EXPERIENCE UNDER THE 1987 DECISION

44.  The Commission said that the comitology system had in practice worked "very well and very smoothly". There was a good working relationship between the Commission and the representatives of the Member States. It was in the Commission's interests to listen to what they had to say: "first of all, because they are specialised in the field and, secondly, because later it is the Member States themselves who are going to implement the legislation". It was extremely rare for a matter to be referred to the Council - only in 1% of cases, all under the regulatory procedure. In most of these cases references had been due to a failure on the part of the committee to give an opinion on the Commission's proposal rather than an adverse opinion having been given (QQ 7,9,42).

45.  The Government acknowledged that the present system had been criticised for its complexity but said that the system was generally thought by Whitehall Departments to have worked well. Most Departments considered that a good working relationship existed between committee members and the Commission (p 38).

NEED FOR CHANGE

46.  Ms Quin, Minister of State at the Foreign and Commonwealth Office, said: "My impression is that the impetus for this came from the European Parliament that felt that it wanted a greater involvement and a greater knowledge about the comitology system, and also from the ideas at the Intergovernmental Conference (which we very much supported and indeed I understand in many ways led) of trying to make the system more open and transparent" (Q 175).

47.  The Commission said that because the present system worked well the Commission's proposal did not depart greatly from the scheme of the 1987 Decision. But the Commission judged that some simplification (in particular by reducing the number of variants) was required (Q 12).

48.  The European Parliament's perception of the existing position and of the extent of changes to be made was different. In its recent Resolution on comitology[21], the Parliament expressed the view that the current system of committees established by the 1987 Decision "may gradually undermine the co-decision procedure, restricting its scope to acts with a very general nature, rendering the Union's decision-making process increasingly opaque and making it difficult to exercise any democratic control"[22]. This was not the first time that the Parliament had expressed dissatisfaction with the comitology process and its procedures. There is a history of critical reports and opinions. Mr Türk (King's College, London) said that the Parliament had undertaken numerous efforts to participate in comitology and had used its legal, budgetary and political power to draw the attention of the Member States to the issue (p 58).

49.  Ms Quin said that the Government's approach was "very much to agree in principle with the simplification of the system, very much to promote, not just agree with, greater openness in terms of people knowing what these committees are and how often they meet and what their membership is and so on". The Government was also sympathetic to European Parliament involvement, in particular by improving awareness and its scrutiny role especially in areas where legislation was decided by co-decision. She said that the devil might lie in the detail when the questions of how, in what ways and when the Parliament was to be involved were considered (QQ 176-7).

SCOPE OF THE NEW DECISION - THE THIRD PILLAR

50.  Justice drew attention to the need to consider the implications of the proposal for some Third Pillar matters (for example, visas, asylum, immigration and other policies relating to the free movement of persons) to be transferred into the First (Community) Pillar and to the development of "an area of freedom, security and justice" pursuant to the Amsterdam Treaty (p 54). The Government confirmed that the Decision would apply to all First Pillar legislation providing for the adoption of implementing measures by the Commission. This would include any new measures agreed after the Treaty of Amsterdam enters into force which would previously have been adopted under the Treaty of European Union (Third Pillar) (p 40). As regards the consequences of the incorporation of the Schengen acquis,[23] the Home Office said that the applicable procedures for the involvement of the Commission and the European Parliament in the decision-making relating to measures based on Schengen would correspond to the procedures set out in the Treaty for the particular legal base allocated to those specific measures (p 41).

51.  Justice also raised concerns about the absence of "clear procedural rules" in relation to implementation under the Third Pillar (p 55). As regards matters remaining in the Third Pillar, the Home Office said that there was no provision for the determination of implementing provisions by any body other than the Council. However, Third Pillar instruments might specify that the Commission be given implementing powers within the arrangements prescribed. The absence of procedural rules was not perceived to be a problem. Any decisions taken by the Council would need to conform to its own Rules of Procedures (p 41).

