Food sustainability in the European Union:
UnCAPping the Treaties’ potential for policy innovation
MA THESIS 2018
Food sustainability in the European Union:
UnCAPping the Treaties’ potential for policy innovation
Submitted in partial fulfilment of the requirements for the degree of
Master of Arts in European Studies: Policy
Graduate School for Humanities Universiteit van Amsterdam
by
Christine Leidner
Amsterdam, The Netherlands July 2018
Word Count: 22.300
Main Supervisor: Dr Anne van Wageningen
Assistant Professor, European Studies University of Amsterdam
Second Supervisor: Dr Peter Rodenburg
Assistant Professor, European Studies University of Amsterdam
Acronyms
CAP - Common Agricultural Policy
CARE - Council of Agricultural Research and Economics CJEU - Court of Justice of the European Union
DG - Directorate General
EC - European Commission
EHN - European Health Network
EP - European Parliament
EPHA - European Public Health Alliance
EU - European Union
TEU - Treaty on the European Union
Table of Contents
INTRODUCTION 5
PRELIMINARY CHAPTER: POLICY COHERENCE AND INTEGRATION CLAUSES 15
2.1 POLICY COHERENCE 15
2.2 INTEGRATION CLAUSES CALLING FOR A CROSS-SECTORAL APPROACH 15 WITHIN THE CAP: A CLOSER LOOK AT THE CAP OBJECTIVES 17
3.1 NO LINK TO SUSTAINABILITY AT FIRST GLANCE 17
3.2 THE AMBIGUITY OF THE CAP’S OBJECTIVES 18
3.3 THE FURTHER RELATIVISATION OF CAP OBJECTIVES THROUGH THE NOTION OF PUBLIC
INTERESTS 20
3.4 THE INFORMAL EVOLUTION OF CAP OBJECTIVES 21
3.5 A CONTEXTUAL INTERPRETATION OF THE CAP OBJECTIVES 25 THE CAP OBJECTIVE OF RATIONAL DEVELOPMENT OF AGRICULTURAL PRODUCTION 25
THE CAP OBJECTIVE OF RESOURCE EFFICIENCY 28
THE CAP OBJECTIVE OF ‘REASONABLE PRICES’ 31
WITHIN THE INTERNAL MARKET: COMPETENCE DELINEATION AND THE
APPROXIMATION OF LAWS 33
4.1 THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY OF ALL EU ACTION 33
PROPORTIONALITY 33
SUBSIDIARITY 34
4.2 SUBSIDIARITY AND PROPORTIONALITY IN PRACTICE: THE APPROXIMATION OF LAWS 37
APPROXIMATION OF LAWS AND ENVIRONMENTAL CONCERNS 38
APPROXIMATION OF LAWS AND ANIMAL WELFARE 40
APPROXIMATION OF LAWS ‘IN THE NAME OF’ PUBLIC HEALTH 41 4.2.3.1 Internal market versus protection of human health? 42 4.2.3.2 The growing importance of human health protection in internal market measures: the
emergence of de facto EU tobacco control policies 43
BEYOND THE CAP AND THE INTERNAL MARKET: A SUSTAINABLE FOOD POLICY
WITHOUT A TREATY CHANGE? 48
5.1 NO FORMAL MANDATE FOR THE ESTABLISHMENT OF A COMMON FOOD POLICY 48
5.2 THE CHOICE OF A LEGAL BASIS 50
5.3 HOW ABOUT A SUSTAINABLE FOOD STRATEGY? 51
CONCLUSION 54
Introduction
The food we produce, import, export or consume matters; it has multiple impacts on the environment, on our health and on the health and welfare of animals. All food stems from natural resources, which are per se finite; hence the need to produce food in a ‘sustainable’ manner.
‘To live from the yield, not from the substance’ is the basic idea of sustainability (Bosselmann 2008, 22). The concept of ‘sustainable development’, the political translation of the notion sustainability, embraces economic, social and environmental concerns: “Sustainable development aims to meet the needs of present generations without jeopardising the ability of future generations to meet their own needs. It provides a comprehensive approach bringing together economic, social and environmental considerations in ways that mutually reinforce each other.” (European Commission 2016) ‘Sustainable products’, as defined by Reheul et al., are products whose attributes and consequences are in line with this approach (Reheul et al. 2011).
Regarding ‘food products’, in recent years the focus seems to have started shifting away from the mere question of ‘how’ we produce food (including the important question of mitigation opportunities1) and landing on the question of production and consumption patterns; ‘what’ do we produce, export and eat and ‘how much’ of it2?
The Food and Agriculture Organisation of the United Nations (FAO) and the World Health Organisation (WHO) as well as a growing number of governments around the world have acknowledged scientists’ warnings that current and prospected food consumption and production patterns are not sustainable (FAO 2006). In recent years, an increasing amount of attention has been paid to sustainability issues linked to the production and consumption of animal-sourced products.
The global livestock sector is estimated to account for 14,5 percent of human-induced greenhouse gas emissions (Westhoek et al. 2011)3. For the particularly potent greenhouse gases methane and nitrous oxide, animal agriculture’s contribution is estimated at 35-40% and 65% respectively (Gerber et al. 2013), thereby making the sector one of the largest sectoral drivers for climate change (Scarborough et al 2014). Based on projected demand, scientific forecasts believe that by 2050 the sector will emit over two-thirds of the amount of emissions considered sustainable (Pelletier and Tyedmers 2010). Other well-documented environmental impacts of intensive animal agriculture include the disproportionate use of freshwater (Mekonnen and Hoekstra 2012, Ran et al. 2016, Poore and Nemecek 2018), water pollution and the perturbation
1 See for example Davidson (2012), Smith et al. (2013), and Herrero et al. (2016).
2 See for example Stehfest et al. (2009), Popp et al. (2010), Garnett (2011), Bajželji et al. (2014) and Poore and Nemecek (2018).
3 For the European Union, the livestock sector’s contribution to human-induced greenhouse gasses was estimated at 17 percent. (Bellarby et al. 2014)
of nitrogen and phosphorus cycles (Diaz et al. 2008, Bouwman et al. 2013), the degradation of soils (Bouwman et al. 2013, Eshel et al. 2014), and deforestation and loss of biodiversity (Barnosky et al., 2011, Ripple et al. 2014, Hilker et al. 2014, Evans et al., 2015) due to a high contribution to the expansion of cultivated land (Foley et al. 2011, Eshel et al. 2014, Alexander et al. 2015, Poore and Nemecek 2018).
Direct and indirect detrimental effects of current and prospected levels of production and consumption of animal-sourced products on public health are increasingly widely studied (Hakesworth 2010, Henning 2011). Current production levels of animal-sourced products have been associated with the development of antimicrobial resistances (AMRs) linked to the use of antibiotics in intensive animal farming4 (Woolhouse et al. 2015, Hiltunen et al. 2017, Van Boeckel et al. 2017), air pollution (especially ammonia), groundwater pollution and zoonotic diseases5 (Tomley and Shirley 2009, Freidl et al. 2017), which all threaten human health6. Diets based primarily on animal-sourced products have been recognised as a leading cause of obesity as well as a leading cause of many non-communicable diseases, such as hypertension, heart disease, certain types of cancer, diabetes, gallstones and strokes (Rouhani et al., 2014, WHO 2015, Lu et al., 2016).
