(iii) Article 7
104. The introduction of express legal provisions
relating to the European Parliament is one of the major changes
being introduced by the proposed Decision. Mme Durand, for the
Commission, described it as "the main new element of the
new proposal" (Q12). Article 7 provides that the Parliament
"shall be informed of committee proceedings on a regular
basis". It would receive agendas, drafts of implementing
measures where the basis instrument had been adopted under the
co-decision procedure, and results of voting in committees. The
Parliament would also be informed "wherever the Commission
transmits to the Council measures or proposals for measures to
be taken" (i.e. in the event of a negative opinion under
the management or regulatory procedures). Mr Dupuy, for the Commission,
said that these provisions were modelled on the modus vivendi
and the Samland-Williamson agreement with some additions.
For example, Article 7 provided for the Parliament to receive
information about all committees, not just management and regulatory
committees as under Samland-Williamson. He accepted, however,
that there were some aspects of the present arrangements which
were not reproduced in Article 7, such as requirements on committee
members to declare their interests (QQ 49-51).
105. The Government said that it was the Commission's
intention that Article 7 should replace the various political
agreements (under the modus vivendi etc.) entered into
since the 1987 Decision. The new provision should help to ensure
clear procedures for informing the European Parliament and minimise
difficulties in future. The Government welcomed the provision.
Mr Lyall Grant (FCO) said:"we recognise the right for the
European Parliament to be more involved as a result of the co-decision
procedure". The Government would be content to have the modus
vivendi formalised in the Decision. But Mr Lyall Grant added:
"I am not sure that we would sign up a hundred per cent to
some of the other agreements which did not involve the Council"
(p 39, QQ 203,205).
106. Some criticism was, however, made of Article
7. Mr Corbett MEP thought that the Article had "some improvements
and some shortcomings". He wondered why certain matters presently
in the modus vivendi were not repeated in Article 7. He
thought it was "strange" that the matters currently
in paragraph 4 of the modus vivendi had not been set out
in Article 7 and suggested they should be so. Mr Cassidy MEP said
that a requirement for national officials to declare any personal
interests should be expressly included. Mr Corbett also drew attention
to the fact that the Article was silent on what Parliament could
do with a measure it received (QQ 116,120).
107. Under Article 7, the European Parliament
would be "informed of committee proceedings on a regular
basis". Justice was critical of the adequacy of the words
"on a regular basis": "Experience under the current
Article K.6 TEU has taught that such undertakings are open to
different interpretations". Justice argued that the proposal
should go further, particularly by using modern electronic means
of information dissemination (p 54). Statewatch was concerned
that the draft Decision did not specify when information should
be provided to the Parliament. If it was to be able to carry out
effective scrutiny, it should receive documents "well in
advance". Statewatch considered that a period of six weeks
with exceptions for urgency would be appropriate, in line with
the provisions on national parliaments in the relevant Protocol
to the Amsterdam Treaty (p 56). The Co-operative Union had similar
concerns over whether Parliament would be given sufficient time
to examine proposals and pointed out the limitations inherent
in the Parliament's current timetables for and way of conducting
its business (p 53).
108. Under the proposal the European Parliament
would receive "agendas for committee meetings, draft measures
submitted to the committees … and the results of voting".
The requirement to provide agendas for all committees goes
beyond the current arrangements. Mr Türk (KCL) pointed out
that the Samland-Williamson agreement only referred to management
and regulatory committees, though it required "annotated"
agendas. He also pointed out that the Decision did not impose
any timetable for the delivery of documents to the Parliament
(p 66). Mr Corbett said that it was very important that the Parliament
should receive agendas in sufficient time to be able to react
(Q165). Mr Cassidy said: "The Parliament will be entitled
to have the minutes in future and I think that is a desirable
step forward" (Q161). Mr Türk said that although the
Parliament would receive the results of voting it was unlikely
that they would indicate the positions taken by individual Member
States (p 67).
109. Article 7 also requires that the European
Parliament should be kept informed "wherever the Commission
transmits to the Council measures or proposals for measures to
be taken". The point would seem to have relevance mainly
in relation to the management procedure. As Mr Türk said,
under the regulatory procedure (where failure to agree a measure
might result in the matter being reintroduced "in accordance
with the Treaty") the Parliament would in many cases be involved,
as co-legislator under the co-decision procedure (p 67).
