position that the risk of transmission of BSE to humans, should it exist at all, was remote. Furthermore, the same committee, at successive meetings including analysis of the appearance of cases of animals born subsequently to the ban on administering mammal proteins to ruminants, in all cases concluded that such cases were foreseeable and there was no need to adopt further measures. As events have shown, the Commission made an incorrect risk assessment on the basis of these arguments. In addition, the Commission, using its own scientific and risk assessment capacities, should have embarked on a detailed and critical examination of the causes of the disease's non- disappearance, taking into account, if necessary, the risks of vertical transmission.
17. It exerted political pressure and gave in to manipulation by the industrial sector in favour of lifting the embargo on semen, tallow and gelatin. The testimonies of the representatives of the Commission and the chairman of the Association of Gelatin Manufacturers of Europe, Mr Schrieber, are indicative of the low degree of transparency characterizing the run-up to the adoption of Decision (EEC) 96/362 of 11 June 1996 (Annex 37). One may quote verbatim Mr Hoelgaard's words at his appearance of 29 October 1996: 'I wish to state publicly that the Gelatin Manufacturers of Europe deliberately withheld information from the Commission and the scientists'. However, this declaration seems to have been intended to deflect responsibility and avoid confronting the realities of the Commission's political position and the actions of the administrators responsible for the matter, which had been characterized by a clear political desire to lift the embargo on gelatin.
Thus, on 10 April 1996 the possibility of lifting the embargo on gelatine was put to the Scientific Veterinary Committee by Mr Hoelgaard.
Nonetheless, the proposal was blocked by the opposition of the majority of the delegations. Between 11 and 15 April 1996, the Scientific Committee on Cosmetology, the Scientific Committee for Food and the European Medicine Evaluation Agency all expressed their opposition to ending the embargo on gelatin. The Commission, ignoring the calls for prudence by the scientific committees, insisted on trying to obtain a report in favour of lifting the embargo: following a provisional report (the Inveresk report of 1994), it succeeded in obtaining, on 26 April 1996, a vote by the Scientific Veterinary Committee to the effect that gelatin made using certain procedures should be considered low-risk.
In its recommendation of 26 April 1996, the Scientific Veterinary Committee also referred both to the safety of the raw material and the definition of a treatment procedure, since it did not regard 100% inactivation of the agent as possible. In addition, in view of the differing situations in the Member States, it instructed a subgroup to assess the risks presented by tissue (Annex 38).
In addition, the Director-General of DG V, Mr Larsen, has pointed to the need to identify regions without cases of endemic BSE (Annex 42). At all events, this shows that the reduction in the scope of the embargo had been decided, either by Mr Hoelgaard or by Mr Fischler, before several scientific committees delivered their opinions and, certainly, two weeks before the report of the Association of Gelatin Manufacturers of Europe was submitted to the Scientific Veterinary Committee on 26 April 1996.
It was not, therefore, the interim report from the gelatin industry which prompted the Commission to reduce the scope of the embargo. The reduction in the scope of the embargo had already been advocated two weeks prior to the incident with the European gelatin industry.
This does not rule out the Commission's bearing responsibility in relation to the adoption of the decision of 11 June 1996: the recitals concerned declare that gelatin produced by the methods mentioned presented no health risk, thus flying in the face of the scientific reports counselling prudence and the warnings of other DG VI officials (see the note of 7 May 1996 from Mr Mansito to Mr Legras - Annex 38; this was sent only one day before the full Commissioners' meeting on 8 May 1996, and warned that most of the scientific reports opposed lifting the embargo).
It is surprising that the Scientific Veterinary Committee should have based its vote of 26 April 1996 on a provisional report, commissioned by the industry itself, which, furthermore, referred to experiments related to scrapie, not BSE. The veterinary services of DG VI was, it should be added, fully aware of the provisional, incomplete and therefore dubiously reliable nature of this report: this is clear from the copy of the fax sent to Mr Marchant on 13 December 1995 by Mr Thomsen, on behalf of the gelatin manufacturers (Annex 37), which states in relation to the Inveresk report: 'Consequently the results are not clear enough and we had to extend the study'.
In addition, the WHO opinion of 2 April 1996 was not given the necessary attention. The summary of the written message from Professor Gaidusek, which was read out at the WHO meeting of that date, illustrates the scientific uncertainty obtaining. In connection with the ban on the use of meat products, Professor Gaidusek explicitly does not exclude other forms of transmission than the consumption of SBOs.
