Presentation of BSE inquiry committee report
Today, Manuel Medina ORTEGA presented the draft report of the findings of the
Temporary Committee of Inquiry on BSE. The report is available as an annex to this press
release on the internet.
Commission President Jacques SANTER will put his opinion of the report to the committee this
Wednesday, in Strasbourg.
On the 6 February in Brussels, the report will be adopted by the committee and then put to
Parliament for adoption at the February plenary session, in Strasbourg.
EUROPEAN PARLIAMENT
TEMPORARY COMMITTEE OF INQUIRY INTO BSE
19 December 1996
DRAFT REPORT
Part B: RESULTS OF THE INVESTIGATION OF THE TEMPORARY
COMMITTEE OF INQUIRY INTO BSE
Rapporteur: Mr Manuel Medina Ortega
C O N T E N T S
Page
I. EVIDENCE OF NEGLIGENCE, RESPONSIBILITIES AND PRESUMPTIONS
OF MALADMINISTRATION
3
I.1. RESPONSIBILITY AND NEGLIGENCE IMPUTABLE TO THE UK
3
I.2. DETERMINATION AND ATTRIBUTION OF RESPONSIBILITY AND
POSSIBLE NEGLIGENCE ON THE PART OF THE COUNCIL AND
COMMISSION
7
I.3. RESPONSIBILITY AND NEGLIGENCE ON THE PART
OF THE COUNCIL
9
I.4. RESPONSIBILITY AND NEGLIGENCE ON THE PART
OF THE COMMISSION
12
I.5. POLITICAL RESPONSIBILITY OF THE COMMISSION
22
II. RECOMMENDATIONS FOR THE FUTURE
23
I. EVIDENCE OF NEGLIGENCE, RESPONSIBILITIES AND PRESUMPTIONS
OF MALADMINISTRATION
The decision of the European Parliament, adopted on 17 July 1996, footnote 1 which set
up the present temporary committee of inquiry into BSE mandated the committee to
'investigate alleged contraventions or maladministration in the implementation of Community
law in relation to BSE'.
In accordance with this mandate, the examination of the allegations of contraventions or
maladministration has been divided into five chapters: three concerning responsibilities and
negligence in respect of the UK, the Council and the Commission respectively; one concerning
the possible determination and attribution of responsibilities as between the Council and the
Commission; and a final chapter assessing the Commission's political responsibility.
I.1. RESPONSIBILITY AND NEGLIGENCE IMPUTABLE TO THE UK
All accounts thus far have coincided in singling out the UK as bearing the greatest degree
of responsibility: even the Permanent Secretary, Mr Packer, and the Chief Veterinary
Officer, Mr Meldrum, have accepted part of the blame for the development of the BSE crisis.
The main elements demonstrating negligence on the part of the UK may be summarized under
the following headings.
1. It 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 deactivation 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 control measures (until August 1996, there were no legal
penalties in the UK for the storage or administration of such feedingstuffs) encouraged the
continued illegal administration to ruminants of existing stocks of feedingstuffs containing
ruminant-derived proteins.
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 (SVC). 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 SVC 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 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'.
2. It failed to respect the national prohibitive legislation outlawing imports of
flour from the UK, or, at the least, failure to take action to control the exports concerned. This
implies 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).
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).
3. It put pressure on the Commission not to include anything related to BSE in its
general inspections of slaughterhouses, as regularly 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).
4. It tightened this pressure on the Commission, as described in paragraph 3, via
the substantial numerical presence of British officials and scientists acting, to a greater or
lesser degree, within the orbit and under the control of the UK Ministry of Agriculture.
The Commission has justified the massive presence of UK nationals on the
committees on the grounds that BSE effectively concerned the UK alone. Nonetheless, the BSE
subgroup of the Scientific Veterinary Committee has almost invariably been chaired by a UK
national, and one may therefore reasonably harbour doubts as to its objectivity and
impartiality. 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).
5. It made a 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, and
the serious and imminent risk of the disease spreading to humans was recognized only on 20
March 1996. The necessary research effort was not carried out, nor were correct priority
fields for research defined; 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
only £ 60 m on BSE research, according to Ministry of Agriculture figures, and the EU has
spent ECU 3 745 000 (see Annex 4).
6. It 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.
7. 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.
8. 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.
9. It took a blocking attitude within the Community institutions, with the aim of
pressing the Commission and Council to lift or ease the embargo. This is clear from the
minutes of the Commissioners' meeting of 5 June 1996 (Annex 5), in 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.
10. 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.
