Select Committee on European Union Thirty-First Report

CHAPTER 4: Comitology and the Convention on the Future

34. The Convention on the Future of Europe has, inter alia, been examining the issue of comitology. The issue has been touched upon in three separate documents: the report of the Working Group IX on Simplification; the first draft Article 28 on Implementing Powers; and, in the second draft Constitution, draft Article I-36, which is an amended version of the previous Article 28.

Working Group IX on Simplification

35. The Working Group on Simplification recommended a hierarchy of laws,[29] something which was proposed at the time of the Maastricht Treaty, but to which Member States were then hostile. The Group proposed three levels:

(i) Legislative Acts—"acts adopted on the basis of the Treaty and containing essential elements in a given field";

(ii) Delegated Acts—"these acts would flesh out the detail or amend certain elements of a legislative act, under some form of authorisation defined by the legislator"; and

(iii) Implementing Acts—"acts implementing legislative acts, 'delegated legislation' or acts provided for in the Treaty itself".[30]

36. The third category, implementing acts, is intended to cover those measures which when taken by the Union would normally be taken by the Commission with or without a comitology procedure or exceptionally by the Council. The new category of delegated acts is also intended to cover acts to be taken by the Commission, but subject to some form of control mechanism (such as a right of call back, a period of tacit approval or a 'sunset clause'[31]). It would appear that the proposed new category would cover measures which at present would be dealt with under comitology procedures.

37. What effect a distinction between delegated acts and implementing acts would have on the nature and volume of matters subject to comitology is not clear. It is noteworthy that the Working Group envisaged that the introduction of the new category of delegated acts would lead to a simplification of the comitology procedures (possibly by amendment or abolition of the regulatory committee procedure), but the Group's report did not delve any deeper into the issue of comitology, and took the view that any analysis of Article 202 was beyond its remit.

Draft Article 28: Implementing Acts

38. In the Praesidium's first draft of Article 28,[32] they sought "a clarification of Article 202 TEC, which currently governs implementing powers, exercised at Union level."[33] The paragraphs which relate to comitology are 2, 3 and 4:

"2. Where uniform conditions for the implementation of the Union's binding acts are needed, those acts may confer implementing powers on the Commission or in specific cases and in the cases provided for in Article [CFSP], on the Council.

3. Implementing acts of the Union may be subject to control mechanisms which shall be consonant with principles and rules laid down in advance by the European Parliament and Council in accordance with the legislative procedure.

4. Implementing acts of the Union shall take the form of European implementing regulations or European implementing decisions."

39. Whilst paragraph 2 may be essentially the status quo, namely that implementing acts are delegated to the Commission but can exceptionally be effected by the Council, the same cannot be said of paragraph 3. The reference to "control mechanisms" (which presumably relates to comitology committees) says these should be "consonant with principles and rules laid down in advance by the European Parliament and the Council in accordance with the legislative procedure." This would establish in the Treaty the right of the European Parliament to have a voice in comitology procedures (or at least those adopted under the "legislative procedure", which refers to co-decision). The Committee welcomes this proposal.

Second Draft Article I-36: Implementing Acts

40. The second draft Article on implementing acts, published following amendments submitted by Convention members on the original, repeated the first draft Article 28, but with one amendment to paragraph 3. That will now read:

"3. The law shall lay down in advance rules and general principles for the mechanisms for control by Member States over implementing acts of the Union."[34]

41. Two changes are notable here. First, the "mechanisms for control" would be exercised by the Member States. This, the Praesidium explains, is to stipulate that control is exercised in this area by Member States.[35] Presumably, the amendment indicates a continuation of the comitology structure. Second, the rules and principles would be laid down in advance by "the law". Reference to the European Parliament and the Council has been deleted. We assume "the law" refers to a Decision similar to the 1999 Decision, which will provide for set procedures to be followed in implementing measures.

Comitology and Co-decision

42. Under Article I-33, co-decision is proposed to become the primary procedure for adopting primary European legislation.[36] Given that agriculture and fisheries are matters which are projected to be decided by co-decision, and given that they comprise the bulk of the work of management committees, the management procedure looks likely to be effectively killed off if, as the Commission proposes, it should no longer be used for co-decision-derived implementing measures.


43. 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 information.

29   CONV 424/02. Back

30   See above, fn. 29, at p. 9. Back

31   A sunset clause is a clause under which the measure automatically terminates at the end of a fixed period unless it is formally reviewed. Back

32   For more analysis of this Article, see our Report The Future of Europe: Constitutional Treaty¯Draft Articles 24-33 (12th Report, Session 2002-03, HL Paper 71), at pp 15-17. Back

33   CONV 571/02, at p. 4. Back

34   CONV 797/1/03 REV 1, at p. 30. Back

35   See above, fn. 34, at p. 92. Back

36   See above, paragraph 18, for a brief explanation of co-decision. The number of policy areas subject to co-decision would double, should the Convention's draft Treaty become law. Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003