Documents considered by the Committee on 3 February 2010 - European Scrutiny Committee Contents

3   Comitology



COM(09) 673

Commission Communication on the Implementation of Article 290 of the Treaty on the Functioning of the European Union

Legal base
Document originated9 December 2009
Deposited in Parliament5 January 2010
DepartmentForeign and Commonwealth Office
Basis of considerationEM of 19 January 2010
Previous Committee ReportNone
To be discussed in Council
Committee's assessmentLegally and politically important
Committee's decisionCleared


3.1  The Treaty of Lisbon entered into force on 1 December 2009. It amends the Treaty on European Union (TEU) and replaces the Treaty establishing the European Community with the Treaty on the Functioning of the European Union (TFEU).

3.2  The Treaty of Lisbon creates a distinction between the delegation of powers to the Commission to adopt delegated acts pursuant to Article 290 TFEU, and the delegation of powers to the Commission to adopt implementing acts pursuant to Article 291 TFEU. Article 290 TFEU authorises the Commission to adopt 'non-legislative acts' which are distinguished from 'legislative acts' defined in Article 289 TFEU. Legislative acts are adopted by the ordinary or special legislative procedures and directly involve the Council and the European Parliament. The non-legislative acts which the Commission may adopt must be of general application, and will amend or supplement certain non-essential elements of a legislative act (similar to secondary legislation in the UK Parliament). These powers are collectively known in the Treaty of Lisbon as "delegated acts." For delegated acts, Article 290 TFEU replaces the system known as "comitology", which consisted of committees of Member States' representatives, chaired by the Commission.

The Document

3.3  The European Commission has prepared a Communication entitled 'Implementation of Article 290 of the Treaty on the Functioning of the European Union' to inform the Council and European Parliament of how it intends to implement Article 290 TFEU. Article 290 replaces the ex-ante comitology system with a system of ex-post facto control by the Council and European Parliament. Article 290 TFEU makes available two powers to this end. First, once the Commission has adopted a proposal, either the Council or the European Parliament may be given the right to block the Commission proposal, within a specified period of time (right of opposition). If neither the Council nor the European Parliament opposes the delegated act within a certain period of time, the Commission proposal will come into force. Secondly, the Council and European Parliament may also be given the power to revoke the delegation from the Commission (right of revocation). The legislators, i.e. the Council and the European Parliament, need to specify the ex post control conditions in the underlying legislation authorising the delegation of powers to the Commission. They may impose the conditions in the alternative or cumulatively and thus vary the conditions from one case to the next.

3.4  The Commission has drawn up the Communication in response to concerns raised by Member States, including the UK, which felt there was too much uncertainty about how Article 290 TFEU would be implemented, in particular now that there is no longer a formal stage of comitology committees. To address these concerns the Commission response includes a model template which provides standard wording which the legislators may use to define the scope of the delegation of power in future instruments and the conditions to which the delegation is subject.

The Government's view

3.5  In his Explanatory Memorandum of 19 January 2010 the Minister for Europe (Chris Bryant) welcomes the Commission Communication and comments as follows:

"The Council has welcomed the Commission's communication (please see Annex A for the Council declaration) as it commits the Commission to accompany delegated acts with explanatory memoranda and provides for the systematic consultation of Member State experts prior to Member States implementing the delegated acts when they have been adopted.

"This greatly enhances the ability of Member States to improve putative delegated acts compared with the provisions of Article 290, which do not provide for a formal stage of committee scrutiny before adoption of a measure by the Commission. The Council has also stated that it intends to review the functioning of the consultation of experts at an appropriate future juncture.

"The Communication annex contains "models" which can be used to put into effect any delegation of power under Article 290 on a dossier-by-dossier basis. The models are not binding and can be adjusted by the Council and European Parliament in individual negotiations. They have been produced to facilitate coherent implementation of Article 290 during the initial phase of its introduction and to avoid protracted and repetitive negotiations on each dossier."

The Council Declaration on the Commission's Communication referred to by the Minister reads as follows:


"The Council welcomes the Commission's communication on the implementation of Article 290 of the Treaty on the Functioning of the European Union as well as the standard models attached to it in view of their insertion into legislative proposals adopted under the ordinary legislative procedure, when these confer delegated powers to the Commission on the basis of Article 290 of the TFEU.

"The Council attaches particular importance to the Commission's commitment to, in the preparatory phase, systematically consult experts from the national authorities of all the Member States, which will be responsible for implementing the delegated acts once they have been adopted. The Council emphasises that the communication constitutes guidelines for the Commission's future exercise of powers delegated under Article 290. The Council notes further that the Commission will carry out the consultations in plenty of time, to give the experts an effective possibility to make a useful and effective contribution.

"The Council also notes with satisfaction the Commission's commitment to inform the experts of the conclusions it believes should be drawn from the discussions, its preliminary reactions and how it intends to proceed. In addition, the Council regards as relevant and necessary the Commission's commitment to accompany delegated acts by explanatory memoranda setting out in a detailed manner the grounds for the act and providing information about the preparatory work undertaken by the Commission.

"The Council draws the Commission's attention to the fundamental importance of the immediate implementation of the above mentioned commitments in order to create confidence in the new procedure foreseen under Article 290 of the TFEU and to ensure a smooth and fruitful operation of the delegation of powers.

"In the light of the importance of the new procedure foreseen under Article 290 TFEU and once sufficient experience has been gained, the Council intends to assess how efficiently the consultation of experts is functioning."


3.6  We thank the Minister for his summary of and comments on the Commission Communication. We agree that the Communication provides a helpful overview of the contents and remaining legislative options under Article 290 TFEU which has the potential of strengthening Member States' control over the Commission's delegated legislation. We clear the document from scrutiny and have no further questions to the Minister.

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