11. It did not abide by the agreements 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. We do not, to
date, possess any documents formally attesting to progress having been made in implementing
the programme, although it appears that culling is continuing in the UK, which has recently
told the media that it intends to undertake a large-scale cull which could even go beyond the
initial Florence proposals. 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.
12. The UK Minister of Agriculture, Mr Hogg, demonstrated an unwillingness to
cooperate, refusing to appear before Parliament's committee of inquiry. 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 joint decision of the European Parliament, the
Council and the Commission (No 95/177) of 19 April 1995 on the detailed provisions
governing the exercise of the European Parliament's right of inquiry.
13. 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.
I.2. DETERMINATION AND ATTRIBUTION OF RESPONSIBILITY AND POSSIBLE
NEGLIGENCE ON THE PART OF THE COUNCIL AND 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 gelatine.
It follows that responsibility 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 makes it
even more difficult to apportion responsibility, be it with respect to the institutions or to the
committees.
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.
Nonetheless, as is pointed out in the report drawn up for this committee by
Parliament's Legal Service on 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).
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, and points up the lack of an integrated approach, such as would have been
possible were there a body similar to the Food and Drug Administration in the US or the health
administrations in the Member States.
I.3. RESPONSIBILITY AND NEGLIGENCE ON THE PART OF THE COUNCIL
Given the Council's character as a representative organ of the Member States, it should be
assumed that implicit reference is being made here to the general responsibilities of the
Member States, without prejudice to the question of the specific responsibility of the UK,
which, in view of its importance, has been dealt with in a separate chapter.
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'.
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 1994 and 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 passing the
responsibility to the Standing Veterinary Committee. The 1990 conclusions mandated the
Commission to adopt a number of measures to 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 results 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 present 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 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.
7. 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.
I.4. RESPONSIBILITY AND NEGLIGENCE ON THE PART OF THE COMMISSION
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 interests of market management, as opposed to the
potential human health risks existing in the light of the numerous scientific uncertainties
concerning the possible effects of BSE on humans. 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, including public threats to take out
infringement proceedings against Member States introducing unilateral measures against
British beef exports, 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;
- the 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';
- 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;
- 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 which can, at certain
moments, be interpreted as amounting to a policy of disinformation, with the aim of averting
disturbances on 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. It should be pointed out that no proofs exist 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.
3. There has been 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).
4. 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.
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.
5. 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.
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.
6. 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.
7. It has not encouraged the expression of views by scientists holding minority opinions:
in principle, the opinions of the Scientific Veterinary Committee are adopted by consensus. In
this connection, one may examine the disagreement which arose between Mr Somogyi and the
Director-General for Agriculture, Mr Legras.
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).
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.
8. 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.
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:
9. 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.
10. 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).
11. 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.
Furthermore, 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.
12. 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 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 the committee. 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 Mr Dewost, 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 exists a silence 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 García 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
deactivation 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.
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.
- 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.
13. 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 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 never any question of any 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.
14. 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 García 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' committee - 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, which is to come into force in April
1997, contains provisions very similar to the recommendations of the García 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. 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 Martínez 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.
15. 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.
16. It exerted political pressure in favour of lifting the embargo on semen, tallow and
gelatine. The testimonies of the representatives of the Commission and the chairman of the
Association of Gelatine 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 Gelatine 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 gelatine.
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 gelatine.
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 gelatine made using certain procedures
should be considered low-risk. 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
gelatine 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 also 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 Unit 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 gelatine 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'.
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.
17. 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.
18. All in all, the following statements may be made:
18.1. 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, feedingstuff and
animal residue processing industries.
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.
18.2. The political control exerted by the Commissioners is so obvious that it
raises doubts as to whether one can genuinely speak of responsibility at administrative level,
especially in the case of those senior officials who, without managing to persuade their
superiors, have throughout the BSE crisis advocated more stringent action by the Commission
to protect animal and human health (see the actions of Mr Mansito and Mr Berlingieri).
18.3. Since 1974 and on the basis of Directives 64/332, 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).
18.4. The workings of the existing system of commitology are not adequate from the
viewpoint of public health protection.
18.5. The Commission possesses neither the capacity nor suitable mechanisms to
exercise controls over trade flows within the internal market or over the data supplied to it
by the national customs authorities.
18.6. The Commission has to date failed to submit any workable proposals by which
it could regain credibility and begin genuinely to exercise its responsibilities in the field of
health and consumer protection.
