Legally and politically important
Not cleared from scrutiny; further information requested
Proposed Regulation amending the 2011 Comitology Regulation governing the making of Commission implementing legislation
Article 291(3)TFEU; ordinary legislative procedure; QMV
Exiting the European Union
(38616), 7804/17, COM(17) 85
14.1Committees of expert representatives of Member States exercise oversight of the Commission’s use of powers conferred by EU parent legislation (Directives, Regulations and Decisions) to make implementing acts as a form of EU subordinate legislation. This process is known as “comitology”. The new post Lisbon system, outlined in Article 291 TFEU, was intended to improve on the existing system by providing simpler and surer ways for the Commission to make such implementing legislation. The new system of advisory and examination procedures, together with an appeal committee to resolve disagreements was introduced by the Comitology Regulation (No. 182/2011). Before 2011, such disagreements were resolved at Ministerial level in the Council.
14.2This proposal provides for “targeted and limited” amendments to the Comitology Regulation in relation to the workings of the appeal committee. The reforms aim to address the increasingly prevalent situation, often in politically sensitive areas such as GMOs, of the Commission having to decide whether or not to adopt implementing legislation in the absence of a QMV mandate either for or against the proposal in the appeal committee (a “no opinion” situation). The Commission says that experience has shown that in the vast majority of cases, the appeal committee simply repeats the “no opinion” outcome of the examination committee and has not helped in providing clarity on Member State positions. A fuller explanation of the committee and appeal committee process under examination procedure (more frequently used than the advisory procedure) appears in the “Background” section to this Report chapter.
14.3The Commission considers that this situation is undermining the democratic legitimacy of the comitology process, as highlighted in the 2016 State of the Union address and then followed through in the 2017 Work Programme. It identifies that such “no opinion” situations arise because Member State representatives are essentially shirking their political responsibilities in either choosing to abstain on sensitive decisions or not being present at appeal committee meetings. It wants Member States to assume more political accountability and ownership of politically sensitive implementing acts.
14.4The Commission has therefore suggested the following four reforms, set out in more detail at paragraphs 14.15–14.18 of this Report chapter:
14.5Overall, the Government is opposed to the reforms contained in the proposal. It objects to what it sees as the politicisation of the implementing legislative process at the expense of evidence-based decision-making. Additionally it highlights the unnecessary and burdensome nature of the proposed involvement of Member State Ministers both at appeal committee and Council level and the calculation of the QMV vote in appeals committees in respect of abstentions or the absence of Member State representatives. It also is critical of the Commission’s decision that limited and technical nature of the proposal did not warrant the provision of an impact assessment and objects to poor proportionality analysis.
14.6We thank the Minister (David Jones) for his Explanatory Memorandum which although strong in assessing policy implications for the UK as a current member of the EU, omits to consider the proposal’s Brexit implications. We ask the Minister to provide this assessment, taking into account our observations set out in the paragraph below.
14.7We consider it important that the UK remains highly engaged on this proposal in order to influence the best outcome for the UK as a future third country for the following reasons:
a)There is a common perception that EU subordinate legislation, such as Commission implementing acts, deals with less important, technical matters than those addressed by parent EU legislation (Directives, Regulations and Decisions). However, we think it possible that some significant aspects of the UK’s future relationship with the EU, whether in terms of trade or other cooperation, could be implemented through the comitology process. The most striking example of this would be a future data adequacy decision to enable flows of personal data between the UK and the EU, which would go through the “examination” comitology procedure, just like the EU-US Privacy Shield.
b)We also note the important cross-cutting nature of the proposal, potentially affecting many important EU policy sectors relevant to post Brexit UK-EU trade: not only GMOs and pesticides, but also pharmaceutical products and food safety. It is quite possible that a post-Brexit UK might want to align UK law with EU implementing legislation or need to in order to facilitate any future EU-UK Free Trade Agreement. The crucial question therefore for the Government is whether the post-Brexit interests of the UK would be better served by the current comitology processes (which it considers to be evidence-based) or the reforms (which involve more Member State input and which it thinks will have a politicising effect).
