Select Committee on European Union Thirty-First Report

CHAPTER 3: The Commission Proposal

15. The Commission's proposed Decision would amend the present comitology arrangements mainly by giving the European Parliament greater supervisory powers over certain subordinate legislation. It is important to note that the proposal is to amend the 1999 Decision, not wholly to rewrite it. Furthermore, the proposal is only intended to be an interim measure pending a more substantial revision of delegated legislation in the expected constitutional treaty (see the next Chapter).

White Paper on European Governance

16. The spur for reform came in the Commission's White Paper on European Governance.[16] In this, the Commission referred inter alia to the need to reform the comitology procedures in the light of the growth of co-decision:

"This adjustment of the responsibility of the Institutions, giving control of executive competence to the two legislative bodies and reconsidering the existing regulatory and management committees touches the delicate question of the balance of power between the Institutions. It should lead to modifying Treaty Article 202 which permits the Council alone to impose certain requirements on the way the Commission exercises its executive role. That Article has become outdated given the co-decision procedure which puts the Council and the European Parliament on an equal footing with regard to the adoption of legislation in many areas. Consequently, the Council and the European Parliament should have an equal role in supervising the way in which the Commission exercises its executive role. The Commission intends to launch a reflection on this topic in view of the next Inter-Governmental Conference."[17]

17. The reason for the Commission tabling a proposal now, as an interim measure, was given in the Commission's Explanatory Memorandum attached to the proposal:

"However, given the relatively long period which will elapse before the new treaty comes into force, Council Decision 1999/468 on "comitology" needs to be amended now as it does not take account of the European Parliament's position as a co-legislator."[18]


18. The primary purpose of the proposal, therefore, is to increase the role of the European Parliament in the implementation of legislation decided by co-decision. Co-decision, which originated in the Maastricht Treaty, has increased to cover new policy areas by successive Treaty amendments. Co-decision allows the Parliament a formal role as legislator alongside the Council and, since the Amsterdam Treaty, has given the Parliament a definitive veto. Co-decision applies to over 40 policy areas, including the single market, freedom of movement, equal pay and the environment. It does not apply to Second (Common Foreign and Security Policy) or Third (Police and Judicial Co-operation in Criminal Matters) Pillar measures.

Article 2a: Criteria for determining whether advisory or regulatory procedure should apply

19. Under the 1999 Decision, the choice of which procedure to use is left to the discretion of the legislating institution, subject to the broad guidelines laid down in Article 2. The Commission proposes a new "Article 2a", which would apply more rigorous criteria for determining which procedure should be used for co-decided legislation. The advisory procedure would apply "whenever the executive measures have an individual scope or concern the procedural arrangements for implementing basic instruments." The regulatory procedure would apply "whenever the executive measures are designed to widely implement the essential aspects of the basic instrument or adapt certain other aspects of it."

20. It is significant that the proposed new Article 2a will apply only to the choice of procedures for adopting "executive measures" in those cases where the basic instrument is adopted by co-decision. Article 2 of the 1999 Decision will remain, but whether as a general or, in practice, a residual rule (given the expected growth of co-decision[19]) has yet to be seen. It is also noteworthy that the proposal does not define "executive measures" for these purposes. The question arises as to whether the expression has the same or a narrower meaning than "implementing measures" in Article 2.

21. Another consequence of Article 2a would be that management committees could no longer be used for comitology where the basic instrument had been adopted by co-decision. The intention is clearly stated in recital 8, though no justification is given other than that the management procedure "is no longer applicable". When the basic instrument is adopted by co-decision, implementing legislation formerly decided through management committee procedures would be dealt with by regulatory or advisory committee procedures. In the case of an advisory committee, given the non-binding nature of an advisory committee's opinion, as opposed to the veto open to a management committee, the check on the Commission would be reduced. This potential extension of the Commission's powers has been a matter of concern for the House of Commons European Scrutiny Committee.[20]

Article 5a: the two stage procedure

22. The second major change, proposed as a new Article 5a, is to subject co-decided implementing measures allocated to regulatory committees to a two stage procedure—an executive phase and a supervisory (or control) phase. The executive phase would involve a Commission draft being placed before the regulatory committee, which would then issue an opinion by qualified majority. If the opinion were favourable, the Commission would prepare a final draft, and the proposal would move on to the supervisory phase. If the committee's opinion were unfavourable, or if no opinion were delivered, there would be a period of one month's further consultation, following which the Commission would prepare a final draft, which might or might not incorporate amendments to take account of the committee's position. An example of the new two stage procedure (produced by the Commission) is reproduced in.

23. In the supervisory phase, the Commission would submit the final draft to the Council and the European Parliament. If, within one month (which could be extended by another month if the Council or Parliament so requested), no objection were made, the Commission would then adopt the instrument. If the Council (by qualified majority) or the Parliament (by absolute majority) objected, the Commission would have two options. They could either adopt the instrument, possibly amending it to take account of the objections; or they could present a proposal for primary legislation.

24. This new regulatory procedure is to be welcomed in so far as it greatly increases the role of the European Parliament in comitology decisions. This is consistent with the Committee's 1999 Report, where we stated:

"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 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."[21]

25. Placing the European Parliament on an equal footing with the Council in implementing co-decided legislation is logical and justified. It means that the two arms of the legislature would have a say on the substance of the draft and would be able to raise politically sensitive questions. It is perhaps noteworthy that this proposal subtly shifts the nature of comitology from being input by Member States into implementing measures, to being control by the legislative bodies of the execution of their legislation.

