Belgium: Comitology After The Lisbon Treaty

Last Updated: 14 December 2010
Article by Darren Abrahams


Previous editions of EU Analyst have examined how key decisions on EU environment and life sciences regulation are taken behind closed doors. In the EU legal framework, 'comitology' committees (made up of a representative from each EU Member State and chaired by the European Commission) simply implement rules laid down by the Council. However, this is deceptive since their decisions authorise products (e.g. active substances in plant protection and biocidal products and GMOs) and make minor, but commercially significant, amendments to legislation (e.g. the adoption of exemptions to legislation). This has led to a demand for increased transparency and democratic participation. It is hard to understate the importance of comitology in the formation of EU regulation. In 2009, there were 266 comitology committees in operation. In the 2004- 2009 legislative term of the European Parliament ('Parliament'), these committees completed a total of 447 'co-decision' matters. In contrast, in 2009 alone, comitology committees delivered 2,091 opinions and adopted 1,808 implementing measures. In this article we explain how the Treaty of Lisbon has substantially amended the rules governing how such decisions will be taken in the future. The amended rules will potentially have significant consequences for the balance of power among EU institutions and for stakeholders.

Comitology today: a refresher

Comitology committees today operate under four principal procedures set out in Council Decision 1999/468/EC, with more than half of the committees applying more than one procedure:

  • Advisory procedure: The committee issues its nonbinding opinion (voting by simple majority) on the Commission's draft measure, which the Commission must take the 'utmost account of ' before it adopts.
  • Management procedure: If the committee (voting by qualified majority) agrees with the Commission's draft measure it is adopted immediately, but if it opposes a draft measure the Commission must refer it to the Council which may adopt a different decision (also voting by qualified majority).
  • Regulatory procedure: If the committee (voting by qualified majority) opposes the Commission's draft measure, it must be referred to the Council and the Parliament must be informed. The Council (also voting by qualified majority) may agree to the Commission proposal or oppose it. If it opposes, the Commission will re-examine the proposal and may; (i) amend it for the Council to re-consider; or (ii) re-submit it without amendment; or (iii) present a full legislative proposal. If the Council does not take a decision or achieve a qualified majority for or against, the Commission can adopt it. (The Parliament may inform the Council if it considers that a proposal submitted by the Commission exceeds the Commission's implementing powers provided for in the underlying legislation, but has no vote or veto. Its sole recourse to protect its prerogatives is to the Court of Justice of the EU.)
  • Regulatory procedure with scrutiny: This is the most recent of the procedures (adopted in 2006) and applies two main variants to the regulatory procedure. Firstly, the Parliament may oppose (and thereby veto) the adoption of proposed measures even where the committee agrees with them. It can do this where the draft measures; (i) exceed the implementing powers provided for in underlying legislation; (ii) are not compatible with the aim or content of the basic instrument; or (iii) do not respect the EU principles of subsidiarity or proportionality. Secondly, where a proposed measure is vetoed the Commission does not have the option to re-submit it without amendment. Its only alternative is either to submit an amended draft measure or to present a full legislative proposal.

The new regime

The Treaty on the Functioning of the EU ('TFEU') establishes two separate (mutually exclusive) procedures that will replace those that currently apply:

  • The 'delegated act' procedure (based on Article 290, TFEU) allows the Commission to adopt 'non-legislative acts of general application to supplement or amend certain non-essential elements' of a legislative act. The original legislative act must expressly grant this 'quasilegislative' power to the Commission. The objective of this procedure appears to be to allow the Commission, exercising its discretion and judgment, to adopt measures to achieve administrative efficiencies. The procedure is likely to be used (but not exclusively) in circumstances where the current regulatory procedure with scrutiny applies.
  • The 'implementing act' procedure (based on Article 291, TFEU) allows the Commission to implement 'legally binding Union acts'. In doing so, the Commission exercises an 'executive' power. The objective of this procedure appears to be to provide the Commission with the power to act to achieve uniform implementation of an act. The procedure is likely to be used in circumstances where the current advisory, management, and regulatory procedures apply.

