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Reformed “Comitology”, the route to a dominating EC

The European Commission is in charge of implementing legislation at the EU level. The Commission has been assisted by committees, while executing legislation delegated to it by the Council. Such a procedure is known as comitology and involves a series of complex procedures and four types of committees (advisory, management, regulatory and regulatory committees with scrutiny), working according to different procedures and different levels of legislative control over the Commission. The comitolgy procedure is a fast track procedure and it is well known for not being transparent, for lacking democratic oversight and for giving too much power to unaccountable committees composed of Commission officials and civil servants fromMember States. The system is extremely complex. There is little information about the Committees’ meetings and their documents are not easily accessible to citizens. Has this situation changed with the Lisbon Treaty? No.

The Lisbon Treaty introduced new provisions for procedures for implementing EU legislation, which replace the comitology procedure. It has substantially modified the framework for the Commission’s implementing powers and, unsurprisingly, it has given more powers to the European Commission and the European Parliament.

The Treaty on the Functioning of the European Union (TFEU) now distinguishes between “legislative acts” and “nonlegislative acts.” It also makes a distinction between the delegation of powers to the Commission, meaning the Commission’s delegated and implementing powers, which before the Lisbon Treaty entry into force were all subject to the comitology procedure. There are, therefore, two different legal frameworks, Article 290 (delegated acts) entails no comitology procedures, but the committee proceedings will continue to apply to implementing acts, provided in Article 291.

Under the EC treaty the Council was in charge of conferring implementing powers on the Commission, but under the Lisbon Treaty this is a direct obligation deriving from the Treaty. Article 291 confirms that the main responsibility for implementing EU laws belongs to theMember States, nevertheless a basic act must confer implementing powers to the Commission when there is a need for uniform implementing conditions.

The Lisbon Treaty has put the European Parliament and the Council on an equal footing as regards the conferral of delegated and implementing powers.

The Member States are responsible for controlling the implementation by the Commission where such control is required by a legally binding act. Hence, a legal framework is required to set up the mechanisms of such control. Formerly, the Council acting unanimously, through the consultation procedure, decided the rules governing the exercise of the Commission implementing powers. But, as abovementioned, the Lisbon Treaty has increased the role of the European Parliament and such rules are now decided through the ordinary legislative procedure with QMV required at the Council.

Last March, the Commission presented a proposal for a regulation “laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.” It did not take long for the Council, the European Parliament and the European Commission to reach an agreement to reform the EU’s comitology system that establishes the rules governing how thousands of decisions are taken annually by the European Commission. The European Parliament endorsed such an agreement just before Christmas. The Regulation will enter into force on 1 March 2011 and will replace the Comitology Decision. If the aim of the reform was to clarify and make the procedure simpler and more democratic this aim was not achieved. The system continues to be very complex, untransparent and gives even more decision-making powers to the Commission.

The new regulation maintains the committee structure as established in the Comitology Decision, but the European Parliament and the Council will no longer participate in the committee proceedings.Whereas before the Lisbon treaty, there were four types of procedures, under the new regulation the Commission’s exercise of implementing powers will be subject to the advisory procedure or to a new examination procedure, which replaces the management and regulatory procedures. The Regulation provides for common rules to the advisory and examination committees. Hence, as presently, both types of committee would be comprised of representatives of Member States (civil servants) chaired by a Commission representative.

Under the advisory procedure the relevant committee delivers its opinion on a draft-implementing act by a simple majority of its component members. Such opinion is not legally binding for the Commission, which has full discretion whether to adopt, amend or withdraw the proposed implementing act. Up till now the Council could have decided on the basis of non binding criteria which committee proceedings had to be applied, but from now on, the advisory procedure is set as the rule. Having this procedure as a general rule, obviously it would be easier to adopt implementing measures. Member States are put at a disadvantage, as under this procedure they have no relevant impact on the adoption of implementing measures and cannot prevent them, in the other hand the Commission has gained an unjustified power.

The advisory procedure can be applied to all policy areas and for all types of binding implementing measures. In the other hand, the examination procedure can only be used in exceptional cases and if certain criteria are met, where the implementing measures are “of general scope”, or relate to the common agriculture and fisheries policies, the environment and the common commercial policy and taxation. Nevertheless, the advisory procedure may also apply, “in duly justified cases,” for the adoption of the implementing acts referred to these areas.

However, the Regulation provides no definitions of “general scope” or “duly justified cases”, consequently there are no limits to discretion. The Commission may try to enforce the nonbinding advisory procedure whereas the Council has interest in ensuring that Member States have a right to veto provided in the examination procedure. However, the regulation provides for several procedural rules that confer on the Commission a considerable room for manoeuvre at the Member States expenses.

