HISTORY OF COMITOLOGY

26.  Though in the context of the European Communities the term "comitology" seems rarely to have been used prior to the 1987 Decision, the practice of involving Member States in the implementation of measures (regulations, directives) adopted by the Council by way of a committee of national representatives is well established.

27.  Most commentators identify the beginnings of comitology in the management committees formed in the 1960s to give effect to the Common Agricultural Policy.[12] But the practice quickly spread into other fields of activity under the EC Treaty and the number of committees, with different structures and procedures, proliferated. The Single European Act clarified the legal position on the question of delegation of implementing powers. It amended Article 145 of the EC Treaty by adding a general requirement for the Council to confer implementation powers on the Commission.

28.  A declaration[13] annexed to the Single Act called on the Community institutions to adopt, before the Act entered into force, "the principles and rules on the basis of which the Commission's powers of implementation will be defined in each case". This led to the 1987 Decision, the major effect of which was to reduce, as for the future, the number of types of committee to three (though two of them each involve two variants) plus a procedure for the adoption of safeguard measures (also involving two variants)

COMITOLOGY - THE TREATY BASE

29.  Article 4 of the EC Treaty provides that "Each [Community] institution shall act within the limits of the powers conferred upon it by this Treaty". Under Article 155 the Commission is required to "exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter"[14]. Article 145 requires the Council to ensure that the objectives of the Treaty are attained. As mentioned above, it was amended by the Single European Act so as expressly to impose an obligation on the Council to confer on the Commission powers for the implementation of Council acts. Article 145, as amended, requires the Council to:

"confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. The Council may impose certain requirements in respect of the exercise of these powers. The Council may also reserve the right, in specific cases, to exercise directly implementing powers itself. The procedures referred to above must be consonant with principles and rules to be laid down in advance by the Council, acting unanimously on a proposal from the Commission and after obtaining the opinion of the European Parliament".

30.  The 1987 Decision was adopted pursuant to this provision of Article 145, which also supplies the legal basis for the Commission's current proposal.

THE 1987 DECISION

31.  The 1987 Decision, building on practical experience, set down various means by which the Council can impose restrictions on the exercise by the Commission of powers delegated to it by the Council. Under the 1987 Decision three types of comitology committee procedure were formally established. The 1987 Decision merely gave them numbers, I, II and III. But the different types had in practice already attracted names reflecting their essential character - advisory, management and regulatory. Each provides for the committee to deliver an opinion on the Commission's proposals. In certain circumstances, management committees and regulatory committees can refer proposals to the Council for final decision. How much influence or control Member States can exert over the Commission depends on the committee procedure applicable in the circumstances. The committees operate as follows:

(I) ADVISORY (PROCEDURE I)

32.  The Commission is required to take 'utmost account' of the committee's opinion before adopting the proposed measure. The Commission does not have to follow the opinion of the committee. Nor is there any formal mechanism to refer any disagreements to the Council. But the Commission is required "to inform the committee of the manner in which its opinion has been taken into account".

— Commission submits draft measure to committee

— Committee delivers an opinion on the draft measure, voting by simple majority if necessary

— Commission takes utmost account of the committee's views, and informs committee of the outcome

(II) MANAGEMENT (PROCEDURE II)

33.  The Commission gives effect to the proposed measure if the committee is in favour of it or there is no qualified majority against it. If the committee votes against the proposal by a qualified majority[15], then it is referred to the Council:

—  under variant II(a), the Commission may delay implementation of its proposal for up to one month;

—  under variant II(b), the Commission must delay implementation of its proposal for a period of up to three months.

Within these periods the Council may, by qualified majority, adopt a different measure (even if opposed by the Commission) which would supersede the Commission's proposal.

Commission submits draft measure to committee

(i)  Committee delivers favourable opinion or there is no qualified majority against the proposal

—  Commission adopts measure

(ii)  Committee delivers unfavourable opinion by qualified majority

—  Commission communicates draft measures to Council

—  Within time limit* the Council

(a)  Adopts different measure by qualified majority
—  Council adopts its measure

—  Commission's measure falls

(b)  Fails to adopt different measure by qualified majority

—  Commission measure stands

*  For a IIa committee, the Commission may, but need not, defer implementation for up to a month. Under the IIb procedure, the Commission must defer implementation for a period, not exceeding three months, specified in the basic legislative act.

