POWERS TO THE COMMISSION: REFORMING COMITOLOGY|
PART 4 OPINION
135. The Committee last considered the question
of comitology just before the Inter-Governmental Conference which
led to the Treaty of Amsterdam. The Council, Parliament and Commission
had already agreed in 1994, in the context of conclusion of the
modus vivendi, that the issue of comitology should
be reviewed at the Conference. We concluded then that we were
"not persuaded that the practice on delegation to the Commission
is seriously at fault".
We have, however, been critical of the lack of transparency of
The outcome of the review at the Inter-Governmental Conference
was an instruction that the Commission present a proposal to amend
the 1987 Decision. It is significant that the Treaty provisions
on which that Decision was based were not amended. Any proposal
has, therefore, to be consistent with the current institutional
arrangements envisaged in Articles 145 and 155. This Report examines
the proposal which the Commission have now brought forward in
response to that mandate.
SHOULD THE DECISION SAFEGUARD?
136. In the view of the Committee there are three
main interests which the Commission's draft Decision should safeguard.
137. First, there are the interests of those
directly affected by the Commission's implementing measures
(e.g. industry, consumers). There is a question mark over
whether the 1987 Decision has adequately taken these into account.
Detailed criticisms were made by the consumer bodies of the absence,
on the part of the Commission, of appropriate consultation with
interested parties and at the lack of openness. We are also concerned
that the new Decision should be forward looking. In particular,
when considering its future application, the changes to be introduced
by the Amsterdam Treaty need to be fully considered, especially
as regards those matters such as immigration and asylum which
are to be transferred into the Community (First) Pillar. Special
provisions may be needed to safeguard human rights and fundamental
freedoms. It is unclear to what extent the Commission has paid
regard to this.
138. Secondly, any replacement of the 1987 Decision
must not jeopardise the legitimate concern of Member States to
protect major national interests. This is currently secured
in two ways: by the Council's ability to reserve implementation
for itself; and by the participation of national representatives
in the comitology committee procedures. The Commission's draft
retains these safeguards, but with some changes. Whitehall Departments
explained how their interests might be affected by the proposed
amendments to the committee procedures. They identified a possible
consequent shift in the balance of power between the institutions.
139. Thirdly, the Decision must respect the
principles of democratic legitimacy and of accountability.
In the present context we believe that two matters need to be
stressed. First, legislative acts should not be delegated to an
executive body without reference to a legislative body deriving
its authority from the electorate. Secondly, the executive should
be accountable to an elected body. Historically legitimacy has
derived from the Council (comprised of Ministers from elected
Governments) but is increasingly being seen to require the involvement
of the directly elected European Parliament. The Parliament continues
to claim a right to have a greater say in comitology matters.
At present its formal role is limited to the choice of committee
procedure in cases where the co-decision procedure applies to
the basic legislative act (the primary legislation). Co-decision
will apply to more, but not all, Community primary (policy-making)
legislation when the Amsterdam Treaty comes into force.
BE THE OBJECTIVES OF THE NEW COMITOLOGY DECISION?
140. The present proposal should, in the view
of the Committee, have three main objectives. First, greater recognition
has to be given to the position of the European Parliament. The
limited and largely informal involvement in the comitology process
which it enjoys at present can no longer be justified. Secondly,
there should be further simplification of the procedures but only
in so far as this is practically and politically feasible. The
structure provided by the 1987 Decision was a considerable improvement
on that which it replaced. But it remains complex and should
be reformed. Thirdly, the whole comitology system needs to be
far more transparent, to national parliaments as well as to the
141. The Committee also believes that, in seeking
to achieve these objectives (which the Commission has itself identified),
the Decision should adequately and properly reflect the institutional
balance as provided in the Treaties, and that it should contribute
to more efficient and better law-making at Community level.
greater role for the European Parliament
142. Defining the nature and extent of the role
of the European Parliament is, in our view, by far the most difficult
question raised by the Commission's proposal. Should the Parliament
have the right, to use its own words, to "blow the whistle"
on implementing measures? If so, should this be on all measures,
or only on those for which it has had responsibility as co-legislator
under the co-decision procedure? What would be the consequences
when the whistle is blown?
