10 Comitology Reform
| (a)
(25615)
9087/04
COM(04) 324
(b)
(27628)
10126/1/06
—
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Draft Council Decision amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission
Amended draft Council Decision amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission
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| Legal base | Article 202; consultation; unanimity
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | (b) Minister's letter of 29 June 2006 and EM of 3 July 2006
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| Previous Committee Report | (a) HC 34-xxxi (2005-06), para 6 (14 June 2006)
(b) None
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| To be discussed in Council | (b) At the GAERC on 17 and 18 July 2006
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| Committee's assessment | Legally and politically important
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| Committee's decision | (Both) Cleared
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Background
10.1 Comitology is the system of committees which oversees the
exercise by the European Commission of legislative powers delegated
to it by the Council and the European Parliament. "Comitology"
committees are made up of representatives of the Member States
and are chaired by the Commission. Under Council Decision 1999/468/EC,
which currently governs the comitology process, there are three
types of procedure (advisory, management and regulatory), an important
difference between which is the degree of involvement and power
of Member States' representatives.
10.2 Comitology has come under criticism as forming
part of the EU's "democratic deficit". The Commission's
original proposal addressed many of the criticisms made of comitology,
and sought to reform the existing comitology process in several
ways. First, the proposal sought to strengthen the role of the
European Parliament in the comitology decision-making process
by granting the Parliament co-decision status with the Council
during the supervisory phase of the comitology process. Secondly,
the Commission proposed to reduce the number of committee procedures
from three to two and to abolish the management procedure currently
available under the 1999 Decision. Thirdly, it proposed that the
choice between the two remaining procedures for measures adopted
under co-decision by Council and European Parliament should be
prescribed and no longer left to the discretion of the legislating
institution.
Background
10.3 We last looked at a substantially amended version
of the original proposal in response to a Minister's letter of
early June 2006. We asked the Minister to deposit a copy of the
Presidency text referred to in his letter and to explain the grounds
which led him to conclude that the proposed legal base for the
proposal was adequate.
The Document
10.4 The Minister has now deposited the requested
Presidency text. The amended proposal has the following key features.
10.5 First, the management procedure is not to be
abolished.
10.6 Secondly, it prevents the Commission going ahead
with the proposal over the objections of the Council or the European
Parliament. Under the terms of the latest text, the Commission
will need to submit an amended draft or a legislative proposal
if either the Council or Parliament objects to its draft. It is
possible, however, for the Council and Parliament to provide for
application of an urgency procedure where the time limits for
scrutiny cannot be met. This would allow the Commission to give
the measure a provisional application and also to maintain it
in force after objection by either the Council or Parliament until
replaced by a definitive instrument. The safeguards on this latter
power are that the Committee must have approved the draft and
keeping the measure in force has to be justified on health protection,
safety, or environmental grounds.
10.7 Thirdly, amended text provides that the European
Parliament may oppose draft implementing measures on the grounds
that they are not compatible with the aim or content of the basic
instrument or do not respect proportionality or subsidiarity and
not just on the grounds that proposals may be ultra vires.
In addition, the text provides for the European Parliament to
be informed by the Commission of Committee proceedings on a regular
basis following arrangements which ensure that the transmission
system is transparent. The Presidency has also negotiated supplementary
undertakings in connection with the draft decision. By these the
Council, Parliament and Commission agree that implementing powers
will normally be conferred on the Commission without time limit.
This is intended to put an end to the European Parliament inserting
sunset clauses on the operation of comitology to which the Council
subscribes in order to secure agreement. They also set out the
25 existing measures which are to be adopted under the new comitology
'regulatory with scrutiny' procedure shortly after its adoption.
10.8 The main points of the 'regulatory with scrutiny'
procedure are as follows:
- It is to apply when the implementing
measures amend non-essential elements of the basic instrument;
the scrutiny procedure differs depending on whether the Committee
has approved them; if it has, the draft measures go to the Council
and the Parliament and either institution can oppose them on certain
grounds within three months;
- If the draft measures are not approved, the measures
are sent to the Council and Parliament at the same time, but the
Council must first decide whether it has any objection to them
within two months. If it has no objection, the Parliament has
four months from receipt to oppose the measures on certain grounds;
- There is provision for the time limits to be
extended by one month or to be shortened; and
- The Council and Parliament can make provision
for implementing measures to have provisional application on grounds
of urgency.
