Documents Considered by the Committee on 22 October 2014 - European Scrutiny Committee Contents

7 The working of the comitology committees in 2013

Committee's assessment Legally and politically important
Committee's decisionNot cleared from scrutiny; further information requested

Document detailsCommission Report on the working of Committees during 2013
Legal base
DepartmentForeign 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.


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.


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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Prepared 3 November 2014