Delegated acts procedure

The TFEU does not contemplate adoption of legislation to give effect to this procedure. It is, apparently, selfexecuting. Nonetheless, the Commission, Parliament, and Council are at present discussing a 'standard formula' process for the adoption of delegated acts. In December 2009, the Commission set out its views on how the procedure should operate in a Communication and the Council adopted a Declaration. In March 2010, the Parliament set out its views in an own-initiative report by its Committee on Legal Affairs.

The Parliament is keen to see the practical arrangements for the adoption of delegated acts to be set out in a statement of 'Common Understanding' or some form of interinstitutional agreement. This may be difficult, given that there appears to be disagreement between the Commission and Parliament on two essential issues:

  • The delegated acts procedure under the TFEU removes the institutional role of the current comitology committees (which vote on proposals). The Commission does, however, intend to consult Member State representatives 'systematically' (perhaps via existing or new expert groups). This position, which is strongly supported by the Council, will enable it to gather input from those who ultimately will be responsible for the application of delegated acts. The Parliament considers that committees of Member States should 'have no role to play in this area' and entirely rejects the formal consultative role which the Commission proposes. The Parliament's view is that national experts should be treated no more favourably than any other stakeholder who may be consulted.
  • The Commission and Parliament disagree on the scope and nature of scrutiny by the Parliament and Council. The TFEU provides for two express mechanisms for scrutiny by the Council and Parliament: (i) a specific right of objection to delegated acts (likely to be used in most cases); and (ii) a general right to revoke a power of delegation given to the Commission (likely to be used exceptionally). However, the Parliament considers that these two forms of scrutiny are 'purely illustrative' and that other forms of control could be exercised, such as: (i) express approval of each delegated act; or (ii) the ability to repeal individual delegated acts already in force. The two institutions also disagree on the appropriate time limits during which scrutiny can be exercised. The Parliament proposes a case-by-case approach with a minimum scrutiny period of two months, which could be extended by a further two months. The Commission advocates a short, standard time limit of two months, which could be extended by one month.

The diagram on the following page sets out the standard formula as proposed by the Commission.

Implementing acts procedure

The TFEU requires the institutions to adopt 'rules and general principles' for the operation of this procedure. Accordingly, in March 2010 the Commission issued a proposal for a Regulation establishing those rules and procedures and repealing the current comitology procedures in Council Decision 1999/468/EC (which remain in force despite their incompatibility with the TFEU). The institutional role of the current comitology committees, composed solely of Member State representatives, will remain but their decision-making rules will change significantly.

The current advisory procedure (explained above) would become the general procedure for adoption of implementing acts. The current management and regulatory procedures would be replaced by a new 'examination procedure' for 'implementing measures of general scope' and other implementing measures relating to: (i) the common agricultural and fisheries policies; (ii) environment, security, and safety or protection of the health or safety or humans, animals, or plants; and (iii) the common commercial policy.

One of the most significant changes under the examination procedure is that, under the Commission's proposal, neither the Parliament nor Council would continue to play a formal role in the comitology procedure. In May 2010, the Parliament adopted a draft report on the Commission's proposal, in which it called for a greater role by both institutions. A further important change is the increased flexibility given to the Commission in various scenarios. For example, if the committee fails to deliver an opinion within the time limit, the Commission would no longer be forced to adopt a measure but would have the option to do so. This new discretion will be of particular importance in politically sensitive policy areas. The diagram below sets out the new examination procedure as proposed by the Commission.

Next steps

As will be obvious from the above, the transition to the new comitology regime has not been completed. The old system will apply, at least in part, until the new Regulation establishing the examination procedure enters into force. However, the significant changes outlined above will present challenges for stakeholders hoping to influence their regulatory and business environment. It would be prudent for those concerned, especially in politically sensitive product sectors, to make their views known during the legislative passage which will lead to the adoption of the new examination procedure. They should also monitor the current debate in order to ensure that they fully understand and can participate in the new comitology procedures in the form ultimately adopted.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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