European Scrutiny Committee Contents

15 Control of the Commission's implementing powers



COM(10) 83

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 originated9 March 2010
Deposited in Parliament17 March 2010
DepartmentForeign and Commonwealth Office
Basis of considerationEM of 11 June 2010
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentPolitically important
Committee's decisionNot cleared; further information awaited


15.1 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 is assisted by committees comprised of representatives of the Member States. The committees are of four kinds:

  • Advisory for uncontroversial technical measures. A committee of representatives of the Member States gives its opinion on the Commission's proposal for the legislation. The Commission was not bound by the views of the committee and may adopt a measure against the opinion of the majority of the members.
  • Management for measures of a primarily management nature, such as the rules for the administration of big spending programmes. The Commission chairs a committee of the representatives of the Member States. The Committee considers the Commission's proposal and votes on it by QMV. If a qualified majority does not support the proposal, the Council may take a decision disagreeing with the Commission's proposal.
  • Regulatory for measures to update or modify substantive provisions of the parent legislation because, for example, circumstances have changed. The procedure is used for delegated legislation on matters such as the health or safety of humans, animals and plants. The Commission chairs a committee of representatives of the Member States. If a qualified majority of the committee supports the proposal, the Commission adopts it. If the committee does not support it, the Commission is required to submit the proposal to the Council and inform the European Parliament (EP). If the EP concludes that the proposal exceeds the Commission's delegated powers, it is required to tell the Council. If the Council opposes the proposal, the Commission is required to re-examine it and resubmit the proposal or amend it or propose new primary legislation.

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. The Commission refers its proposal for such an act to a committee comprised of representatives of the Member States and chaired by the Commission. If the committee supports the proposal, the Commission is required to submit the draft to the Council and the EP. If the EP or the Council opposes the draft, the Commission is prohibited from adopting it. If neither the EP nor the Council opposes the measure, the Commission may adopt it. If the committee opposes the draft, the Commission is required to send it to the Council and the EP. If the Council opposes the draft, the Commission may not adopt it. If the Council is minded to agree with the proposal, it is required to send the draft to the EP. If the EP does not oppose it, the Commission may adopt it. If the EP opposes it, the measure falls.

15.2 The Treaty on the Functioning of the European Union contains provisions for procedures which will replace the present comitology procedure.

15.3 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.

15.4 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.

15.5 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, by regulation, 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.

15.6 The existing comitology arrangements will continue to operate until delegated legislation is proposed in accordance with Article 290 TFEU and the Regulation required by Article 291 has been adopted.

The draft Regulation

15.7 The draft Regulation sets out the Commission's proposals for the rules and general principles to which Article 291 TFEU refers. It provides for the Commission's drafts of implementing acts to be subject to either a new advisory procedure or a new examination procedure. The examination procedure would apply only to specified classes of implementing measures, including those relating to the common agriculture and fisheries policies; the environment; and the common commercial policy. The advisory procedure would apply to all other implementing measures. The main provisions of the draft Regulation are as follows.

15.8 Provisions common to advisory and examination committees — the following would be common to both types of committee:
i)the committee would be comprised of representatives of Member States, chaired by a representative of the Commission;
ii)the chairman would circulate the draft of the proposed implementing act;
iii)the committee would be required to give its opinion on the draft within the period set by the chairman;
iv)the chairman would be entitled to require the members of the committee to give their opinions in writing with or without the agreement of the committee to that procedure; and
v)each Member State would be entitled to have its opinion recorded in the minutes.

15.9 The advisory procedure: an advisory committee would be able to deliver its opinion by a vote supported by a simple majority of its members. After taking account of discussions with the committee, the Commission would have discretion whether to adopt, amend or withdraw the proposed implementing act.

15.10 The examination procedure: an examination committee would deliver its opinion by QMV. If the committee agreed with the proposal, the Commission would adopt it, unless there were exceptional circumstances. If the committee disagreed with the proposal, the Commission would be prohibited from adopting it, but the chairman could ask the committee to think further about the proposal or circulate an amended draft. If the Commission considered that non-adoption of an implementing act within an imperative deadline would create a significant disruption of the markets or a risk to security, human safety or the EU's financial interests, the Commission would be able to adopt the act. In that event, the Commission would have to put the measure to the committee for a second opinion. If the second opinion were adverse, the Commission would be required to repeal the act.

The Government's view

15.11 In his Explanatory Memorandum of 11 June, the Minister for Europe (Mr David Lidington) tells us that the Government's firm view is that the draft Regulation should be re-balanced in favour of greater Member State control of the Commission's implementing acts. Member States should retain at least as much control as they have under the existing comitology procedure. This has been the Government's aim in the negotiations so far. For example, it has 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.

15.12 The Minister says:

"new Ministers have wished to have the opportunity to consider the UK's position afresh and in the light of the progress of the negotiations since the Commission's proposal was originally published. The Government is keen to ensure that the [European Scrutiny Committees in both Houses] are provided with the most up-to-date and relevant information on this dossier to enable them to discharge their scrutiny functions effectively. I therefore propose to write to the Committees before the end of June, when I expect that a General Approach will have been distributed by the Presidency, and will set out the newly agreed Government position on the General Approach."[63]


15.13 We share the view that the draft Regulation would give the Commission excessive freedom form Member States' control of the exercise of its implementing powers. We should be grateful, therefore, if the Minister would send us progress reports on the negotiations. We look forward to receiving his views on the Presidency's revised draft of the Regulation. Meanwhile, we shall keep the Commission's draft under scrutiny.

63   The Minister's references to a "General Approach" are references to the Presidency's revised draft of the draft Regulation. Back

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