The Government's view
10.9 In his Explanatory Memorandum of 3 July the
Minister for Europe (Mr Geoffrey Hoon) welcomes the COREPER agreement
on the latest Presidency text. He expresses the Government's view
that the agreement should make the comitology arrangements more
consistent with the Laken Declaration and create a faster, more
effective and accountable decision making process than is currently
in place under the Council Decision of 28 June 1999. The Minister
is more specific in his letter of 29 June 2006, in which he also
sets out the Government's thinking in relation to the proposed
legal base for the proposal. The Minister writes as follows:
"I am writing to provide you with the final
text of the proposal, agreed at Coreper on 8 June subject to a
UK Parliamentary scrutiny reserve, for a Council Decision amending
Commission Decision 1999/468/EC on Comitology. I also attach associated
statements agreed at Coreper on 22 June. As requested, I am also
happy to explain why I consider the proposed legal base for the
new 'regulatory with scrutiny procedure' to be adequate. Although
the text of the amended proposal is not yet publicly available,
I am depositing an Explanatory Memorandum so that your Committee
may consider lifting your scrutiny reserve on this item. I will
of course formally deposit the document next week once it becomes
publicly available.
"For the reasons set out in my letter to you
of 1 June, I believe that the agreement over a revised Comitology
Decision meets all the UK's principal objectives for comitology
reform, chiefly giving the European Parliament more say in implementing
co-decided legislation. The outcome represents a major success
for the Austrian Presidency on an initiative launched during our
Presidency last autumn.
"Your Committee in its meeting of 14 June asked
for a further explanation of the basis on which I considered the
proposed legal base for the new procedure to be adequate. Article
202 is the legal base for this measure and it provides that the
Council shall confer on the Commission powers for the implementation
of the rules which the Council lays down. The legal issue which
arises is whether the powers granted to Parliament in the amended
Decision go beyond the scope of Article 202. The view taken by
the Council is that it is not contrary to the EC Treaty to give
Parliament, as co-legislator, the possibility of checking that
"quasi-legislative" measures envisaged for the implementation
of an act adopted under the co-decision procedure do comply with
that act. Those checks can extend as far as being able to block
the adoption of such measures. By 'quasi-legislative' measures,
we mean those that have the purpose of revising and updating provisions
of the act using the swifter comitology procedure.
"The particular concerns in relation to the
Commission's proposal were that it might confer implementing powers
on the European Parliament and that it altered the interinstitutional
balance established by the Treaty. By limiting the comitology
reform to 'quasi-legislative' measures and by providing that both
co-legislators can scrutinise implementing measures and oppose
their adoption, I believe that the Council has dealt with these
concerns.
"In my letter of 1 June, I mentioned that one
Member State wanted a simple majority of Member States to be in
favour of the implementing measures before they can be adopted.
The Member State in question was particularly concerned about
sensitive areas such as GMO authorisations. These concerns have
now been addressed by means of the statements in the Draft summary
record of the Coreper meeting at Annex III of document 10125/1/06.
"Following agreement in Coreper, the text of
the amended Decision is now subject to re-consultation of the
European Parliament on 6 July. If approved, it would then go to
17-18 July GAERC for adoption: I would be grateful if your Committee
would consider lifting your scrutiny reserve before this date."
Conclusion
10.10 We thank the Minister for his summary and
comprehensive comments on the agreed Presidency text. We remain
sceptical about the adequacy and legal certainty of the distinction
between quasi-legislative and other comitology measures but accept
the Minister's view that for as long as the proposed comitology
reform does not confer on the European Parliament the power to
adopt implementing measures, it does not seem obviously incompatible
with Article 202 EC. As this answers our last remaining concern
we are now content to clear the agreed proposal (document (b))
together with the previous text (document (a)).
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