26. However, whilst the Committee welcomes the increased role for the European Parliament, it condemns one consequence of the amendments, namely, that the Commission can adopt its proposal regardless of objections by the Council and by the Parliament. The Commission may "amend its draft to take account of the objections", but would be under no compulsion to do so—even if both the Council and the Parliament had unanimously rejected it. There seems little point in having a supervisory phase if the supervisory bodies can be thus overridden. This approach might, in theory, be consistent with the notion of a separation of "executive" and "legislative" powers and functions and with the viewpoint that the Commission has principal responsibility for the execution of EU laws, but there must be a question as to whether the tenuous supervision granted to the Council and Parliament is politically or democratically acceptable. On the face of it, these proposals do not seem consistent with the resolution of the "democratic deficit".

27. The new Article 5a would also have a considerable impact on the position of the Council in the regulatory procedure. The Commission believes that at present there is a "risk of an impasse when adopting the measures in question in cases where the Council cannot put together a qualified majority, strong opposition to the Commission's proposal emerges and the European Parliament has no say in the outcome."[22] The Commission's solution is to remove the power of the Council to reject proposals that have failed to be approved by the comitology committee; under the new proposals the Council can, in these cases, be overridden by the Commission. This is a significant change, but one barely mentioned in the Commission's Explanatory Memorandum or in the recitals to the draft Decision.

Article 8: Deleted

28. A third change is the deletion of Article 8. Article 8 allows the European Parliament to adopt a resolution stating that draft implementing measures adopted under Article 251 of the Treaty (the co-decision procedure) exceed the implementing powers provided for in the basic instrument (ie that the measures would be ultra vires). The Commission is then obliged to re-examine the draft measures. The deletion of Article 8 with regard to regulatory committees is perfectly understandable and justifiable: the Parliament will in future be able to determine the substance of comitology decisions as well as just their vires. What, though of advisory committees (management committees would no longer be used for co-decided legislation)? It would appear that the European Parliament would lose its power to comment on the vires of measures adopted by advisory committees. Although such resolutions are rare (indeed, none were made in 2001), the elimination of this long-stop in the advisory procedure needs justifying, and the lack of comment on it is baffling and unsatisfactory.

The European Parliament's view

29. In a Report delivered on 29 April,[23] the Constitutional Affairs Committee of the European Parliament considered the Commission's draft.[24] In addition to tidying-up amendments, the Committee proposed an amendment re-instating the Parliament's power to comment on the vires of proposals submitted to advisory committees. The Committee's Report noted that the criteria for determining whether a matter should go to an advisory committee or to a regulatory committee was open to differing interpretations; therefore, it was important for the Parliament to have an input into both.

30. The Constitutional Affairs Committee also proposed an amendment to the new Article 5a, the effect of which would be to oblige the Commission to take into account objections expressed by the Council or European Parliament to draft implementing measures adopted under the regulatory procedure. Instead of the Commission "possibly" amending its draft, the proposed amendment to Article 5a would require the Commission either to amend its draft to take account of the objections or else to "withdraw its draft altogether." This amendment is commendable and we strongly support it.

Implications for Parliamentary scrutiny

31. Should this Comitology proposal be enacted, there could be an impact on this Committee's scrutiny procedures. The proposal would require every co-decision-derived implementing measure subject to the regulatory procedure to be transmitted from the Commission to the Council and the European Parliament. The publication of such measures would arguably engage the Select Committee's Scrutiny Reserve Resolution and require deposit of the document, triggering scrutiny. The Select Committee has not sought to scrutinise all comitology measures, but only those which are legally, politically or practically important.[25] The implications of the present proposal for our scrutiny process will need to be considered.

The Government's view

32. Whilst agreeing that comitology is in need of attention, the Government says, in its Explanatory Memorandum,[26] that it:

"will be giving careful consideration as to whether these amendments upset the balance of the 1999 Decision, and whether they require change to the Treaties (Article 202)."[27]

33. Although the Minister is not entirely clear on what "upsetting the balance of the 1999 Decision" means, he earlier expressed concern at the proposed reduction of implementing procedures for co-decided legislation to advisory procedure and regulatory procedure. The Minister has said that when faced with the choice between the stark alternatives of the advisory and regulatory procedures, the European Parliament "has had a tendency to favour the lighter advisory procedure, which keeps the final say over implementation away from the Member States."[28]

16   European Governance: a White Paper. COM (2001) 428 final 25.7.2001. Back

17   See above, fn. 16, at p. 31. Back

18   COM (2002) 719 final, at p. 2. Back

19   See paragraph 42 below. Back

20   12th Report, Session 2002-03, HC 63-xii, at para. 4.13. Back

21   See above, fn. 4, at para. 145. Back

22   See above, fn. 18, at p. 4. Back

23   All bar one of the Report's proposed amendments were adopted by the European Parliament at its sitting of Tuesday 13 May 2003 (PE 331.498, at pp. 80-86). Back

24   A5-0218/2003. Back

25   See above, fn. 3, para. 89. Back

26   15878/02. Back

27   See above, fn. 26, at para. 16. Back

28   See above, fn. 26, at para. 9. Back

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