RESERVATION OF IMPLEMENTING POWERS BY THE COUNCIL

52.  The Council is not obliged in all cases to delegate powers to the Commission. It is entitled to keep them to itself, though both the Treaty (Article 145) and the 1987 Decision treat this as the exception[24]. There appear to have been few instances when the Council has exercised its right to retain the power to take implementing measures. The Council has been content to approve large scale delegation. The Government described this as "natural, given that the comitology system exists to relieve the Council and the European Parliament of the burden of implementation and to facilitate agile decision-making". Officials from the DTI, DETR and MAFF could only cite one example (and that a qualified one, in relation to the generalised system of preferences, GSP) of the Council reserving implementing powers to itself. That case involved political relations between the Community and third States and the potential removal of trade preferences, decisions on which were thought to be for the Council or the Member States rather than the Commission. The Minister thought that there might be sensitive issues in relation to immigration and asylum (which when the changes introduced by Amsterdam Treaty take effect would fall within the First Pillar) where the Council could reserve the right to exercise implementing powers itself (p 38, QQ 61-3, 180, 187, 197).

53.  The Commission's proposal repeats the wording of the 1987 Decision with one change. Whereas the Decision speaks of the Council reserving powers "in specific cases", the new text refers to "specific, duly substantiated cases". Mr Türk indicated that the wording took account of the Court of Justice's ruling in Case 16/88, Commission v. Council[25] (p 63). In that case the Court said that where the Council reserves the right to exercise implementing powers "it must state in detail the grounds for such a decision". For the Commission, Mme. Durand confirmed that the words "duly substantiated" had been added to take account of the Court's jurisprudence. Where, exceptionally, the Council reserved implementing powers to itself it had to set out its reasons for so doing (Q15).

54.  The Government said that it was not clear from Article 1 exactly what sort of cases were envisaged and it was not possible to predict in which cases, including those to be adopted, post Amsterdam, under the new Title IV, the Council would reserve the right to exercise directly implementing powers itself (pp 38,40). But officials did not think that Article 1 of the proposal signified or would bring about any change of practice (p 38, QQ 61-3). As to the change in wording which required grounds to be stated, Mr R Lyall Grant (FCO) said that it was right that the Council should have to justify the retention of implementing powers (Q179).

CHOICE OF COMMITTEE TYPE

55.  An important change proposed by the Commission is the identification, in Article 2, of criteria to be applied in determining the choice of type of comitology committee. The 1987 Decision gave no guidance on this, though in a declaration[26] annexed to the Single European Act the Council was requested to give the Advisory Committee procedure "a predominant place" as regards the exercise of implementation powers conferred on the Commission "within the field of Article 100a of the EEC Treaty" (i.e. the Single Market). The Commission confirmed that most advisory committees were used in Single Market measures (Q11). It has, however, occasionally complained that the Council has not honoured its declaration.[27]

56.  Under the Commission's proposal, "implementation and management measures" should be subject to the management procedure. The draft singles out, in particular, measures "relating to common policies such as the agricultural policy, to the implementation of programmes with significant budgetary implications, or to the grant of substantial financial support". The regulatory procedure should be adopted for "measures of general scope designed to apply, update or adapt essential provisions of basic instruments". The advisory procedure would apply "where the management or regulatory procedure is not or is no longer considered appropriate". Finally, the safeguard procedure is applicable "where the power to decide on such measures is conferred on the Commission".

57.  As to current practice the choice of type of committee had, to date, been for discussion in the negotiation of the basic instrument. The experience of Departments was that no clear set of criteria could be identified, though in some areas it was possible to infer a tendency to look to a particular type of committee for certain kinds of activity. A practice had evolved, for example in single market measures to have advisory committees. In the agricultural sector, market-related decisions under CAP management schemes had most often fallen to management committees. Both variants, IIa and IIb, were used, though there did not seem to be any recognisable criteria for choosing between them. More politically sensitive topics (e.g. relating to consumer and animal health) had normally been dealt with by regulatory committees (the IIIb variant for health matters, the IIIa variant being used in less sensitive matters) (p 38, Q64).

58.  Both the Commission's and the Government's descriptions of present practice indicated that problems of choice of comitology committees had been rare, though in a number of cases the final "choice" might have been a matter of some negotiation between the Council and the Commission (p38, Q11, Q20). On occasion the European Parliament had exercised its powers under the co-decision procedure and had disrupted the adoption of directives. A recent example concerned the auto-oil programme, designed to tighten the standards relating to pollution control on vehicles and on fuel. The Parliament was unhappy with the lack of influence they would have in the future over updating those protection standards through their lack of involvement in the comitology procedures (Q 103). In two cases[28] the Parliament had actually blocked the adoption of a directive because they disagreed with the choice of type of committee (Q 20).