Mr Marchant has also admitted, in this connection, that the final Inveresk report was in his possession for some time. There have been mutual accusations of misrepresentation between the Commission and the representatives of the Association of Gelatin Manufacturers of Europe concerning the dates of transmission of the reports. Even should the misrepresentation prove to have been on the part of the manufacturers' association, the Commission would still be to blame for being excessively sensitive to the lobbies and placing blind trust in them, in addition to its vulnerability to political pressures.
The lack of credibility of the Commission's position has been fully confirmed with the publication of the conclusions of the second Inveresk report and the decision of 26 June 1996 of the Scientific Veterinary Committee recognizing the absence of a scientific basis for the guarantees on which the Commission based its initial decision. This lack of credibility could have been remedied had the Commission amended Decision 96/362 in time.
18. The Commission is at present trying to avoid part of its responsibility by trying to deal with the BSE and scrapie dossiers together, without making it clear that these are two separate subjects. The existence of scrapie has long been known, and it is harmless to humans; in addition, the epidemiological situation and risk level varies considerably as between Member States.
19. All in all, the following statements may be made:
19.1. The testimonies of present and former Commissioners and senior Commission officials have made it obvious that BSE has consistently had major political implications; this may be explained in view of the huge economic interests at stake in the meat, feeding stuff and animal residue processing industries, but, in terms of principles, it cannot justify the management of the BSE crisis.
According to these testimonies, the Commission's management of the BSE affair has at all points been based on the direct instructions of the successive Commissioners for agriculture: Mr MacSharry, Mr Steichen, and, since 1995, Mr Fischler. It follows that, in addition to the identification of specific responsibility or negligence in the management and operation of the services concerned, there must be considered to have been political responsibility on the part of the highest authorities over the terms of office concerned.
19.2. Regardless of whether the Commissioners responsible exerted political pressure, administrative mistakes were made. For example, the administration has not yet been able to explain why the June 1990 inspection report was not passed on to the relevant service, even though, in view of the adverse findings, the inspector responsible had explicitly asked for that to be done and for action to be taken. The behaviour of Commission officials in the Scientific Veterinary Committee towards scientists who held a minority view and the belated reaction to the second Inveresk report on gelatin - although as early as December 1995 a letter had been sent stating that the statements made in the first Inveresk report had been invalidated by subsequent research - suggest that the officials responsible failed to discharge properly their duties in connection with these highly sensitive issues. The Commission is urged to take the requisite staff and disciplinary measures in response to the failings of its officials.
19.3. Since 1974 and on the basis of Directives 64/432, 64/433 and 72/461 (the last-named should have been incorporated into Member State law on 1 January 1974), the Commission has possessed sufficient legal instruments to allow it to adopt the necessary measures for the protection of public health from potential risks arising from animal epidemics. The entry into force of the Treaty of Maastricht has further increased the Commission's powers to protect public health (see Annex 9: report of the Legal Service of Parliament of 25 November 1996). These powers on the Commission's part have also been recognized in Court of Justice decisions (full Court decision, 12 July 1996, Case C-180/96; decision of the President of the Court of First Instance, 13 July 1996, Case T-76/96). However, the Commission failed to use the means placed at its disposal by the Treaty in order to take the most stringent precautionary measures required.
19.4. By virtue of the opaqueness, complexity and anti- democratic nature of its workings, the existing system of commitology seems to be totally exempt from any supervision, thereby enabling national and/or industrial interests to infiltrate the Community decision-making process. This phenomenon is particularly serious where public health protection is at stake.
19.5. In connection with the combating of BSE, the Commission possesses neither the capacity nor suitable mechanisms to exercise controls over trade flows involving animals, meat and meat products and animal feedingstuffs within the internal market or over the corresponding data supplied to it by the national customs authorities. The Commission does not bear sole responsibility for this unacceptable state of affairs. It is also the result of the vague distribution of decision-making powers (commitology) and the irresponsible attitude of the Council, which calls on the Commission to be more active in carrying out checks, but refuses to provide the legal framework and the staff and financial resources required.
The Commission must therefore be put in a position in which it can carry out properly the monitoring tasks conferred on it.
19.6. It is also asked to carry out a parallel inquiry into the role and functioning of the committees involved in the management of the BSE crisis since 1989 and the arrangements for the involvement of the Council.
19.7. The Commission has to date failed to submit any convincing proposals by which it could regain credibility and begin genuinely to exercise its responsibilities in the field of health and consumer protection.