Regarding animal welfare, it is generally acknowledged that satisfactory standards of animal health and animal welfare are important aspects of sustainable agriculture and food systems and that at the current and prospected levels of production, these standards cannot be met. (EEA 2017, Greenpeace 2018).
The European Union, as one of the world’s leading producers and consumers of agricultural products is directly concerned by these issues. Yet, In the current EU policy landscape, the issue of unsustainable food production and consumption patterns in general and the over-production and consumption of animal-sourced products in particular remain under-addressed or even entirely unacknowledged for the latter one.
International, European and national civil society organisations from health, environment and animal protection sectors have been advocating for a change in policy on agriculture and food.7
4 The use of antimicrobials as growth promoters was banned in the EU in 2006, but according to Woolhouse, this has not led to a significant decrease in the use antibiotics. (Woolhouse et al. 2015)
5 Zoonotic diseases are diseases that can transfer from animals to humans. The category includes Creutzfeldt-Jacob disease, hepatitis E virus, avian flu, psittacosis, brucellosis and more. Infection can occur through contaminated animal products contact with airborne particulates. (Greenpeace 2018)
6 Other diseases that may be linked to livestock production systems include bladder, thyroid and gastric cancer, non-Hodgkin’s lymphoma, and methaemoglobinaemia, also known as blue-baby syndrome. (Greenpeace 2018, 68-69)
7 See for example ‘Civil Society Statement on the Reform of European Agricultural Policies’. The statement supported by over 150 European organisations called upon the policymakers to “rethink the role and direction of European agriculture policies” in the context of the post-2020 CAP reform process, asking for a “radical reform of the CAP and related policies”. As concerns action on consumption patterns, the statement called upon policy-makers to “raise citizens’ awareness of the impacts of consumption on their own health, on farmers, animals and the environment” and to “encourage lower levels of animal product consumption”.
At the centre of criticism is the current Common Agricultural Policy’s structure and priorities which result in an exaggerated emphasis on agri-economic aspects, insufficient addressing of environmental concerns, a minimal taking into consideration of animal welfare and a quasi-absence of health and nutritional aspects. The problem of excessive production and consumption of animal-sourced products is increasingly addressed by actors who call upon future policies to tackle this issue through various measures. 8
As for specific recommendations, they include:
- Enhancing the ‘greening’ aspect of the current CAP through a greater conditionality of support (‘public money for public goods’) and a redistribution of funds from pillar 1 (direct payments to farmers) to pillar 2 (rural development)9.
- Integrating public health and nutrition into the CAP.
- Higher and better enforced animal welfare standards within the CAP’s cross compliance system for direct payments.
- Acknowledging that production and consumption patterns of animal-sourced products need to drastically change, and contributing to an EU-wide reduction of the production and consumption of said products, through direct (green public procurement, internal policies, funds for producers who wish to switch to more sustainable products) and indirect (assessment, reduction targets, dietary guidelines, campaigns) policy measures.
MEPs have witnessed this gradual increase in calls for a more sustainable agriculture and food policy. Yet, until the Lisbon Treaty came into force, the EP had formally no say in the CAP, since the Council was the sole legislator. In terms of CAP budget, by qualifying the CAP budget as compulsory expenditure in 1970, Member States had “de facto removed it from the purview of the (EP)” (Roederer-Rynning 2010). The Lisbon Treaty however significantly changed the game in terms of EP powers regarding agricultural and food policy, making it a co-legislator on the CAP and full EU expenditure. Suddenly, the making of agricultural policy was out of the dark room and, at least partially, out in the public sphere. Civil society was quick to address this newly empowered venue with the issue of food sustainability, and several MEPs consequently picked up the issue (The Parliament Magazine 2014, Walls et al. 2016). While examples of MEP coherently addressing the issue of food sustainability have increased over the past years, a holistic approach to sustainable agriculture and food has not made it onto the agenda of the majority of MEPs, since no act has been adopted in that sense. However, a resolution on the future of food and farming adopted by the EP in May 2011 (Motion 2018/2037(INI)), makes the case for a synergy between the CAP and health-related policies: “a future-oriented CAP should be designed to better address critical health issues, such as
those related to antimicrobial resistance (AMR), air quality and healthier nutrition”10.
8 See for example EPHA 2016, EHN 2017, Eurogroup for Animals 2017 and Greenpeace 2018.
9 “At the moment greening has been designed and implemented mainly as a form of legitimization of the status
quo rather than as a strategy to make public intervention more sustainable.” (CARE 2017).
10 Opinions of EP committees made even clearer references to the need for more coherence in the EU’s policy landscape, each from their specific point of view. See for example Opinion of the Committee on the
It must be noted that some advocates haven taken things further than a potential CAP reform; “The problem with the CAP is not only what it does, but what as an agricultural policy it does not and cannot do.” (IPES 2017). Food is understood as a complex system, and food sustainability as an issue that needs to be addressed by a comprehensive policy solution that englobes all stages and actors of the food system. These actors point to the fact that the co-existence of ‘highly sectorialised and poorly aligned’ EU policies and sustainability agendas prevents the adoption of a coherent and comprehensive policy strategy on food:
“The discrepancies (between policies) demonstrate the limits of the current approach, where policies pull in different directions, reach for different objectives, and fail to strike synergies. These policies do not work together and are not delivering – neither individually or collectively. A food policy is needed to bring these policies into coherence and align them around common objectives.” (De Schutter 2017).
Interestingly, while explicit calls for a European policy on sustainable food might have originally emanated from civil society groups and expert panels, EU bodies and agencies have expressed similar opinions in recent years; The European Economic and Social Committee has called for ‘interdisciplinary thinking’, a general, ‘overarching’ sustainable food policy and better coherence and integration of all relevant policies (EESC 2016). The European Committee of the Regions has expressed the need for a comprehensive, integrated approach to food sustainability, ‘cross-sectoral synergies’ and a common and long-term vision (CoR 2017). Finally, the European Environmental Agency has noted the unsustainability of current food systems and the lack of an ‘overarching, consistent intervention logic’ in the EU and concluded that profound, long term and multidimensional change in practices, policies and thinking must occur, explicitly acknowledging the scientifically established inefficiency of animal-sourced products versus plant-based products (EEA 2017).
The various calls for action have however struggled with making it onto the EU agenda and have so far not been translated into concrete policy outcomes.
