Select Committee on European Communities Third Report


DELEGATION OF POWERS TO THE COMMISSION: REFORMING COMITOLOGY

INVOLVEMENT OF THE EUROPEAN PARLIAMENT

(i) Experience to date

95.  The 1987 Decision made no reference to the European Parliament. As the Commission described it, the European Parliament's involvement in comitology procedures "has developed out of practice and has been systematised slowly piece by piece through inter-institutional arrangements" (Q 4). (The position as contained in the so-called Plumb-Delors agreement, the Klepsch-Millan agreement, the modus vivendi, and the Samland-Williamson agreement is described in Part 2 of this report).

96.  The European Parliament's powers have increased, in particular by the development and extension of the co-decision procedure. Yet the Parliament had, Mr Türk (KCL) said, "an insignificant role to play in the implementation process". It had made numerous efforts to participate in comitology and had used its legal, budgetary and political powers to draw Member States' attention to the issue. But, in Mr Türk's view, the reaction of Member States had been adverse: "they regard comitology as an area vital for the preservation of their interests and see the intervention of the EP in this area as an unnecessary interference with those interests"(p 58).

97.  Mr Türk described the current arrangements for the European Parliament's participation in comitology as having resulted in an enormous complexity. It had not worked satisfactorily (p 62). Mr Cassidy MEP said that the modus vivendi had not been a modus operandi (Q109).

98.  In theory the Commission will, on the same day and in the same language as the proposal is sent to the committee members, forward a copy to a designated official in the Committee Directorate of the European Parliament. That official then refers the proposal to the relevant committee of the Parliament, where the committee chairman and the secretaries take an initial look to see whether it should be raised in the committee itself. Mr Cassidy described the process as "a huge paper chase", with Commission sending over "vast bundles of files" (Q113). However, Mr Corbett MEP said that Parliament was not receiving all the documents it should under the present agreements. It was sometimes necessary for the Parliament to chase up the Commission to enable the system to work (QQ  111, 114).

99.  Mr Dupuy, for the Commission, described the present arrangements as having, paradoxically, been too successful: "there is an enormous amount of information sent to the Parliament and it is not very clear whether the present problem from the point of view of the Parliament is having too much information or not enough" (Q 6). Mr Türk (KCL) said that the Parliament had not made use of its rights under the current arrangements "due to internal difficulties". He suggested that if the Parliament were able to veto an implementation measure it might devote more resources to the scrutiny procedure. "The EP cannot claim a central role in comitology unless it can demonstrate that it is able to exercise its existing powers effectively" (p 63). The Co-operative Union was, having regard to past experience, sceptical of the abilities of the Parliament to monitor the work of the comitology committees and believed that the Parliament would in practice be likely to remain dependent on outside interests to keep itself briefed (p 54).

100.  Mr Cassidy MEP accepted some of the fault on the part of the European Parliament. Its committees had not used the opportunities given them (Q109). Mr Corbett MEP said that there were examples where the Parliament had been able to carry out scrutiny successfully. One such related to Commission proposals for infant milk formulae, where the Parliament considered that the proposals went against World Health Oranisation guidelines. (The Co-operative Union, however, thought the success was not attributable to the system but to the fact that there was an MEP particularly concerned about the matter and there had been a pressure group actively monitoring the issue (p 53)). So far as practical arrangements of the Parliament's handling of the papers was concerned, this was a matter for the Parliament to sort out. It did not require legislation: it was a question of the Parliament's staffing and organisation. There would have to be a general re-organisation within the next Parliament, which would also likely have to deal with the implications of the Treaty of Amsterdam. That could also take account of comitology procedures (QQ 114, 115, 135).

(ii) The European Parliament seeks equality

101.  The Commission's proposal falls short of the changes advanced by the European Parliament. In its Resolution the Parliament called for "a guarantee of real control by the Parliament over implementing rules". Mr Corbett MEP explained that the Parliament was not seeking to take over responsibility for implementing measures. What it wanted was the opportunity to monitor them and where necessary call them back. What was important was for the Parliament to have, not necessarily to use, the power to block measures as a safeguard. The reference to "control" in the Resolution had to be understood in the French sense of contrôle parlementaire, the real right to receive all information, to scrutinise it and to call back a proposed decision. Mr Corbett referred to paragraph 2b of the Parliament's Resolution[36]: "What it means is that Parliament could say "we object to this implementing measure" and then it is either up to the Commission to change it or to make a proposal which goes both to Parliament and Council who together would have to come up with an alternative solution under the full legislative procedure". The Parliament's concerns were not, however, limited to implementing measures to be taken under basic acts adopted by co-decision (where the Council and Parliament were co-legislators). It sought the power to exercise proper scrutiny over all implementing measure irrespective of the procedure governing the basic act. Mr Corbett accepted that where a measure was referred back the appropriate legislative procedure would apply. Sometimes that would be the co-decision procedure but sometimes the Parliament would only be consulted on the new legislation (QQ 147-51, 170).

