Belgium: Comitology After The Lisbon Treaty

Last Updated: 14 December 2010
Article by Darren Abrahams

Overview

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions