7 The working of the comitology committees
in 2013
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested
|
| Document details | Commission Report on the working of Committees during 2013
|
| Legal base | —
|
| Department | Foreign and Commonwealth Office
|
| Document number | (36353), 13389/14 + ADD 1, COM(14) 572
|
Summary and Committee's conclusions
7.1 Committees, consisting of representatives of
Member States, exercise oversight of the use of implementing powers
given to the Commission in EU legislative acts pursuant to Article
291 TFEU. This process is known as "comitology".
7.2 The current document is the third annual report
on committee activities which the Commission is required to present
in accordance with Article 10(2) of the Comitology Regulation
(No. 182/2011).[22]
7.3 All comitology procedures provided for in the
"previous" Comitology Decision,[23]
with the exception of the regulatory procedure with scrutiny
(RPS), were automatically updated to the new comitology procedures
provided for in the Comitology Regulation. In addition, in order
to adapt all RPS provisions in existing basic acts to the criteria
laid down in Articles 290 and 291 TFEU, the Commission adopted
in 2013 three proposals to align a total of 200 basic acts. These
proposals are now undergoing the ordinary legislative procedure
and we have retained them under scrutiny.[24]
In the meantime, the previous Comitology Decision applies transitionally,
to the RPS procedure.
7.4 .The report gives an overview of developments
in the comitology system during 2013 when the committees were
operating under the procedures set out in the Comitology Regulation,
namely advisory (Article 4) and examination (Article 5) as well
as under the RPS (Article 5(a)). These procedures are explained
at paragraph 7.9 of this chapter.
7.5 The Commission sets out the number of committees,
meetings, opinions, implementing acts and the use of RPS. A working
document accompanies the report, providing detailed information
about the work of individual committees in different policy areas.
The report also examines the operation of the Appeal Committee
and highlights that the operation of its Rules of Procedure (RoP)
were reviewed in April 2014. The Commission notes that the Comitology
Regulation will itself be subject to a review in 2016.
7.6 The detailed findings of the report are set out
at paragraphs 7.11-7.12 of this chapter. In brief, the Commission
confirms that although more committees were in operation in 2013
than in 2012 (31 more, an increase of 11%), the percentage of
committees using the more rigorous examination procedure has slightly
increased (up 1% from 2012) and there is a negligible increase
in the number of committees using the lighter touch advisory procedure.
It also explains that the majority of decisions received positive
opinions (as was the case for 2012) and that the review of the
RoP of the Appeal Committee concluded that they were fit for purpose
and did not require amendment.
7.7 We thank the Minister for his Explanatory
Memorandum. We note that there does not appear to have been any
change of material concern in the operation of the comitology
committees in 2013 compared with 2012 (though we question the
need for an overall increase in the number of committees).
7.8 As part of that relatively static picture,
we are disappointed to see that there has been no significant
increase in the use of the more rigorous examination procedure
which gives Member States greater control over the act adopted.
On that question of control, we note that the Minister says that
the Government will "emphasise the importance of Member State
views being taken into account through all Council discussions
on the use of Delegated and Implementing Acts". We ask the
Minister to tell us:
i) whether this extends to pressing for the
wider use of examination procedure, where there is scope to do
so under the Comitology Regulation (and the parameters set out
in Article 2); and
ii) what impact, if any, the judgment in Commission
v Parliament and Council[25]
could have in assisting Member States argue a preference, in any
given case, for implementing powers to be conferred on the Commission
under Article 291(2) TFEU as opposed to delegated powers under
Article 290(1) TFEU?
7.9 Pending the Minister's response, we will continue
to hold the document under scrutiny.
Full details of the documents:
Commission Report on the working of Committees during 2013:
(36353), 13389/14 + ADD 1, COM(14) 572.
Background and previous scrutiny
7.10 The current document is a new annual report
on the working of Committees during 2013, but we have scrutinised
previous annual reports. We produced two Reports in respect of
the Annual Report for 2012: in our Thirty-fourth and Forty-fourth
Reports of 2013-14. In our Thirty-fourth Report we asked the Government
to identify the committees whose operation was a cause of concern
and to explain in more detail how the Government, along, presumably,
with other Member States intended to rectify the situation. We
also asked the Government to say what impact (if any) the Court
of Justice's earlier decision in European Parliament v Council[26]
in 2012 had on how the Commission, and Member States,
assessed whether a proposed delegation of power related to an
essential or a non-essential element of parent legislation, and
therefore whether it was lawful. The document was cleared from
scrutiny following the Government's response to these questions.