102.  Ms Quin accepted that the European Parliament should be involved but did not agree with its proposed solution. She said: "Certainly the feeling among Departments and people who have been involved in the committee work is that simply saying to the Parliament, "Yes, you can stop the process", could lead to unacceptable delays". The Government was looking to see if there were other ways in which the Parliament's role could be improved "in a mutually satisfactory way". In the Minister's view there was a distinction between the position of the Parliament under the co-decision procedure and its position in relation to other legislative procedures (QQ 202-3).

103.  Mr Corbett made it clear that as regards the proposed Decision the European Parliament expects its viewpoint, particularly in relation to the use of the regulatory committee, to be taken into account. Mr Corbett said: "If no agreement is reached then I can predict on co-decision procedure after co-decision procedure there will be conflict between Parliament and the Council on what sort of implementing procedure to adopt" (Q 171).

(iii) Article 7

104.  The introduction of express legal provisions relating to the European Parliament is one of the major changes being introduced by the proposed Decision. Mme Durand, for the Commission, described it as "the main new element of the new proposal" (Q12). Article 7 provides that the Parliament "shall be informed of committee proceedings on a regular basis". It would receive agendas, drafts of implementing measures where the basis instrument had been adopted under the co-decision procedure, and results of voting in committees. The Parliament would also be informed "wherever the Commission transmits to the Council measures or proposals for measures to be taken" (i.e. in the event of a negative opinion under the management or regulatory procedures). Mr Dupuy, for the Commission, said that these provisions were modelled on the modus vivendi and the Samland-Williamson agreement with some additions. For example, Article 7 provided for the Parliament to receive information about all committees, not just management and regulatory committees as under Samland-Williamson. He accepted, however, that there were some aspects of the present arrangements which were not reproduced in Article 7, such as requirements on committee members to declare their interests (QQ 49-51).

105.  The Government said that it was the Commission's intention that Article 7 should replace the various political agreements (under the modus vivendi etc.) entered into since the 1987 Decision. The new provision should help to ensure clear procedures for informing the European Parliament and minimise difficulties in future. The Government welcomed the provision. Mr Lyall Grant (FCO) said:"we recognise the right for the European Parliament to be more involved as a result of the co-decision procedure". The Government would be content to have the modus vivendi formalised in the Decision. But Mr Lyall Grant added: "I am not sure that we would sign up a hundred per cent to some of the other agreements which did not involve the Council" (p 39, QQ 203,205).

106.  Some criticism was, however, made of Article 7. Mr Corbett MEP thought that the Article had "some improvements and some shortcomings". He wondered why certain matters presently in the modus vivendi were not repeated in Article 7. He thought it was "strange" that the matters currently in paragraph 4 of the modus vivendi had not been set out in Article 7 and suggested they should be so. Mr Cassidy MEP said that a requirement for national officials to declare any personal interests should be expressly included. Mr Corbett also drew attention to the fact that the Article was silent on what Parliament could do with a measure it received (QQ 116,120).

107.  Under Article 7, the European Parliament would be "informed of committee proceedings on a regular basis". Justice was critical of the adequacy of the words "on a regular basis": "Experience under the current Article K.6 TEU has taught that such undertakings are open to different interpretations". Justice argued that the proposal should go further, particularly by using modern electronic means of information dissemination (p 54). Statewatch was concerned that the draft Decision did not specify when information should be provided to the Parliament. If it was to be able to carry out effective scrutiny, it should receive documents "well in advance". Statewatch considered that a period of six weeks with exceptions for urgency would be appropriate, in line with the provisions on national parliaments in the relevant Protocol to the Amsterdam Treaty (p 56). The Co-operative Union had similar concerns over whether Parliament would be given sufficient time to examine proposals and pointed out the limitations inherent in the Parliament's current timetables for and way of conducting its business (p 53).

108.  Under the proposal the European Parliament would receive "agendas for committee meetings, draft measures submitted to the committees … and the results of voting". The requirement to provide agendas for all committees goes beyond the current arrangements. Mr Türk (KCL) pointed out that the Samland-Williamson agreement only referred to management and regulatory committees, though it required "annotated" agendas. He also pointed out that the Decision did not impose any timetable for the delivery of documents to the Parliament (p 66). Mr Corbett said that it was very important that the Parliament should receive agendas in sufficient time to be able to react (Q165). Mr Cassidy said: "The Parliament will be entitled to have the minutes in future and I think that is a desirable step forward" (Q161). Mr Türk said that although the Parliament would receive the results of voting it was unlikely that they would indicate the positions taken by individual Member States (p 67).