59.  The Commission's intention was not to change the present position. Mme Durand said: "The expectation is that globally the situation as now should not change substantially". Article 2 had been included to "systematise" the choice of committees and to facilitate the adoption of basic acts by the Council. As regards disagreements in the past between the Commission and the Council or between the Council and the Parliament as to what type of committee should be used, the Commission hoped that Article 2 contained sufficient guidelines to remove criticism or dispute about the choice of committee (QQ 20, 21).

60.  The Government welcomed Article 2 in principle, though its exact effect was not sufficiently clear (p 38). It appeared that the implications of the changes which would occur as a result of the Amsterdam Treaty had not been anticipated, in particular as regards those Third Pillar measures (including immigration and asylum) that would move into the First (Community) Pillar. As Article 2 stood at present, such matters might be subject to the advisory procedure. Mr Lyall Grant (FCO) said: "Given the sensitivity of those issues, that may not be the right decision. It does not look as though this Article has been drafted with the future in mind" (Q 187).

61.  The Government also said that it was not clear how measures to "apply" basic instruments (to be subject to the regulatory procedure) differed from "implementing" measures (for the management procedure) (p 38). The Commission said that one should not seek to derive too much from the use of the words "implementation" and "apply". The French text used the same word, "application", though it also used the term "exécution" (QQ 26-27, 31).

62.  Officials expressed concern at the drafting of Article 2. While the reference to the Common Agricultural Policy (and the management procedure) in the first paragraph reflected existing practice, MAFF had concerns with the wording of the second paragraph, in particular when it spoke of measures of general scope designed to apply essential provisions of basic instruments. That could cover matters in the agricultural sector (for example, set-aside rules) currently dealt with by management committees (QQ 66-67). The Home Office said that it was not possible to predict which comitology arrangements would be provided for in measures to be adopted under the new Title IV. "Such measures will be negotiated and agreed case by case" (p 40).

63.  Ms Quin said: " We feel that this Article does need further clarification because there still could be, as a result of Article 2, disputes over what kind of procedure should be chosen for what type of issue". The Government had been considering whether binding criteria could lead to more disputes (and possibly litigation in the Court of Justice) than it sought to solve. The Government was considering whether non-binding guidelines, perhaps in the form of a declaration attached to the Decision, might be a way forward (QQ 181, 183).

64.  Other witnesses expressed more fundamental concerns about Article 2. Mr Türk (KCL) said that the Decision could not solve the fundamental problem of what could be decided in the basic legislative act and what in an implementing act. The European Court had held that it was only necessary for the basic/essential elements of the subject measure of a matter to be adopted in the basic act. He was critical of the Court's approach in leaving it de facto to the Council to determine what were the "basic elements" in a particular case, thus enabling wide implementation powers to be conferred on the Commission, including powers to adopt or change annexes. The doctrine of "basic elements" had been restrictively interpreted by the Court so as to allow provisions in the main text of a basic act to be changed. In Mr Türk's view it was necessary to "distinguish between "application" which means the adoption of an administrative decision applying a legislative act and "implementation" whereby general rules are laid down having a normative nature". He found it difficult to reconcile the criteria in Article 2 for applying the regulatory procedure with the jurisprudence of the Court of Justice.[29] The Commission's proposal was not tenable in so far as it provided for "essential provisions of basic instruments" to be amended under the regulatory procedure (pp 64, 65, 67).

65.  The European Parliament has said that the Decision must maintain a distinction between substantive legislation and implementing provisions. This should be done "by better defining, in the basic act, delegation with respect to the exercise of implementing powers". Its Resolution states that "as far as the Parliament is concerned, acts which modify, update or supplement the essential aspects of legislative provisions cannot be considered implementing measures"[30]. Mr Corbett MEP considered that the wording of Article 2 might be sharpened up in order to draw more clearly the distinction between implementing and substantive measures. He thought that the key word was "essential" in the second paragraph. To allow adaptation of essential provisions of basic acts went too far. Mr Corbett said; "I would personally make a distinction and say that applying a directive - even updating - is one thing, but adapting essential provisions of the basic instruments is really another kettle of fish. It is very far-reaching indeed". Updating might also be controversial without the possibility of the Parliament's involvement (QQ 128, 129, 131).