110. For the Commission, Mme Durand explained
Article 7 as a legal text gave specific legal rights to the European
Parliament. That was a gain for the Parliament. She added that
the fact that matters were not included did not exclude their
being the subject of a new modus vivendi or other political
arrangement (Q53). The Parliament itself sees the need, in addition
to a new decision, for a new inter-institutional agreement "on
defining and monitoring implementing rules".[37]
ALIGNMENT/ADAPTATION
OF COMMITTEES
111. Article 8 of the Commission's proposal would
require all existing committees to be aligned with the new procedures.
The Commission did not expect that Article 8 would bring about
a major change. It recognised, however, that the extent of any
change and the time any adaptation exercise might take would depend
on the extent of any changes made to the committee procedures,
as set out in Articles 3-5 of the proposal, and the criteria agreed
under Article 2 (Q 54). Statewatch called on the Commission to
clarify how it envisaged the process of adaptation working and,
in particular, whether the Commission intended to effect the alignment
by a single proposal which would change all pre-existing procedures
(p 56).
112. The Government said that alignment might
be difficult in some cases, in particular where the application
of Article 2 might result in some committees changing their type.
If there were, for example, to be a major change in the regulatory
committee procedure, Article 8 would affect a large number of
committees. Mr McMillan (DTI) envisaged that there would be a
complicated negotiation: "it could end up being a very time-consuming
and quite confusing activity" (p 39, QQ 106, 107, 215). If
alignment had to be effected "without delay", as prescribed
by Article 8, this would cause difficulties. The Government would
be seeking to ensure that any changes were carried out within
a reasonable time-scale and offered sufficient flexibility (p
39). Together with other Member States the United Kingdom had
asked the Commission for more details as to how such major changes
might be effected (p 41).
113. The Government was not certain what the
Commission intended to happen to pre-1987 committees. (The 1987
Decision did not make any provision for adapting those then in
existence[38]).
As regards such committees, the Government said that most were
in fact already broadly in line with the 1987 provisions. Pre-1987
committees have continued to work as before, new procedures only
being introduced with amendment of the basic legislation under
which they acted (pp 38, 39).
114. The Commission said that the new rules would
be applicable to both pre- and post 1987 Decision committees.
The aim of Article 8 was to avoid having three comitology regimes.
The European Parliament supports this measure of simplification,
being "convinced that all the 'committees' which existed
prior to the 1987 Decision should be brought into line with the
new procedures".[39]
TRANSPARENCY
115. CEG was highly critical of the way in which
comitology committees worked, especially as regards food and veterinary
matters. "We have strong reservations about the use of the
Standing Committee procedure in its present form because of its
secretive nature and bias towards industry and specialist interests,
rather than consumer interests". CEG called for the workings
of such committees to be made more open and transparent. There
should be registers of interests of members as well as opportunities
for consultation. Scientific and other documentation should be
made publicly available. Key meetings should be held in public.
Observers representing consumers should be allowed at all meetings
(p 52). The Co-operative Union also considered that comitology
procedures were "far too secretive". It was very difficult
for interested parties, including industry and consumers, to learn
what was going on. "MAFF has on the whole a very good record
of keeping interested parties informed in the UK but this is not
the case with other Member States" (p 52).
116. The European Parliament's recent Report
on comitology (the Aglietta Report) identified two ways in which
transparency of the comitology procedures should be improved;
first, by the adoption of uniform internal rules of procedure
and, secondly, by respect for the EP's right to information. Article
7 touches upon both these matters.
117. Article 7, first sentence, provides that
"Each committee shall adopt its own Rules of Procedure on
the proposal of its chairman". Mr Türk (KCL) said that
this might end the past uncertainty as to who decided the rules
of procedure and also should ensure that each committee had rules
of procedure. His understanding was that one third of all committees
had not yet adopted rules of procedure (p 66). Mr Cassidy MEP
thought Article 7 should be made clearer as to how rules of procedure
would be adopted. In his view they should have to be adopted by
qualified majority. To increase transparency, committees' rules
of procedure should be published in the Official Journal. Mr Cassidy
was also concerned that the Decision should address the question
of declarations of interests by national officials, though he
accepted that this might be less of an issue for national officials
as distinct from national experts where conflicts with personal
interest might be greater (Q116).