I.5. POLITICAL RESPONSIBILITY OF THE COMMISSION
As far as this aspect is concerned, the present committee considers that the Commission has
displayed negligence with respect to the adoption and monitoring of human and animal health
protection measures. It follows that one may legitimately suggest the possibility or
desirability of Parliament calling on the Commission to assume its political responsibility.
Should an agreement be reached, in the determination of the facts of maladministration, that
between one and all of the Commissioners directly responsible for handling the BSE affair (Mr
MacSharry, Mr Steichen and Mr Fischler) may be charged with negligence, the question would
arise as to how they should be called to account over their political responsibilities.
Parliament could, of course, table a motion of censure on the Commission, under Article 144
of the Treaty, on grounds of ineffective management. By contrast, no real practical possibility
exists of calling individual Commissioners or ex-Commissioners to political account. It could
be unfair for Parliament to table a motion of censure which would also involve other
Commissioners who, in fact, in the light of the opportunities open to them and their awareness
of the situation, did attempt to take precautionary action.
It must be added here that the Commission's powers in this field are shared with the Member
States and the Council. This division of responsibility reduces the seriousness of the
Commission's negligence, and may suggest that a motion of censure should not be tabled. At all
events, however, Parliament should call on the Commission to increase its vigilance and
prepare legislative initiatives to ensure that similar situations do not occur in future.
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 is, according to its brief, to be
carried out 'without prejudice to the jurisdiction of the Community and national courts'. It is
therefore out of the question for it 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. The attribution of political responsibility, and whether the
committee should propose initiatives to that end to the plenary of Parliament, is another
matter altogether.
At all events, the present committee of inquiry is responsible, in strict compliance with its
brief, for making recommendations on, at least and in principle, the following three aspects:
- the transparency of the action to combat BSE through the widest possible
dissemination of relevant research data and findings;
- the procedures for monitoring the ban on exports of the products in question;
- the adoption of all relevant measures for the protection of public health and the
restoration of the smooth operation of the markets.
There is no doubt that the investigation of the errors and malfunctionings which have occurred
in the context of this crisis has provided us with numerous elements to be taken into account
for the purpose of proposing improvements to ensure that a similar situation does not occur in
future.
1. The first question, i.e. the transparency of the action to combat BSE through the
widest possible dissemination of relevant research data and findings, 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.
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.
In this connection, the committee suggests the following proposals:
1.1. 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.
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.
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.
1.2. The committees should be confined to a purely advisory role. 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.
1.3. 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, along with 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).
2. The second aspect of the present committee's brief concerns the procedures for
monitoring the ban on exports of the products in question, and what appear to be the
shortcomings of those procedures. In this connection, the committee suggests the following
proposals:
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 should be made
to the effect that 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.
3. The third aspect concerns 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.
Firstly, on the matter of proposals for improving the existing mechanisms
concerning prevention and public health protection, a number of points should be made with a
view to determining the most suitable recommendations:
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. 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; it should
be recommended that the correct legal basis for matters of animal health and food quality and
safety should be Article 100a.
3.3. 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) and DG XXIV (Consumer Protection).
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 an all-embracing Public
Health Protection Unit, encompassing both human and animal health. Such a unit, backed up by
the necessary resources, should be responsible for the exercise and coordination of powers
aimed at ensuring effective action on matters of food law, food quality and hygiene, human and
animal health protection and consumer protection.
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.
Secondly, with regard to the restoration of the smooth operation of the markets,
the following recommendations should be made:
3.4. 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.
3.5. 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. In addition to the recommendations which the present committee of inquiry is
called on to make by the terms of its brief, we suggest that the following further
recommendations should be made:
4.1. It should be recommended that the Community institutions adopt the
necessary initiatives to set in place suitable structures and resources for the development of
independent research programmes, thus creating a capacity for reaction in the face of a human
or animal epidemic. 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.
4.2. It should be 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, the producers' organizations, and pressure
groups in general should promote, and/or, where relevant, give their support to:
- legislation in the field of 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:
a) 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;
b) rules on labelling, which should facilitate the clear
identification of components and of the origin of ingredients, and on user instructions;
- proposals concerning animal identification, passports and registers,
and the labelling of beef and veal and of other cattle-derived products;
4.3. It should be recommended that farmers should, in general, employ sound
animal feeding practices, engage in extensive production and take part in programmes for the
development of quality products.
[Editor's note: The original footnote was missing in this document. Basically the message of the
footnote is:
The examined evidence, which included no notes or documents from the period June 1990
until the end of 1993 signed by the three officials (Mansito, Hoelgaard und Berlingieri),
suggest the conclusion, that the handling of the BSE issue in this period was consciously kept
away from them.]