19.8. The Commission is urged to take disciplinary action against those officials who failed to carry out their duties in this matter and to take a very careful look at any legal opportunities which may exist in order to get the UK to face up to its responsibilities
19.9. Finally, it is necessary to stress the obstacles placed by the Commission in the way of the work of the Committee of Inquiry. This obstructive approach has manifested itself in various aspects of the Commission's attitude, such as:
- the fact that the Commission has exceeded its powers in its use of Article 3(3) of the Joint Decision of Parliament, the Council and the Commission of 19 April 1995, which it has employed to conceal the truth from this Committee of Inquiry;
- the endeavour to hold Parliament responsible for the failure to carry out inspections or the lack of funds for research, on the basis of a refusal of funding that was never made, which amounts to an attempt to attribute responsibilities to Parliament which in fact lie with the Commission.
These circumstances indicate the problems which this committee has had to face in its work and shed doubt on the reliability of other Commission testimonies. The Commission's attitude tends to undermine Parliament's capacity of investigation, contrary to the spirit of the Interinstitutional Agreement. It follows, in the light of these circumstances, that it will be necessary to revise the Joint Decision of Parliament, the Council and the Commission of 19 April 1995 on the detailed provisions governing the exercise of the European Parliament's right of inquiry.
6. POLITICAL RESPONSIBILITIES OF THE COMMISSION
1. The work of the Committee of Inquiry has revealed that the Commission is guilty of serious errors and omissions. To all appearances, the Commissioners, particularly Mr MacSharry and Mr Steichen in the period 1990-1994 (see above), bear a clear political responsibility. The current Commissioner, Mr Fischler, must also take responsibility for blatant instances of negligence, above all the Commission decision (96/362) lifting the export ban on gelatin, tallow and semen and the misleading of the Committee of Inquiry on the issue of the legal basis for a ban on exports of meat-and-bone meal (Annex 33).
2. Parliament cannot clear the Commission as an institution from responsibility for the errors committed by Commissioners no longer in office. Accordingly, the current Commission must be called on to assume its political responsibilities and take, within a suitable period, the requisite structural, political and staff-related decisions and measures arising out of the instances of negligence and errors noted by the committee.
3. The appropriate sanctions available to Parliament under the Treaty with a view to calling the Commission politically to account are a motion of no confidence, pursuant to Article 144 of the Treaty, or the initiation of proceedings for failure to act/a breach of the Treaty, pursuant to Article 175.
4. The Committee considers that measures must be taken in response to the BSE crisis and the serious failings on the part of the Commission and the United Kingdom, in such a way as to bring about tangible changes for the future. Measures which may bring about or lead to a change in approach of this kind are set out in section II. The Commission should assume its political responsibility and take an active part in the implementation of these measures within the next few months.
5. Finally, the Committee of Inquiry calls upon Parliament to be meticulous in exercising its power of scrutiny vis-à-vis the Commission and to pay particular attention to the way in which the Commission henceforth handles the BSE crisis and acts upon the recommendations in this report.
II RECOMMENDATIONS FOR THE FUTURE
The brief of the present temporary committee of inquiry states that, following the first stage of identifying any malfunctioning and determining such facts as may 'clarify the nature and causes of the alleged contravention or maladministration of the application of Community law by the competent authorities of the European Union and the Member States with regard to BSE', it is to make recommendations for the future.
The committee's exercise of the functions entrusted to it must, according to its brief, be carried 'without prejudice to the jurisdiction of the Community and national courts'. It is therefore out of the question for it directly to bring criminal charges or to claim the existence of extra-contractual responsibility, since these obviously fall within the sphere of competence of the relevant legal bodies. However, the committee of inquiry can attribute political responsibility, and, on the basis of the established facts, it will propose initiatives to that end to the plenary of Parliament.
At all events, the present committee of inquiry is responsible, in compliance with its brief, for making recommendations on, in principle, the following aspects:
1. the transparency of the action to combat BSE through the widest possible dissemination of relevant research data and findings
2. the procedures for monitoring measures to combat BSE and protect public health and animal health
3. the adoption of all relevant measures for the protection of public health,
4. the adoption of measures to restore the smooth operation of the markets,
5. the adoption of measures corresponding to the responsibilities identified by the present committee of inquiry.
There is no doubt that the investigation of the errors and malfunctionings which have occurred in the context of this crisis must give rise to practical proposals for improvements to ensure that a similar situation does not occur in future.