14.8We refer to the concerns which the Minister raises under the heading of “subsidiarity”. He considers it inappropriate for the Commission to attempt “to govern the decision making process of committees made up of Member State representatives and decision making at a Council level. The workings of how the Member States govern their collective procedures should be decided by the Member States”. However, we do not think that his objections are relevant to subsidiarity: they do not concern whether action should be taken at EU as opposed to national level. Rather, they address the balance of institutional power at an EU level as between Member States represented in comitology committees and/or the Council and the Commission itself. So instead we agree with his first observation that “This proposal concerns decision-making at an EU level. Therefore it is appropriate for a decision at an EU level to be made”. It is clear that reform of the comitology procedures could not be achieved by Member States at a national level. We therefore do not consider that the proposal breaches the subsidiarity principle.
14.9We do however agree with the Minister that it would have been better for the Commission to have produced an impact assessment on such an important proposal. Should the proposal be adopted, it is clear that it could result in the adoption of more implementing legislation which would some impact on Member States. We also agree that an impact assessment would have more clearly laid bare disproportionate aspects of the reforms, particularly those envisaging new involvement of the Ministers of Member States in the comitology process, either at the appeal committee level or Council.
14.10We also agree with the Government’s concerns on reforms to voting in appeals committees. We fail to see how the reform to alter the calculation for QMV voting in the appeals committees addresses concerns about the democratic legitimacy of aspects of the current comitology processes, rather than compounding them.
14.11We retain the proposal under scrutiny and await the Minister’s response on Brexit implications of the proposal and further updates in due course.
Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 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: (38616), ,COM(17) 85.
14.12Under the “examination” procedure, more frequently used than the “advisory” procedure, the Commission submits a proposed implementing act to the committee which then gives its opinion, usually by way of qualified majority vote (QMV). Three scenarios are then possible:
14.13In a number of specific cases listed in the Comitology Regulation, the Commission is legally prevented from adopting the implementing act in a “no opinion” situation. In such cases the Commission has to refer the implementing act to the appeal committee, which is also composed of Member State representatives but at a higher level. If in the appeal committee there is again a “no opinion”, the Commission has the discretion as to whether to adopt the act or not. Before the adoption of the Comitology Regulation in 2011, the Commission did not have this discretion and had no alternative but to adopt the act.
14.14In its Explanatory Memorandum, the Commission identifies the number of times in previous years that it has found itself in the position of being the decision maker, when Member States could not agree by majority vote on acts which were subject to the comitology procedure. Two per cent of opinions (or 36 in total) delivered by the committee in 2015 were “no opinions”. Out of 40 “no opinions” referred to the appeals committee between 2011 and 2015, 36 were returned as “no opinions”. The situation where an appeals committee repeats the “no opinion” outcome of the examination committee has occurred mostly in relation to proposals concerning GMO and GMO food, feed and plant protection products.
14.15The first change that the Commission is proposing is to the voting rules for the appeals committees. The change would see Member States who do not participate in the vote or who abstain classed as ‘non-participating Member States’. This would mean that to achieve a qualified majority vote (55% of the votes representing 65% of the EU population) only those who have voted for or against a proposal would count towards the vote.
14.16The second change is for further referral to the appeal committee at Ministerial level when the appeals committee upholds the decision of ‘no opinion’. The Commission believes this will allow the proposal to be considered again ‘at the appropriate political level’.
14.17The third proposal is to make Member State representatives’ votes more transparent in the appeal committee. Presently, the total votes are made public rather than how individual Member States have voted. The Commission states its aim is to give more clarity on individual Member State positions.
14.18The fourth amendment is to allow referral to the Council for an opinion. This would allow proposals with a ‘no opinion’ vote to be referred to the Council, where Member States are represented at Ministerial level, with a view to getting a non-binding opinion. The Commission states this would give the Commission a steer on the political, legal, and international implications from Member States.
14.19In his Explanatory Memorandum of 7 April, the Minister of State for Exiting the European Union outlines the Government concerns as follows.
14.20On the question of whether the proposal complies with the subsidiarity principle or not, that action should only be taken at EU level if it cannot be sufficiently achieved by Member States and can be better achieved by the EU, the Minister says:
“This proposal concerns decision making at an EU level. Therefore it is appropriate for a decision at an EU level to be made. However, the Government is of the view that it is inappropriate for the Commission to attempt to govern the decision making process of committees made up of Member State representatives and decision making at a Council level. The workings of how the Member States govern their collective procedures should be decided by the Member States.”
14.21As this is a significant proposal, we reproduce the Minister’s assessment of policy implications in full below:
“In its Explanatory Memorandum accompanying this proposal, the Commission states that the ‘sole’ objective of its proposed amendments is to improve the functioning of comitology procedures at the appeal committee level and ensure wider political accountability.