The European Commission, as the initiator of policy proposals, holds the keys for a change of direction. Under the Barroso Commission, it seemed first steps towards a common and global approach to a sustainable food system were going to be taken under the banner of resource efficiency. In its 2011 “Roadmap to a Resource Efficient Europe” (Commission 2011), the Commission identified the food sector as a key area for action and announced the publication of a communication on “Building a sustainable European food system” by 2014. For undisclosed reasons, said document was however never published.
environment, public health and food safety (26.4.2018) for the Committee on Agriculture and Rural Development on the future of food and farming (2018/2037(INI)), paragraph Y and paragraph 2.
The Juncker Commission, which succeeded the Barroso Commission in 2014, applied the principle of political discontinuity and withdrew or amended all policy projects which it thought not to be in line with its political priorities (Commission 2014). Plans for a sustainable food strategy were discarded but for the non-contentious aspect of combatting food waste. The issue of addressing the unsustainability of current production and consumption patterns of food in general and animal-sourced foods in particular seems to be invisible on the ‘issue radar’ of the current Commission and especially DG AGRI, as can be deduced from Commissioner Hogan’s multiple public statements in this sense.11
Regarding the CAP, which is due to be reformed for the post 2020 period, the Commission issued a Communication on the Future of Food and Farming” (European Commission 2017), in which it presented a somewhat ‘vague’ vision (European Court of Auditors 2018) of a CAP which would, amongst other things, “address citizens' concerns related to health, nutrition, food waste and animal welfare” (European Commission 2017), but without clear indications as to how the future CAP would address these concerns coherently and effectively. The issue of unsustainable production and consumption patterns was not addressed at all. The budget proposal from May 29th revealed that not much would change for the better, rather the opposite (Matthews 2018). The exact shape of the future CAP remains to be determined, as a long period of inter-institutional bargaining is expected to follow the Commission’s official CAP reform proposal due in June 2018.
The executive arm of the EU, whose policy credos are ‘Better regulation’ and ‘Doing less with more’, has in fact put a strong emphasis on the principles of subsidiarity and proportionality of all EU action when answering to direct queries regarding the enduring absence of a sustainable food strategy. In a 2018 response to a 2016 petition ‘on the failure of the European Commission to deliver a sustainable food strategy’ (European Parliament 2018), the Commission stated that it saw no need or reason for specific EU action in this field. In this respect the Commission has stated that, within national implementation of the CAP, Member States already dispose of sufficient tools to promote sustainable food production, that consumers already have the possibility to take sustainability considerations into account when purchasing products and, furthermore, that various EU policies already sufficiently cover this issue.
11“There’s no evidence whatsoever that the intake of these (meat and dairy) products are actually contributing
enormously to the emissions”. Statement made by Commissioner for Agriculture and Rural Development Phil
LITERATURE REVIEW
How to explain such a lack of congruence between the apparent necessity for policy action at EU level and the lack thereof, we asked ourselves. Which theorie(s) from the field of European studies and policy studies in general could help us understand how specific issues result or don’t result in the desired policy outcomes?
Authors studying the evolution of EU environmental policy have used the notion of ‘selective activism’ (Wurzel 2008, Jordan et al. 2012) to describe the latest ‘phase’ in the development of EU environmental policy (Wurzel 2008) which is, according to these authors, characterised by selective policy action; while some issues (for example energy and climate) are of strong political priority, environmental policy as a whole ‘struggle(s) to make headway (Jordan et al. 2012, 109), leaving important issues unaddressed. In light of this, one could say that addressing food production and consumption patterns in the context of environmental policy has so far been of limited political priority.
Erjavec and Erjavec have proven that critical discourse analysis can yield interesting results when applied to the recent evolution of the CAP; conceiving policy-making as a bargaining process, their research identified various competing discourses throughout the CAP’s evolution; neomercantilism/productivism, multifunctionality12 and neoliberalism (Erjavec and Erjavec 2009, Erjavec and Erjavec 2015). In 2009, they (correctly) predicted that multi-functionalist ‘greening’ discourse, popular with the media and the general public, would keep gaining in importance, as policy-makers (the Commission) were increasing efforts to legitimise the CAP’s important budget (Erjavec and Erjavec 2009, 224). One of the main conclusions of their research is however that “contemporary agricultural policy does not rely on a direct relationship between aims and measures, but rather, employs different discourses to justify policies” (Erjavec and Erjavec 2015, 60). These insights were useful in apprehending potential discrepancies between what policy-maker might say the CAP does and what the CAP actually does.
Agenda-setting theory seemed to be another promising theoretical approach, since it aims to “contribute to a better understanding of why the EU makes policies in certain issues areas and not others” (Princen 2012, 29) by questioning “why certain issues become part of the political agenda while other issues do not” (Princen 2012, 29). Two ‘basic conditions’ for successful entrance are identified. First, someone needs to attempt to bring an issue to the EU agenda.13 The second condition is perhaps more demanding: relevant14 EU policy-makers need to be
receptive to the issue at hand. (Princen 2012, 43). Obstacles to successful agenda entrance can be of institutional, ideational15 or socio-political nature. While this theoretical framework has
12 Multi-functional discourse allows for the integration of non-agricultural aspects such as environmental protection.
13In the case of food sustainability, the driving political force has been organized civil society, which is, according to sustainability expert Bosselmann, very common in sustainability matters (Bosselman 2008, 3).
14 In terms of power and resources.
to our knowledge so far not been applied to the issue of food sustainability, it helped us in identifying the most relevant venues for a change in policy on food, namely the Commission and the European Parliament, and it provided us with leads to potential obstacles.
In terms of the institutional set-up of the EU and the Commission in particular, the Commission’s position as sole gatekeeper of policy proposals (Richardson 2012), in combination with its own organisation into quasi-autonomous DGs ‘operating in silos’ (Nilson et al. 2016, 320), with diverging philosophies16, might have played a part in the prolonged absence of a comprehensive policy approach to food sustainability.
Bosselmann furthermore notes that “as sustainability lies squarely across individual disciplines, it easily slips through the gaps” (Bosselman 2008, 3), thus making it easier for unsustainable patterns within the food systems to remain unaddressed by the various EU policies in place (agriculture and fisheries, food safety, environmental protection, climate action, public health).
The CAP, as the most impactful policy on food (Pederson 2013), is seen as a central piece of the policy puzzle on sustainable food. Yet, change might not be easy; One of the oldest and most established EU policies, it has been described as an institution in its own right (Daugbjerg 2012, 88), as an ‘albatross hanging from the neck of an embattled Community’ (Tsoulakis 1993), as a ‘clumsy prehistoric mastodon’ (Milward 2000), an ‘anomaly’ with regards to the free market regime (Ward 2009), and an “impenetrable fortress built by farmers for farmers under the promontory of national sovereignty” resisting pressures for change (Roederer-Rynning 2010). Roederer-(Roederer-Rynning however concedes that due to succeeding reforms and political and legal evolutions the CAP has lost its ‘narrow sectoral character’ and allows for partial integration with other policies (Roederer-Rynning 2010, 182), meaning that while the walls of the ‘fortress CAP’ are still there, they are lower (Roederer-Rynning 2010, 182). As regards possible ideational and socio-political explanations, inter-governmentalist approaches generally stress the importance of Member States unwillingness to cede authority, due to sovereignty or subsidiarity concerns (Ward 2009) and in the context of the CAP, of the political importance of national ‘farming constituencies’ and the power of agricultural lobbies (Gardner 1987, Daugbjerg 2009, Ward 2009).