The committee of inquiry has noted the measures already adopted by the Commission, in particular those in connection with consumer policy, and its recent proposals designed to improve the management of agricultural and food issues. It is convinced that such measures will be effective only if adequate resources are earmarked for them in terms of appropriations and qualified staff. There is thus a need for Parliament to undertake to support such moves in its capacity as one arm of the budgetary authority and to call on the Commission to submit to it an initial assessment of the effectiveness of these measures by September 1997.
1. As regards the first question, i.e. the transparency of the action to combat BSE:
1.1. In order to increase the transparency of the action to combat BSE, it is essential, on the one hand, to guarantee the widest possible dissemination of relevant research data and findings by means of a comprehensive Commission information policy. For example, steps should be taken to ensure that the reports on the activities and findings of the Interdisciplinary Research Group and DG XXIV's Interservice Group, the agendas, minutes and decisions of the Scientific Veterinary Committee and the Standing Veterinary Committee and the relevant legal texts adopted by the European institutions are made available to the specialists concerned and put on the Internet.
1.2 On the other hand, transparency in connection with BSE policy is closely bound up with the conditions of functioning, transparency and facilities for expression characterizing the work of the scientists attached to the advisory scientific committees, at both Commission and Member State level.
Equally, in the interests of the transparency of anti-BSE measures, provision should be made to change the criteria for recruiting scientific staff to the European institutions.
Also at issue here is the degree of transparency required for the state of scientific knowledge on a subject to be determined, as well as the political use made of that knowledge by national governments or Commissioners, in relation to the perceived level of risk at a given moment.
On these points, the committee proposes:
1.3. The rules governing the work of the scientific committees which advise the Commission should be reformed in such a way as to professionalize their organization. The appointment of their members should in future be strictly based on objective professional qualifications. There should be improved guarantees concerning their independence, the recording of dissenting views and the funding available to them. The administrative procedures for reimbursing participants' expenses should be revised, to make it easier for independent scientists to attend. When animal health matters are discussed, doctors of human medicine should also be present, so as to improve the assessment of possible public health risks.
1.4. The Commission and Parliament should set up a joint body, with a fixed term of office, to monitor and review on a continuing basis the implementation of the measures set out in this report. This body should comprise, at the least, representatives from Parliament's Committee on the Environment, Public Health and Consumer Protection and its Committee on Agriculture and Rural Development and representatives of Commission DG III (Industry), DG V (Health and Safety), DG VI (Agriculture) and DG XXIV (Consumer Protection). The body should submit to Parliament by November 1997 a report which would serve as the basis for an assessment of the implementation of the measures at the December 1997 part-session
1.5. It is also vital to ensure transparency when publicizing the results of the debates of the advisory scientific committees: one can scarcely accept a state of affairs in which, thanks to the dictates of certain principles of confidentiality, it can happen, as in the BSE case, that the Commission should have practised a questionable information policy and that, once the matter had finally emerged into the open, it should have been too late to avert a collapse of public confidence whose effect was to worsen the economic damage caused by the crisis.
Moreover, there should be extensive reporting on the meetings of the standing committees, and the information should be available to the European Parliament. The list of members of the Commission's advisory scientific committees and the criteria for their appointment and the allocation of their specific areas of responsibility should be made public. It must also be guaranteed that Parliament's rapporteurs have access to the advisory committees' data and documents.
Transparency is, in any case, the only means of achieving, even if indirectly, some degree of control by Parliament over the activities of the Commission's committees.
1.6. The committees should be confined to a purely advisory role and should not be political in nature. As is proposed below, a suitable administrative structure should be set up at the Commission to enable it to assume and develop responsibilities in the field of animal and human health protection; the possibility should also be examined of imputing responsibility for negligence.
The impartial composition of scientific committees should be guaranteed by a neutral and interdisciplinary science council which should appoint their members.
1.7. It is important to recommend the widest possible dissemination of the report on the findings of the present committee of inquiry to the Community institutions and the governments of the Member States, in the interests of transparency in anti-BSE action and to enable the report to be an instrument for avoiding future errors through the lessons of experience. The Commission should also be urged to build on the existing work of the 'Interservices' committee set up on the initiative of Commissioner Bonino, and to publicize its studies and activities as widely as possible; the Commission should withdraw documents which contradict the work of the committee of inquiry, such as, for instance, the documentation forwarded to the press by Commissioner Fischler's spokesman's office on 16 December 1996. The same applies to such DG XXIV publications as the 'consumer information guide' (offering replies and guarantees on the subject of the health anxieties of consumers and the general public).
