European Scrutiny Committee Contents

3   Control of the Commission's implementing powers



PE-CONS 64/10




COM(10) 83

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

Legal baseArticle 291(3) TFEU; co-decision; QMV
Document originated(a) 4 February 2011

(b) 9 March 2010

Deposited in Parliament(a) 11 February 2011

(b) 17 March 2010

DepartmentForeign and Commonwealth Office
Basis of considerationMinister's letter of 3 February 2011
Previous Committee Report(a) None

(b) HC 428-i (2010-11), chapter 15 (8 September 2010)

To be discussed in Council14 February 2011
Committee's assessment(Both) Politically important
Committee's decision(a) For debate in European Committee B

(b) Cleared


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.


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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