9 Comitology — adaptation of the
regulatory procedure with scrutiny
| (a)
(35189)
12730/13
COM(13) 451
(b)
(35179)
12539/13
COM(13) 452
|
Draft Regulation adapting to Article 290 of the Treaty on the Functioning of the European Union a number of legal acts providing for the use of the regulatory procedure with scrutiny
Draft Regulation adapting to Article 290 of the Treaty on the Functioning of the European Union a number of legal acts in the area of Justice providing for the use of the regulatory procedure with scrutiny
|
| Legal base | (a) Articles 33, 43(2), 53(1), 62, 64(2), 91, 100(2), 114, 153(2)(b), 168(4)(b), 172, 192(1), 207 and 338(1) TFEU; QMV; co-decision;
(b) Article 81(2) TFEU; QMV; co-decision
|
| Department | Foreign and Commonwealth Office
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| Basis of consideration
| Minister's letter of 7 October 2013
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| Previous Committee Report
| HC 83-xiii (2013-14), chapter 14 (4 September 2013)
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| Discussion in Council
| No date set |
| Committee's assessment
| Legally and politically important
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| Committee's decision
| Not cleared; further information requested
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Background
9.1 The delegation of powers to the Commission has
been in operation for many years, subject to various degrees of
control by committees of Member States, through a process known
as "comitology". In 2009 the Lisbon Treaty replaced
existing comitology procedures with two legal instruments. It
introduced powers for the Commission to adopt "implementing
acts" where "uniform conditions for implementation"
are needed (as defined in Article 291 TFEU). It also introduced
powers for the Commission to adopt "delegated acts",
which are measures to "supplement or amend certain non-essential
elements of a basic legislative act" (as defined in Article
290 TFEU).
9.2 Subsequently, Regulation No. 182/2011, the comitology
Regulation, laid down the rules and general principles for committee
procedures to control the Commission's exercise of its powers
to make implementing acts. Article 13 of this new comitology Regulation
set out how most of the old comitology procedures would be changed
to align with the new ones. However, one old procedure —
known as "Regulatory Procedure with Scrutiny" (RPS,
commonly known in Brussels by its French acronym, PRAC) —
was not included in this. Instead, the Commission issued a statement
that it would review the provisions attached to this procedure
in each instrument it intends to modify, in order to adapt them
in due course according to criteria laid down in the Treaty; and
that it would assess the results of this process by the end of
2012 in order to estimate how many legislative acts containing
references to the RPS remain in force. It would then prepare the
appropriate legislative initiatives to complete the adaptation.
The overall objective of the Commission was that, by the end of
the 7th term of the European Parliament, all provisions referring
to the RPS would have been removed from all legislative instruments.
9.3 Since 2011, a few pre-Lisbon legislative acts
have been revised, and old RPS procedures have been replaced with
either implementing or delegated acts. However, the Commission
states that 288 legislative acts still contain references to RPS,
and many decisions continue to be taken through old pre-Lisbon
procedures. The present proposals focus on 165 of them. They are
listed in the annex of each of the proposals. Five of them are
JHA measures, and are contained in a separate proposal (document
(b)) because the proposed Title V legal base, which gives the
UK and Ireland an opt-out, is irreconcilable with the proposed
legal bases of the other 160 in document (a), which bind all Member
States.
Previous scrutiny
9.4 In the conclusion to our previous Report[30]
we strongly supported the Government in its stance on these two
proposals — we feared that the omnibus approach advocated
by the Commission would significantly limit the influence of Member
State experts on the drafting of delegated Commission legislation
and so hand considerable power to the Commission.
9.5 We thought this prospect was of sufficient legal
and political importance that we might in due course recommend
the proposals to be debated in European Committee or on the floor
of the House, depending on the course of negotiations.
9.6 We noted the Minister's concern that, despite
a Title V legal base, recital 6 of document (b) stated that the
UK and Ireland could not opt out of the proposal. We thought the
premise of recital 6 was flawed; and that the precedent set would
be concerning if left unchallenged. We therefore asked the Minister
to say how the Government intended to challenge the recital.
9.7 We noted that the timing of the adoption of this
proposal by the Commission meant that there was not enough time
for the Government's opt-in decision to be debated in European
Committee before the deadline of 28 September. As for whether
the UK should opt-in, our and the Government's concerns about
the Commission's omnibus approach led us to the conclusion that
the Government should not opt into document (b) at this stage.
