Limiting Legislative Scrutiny?

The Commission has just presented proposals to definitively complete the transition from the old system of Comitology to the new system of ‘Delegated Acts’ created by the Treaty of Lisbon, in accordance with plans announced by the Commission in 2011.
 
Two proposals were presented. One amends a raft of legislative measures in broad range of policy areas, while a second deals with five measures in the area of Justice that are based on a completely different chapter of the Treaty. (Note: currently only the French-language versions of the proposals are available; the English versions will be published as soon as they are finalised.)

While this might appear at first glace to be an obscure procedural change, the effect on businesses and on citizens should not be underestimated. These Comitology measures lay down specific rules on very practical parts of the economy – things such as labelling rules, product authorisations, and many other high-impact issues. And the changes proposed by the Commission considerably reduce the transparency of the process of adopting these laws.

Among other things, therefore, these changes are unlikely to allay the fears of those who believe that the EU of a “democratic deficit”. Some have already accused the Commission of a power-grab executed with highly cynical timing, coordinated to coincide with European Parliament elections. The suspicion is that the proposals were timed to fall between a departing Parliament that may not care very much, and a fresh one that may be naïve or inexperienced at defending its interests in the continual Brussels inter-Institutional power tussle.

Of course, the Commission’s proposals must be approved by the Member States as well, and it is already known that at least some of them will be unhappy with what has been proposed. In one form or another, change to Comitology is coming, but the details may well be adjusted by the Council.

Background

In the EU, as in all legislatures, procedures exist for the adoption of supplementary technical measures that enable the legislator to implement existing legislation or to adapt/update legislation to changes in technical or scientific progress.  In the EU the name given to such measures was ‘Comitology’.

The Comitology system is considered to have started during 1960’s when the Commission created procedures for the consultation of “expert committees” (hence the name ‘Comitology’), whose members were “experts” seconded by Member States, to help in the drafting of supplementary technical measures for the implementation of the Common Agricultural Policy (CAP).

During the late 1980’s, horizontal rules on Comitology were put in place to help streamline the various expert committees and the Council then adopted a measure to streamline the procedure for the adoption of Comitology measures.

In parallel to this development, successive Treaties had extended the European Parliament's powers, making it a co-legislator on equal footing with the Council. In 1999 new horizontal rules governing Comitology were adopted setting out the procedures and providing the European Parliament a limited oversight (Decision 1999/468/EC).

This Decision was then amended in 2006 to introduce a new Comitology procedure, known as ‘Regulatory procedure with scrutiny’ or RPS (Decision 2006/513/EC). This procedure extended the Parliament’s powers giving the right to examine measures proposed under Comitology and allowing it to veto certain Comitology measures under strict conditions.

The Lisbon Treaty however foresaw the abolition of the old Comitology system and its replacement with two new types of measures: Implementing Acts (Article 291 TFEU) and Delegated Acts (Article 290 TFEU), adopted through different procedures respectively.

The Commission explained how the new delegated acts would be implemented in a Communication published at the end of 2009 (COM(2009)673) and the new system for Implementing Acts was introduced through a Regulation (EU) No 182/2011 which entered into force on 1 March 2011.

Although the old Comitology system was abolished, the ‘Regulatory procedure with scrutiny’ system was maintained with a view to replacing it with “delegated acts” by 2014.

Implementing Acts vs Delegated Acts

The new system makes a separation between tasks delegated to the Commission that only require pure implementation, Implementing Acts, and those that allow the Commission to amend, supplement or delete non-essential elements of the legislative act, Delegated Acts.

Article 290 for delegated acts, and Article 291 for implementing acts constitute two separate legal frameworks so everything that is a delegated act is dealt with solely under Article 290 and everything that is an implementing act is dealt with solely under Article 291.

Delegated acts are always to amend and supplement legislation and are by nature non-essential. This means that a law can exist without these rules. Delegated acts are just another layer so it is not an essential part, but it’s a part that supplements the basic legislation.

Implementing acts are also non-legislative acts but they implement the legislation and are essential. For example the legislator might need to set the levels of fees for the authorisation of certain products through an EU Agency. Without implementing acts, which actually set those levels, the law would not have any practical effect as not authorisation could be processed. So, implementing acts are often essential.

Delegated Acts

Delegated acts do not follow a horizontal procedure anymore, there are no formal committees of national experts the Commission’s acts alone and takes a decision (in practice there is in fact an informal consultation with national experts however).

An inter-institutional agreement known as the ‘Common Understanding’, sets out a template for how these articles should be included in the basic legislation that can be copied and pasted into a piece of legislation. It sets out how long the Commission holds this power for; it is usually 3 to 5 years that can be renewed; how long the Parliament and the Council have to scrutinize a measure that the Commission has adopted.

After the Commission has adopted a measure, the Parliament or the Council usually have two months, extendable by two months have scrutinize it. The measure can be vetoed by the institutions during this period for any reason whatsoever but it cannot be amended. They can also revoke the power of delegation.