Much has also been written on the special nature of the CAP and attitudes and discourse of relevant policy-makers; authors such as Ward have traced the ‘myth of the blooming peasant’, the farmer “as a protected species, kept in a permanently rarefied economic atmosphere” and the farming world as a “special sector of the economy necessitating special assistance” back to General de Gaulle and Monnet (Ward 2009, 126).This ‘sticky’ ideational legacy is believed to have created “long-term impediments to the efficient moderni(s)ation of agriculture” and to
16 The Irish Co-operative Organization Society (in the public consultation on sustainable food systems): "EU
Envi/Climate Change policies often stifle the obvious need for us to grow production. Completely at odds with some Agri policy."
have “raised high political and institutional obstacles in the path of advocates of change”. (Ward 2009, 187)
More generally, authors have highlighted the importance of cross-sectoral thinking in the context of sustainable development (Bosselmann 2008, Nilson and al. 2016) and have criticised the artificial decoupling of food production and food consumption (De Schutter 2017) which allegedly makes it difficult for policy-makers to apprehend patterns within food systems. Bailey and al. for example identified a ‘remarkable lack’ of policy initiatives and campaigns addressing the production and consumption of meat and dairy (the most environmentally impactful animal-sourced products) in the context of climate action in particular. Interestingly, their extensive study revealed that “the received wisdom among governments and campaign groups appear(ed) to be that trying to reduce consumption of animal products is at best too complex a challenge, and at worst risks backlash.” (Bailey and al. 2016, 22)
RESEARCH FOCUS
While looking into these possible explanations for the lack of policy action on food production and consumption patterns, we discovered an intriguing element which has so far not been addressed in academic literature. In the analysis and comparison of the calls for a policy change on the one hand and responses from policy-makers, namely the European Commission, on the other hand, an interesting discrepancy emerged:
1.Very few actors working on getting the issue of food sustainability on the EU agenda used legal arguments or framed the issue of food sustainability in a legal way17.
2. The Commission, on the other hand, when challenged to take up the issue of food sustainability, responded with legal arguments such as a lack of a legal mandate, the principle of subsidiarity of EU action and the need for added EU value.
In other words, while for actors advocating for change law seemed to be of little interest in the quest for ‘their’ issue to be included in the EU agenda, a simple reference to EU primary law (the Treaties) seemed to clear policy-makers from any obligation to act. This mismatch struck us as particularly odd; it seemed as if both lines of argumentations were taking place on two different planes; the former from a perspective of factual necessity for policy action, the latter on a purely legal level.
In fact, within the theoretical approaches we considered, several authors stated that law was not a limitation to significant changes in policy or even in EU competences.
17 European networks of health policy experts such as the European Public Health Alliance (EPHA) and the European Heart Network are exceptional in this. Especially the EPHA makes smart use of the Treaties to argue for the CAP to integrate health. See EPHA (2016) A Cap for Healthy Living, p.13.
A greater number of actors refer to the EU and the Member States’ commitment to the Sustainable Development Goals, but as general and vague ‘goals’ of international law, their argumentative weight is relative, from a legal perspective (Nilson 2016).
One explicit example of such a statement stems from Rehbinder and Steward’s 1985 comparative analysis of the development of Environmental protection policy in the European Community and the United States:
“The lack of a secure legal basis for Community environmental policy does not play a significant role in the decision-making process. Therefore, contrary to what has often been argued, to the extent there is any danger of lowest common denominator Community solutions for environmental problems, it has nothing to do with the limitations of Community legislative powers. It is instead an institutional and political problem.” (Rehbinder and Steward 1985, 250)
Having devoted a significant number of years to the study of law in general and European law in particular, we paused at such a cool dismissal of the authority of law.
Another example, taken out of Princen’s article ‘Agenda-Setting and the Formation of an EU Policy-Making State’, is a bit more moderate; it recognises legal limits but relativises them significantly.
“The Treaties contain specific legal bases for action that define what issue areas the EU can deal with and what type of instruments are at its disposal. These limits are by no means absolute.” (Princen 2012, 31)
These statements led us to genuinely question the very nature of the relationship between the Treaties upon which the EU was/is built and European policy-making. What if they are two separate but interacting systems, each with their own set of norms and internal dynamic, as suggested by systems theory (Easton and al. 2001)? As concerns the apparent mismatch of argumentations pro and contra a sustainable policy approach to food, what if they fail to match because they stem from two different systems; the former from a dynamic political system, and the latter from allegedly rigid legal system? In that case, wouldn’t a thorough understanding of the inner workings of the system ‘primary law’ be necessary in order to understand the Commission’s arguments, and, perhaps, to test their validity?
In this light, we wondered what role European primary law plays in the evolution of European policy and whether primary law could be an obstacle to the adoption of a more comprehensive and sustainable policy approach to food.
Walls and al. conducted a series of interviews with agriculture and health stakeholders from both within and outside the Commission in an effort to determine the priority given to nutrition within the CAP (Walls et al. 2016). The authors concluded that there was an urgent “need to clarify the scope of the legal mandate for the EC and the CAP to address nutrition” (Walls 2016, 22). Respondents identified ‘avenues’ for addressing nutrition (beyond food safety) within the CAP, and while most respondents believed the Treaty mandate to be weak, “some respondents were of the view that if the will is there, nutrition can be legally justified as an
issue to be addressed by (the) CAP” (Walls et al. 2016, 22). Applying the same rationale, we believe there is a need to clarify the legal mandate of the European institutions to address the issue of food sustainability, within the CAP, and beyond.
In a more positive twist, we thus aimed to determine the potential for a policy shift within the current Treaty framework. We conducted an in-depth analysis of relevant parts of the Treaty on the Functioning of the European Union (TFEU), jurisprudence of the European Court of Justice, as well as secondary legislation and policy developments of the past decades in order to determine to what extent sustainability considerations could be integrated into EU policies on agriculture and food, and, more specifically, whether patterns of production and consumption of animal-sourced foods could be addressed in this context.
We were inspired by Michailakis words;
“Law cannot be an instrument for radically changing society, but it provides a perspective of looking at the world and communicating about it, and a better use of its possibilities may clarify and improve the decision-making process.” (Michailakis 1995, 336).
Preliminary Chapter: Policy Coherence and Integration Clauses
The Treaties contain a set of provisions which call for coherence within the EU policy landscape and the integration of various policies through cross-sectoral approaches. These provisions cannot be used as legal bases for EU measures and they do not contain a mandate for the establishment of new policies. In both cases, judicial review and annulment of non-complying measures by the European Court of Justice (CJEU) is possible, but unlikely to occur, given the great discretion left to the institutions in the fulfilment of their inherently political mandates (Jans and Vedder 2012, De Sadeleer 2014). However, these provisions serve the Court as principles of interpretation, especially in assessing whether EU action is appropriate and proportionate (Callies and Ruffert 2016). As the question of interpretation of law is central to this thesis, as we will proceed with analysing whether a more coherent and integrated approach to food is legally possible, we found it relevant to briefly present these provisions.