66.  The Consumers in Europe Group (CEG) expressed concern that, particularly in the areas of food and veterinary matters, changes of a technical nature but having wide application, were being effected in committees. In CEG's view, such changes should be subject to the full legislative procedure in the Council and the European Parliament (p 52). Similar concerns were expressed by the Co-operative Union Ltd. which gave an example relating to the marketing of eggs in the Community. Changes were "often not just minor amendments to take account of technical progress" and could have a major impact on industry and consumers (p 52).

THE ADVISORY COMMITTEE - A RESIDUAL CATEGORY?

67.  Article 2 of the Commission's proposal provides that "the advisory procedure shall be used where the management or regulatory procedure is not or is no longer appropriate". The draft is silent on who would consider whether or not the choice of committee was "appropriate". Mr Williams (FCO) thought that it would be the legislature, i.e. the Council or the Council and Parliament, who would exercise this judgement (Q184). Mr Corbett MEP wondered whether the effect of the present wording of Article 2 was that advisory committees were going to be set up in all cases even where they had not been used in the past (Q143). Other witnesses also questioned the extent to which the advisory procedure was intended to be some sort of "catch-all procedure". Officials sought clarification from the Commission of when use of the management or regulatory procedure would be considered "no longer appropriate". They perceived a danger that if a proposed committee did not fit easily into the criteria for the management committee or the regulatory committee, it would go, as the Article was presently drafted, into an advisory committee. Mr McMillan (DTI) said: " our immediate reaction to this was that it looked rather as if the default was an advisory committee if you could not agree on anything else. Essentially there would be moral pressure downwards on the Council, in the European Parliament, in deciding what sort of committee was attached to a particular measure" (QQ 76, 183).

68.  The Commission did not think that the advisory procedure should be viewed as a residual category. It was an alternative to each of the other two types, management and regulatory (Q34).

69.  Under the advisory committee procedure the Commission must "pay the utmost attention to the views of the committee". The Commission is not bound to follow the opinion of the Member States, though in practice it has been rare for the Commission to disregard it. Mr McMillan (DTI) said: "On the whole, our experience has been that the Commission has treated that wording ... with some respect". Failure to have regard to the views of the committee members might have a detrimental effect on relations with the Commission. It might prejudice the level of representation as civil servants who are less senior might attend as a result. The Minister was confident that if there were problems with the Commission disregarding the committee's advice "various ways of raising complaints about this would not be slow to manifest themselves" (QQ 80, 82, 190).

70.  The proposal, repeating the wording of the 1987 Decision, requires the Commission "to inform the committee of the manner in which its opinion has been taken into account". Though it seemed unclear exactly what this required of the Commission, the Government considered that it would not be adequate for the Commission simply to state "we paid utmost attention". The spirit of the provision required the Commission to go some way to explain its reasons (QQ 191-2).

SIMPLIFICATION OF PROCEDURES - REMOVAL OF THE VARIANTS

71.  As described above, the present position is that the management, regulatory and safeguard procedures each have two variants. Under the proposal each would be a single procedure. The Decision abolishes the old procedure II b (an amended IIa remains) and replaces procedure III (a and b) with a new regulatory procedure. The Government generally welcomed this simplification: "Member States should still be able to have an effective role in the implementation of legislation" (p39). Ms Quin described it as "a useful part of the simplification of the whole system". But while the removal of the variants might, in principle, be desirable regard had to be had to the consequences: "we do want to make sure that we are not going to diminish the scope for effective decision taking" (Q188). It was necessary to examine the procedures as they would remain. Departments were generally sympathetic to the streamlining of the management procedure, though they had reservations in relation to its possible use in relation to expenditure programmes if decisions could not be deferred for review by the Council (QQ 78, 79). The Minister expressed concern about the possible implications of the changes proposed to the regulatory procedure (Q188). This is discussed further at paragraphs 81-91, below.

72.  The European Parliament supported the simplification of procedures, greatly favouring the use of the advisory committee. In its Resolution the Parliament says: "any proposal to reduce the number of committees, either by eliminating the variants or assigning topics on the basis of type of committee, would not be sufficient without giving the legislative authority (the Council and the Parliament) the opportunity to contest the legitimacy of the planned implementing measure". [31] Mr Corbett MEP said that the Parliament had problems with both the management and regulatory procedures because only a committee of national civil servants had the right "to blow the whistle" on what the Commission sought to do, not the Parliament. And any referral back was to the Council alone, even where the original act had been adopted under the co-decision procedure (Q132).