“In principle, the Government welcomes steps taken by the Commission to attempt to increase the democratic legitimacy and transparency of the working of the EU institutions. It is important to note that expert consultation is an important part of producing evidence-based policy. However, the Government has a number of concerns with the Commission’s proposals in their current form.
“Before turning to the proposals themselves, the Government has concerns surrounding the way the Commission has produced its proposals. The Government is of the view that the Commission’s proportionality assessment of the effect of its proposal lacks detail. What is more, the Commission states that ‘the proposed amendments are limited to what is strictly necessary to address the issue’. The Government would welcome further evidence from the Commission that referring difficult decisions to the Council of Ministers would achieve the Commission’s aim and would not disproportionately add bureaucracy and delay to an already complex system.
“It is important to note that the Commission states that the problematic scenario of ‘no opinions’ at the appeal stage of the comitology process occur in 2% of cases. This is a very small minority of cases. As such it is important that, should there be any changes to the comitology procedure at all, these should be in proportion to the problem they wish to resolve.
“Similarly the Government is disappointed that the Commission has not produced an impact assessment. The Commission states that an impact assessment is not needed as these proposals only represent procedural changes. The Government is unconvinced by this reasoning. If these changes are as important as the Commission claims them to be, then it naturally follows they will have an impact of some sort.
“Regarding the Commission’s proposed change for further referral to the appeal committee at ministerial level: the Government is not convinced by this proposal. Firstly, this would result in an unnecessary and unhelpful politicisation of the comitology process. The comitology process should use evidence-based decision making rather than political considerations to reach policy conclusions. Secondly, the Commission proposal states that Member States are ‘in most cases’ represented by their Permanent Representatives in appeals committees. Therefore Member States are already represented at a senior level. In the case of the UK, it is especially important to consider that the Permanent Representative and his Deputy, and UK members of all working parties speak on each agenda item strictly in line with instructions from UK Ministers and within the terms of the Parliamentary Scrutiny arrangements. Therefore, the Government does not see the added value in this proposal. Direct Ministerial representation will not result in the UK altering its position on any file.
“Likewise, the Government is not convinced by the Commission’s proposal to ‘foresee the right to refer the matter to the Council for an opinion’ for the same reasons. Decisions made on files in the comitology process currently are made in line with instructions from Ministers, delegated to officials in the expert committees. Having UK Ministers in the room to discuss files will not change how the UK approaches any dossier.
“The Commission has also proposed to ‘make individual Member State representatives’ votes at appeal committee level public’. The Government is committed to the principle of transparency and welcomes Commission proposals that increase the transparency of the EU legislative process. Therefore, the Government will carefully consider the Commission’s proposals in this area. However, at this stage the Government has some concerns that these proposals may result in the politicisation of some more sensitive policy areas undermining evidence-based decision-making.
“The fourth main change to comitology procedures the Commission brings forward in its proposals is ‘changes to the voting rules for the appeal committee’. These changes would mean that Member States who abstain or are not present would be deducted from the qualified majority vote calculations. The purpose of this proposed change is to address what the Commission sees as the problem of ‘no opinions’ being reached on sensitive dossiers at the appeals committee. It is important that decisions taken at an EU level are in the interests of a majority of EU citizens and are not made by a minority for a majority.”
14.22The Minister says that currently there are no indications as to what the timetable will be for the negotiation of this proposal.
29 As opposed to delegated acts which are governed by Article 290 TFEU.
30 “Advisory” 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 (Article 4 of the Regulation).
31 “Examination” procedure is considered to be more rigorous than “advisory” (see Article 5 of the Regulation), as the Committee can block the Commission’s proposal with a negative opinion.
32 Regulation (EU) of the European Parliament and Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.
33 In his State of the Union address to the European Parliament in September 2016, President Junker recognised: “It is not right that when EU countries cannot decide among themselves whether or not to ban the use of glyphosate in herbicides, the Commission is forced by Parliament and Council to take a decision. So we will change those rules—because that is not democracy”:https://ec.europa.eu/priorities/state-union-2016_en .
34 Commission Implementing Decision (EU) of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-U.S. Privacy. Shield
35 There are three main different cases: in certain policy areas (taxation, financial services, the protection of health or safety of humans, animals, plants or certain multilateral safeguard measures); if the basic act has a “no opinion” clause; if a simple majority of members of the committee opposes the draft act.
27 April 2017