Under the examination procedure, the relevant committee is required to deliver its opinion on a draft implementing measure by QMV. The Commission will adopt the draft acts if the committee delivers a positive opinion. Under the new examination procedure it is not the Council, as it used to be under the regulatory and management procedures, but the committee itself (composed of member states civil servants) that may prevent the adoption of the draft measures by the Commission if a qualified majority is against it. If the committee delivers a negative opinion, the Commission cannot adopt the draft measures. However, in “exceptional circumstances”, incomprehensibly, the Commission is able to adopt the draft measures notwithstanding a negative opinion of the relevant committee. If according to the Commission the non-adoption of an implementing act would create a significant disruption of the markets or a risk for the security or safety of humans or the EU’s financial interests, the Commission would be able to adopt the draft measures despite a negative opinion. In this case, the Commission must submit the adopted acts to the appeal committee for a second opinion. If the appeal committee delivers a negative opinion on the adopted acts, the Commission must repeal the measure adopted, but, if the appeal committee delivers a positive opinion or delivers no opinion, those acts will remain in force.

If the committee in charge delivers no opinion, the Commission may adopt the draft acts. If there is no qualified majority against or in favour of a Commission draftimplementing act, the Commission may decide whether to adopt the act or review it. Under the Comitology Decision, the Commission was obliged to adopt the draft measures where the management committee was unable to deliver any opinion, and where the Council has not taken a decision under the regulatory procedure. The new regulation abolishes this obligation. The Commission is completely in charge as proposals would no longer be referred to the Council.

The European Commission has been trying to reduce member states’ influence on the EU’s decision-making on implementing acts, particularly as regards trade issues. The UK and other member states have tried, without success, to remove trade policy from the comitology reform. Consequently, they will see their ability to influence trade policy reduced. In the other hand, the Commission has acquired more influence over issues such as trade defence instruments or anti-dumping measures.

Implementing measures in trade defence measures such as anti-dumping duties have been submitted to special procedures whereby the Council had the last word however the new regulation provides that such measures will be included in the normal regime. Hence, trade measures, including anti-dumping and “countervailing definitive measures,” are now subject to the new standard comitology rules, therefore only a qualified majority vote in a comitology committee against a draft implementing act can prevent the Commission from adopting it. There is only one exception to the normal rules, which the Commission regrets, as it is required to have a positive opinion from the relevant committee to adopt implementing acts related to “definitive multilateral trade safeguard measures.” 

Under the new system there can be no intervention from the Council as an appeal body, but the regulation provides for an “appeal committee.” However, as the Commission pointed out “this is just a “normal” committee, chaired by the Commission.” The Commission will adopt the draft acts if the appeal committee delivers a positive opinion or delivers no opinion, but it cannot adopt them if the appeal committee delivers a negative opinion.

The Regulation also provides for specific procedures to apply to “immediately applicable acts.” Hence, “on duly justified imperative grounds of urgency”, the Commission “shall adopt acts which shall apply immediately and shall remain in force for a period not exceeding six months unless the basic act provides otherwise.” Then, the Commission submits such acts to the committee in charge to obtain its opinion. If the examination procedure applies and the committee delivers a negative opinion, the Commission must repeal the acts adopted. However, the Commission may maintain the acts in the “exceptional cases” above mentioned.

The new regulation has kept the comitology decision’s provisions regarding public access to information on committee proceedings. The commission will keep the existing comitology register, which would be adapted to the new procedures, containing information on committee proceedings such as: a list of committees, the agendas of committee meetings, the voting results, information concerning the final adoption of the acts by the Commissions. The European Parliament and the Council will have access to all committee documents. However, public access to information on committee proceedings would continue to be limited to references of documents only, hence all citizens will remain in the dark.

The new regulation provides for a right of scrutiny for the European Parliament and the Council. The European Parliament or the Council may indicate, at any time, to the Commission that they consider a draft-implementing act exceeds the implementing powers provided for in the relevant EU legislation. In these cases, the Commission is required to review the draft act in question, “taking account of the positions expressed”, but it just has to inform the European Parliament and the Council of what it intends to do, meaning “whether it intends to maintain, amend or withdraw the draft implementing act.” So, it seems that the Commission may adopt an implementing act even if the Council or the European Parliament considers it has exceeded the implementing powers.

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ABOUT BILL CASH MP

Bill Cash has been the Conservative Member of Parliament for Stone since 1997 and an MP since 1984.

He is currently the Chair of the European Scrutiny Committee and the founder member of the European Foundation...

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