(III) REGULATORY (PROCEDURE III)

34.  The Commission gives effect to the proposed measure if it is supported by a qualified majority in the committee. If it does not have qualified majority support in the committee, the matter is referred to the Council which may, within three months, take a decision on the Commission's proposal by qualified majority of the Council. (Unanimity would be required to adopt a decision opposed by the Commission). If the Council fails to adopt a decision within the time limit, as specified in the basic legislative act (i.e. the regulation or directive in question) but not exceeding three months, then:

—  under variant III(a) ("filet" or "safety net"), the Commission shall adopt its proposal;

—  under variant III(b) ("contre-filet" or "double safety net"), the Commission shall adopt its proposal unless a simple majority in Council has voted against it. In that event, the proposal falls.

Commission submits draft measure to committee:

(i)  Committee delivers favourable opinion by qualified majority

—  Commission adopts measure

(ii)  No qualified majority for favourable opinion or no opinion

—  Commission submits draft measure to Council

—  Within applicable time limit* the Council

(a) Adopts draft measure by Qualified Majority

—  Measure adopted

(b) Rejects draft measure by unanimity (under IIIa procedure)
or by simple majority (under IIIb procedure)

—  No measure adopted by Council

(c) Fails to act

—  Commission adopts measure

* As specified in the basic legislative act, but not exceeding three months

(IV) SAFEGUARD

35.  The 1987 Decision also provided a procedure to be applied where the Council gives the Commission powers to take safeguard measures to protect the interests of the Community or individual Member States. There is thus a fourth type of comitology committee, the safeguard committee, which is used mainly in relation to the taking by the Community of defensive measures in international trade cases.

36.  The Commission must notify the Council and the Member States of any decision regarding safeguard measures. The Council may also lay down procedures by which the Commission must consult Member States before adopting such decisions. There is, however, no specific requirement to involve a safeguard committee. Any Member State may refer Commission decisions to the Council within the time limit specified in the Council act in question. If a measure is so referred, then:

—  under variant (a), the Council, by qualified majority, may take a different decision within the time specified in the act. Otherwise the Commission's decision stands;

—  under variant (b), the Council can confirm, amend or revoke the decision. If the Council does not act within the time limit, the Commission's decision is revoked.

THE WIDE VARIETY OF DELEGATED POWERS

37.  In practice a wide variety of implementing powers have been delegated to the Commission. These include:

—  the updating of Directives to take account of technical and technological developments;

—  management of the market in agricultural products;

—  decisions on the allocation of funding for projects in a particular area;

—  the formulation and management of research programmes;

—  environmental monitoring;

—  management of food aid projects (e.g. quantities and storage conditions).

THE POSITION OF THE EUROPEAN PARLIAMENT

38.  Except for a requirement to be consulted prior to the adoption of any decision under Article 145(3) of the EC Treaty, neither the Single European Act nor the 1987 Decision gave any active role to the European Parliament in the comitology process. The Decision gave rise to a bitter inter-institutional dispute, including a formal challenge to its legality by the European Parliament in the European Court of Justice.[16] Notwithstanding the introduction of co-decision for Community primary legislation, neither the Maastricht nor the Amsterdam Treaty gave the Parliament any formal position in relation to the supervision of implementing measures. The Parliament's involvement in comitology procedures has developed by other means. It rests on an inter-institutional agreement made by the Council, Parliament and Commission (the modus vivendi) and on certain other arrangements between the Commission and the Parliament.

39.  In 1988, an agreement was made (by an exchange of letters) between the then Parliament President Lord Plumb and Commission President Jacques Delors (the Plumb-Delors agreement). The Commission undertook to forward draft implementing measures to the European Parliament "for information". Exceptions were made for "routine management documents with a limited period of validity or of altogether minor importance and documents whose adoption is complicated by considerations of secrecy or urgency".

