New Comitology post-Lisbon

Briefly: The Lisbon Treaty changes the framework for delegating implementing powers to the Commission by the legislator and changes the old system and the former comitology procedure to a new legal framework of legislative and non-legislative acts. Legislative acts are adopted by the Parliament and the Council, while the Commission is more involved in implementing the non-legislative acts. These non-legislative acts can be either delegated acts or implementing acts, which differ in nature and scope of power conferred to the Commission. For delegated acts, the Parliament and the Council delegate the power to adopt measures to the Commission. The legislators control the Commissions exercise of these delegated powers and they can either revoke the delegation or object to a proposed measure. For implementing acts, the context is different. The Member States are responsible for implementing the acts, but the Commission exercises power to set uniform implementing conditions. The procedure for implementing acts resembles that of the current comitology, but it will be subject to newly defined rules. In exercising its power with regards to implementing acts, the Commission is aided by committees of experts through advisory and examination procedure. As a general rule, the advisory committees deliver opinions on drafts, but the Commission decides on the measures to be taken. However, for certain policies (e.g. common commercial policy, health & safety, and environmental protection) or implementing measures of general scope, the examination committee will deliver an opinion, and the Commission has to take action based on that opinion. For delegated acts, the Commission may also consult groups of experts in the course of the preparatory work, but the experts do not have an institutional role in the decision-making procedure. The new regulation enters into force on 1 October 2010 and the old comitology procedure is repealed from 1 December 2010.

The EU "institutional triangle" produces policies and laws that apply throughout the EU. The European Parliament shares legislative power with the Council, while the Commission is the main executive body that ensures that EU policies are properly implemented. The Council and the Parliament adopt legal frameworks, objectives and time frames, while the powers over detailed legal measures are delegated to the Commission. In implementing legislative acts, the Commission is assisted by committees consisting of representatives from the Member States, a system also known as comitology. Hundreds of comitology committees composed of Member States experts oversee the implementation of framework legislation and assist the Commission by giving an opinion or drafting implementing measures before they are adopted.

The committees are forums enabling dialogue between the Commission and national administrations before adopting implementing measures. The Commission aims to ensure that measures reflect the situation in each of the countries concerned. The Parliament and the Council have the right to monitor the implementation of legislative instruments and they can object to measures proposed by the Commission if they consider them to be beyond the Commission's powers. The Lisbon Treaty which entered into force on 1 December 2009, modifies the framework for delegating implementing powers to the Commission by the legislator and changes the old comitology system to a new legal framework of legislative and non-legislative acts. Legislative acts (framework legislation) are adopted under the ordinary or special legislative procedures and directly involve the Parliament and the Council. For non-legislative acts (implementation of framework legislation), the Treaty makes a distinction between delegated acts and implementing acts. According to the Lisbon Treaty and article 290 TFEU (Treaty on the Functioning of the European Union), the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act (delegated acts) can be delegated to the Commission. The Commission is also conferred the powers to adopt implementing acts. The new system and delegation can be seen as a tool for better law-making, the aim of which is to ensure that legislation can remain simple and be completed and updated without having to resort to repeated adoption of legislation, whilst also allowing the legislator to maintain its ultimate power and responsibility. The Treaty puts the Parliament and the Council on equal footing to decide in each basic legal act which type of power (delegated or implementing) should be conferred to the Commission. Under the previous Treaty, it was the Council that could confer implementing powers to the Commission, which exercised implementing powers via comitology. Due to the new framework, comitology as it is known now will be abolished and the implementation of basic legislative acts will be carried out through delegated and implementing acts. The delegated acts form a new category of acts. The legislator delegates to the Commission the power to adopt measures that it could have adopted itself. Thus the legislator controls the Commission's exercise of these delegated powers. The Parliament or the Council can decide to revoke the delegation and the delegated act may enter into force only if no objection has been expressed by the Parliament or the Council. In the case of implementing acts, the context is very different. The Member States are naturally responsible for implementing the legally binding acts of the European Union. However, where such basic acts require uniform implementing conditions, it is the Commission that must exercise implementing powers. Thus the Member States that are responsible for controlling the Commission's exercise of these implementing powers. New regulation to enter into force on 1 October 2010 Old comitology is repealed from 1 December 2010