(i) Management procedure

73.  Article 4 of the Decision lays down the procedure for the management committee. The committee would deliver its opinion, by qualified majority, on the Commission's draft measures. The Commission may then adopt measures "which shall apply immediately". If, however, the measures are not in accordance with the committee's opinion, they must be communicated to the Council "forthwith", in which event the Commission may defer the application of the measures "for not more than three months from the date of such communication". The Council, by qualified majority, may take a different decision within that period.

74.  As described by Mr Türk (KCL), the current procedure IIa reappears with the difference that the maximum time-limit for the Council to change the Commission's measure is extended from one month to three. This seemed to be an attempt to compensate Member States for the loss of the current IIb procedure in which the period was three months (p 65).

75.  The Government thought that the introduction of a single management committee type should pose few problems. The Government did, however, put forward one change. In the event of a negative opinion from a committee, there should be an option which required the Commission to defer the application of measures pending a decision of the Council where the measures were not time-sensitive (p 39).

76.  The Commission explained that the management procedure was mainly used in the agricultural sector, where, for example, in relation to fixing intervention prices it was particularly important to have a fast and guaranteed decision (Q40). Mr Lebrecht (MAFF) said that the overwhelming majority of proposals had either received a favourable opinion or no opinion. The Commission normally worked hard to try to get the maximum amount of support for its proposal. There had only been about half a dozen cases in the last ten years (the most recent being in 1996 in relation to certain tariff quotas for the importation of rice) where a proposal had received a negative opinion and had therefore been referred to the Council (Q86).

77.  Mr Türk (KCL) suggested that having regard to the high acceptance rate of draft measures in the agricultural sector the advisory procedure would suffice for most implementing decisions. He recognised, however, that some decisions in relation to the CAP might warrant a stricter procedure, such as the regulatory procedure. He advocated that the management procedure should be abolished, generally and not just in relation to agriculture (pp 63, 69). Mr Lebrecht (MAFF) said: " We do not see the expansion of advisory committees in our area of work as being a very positive development" (Q76).

78.  Under the Commission's proposal (Article 2), the "implementation of programmes with significant budgetary implications" and measures relating to "the grant of substantial financial support" would be subject to the management procedure. The Commission accepted that the Decision would bring about a change here, but considered it "logical" that decisions as to who should get money should be decided by a management, rather than a regulatory, committee. Mme Durand said that such decisions were "typically management or implementation" (Q40).

79.  At present not all decisions involving finance were handled by management committees. Those that were, such as in the agricultural sector, could involve large sums, particularly in setting export refunds of products. Others were dealt with under the regulatory procedure, for example in the R &D area or in relation to large projects under the Trans European Networks programme[32]. Officials' views were that these matters should continue to be dealt with under a regulatory committee procedure. They were especially concerned lest the Commission would be able under any new procedure to go forward on projects without the Council being able to review decisions. There might be no easy route back and very considerable expenditure consequences. Mr Lyall Grant (FCO) said that if the management committee was to be used for such matters there was a question whether the version proposed was the correct one. The current procedure IIb, "the stronger version of the management committee", might be preferable (QQ 70, 72, 73, 89, 194).

80.  The European Parliament's Resolution called for "the exclusion of any limitation of the Commission's power to commit expenditure by general or individual decision taken on the sole responsibility of the Council so that the Commission can exercise its responsibilities for the implementation of the budget, under the control of the Parliament, the discharge authority". Accordingly the Parliament saw no place for the management or regulatory procedure in decisions relating to the implementation of the budget.[33] Mr Cassidy MEP said that the Parliament was very jealous of commitments being undertaken without the full budgetary procedure being gone through. Mr Corbett MEP said that there was a "sort of orthodox view" in the Parliament that it adopted the budget, that it was for the Commission to implement it, and that the comitology system was used by the Council as a back door way in to regain control. Mr Corbett recognised that Member States had a legitimate interest in looking at the way the budget was applied. But this did not require a regulatory committee. In the Parliament's view the advisory committee procedure should apply to these sorts of decision (QQ 140,142).