The current document
Summary of procedures
7.11 The main purposes of the annual report are set
out in paragraphs 7.4-7.5 of this chapter. To facilitate understanding
of its findings, the Commission provides an explanation of the
advisory, examination and RPS procedures in the addendum to the
report. The impact of a committee's opinion on the Commission
and the resulting implementing act varies according to the type
of procedure used.
i) The advisory procedure is a non-legally binding
procedure where the Commission "must take utmost account"
of the committee's view before deciding on the draft implementing
act;
ii) The examination procedure is more rigorous,
based on qualified majority voting. If a qualified majority of
the committee members vote in favour of the decision (Positive
Opinion), then the Commission adopts the decision. In the event
of a Negative Opinion (qualified majority against) then the Commission
cannot adopt it — although it can resubmit an amended version,
or refer the original decision to an Appeal Committee. In the
absence of a qualified majority in the Appeal Committee, the Commission
can choose to adopt or amend the act, though cannot do so in certain
cases, where the Commission has the same options as under a Negative
Opinion; and
iii) Under RPS, the Commission is obliged to
adopt the measure following a positive opinion of the relevant
committee. In the case of negative or no opinion, the Commission
submits the proposal to the Council for decision. The Council
and the European Parliament can oppose the adoption of a draft
measure even if the committee has given a positive opinion.
SUMMARY OF FINDINGS
7.12 The Commission confirms that in 2013:
i) there were 302 committees in operation (31
more than in 2012);
ii) the lighter-touch advisory procedure was
used in 25 committees (one more than in 2012);
iii) the more rigorous examination procedure
was used in 116 committees (up from 99 committees in 2012 and
representing approximately 38% of the total, compared with 37%
in 2012);
iv) 136 committees used a mix of procedures (13
more than 2012);
v) 25 committees also used the old RPS (one more
than 2012) and the right of veto was used in one case (DG Environment);
vi) 1716 implementing acts were adopted under
the two new procedures (59 more than in 2012), and a further 171
measures adopted under the RPS;
vii) the most active committees were Health and
Consumers (SANCO), Research and Innovation (RTD) and Agriculture
(AGRI); and
viii) as in previous years, the majority of
decisions listed in the addendum received positive opinions from
committees.[27] There
were no negative opinions issued, as in 2012. 'No opinion' (no
qualified majority in favour or against) was given on 40 occasions;
this is lower than the 78 cases of no opinions issued in 2012.
'No opinions' occurred in Statistics (13); Secretariat General
(9); Health and consumers (7); Development and Cooperation (5);
Environment (2); Mobility and transport (2);Research (1); Enlargement
(1).
7.13 The Commission also explained that:
i) since the entry into force of the Comitology
Regulation in 2011 until the end of 2013, the Commission referred
23 implementing acts, following 'no opinion', to the Appeal Committee.
Of these all but two (customs and environment) were concerned
with health and consumer protection, namely genetically modified
food and feed and plant protection products. The Appeal Committee
delivered 'no opinion' in most of submitted cases which led to
measures being adopted in line with Article 6(3) of the Comitology
Regulation; and
ii) the Commission's review of the RoP of the
Appeal Committee concluded that the current rules remain adequate
for the working of that committee and therefore did not require
amendment. The planned review of the Comitology Regulation in
2016 will afford another opportunity for their evaluation.
CASE LAW
7.14 The report summarises two main examples of recent
case law on comitology, namely:
i) A 2014 judgment in the Commission v Parliament
and Council (the Biocides case),[28]
in which the Court of Justice found that the legislator has a
margin of discretion when deciding whether to confer on the Commission
a delegated power under Article 290(1) TFEU or an implementing
power under Article 291(2) TFEU; and
ii) two cases in 2013, concerning certain aspects
of RPS under Decision 1999/468/EC, where the regulatory committee
had voted prior to the entry into force of the Comitology Regulation
(T-164-10, Pioneer Hi-Bred International, Inc. v European Commission
and T-240/10 Hungary v European Commission).
The Government's view
7.15 The Minister for Europe (Mr David Lidington)
in his Explanatory Memorandum of 16 October 2014 welcomes the
report as it provides "an up to date statistical and factual
overview of the committees' activities which enables the Government
to critically assess the effectiveness of these committees"
following the adoption of the Comitology Regulation in 2011.
7.16 Referring to the various reviews undertaken
by the Commission, the Minister adds that the Government considers
them "important for building on and improving the existing
practice of the work of committees". He says that the Government
"will closely scrutinise the outcome of these reviews and
emphasise the importance of Member State views being taken into
account through all Council discussions on the use of Delegated
and Implementing Acts".
Previous Committee Reports
None, but see (35582), 16659/13: Forty-fourth Report,
HC 83-xxxix, (2013-14), chapter 14 (26 March 2014) and Thirty-fourth
Report, HC 83-xxxi, (2013-14), chapter 5, (5 February 2014).
22 Regulation No. 182/2011 laying down the rules and
general principles concerning mechanisms for control by Member
States of the Commission's exercise of implementing powers. Back
23
Council Decision 1999/468/EC of 28 June 1999, OJ No. L 184, 17.07.99,
p.23. Back
24
(35507), 15882/13: Draft Regulation adapting to Article 290 and
291 of the TFEU a number of legal acts providing for the use of
the regulatory procedure with scrutiny; (35189) 12730/13: 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; (35179), 12539/13:
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. Back
25
Case C-427/12. Back
26
Case C-355/10. Back
27
The Commission explains that the total number of positive opinions
delivered by committees may differ from the number of implementing
acts/measures adopted by the Commission in a given sector, if
opinions are delivered one year but the instruments are not adopted
until the following year. Back
28
See footnote 4. Back
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