Select Committee on European Communities Third Report



By the Select Committee appointed to consider Community proposals, whether in draft or otherwise, to obtain all necessary information about them, and to make reports on those which, in the opinion of the Committee, raise important questions of policy or principle, and on other questions to which the Committee considers that the special attention of the House should be drawn.


(COM(98) 297)
Proposal for a Council Decision laying down the procedures for the exercise of implementing powers conferred on the Commission


1.  Delegation of detailed rule-making and individual decision-taking is a common feature of the relationship between the legislature and the executive in Western democracies. That delegation is usually subject to some form of supervision or control and of accountability[1]. The treaties establishing the European Community do not lay down a rigid division of powers and responsibilities between the Community institutions. In particular, they do not provide that all law-making is vested in the Council. In practice the Commission is frequently given implementing powers. The exercise of those powers is overseen by committees. These are composed of national representatives (usually civil servants) who are able to exert influence on behalf of the Council of Ministers. The Council itself is rarely involved. This happens only when there is disagreement between a committee and the Commission. The European Parliament has no formal role in the process, though it is kept informed and can give its views.


2.  "Comitology", as a word in the English language, is said to have been first used by C. Northcote Parkinson. This was in his phrase "the science of comitology", by which he meant the study of committees and how they operate.[2] But in the context of the European Communities "comitology" has a different meaning. It has been suggested that its derivation may owe more to the word "comity" than "committee"[3]. "Comitology" is established Community shorthand for the system of procedures involving committees, made up of representatives from Member States and chaired by the Commission, whereby the Member States can exercise some control over implementing powers delegated to the Commission by the Council. The fact that these committees exist is fairly well-known. But who sits on them, when they meet, how they work and what they decide is something of a mystery, except to insiders, assiduous Brussels watchers and a few academics and students. Occasionally the existence and activities of a committee will make the headlines. For example, the saga of the ban on British beef in the 1990s drew public attention to the powers of the Standing Veterinary Committee. But the vast majority of the committees operate outside the public gaze.


3.  In carrying out their business, Community institutions, like their national counterparts, make great use of committees. When talking about Comitology and comitology committees it is necessary at the outset to identify exactly what committees are involved and what functions they perform. As the Commission explained[4] there are, in broad terms, three types of committee. Firstly, there are committees set up by or under the EC Treaty to perform particular functions. Examples are the Article 113 Committee (which implements the common commercial policy) and the Employment Committee. Secondly, there are committees set up by the Commission to assist it in its policy-making. These are composed of representatives of Member States and often by experts in the particular field. Thirdly, there are comitology committees, created by an act of the Council whose purpose is to assist the Commission in the exercise of its implementing powers. This report is concerned with this third type, though it must be acknowledged that some of the concerns raised by our witnesses (e.g. transparency) have implications for all committees.

4.  The comitology process is not a new one. Committees have long performed this supervisory function in a wide variety of subject matter under the EC Treaty. Among the earliest examples, going back to the 1960s, are the management committees set up under the Common Agricultural Policy (CAP) to superintend the fixing of intervention prices by the Commission. It appears that there are now about 250 comitology committees. Remarkably, no list of them is publicly available[5] nor is there an authoritative account of what each does. As part of its written evidence we asked the Government to produce a detailed table setting out, by Department, the names of comitology committees within the scope of the proposal[6], their legal base and type, together with a brief summary of their activities in 1997. The table is reproduced in Appendix 4 to this Report. As we shall explain below, this should go some way in helping to lift the veil which seems to shroud this subject.


5.  The activities of comitology committees cover a wide variety of subject matter. They deal with such diverse matters as technical standards for tachographs, science and technology research programmes, the Community's banana regime, data protection, administrative co-operation in relation to indirect taxation, export of cultural goods, humanitarian aid, mutual recognition of qualifications, budget allocation of the Socrates and Leonardo (education) programmes, and plant propagation. A large number of committees give effect to the Community Customs Code and to the Community's trade and commercial policies. In the agricultural sector, there are management committees for the common organisation of particular markets including pigmeat, poultrymeat and eggs, milk, fresh fruit and vegetables, wine, sugar, oils and fats, beef and veal, hops, flax and hemp, sheep and goats. Many decisions impact directly on the citizen and consumer, especially in relation to the safety of foodstuffs and other goods, the labelling of goods and environmental protection. Not all committees meet regularly. Their level of activity is driven by demand. Some committees meet frequently, others perhaps only once or twice a year. A few have never been convened.