143. The draft Decision does not give the European
Parliament any power of veto, but it would improve the position
of the Parliament in two ways. It formalises, in Article 7, certain
aspects of the modus vivendi. Secondly, Article 5 changes
the default procedure under the regulatory committee procedure
and provides for the submission of a new proposal. The draft Decision
refers to the Commission presenting a "proposal relating
to the measures to be taken, in accordance with the Treaty".
In the case of legislation to which co-decision would apply, the
Parliament would be fully involved.
144. We address each of these matters in detail
below. First it is necessary to consider more generally the position
and demands of the European Parliament.
145. The Committee recognises that the role of
the European Parliament in bringing the Council and Commission
to account is an important democratic safeguard. We have always
been sympathetic to the Parliament's wish to be more involved
in the comitology process. 
The ability of the Parliament to scrutinise legislation is an
important feature of the Community's democratic structure. There
is a case for a greater involvement on the part of the Parliament
in relation to delegated legislation, so long as this is consistent
with maintaining the institutional balance and does not jeopardise
speedy and effective law-making where this is necessary.
146. We remain, however, of the view that oversight
of implementing legislation is primarily a matter for the Member
States. Much of it is essentially technical, and comitology is
frequently concerned with monitoring the Commission's skills and
abilities. It should not be forgotten that, in many instances,
it is the Member States which will be responsible for giving effect
to implementing measures at the national, operational level. Comitology
may also involve matters to be financed by the Member States.
147. We do not believe that it would be practicable
for the European Parliament to be able to halt the process in
relation to any proposal, nor do we think that this is
necessary. The European Parliament does not at the moment have
the same expertise and experience to enable it to judge whether
a proposal is feasible or whether it is (politically) acceptable
at the national level. We see the way forward, at least at the
present time, as being to improve the position of the Parliament
in the scrutiny of comitology procedure by requiring timely provision
of information to it and giving it the right to be consulted.
We develop this point in our recommendations on Article 7.
148. Article 5 of the draft Decision provides
that the regulatory committee is to deliver its opinion on the
Commission's draft measures by qualified majority. If the measures
are not in accordance with the committee's opinion, or if no opinion
is delivered, the Commission cannot adopt the measures
but it "may present a proposal relating to the measures to
be taken, in accordance with the Treaty". The last phrase
ensures that, where the basic instrument was adopted by the Council
and the European Parliament under the co-decision procedure, the
implementing measures will, if there is no agreement in the comitology
committee, be referred back to both institutions for a fresh decision
under that procedure.
149. Before considering the appropriateness of
these new arrangements it is necessary to address a more fundamental
question. The European Parliament sees no place for the regulatory
committee and has called for its "elimination" from
comitology. We do not agree.
150. The regulatory committee procedure is important
in practice, especially where the subject matter is novel and
the Commission has little, if any, relevant experience or where
the subject matter is controversial or may touch on sensitivities
in one or more Member States. In such cases particular care needs
to be taken to see that implementing measures are workable and
that they accord with the sentiments of a substantial majority
of the Member States. Only the regulatory committee procedure
can ensure this. If the protection of this procedure was not available,
the Member States would probably not be prepared to give implementing
powers to the Commission on matters of any consequence. It was
clear from the evidence we received that both the Commission and
the Government see a need for the retention of the regulatory
committee procedure. We believe that its elimination would be
counter-productive, and we do not share the European Parliament's
view on this point.
151. As regards the European Parliament's argument
concerning the extent of permissible delegation of law-making,
that is a matter which is, as both the Commission and the Government
pointed out, already in the hands of the Parliament where it is
co-legislator. Increasingly, therefore, the Parliament will itself
help to determine exactly what is to be delegated to the Commission
by way of implementation.
152. The key question which arises in relation
to the new regulatory procedure is that of the appropriateness
of the sanction if the committee delivers an unfavourable opinion.
The Commission would be required in that event to present a new
proposal, which will be subject to the full procedure applicable
to the basic legislative act. This is a major feature of the new
arrangements. As it will enhance the European Parliament's role
in the comitology process, it may seem to be desirable. The difficulty
is that the consequences are not predictable, though it is clear
that resort to the full legislative procedure would necessarily
be time-consuming. The solution proposed may be consistent with
the Treaty, in the sense that Article 145 does not contemplate
the Parliament itself exercising implementing powers. But it hardly
accords with the principle of proportionality. There is a risk
that it may prejudice defence of their interests by the Member
States. Nor does it seem to give the Parliament what it wants.