109.  Article 7 also requires that the European Parliament should be kept informed "wherever the Commission transmits to the Council measures or proposals for measures to be taken". The point would seem to have relevance mainly in relation to the management procedure. As Mr Türk said, under the regulatory procedure (where failure to agree a measure might result in the matter being reintroduced "in accordance with the Treaty") the Parliament would in many cases be involved, as co-legislator under the co-decision procedure (p 67).

110.  For the Commission, Mme Durand explained Article 7 as a legal text gave specific legal rights to the European Parliament. That was a gain for the Parliament. She added that the fact that matters were not included did not exclude their being the subject of a new modus vivendi or other political arrangement (Q53). The Parliament itself sees the need, in addition to a new decision, for a new inter-institutional agreement "on defining and monitoring implementing rules".[37]

ALIGNMENT/ADAPTATION OF COMMITTEES

111.  Article 8 of the Commission's proposal would require all existing committees to be aligned with the new procedures. The Commission did not expect that Article 8 would bring about a major change. It recognised, however, that the extent of any change and the time any adaptation exercise might take would depend on the extent of any changes made to the committee procedures, as set out in Articles 3-5 of the proposal, and the criteria agreed under Article 2 (Q 54). Statewatch called on the Commission to clarify how it envisaged the process of adaptation working and, in particular, whether the Commission intended to effect the alignment by a single proposal which would change all pre-existing procedures (p 56).

112.  The Government said that alignment might be difficult in some cases, in particular where the application of Article 2 might result in some committees changing their type. If there were, for example, to be a major change in the regulatory committee procedure, Article 8 would affect a large number of committees. Mr McMillan (DTI) envisaged that there would be a complicated negotiation: "it could end up being a very time-consuming and quite confusing activity" (p 39, QQ 106, 107, 215). If alignment had to be effected "without delay", as prescribed by Article 8, this would cause difficulties. The Government would be seeking to ensure that any changes were carried out within a reasonable time-scale and offered sufficient flexibility (p 39). Together with other Member States the United Kingdom had asked the Commission for more details as to how such major changes might be effected (p 41).

113.  The Government was not certain what the Commission intended to happen to pre-1987 committees. (The 1987 Decision did not make any provision for adapting those then in existence[38]). As regards such committees, the Government said that most were in fact already broadly in line with the 1987 provisions. Pre-1987 committees have continued to work as before, new procedures only being introduced with amendment of the basic legislation under which they acted (pp 38, 39).

114.  The Commission said that the new rules would be applicable to both pre- and post 1987 Decision committees. The aim of Article 8 was to avoid having three comitology regimes. The European Parliament supports this measure of simplification, being "convinced that all the 'committees' which existed prior to the 1987 Decision should be brought into line with the new procedures".[39]

TRANSPARENCY

115.  CEG was highly critical of the way in which comitology committees worked, especially as regards food and veterinary matters. "We have strong reservations about the use of the Standing Committee procedure in its present form because of its secretive nature and bias towards industry and specialist interests, rather than consumer interests". CEG called for the workings of such committees to be made more open and transparent. There should be registers of interests of members as well as opportunities for consultation. Scientific and other documentation should be made publicly available. Key meetings should be held in public. Observers representing consumers should be allowed at all meetings (p 52). The Co-operative Union also considered that comitology procedures were "far too secretive". It was very difficult for interested parties, including industry and consumers, to learn what was going on. "MAFF has on the whole a very good record of keeping interested parties informed in the UK but this is not the case with other Member States" (p 52).

116.  The European Parliament's recent Report on comitology (the Aglietta Report) identified two ways in which transparency of the comitology procedures should be improved; first, by the adoption of uniform internal rules of procedure and, secondly, by respect for the EP's right to information. Article 7 touches upon both these matters.

117.  Article 7, first sentence, provides that "Each committee shall adopt its own Rules of Procedure on the proposal of its chairman". Mr Türk (KCL) said that this might end the past uncertainty as to who decided the rules of procedure and also should ensure that each committee had rules of procedure. His understanding was that one third of all committees had not yet adopted rules of procedure (p 66). Mr Cassidy MEP thought Article 7 should be made clearer as to how rules of procedure would be adopted. In his view they should have to be adopted by qualified majority. To increase transparency, committees' rules of procedure should be published in the Official Journal. Mr Cassidy was also concerned that the Decision should address the question of declarations of interests by national officials, though he accepted that this might be less of an issue for national officials as distinct from national experts where conflicts with personal interest might be greater (Q116).

