On the Role of Comitology in the Changing EU Policy Process

Jaanika Erne |

EIPA Publications website

EIPA Publications website

The Centre of European Law of the King’s College of the University of London and the European Institute of Public Administration (EIPA) are holding a 2-day-training seminar from 18th to 19th February 2010 on the role and the workings of committees in the process of EU policy making – „21st Century Comitology: The Theory and Practice of Implementing Committees in the EU“.

The seminar introduces:

● The role of Expert Advisory Groups working with the Commission;

● Working groups and committees within the structure of the Council of Ministers – analysis of the formal procedures under which these committees work;

● The role of the European Parliament in scrutinizing comitology;

● The relevant case law of the ECJ.

● Two aspects of comitology undergoing Lisbon reform processes:

— the changing architecture of EU regulatory committees in the area of financial services regulation, and

— the new legal acts to implement EU legislation (the implementing acts) and „delegated acts“.

What Comitology is? – Comitology is about adoption by the European Commission of the legally-binding delegated acts, or implementing acts that are not legislative acts, on the basis of EU secondary legislation. The Commission is adopting the acts in cooperation with committees consisting of representatives from the Member States (usually civil servants who need not meet regularly, but rather on demand) and chaired by the Commission. For that aim, different procedures have been introduced that are supervised by the European Parliament (who has now equal with the Council position in the procedures).

This means delegation of detailed decision taking powers by the legislator (Council of Ministers) to the executive (Commission) in different areas, such as technical standards, humanitarian aid, GMO-s, transport, etc. At the same time, the EU Member States to certain extent control the powers delegated by the Council to the Commission. Should there be a disagreement between the national representatives in a committee and the Commission, the Council interferes. Both, the Council and the Parliament may revoke the delegation or veto any piece of delegated legislation (despite the committees’ views).

Article 290 TFEU:

1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.

The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.

2. Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows:

(a) the European Parliament or the Council may decide to revoke the delegation;

(b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.

For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority.

3. The adjective “delegated” shall be inserted in the title of delegated acts.

Before the Treaty of Lisbon, the procedure was renewed by the Council Decision No.2006/512/EC of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission that regulates „measures of general scope designed to amend non-essential elements of a basic instrument adopted in accordance with the procedure referred to in Article 294 of the TFEU, including by deleting some of those elements or by supplementing the instrument by the addition of new non-essential elements”, which means only delegated legislation amending legislation that implements measures adopted under co-decision either by supplementing or repealing the existing measure, whereas under the other procedures, the Commission submits a draft to the Committee who can approve it by qualified majority. Under the regulatory committee with scrutiny, the measure is forwarded to the Council and the Parliament who may veto the measure within three months if it:

● exceeds the implementing powers in the basic instrument;

● is not compatible with the aim or the content of the basic instrument;

● does not respect the principles of proportionality and subsidiarity (previously referred: Chalmers, Monti, pp. 39-40).

The Communication of the Commission on the implementation of Article 290 TFEU (COM(2009) 673 final), setting out the Commission’s views on the scope of the delegated acts, the framework for delegations of power, the working methods the Commission intends to use for preparing the adoption of delegated acts and the conditions under which the legislator might exercise control over the way the powers conferred on the Commission are implemented.

Euractiv: http://www.euractiv.com/en/priorities/comitology-problem-solved-dispute-postponed/article-161359

The Commission may also take implementing acts that can be either individual acts, or acts of general application (whereas the delegated acts (290) cannot be individual acts). If adopting delegated acts (290), the Commission is authorized to  supplement or amend the legislator’s work, then when taking implementing acts (291), the Commission does not exercise quasi-legislative powers, but it exercises purely executive powers. Finally – if the delegated acts are defined by their scope and consequences, the implementing acts are determined by their rationale. And when the basis of delegated acts is Article 290 TFEU, the basis for implementing acts is Article 291 TFEU:

1. Member States shall adopt all measures of national law necessary to implement legally binding Union acts.

2. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on European Union, on the Council.

3. For the purposes of paragraph 2, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.

4. The word ‘implementing’ shall be inserted in the title of implementing acts.