(ii) Regulatory procedure

81.  Article 5 of the Decision provides that the regulatory committee would deliver its opinion, by qualified majority, on the Commission's draft measures. The Commission may then adopt the measures. But if the measures are not in accordance with the committee's opinion, or if no opinion is delivered, the Commission cannot adopt the measures but "may present a proposal relating to the measures to be taken, in accordance with the Treaty". The last phrase ensures that where the basic instrument was adopted by the Council and the European Parliament under the co-decision procedure, the implementing measures will, if there is no agreement in the comitology committee, be referred back to both institutions for decision under that procedure.

82.  In the event of a negative opinion, the Commission would have a choice of action, to submit a new implementing measure to the committee or to submit a fresh legislative proposal to the Council or, where co-decision applies, to the Council and Parliament.

83.  Under the present system there is a marked difference between the two variants. Under IIIa the Commission has much more power. If a proposal does not receive the support of a qualified majority in the committee and is therefore referred to the Council, the Council only has the choice of either adopting it by qualified majority or blocking it by unanimity. The Commission can therefore proceed with a proposal even though it only has the support of one Member State. Mr Lebrecht (MAFF) reported that, exceptionally, the Commission had done this recently in relation to a proposal for the labelling of genetically modified crops (Q 90).

84.  Mr Türk (KCL) said that the Commission's proposal seemed to have taken account of the difficulties which Member States had with current procedure IIIa and which the European Parliament had with current procedure IIIb. The Commission has addressed the issue "and has solved it in a quite sophisticated way. Without removing the protection for the Member States, it offers the EP a participation which it has previously not been able to achieve" (p 65). Statewatch noted that the proposal seemed to favour the Council "far more than either the current procedure IIIa or IIIb". The Commission should explain why it believed such a change was necessary (p 56).

85.  The European Parliament disliked the regulatory procedure because it by-passed them. Mr Corbett MEP said: "It is virtually the same as the legislative procedure but without Parliament". (Q131). The Commission did not accept the Parliament's complaint that the effect of comitology was to deprive it of some of its legislative powers. Mme Durand said: "it is the legislators which decide the extent of the implementing powers given to the Commission" (Q 29). The Government took a similar view. Mr Lyall Grant (FCO) said: "If the Parliament feels that there are decisions being taken in comitology committees that should be not be taken, that they should be primary rather than secondary legislation, then it is really a question whether those decisions should have been delegated to the Commission in the first place rather than the type of committee to which they are delegated" (Q 196).

86.  The European Parliament's Resolution called for the elimination of regulatory committees.[34] It appeared clear, however, that the Commission did not share this view and the Government supported its retention. Ms Quin was sympathetic to the position of the Parliament but took a pragmatic approach. "I can certainly understand their concerns in a general way but unless those concerns have been translated into practical examples we would feel that it was not sensible just to scrap a part of the system which has seemed to work effectively" (Q195). Mr Türk (KCL) ascribed Member States' preference for, and increasing use of, the regulatory procedure to the need to protect their interests and to compensate for the dilution of power in the legislative procedure to the Parliament (p 60).

87.  The Government, however, said that the new procedure was likely to be controversial and its implications not easy to predict. On the one hand, the change could result in considerable delays in the passing of legislation, or put pressure on committees to endorse unacceptable proposals. On the other hand, there would be a stronger incentive for the Commission to put forward measures acceptable to the committee (p 39). The Minister said: " we are concerned that long delays could emerge if the committee is not able to reach a positive opinion on a proposed implementing measure … we are keen not to make the system less efficient than it was before" (Q 188).

88.  The Commission did not think that the new procedure would lead to more referrals to the Council. Whether a matter was referred was not dependent on the nature of the comitology procedure. Mme Durand said: "it is more the nature of the questions which leads to difficulties in agreeing than the procedure itself" (Q 45).

89.  Departmental officials described the potential shifts of power flowing from the new regulatory procedure. Compared to the current IIIa procedure, the new procedure would give more power to Council vis à vis the Commission. But compared to the current IIIb procedure, there would be a significant shift of power from the Commission to the European Parliament and the Council in such circumstances. Mr Lebrecht (MAFF) said that the new procedure should be considered in relation to the case where the United Kingdom was, as in the case of the beef export ban, the demandeur in circumstances where the time factor might be important. Article 5 of the proposal would give a blocking minority the power to stop a proposal which it did not have at present. The time factor was particularly relevant in cases of, for example, outbreaks of infectious diseases, where a speedy reaction at Community level was needed. MAFF attached importance to the regulatory procedure being able to deliver quick results in such circumstances (Q 90).