153. We believe that a less drastic, more practical
solution has to be found. Under the modus vivendi the European
Parliament may give an opinion in those cases based on co-decision
legislation which have been referred to the Council following
a negative opinion by the relevant comitology committee. We believe
that under the Decision this provision should be entrenched and
extended. The Parliament should have the express right to give
an opinion in such circumstances. It would follow that both the
Council and the Commission would be under a legal duty to consider
154. We suggest, therefore, that in the event
of the regulatory committee giving a negative opinion or no opinion,
the proposed measure should be referred forthwith to the Council.
At the same time a copy should be sent to the European Parliament
in order to enable it to give its opinion (this would be in addition
to the enhanced role we recommend below, under Article 7). The
Council should not be able act on the proposal for two months
(except in cases of urgency), thus allowing time for the Parliament
to deliver an opinion. The Commission should be able to adopt
its proposal at the end of three months (from the date of referral)
if the Council by simple majority has not rejected the proposed
measure. We acknowledge that this would not give the Parliament
a right of veto - indeed to confer such a right might require
Treaty amendment. But the Parliament would have a role in the
procedure and thus be able to influence decision taking on implementing
measures, as is the case elsewhere under the Treaty where its
prior consultation is required.
155. Article 7 seeks to strengthen the position
of the European Parliament by giving it rights to receive certain
information. This proposal was criticised on account of its failure
to go as far as the modus vivendi and other current arrangements.
We believe that the draft Decision should go further than it does
on this point. We do not accept the Commission's view that this
is unnecessary because Article 7 could be supplemented by a new
inter-institutional agreement. In our view arrangements which
have been accepted and shown to be workable in practice (albeit
not always perfectly) should now be translated into legislation.
The Council and Commission must move away from a position of making
concessions and conferring privileges. The Decision should give
Parliament rights and impose corresponding duties on the Commission.
156. The draft Decision should be expanded to
include matters presently dealt with under the modus vivendi
and other arrangements. Some of them will need to be sharpened
up. The European Parliament should not only have the right to
see every proposal but should also be entitled to offer an opinion
to which the Commission must have regard. In this way the Parliament
would have the opportunity to have its voice heard. By making
good use of the opportunities so afforded to it (some internal
reorganisation and reformation would appear to be needed), the
Parliament would be able to make its influence felt.
157. Particular consideration should be given
to the setting of time limits. Minimum requirements should be
built into the obligations to deliver documents and other information
to the European Parliament. In turn the Parliament should be obliged
to deliver any opinion it chooses to give within a specified period.
Six weeks has been suggested for Parliament's initial scrutiny
of comitology proposals, in line with that which the Treaty of
Amsterdam has given to national parliaments for scrutiny of certain
legislative proposals. Exceptions would have to be made for urgent
158. The draft Decision contains two main elements
designed to simplify the present arrangements. First it provides
criteria for the determination of the choice of committee type.
Secondly, while retaining the existing threefold structure of
advisory, management and regulatory committees (plus the safeguard
committee) it would remove the variants, leaving only one procedure
for each committee type.
DETERMINING THE CHOICE OF TYPE OF COMMITTEE (ARTICLE 2)
159. The Committee supports, in principle, the
inclusion of criteria for the choice of type of committee. The
absence of criteria in the 1987 Decision has been criticised.
The history suggests that the case-by-case approach has worked
reasonably well. Practices have developed and patterns are discernible,
though there is not complete consistency. Occasionally there has
been difficulty in reaching agreement on what type of committee
to employ. Only very rarely have negotiations broken down entirely
because of this. There is, however, general agreement that the
current position could be improved.
160. Witnesses were critical of the present text
of Article 2. We agree that it raises a number of questions. There
are textual problems. It is unclear how measures to "apply"
basic instruments (such measures would be subject to the regulatory
procedure) differ from "implementing" measures (which
would be subject to the management procedure). Various difficulties
were identified in relation to the phrase "measures of general
scope designed to apply update or adapt essential provisions of
basic instruments". It is also unclear what relationship
the advisory committee procedure would have to the management
and regulatory procedures (it would apply when one or other "is
or is no longer appropriate") and the extent to which it
would apply in some sort of residual way.