1.8. Finally, in order to ensure transparency in veterinary matters, DG VI should review its criteria for recruiting veterinarians. In future, recruitment should ensure that staff enjoy total independence from the government veterinary bodies of the Member States. Many doubts concerning the transparency of the management of the present crisis have arisen precisely from the fact that officials working for DG VI were previously employed by national veterinary services linked to the respective governments.
2. With regard to the procedures for monitoring the action to combat BSE and protect public health and animal health, the committee recommends:
2.1. The Community monitoring and inspection mechanisms should be strengthened, so as to ensure compliance with Community law and the protection of public and animal health in the internal market. This will require a firm political commitment leading to creation of suitable administrative structures at both Member State and Union level, backed up by the necessary human and material resources.
2.2. The committee cannot overlook the fact that the Council's proposal to create a European Agency for Veterinary and Phytosanitary Inspection (to be established in Ireland) is currently under examination by the Council and Parliament. This proposal has been submitted in implementation of the decision adopted by the European Council on 29 October 1993. Independently of the desirability or otherwise of creating such an agency and the specific aspects of its organization, the present committee, on the basis of the experience acquired through its labours of inquiry, suggests that certain recommendations of principle should be made, namely:
1. The Commission should set up the European Agency for Veterinary and Phytosanitary Inspection in close cooperation with the European Parliament.
2. The European Union and the Member States must equip themselves with food safety inspection and control structures in line with international inspection standards (series EN 45 000: ensuring the quality of inspection services).
3. Any future structure should ensure the closest possible coordination between the legislative authorities and the bodies responsible for monitoring and verifying the practical application or otherwise of the rules. The inspectorate should act to follow up all legislation, and, conversely, the results of the inspections should be subject to constant scrutiny by the legislative and executive bodies .
The Agency should:
(a) be responsible for all phytosanitary, animal health, food hygiene and safety and food quality controls; this would enable synergy to be achieved when carrying out audits of national control systems, as well as economies of scale and improved efficiency by the Commission services;
(b) operate in accordance with the principles laid down in the European standard EN 45004 on structures and procedures for inspection services, which provides for the efficiency and impartiality of controls and the independence of proposals for decisions;
(c) guarantee that the public has access to the reports. The closest possible coordination between this unit and the legislative authorities must therefore be ensured.
2.3. The committee welcomes the recent proposal by Mr. Santer to clearly separate the market oriented aspects of agriculture from health aspects by creating a separate section under DG XXIV which would have sole responsibility for the preparation of legislation in this field.
However, it is concerned at remarks by Mr Santer to the effect that administrative reorganization should be confined to placing the scientific and inspection committees under Mrs Bonino's supervision, which would be totally inadequate to comply with the committee of inquiry's recommendations.
2.4 In addition, the committee of inquiry calls for improved organization and management of staff in certain units (objectives, communication, monitoring and penalties) in order to minimize the chances of deficient operation.
3. With regard the adoption of all relevant measures for the protection of public health and the restoration of the smooth operation of the markets.
This concern may be said to have lain at the heart of the present committee's work. On the basis of its inquiries, the committee proposes the following preventive and public health protection measures:
3.1. The EU needs a clear legal basis enabling it to exercise its powers in the field of public health. With this in view and in the context of the IGC, the modification of Article 129 of the EC Treaty should be proposed, to make it impossible for the subsidiarity principle to be used as a means for Member States to oppose the development and application by the Union of measures which are necessary to protect public health.
3.2. The existing Community rules on food law are particularly complex and opaque. The Commission should draw up a framework directive on Community food law, following wide-ranging consultations involving the different stages of the food chain and consumers' organizations, with a view to improving environmental protection and human health.
3.3. The EU must be able to ensure the safety of products which circulate freely within the EU which does not in any way compromise the principle of subsidiarity. The unwillingness of a Member State to allow Commission inspectors to verify veterinary standards (because a health problem is considered to be political rather than technical, for example) must not be allowed to happen in the future.
3.4. Equally, Article 43 of the EC Treaty does not provide a suitable framework for dealing with animal health or food quality matters - questions which can have major repercussions for the normal functioning of the internal market. This article should relate solely to the day-to-day administration of the farm markets and their COMs. All necessary agricultural legislation for which a qualified majority is required in the Council must in principle be covered by the codecision procedure. Irrespective thereof, it should be recommended that the correct legal basis for matters of animal health and food quality and safety should be Article 100a.