6.  Historically the procedures employed by comitology committees were many and varied. The Single European Act and subsequent action by the Council in 1987 brought some order into the process. The Council decision of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission (the 1987 Decision)[7] sought to simplify matters by limiting the types of procedure to be used. Even so, the position as regards the numbers and types of committees remains somewhat complicated.

7.  Under the 1987 Decision the Commission has to consult a committee comprising representatives of each Member State, with a Commission representative as chairman. Where a committee is required to take a formal decision, it does so by qualified majority vote of the national representatives.[8] Sometimes, the Commission can exercise its implementing power whatever the view of the committee (the "advisory" committee procedure). In other cases the Commission can act only if the committee agrees with the Commission's proposal (the "regulatory" committee), or at least does not disagree with it (the "management" committee). Otherwise, the matter must be referred back to the Council. There is a separate procedure for use where the Commission has been given the power to decide on "safeguard" measures, which are used mainly in international trade matters.

8.  Within the framework of the 1987 Decision described above, the choice of type of committee (a matter not dealt with by the Decision) is decided on a case-by-case basis. This is essentially a matter of negotiation between the institutions, though patterns of behaviour have emerged. With the development of the co-decision procedure the European Parliament has gained legal standing in the choice of committee type. But otherwise in relation to comitology the Parliament has to date played only a limited role. This has been based not on procedures set out in the Treaty or the 1987 Decision, but on an inter-institutional agreement (the modus vivendi) and on other arrangements which have been agreed between the Parliament and the Commission.


9.  Relations between the institutions, particularly between the European Parliament and the Council and Commission, have not always been comfortable in the matter of comitology. From time to time the Parliament has used its legal, political and budgetary powers in an attempt to gain equality of influence with the Member States. In 1994, a modus vivendi was agreed between the institutions which, together with other arrangements, gives the Parliament prior notice of and information concerning proposed measures and the opportunity to express its views. It was agreed at that time that certain controversial questions affecting comitology, including the Parliament's position, would be referred to the 1996 Intergovernmental Conference. The Member States chose not to accept a proposal by the Commission for reform of the provisions of the EC Treaty relating to implementing measures (in particular, Article 145). Instead, they annexed Declaration No. 31 to the Treaty of Amsterdam calling on the Commission to submit by the end of 1998 a proposal to amend the 1987 Decision[9]. In June 1998 the Commission presented its Proposal for a Council Decision laying down the procedures for the exercise of implementing powers conferred on the Commission. That proposal forms the basis of this Report on comitology procedures.


10.  The Commission's proposal seeks to simplify and improve the present regime in five main ways:

—  by setting criteria to guide the choice of implementing procedure;

—  by reducing the number of types of committee through the removal of the variants (the three basic types are to be retained, but the management and regulatory procedures would be reduced to one variant, as would the safeguard procedure);

—  by ensuring that proposals having a legislative character go to the legislative authority (under the regulatory procedure there would, in the event of a negative opinion in the committee, be no automatic reference back to the Council. The Commission would be able instead to present a new proposal made under normal legislative procedure, including co-decision with the European Parliament);

—  by enhancing the monitoring of the exercise of implementing powers (the European Parliament is to be kept informed of committee proceedings and of the transmission of proposals by the Commission to the Council);

—  by aligning the procedures in existing committees (whether established before or after the 1987 Decision) with those set out in the proposal.

11.  The Decision would apply to all legislative acts under the EC Treaty providing for the adoption of implementing measures by the Commission. This would include any new measure agreed after the Treaty of Amsterdam enters into force, including those under the new Title IV (Visas, Asylum, Immigration and other policies related to the free movement of persons) which would previously have been adopted under the Treaty of European Union (Third Pillar)[10].