161. As to substance, there are differences of
view on policy as to what matters should go to what committee.
For example, witnesses were not agreed that "implementation
of programmes with significant budgetary implications" should
be subject to the management procedure. Current practice varies
on this matter.
162. More fundamentally, the European Parliament,
protective of its legislative prerogatives, seeks to draw a distinction
between implementation and legislation. In its view, acts which
" modify, update or supplement the essential aspects of legislative
provisions" should not be considered as implementing measures.
The power to adopt them should therefore not be delegated. The
Commission's proposal implies that they would be delegated because
it would require "measures of general scope designed to apply,
update or adapt essential provisions of basic instruments"
to be subject to the regulatory procedure.
163. The Committee does not agree with the approach
advocated by the European Parliament. The Treaty does not follow
or impose any rigid doctrine of the formal separation of powers.
The notion of "implementation" in Community law, in
line with established practice, includes both the drawing up of
implementing rules and the application of rules to specific cases
by means of acts of individual application.
It is unrealistic to imagine the Community operating efficiently
without some system of delegated legislation. If the Council is
to be free to devote proper attention to principles of policy
and new legislation, it is essential that day-to-day implementation
is left, as is expressly provided in the Treaty, to the Commission.
164. The inclusion in the draft Decision of rules
to determine the choice of comitology procedure would constitute
an important measure of reform. But it is likely to be controversial.
Any criteria must be generally acceptable, readily understandable
and workable. There must not be a risk that their practical application
would give rise to the sort of time-consuming (and sometimes acrimonious)
debate between the institutions which they are intended to remove.
Nor must they create unnecessary opportunities for challenge on
legal grounds. They must be capable of being applied to the wide
variety of subject matter dealt with by comitology committees
(from intervention prices under the CAP to, in the future, rules
affecting civil liberties under the new Title IV of the EC Treaty
establishing an "area of area of freedom, security and justice").
They must not be too prescriptive, and they should permit of differences
of policy (for example, as currently exists in relation to the
supervision of substantial spending decisions). Allowance has
also to be made for the nature and extent as well as the development
of the Commission's experience and capabilities. Under the current
regime, for example, the regulatory procedure may be used on the
grounds of the novelty of the subject-matter. As mentioned, one
of the key interests to be protected is that of the Member States.
There will remain matters on which there are sensitivities, at
least until the Commission has shown itself capable of exercising
the powers in question competently.
165. The Committee considers that, while setting
criteria in advance is desirable in principle, the present text
of Article 2 is unclear and unsatisfactory. For the reasons set
out above, we doubt whether it would be feasible in practice to
devise suitable criteria which can be accurately and concisely
translated into legislative text. We have considered whether,
rather than have a list of definitive criteria, it might be more
practical to identify certain matters which should always go to
a management or regulatory committee. We suggest, however, that
it might be more profitable at the present time for guidelines
to be agreed in a political, rather than a legal, text, preferably
by way of an inter-institutional agreement. This might be a more
helpful first step in simplifying this aspect of comitology.
166. Finally, there is Article 8, which would
require the alignment of existing committees and their procedures
to the new regime. Alignment is closely related to the question
of criteria. The Committee accepts that alignment would be desirable
in principle. It would effect a significant measure of simplification.
It is, however, potentially a major task which could be excessively
time-consuming. There was no alignment in 1987 (though the European
Parliament recommended it) and there are currently about 250 committees.
Whether this would be practicable depends on the outcome of the
debate on the definition of criteria to determine the choice of
type of committee, particularly as regards those matters which
are to be subject to the management and regulatory procedures.
In short, Article 8 stands or falls with Article 2.
OF THE VARIANTS
167. The other key question in relation to the
simplification of the comitology regime is how significant is
the proposal for removal of the variants. The practical effect
would be to reduce the choice of comitology procedures from five
to three. In future there would only be one form of each of the
management and regulatory procedures.
168. The removal of the variants would effect
a significant measure of simplification. But at the same time
it would sharpen up the nature of the initial choice that has
to be made. In this context it should be recalled that the 1987
Decision started life without any variants. Variants, introduced
in the cases of the management and regulatory procedures, have
provided an element of flexibility and also of sensitivity into
the choice of procedure.