3.5. In accordance with the aims set out in the preceding paragraph, the committee urges the Commission together with Parliament to call at the Intergovernmental Conference (IGC) for the codecision procedure to be used for agricultural matters. Until the Treaty is amended by the IGC, the Commission should use Article 100a on the internal market be used as the legal basis for its proposals in all agriculture-related matters which affect or could affect the protection of health or the quality of foodstuffs. Article 43 (consultation procedure) shall be used only for matters relating to the administration and day-to-day management of the agricultural markets.
3.6. At present, at EU level the Community's public health powers are dispersed at the Commission between DG III (Industry), DG VI (Agriculture and Animal Health), DG V (Health and Safety), DG XI (Environment and Nuclear Safety) and DG XXIV (Consumer Protection).
In this regard the committee urges the Commission to submit to the IGC proposals for improving the division of all powers between EU institutions and Member States in the field of health protection and consumer protection so that the principle of solidarity cannot in future be misused for the purposes of recriminations concerning each others' failings.The proposal is also to define clearly the responsibility for the comprehensive monitoring of the performance of statutory tasks.
3.7. Despite the fact that the Commission has recently submitted a number of directives, some of them now adopted, concerning the strengthening of the Community's health protection powers, if this objective is to be effectively ensured cooperation or coordination between the Member States' activities will not suffice. It should be recommended that the EU equip itself with a suitable administrative structure conceived as a powerful Public Health Protection Unit, encompassing both human and animal health. Such a unit, backed up by the necessary resources, should be responsible for the accountable coordination of powers and ultimately for measures relating to food law, food quality and hygiene, human and animal health protection and consumer protection.
The Public Health Protection Unit's task must be to assess Community policies in relation to the protection of human health, and it must be possible for it to draw up relevant legislative proposals or establish priorities in work programmes.
3.8. The Commission is accordingly urged to put forward specific proposals as soon as possible to set up such a Public Health Protection Unit, to act as an overall coordination unit so as to ensure the necessary cooperation between Directorates-General in the event of transdisciplinary problems concerning health protection, food, animal health and environmental protection. 3.9. In this way, the Community's public health protection powers, currently dispersed between DGs III, V, VI and XXIV, should be brought together within the Public Health Protection Unit. This unit could either be a separate DG or operate under the umbrella of a DG - say V or XXIV - which is not directly liable to pressure from agriculture or industrial interests.
3.10. With regard specifically to Creutzfeldt-Jakob disease:
1. The Commission is urged:
(a) to launch research programmes designed to identify the agent responsible for BSE and the new variants of the disease as well as prospects for preventing and treating the new variant of CJD and shall coordinate them with corresponding programmes launched by the Member States.
(b) to submit a proposal for compensating nvCJD victims and their relatives and shall enter the relevant appropriations in the preliminary draft 1998 budget.
2. The Council and Commission are asked to encourage the United Kingdom to undertake serious research into new cases of Creutzfeldt-Jakob disease, which affects young people, so as to guarantee the health of British citizens and, by the same token, citizens of the Union.
3. It is recommended that the Community institutions adopt the necessary initiatives to set in place suitable structures and resources for the development of independent research programmes specifically for BSE and Creutzfeldt-Jakob disease, for which provision should also be made for an increase in funding, given the derisory nature of the sums so far made available by the Commission for this purpose. In this connection, it is worth mentioning the paradoxical reply given by the Council to the question by Mr Jensen: 'The Council is aware and in general satisfied with the activities undertaken by the Commission in the period 1990-1996 in sectors related to BSE'. These measures would make it possible for the Commission to react to situations when they arise. This should be on a basis of maximum transparency, with regular information being provided to the Community institutions and public opinion, with a view to increasing public confidence in the work of those institutions.
The national research programmes should be coordinated with those of the EU.
4. The Commission is recommended to submit to the budgetary authority a proposal for transfer of appropriations with a view to releasing resources for BSE research at the earliest possible date.
5. The Community institutions and the Member States are advised of the need to reinforce the budget allocations at national and Community level for the detection and elimination of the risks of transmission of Creutzfeldt-Jacob disease via medical, pharmaceutical and cosmetic products, while outlawing at-risk human- or animal- derived products and seeking replacements. These budget allocations must cover the detection and elimination of potential risks from transfusions, grafts and other surgical practices.
3.11. It is recommended that the Community human and animal health services cooperate more closely with the World Health Organization and the International Office of Epizootics , on a basis of scientific rigour.
3.12. With regard to animal feedingstuffs, and especially meat- and bone-meal, the committee of inquiry:
(a) Calls on the Commission and Parliament jointly to convene, as a matter of the utmost urgency, a Scientfic conference to look into the problems of using animal proteins in animal feedingstuffs, to serve as the basis for a future Commission proposal to the Council, with a view to recommending its prohibition in future, if this is considered advisable.