We regretted, however, that the Minister's Explanatory Memorandum
did not contain an analysis of the impact of the delegated act
procedure on the five JHA measures annexed to document (b). This
would have considerably helped us in making our assessment.
9.8 We asked the Minister to write back to us for
our first meeting in October with a detailed explanation of the
reasons for its decision on the opt-in, and an update on the negotiations,
particularly with regard to recital 6.
The Minister's letter of 7 October 2013
9.9 The Minister for Europe (Mr David Lidington)
writes to say that the Government remains strongly opposed to
the Commission's approach to automatically transfer (with no detailed
scrutiny) the listed measures from the pre-Lisbon Treaty Regulatory
Procedure with Scrutiny to delegated acts under Article 290 TFEU.
The first Friends of the Presidency (Comitology) Group meeting
was held on 24 September. The UK was joined by a majority of
Member States in opposing an automatic alignment and calling for
a case-by-case approach. The Presidency, therefore, agreed
to examine the proposals in detail, within the framework of the
overall proposal, to allow proper scrutiny. Future meetings will
individually examine acts, grouped thematically according to policy
area, to identify which new procedure would be most appropriate.
The Minister undertakes to keep the Committee updated as negotiations
progress.
9.10 With regard to the Title V proposal, he apologises
that the date of the opt-in given in the Explanatory Memorandum
was incorrect. The 28 September deadline in the Explanatory Memorandum
assumed a date three months after the Commission issued its omnibus
proposal covering five items in relation to justice (27 June).
However, the Council version of the proposal was issued on 19
July and the three-month opt-in period does not start until the
Council has issued the final translated version. He understands
that the Croatian language version has yet to be published. However
the Croatian delegation is content for negotiations to continue,
at least for the time being.
9.11 As the opt-in period has, formally, yet to start,
these unusual circumstances fall outside the arrangements set
out in the Code of Practice. The Government suggests a pragmatic
approach. In order to give us enough time to consider the issues,
the Minister says the Government will not make a final decision
on the opt-in for eight weeks from the date of this letter. If
it decides to opt into the proposal, it may want to do so before
the Croatian language version becomes available in order to secure
the best deal for the UK. He hopes this approach will be acceptable
to the Committee on this occasion.
9.12 The Government has explored with the Commission
why recital 6 does not refer to the opt-in. Following those discussions
the Minister reports that the Commission can show some flexibility
on this point. As these discussions continue the Government will
defend robustly the UK's right to assert its opt in.
9.13 The decision on whether to opt in will be led
by the Secretary of State for Justice. When deciding whether to
opt in the Government will take account of the following factors:
i) the best way to maximise the UK's influence
in negotiations;
ii) the agreed procedure (whether it is by delegated
Acts or implementing Acts) will be used to make amendments to
the standard forms that are part of these five Regulations. These
forms must be aligned with the main text of the Regulation. All
the changes that have been made to date under the existing procedure
have been entirely technical;
iii) before the implementing Acts procedure could
apply, the standard forms would need to be removed from the Regulations
as they are currently Annexes and not separate measures. It will
be possible, however, to argue for the forms to be decoupled from
these Regulations during the negotiations; and
iv) if all the Member States that currently apply
these Regulations continue to do so there would be practical difficulties
unless the same amending procedure applied to all.
Conclusion
9.14 We thank the Minister for his letter.
9.15 We note the Commission's "flexibility"
on recital 6, but ask the Minister to explain what this means.
We think it imperative that the UK's opt-in rights are not curtailed
in any way for draft legislation founded on Title V TFEU, such
as document (b).
9.16 We are pleased that the Council is individually
examining acts, grouped thematically according to policy area,
to identify which new procedure would be most appropriate. This
approach, rather than the omnibus approach proposed by the Commission,
is more consistent with effective scrutiny by Member States.
9.17 We take note of the factors which will influence
the Government's opt-in decision on document (b), the logic of
which we approve. Given the technical complexity of the documents
under consideration, however, and our removal from the negotiations,
we do not on this occasion consider ourselves able to comment
further on the opt-in decision. We look forwarded to being informed
of the reasons for the Government's decision in due course.
9.18 In the meantime both proposals remain under
scrutiny.
30 See headnote. Back
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