3 Comitology
| (31228)
5107/10
COM(09) 673
| Commission Communication on the Implementation of Article 290 of the Treaty on the Functioning of the European Union
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| Legal base | —
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| Document originated | 9 December 2009
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| Deposited in Parliament | 5 January 2010
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 19 January 2010
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| Previous Committee Report | None
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| To be discussed in Council | —
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
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:
"COUNCIL DECLARATION
"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."
Conclusion
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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