Legislative Acts (Article 289 of the TFEU) Two procedures are established for the adoption of legal acts. The ordinary legislative procedure (former co-decision) becomes the standard procedure under which the Parliament and the Council jointly adopt a Commission proposal. A special legislative procedure applies to specific cases (e.g. approval of the EU budget) provided for by the Treaties. Legal acts adopted under these legislative procedures are referred to as legislative acts. Non-Legislative Acts (Articles 290 & 291 of the TFEU) The Lisbon Treaty repeals the legal basis for the current comitology system, which will be replaced by two new articles providing for the adoption of non-legislative acts. These are delegated acts and implementing acts. The two types of acts differ in nature and scope of powers conferred to the Commission. For delegated acts, the Commission is authorised to supplement or amend the work of the legislator. For implementing acts, the Commission's power is purely executive. The Member States are responsible for implementing the legally binding EU acts, but the Commission exercises its executive power to ensure uniform implementing conditions for the acts. The 2006 comitology reform established two procedures for the adoption of implementing measures; the regulatory procedure with limited Parliament involvement, and the regulatory procedure with scrutiny, giving the Parliament the same veto right as the Council. Prior to the Lisbon Treaty, the Parliaments veto right was limited to proposals for the implementation of acts that had been adopted under co-decision. Under the Lisbon Treaty, this limitation disappears because the new articles replacing the Comitology system do not distinguish between the different (ordinary/special) legislative procedures. New legal framework has been drafted to set out detailed rules to replace the current comitology system. One of the central differences between the two categories of delegated acts and implementing acts under the Treaty of Lisbon will be the mode of supervision of the Commission with respect to the delegated matter. In the case of delegated acts, the Parliament and the Council can reserve the right to either revoke the delegation or to object to a proposed measure. Implementing acts would, on the other hand, be subject to newly defined comitology rules. Implementing Acts (Article 291 of the TFEU) Implementing Acts are determined by their rationale the need for uniform conditions for implementation. Primary responsibility for implementing EU laws lies with the Member States but implementing powers are conferred on the Commission when there is a need for uniform implementing conditions. Commission exercises power under the control of Member States according to rules and general principles laid down by the Parliament and the Council. The committee structure set out in the Comitology Decision is maintained but, in the interest of simplification, continued with only two procedures: the advisory procedure (mirrors the existing advisory procedure) and a new examination procedure (replaces the existing management and regulatory procedures).

The advisory procedure is the general rule and will be applied to all policy domains and for all types of binding implementing measures. The examination procedure will be used for certain type of legislative measure and will apply for the adoption of: implementing measures of general scope designed to implement basic acts and specific measures with a potentially important impact common commercial policy and other implementing measures relating to common agricultural or fisheries policies policies on environment, security and safety and health of humans, animals or plants In carrying out its tasks, the Commission is assisted by a committee composed of the representatives of the Member States and chaired by a representative of the Commission. The chairperson submits a draft of measures to be taken to the committee, and the committee delivers an opinion after examining the draft and possible amendments. The opinion can be obtained in committee meetings or by written procedure. For the advisory procedure, the committee opinion can be delivered by majority voting, and the Commission decides on the measures to be taken, taking account of the discussions within the committee and the opinion delivered. In the examination procedure, the committee delivers its opinion on a draft measure by qualified majority (currently 255 votes out of 345) and the Commission takes action based on the opinion delivered. A special procedure is foreseen for the adoption of emergency measures, but in general, the examination procedures functions as follows: Negative opinion from the committee The Commission cannot adopt the draft measure. It can re-submit the draft for second deliberation, or table an amended draft. In exceptional circumstances (e.g. non-adoption would create a significant disruption of the markets or a risk for the security or safety), the draft can be adopted, but in such case the committee would have the last word within a timeperiod which shall not exceed one month. The Commission can decide whether to adopt the measure, taking into account the positions expressed within the committee. If draft is not adopted, an amended version can be submitted to the committee. The Commission adopts the measure (unless exceptional circumstances or new elements would justify them not being adopted).

No opinion from the committee Positive opinion from the committee

A significant change to the old comitology is that there is no longer an obligation for the Commission to adopt a draft measure where no opinion is reached by the committee. Furthermore, the Commission will be completely in charge as proposals would no longer be referred to the Council for final decision. The Parliament and the Council do not control of the exercise of the implementing powers by the Commission but they will be kept informed of proceedings and have full access to all committee documents through the comitology register (adapted to the new Treaty). The register contains meeting agendas, summary of records (including lists of the authorities and organisations to which the representatives designated by the Member States belong), drafts of proposals, voting result, final measures and information concerning their adoption, and statistical data on the workings of the committees. Public access to information is limited to references of documents only.