(b) Requests the Commission to submit as a matter of urgency the proposals for regulations governing the questions of animal feed in the light of the mistakes made in the past, confirming the general ban on the feeding of meat-and-bone meal to ruminants and prohibiting the use of the carcases or offal of sick animals in animal feedingstuff. Only the offal of animals which have been released for human consumption may, after its has been adequately sterilized (at 133 C, 3 bar for 20 minutes), be fed to non-ruminants such as pigs, poultry and fish.
(c) The Commission must also assure Parliament that it will insist that Decision 96/449/EEC is implemented throughout the Community by 1 April 1997 as regards the standards applicable to the processing of meat-and-bone meal and that Member States will not be granted extensions.
(d) The Commmission and Council are asked to ensure that the necessary regulatory measures be adopted before September 1997 to ensure uniform respect of maximum guarantees for the elimination of suspect animal meal and dangerous or possibly dangerous animal waste, together with a strict ban on exports to third countries.
4. With regard to restoring the smooth functioning of the markets, the following recommendations should be made:
4.1. The UK Government should be urged to make an all-out effort to eradicate BSE as soon as possible and to submit to the Commission, at the earliest possible date and for approval by the Standing Veterinary Committee, a selective culling plan in line, at the least, with the undertakings made at the Florence European Council on the basis of a secure system for the registration and certification of animals and their movements and of herds. The acceptance of the plan by the Community should be conditional on the reliability of this system.
4.2. The Commission should be urged to offer all possible cooperation to the UK authorities responsible for eradication and BSE-related protection measures, with a view to ending the crisis as soon as possible.
4.3. The Commission, the responsible authorities of the Member States, producer organizations and farmers in general should be urged to give priority to the interests of market management of the COMs is nothing more than a shortsighted policy option for the CAP. Consumer confidence through appropriate guarantees for public health protection is the only way to ensure a viable agricultural policy which satisfies both consumers and producers. To this end, all of the above should be urged to ensure that these considerations are a fundamental element in future changes to the rules of the CAP.
4.4. The Commission should be asked to propose the introduction of a harmonized system of certification for meat as a matter of urgency, so as to restore consumer confidence in this sector.
5. With regard to the recommendation of measures to reflect the responsibilities established by the committee of inquiry:
5.1. In view of the responsibilities established, it appears desirable that the committee of inquiry should make a number of recommendations in relation to them. In this connection, the committee recommends that:
- the Commission should be urged to draw up legislative proposals with a view to making the authorities which have allowed the disease to appear and spread responsible for the financial costs of BSE;
- the Commission should be urged to adopt the necessary personnel and disciplinary measures with regard to the incorrect behaviour of its officials;
- it should be recommended that those affected by the consequences of BSE and their legal representatives should make use of the evidence concerning responsibility uncovered by this committee in any legal action which is now under way or which they may initiate;
- In view of the evidence of maladministration of the BSE dossier by the Commission, its use of the joint decision of Parliament, the Council and Commission of 19 April 1995 to conceal the truth from the present committee of inquiry, and its attempts to attribute responsibilities to Parliament which fall to the Commission itself, it should be recommended that the Members of the European Parliament should call on the Commission to assume its responsibilities.
5.2. The committee voices its conviction that those responsible should be condemned for the errors they have committed, otherwise citizens will find it difficult to understand why no sanctions are being imposed.
The committee's inquiries have established serious responsibilities, both of the Commission and the United Kingdom. If the Commission denies responsibility, as was suggested by its President on 15 January 1997 when speaking before the committee of inquiry, the committee considers that as guardian of the treaties and the interests of the Community it must immediately bring administrative proceedings against the United Kingdom for repayment of all sums allocated in previous years for the purposes of eradicating BSE.
5.3. It is also recommended that the Commission apply the procedure under Article 169 of the Treaty to those Member States which have not fulfilled their obligations under the Treaty.
5.4. Also recommends that Parliament call upon the Commission, as guardian of the Treaties, to institute proceedings against the UK government in the European Court of Justice on the basis of Article 3(2) of the joint decision of Parliament, the Council and Commission of 19 April 1995 and Article 169 of the Treaty, on account of the failure of Mr Hogg, the UK Minister of Agriculture, to appear before the committee. 6. In addition to the recommendations which the present committee of inquiry is called on to make by the terms of its brief, in its strictest interpretation, it is considered necessary that the following further recommendations and demands should be made:
6.1. Recommendations to the Commission:
(a) Submission to the IGC of proposals for an amendment to the Treaty enabling a motion of censure to be tabled against individual members of the Commission (Article 144, to be carried by the same majority as is required in the case of a motion of censure against the Commission as a whole).