2.1 Policy coherence
In recent years, much attention has been drawn to the importance of policy interdependence (Wildavsky 1979, 64) and especially in the context of sustainable development; not only are all policy problems linked (one of the basic assumptions of neofunctionalism), their solutions are inevitably bound to interact too;
“Once we get so many big policy programs, the total policy space becomes densely rather than lightly packed, (and) they begin to exert strong effects on each other, increasing reciprocal relations and mutual causation.” (Richardson 2012b, 351) In the light of the above, the importance of policy coherence becomes evident. If the EU is truly a legal order, then coherence becomes an imperative (Michel 2009). Within the current Treaty framework, three provisions explicitly recognise this importance. The Treaties impose upon the institutions an obligation of “consistency between its policies and activities, taking all of its objectives into account” (Article 7 TFEU) and “consistency between the different areas of its external action and between these and its other policies” (Article 21(3) TEU). Furthermore, there is a call for an institutional framework which ensures the “the consistency, effectiveness and continuity of (the Union’s) policies and actions” (Article 13 TEU).
EU actions on agriculture, fisheries, environmental protection, climate change, biodiversity, food safety, animal welfare, as well as internal market and common commercial policies, should thus be designed and implemented under the general principle of policy coherence.
2.2 Integration clauses calling for a cross-sectoral approach
Within the current Treaty framework, there are several so-called ‘horizontal clauses’ (Callies and Ruffert 2016), calling for the coherent integration of various policies.
Source: De Sadeleer 2014
As regards policy on agriculture and food, Article 11 (Environment and Sustainable Development), Article 12 (Consumer Protection), Article 13 (Animal Welfare) and Article 168 (1) TFEU (Human Health Protection) are of importance. In addition, Article 114 (3) deserves particular attention, as it requires the pursuing of ‘a high level of protection’ for measures for the establishment and functioning of the internal market, when they concern ‘health safety, environmental protection, and consumer protection’.
As already mentioned, these clauses cannot be used as an independent legal basis for EU action, nor have they given cause for annulment of measures so far. However, they place upon policy-makers the formal obligation to take sustainability into account in all policies. It has been noted that the above-mentioned integration clauses are not necessarily to be placed on the same footing (De Sadeleer 2014, 24) as there are slight differences in their wording. Article 11 calls for the ‘integration’ of environment and under Article 168 (1) the protection of health must be ‘ensured’, but for the remaining integration clauses, a ‘taking into account’ of the respective interests is sufficient (De Sadeleer, 25). It is furthermore not clear what level and form of integration is appropriate, as there are no procedural specifications. This makes judicial review a delicate issue and therefore much space is left to the discretion of the EU institutions and legislature18. Still, if one is willing to consider the Treaties as ‘forming a consistent legal
18 On Article 11 TFEU (formerly Article 6 EC), see Opinion of Advocate General Geelhoed delivered on 26 January 2006, Case C-161/04 Republic of Austria v European Parliament and Council of the European Union, Paragraph 59: “Although this provision is drafted in imperative terms, contrary to what the Republic of Austria asserts, it cannot be regarded as laying down a standard according to which in defining Community policies environmental protection must always be taken to be the prevalent interest. Such an interpretation would unacceptably restrict the discretionary powers of the Community institutions and the Community legislature. At most it is to be regarded as an obligation on the part of the Community institutions to take due account of ecological interests in policy areas outside that of environmental protection stricto sensu. It is only where ecological interests manifestly have not been taken into account or where they have been completely disregarded that Article 6 EC may serve as the standard for reviewing the validity of Community legislation.”
system’, as does the CJEU, Treaty provisions “should be interpreted so as to help, and not hinder, the EU’s other policy objectives.” (De Sadeleer 2014, 25).
It becomes apparent that horizontal clauses and policy coherence provisions are based on a similar logic; Secondary legislation and EU action must be taken in full awareness of policy interdependences in an effort to create a comprehensive and efficient policy landscape. This legal logic perfuses many of the arguments in the following chapters, hence the importance to familiarise the reader with it preemptively.
Within the CAP: a closer look at the CAP objectives
3.1 No link to sustainability at first glance
Article 39 of the Treaty on the Functioning of the European Union (TFEU) lists the objectives to be pursued by the Common Agricultural Policy:
“(a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour;
(b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture; (c) to stabilise markets;
(d) to assure the availability of supplies;
(e) to ensure that supplies reach consumers at reasonable prices” (emphasis added)
These objectives, which have formally remained unchanged since the Treaty of Rome, are both of an economic (Article 39(a), (c) and (d)) and of a social nature (Article 39(b) and (e)) (Massot 2018).
The explicit objectives focus on maximum outputs, increased incomes for farmers, stable markets and levels of supplies, and keeping prices low for the end consumer. At first glance, there seems to be no reference and no possible link to sustainability, be it health, animal welfare or the environment.
A theoretically simple solution for including sustainability considerations into the CAP objectives would be the explicit inclusion of environmental protection, protection of human and animal health, and high standards of animal welfare, through a treaty change. The European Public Health Alliance for example has advocated for the explicit inclusion of the “promotion of public health” into the CAP objectives19, which would give EU policy-makers explicit
19 “Recommendation: Include the promotion of public health as one of the CAP’s core objectives, with a special
competence to address health and nutrition considerations linked to agriculture and food. Similar arguments can be made for environmental protection and animal welfare considerations. Yet, a closer look at the EU’s recent history reveals that treaty changes in general occur once in a blue moon and that potentially contentious proposals for change are easily blocked at institutional or national level, no matter which revision procedure is used (Broin 2010, De Witte 2012).
In our case the more flexible simplified revision procedure (SRP) could potentially be applied, since agriculture, environment and public health are all under Title III of the TFEU and thus qualify for the SRP as long as the proposed amendment does not increase EU competences (Article 48 TUE). Since additional CAP objectives are however likely to be perceived as entailing an increase of EU competences, the SRP would probably be set aside by the European Council, which is in charge of evaluating whether the proposed treaty amendments meet the criteria for the SRP. In that case, the inclusion of additional CAP objectives would have to pass through the more cumbersome ordinary revision procedure.
Given the current political climate of uncertainty as to the future of the EU and tensions between Member States, it can be assumed that both scenarios are unlikely to happen any time soon. We thus proceed with our analysis of possible shifts in policy based on the assumption that there will be no Treaty changes in the foreseeable future.
However, a closer look at the existing objectives and their history reveals that a treaty change might not be necessary for a significant shift in policy since their ‘ambiguous’ nature leaves room for various interpretations and political trade-offs.