The new regulation laying down the rules and principles governing the mechanisms applied in the adoption of implementing acts by the Commission enters into force on 1 October 2010 and repeals the prior Comitology Decision. The new regulation will not affect pending procedures in which a committee has already delivered an opinion. Delegated Acts (Article 290 of the TFEU) Delegated Acts are defined in terms of scope and consequences (a general measure that supplements or amends non-essential elements). Article 290 of TFEU allows the legislator to delegate to the Commission the power to adopt nonlegislative acts of general application to supplement or amend certain non-essential elements of a legislative act, referred to as delegated acts. Delegated acts are a novel concept, although the terms used to define it are similar to those used to define the regulatory procedure with scrutiny (RPS) in the former Comitology Decision (i.e. quasi-legislative acts of a general scope that supplement or amend certain non-essential elements of legislative acts). The Parliament and the Council will for each act jointly set the conditions (objectives, content, scope, duration) for the delegation of power to the Commission. Both the Commission, which is responsible for preparing and adopting delegated acts, and the Parliament and Council, which are responsible for scrutinising them, should promote the introduction of a system that is as homogeneous, coordinated, coherent and predictable as possible, in line with the principles of Better Regulation and smooth running of the inter-institutional process. The Commission carries out preparatory work to ensure that from a technical and legal point of view the acts comply with the objectives laid out for them. For such purpose, the Commission consults experts from the national authorities of the Member States, as they will be responsible for implementing the delegated acts once they have been adopted. The Commission can form new expert groups for this purpose or use the existing committees to establish partnership at the technical level with experts from the national authorities. However, these experts have a consultative rather than an institutional role in the decision-making procedure. At the end of the consultations, the Commission informs the experts of the conclusions drawn from the discussions, its preliminary reactions and how it intends to proceed. While the Commission consults the experts groups for the preparatory work, it no longer needs to obtain an opinion of a committee before submitting a proposal to the Parliament and the Council. A proposal for a delegated act may be adopted if no objection is raised by one of the legislators. The Parliament needs a majority of its component members; the Council qualified majority. According to the new framework, the right of veto now intervenes after the adoption of the delegated act by the Commission with the objective to block its entry into force, while previously under the RSP Comitology procedure the veto blocked the adoption of a proposal by the Commission. Also new is the right of revocation. Both the Parliament and the Council have the right to revoke the delegation and recall the mandate given to the Commission in the legislative act.

Criticism of comitology and the new system The EU legislation has been criticised of being mere frameworks and delegating the technical measures to the Commission, which then delegates them to committees or National Expert Groups. Critics have claimed that the Lisbon Treaty transfers yet more power from the political sphere to the bureaucratic level. Only a small part of the European decision-making is visible, namely the codecision of the Parliament and the Council, responsible for adopting roughly 50 directives per year. The hidden part, committees and expert groups overseeing delegated acts, accounts for adoption of majority of laws and regulations and produces 2,500 technical measures per year. The Lisbon Treaty distinguishes between delegated acts (which more or less correspond to the quasilegislative acts) and the implementing acts (which more or less correspond to the pre-Lisbon comitology). The Treaty gives the Commission the power to propose and adopt delegated acts in consultation with the network of National Experts. Only once adopted by the Commission, the delegated acts can be vetoed or revoked by the Council or the Parliament. The Commission has the major power over delegated and implementing acts as the former committees in charge of voting on the proposed quasi-legislative acts do not exist anymore. With regards to implementing acts, the committee structure has changed to consist of just advisory and examination procedures (instead of advisory, management and regulatory committees and regulatory procedure with scrutiny). The comitology pre- and post-Lisbon has been criticized for lacking transparency. Co-decision processes are clear and transparent; information is available about drafts proposed by the Commission and the Parliament's discussions and amendments, as well as the discussions at the Council. On the other hand, comitology is seen as problematic, as it is highly complex yet influences the proposals and adoption of most EU acts, and while committees are identified, the committee members are not made public. More information: European Commission http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0083:FIN:EN:PDF http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0673:FIN:EN:PDF http://ec.europa.eu/transparency/regcomitology/docs/COMM_PDF_COM_2010_0354_F_EN_RAPPO RT_ANNEX.pdf European Parliament http://www.europarl.europa.eu/news/expert/background_page/001-71188-081-03-13-90120100323BKG71187-22-03-2010-2010-false/default_en.htm http://www.europarl.europa.eu/news/public/story_page/008-72106-096-04-15-90120100406STO72095-2010-06-04-2010/default_en.htm