90.  Mr Stevens (DETR) and Mr McMillan (DTI) also expressed concerns about the implications of the last paragraph of Article 5. A proposal rejected by the comitology committee would have to be submitted to the full legislative procedure and time-scale (perhaps two years) of the co-decision or other applicable procedure under the relevant Treaty provisions. Under present arrangements differences could be sorted out in COREPER[35] enabling decisions to be taken quickly at the next convenient Council meeting. Returning to the full legislative procedure as was being proposed could become very burdensome and might therefore provide an incentive for both the Council and the Commission to reach agreement. If the Council thought that a full legislative procedure was necessary in particular circumstances it could always provide for it in the basic act (Q 90, 91,93).

91.  Ms Quin said that the Government would be interested in looking at ways forward in which there could be "some involvement, some opinion, from the European Parliament at that stage without necessarily going to the full legislative procedure and beginning from square one" (Q 198).

(iii) Safeguard procedure

92.  The effect of the Commission's proposal would be to remove the current variant (b). As under the current variant (a), any Member State could refer the Commission's decision to the Council within the time limit specified in the basic instrument. The Council could take a different decision by qualified majority. Otherwise the Commission's decision would stand.

93.  In practice recourse to safeguard clauses providing, for instance, for temporary import protection measures is rare. DETR could give only one example from recent experience. DTI gave two. The existence of such clauses had, however, a comforting effect and enabled Member States to agree liberalising measures. Their exercise had to be consistent with other international obligations (such as World Trade Organisation (WTO) rules). There were more than just technical consequences to what was now being proposed by the Commission. Ms Quin expressed concern that the safeguard procedure being proposed could be used in a way to increase the scope for the European Union to resort to speedy protectionist measures in the area of trade. The change might cause some problems in relation to policies concerning industrial goods by shifting the balance in favour of protectionism. At present, under Article 3b of the 1987 Decision, a qualified majority can block protectionist measures. Under the proposal it would be fairly difficult for the Council to reject a safeguard measure. To change the rules in such a way shortly before the commencement of the next WTO round might be to send the wrong signal at a time of difficult economic circumstances (QQ 96-100, 201).

94.  Justice drew attention to the need to ensure the proper use of safeguard procedures in areas affecting human rights (p 54). The Minister considered that the matter should be addressed in the negotiations on the proposal. She expressed concern that given the changes that the Amsterdam Treaty would bring not all the implications of how the comitology system would work in relation to new policy areas had been thought through. She would reflect on whether these important matters would be dealt with satisfactorily under the safeguard procedure (Q 201).

22   Resolution B4-801/98, para. C. Back

23   This is the subject matter of our Report, Incorporating the Schengen acquis into the European Union, 31st Report, 1997-98, HL Paper 139. Back

24   The 1987 Decision (Article 1) provides: "Other than in specific cases where it reserves the right to exercise implementing powers itself, the Council shall, in acts which it adopts, confer on the Commission powers for the implementation of the rules which it lays down". Back

25   [1989] E.C.R. 3457, at para. 10. The Commission unsuccessfully challenged the inclusion of a management committee procedure in Council Regulation (EEC) No 3252/87 on the co-ordination and promotion of research in the fisheries sector on the grounds that making the Commission's decision-making power subject to such a procedure was contrary to its exclusive powers in budgetary matters. Back

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

27   For example, Communication from the Commission to the Council: conferment of implementing powers on the Commission. SEC (90) 2589 final. Back

28   Proposal for a Council Directive on the application of open network provision to voice telephony [1992] O.J. C347/134. Proposal for a European Parliament and Council Directive amending Council Directive 93/6/EEC of 15 March 1993 on the capital adequacy of investment firms and credit institutions and Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field [1995] OJ C 253/19. Back

29   In particular Case C-417/93, Parliament v. Council:[1995] E.C.R. I-1185. Back

30   Resolution B4-801/98, para. 2(a). Back

31   Resolution B4-801/98, para 2(c). Back

32   The TENS committee dealt with approximately 500 million ecu of expenditure each year (Q73). Back

33   Resolution B4-801/98, para 2(e). Back

34   Resolution B4-801/98, para.2 (c). Back

35   The Committee of Permanent Representatives of the Member States. Article 151 of the Treaty makes it responsible for "preparing the work of the Council and for carrying out the tasks assigned to it by the Council". Back