The comitolgy procedure is a fast track procedure and it is well known for not being transparent, for lacking democratic oversight and for giving to much power to unaccountable committees composed from Commission officials and civil servants from Member States. The system is extremely complex and complicated. Citizens are not aware of its existence and no one understands its rules. There is little information about the Committees’ meetings and their documents are not easily accessible to citizens. In fact, there is no public access to the Committees’ meetings, hence decisions on implementing EU legislation have been adopted behind closed doors. 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. Unsurprisingly, the Lisbon Treaty has given more powers to the European Commission and the European Parliament.
The Lisbon Treaty has substantially modified the framework for the Commission’s implementing powers. The Treaty on the Functioning of the European Union (TFEU) now distinguishes between “legislative acts” and “non-legislative 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 entails no comitology procedures, but the committee proceedings will continue to apply to implementing acts. The main responsibility for implementing EU laws belongs to the Member States nevertheless a basic act must confer implementing powers to the Commission when there is a need for uniform implementing conditions. Article 291 (1) provides “Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission …” It is, therefore, for the European Parliament and the Council, by respecting the criteria laid down in this provision, to decide in each legislative act to confer implementing powers on the Commission. 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. 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.” Its purpose is to reform the comitology procedure and to implement Article 291 TFEU. It did not took 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 agreement on a new mechanism for controlling the Commission’s use of implementing powers, just before Christmas. The Regulation enters into force today (1 March 2011) replacing Council Decision 1999/468/EC, the Comitology decision.
According to Maroš Šefčovič, the European commissioner for Inter-institutional relations and Administration “The new rules establish a system of control by Member States of the implementing powers given to the Commission which will be simpler, more efficient, more transparent and in full compliance with the Treaty.” If the aim of the reform was to clarify and make the procedure easier and more democratic such aim was not achieved. The new system continues to be very complex, untransparent and gives even more decision-making powers to the Commission.
The Minister for Europe, Mr David Lidington, told to the European Scrutiny Committee “that the Government's firm view was that the draft Regulation should be re-balanced in favour of greater Member State control of the Commission's implementing acts.” According to the minister the negotiations have been “successful”. However, Member states will have reduced influence on the EU's day-to-day decision-making.
The European Scrutiny Committee has noted that the UK abstained from the vote in the Council, pointing out that “this was a decision the Minister was obliged to take if he wished to avoid breaching the scrutiny reserve resolution, it is not symptomatic of taking scrutiny seriously."
The new regulation maintains the committee structure as established in the Comitology Decision. 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: the advisory, the management, the regulatory and the regulatory with scrutiny, 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 that “A basic act may provide for the application of the advisory procedure or the examination procedure, taking into account the nature or the impact of the implementing acts required.” Up till now the EU legislator could decide on the basis of non binding criteria which committee proceedings had to be applied, but from now on the advisory procedure is set as a rule as the examination procedure may be applied only if certain criteria are met. 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 where the implementing measures are “of general scope“, or relate to the common agriculture and fisheries policies, the environment and the common commercial policy. 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 Regulation’s provisions are too vague which create a considerable room for manoeuvre for the Commission at the Member States expenses. The Commission may try to enforce the non-binding advisory procedure whereas the Council has interest in ensuring that Member States have a right to veto provided in the examination procedure.
The Regulation provides for common rules to advisory and examination committees. Hence, as presently, both types of committee would be comprised of representatives of Member States (civil servants) chaired by a representative of the Commission. The chair is required to submit to the committee a draft of the proposed implementing act and the committee is required to deliver its opinion on the draft within a time-limit set by the chairman. Any committee member may suggest amendments until the committee delivers an opinion, and the Chair may present amended versions of the draft acts. The Chair is not allowed to take part in the committee vote.
Under the advisory procedure the relevant committee delivers its opinion on a draft implementing act by a simple majority of its component members. The opinion delivered is not legally binding for the Commission. The Commission has full discretion whether to adopt, amend or withdraw the proposed implementing act, due to the non-binding nature of the committee’s opinion. Having established the advisory procedures with a non-binding opinion by the committee as the general procedure it would be easier to adopt implementing measures. Member States have lost control, in fact they 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 examination procedure will, particularly apply, for the adoption of measures of “general scope” aimed at implementing basic acts and specific measures relating to: programmes with substantial implications, common agricultural and common fisheries policies, the environment, security and safety or protection of the health or safety of humans, animals or plants, the common commercial policy and taxation .The procedure provides for control by the Member States so that acts cannot be adopted if they are not in line with the opinion of the committee, however in “exceptional circumstances”, the Commission will be able, in spite of a negative opinion, to adopt and apply acts for a limited period of time. Under the examination procedure, the relevant committee is required to deliver its opinion on a draft implementing measure by QMV, either for positive or negative opinion. 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. The Commission is only prevented from adopting a draft implementing act by a qualified majority vote by the committee. Under the previous system, member states were able to block a Commission proposal by a simple majority.