3.2 The ambiguity of the CAP’s objectives
As Roederer-Rynning remarks, the treaty provisions on the ‘substantive objectives’ of the CAP are ‘characterised by ambiguity’;
“The Treaty called on policy-makers: to restructure the farm sector in order to free resources for the rest of the economy while stabilizing the market; and to protect farmer income while securing reasonable prices in supplies to customers.” (Roederer-Rynning 2010, 180)
Reconciling these competing objectives “placed policy-makers in a situation where they had to square the circle.” (Roederer-Rynning 2010, 180) It is then not surprising that settled case law of the Court of Justice of the European Union (CJEU) recognises that these objectives cannot all be fully achieved at the same time (Massot 2018).
“The objectives of the common agricultural policy shall be: ... (f) To facilitate and not to counteract the attainment of high levels of human health within the Union as well as beyond its borders and in particular to promote the attainment of healthy sustainable diets.” (European Public Health Alliance 2015)
According to Ward the authors of the original treaty provisions were neither ‘sloppy’ nor ‘badly informed’, they had simply ‘recorded the reality of political fragmentation’ existing at the time (Ward 2009). The ‘legal ambiguity’ of the CAP objectives is thought to have been but a reflection of the ‘absence of political consensus’ amongst the six founding Member States (Ward 2009, Roederer-Rynning 2010). Ambiguous and potentially competing objectives thus left space for political negotiations along the shaping and implementing of the actual policy. This also left ‘the Union legislator’ with “considerable room for manoeuvre when it (came) to choosing instruments”as well as determining the scope of succeeding reforms (Massot 2018). Legally ambiguous and potentially competing CAP objectives also left the door open for legal interpretation, and the CJEU has dared putting a foot in said door. Despite the ‘considerable room for manoeuvre’ left to EU policy-makers’, judicial review by the CJEU has thus played an important role in determining how to go about balancing the CAP objectives.
In Ludwigshafener Walzmühle v Council and Commission (Cases 197-200/80), the Court, referring to its own line of jurisprudence, laid down the following principle: “ (...) the institutions must reconcile the various objectives laid down by Article 39, a fact which precludes the isolation of any one of those objectives (...) in such a way as to render impossible the realisation of other objectives (...)” (Cases 197-200/80, paragraph 41). In this specific case, the Court found that efforts to achieve the objective of market stabilisation could not compromise the objectives of ensuring rational development of agricultural production and assuring the availability of supplies.
This principle was repeated as a clear formula in many succeeding cases, such as Biovilac v Commission (Case 59/83, paragraph 16). Another interesting variant of the formula incorporates the idea of ‘permanent harmonisation’ between conflicting objectives: “(...)in pursuing the objectives of the common agricultural policy the Community institutions must secure the permanent harmonisation made necessary by any conflicts between those objectives taken individually(...)” (Case C-280/93 Germany v Council, paragraph 47).
But where does one draw the line in terms of ‘rendering the realisation of other objectives impossible’? How are agricultural policy-makers, having to ‘square the circle’ in the pursuit of competing objectives, supposed to navigate potential conflicts? And are all objectives equally important?
Through evolving case law, the Court provided some answers to these questions. In Germany v Council (Case C-280/93), it conceded that, where necessary, ‘temporary priority’ might be given to any one of the CAP objectives. Interestingly, the power to temporarily prioritize objectives over others was seen as intrinsically linked to the Community’s discretion in implementing a common market organisation (Case C-280/93, paragraph 50). It was thus perhaps not surprising that the Court linked the institutions’ temporary favouring of certain objectives to “demands of the economic factors or conditions in view of which their decisions are made (...)” (Case C-280/93, paragraph 47, emphasis added). In this light, one could expect
the more economic CAP objectives (Article 39(a), (c) and (d)) to weigh in more than the more social objectives (Article 39(b) and (e)).
The Court itself however quickly widened the scope of factors or conditions to be taken into account when considering temporarily prioritising certain CAP objectives over others: “(...) in pursuing the various aims laid down in Article 39 of the Treaty the Community institutions must constantly reconcile any conflicts between those aims taken individually and, where necessary, give any one of them the temporary priority which the facts or circumstances, in view of which their decisions are made, require (...)” (Case C-122/94, paragraph 24, emphasis added).
The category ‘facts or circumstances’, much wider than the notion of ‘economic factors or conditions’ likely opened the door for political and social circumstances to be able to openly influence the delicate act of balancing the CAP objectives. One can read on the European Parliament website that in achieving the potentially conflicting CAP objectives, the ‘Union legislator’ must “take account of market trends and the priorities set by the Union institutions at any given time” (Massot 2018). This seems to confirm that the CAP objectives are by now perceived as securely inscribed in the wider political context of the EU. The concept of ‘priorities set by the Union institutions at any given time’ is particularly interesting: ‘priorities’ can be set by anything from general political declarations, international engagements or EU legislation, to policy objectives or policy strategies. The notion ‘at any given time’ shows a strong potential for temporal variations and evolution.
3.3 The further relativisation of CAP objectives through the notion of public interests
Other than noting the competing nature of the explicit CAP objectives held by Article 39 TFEU, the CJEU has long picked up on their scantiness as such; by putting them in the wider context of ‘public interests’ on multiple occasions, the Court has indicated that these objectives cannot be pursued in isolation of other ‘interests’ of the Union.
In Beef Labelling (Case C-269/97) the Court for example directly linked health to the objectives of the CAP:
“(...)the protection of health contributes to the attainment of the objectives of the common agricultural policy which are laid down in Article 39(1) of the Treaty, particularly where agricultural production is directly dependent on demand amongst consumers who are increasingly concerned to protect their health (...).
The Court furthermore stated that “efforts to attain the objectives of the Common Agricultural Policy cannot disregard requirements relating to the public interest such as the protection of consumers or human health.” Hervey interpreted this as the definite establishment of “health protection objective as a constituent part of the objectives of the CAP” (Hervey 2011, 1432).
In paragraph 23 of its judgement in the combined cases of Viamex Agrar Handels GmbH (C-37/06) and Zuchtvieh-Kontor GmbH (C-58/06), the Court referred to its own jurisprudence regarding the relation between efforts to achieve explicit CAP objectives and public interests “such as the protection of the health and life of animals”:
“(...)the Court has held on a number of occasions that the interests of the Community include the health and protection of animals (...). In particular, it held that efforts to achieve objectives of the common agricultural policy cannot disregard requirements relating to the public interest such as the protection of the health and life of animals, requirements which the Community institutions must take into account in exercising their powers, in particular in relation to common organisations of the markets.”
Taking into account the above reasoning, could one not conclude that by its current and ongoing facilitation of the endangerment of the environment and public health and the compromising of animal health and welfare by unsustainable food production and consumption patterns, the CAP (and EU policy as whole) is in breach of EU law by disregarding public interests?