118.  Mr Dupuy, for the Commission, suggested that the requirement for procedural rules, which would be proposed by the Commission (a representative of the Commission always acts as chairman in comitology proceedings), might meet some of the concerns that certain aspects of the modus vivendi and other current arrangements had not been incorporated in the draft Decision (Q50) (The relationship between Article 7 and the modus vivendi is described in more detail at paras 106-110).

119.  Mr Corbett MEP thought that a combination of what was in the modus vivendi and in Article 7 would go a long way to improving transparency. He said: "If we can just make sure that those procedures remain in force and are properly applied then the whole system will be more open, at least for Members of Parliament, but that is often the starting point for a wider public" (Q164). The Co-operative Union welcomed the proposal to keep the European Parliament better informed but was not, however, satisfied that increasing disclosure to the Parliament would be sufficient. The procedure had to be made more transparent for all of the interests involved (p 53).

120.  The Government acknowledged that the present comitology system had been criticised for a lack of transparency. This was something that the Government would like to tackle, in line with its general policy on openness in the Community decision-making process. The Government welcomed the provisions of Article 7 but said that the commitment to transparency should go further. "In particular, certain information about comitology committees (including a full list of the committees and their activities, as well as details of the committees' remits and membership) should be held centrally and made available to the general public" (pp 38, 39, 40). A distinction might be made between information provided for scrutiny by the European and national parliaments and information made more widely available to the general public to increase transparency and understanding of the comitology system as a whole (Q 211). The Minister indicated that some of the committees dealt with market sensitive information. She said that "we have to have some recognition of that, but at the same time the presumption should be that as much openness and transparency as possible should be our guiding principle" (Q 210).

121.  The Government had proposed that this information should be made available on the Internet (p 41). The Co-operative Union supported the idea of making use of the Internet. The information on the Scientific Committees currently given by DGXXIV was a precedent (p 53).

122.  At the outset of the enquiry the Committee considered that it would be helpful to have a list of comitology committees within the scope of the proposal,[40] and a description of their type and activities. At the Committee's invitation the Government compiled such a list. But this is not an authorised and definitive Community document. It appeared that the Commission did not know exactly how many comitology committees there were and could only give an approximate figure (250) (Q22). Mr Cassidy MEP informed the Committee that in the Legal Affairs Committee of the European Parliament he had proposed an amendment that the Commission should be asked to produce a list updated annually of all committees concerned in the comitology procedure [41](Q166).

123.  As regards details of the membership of committees, the Commission drew attention to the fact that the membership of their committees of advisors/experts was published. They were frequently well-known specialists in the particular field. By contrast the members of comitology committees were normally officials appointed by the Member States, who might change from one meeting to the next. Mme Durand, for the Commission, thought that making their names public might concern the Member States (Q56). The Government, however, made no such reservation (Q210)[42].

124.  As regards publishing the remit of particular committees, the Commission did not think there should in principle be a problem. The activity of each committee was defined in the basic act under which it was established. However, the position might in practice be complicated where a committee exercised more than one function (Q 57)

125.  The Commission said that it was up to the Member States whether or not to make public opinions of committees. Comitology committees were not institutions of the Commission. It was for each Member State to determine what publicity to give to its viewpoint (QQ 35-36). The Government considered that there might be greater scope for Member States individually to take the initiative and make information available, though it would be better if that were done in conjunction with other Member States (Q 208).

126.  Statewatch pointed out that there was a question as to whether comitology documents belong to the Commission or Member States. Statewatch said that, in the context of litigation (Case T-188/97, Rothmans v. Commission) currently before the Court of First Instance, the Commission had argued that the documents of comitology committees were not Commission documents but documents within the control of each committee. The consequence was that access to them might be extremely difficult (p 57).

127.  Statewatch noted that Article 7 made no reference to providing information to the national parliaments or the general public. "This omission is highly problematic because most Commission implementing decisions will impose compliance costs on national administrations and private business, and many are of great concern to interest groups, non-governmental organisations, journalists, researchers and other members of the general public" (p 57). Mr Corbett MEP assumed that making information available to the European Parliament was equivalent to putting it into the public domain (Q 164). It was clear from the Government's recommendations concerning the Internet that it did not see the issue of transparency being resolved by communications to the Parliament and national parliaments alone, though there appeared to be a distinction between what might be put on the Internet and what might otherwise be made available (Q 211).