118. Mr Dupuy, for the Commission, suggested
that the requirement for procedural rules, which would be proposed
by the Commission (a representative of the Commission always acts
as chairman in comitology proceedings), might meet some of the
concerns that certain aspects of the modus vivendi and
other current arrangements had not been incorporated in the draft
Decision (Q50) (The relationship between Article 7 and the modus
vivendi is described in more detail at paras 106-110).
119. Mr Corbett MEP thought that a combination
of what was in the modus vivendi and in Article 7 would
go a long way to improving transparency. He said: "If we
can just make sure that those procedures remain in force and are
properly applied then the whole system will be more open, at least
for Members of Parliament, but that is often the starting point
for a wider public" (Q164). The Co-operative Union welcomed
the proposal to keep the European Parliament better informed but
was not, however, satisfied that increasing disclosure to the
Parliament would be sufficient. The procedure had to be made more
transparent for all of the interests involved (p 53).
120. The Government acknowledged that the present
comitology system had been criticised for a lack of transparency.
This was something that the Government would like to tackle, in
line with its general policy on openness in the Community decision-making
process. The Government welcomed the provisions of Article 7 but
said that the commitment to transparency should go further. "In
particular, certain information about comitology committees (including
a full list of the committees and their activities, as well as
details of the committees' remits and membership) should be held
centrally and made available to the general public" (pp 38,
39, 40). A distinction might be made between information provided
for scrutiny by the European and national parliaments and information
made more widely available to the general public to increase transparency
and understanding of the comitology system as a whole (Q 211).
The Minister indicated that some of the committees dealt with
market sensitive information. She said that "we have to have
some recognition of that, but at the same time the presumption
should be that as much openness and transparency as possible should
be our guiding principle" (Q 210).
121. The Government had proposed that this information
should be made available on the Internet (p 41). The Co-operative
Union supported the idea of making use of the Internet. The information
on the Scientific Committees currently given by DGXXIV was a precedent
(p 53).
122. At the outset of the enquiry the Committee
considered that it would be helpful to have a list of comitology
committees within the scope of the proposal,[40]
and a description of their type and activities. At the Committee's
invitation the Government compiled such a list. But this is not
an authorised and definitive Community document. It appeared that
the Commission did not know exactly how many comitology committees
there were and could only give an approximate figure (250) (Q22).
Mr Cassidy MEP informed the Committee that in the Legal Affairs
Committee of the European Parliament he had proposed an amendment
that the Commission should be asked to produce a list updated
annually of all committees concerned in the comitology procedure
[41](Q166).
123. As regards details of the membership of
committees, the Commission drew attention to the fact that the
membership of their committees of advisors/experts was
published. They were frequently well-known specialists in the
particular field. By contrast the members of comitology committees
were normally officials appointed by the Member States, who might
change from one meeting to the next. Mme Durand, for the Commission,
thought that making their names public might concern the Member
States (Q56). The Government, however, made no such reservation
(Q210)[42].
124. As regards publishing the remit of particular
committees, the Commission did not think there should in principle
be a problem. The activity of each committee was defined in the
basic act under which it was established. However, the position
might in practice be complicated where a committee exercised more
than one function (Q 57)
125. The Commission said that it was up to the
Member States whether or not to make public opinions of committees.
Comitology committees were not institutions of the Commission.
It was for each Member State to determine what publicity to give
to its viewpoint (QQ 35-36). The Government considered that there
might be greater scope for Member States individually to take
the initiative and make information available, though it would
be better if that were done in conjunction with other Member States
(Q 208).
126. Statewatch pointed out that there was a
question as to whether comitology documents belong to the Commission
or Member States. Statewatch said that, in the context of litigation
(Case T-188/97, Rothmans v. Commission) currently
before the Court of First Instance, the Commission had argued
that the documents of comitology committees were not Commission
documents but documents within the control of each committee.
