3 Control of the Commission's implementing
powers
| (a)
(32506)
PE-CONS 64/10
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(b)
(31416)
7386/10
COM(10) 83
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Draft Regulation laying down the rules concerning mechanisms for control by Member States of the Commission's exercise of implementing powers
Draft Regulation laying down the rules concerning mechanisms for control by Member States of the Commission's exercise of implementing powers
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| Legal base | Article 291(3) TFEU; co-decision; QMV
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| Document originated | (a) 4 February 2011
(b) 9 March 2010
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| Deposited in Parliament | (a) 11 February 2011
(b) 17 March 2010
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 3 February 2011
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| Previous Committee Report | (a) None
(b) HC 428-i (2010-11), chapter 15 (8 September 2010)
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| To be discussed in Council | 14 February 2011
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| Committee's assessment | (Both) Politically important
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| Committee's decision | (a) For debate in European Committee B
(b) Cleared
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Background
3.1 Article 202 of the EC Treaty included provision for the
Council to confer on the Commission power to make rules for the
implementation of legislation adopted by the Council. In exercising
the powers, the Commission was assisted by committees comprised
of representatives of the Member States. The committees are of
four kinds: advisory for uncontroversial technical
measures; management for measures of a primarily
management nature, such as the rules for the administration of
big spending programmes; regulatory for measures
to update or modify substantive provisions of the parent legislation
because, for example, circumstances have changed; regulatory
with scrutiny was introduced to deal with proposals for
the adoption of "measures of general scope designed to amend
non-essential elements" of the parent co-decided legislation.
3.2 The Treaty on the Functioning of the European
Union contains provisions for procedures which will replace the
present comitology procedure.
3.3 Article 290(1) TFEU provides that the legal
base for any legislative act may include provision for the delegation
to the Commission of power to adopt non-legislative acts of a
general nature to supplement or amend non-essential elements of
the legislative act.
3.4 Article 290(2) provides that the legislative
act which delegates power to the Commission may include:
- power for the Council or the
EP to revoke the delegation; and/or
- a proviso that the delegated act may come into
effect only if neither the EP nor the Council has objected to
it within a specified time.
3.5 Article 291 TFEU requires Member States to
adopt all the measures of national law necessary to implement
legally binding EU acts. Where uniform conditions for implementing
such acts are necessary, the acts should include provision to
confer implementing powers on the Commission. The European Parliament
and the Council are required to lay down the rules and general
principles for the mechanism by which the Commission's exercise
of its implementing powers will be subject to control by the Member
States. Those rules are contained in this draft Regulation.
Previous scrutiny
3.6 In his Explanatory Memorandum of 11 June,
the Minister for Europe (Mr David Lidington) told us that the
Government's firm view was that the draft Regulation should be
re-balanced in favour of greater Member State control of the Commission's
implementing acts. He thought that Member States should retain
at least as much control as they had under the existing comitology
procedure, and said that this had been the Government's aim in
the negotiations so far. For example, it had sought changes to
ensure greater flexibility in the circumstances in which the examination
procedure may be used and to limit or minimise the scope for the
Commission to ignore the opinion of an examination committee.
3.7 We shared the view that the draft Regulation
would give the Commission excessive freedom from Member States'
control of the exercise of its implementing powers. We therefore
asked the Minister to send us progress reports on the negotiations.[19]
Minister's letter of 28 September 2010
3.8 In response to the Committee's Report, the
Minister wrote on 28 September to enclose the latest draft Belgian
Presidency proposal, dated 20 September. He asked if we could
treat the document in confidence since the text was at the time
the subject of a live negotiation within the Council working group.
3.9 He explained that the current text was a
significant improvement on the Commission's first draft in the
following regards:
- Selection of procedures:
there is a presumption that the more rigorous examination procedure
will apply to more sensitive areas such as taxation.
- Time limits for consideration of Commission
draft measures: it is made clear that
the Member States should have an early and effective opportunity
to examine the Commission's proposals.
- Additional obligations on the Commission:
the Commission is required to take into account amendments made
by the Member State representatives on the committee and to find
solutions that command the widest support in the committee.