(b) Proposal, in the context of the current or the next IGC, of the application of the co-decision procedure to the CAP. The Commissioner for Agriculture should be asked to bring forward, in the coming years, proposals to radically re-structure the existing CAP to promote extensive farming practices, increase the amount of land under cultivation, the better to eliminate all practices which may be harmful to animal and human health.
(c) The utmost vigilance, to ensure that all cases of BSE throughout the EU are reported as there is reason to believe that there have been instances of under reporting.
(d) In the light of the most recent scientific data, reviewing Decision 96/362 of 11 June 1996 to end the ban on gelatin derived from cattle; this is justified by the uncertainties surrounding this product, which is widely used in the food, pharmaceutical and cosmetics industries.
6.2. Recommendations to the Commission and the Member States
It is recommended that the Commission and the Member States work together in order to keep the public systematically and fully informed about all aspects of nutrition that are important for public health. If the European public is well-informed, it will indubitably be less easy to manipulate and less prone to overreact. Consequently, the temptation to pursue a non-transparent policy for fear of overreaction will be minimized
6.3. Recommendations to the Member States and the competent committees of the European Parliament
It is recommended that the Member States, the Committee on Agriculture and Rural Development and the Committee on the Environment, Public Health and Consumer Protection of the European Parliament should promote, and/or, where relevant, give their support to:
a) amendment of the legislation on animal nutrition to ensure compliance with the highest possible standards of protection of animal and human health, rather than recognizing only productivity and short-term profits as objectives; this includes such aspects as:
1. manufacturing procedures, which should ensure the total deactivation of all pathogenic agents liable to damage animal or human health, without allowing economic considerations to prevail over the need for maximum safety guarantees;
2. a permanent ban on the use of animal meal to feed cattle;
3. inclusion in labelling of a mandatory explicit declaration for feedingstuffs by their manufacturers, which should facilitate the clear identification of components and of the origin of ingredients, and on user instructions;
4. legislative guarantees ensuring that:
- meat-and-bone meal is not included in ruminant feedingstuffs; - ruminant feeds are be produced on any premises where meat-and-bone meal is present; - farmers may only purchase meat-and-bone-meal for non-ruminants or feeds containing meat-and-bone meal under licence; - the ingredients of all mixed feeds are declared; - Member States enforce these rules and all measures to protect public health intensively;
b) amendment of the Community legislation on product liability by September 1997 to ensure that primary product liability is also covered, together with a proposal for legislation regarding liability arising from the risk related to the activity;
c) adoption and implementation of the Commission's proposals concerning animal identification, passports and registers, and the labelling of beef and veal and of other cattle-derived products;
6.4. Recommendations to the European Parliament
In the course of this temporary committee of inquiry's work, cooperation with the witnesses called has not always been as good as it should have been. On the basis of this experience, the Committee of Inquiry recommends that Parliament examine whether the legal basis provided by Article 138c of the Treaty and/or the provisions of Decision 95/167 of the European Parliament, the Council and the Commission on the detailed provisions governing the exercise of the European Parliament's right of inquiry are sufficient and adequate for making the best use of that right and, if necessary, propose initiatives for extending Parliament's scope for taking action.
6.5. Recommendations to farmers and feedingstuff producers
The Committee of Inquiry considers it necessary to recommend:
a) to farmers, in general, that they employ sound animal feeding practices, engage in extensive production and take part in programmes for the development of quality products;
b) changes to the common agricultural policy, so as to create in the future a framework which makes possible and reinforces the responsibility of agricultural holdings for the production of healthy food using sustainable farming methods;
c) to producers of animal feedingstuffs, that they should be fully aware of their potential impact on public and animal health and of their product liability and display the greatest possible care when developing new products or manufacturing processes; to both feedingstuff producers and the competent authorities of the EU and the Member States, that they promote further research into the use of animal by-products in animal feed.
Note 1: OJ C 261, 9.9.1996, p. 132
Note 2: It appears from the documents examined, which do not include any notes or written communications signed by the three officials in question (Mr Mansito, Mr Hoelgaard and Mr Berlingieri) for the period from June 1990 to the end of 1993, that they may have been moved away from the BSE dossier over that time. DOC_EN\RR\319\319544 PE 220.544/fin./A