12.  Comitology is important. It is not disputed that a system for delegating decision-making powers is necessary if the Community is to operate effectively and efficiently. Delegation allows the Community legislature to concentrate on important policy issues rather than become embroiled in technical detail. Member States nevertheless have an interest in overseeing delegated rule-making as they will be responsible for applying the rules within their own jurisdictions. The large number of comitology committees reflects the scope and diversity of the Community's activities. Once the Amsterdam Treaty enters into force, the comitology system will be extended to subject areas previously dealt with in the inter-governmental Third Pillar, such as asylum, immigration and free movement of persons. The impact of delegated rule-making will be more keenly felt by individuals.

13.  Comitology is contentious. The European Parliament has no rights under the present comitology arrangements. It aspires to parity with the Council when it acts as co-legislator (i.e. where the approval both of the Council and the Parliament is required for the adoption of primary legislation under the co-decision procedure). It wants also to be able to "blow the whistle" on, that is to block, implementing measures. The Parliament argues for a clearer distinction between implementation and legislation. Frequent recourse to comitology procedures may, it fears, erode its legislative prerogatives. The Commission's proposal does not meet the Parliament's demands for equality with the Council, is short on detail and imposes few obligations on the Commission or Council. But there is concern that a more extensive role for the Parliament might produce unwarranted delays and undermine the speed and effectiveness of delegated rule-making.

14.  Comitology is complex. The current procedures are difficult to grasp and, though familiar to insiders, baffle and bewilder outsiders. There are no objective criteria to indicate which committee procedure - advisory, management, regulatory or safeguard - is appropriate. It is generally agreed that such criteria could simplify and clarify the system of comitology. But the criteria suggested in the proposal are unclear and may be difficult to apply. In a further attempt at simplification, the Commission has proposed removing the "variants". This should, in principle, make comitology less complex. However, the practical implications of reducing the number of committee procedures from seven to four are still being explored. The European Parliament has suggested a more radical simplification, the abolition of the regulatory committee procedure.

15.  Comitology is opaque. There is no definitive list of comitology committees, their functions, activities and membership. Nor are the committees subject to systematic parliamentary scrutiny at either a national or Community level. There is confusion as to rights of access to comitology documents. It is difficult for interested outsiders to discover what matters are being considered by comitology committees. This, in turn, impairs the opportunity for informed input and may diminish the quality of the decisions made. Above all, lack of openness conflicts with the principles of democratic legitimacy and accountability. There is general agreement that more needs to be done to enhance transparency. Differences remain on how this concept should be translated into practical measures.


16.  In the Committee's view, the new comitology Decision should have the following three main objectives:

·  to enhance the involvement of the European Parliament;

·  to simplify comitology procedures;

·  to inject greater transparency.

These objectives should be consistent with the need to safeguard three main interests:

·  the interests of those likely to be directly affected by implementing measures (such as consumers and industry and, increasingly, individuals whose human rights may need to be safeguarded);

·  major national interests of the Member States;

·  the general interest in securing democratic legitimacy and accountability.

17.  In pursuing these objectives and interests, the new Decision should also respect the institutional balance as set out in the Treaties and contribute to better and more efficient law-making at Community level.

The European Parliament's role

18.  Whilst accepting that primary oversight of implementing legislation should be by the Member States who will be responsible for applying it, the Committee considers that the European Parliament's present inability effectively to scrutinise delegated legislation undermines the Community's democratic structure. There should be formal recognition of the Parliament's role in comitology. It should have the right to receive every proposal to be submitted to a comitology committee in good time to offer an informed opinion to which the Commission would be bound to have regard.

19.  The Committee does not agree with the European Parliament that the regulatory committee procedure should be abolished. Rather, there should be a legal duty to consult the Parliament on any matters referred back to the Council following a negative or no opinion from the regulatory committee. No action should be taken on the proposed implementing measures for a two month period, except in cases of urgency. This should enable the Parliament to deliver an opinion which both the Commission and Council would be bound to take into account before adopting the proposed measures.

Simplification of procedures

20.  Criteria for determining the choice of type of committee would help to simplify and clarify comitology procedures. The Committee is, however, of the view that Article 2 of the draft Decision is unclear and that it may be too prescriptive. We doubt whether the proposed criteria can adequately be applied to the wide variety of subject matter dealt with by comitology committees. We recommend, instead, seeking political agreement on a set of guidelines to assist in the choice of type of committee.