128.  Statewatch said that the problem of access to comitology documents should not await the outcome of the Rothmans case, but should be addressed in the Decision. The Decision should make clear that the public was entitled to access to comitology documents on the same basis as to documents covered by Commission Decision 94/90. Further, committees should provide the widest possible access to such documents. A preambular paragraph could preserve, as far as might be necessary, the position of documents before entry into force of the new Decision (p 57).

129.  Justice drew attention to the fact that the development, under the Treaty of Amsterdam, of "an area of freedom, security and justice" meant that the new comitology procedures would apply in areas directly affecting individual human rights. Justice said: "We believe that there is a case for laying down some firmer guidelines as to the best way of handling these questions so as to ensure true transparency and avoid the traditional tendency for excessive secrecy" (p 54). The Minister thought that Justice's concerns were valid and needed to be addressed (Q206).

ROLE OF NATIONAL PARLIAMENTS

130.  The draft Decision is silent on the question of scrutiny by national parliaments. The Commission said that it was for each Member State to decide what kind of involvement it wanted for its parliament (Q38). At present it is very rare for comitology documents to be deposited for scrutiny in this Parliament.

131.  Mr Türk (KCL) expressed the concern that the proposal would do nothing to reverse what he saw as a tendency for the Council to "escape" into the implementation process as a reaction to the increasing legislative powers of the European Parliament. Mr Türk said: "It will undermine the scrutiny powers of the national parliaments which can to some degree be exercised in the legislative process of the EC, but which are severely limited in the implementation process of the EC" (p 68).

132.  Mr Cassidy MEP expressed concern about the adequacy of the present arrangements. He said: "It is a whole area which appears, and I say this with the greatest respect to the British Parliament, to be completely outside ministerial scrutiny and parliamentary scrutiny" (Q166). But Mr Corbett MEP said that the system itself provided some safeguard: "In terms of the wider perceptions of the public of this gargantuan bureaucracy in Brussels deciding everything without any democratic control, perhaps the salient point to remember is that the European Commission, even when European legislation does give them implementing powers, are subject to scrutiny, albeit by national civil servants; they cannot just do what they want" (Q166).

133.  Ms Quin accepted that there was a role for national parliaments in the scrutiny of the comitology procedure and said that the information transmitted to the European Parliament should be available to Member States (QQ 202, 209). She referred to the Government's recent White Paper, The Scrutiny of European Union Business.[43] Paragraph 7 provides:

"[The Scrutiny Committees] would also be able, where necessary, to consider legislation made by the Commission in areas where the Council of Ministers has delegated to it the responsibility for rules implementing Council legislation. Although much Commission legislation is technical and unimportant, some of it has important implications, and where appropriate, the Committees may wish to examine particularly significant measures, or look more generally at how the Commission had exercised its powers over time".

134.  The Minister considered this to be an important addition to the scrutiny process. She acknowledged that there would, having regard to the large volume of comitology measures, have to be some sort of screening process. "Obviously some measures stand out as just being very unimportant and technical, but others do have wider implications, so a certain amount of common sense has to applied here". While the Government was keen to try and provide for effective national and European parliamentary scrutiny, it was also concerned that the system should not become more cumbersome or more subject to delays (QQ 211, 214, 217).


36   The Parliament's Resolution provides that the new decision and resulting inter-institutional agreement should make provision for "(b) a guarantee of real control by the Parliament over implementing rules, i.e. the Parliament's ability to intervene, within a specific deadline, with regard to the Commission's proposal for an implementing measure, so that it may, if appropriate, question its legitimacy, an abuse of delegated power or the content i.e. the wrongful exercise of delegated power; in this event and if a representative number of Members of Parliament vote in favour, the Commission should withdraw or amend the proposed implementing measure or submit a legislative proposal in accordance with the provisions of the Treaty: the Commission should do likewise if the Council or its committee objects to an implementing measure". Back

37   Resolution B4-801/98, para. J. Back

38   A preambular paragraph to the 1987 Decision specifically provided that it " must not affect procedures for implementing Commission powers contained in acts which predate its entry into force". It contemplated amending those acts to bring them into line, though this was not mandatory. Back

39   Resolution B4-801/98, para. H; Aglietta Report, para. G. Back

40   Certain committees are unaffected by the proposal. See footnote 6, above. Back

41   Amendment No 12. Opinion for the Committee on Institutional Affairs. 28 November 1998. Doc EN/AD/366/366757. Back

42   The Government has previously questioned whether publication of the membership of committees would be useful, if indeed practicable. See Government Response to the House of Lords Select Committee Report on Community Environmental Law. para 9. November 1997. Back

43   November 1998, Cm 4095. Back


 
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