The consequence was that access to them might be extremely difficult
(p 57).
127. Statewatch noted that Article 7 made no
reference to providing information to the national parliaments
or the general public. "This omission is highly problematic
because most Commission implementing decisions will impose compliance
costs on national administrations and private business, and many
are of great concern to interest groups, non-governmental organisations,
journalists, researchers and other members of the general public"
(p 57). Mr Corbett MEP assumed that making information available
to the European Parliament was equivalent to putting it into the
public domain (Q 164). It was clear from the Government's recommendations
concerning the Internet that it did not see the issue of transparency
being resolved by communications to the Parliament and national
parliaments alone, though there appeared to be a distinction between
what might be put on the Internet and what might otherwise be
made available (Q 211).
128. Statewatch said that the problem of access
to comitology documents should not await the outcome of the Rothmans
case, but should be addressed in the Decision. The Decision should
make clear that the public was entitled to access to comitology
documents on the same basis as to documents covered by Commission
Decision 94/90. Further, committees should provide the widest
possible access to such documents. A preambular paragraph could
preserve, as far as might be necessary, the position of documents
before entry into force of the new Decision (p 57).
129. Justice drew attention to the fact that
the development, under the Treaty of Amsterdam, of "an area
of freedom, security and justice" meant that the new comitology
procedures would apply in areas directly affecting individual
human rights. Justice said: "We believe that there is a case
for laying down some firmer guidelines as to the best way of handling
these questions so as to ensure true transparency and avoid the
traditional tendency for excessive secrecy" (p 54). The Minister
thought that Justice's concerns were valid and needed to be addressed
(Q206).
ROLE OF
NATIONAL PARLIAMENTS
130. The draft Decision is silent on the question
of scrutiny by national parliaments. The Commission said that
it was for each Member State to decide what kind of involvement
it wanted for its parliament (Q38). At present it is very rare
for comitology documents to be deposited for scrutiny in this
Parliament.
131. Mr Türk (KCL) expressed the concern
that the proposal would do nothing to reverse what he saw as a
tendency for the Council to "escape" into the implementation
process as a reaction to the increasing legislative powers of
the European Parliament. Mr Türk said: "It will undermine
the scrutiny powers of the national parliaments which can to some
degree be exercised in the legislative process of the EC, but
which are severely limited in the implementation process of the
EC" (p 68).
132. Mr Cassidy MEP expressed concern about the
adequacy of the present arrangements. He said: "It is a whole
area which appears, and I say this with the greatest respect to
the British Parliament, to be completely outside ministerial scrutiny
and parliamentary scrutiny" (Q166). But Mr Corbett MEP said
that the system itself provided some safeguard: "In terms
of the wider perceptions of the public of this gargantuan bureaucracy
in Brussels deciding everything without any democratic control,
perhaps the salient point to remember is that the European Commission,
even when European legislation does give them implementing powers,
are subject to scrutiny, albeit by national civil servants; they
cannot just do what they want" (Q166).
133. Ms Quin accepted that there was a role for
national parliaments in the scrutiny of the comitology procedure
and said that the information transmitted to the European Parliament
should be available to Member States (QQ 202, 209). She referred
to the Government's recent White Paper, The Scrutiny of European
Union Business.[43]
Paragraph 7 provides:
"[The Scrutiny Committees] would also be able,
where necessary, to consider legislation made by the Commission
in areas where the Council of Ministers has delegated to it the
responsibility for rules implementing Council legislation. Although
much Commission legislation is technical and unimportant, some
of it has important implications, and where appropriate, the Committees
may wish to examine particularly significant measures, or look
more generally at how the Commission had exercised its powers
over time".
134. The Minister considered this to be an important
addition to the scrutiny process. She acknowledged that there
would, having regard to the large volume of comitology measures,
have to be some sort of screening process. "Obviously some
measures stand out as just being very unimportant and technical,
but others do have wider implications, so a certain amount of
common sense has to applied here". While the Government was
keen to try and provide for effective national and European parliamentary
scrutiny, it was also concerned that the system should not become
more cumbersome or more subject to delays (QQ 211, 214, 217).
36 