Furthermore, by weighing the explicit CAP objectives against ‘public interests’, the Court clearly relativises them; they are not absolute objectives to be pursued in isolation of other objectives of the Union. “EU institutions must reconcile the various objectives laid down in both the TEU and the TFEU. Prioritizing one objective should not render the achievement of the other objectives impossible” (De Sadeleer 2014, 24), as established for example in the CJEU jurisprudence on competing CAP objectives which we have presented in the previous section. The integration clauses presented in the introductory chapter reinforce the requirement to consider all interests at hand, and while they have so far not lead to the invalidation of a measure, they guide the Court, as principles of interpretation (De Sadeleer 2014, 28).
Additionally, the reference to consumers’ ‘increasing’ concern in Beef Labelling (Case C-269/97) is equally revealing, as it again demonstrated the judges’ willingness to contextualise the Treaty-based objectives of the CAP and interpret them in the light of legal, political and societal evolutions. This might not please ‘literalists’, who argue that ‘constitutional’ documents such as Treaties should be interpreted strictly, but it might please ‘interpretivists’, who argue that any interpretation of law is evolutionary and will therefore change over time (Mancini and Keeling 1994, 186).
3.4 The informal evolution of CAP objectives
While the explicit CAP objectives have remained formally unchanged since the Treaty of Rome, their ambiguous wording has indeed proven flexible enough to accommodate the procession of CAP reforms which started in the 1970s. It could be argued that each reform brought with it a recalibration of the formal CAP objectives and even the introduction of new,
‘informal’ objectives, especially when one considers the fact that Commission proposals for reform of the CAP come with a different set of proposed CAP objectives, reflecting shifts in the policy’s priorities over time (Roederer-Rynning 2010).
In fact, from the very start, one of the main objectives of the policy was not formulated as such in the explicit objectives; Whilst addressing food and nutrition was not included in the explicit objectives of the CAP, it is generally recognised that there was a strong food security and nutrition motive behind the idea of a common policy on agriculture; a continent still recovering from war and battling with malnutrition had to be fed (Lang and Heasman 2004, Roderer-Rynning 2010). At the time of the launch of the CAP in 1962, of the CAP’s explicit objectives the highlighted ones were thus ‘providing affordable food for EU citizens’ and ‘a fair standard of living for farmers’ (European Commission website).
After half a decade of growth and steadily increasing outputs, the 1968 Mansholt proposal for a CAP reform aimed for modernisation of agriculture, increased income for farmers, and avoiding overproduction through more sensible use of subsidies and market stability strategies (Gardner 1987, Griffiths 1990). However, the proposal was watered down significantly due to political resistance of the farming community and the 1972 reform introduced only minimal changes (Gardner 1987, Griffiths 1990, Roederer-Rynning 2010).
More than a decade later, it had become evident that Mansholt’s predictions of looming overproduction and ensuing market volatility had materialised, and the stories of ‘wine lakes’ and ‘butter mountains’ have since become part of popular folklore (Ward 2009). The 1984 reform thus recognised the problem of overproduction and introduced market stabilising measures with the objective of bringing supply levels closer to market demand (Roederer-Rynning 2010).
The 1992 MacSharry reform however represents perhaps the most significant change of path in the CAP’s evolution (Daugbjerg 2009). In light of the GATT/WTO negotiations and the United States’ insistence on at least partial liberalisation of the CAP, policy-makers more or less embraced the (long-term) objective of designing and implementing a policy that would not distort competition on the international market (Daugbjerg 2009), hence the introduction of semi-decoupled direct payments as a first step in decoupling production from support (CARE 2017). Interestingly, the 1992 reform coincided with the Rio Earth Summit, which led to the adoption of the principle of sustainable development in international law (Bosselmann 2008) and to the inclusion of the promotion of ‘sustainable and non-inflationary growth respecting the environment’ into the tasks of the Union by the Maastricht Treaty (Article 2 EC). It is thus not surprising that the MacSharry reform also ‘planted the seeds’ for another CAP objective to be, the promotion of ‘sustainable agricultural production’, namely through the introduction of agro-environmental programmes:
“(...) the agro-environmental measures were widely acknowledged as the first attempt to create a body of measures specifically and explicitly addressing the connections between agriculture and the environment and natural resources. That
was a first articulate response to the criticism levelled at the CAP as the main cause of the pressure arising from intensive agriculture.” (CARE 2017, 45)
The political attention received by the concept of ‘sustainable development’ continued to rise after the Rio Summit, and the Amsterdam Treaty, which came into force in 1999, granted the idea of sustainability as such ‘quasi constitutional status’ (Bosselmann 2006) by specifically referring to the promotion of ‘balanced and sustainable development of economic activities’ under Article 2 (tasks of the Union) and strengthening the requirement of integrating environmental considerations into all economic policies through the creation of a new Article 3C (Poostchi 1998, 78). At the Gothenburg Council in 2001, there was agreement on the “general objective that the CAP should contribute to sustainable development, as launched by the Treaty of Amsterdam, by increasing emphasis on health, high quality products, environmentally friendly production techniques, renewable raw materials and biodiversity” (CARE 2017, 45) which had previously been proposed to the Council by the Commission’s Strategy for Sustainable Development (European Commission 2001).
Of great interest is here the new focus on public health in the context of a more sustainable CAP. Writing in 2001, Reheul et al. recognised that the series of food crises which had struck the Union around the turn of the millennium (BSE, dioxin, foot and mouth disease) had led the ‘general public’ to become ‘increasingly critical’ about issues of food quality and safety (Reheul et al. 2001). The 2001 Strategy for Sustainable Development (European Commission 2001), identified the threats to public health caused by antibiotic resistance and infectious diseases and proposed that food safety and quality should be made the objective of all players in the food chain, agricultural producers included. As for the CAP, the Commission envisioned a ‘reorientation of support’ in order to “reward healthy, high-quality products and practices rather than quantity” (European Commission 2001). Interestingly, this went beyond food safety in the strictest of senses (namely infectious diseases and contaminated products); the Strategy also announced a phasing out of support for tobacco production (European Commission 2001). The Commission thereby implicitly recognised that some products are per se unhealthier than others and that the CAP’s new objective of contributing to the sustainable development goal of the Union called for a realignment of its support system.
The Fischler reform in 2003 symbolised a further step in the push towards greater liberalisation, initiated in 1992, and in the taking into account of sustainability considerations (Daugbjerg 2009). While Member States retained the possibility to couple a small percentage of subsidies to production, the bulk of direct payments was to be decoupled from production gradually, meaning a shift from producer support to income support for farmers based on the area of farmable land at their disposal. In addition, the reform introduced a cross-compliance mechanism; direct payments were made conditional upon the fulfilment of a body of EU standards on food safety, environmental protection, animal health and animal welfare. While the objective of contributing to the production of ‘healthy food products’ was not as prominent as one could have expected given earlier developments, the 2003 reform did initiate the accelerated phasing out of subsidies for tobacco production. This indicates that the health objective had ‘stuck’ with policy-makers to some extent.