In the Parliament, an absolute majority of all MEPs is needed not just those voting (376 votes out of 751) and in the Council a qualified majority until 2014, 255 votes out of 345 (with Croatia’s accession these figures hold true, afterwards new figures are in force), representing 62% of the EU’s population and at least 14 Member States out of 27 must be in favour. From 2014, 55% of Member States representing 65% of the EU’s population must support a measure for qualified majority.

Delegated acts are controversial because the Commission will be solely responsible for adopting them. As such measures will now be prepared internally by the Commission, there is far less transparency in the how such measures have been developed and the stakeholders and experts consulted in their preparation.

Furthermore, as such measures will no longer be submitted to an expert committee, and will therefore not appear on a publicly available register (e.g Comitology Register) before their adoption by the Commission, stakeholders will have less chances of being warned early about such measures and a limited window of opportunity to act.

Current alignment of existing legislation with the new system of implementing acts and delegated acts

Starting 2010 the Commission adopted a series of specific proposals to replace the references to the old Comitology procedure with those of implementing acts and delegated acts. These proposals were mainly in the area of the Common Agricultural Policy (CAP), Common Commercial Policy (CCP) and Common Fisheries Policy (CFP), notably:

• Amending Regulation (EC) No 1365/2006 on statistics of goods transport by inland waterways as regards conferring of delegated and implementing powers upon the Commission for the adoption of certain measures COM (2013) 484
• Agricultural and fishery statistics: aligning certain legislative acts with the TFEU COM(2012)0724 
• Conservation of fishery resources through technical measures: alignment of the Regulation with the TFEU (Commission delegated and implementing powers) COM(2012)0432 
• Fishery resources: recovery of the European eel stock; aligning the Regulation with the TFEU (Commission delegated and implementing powers) COM(2012)0413 
• Imports of olive oil and other agricultural products from Turkey: alignment of Regulations with the TFEU (Commission delegated and implementing powers) COM(2011)0918
• Community tariff quotas for certain meat and cereal products: alignment of Regulation with the TFEU (Commission delegated and implementing powers) COM(2011)0906
• Common commercial policy: aligning certain acts with the TFEU (Commission delegated powers) COM(2011)0349  
• Common commercial policy: aligning certain acts with the TFEU (Commission implementing powers) COM(2011)0082 
• Common agricultural policy CAP: support schemes for farmers, voluntary modulation of direct payments; alignment of the Regulation with the TFEU (Commission delegated and implementing powers) COM(2010)0772 
• Common agricultural policy CAP: financing; alignment of the Regulation with the TFEU (Commission delegated and implementing powers) COM(2010)0745

The proposed Alignment of existing legislation with the new system of delegated acts

The latest proposals follow the Commission’s analysis carried out in 2012 that identified 288 measures which still included references to the Regulatory Procedure with Scrutiny.

The Commission found that 60 Directives or Regulations were already in the process of being revised and therefore delegated acts would be introduced during the legislative process and therefore did not need to be dealt with.

The Commission has therefore presented two proposals. The first amends 5 Regulations in the area of justice COM(2013)452 these measures need to be aligned by a separate proposal as they were adopted under a legal basis pursuant to Title V part III of the TFEU and therefore do not bind all Member States, and are thus irreconcilable with the legal bases of the other basic acts.

The second and more significant proposal COM2013(451), will amend 160 different pieces of legislation to replace all existing references to the Comitology regulatory procedure with scrutiny with the new system of delegated acts. The full list of measures affected is included in the Annex to the Commission’s proposal and cover the following policy areas (the figure provided below represents the number of measures affected):
• ICT (2)
• Employment and social rights (20)
• Climate Action (2)
• Energy (6)
• Enterprise and Industry (15)
• Environment (29)
• Statistics (19)
• Internal Market and services (3)
• Transport and mobility (36)
• Health and Consumers (27)
• Tax and Customs (1)
 
In line with the Common Understanding the Commission proposes that no time limit is imposed on the delegation of powers. In any case the delegated powers of the Commission can be revoked at any time by the Parliament and the Council.

The proposal provides the Parliament and Council 2 months to examine a delegated act adopted by the Commission and raise any objections. This period can be extended by a further 2 months upon request by the Parliament or Council. Should the institutions indicate that they will not oppose the measure before the time limit has expired the Commission can proceed with the adoption of the measure.

Where legislation specifically states that the scrutiny period under the old RPS system was reduced on the grounds of efficiency (Article 5a 5(b), the Commission proposes a reduced time limit for raising objections under the new system of delegated acts of 1 month instead of 2.

The proposal also states that it will have no bearing on on-going Comitology procedures where a Regulatory Committee has already given its opinion on a draft measure.

Next Steps

The proposals will be adopted following the ordinary legislative procedure and therefore will only be adopted following an examination by the European Parliament and the Council both of which will be able to propose amendments.

The Commission is also preparing a third proposal to align all the remaining legislation to the new system for delegated acts, this proposal is expected to be presented by the Commission before the end of 2013.