The regulation provides for several procedural rules that confer on the Commission a considerable room for manoeuvre at the Member States expenses. Member States were not able to kept as much control as they had under the comitology procedure. If the committee delivers a negative opinion, the Commission cannot adopt the draft measures. However, “Where implementing acts are deemed to be necessary, the Chair may either submit the draft acts within one month to the appeal committee for further deliberation or submit to the committee within two months an amended version of the draft acts.” If the Committee delivers a negative opinion on the draft measures, the Commission has the possibility to re-submit the draft to the committee for a second deliberation, or table an amended draft. However, in “exceptional circumstances”, the Commission is able to adopt the draft measures notwithstanding a negative opinion. It is incomprehensible why the Commission may, against a negative opinion of the committee, adopt implementing measures. The provision under which Commission may under “exceptional circumstances” ignore the committee’s opinion is quite ambiguous and leaves a lot of room of manoeuvre for the Commission.
Article 7 of the Regulation provides that “… the Commission may adopt the draft acts where they need to be adopted without delay in order to avoid creating a significant disruption of the markets in the area of agriculture or a risk for the financial interests of the Union within the meaning of Article 325 of the Treaty on the Functioning of the European Union.” 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 without delay. 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, except in cases of acts concern taxation, financial services, the protection of the health or safety of humans, animals or plants, or definitive multilateral safeguard measures, without prejudice to Article 7. The lack of opinion from the relevant committee does not prevent the Commission from adopting a measure. If there is no qualified majority against or in favour of a Commission draft implementing 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 and there is no role for the European Parliament. The Commission has more room for manoeuvre when there is not a clear majority for or against its proposed acts.
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 trade policy and has gained an unjustified power on 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.
The Regulation provides if no opinion is delivered by the committee in charge and a simple majority of its members opposes the draft act relate to definitive antidumping or countervailing measures, “The Commission shall conduct consultations with the Member States.” Then, “the Commission shall inform the committee members of the results of those consultations and submit a draft act to the appeal committee” which will deliver an opinion. Moreover, the regulation foresees “for a period of 18 months after the entry into force of this Regulation the appeal committee shall deliver its opinion on definitive draft anti-dumping or countervailing measures by a simple majority of its component members.”This was introduced at the UK government insistence.
There is only an exception to the normal rules, which the Commission regrets, as it will still need a positive opinion from the relevant committee to adopt implementing acts related to "definitive multilateral trade safeguard measures.” This is the only case where the Commission is required to have a positive opinion from the relevant committee to adopt the draft implementing act.
Under the new Regulation “Where appropriate, the control mechanism should include referral to an appeal committee which should meet at the appropriate level.” Hence, under the new system there can be no intervention from the Council as an appeal body, but the regulation provides for an "appeal committee". But, 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 immediately repeal the acts adopted. However, the Commission may maintain the acts in the “exceptional cases” above mentioned. The regulation specifically provides that “Where the Commission adopts provisional anti-dumping or countervailing measures, the procedure provided for in this Article shall apply.”
The new regulation has kept the comitology decision’s provisions regarding public access to information on committee proceedings. Hence, the commission statement that “All comitology procedures will be conducted in full transparency: all documents submitted to the committees are simultaneously disclosed to the European Parliament and to the Council” is misleading as all citizens will remain in the dark. The commission will keep the register containing information on committee proceeding which will contain: a list of committees, the agendas of committee meetings, the summary records, together with the lists of the authorities and organisations to which the persons designated by the Member States to represent them belong, the draft acts on which the committees are asked to deliver an opinion, the voting results, the final draft acts following the opinion of the committees, information concerning the final adoption of the acts by the Commission, and statistical data on the work of the committees.
The European Parliament and the Council will play no role in the control of the exercise of the implementing powers by the Commission but they will have full access to all committee documents through the existing comitology register, which would be adapted to the new procedures. The European Parliament and the Council will have access to the above-mentioned documents. However, public access to information on committee proceedings would continue to be limited to references of documents only. No one knows who sits on the committees.
Under the new system the European Parliament or the Council would “ be able at any time to indicate to the Commission that, in its view, a draft implementing act exceeds the implementing powers provided for in the basic act, taking into account their rights relating to the review of the legality of Union acts.” There is therefore a right of scrutiny for the European Parliament and the Council. Hence, the European Parliament or the Council may indicate to the Commission that they consider a draft implementing act to exceed 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 consider it has exceeded the implementing powers.