COMITOLOGY COMMITTEES
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.
TYPES OF AND CHOICE OF
COMITOLOGY COMMITTEES
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.
THE TREATY OF AMSTERDAM
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.
THE COMMISSION'S PROPOSAL
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].
COMITOLOGY IS IMPORTANT
AND CONTROVERSIAL
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.
THE COMMITTEE'S CONCLUSIONS
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.
THE STRUCTURE
OF THE REPORT
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.
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