In its 2007 Strategy on Nutrition, Overweight and Obesity (European Commission 2007) the Commission recognised the CAP’s impact on ‘healthy consumption’:
“Healthy choice is about ensuring the existence of healthy options for the consumer. The Common Agricultural Policy (CAP) plays an important role in food production and supply in Europe. As a result, by ensuring the availability of the foods that Europeans eat, it can also play a role to help shape the European diet and to fight against obesity and overweight.” (European Commission 2007).
The Commission then pursued by stating its commitment to the goal of integrating health issues into the CAP20 and as ‘the most recent example’ of this commitment, the Strategy cites the
“reform of the Common Market Organisation (CMO) for fruit and vegetables”. Said CMO was aimed at the promotion of the consumption of these products and in 2009, a fruit and vegetable scheme agreed upon by Member States was introduced, allowing for the free distribution of fruit and vegetables in schools, funded by the CAP’s budget. This seems to indicate at least a partial integration of agricultural, food and health promotion policies. However, while the 2013 reform (and the 2008 ‘Health Check’ reform) still mentioned the need to promote ‘sustainable farming’ and ‘the productive use of land’, the main focus seemed to have shifted away from ‘contributing to sustainable development’ and to have landed back on more market-oriented and productivist objectives. New were the emphasis on flexibility and simplification of payment schemes (Pederson 2013). The reform proposal also referred to greater ‘fairness’ of payments, between Member States and between recipients, and social and territorial balance. This has been interpreted as the first introduction of the social dimension of sustainability in the context of the CAP (Erjavec and Erjavec 2015, 60).
On the Commission’s website, one can read that the main objectives of the renewed CAP were to ‘strengthen the competitiveness of the sector’, to ‘promote innovation’, and to ‘support jobs and growth in rural areas’ (European Commission 2013). Furthermore, while the Commission’s proposal for the 2013 reform had mentioned the importance of ‘fostering green growth’ through, amongst other things, the support of ‘new patterns of demand’, the reform itself did not follow up on this objective. Overall, the renewed CAP was defined as based on the “lowest common denominator” (Pederson 2013, 21), for which a partial explanation was thought to be first time involvement of the European Parliament as co-legislator and the difficult negotiation process that ensued (Pederson 2013).
The Commission’s 2017 Communication on the Future of Food and Farming (European Commission 2017) again placed the onus on competitiveness of the agricultural sector and a simplification of schemes and greater flexibility for Member States. However, as mentioned in the introduction, addressing citizens’ concerns “related to health, nutrition, food waste and animal welfare” was cited as one of the objectives of the future CAP (European Commission
2017). While no clear indications were given as to how the future CAP would address these concerns coherently and effectively, the inclusion of this new, ‘informal’ sustainability objective could indicate a shift toward a more integrated policy approach.
One must keep in mind that all of these developments occurred without a change to a single word of the CAP’s formal objectives since the entry into force of the Treaty of Rome, despite several Treaty changes and amendments occurring in the meantime. This seems to prove that these objectives are indeed capable of accommodating significant shifts in policy, which in turn means that they are susceptible to various interpretations. In this light, we asked ourselves, what could a contextualised interpretation of specific CAP objectives look like today?
3.5 A contextual interpretation of the CAP objectives
The CAP objective of rational development of agricultural production
Point (a) of Article 39 TFUE states that in order to “increase agricultural productivity”, the CAP shall ensure “the rational development of agricultural production”.
“En bon père the famille” is a formula commonly used in French21, Belgian and Luxembourgish law and especially in contract and administrative law; it leads judges to ask ‘did the person act in a reasonable, diligent, ‘good household’ manner, by application of common sense’ when assessing whether a person is at fault and it contains the idea that the application of law must go hand in hand with the notion of common sense. Is current policy aiming to achieve Article 39 TFEU reasonable, is it a sound policy? Is productivity being increased in a sensible way?
It can be argued that any development of agricultural production claiming to be rational in the long run must per se be a sustainable one, by making sure finite natural resources are used wisely and that neither the environment, human health, or animal health/welfare are compromised. The ‘prudent and rational use of natural resources’ is in fact one of the four objectives of EU environmental policy (Article 191 (1) TFEU), which, by virtue of the environmental integration clause should perfuse all EU policies (De Sadeleer 2014, 21-22). The precautionary principle, also enshrined in Article 191 (2) TFEU, sets the bar even higher; are risks recognised and handled properly? In this context, the importance of assessments becomes evident:
“Careful assessment of the full effects of a policy proposal must include estimates of its economic, environmental and social impacts inside and outside the EU. (...) Assessments should take a more consistent approach and employ expertise available from a wide range of policy areas” (Commission 2001)
Article 2 (1) (a) of the 7th Environment Action Programme (Decision No 1386/2013/EU) sets the protection, conservation and enhancement of the ‘Union’s natural capital’ as one of the
Programme’s priority objectives. A 2017 report from the European Environmental Agency on food sustainability clarifies the relationship between sustainable development and irrational production and consumption patterns:
"The EU has a long-term sustainability vision of 'living well, within the limits of our planet' by 2050. This vision, set out in the 7th EAP, recognises that Europe's economic prosperity and, countries have achieved a transition to high levels of human development by adopting production and consumption patterns that put a disproportionate burden on the environment.” (EEA 2017, 9)
The EU (as well as its Member States) has furthermore committed itself to implementing the United Nations’ Sustainable Development Goals (SDGs) (United Nations 2015), both in its external as in its internal policies (European Commission 2016).
The concepts of policy interdependence and policy coherence, as explained in the preliminary chapter, are central to the idea of sustainable development. ‘Policy coherence’ is explicitly recognised as one of the 17 Sustainable Development Goals of the UN 2030 Agenda (UN 2016) “Implicit in the SDG logic is that the goals depend on each other” (Nilson et al. 2016, 321). While it is not yet clear ‘exactly how’ the interdependence of goals should be approached in law and policy, it has been argued that “ignor(ing) the overlaps and simply start trying to tick off targets one by one, risk(s) perverse outcomes”, such as an improvement of energy access through the promotion of coal plants and hence the acceleration of climate change (Nilson et al. 2016, 321) Seeking to achieve the range of sustainability goals “individually and without looking at interactions between them would be folly.” (EHN 2017, 20) As early as 2001, the Commission recognised that a ‘new approach to policy-making’ was needed if sustainable development was to be achieved:
“Although the Union has a wide range of policies to address the economic, environmental and social dimensions of sustainability, these have developed without enough co-ordination. Too often, action to achieve objectives in one policy area hinders progress in another, while solutions to problems often lie in the hands of policy makers in other sectors or at other levels of government. This is a major cause of many long-term unsustainable trends. In addition, the absence of a coherent long-term perspective means that there is too much focus on short-term costs and too little focus on the prospect of longer term "win-win" situations.” (European Commission 2001)
The Commission then pursued by observing that “the main challenges to sustainable development (...) cut across several policy areas. Accordingly, a comprehensive, cross-sectoral approach is needed to address these challenges.” (European Commission 2001) In addition, in order for the various to be able to work hand in hand, the Commission conceded that “sustainable development should become the central objective of all sectors and policies.” (Commission 2001).