- Written procedure: a
Member State may ask for the written procedure to be halted and
for a meeting to be called.
- Appeal committee:
an Appeal Committee comprised of Member State representatives
is introduced as an extra control over the Commission.
- Urgent measures:
Additional obligations are imposed on the Commission. Urgent measures
cannot stay in effect for more than six months and can be terminated
by the Member State committee at an earlier date.
- Review: the
Presidency text includes an obligation on the Commission to present
a report on the working of the Comitology Regulation five years
after it comes into force.
3.10 However, the Minister explained that agreement
had not yet been reached on measures relating to common commercial
policy, which is currently outside the comitology regime. The
Commission was proposing to bring these measures within the new
Regulation and make them subject to the standard comitology voting
rules (i.e. qualified majority to adopt the measures and qualified
majority to block the measures). The UK together with a number
of other Member States (constituting a blocking minority) was
pressing for the existing common commercial policy voting rules
to continue. In some cases, this would mean retaining the simple
majority threshold to block a Commission measure rather than a
qualified majority. But there was also a blocking minority against
this and thus an impasse in the negotiations. He said that the
UK, together with other members of the blocking minority, had
made clear that the current Presidency compromise text was unacceptable.
3.11 Finally, he said that the Presidency was
proceeding with bilateral negotiations with key Member States,
and was keen to push for a first reading deal with the European
Parliament.
Our reply of 20 October 2010
3.12 In our reply we thanked the Minister for
the update; noted the improvements; and fully supported the Government's
stance on implementation of the common commercial policy by the
Commission. We also said that, whilst we respected his request
for confidentiality, we would be grateful for a public version
of the revised proposal to be deposited in due course, with further
comment where necessary, so that we could report it to the House.
The document
3.13 The final version of the draft Regulation,
document (a), was deposited on 14 February. It provides for the
Commission's drafts of implementing acts to be subject to either
an advisory procedure or an examination procedure. The examination
procedure applies to implementing measures of general
scope; programmes with substantial implications; the common agriculture
and fisheries policies; environmental and consumer protection;
the common commercial policy and taxation. The advisory
procedure applies to all other implementing measures.
The main provisions of the draft Regulation are set out below.
3.14 Provisions common to advisory and
examination committees (Article
3) — the following are common to both types of committee:
i) the committee is comprised of representatives
of Member States, chaired by a representative of the Commission;
ii) the chairman circulates the draft of the
proposed implementing act;
iii) the committee is required to give its opinion
on the draft within the period set by the chairman;
iv) the chairman is entitled to require the members
of the committee to give their opinions in writing;
v) each Member State is entitled to have its
opinion recorded in the minutes; and
vi) in certain cases, the draft of the proposed
implementing act can be referred to an appeal committee.
3.15 The advisory procedure (Article
4): an advisory committee delivers its opinion, whether positive
or negative, by a simple majority of its members. The Commission
then decides on the draft implementing act "taking the utmost
account of the conclusions drawn from the discussions within the
committee and of the opinion delivered" (Article 4(2)).
3.16 The examination procedure (Article
5): an examination committee delivers its opinion by QMV. If the
committee delivers a positive opinion, the Commission can then
adopt the implementing act. If the committee delivers a negative
opinion, the Commission would be prohibited from adopting the
implementing act; but the chairman could either circulate an amended
draft to the committee within two months of the negative opinion,
or within a month submit the draft implementing act to the appeal
committee for further deliberation.
3.17 Where the examination committee cannot agree
an opinion, the Commission can adopt the implementing act unless:
a) that act concerns taxation, financial services,
the protection of the health or safety of humans, animals or plants,
or definitive multilateral safeguard measures;
b) the basic act provides that the draft implementing
act may not be adopted where no opinion is delivered; or
c) a simple majority of the committee opposes
it.
In these three cases the chairman can either circulate
an amended draft to the committee within two months of the vote,
or within a month submit the draft implementing act to the appeal
committee for further deliberation.