169. In general the Committee is in favour of
measures which would simplify the present arrangements. As Appendix
5 demonstrates, all five forms of committee are fairly widely
used. But whether a reduction would in fact be a positive step
is very largely dependent on the nature of the procedures which
it is proposed to retain.
170. The Government identified potential problems
with the absence of a variant in the management procedure in so
far as this procedure would be applicable to expenditure programmes.
Under the Commission's proposal there could be difficulties if
decisions could not be compulsorily deferred and reviewed by the
Council. The Government is considering whether there should be
an option added (in effect, the introduction of a variant similar
to current procedure IIB) or whether the procedure should be amended
more generally. The Committee agrees that further consideration
needs to be given to the implications of the Commission's proposal,
both as regards the management committee and the regulatory committee.
171. We have said little so far about the safeguard
committee procedure, which is mainly employed in the trade sector.
Here too it is proposed to remove the variants and to have in
future a single procedure. The Government pointed out that the
potential effect of the change might have the effect shifting
the balance in favour of protectionism. At present, under Article
3b of the 1987 Decision, a qualified majority can block protectionist
measures. Under the Commission's proposal it could be difficult
for the Council to reject a safeguard measure. We agree that such
a change would be undesirable, and we recommend that it should
172. In 1990, the Committee said: " The
fear that important policy decisions are being concealed from
democratic scrutiny will never be allayed whilst delegated legislation
is agreed wholly in secret".
There is, in our view, an overwhelming case for greater transparency
(by which we mean openness of dealing and public availability
of documents and other information) in relation to the comitology
process. The present system is shrouded in mystery and secrecy.
It is true that the existence of comitology committees is not
hidden, in the sense that each committee owes its existence to
a particular piece of Community primary legislation - to a regulation
or decision. The identity of some committees may become known,
if not notorious (as in the case of the Standing Veterinary Committee
during the episode of the British beef ban). Particular sectors
of agriculture or industry may be alert to the activities of committees
affecting their business. The individual citizen, however, is
left very much in the dark.
173. It is remarkable that not even the Commission
can provide an exact number of comitology committees. As mentioned
above, there seems to be general agreement that there are "about"
250. But there is no up-to-date, comprehensive and easily accessible
list of all the committees. That is not something in which the
Commission can take any pride or comfort.
174. We are grateful for the efforts of the Government
and its officials for providing, for the purposes of this enquiry,
a list of committees and their activities. It has been prepared
speedily and the Government, quite rightly, does not give any
absolute guarantee that it is fully comprehensive. It is nevertheless
a valuable step in improving transparency. We urge the Government
to press the Commission to provide a full and authoritative list
of comitology committees, their legal base, their type and general
descriptions of their remit and activities. There is, in our view,
no good reason why such a list should not be published, in both
paper and electronic form, and kept regularly updated.
175. We consider that in respect of each committee
there should also be available, though not necessarily in the
list proposed above, details of its precise remit, membership
and agendas. The Commission's proposal (Article 7) would require
each committee to adopt procedural rules. These also should be
176. We also believe that all comitology proposals
and other working documents should be accessible on the same terms
(including confidentiality) as other documents of the Commission
and Council. The draft Decision should make this clear. Moreover
whenever possible such documents should be published at an early
stage. It is in the interests of both transparency and better
law-making that the Commission should be able to hear the views
of interested parties before its measures are presented to the
committee. The European Parliament has recently noted that publication
on the Internet may not only serve for information purposes but
that it may also assist consultation of interested parties. 
177. As regards the opinions of committees these
should, just as votes in the Council are made public, be made
accessible. Article 151 of the EC Treaty, as amended by the Treaty
of Amsterdam, provides that "when the Council acts in a legislative
capacity, the results of votes and explanations of vote as well
as statements in the minutes shall be made public".
178. A final point concerns the advisory committee
procedure. Under this procedure the Commission is required
"to inform the committee of the manner in which its opinion
has been taken into account". The wording of the Commission's
draft here is the same as in the 1987 Decision. The extent of
the obligations on the Commission to disclose its reasons for
rejecting, in whole or in part, the committee's opinion is unclear.
