5 The
working of the comitology committees in 2012
| (35582)
16659/13
COM(13) 701
+ ADD 1
| Commission Report on the working of Committees during 2012
Commission Staff Working Document
|
| Legal base
| —
|
| Document originated
| 10 October 2013
|
| Deposited in Parliament
| 29 November 2013
|
| Department
| Foreign and Commonwealth Office
|
| Basis of consideration
| EM of 20 December 2013
|
| Previous Committee Report
| None
|
| Discussion in Council
| No date foreseen
|
| Committee's assessment
| Legally and politically important
|
| Committee's decision
| Not cleared; further information requested
|
The document
5.1 Comitology committees consist
of representatives of Member States and exercise oversight of
the use of implementing powers delegated to the Commission in
EU legislative acts.
5.2 This is the second report on
comitology since the new comitology Regulation entered into force
on 1 March 2011. The report contains an overview of developments
and a summary of committees' activities in 2012.
5.3 Although many of the old committees
switched to one of the new comitology procedures following the
entry into force of the new comitology Regulation, committees
operating under the "Regulatory Procedure with Scrutiny"
(RPS) have been allowed to continue to be used until they are
gradually replaced.
Jurisprudence
5.4 The Commission notes that,
in its judgment of 5 September 2012, European Parliament v
Council, the Court of Justice annulled a Council Decision
relating to the surveillance of the sea external borders in the
context of cooperation between Member States coordinated by FRONTEX
that had been adopted in accordance with the RPS. The Court found
that the Council Decision introduced new essential elements to
the basic act, namely provisions on border surveillance in the
Schengen Borders Code. In the Court's view, provisions dealing
with interception measures, rescue and disembarkation required
political choices to be made, and this fell within the responsibility
of the EU legislature. In addition, the provisions on interception
which conferred powers on border guards such as stopping persons
apprehended and seizing and conducting apprehended vessels to
specific locations, meant that the fundamental rights of the persons
concerned may be interfered with to such an extent that the involvement
of the EU legislature is required.
Summary of findings
5.5 The report shows that 270 comitology
committees operated in 2012. Of these, 99 committees (37% of the
total) used only the more rigorous examination procedure. Under
this procedure, the following rules apply:
a) if a qualified majority
of the committee members votes in favour of the decision (a positive
opinion), the Commission adopts the decision;
b) if a qualified majority
votes against the decision (a negative opinion), the Commission
cannot adopt it — although it can resubmit an amended version,
or refer the original decision to an Appeals Committee; and
c) where there is no qualified
majority, the Commission can choose to adopt or amend the act.
However, in certain cases it cannot do so. Those cases are:
i) where the matter concerns
taxation, financial services, protection of health or safety of
humans, animals or plants, or definitive multilateral safeguard
measures;
ii) where the EU legislation
provides that it may not be adopted; or
iii) where a simple majority
of committee members opposes the decision. In all three cases
the Commission has the same options as under a Negative Opinion.
5.6 The report also shows that
in 2012, 24 committees (9%) used only the advisory procedure.
This is a lighter-touch procedure in which the Commission only
has to take account of the committee's view. As many as 123 committees
(46%) used a mix of procedures, while 24 (9%) committees remained
under the old Regulatory Procedure with Scrutiny (RPS).
5.7 In total, 1,657 implementing
acts were adopted under the two new procedures, and 167 measures
were adopted under the old RPS. The most active committees were
those in the following areas:
· Health
and Consumers (SANCO), including the health and safety of humans,
animals or plants, which gave 596 opinions, and adopted 517 acts;
· Agriculture
(AGRI), which gave 250 opinions and adopted 231 acts;
· Research
and Innovation (RTD), which gave 237 opinions and adopted 233
acts; and
· Development
and Cooperation (DEVCO), which gave 173 opinions and adopted 153
acts.
5.8 As in 2011 the vast majority
of decisions listed in the report received positive opinions from
committees in 2012. There were no negative opinions issued in
2012; two were issued in 2011.
5.9 No opinion (no qualified majority
in favour or against) was given on 78 occasions, higher than the
70 no opinions issued in 2011. No opinions were given in the following
fields:
· 39
in Agriculture, including 38 in the "Management Committee
for the Common Organisation of Agricultural Markets";
· 13
in Taxation and the Customs Union, including 12 in the "Customs
Code Committee — tariff and statistical nomenclature";
· ten
in Development and Cooperation;
· six
in the work of the Secretariat-General;
· four
in Health and Consumers;
· three
in Environment; and
· one
in each of Climate Action, Enterprise and Industry, and Foreign
Policy Instruments.
The Government's view
5.10 In an Explanatory Memorandum
of 20 December 2013 the Minister for Europe (Mr David Lidington)
says that the Government welcomes the Commission's report, as
it provides a helpful factual and statistical overview of activity
that enables the Government to assess the effectiveness of these
committees following the introduction of the new comitology Regulation
in 2011.
5.11 The Minister notes that the
committees, on the whole, are operating well, as in 2011, but
that the quality of work differs from committee to committee.
5.12 On the positive side the process
of consultation works well and Member State concerns are taken
on board and do influence Commission decisions in the way the
comitology Regulation envisages. It is also valuable that they
allow expertise from industry and other interested parties to
be fed into the discussions.
5.13 At the same time feedback
from some of the committees has identified concerns over a lack
of priority given to consultation with Member States and failures
of the Commission to provide documents sufficiently in advance
of committee meetings which can impact on the quality of the discussion
and scrutiny exercised.
5.14 Reflecting this feedback the
Minister says:
"the Government calls for
improvements in the range and quality of work of some of these
committees. The Commission should provide discussion documents
sufficiently in advance of the meetings to enable Member States
to have a meaningful discussion on the issues. The Government
will take this forward with the Commission."
Conclusion
5.15 We thank the Minister for
his helpful summary of the Commission's 2012 report on the operation
of the comitology committees.
5.16 Before releasing the report
from scrutiny, however, we ask the Minister to identify the committees
whose operation is a cause of concern and to explain in more detail
how the Government, along with other Member States (we presume),
intends to rectify the situation.
5.17 We also ask him to say
what impact (if any) he thinks the Court of Justice's decision
in European Parliament v Council in 2012 has had on how
the Commission, and Member States, assess whether a proposed delegation
of power relates to an essential or a non-essential element of
parent legislation, and therefore whether it is lawful. Although
this case is helpfully included in the Commission's report, we
note the Minister did not comment on it.
5.18 Pending the Minister's
replies, the report remains under scrutiny.
| 