40.  In 1993, a code of conduct on the implementation of structural policies[17] was agreed between the Commission and the European Parliament (the Klepsch-Millan agreement). It provides for the forwarding to the Parliament of a variety of documents relating to the structural funds, including plans submitted by the Member States, Community support frameworks and operational programmes as well as annual reports on pilot projects and assessment studies undertaken.

41.  In 1994, after a number of conciliation procedures had been blocked by the European Parliament, the Council entered into discussions with the Parliament on comitology. Two things emerged. First, it was agreed to refer the more controversial questions (simplification of and reduction in the number of types of committee, definition of the right of revocation and limits of delegation) to the 1996 Intergovernmental Conference. Second, a modus vivendi was agreed between the Parliament, Council and Commission[18] in relation to implementing measures made under basic instruments adopted in accordance with the co-decision procedure[19].

42.  The principal features of the modus vivendi are as follows:

—  The Commission must send draft implementing measures, and their timetable, to the appropriate committee of the European Parliament at the same time as they are sent to the comitology committee;

—  The appropriate committee of the Parliament must also be informed when the comitology committee has given an adverse opinion, or where it has declined to give an opinion and the Commission has had to submit a proposal to the Council;

—  The Council shall not adopt any implementing measure referred to it without first having informed the Parliament and given it a reasonable time to deliver its opinion;

—  In the event of an unfavourable opinion, the Council will not adopt a measure without taking due account of the Parliament's viewpoint.

—  In the context of the modus vivendi, the Commission will take account as far as possible of any comments of the Parliament and will keep it informed, at every stage, of the procedure which it intends to take on them.

43.  In 1996, the modus vivendi was supplemented by an agreement between the Commission and the European Parliament (the Samland-Williamson agreement)[20]. It seeks to keep the Parliament better informed of the work of management and regulatory committees. It was agreed that:

"(a) in order to keep the European Parliament informed of the work of the executive committees, the Commission shall make available to Parliament, in good time in advance of committee discussions, the annotated agendas for each meeting of management and regulatory committees;

(b) the Commission shall make available to Parliament the results of votes in management and regulatory committees (votes for and against and abstentions);

(c) the Commission will require all members of management and regulatory committees, other than public service officials, to sign, on appointment, a declaration that there is no conflict between their membership of the committee concerned and their personal interests; in the event of such conflict arising during the work of the committee, they will inform the chairman of the committee and will not participate in the discussion on the issue; the chairman of the committee will point out that this obligation applies to all members;

(d) if Parliament or a parliamentary committee wishes to attend the discussion on certain items on the agenda of a committee, the chairman will put the request to the committee, which may take a decision; if the committee does not accept the request, the chairman must give reasons for the decision; Parliament may wish to publicise such reasons."

13   Declaration on the powers of implementation of the Commission. Back

14   Neither the Maastricht Treaty nor the Treaty of Amsterdam made any changes to this provision. Article 145 becomes Article 211 in the consolidated version of the EC Treaty which takes effect with the entry into force of the Amsterdam Treaty. Back

15   The 1987 Decision refers to "the majority laid down in Article 148(2) of the Treaty". This means a qualified majority as described in footnote 8 above. Back

16   Case 302/87, European Parliament v. Council: [1988] E.C.R. 5616. The Court dismissed the Parliament's application, holding that it was inadmissible. The position of the Parliament as litigant has subsequently changed. The Parliament's ability to institute proceedings to protect its prerogatives was consolidated in amendments to Article 173 of the EC Treaty by the Treaty of European Union (Maastricht Treaty). Back

17   Code of conduct on the implementation of structural policies by the Commission. [1993] O.J. C255/19. Back

18   Modus Vivendi of 20 December 1994 between the European Parliament, the Council and the Commission concerning the implementing measures for acts adopted in accordance with the procedure laid down in Article 189b of the EC Treaty. [1995] O.J. C43/41. Back

19   As laid down in Article 189b of the EC Treaty. Back

20   [1996] O.J. C347/134. Back