3.18 A different procedure applies, however,
where the committee cannot agree an opinion on draft definitive
anti-dumping or countervailing measures, and a simple majority
opposes the draft implementing act. In this case, Article 5(5)
provides that:
"The Commission shall conduct consultations
with the Member States. Fourteen days at the earliest and one
month at the latest after the committee meeting, the Commission
shall inform the committee members of the results of those consultations
and submit a draft implementing act to the appeal committee. By
way of derogation from Article 3(7), the appeal committee shall
meet 14 days at the earliest and one month at the latest after
the submission of the draft implementing act. The appeal committee
shall deliver its opinion in accordance with Article 6. The time-limits
laid down in this paragraph shall be without prejudice to the
need to respect the deadlines laid down in the relevant basic
acts."
3.19 The appeal committee (Articles
3(7) and 6): the appeal committee is comprised of Member State
representatives and delivers its opinions by QMV. It is chaired
by the Commission. "Until an opinion is delivered, any member
of the appeal committee may suggest amendments to the draft implementing
act and the chair may decide whether or not to modify it. The
chair shall endeavour to find solutions which command the widest
possible support within the appeal committee" (Article 6(2)).
If the appeal committee delivers a positive opinion, the Commission
can then adopt the amended draft implementing act. If it delivers
a negative opinion, the Commission would be prohibited from adopting
it the original draft implementing act. If it cannot agree an
opinion, the Commission can adopt the original draft implementing
act. However, for the adoption of definitive multilateral safeguard
measures, the Commission cannot adopt the draft implementing act
in the absence of a positive opinion; and until 1 September 2012,
the appeal committee shall deliver its opinion on draft definitive
anti-dumping or countervailing measures by a simple majority as
opposed to QMV.
3.20 Article 7 provides for the adoption
of implementing acts in exceptional cases and Article
8 for immediately applicable implementing acts,
both of which measures apply temporarily until reviewed by either
an advisory or examination committee.
3.21 Article 11 provides for the right
of scrutiny for the European Parliament or the Council
to indicate to the Commission that, in its view, the draft implementing
act exceeds the implementing powers provided for in the basic
act. In such a case the Commission has to review the act but not
necessarily amend it.
The Government's view
3.22 The Minister wrote on 3 February to inform
us of the results of the negotiations, as reflected in document
(a), and to ask us to release the document from scrutiny. In terms
of timetable, he explains that the Belgian Presidency prioritised
this Regulation and pushed for a first-reading deal. The final
trialogue negotiation between the Council, European Parliament
and Commission was completed on 30 November 2010, and the Council
gave political endorsement to the final text on 1 December 2010
(the UK abstained on scrutiny grounds). On 16th December 2010,
the European Parliament adopted the Regulation as part of a first-reading
deal. Following tidying up of the text by Jurist-Linguists, the
final Regulation, he tells us, is now scheduled for adoption as
an "A" point at the Education, Youth and Culture Council
on 14 February 2011.
3.23 On the substance the Minister tells us that
the UK, along with other Member States, secured a number of improvements
to the original Commission proposal. The Government's key aim
throughout was to ensure that Member States would be able to examine
and scrutinise implementing acts fully before they were adopted
by the Commission (while also resisting a strong push from other
Member States to make trade rules more protectionist). He says
the Government secured improvements in several key areas.
3.24 Appeal Committee (Article 3(7),
Article 6): the Government secured
the introduction of the appeal committee, which provides an additional
layer of scrutiny over the Commission's exercise of implementing
powers. In addition, it secured agreement that Member States be
able to determine who would represent them at the appeal committee.
The appeal committee can therefore meet at political level, if
appropriate.
3.25 Commission to take into account
Member State opinion in exercise of its discretion (Recital 14):
The Government secured the inclusion of
recital 14 which, the Minister says, checks the Commission's exercise
of its discretion. If there is "no opinion" in the Appeal
Committee, the Commission has general discretion on whether to
adopt the draft implementing act. However for certain key sectors,
notably taxation, consumer health, food safety and protection
of the environment, the recital specifies that the Commission
will avoid wherever possible going against a predominant position
in the Appeal Committee which falls short of a qualified majority.