We consider that the wording should be changed in order to clarify
the degree of accountability to which the Commission is to be
179. In most cases the only scrutiny of the Commission's
implementing measures is that undertaken by national civil servants
in the comitology committees. In practice there is little action
in European or national parliaments. This Committee only receives
comitology documents very rarely (and then usually at the stage
when the Commission is required to refer a measure to the Council
following a negative opinion in the committee). As we said in
our 1995 Report, we do not advocate, as a general rule, that proposals
for delegated legislation should be submitted to national parliaments.
But where proposals come to light which raise matters of major
significance, or where they would have an impact on the interests
of individuals or enterprises, national parliaments should have
an opportunity to express their views. 
180. In 1995, the then Minister of Agriculture
gave an undertaking to the Committee that the United Kingdom Parliament
would be informed if a UK Minister expressed serious concern in
the Council about a draft Commission measure.
The present Government has taken the matter a significant step
further. In its recent White Paper the Government suggests that
the scrutiny committees in this Parliament might wish "to
examine particularly significant measures, or look more generally
at how the Commission has exercised its powers over time".
181. The Committee agrees that it is neither
necessary nor practical for this Committee to consider each and
every proposal put to a comitology committee. In addition to the
problem of the volume of documents that would be involved, there
is the factor that a number of these proposals have to be adopted
within a short time frame in order to respond to developments
in the market place. This is especially so where health and safety
factors are concerned.
182. The problem is to determine when, in terms
of the White Paper, a proposal is "particularly significant".
In the end this may be a question of political judgement. There
are no obvious or common objective criteria other than procedural
ones (as presently exist - for example, the making of a formal
proposal under the Treaties or the publication of a document by
a Community institution). In the present context these may not
offer a solution consistent with securing the floodgates. The
Government clearly intends there to be the potential for more
scrutiny than before.
183. This Committee should, we suggest, see all
comitology documents which (a) are likely to require decision
by the Council or (b) are of such political or practical significance
that they might cause the Minister to be concerned if he or she
were to learn of them first from the newspapers. Ministers should
deposit such documents in both Houses in good time (save in cases
of urgency) to enable effective scrutiny to take place. The Committee
would expect to review (perhaps in the context of its regular
meetings with Ministers) the Government's practice on deposit
in the light of experience.
184. In addition to such scrutiny of particular
proposals, the Committee should, from time to time, examine how
comitology is working. In particular, we would seek to be assured
that the United Kingdom will continue to be represented by sufficiently
senior and qualified representatives and that in all other respects
its interests are being adequately protected. We would also wish
to enquire into the measures being taken by Ministers themselves
to ensure the effectiveness of comitology.
185. The Committee considers that the Commission's
proposal for a Council decision laying down the procedures for
the exercise of implementing powers conferred on the Commission
raises important questions to which the attention of the House
should be drawn, and makes this Report to the House for debate.
44 1996 Inter-Governmental Conference, 21st
Report, 1994-95, HL Paper 105, para. 295. Back
Community Environmental Law: Making It Work, 2nd
Report, 1997-98, HL Paper 12, para. 33. The Committee expressed
particular concern about the lack of transparency in relation
to the scientific and other expert advice on which the Commission
bases its policies and proposals (para 29). A recent report by
Dr J A Stein and Prof. O Renn, Transparency and Openness in
Scientific Advisory Committees: The American Experience (1998)
has been prepared for the European Parliament. Back
In 1990 we suggested that proposals for delegated legislation
should be laid before the Parliament, giving them the option of
a debate, perhaps in committee, before a certain deadline:
Economic and Monetary Union and Political Union, 27th Report,
HL paper 88-1, para. 154. Back
Case 16/88, Commission v. Council:  E.C.R.
3457, at para.11. Back
Economic and Monetary Union and Political Union, 27th
Report, HL paper 88-1, para. 154. Back
Committee on Institutional Affairs, Report on Openness within
the European Union. 8 December 1998, para.48. Back
1996 Inter-Governmental Conference, 21st Report,
1994-95, HL Paper 105, para. 297. Back
Exchange of correspondence between Mr Waldegrave and the Chairman
of the Select Committee, printed in Correspondence with Ministers,
6th Report, 1994-95, pp 20-21. The Committee had raised
with the Minister a question of the adequacy of the scientific
justification of a Commission proposal on maximum nitrate levels
which would have had serious implications for the UK glasshouse
lettuce and other vegetable growers. The Committee had learnt
of the matter from newspaper reports. Back