Select Committee on European Union Thirty-First Report

CHAPTER 2: What is Comitology?

4. "Comitology" is established Community shorthand for the work of committees, made up of representatives of Member States and chaired by the Commission, whose function it is to implement Community laws and Community policies. The work includes:

  • taking decisions on the detail of the implementation of Community laws;
  • taking decisions for the furtherance of Community policies (eg how much to spend on what etc.);
  • the adaptation or updating of Community legislation in order to take account of technical developments.


5. The origins of the word "comitology" are in dispute (indeed, it cannot be found in any ordinary English dictionary). C. Northcote Parkinson coined the phrase "the science of comitology", by which he meant the study of committees and how they operate.[7] It has been suggested, however, that "comitology", in the European Union context, derives more from the word "comity" than from the word "committee".[8] Whatever may be its origin, it has become an example, par excellence, of Euro-speak.

6. What is not in dispute is the Treaty origin of the Council's power to delegate to the Commission the function of implementing measures. Article 202 TEC (which was modified by the Single European Act in 1986), says that

"To ensure that the objectives set out in the Treaty are attained, the Council shall, in accordance with the provisions of this Treaty:

[. . .]

—confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. The Council may impose certain requirements in respect of the exercise of these powers. The Council may also reserve the right, in specific cases, to exercise directly implementing powers itself. The procedures referred to above must be consonant with principles and rules to be laid down in advance by the Council, acting unanimously on a proposal from the Commission and after obtaining the opinion of the European Parliament."

7. Although the Treaty makes no mention of comitology or committees (indeed, prior to amendments to Article 202 in the Single European Act, the legality of the comitology procedures was challenged before the European Court of Justice[9]), a Framework Decision establishing the rules and procedures to be followed was adopted by the Council in 1987.[10] This Decision rationalised what, up until then, was a quite disparate committee structure.

The 1999 Decision

8. Following a Declaration attached to the Amsterdam Treaty calling for a new comitology Decision, the 1987 Decision was replaced in 1999.[11] This streamlined the comitology structure by reducing the types of committee to three: advisory, management and regulatory, each of which is chaired by a Commission representative. The choice of which procedure to use is laid down in the "basic instrument".[12]
Comitology Procedures under the 1999 Decision

1. Advisory committee—as its name suggests, this committee is essentially advisory. Member States are often represented by experts in the particular field, who together deliver an opinion on a Commission draft of the proposed implementing measure. Although the Commission is required to "take the utmost account of the opinion delivered by the committee",[13] it is under no obligation to abide by it.

2. Management committee—in management committees Member States are usually represented by civil servants, who again deliver an opinion on the Commission's draft within an agreed time limit. However, a management committee has the power to block the Commission's proposal if a qualified majority (as laid down in Article 205(2) of the Treaty) so vote. In such cases the Commission must notify the Council immediately, and may defer the application of the measures for a period authorised by the basic instrument, but which cannot be longer than three months. The Council may, by qualified majority, take a different decision. In practice such "unfavourable opinions" are rare, mainly because the Commission is often willing to adapt its proposals during the course of the committee meeting—with the committee then voting on the adapted proposal. A management committee is frequently used in relation to the application of the common agricultural and common fisheries policies.

3. Regulatory committee—depending on the importance of the proposals, a regulatory committee is generally composed of a higher grade of civil servant than a management committee. Measures of general scope designed to apply essential provisions should be adopted by a regulatory committee. Given the greater degree of importance of the measures considered by these committees, the Commission has to gain a qualified majority on the committee if the proposal is to be adopted. If it can not muster that majority, the Commission must immediately submit to the Council a proposal relating to the measures to be taken, and must inform the European Parliament. If the European Parliament considers the measure ultra vires (ie it exceeds the implementing powers provided for in the basic instrument), and if the basic instrument was subject to co-decision (as laid down in Article 251 of the Treaty), the Commission must inform the Council of the position. The Council may then act by qualified majority on the proposal, taking account of the view of the European Parliament where appropriate. If the Council rejects the proposal by a qualified majority, the Commission must either submit an amended proposal to the Council, or re-submit its original proposal or present a legislative proposal. In practice, the Commission is very unlikely to re-submit the proposal. If it proposes primary legislation, the European Parliament will then get a voice in the passage of the legislation.

9. It is this 1999 Decision, setting up the above three procedures, which the Commission is now proposing to amend. Before looking at the current proposals, it is worth examining the justification for having a system of comitology.

Why have comitology?

10. In virtually every country with a legislative system it has been necessary for the legislature (in the case of the EU, the Council of Ministers and the European Parliament) to delegate the detailed implementation of legislation, usually to an executive body (the Commission). In the EU, there are certain areas of Community policy which are highly regulated, and require numerous, detailed regulations, often needing to be passed quickly to cope with changing circumstances. It would be impractical for the Council to have to determine these—the legislative process would grind to a halt. The system of comitology thus eases the work load of the Council.

11. Comitology allows Member States an input into the implementation of measures at Community level. It is common to think that Member States only disagree on points of general principle. Frequently, however, Member States agree on general strategy, but differ on the detailed application of it. Comitology allows a forum for resolving those differences.

12. Further, significant decisions are often determined in comitology committees, making the assent of Member States vital. Comitology adds legitimacy to the implementation process. Many decisions which may appear to be nothing more than technical details, in fact have a substantial impact on producers, traders, users and consumers. Without the input of the Member States representing such stakeholders, confidence in the implementation process would undoubtedly suffer.

13. So the system of comitology acts as a check on the Commission, whilst at the same time allowing national interests to have a say in implementing measures. What is more, the Council (as legislature) has supervision over the execution of legislative measures it has passed.

The Committee's 1999 Report

14. The Committee's 1999 Report on comitology[14] identified four factors of comitology as it then stood. At least three of them still apply.

(i) First, it said comitology was important. The sheer number of subject areas requiring implementing measures necessarily made this so. With the addition of new policy areas in the Amsterdam and Nice Treaties, comitology became and remains even more important.

(ii) Secondly, comitology was contentious. The European Parliament had no input at all under the arrangements pre 1999. Under the 1999 Decision its input is limited to determining the vires of measures whose basic instrument was made by co-decision.

(iii) Thirdly, comitology was complex. Although the 1999 Decision reduced the number of processes, the system of comitology is still baffling and bewildering to outsiders.

(iv) Lastly, comitology was opaque. Information about the committees was scarce, and no definitive list existed of committees, their functions, activities and membership. This state of affairs has improved since 1999. Such a list is included in an annual report from the Commission on the working of the committees (there were 247 comitology committees in 2001). Nevertheless, our Review of Scrutiny Report stated:

"The legislation passed under comitology procedures may or may not be good legislation but the fact that so much can be made in such a way, unseen and unscrutinised, clearly in our view contributes to a lack of accountability in the European Union."[15]

7   Parkinson's Law, 1958, Chapter on "Directors and Councils", p. 31, first paragraph. Back

8   See the explanation offered by Baroness Park of Monmouth in HL Deb. 11 November 1997, col. 118: "It appears to be a Brussels-created word deriving from the word "comity" in the phrase "comity of nations"". Back

9   Case 25/70, Koster [1970] ECR 1161. Back

10   Dec. 87/373, [1987] OJ L 197/33. Back

11   See above, fn. 1. Back

12   In this context, the "basic instrument" refers to the primary EU legislation relating to the particular policy area in question (eg a Regulation on control of fish quotas might specify that the management procedure is to be used). Back

13   See above, fn. 1, Article 3. Back

14   See above, fn. 4. Back

15   See above, fn. 3, at para. 88. Back

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