15 Control of the Commission's implementing
powers
| (31416)
7386/10
COM(10) 83
| Draft Regulation laying down the rules concerning mechanisms for control by Member States of the Commission's exercise of implementing powers
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| Legal base | Article 291(3) TFEU; co-decision; QMV
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| Document originated | 9 March 2010
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| Deposited in Parliament | 17 March 2010
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 11 June 2010
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information awaited
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Background
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;
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| ii) | the chairman would circulate the draft of the proposed implementing act;
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| iii) | the committee would be required to give its opinion on the draft within the period set by the chairman;
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| 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
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| v) | each Member State would be entitled to have its opinion recorded in the minutes.
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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]
Conclusion
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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