EU Procedures Tweaked

The EU’s main Institutions have agreed changes to an increasingly important but still – to the broader public – obscure legislative process known as “Comitology”.

“Comitology” refers to the powers held by the European Commission to adopt legislation, without a vote in Parliament and often in camera, that is seen as “implementing” legislation – in other words, measures that “implement”, in theory, the technical details of broader legislative acts that were adopted by the European Parliament and the EU Member State governments.

While these “Commission measures” theoretically only specify the “details” left open by the broader Parliament and Council measures, in practice it is often precisely these technical “details” that make all the difference, as they are, often enough, the real substance of the legislation in question.

The new changes have come about as a result of a requirement in the Lisbon Treaty, which states that the European Parliament and the Council must lay down rules regarding mechanisms of control by Member States of the Commission’s use of these “implementing powers”.

The official goal is to make the process more efficient, more transparent, and simpler. The new rules also give more power to the European Parliament by making it equal to the Council.

The new rules are set to come into force on 1 March 2011.

What will the new regulation do?

Introducing “delegated acts”

As a result of the Lisbon Treaty, ‘delegated acts’ are set to replace the way the comitology system has been functioning up until now.

New procedures

The regulation makes clear that the Commission’s work in regard to draft implementing acts should be divided up into two parts: the advisory procedure and the examination procedure.

The advisory procedure will apply to the adoption of draft implementing acts that do not fall within the scope assigned to the examination procedure (see below), although there could be exceptions to that (if it could be justified). A Committee should, when dealing with an issue that falls under this procedure, deliver its opinion (possibly by voting, which in that case needs to be backed by a simple majority if it is to go through). It is nonetheless the Commission that will decide whether to adopt the act or not and thus only needs to take the opinion of the Committee into account. In regard to the specifics of the Treaty and its relation to this procedure, Article 3 of Council Decision 1999/468/EC (i.e. the advisory procedure) will be substituted by Article 4 (which also focuses on the advisory procedure).

The examination procedure, in contrast to the advisory procedure, differs in the sense that if the committee in question delivers a positive opinion, then the Commission has to adopt the draft implementing acts. In the cases where a Committee does not deliver an opinion the Commission will, with a few exceptions, also have to adopt the text. However, a draft implementing act will not be adopted if the Committee decides to vote against it (which will require a qualified majority). In the case of the Commission not adopting a draft measure, the Chair may submit to the committee an altered version of the draft measure.

The examination procedure applies to the adoption of: 
• implementing acts of general scope;
• other implementing acts relating to:
- programmes with significant implications;
- security and safety or protection of the health or safety of animals, plants or humans and the environment;
- common fisheries and common agricultural policies;
- taxation;
- the common commercial policy.
 
In regard to the specifics of the Treaty and its relation to this procedure, Article 4 and 5 of Council Decision 1999/468/EC (i.e. the management procedure and regulatory procedure) will be substituted by Article 5 of this regulation (i.e. the examination procedure)

Impact on current procedures

The regulation makes clear that Article 5a of Council Decision 1999/468/EC (which is repealed by this regulation), which states that the Commission has to be helped by a regulatory committee (composed by Member States’ representatives and chaired by a Commission representative), will still be in force. In cases where measures, adopted before this regulation enters into force, provide for the use of implementing powers by the Commission with the aforementioned Council Decision, new articles will substitute for previously used ones:

• Article 6 (i.e. safeguard procedures) of Decision 1999/468/EC will be substituted by Article 8 (i.e. Immediately applicable acts)
• Articles 7 (i.e. different procedure relating to such things as proposing a chairman, public access to documents etc) and 8 (i.e. the Commission exceeding its implementing powers) of Decision 1999/468/EC will be substituted by Articles 10 (i.e. information on committee proceeding) and 11 (i.e. Right of scrutiny for the European Parliament and the Council) of this regulation 
• The second and third subparagraph of this Regulation will however not apply where a basic act makes reference to Article 4 of Council Decision 1999/468/EC 

Changes to the functioning of the Council 

The new regulation makes clear that, from now on, there can be no Council interventions as an appeal body. What this means is that the current system will continue to function as it has up until today in the sense that representatives of Member States will be the people working in the different committees to which the Commission submits its draft implementing acts. However, instead of there being the possibility to go the Council with an appeal, there will be in, in some instances, an appeal committee (chaired by the Commission), which will allow for the reconsideration of draft implementing acts. 

Trade defence 

The new regulation will also introduce new changes to the different aspects relating to trade defence (i.e. the European Union's defence against unfair trade practices). The big change in this regard will be that the Council will from now on not have the last word concerning issues in this area and this will also contribute to an increase in the effectiveness and transparency of the implementation of policies.

Conduct of the Commission

The Commission must, when contemplating the adoption of draft implementing acts relating to certain sensitive areas (such as consumers‘ health, taxation, protection of the environment and food safety) act, as far as possible, in a manner that aims to prevent itself from going against any position that might come from the appeal committee against the appropriateness of a draft implementing act. This is done in order to find a balanced solution.

Simplification

The new regulation will ensure, from the first day of its implementation, that there will have to be a qualified majority vote by a committee against a draft implementing act in order to prevent the Commission from adopting it. Also included in the drive to simplify the functioning of comitology procedures is the establishment of common rules regarding how the Committees operate. This encompasses such things as the key issues relating to the functioning of the Committees’ proceedings and their possibility to give opinions by written procedure.

Commission discretion

If there were to be a situation in which there is no qualified majority in favour of, or against, a Commission draft implementing act, the Commission will have the discretion to decide whether to adopt or review it. However, in regard to definitive multilateral trade safeguard measures, the Commission needs a positive opinion from the Committee. Excluding this one exception, these new rules for the comitology process aim to avoid the problem of having the process becoming too politicisised, limiting lobbying and ensuring a more solid trade defence policy.

Openness

The European Parliament and the Council will be informed about committee proceedings on a regular basis. The same two institutions will also have ‘scrutiny right’ (i.e. they can raise concerns about a measure being considered going beyond the powers given to the Commission by the Treaties). If they were to use this power, the Commission will have to give an explanation outlining what it intends to do about it.

Comitology register

The regulation properly institutionalises the (already existing) comitology register by stating that information concerning committee procedures have to be kept by the Commission. Rules concerning classified documents and their protection will apply to the register.

Next steps

This regulation will enter into force on 1 March 2011.