21.  The Committee sees the attraction of streamlining comitology procedures through removal of the variants. However, variants offer a degree of flexibility in the choice of type of committee which it might be desirable to retain. We are not yet satisfied that the replacement procedures will adequately safeguard the interests identified above. In particular, we oppose the new version of the safeguard procedure as it might shift the balance towards trade protectionism.

Greater transparency

22.  The case for greater transparency is overwhelming. A full and authoritative list of comitology committees, their functions and activities should be readily available to the public. In addition, it should be possible to obtain precise details of the remit of each committee, membership and agendas. Rules of procedure should be published. All comitology proposals and working documents should be accessible on the same terms as other Commission or Council documents. Opinions of the committees should be made public. Full use should be made of the Internet to ensure rapid publication of information and facilitate consultation of interested parties.

23.  The Committee welcomes the Government's suggestion (in its recent White Paper[11]) that scrutiny committees in this Parliament might examine "particularly significant measures" to be decided by comitology procedures, or look more generally at the way in which the Commission has exercised its implementing powers over time. This Committee should see all comitology documents which are likely to require Council decision or are of such political or practical significance that they might cause Ministers to be concerned if they were to learn of them first in the newspapers. In addition, the Committee should, from time to time, examine how effectively comitology is working.


24.  The structure of the Report is as follows. Part 2 (Background) describes the development of comitology, the legal basis, the types of committee and their procedures, and the position of the European Parliament. In Part 3 we examine the Commission's proposal in detail, giving the explanations and views of witnesses. Part 4 contains the Opinion of the Committee. The texts of the 1987 Decision and of the proposal are reproduced in Appendices 3 and 4 respectively. The table, prepared by the Government and setting out, by Department, details of current comitology committees, is reproduced in Appendix 5.

25.  The enquiry was conducted by Sub-Committee E (Law and Institutions). Lord Hope of Craighead acted as chairman. The membership of the Sub-Committee is listed in Appendix 1. The witnesses are listed in Appendix 2. The evidence, both written and oral, is printed with the Report. We would like to thank all those who gave evidence.

1   In the United Kingdom this is exercised by Parliament (through, for example, the Select Committee on Delegated Powers and Deregulation and the Joint Committee on Statutory Instruments). Back

2   Parkinson's Law, 1958, Chapter on "Directors and Councils", p.31, first paragraph. See also footnote 21. Back

3   See the explanation offered by Baroness Park of Monmouth in HL Deb 1 November 1997 col 118: "It appears to be a Brussels-created word deriving from the word "comity" in the phrase "comity of nations"". Back

4   Q 2. Back

5   Information is produced for the purposes of the Budget, but this appears to include committees which are not comitology committees. Back

6   The proposal expressly provides that committees set up by the Council otherwise than in accordance with the third indent of Article 145 of the EC Treaty are not affected. The same applies to the specific committee procedures created for the implementation of the common commercial policy and the competition rules laid down by the Treaty. Back

7   Decision 87/373/EEC.[1987] O.J.L197/33. Back

8   Under Article 148(2) of the EC Treaty, the number of votes required for a qualified majority is 62 (out of total of 87). The votes of the Member States are weighted as follows: France, Germany, Italy and the United Kingdom 10 votes each; Spain 8 votes; Belgium, Greece, the Netherlands and Portugal 5 votes each; Austria and Sweden 4 votes each; Denmark, Ireland and Finland 3 votes each; Luxembourg 2 votes. Under the Ioannina Compromise (Council decision of 27 March 1994) where the minority obtains 23-25 votes, the Council will do all in its power to reach a solution which can be adopted by 65 votes. Back

9   Decision 87/373/EEC. [1987] O.J. L197/33. Back

10   The structure of the European Union, as provided by the Treaty of European Union (the Maastricht Treaty), is commonly described as comprising three Pillars: First Pillar (the European Communities); Second Pillar (Common Foreign and Security Policy); and Third Pillar (Justice and Home Affairs). Community procedures only apply in the First Pillar. The Second and Third Pillars are inter-governmental in nature. Back

11   The Scrutiny of European Business, November 1998, Cm 4095. Back

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