The inclusion of taxation in this recital was "absolutely
crucial" for the UK, the Minister says, and was achieved
despite considerable opposition.
3.26 Droit de regard for the European
Parliament and the Council (Article 11):
Only where a basic act has already been
adopted under the ordinary legislative procedure (co-decision)
will the European Parliament and Council now have a right of scrutiny.
The European Parliament had pushed for a more wide-ranging right
of scrutiny prior to an act's adoption, but this was resisted.
3.27 Trade / Common Commercial Policy
(CCP) (Articles 5(5), 6(5)):
To mitigate the loss of the ability to
block definitive anti-dumping and countervailing measures by a
simple majority (under the Regulation voting is now by QMV), the
Government secured additional checks through the appeal committee
procedure in Article 5(5) and an 18-month transitional period
where existing rules would continue to apply to definitive anti-dumping
and countervailing measures. This last point was achieved despite
considerable and vociferous opposition in Parliament and Council,
the Minister says. The Commission also committed to a review of
existing trade legislation, set out in an accompanying Declaration
— a step which the Commission had strongly opposed.
3.28 Adoption of measures in exceptional
circumstances (Article 7):
Article 7 allows for the Commission to
adopt an implementing act in exceptional circumstances despite
a negative opinion by the committee in order to avoid creating
significant disruption to financial and agricultural markets.
At the UK's request, the Commission has prepared a statement explaining
the limited circumstances in which this power will be used.
3.29 External aid:
the European Parliament was keen for implementing
acts relating to external aid programmes to be omitted from the
list of acts which in principle will be subject to the examination
procedure, as it considered that such implementing acts should
be adopted as delegated acts. The Regulation does not prejudge
whether individual decisions in this area should be adopted as
implementing acts or delegated acts.
3.30 Overall, the Minister says that the UK has
made significant progress in securing a Regulation that ensures
comprehensive and timely oversight of draft Commission implementing
acts by Member States, while resisting changes which would have
significantly affected management of several key sectors —
notably financial services, taxation and trade — at the
EU level. Consequently, the Minister asks that the Committee lift
the scrutiny reserve on this document.
Conclusion
3.31 This Regulation lays down the procedures
by which the Commission will adopt legally binding implementing
acts under Article 291 TFEU, where the basic act, be it a Regulation
or a Directive, states that uniform implementation is necessary.
The power given to the Commission by Article 291 TFEU is significant,
and now covers the common commercial policy; so the main issue
for the Government has been to ensure that there is adequate ex
ante control of the Commission's power by Member States. The
Minister's comments in his letter of 3 February demonstrate why
he believes these negotiations to have been largely successful.
3.32 It is unfortunate, however, that the
Minister did not reply to our letter of 20 October, nor inform
us of developments in the negotiations before political agreement
was given in the Council on 1 December. The consequence is that
the Regulation was agreed without the Committee being able to
give an opinion. Whilst we appreciate that the UK abstained from
the vote in the Council on 14 February, this was a decision the
Minister was obliged to take if he wished to avoid breaching the
scrutiny reserve resolution ¯
it is not symptomatic of taking scrutiny seriously. The fact
that the Minister's letter was signed ten days before the Regulation
was finally adopted, and that the final version of the Regulation
was deposited in Parliament on the same day that it was adopted
by the Council, speak for themselves.
3.33 We are very concerned that such a state
of affairs could have arisen on a document as important as this.
We will therefore invite the Secretary of State for Foreign and
Commonwealth Affairs to appear before us to explain how this arose
and what he has done to make sure it does not happen again.
3.34 The Commission's power to adopt implementing
acts is of sufficient political importance that we recommend that
document (a) be debated in European Committee. We would be grateful
if, in the course of the debate, the Minister were to explain
how he sees the appeal committee operating in practice (to include
in what circumstances a referral from the examination committee
will be made under Article 5(3)); and how he sees the additional
safeguards for taxation, environmental and consumer protection,
and definitive anti-dumping, countervailing and safeguard measures
operating in practice.
3.35 We clear document (b) from scrutiny,
because it has been superseded by document (a).
19 See headnote. Back
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