135.  The Committee last considered the question of comitology just before the Inter-Governmental Conference which led to the Treaty of Amsterdam. The Council, Parliament and Commission had already agreed in 1994, in the context of conclusion of the modus vivendi, that the issue of comitology should be reviewed at the Conference. We concluded then that we were "not persuaded that the practice on delegation to the Commission is seriously at fault"[44]. We have, however, been critical of the lack of transparency of comitology procedures.[45] The outcome of the review at the Inter-Governmental Conference was an instruction that the Commission present a proposal to amend the 1987 Decision. It is significant that the Treaty provisions on which that Decision was based were not amended. Any proposal has, therefore, to be consistent with the current institutional arrangements envisaged in Articles 145 and 155. This Report examines the proposal which the Commission have now brought forward in response to that mandate.

WHAT INTERESTS SHOULD THE DECISION SAFEGUARD?

136.  In the view of the Committee there are three main interests which the Commission's draft Decision should safeguard.

137.  First, there are the interests of those directly affected by the Commission's implementing measures (e.g. industry, consumers). There is a question mark over whether the 1987 Decision has adequately taken these into account. Detailed criticisms were made by the consumer bodies of the absence, on the part of the Commission, of appropriate consultation with interested parties and at the lack of openness. We are also concerned that the new Decision should be forward looking. In particular, when considering its future application, the changes to be introduced by the Amsterdam Treaty need to be fully considered, especially as regards those matters such as immigration and asylum which are to be transferred into the Community (First) Pillar. Special provisions may be needed to safeguard human rights and fundamental freedoms. It is unclear to what extent the Commission has paid regard to this.

138.  Secondly, any replacement of the 1987 Decision must not jeopardise the legitimate concern of Member States to protect major national interests. This is currently secured in two ways: by the Council's ability to reserve implementation for itself; and by the participation of national representatives in the comitology committee procedures. The Commission's draft retains these safeguards, but with some changes. Whitehall Departments explained how their interests might be affected by the proposed amendments to the committee procedures. They identified a possible consequent shift in the balance of power between the institutions.

139.  Thirdly, the Decision must respect the principles of democratic legitimacy and of accountability. In the present context we believe that two matters need to be stressed. First, legislative acts should not be delegated to an executive body without reference to a legislative body deriving its authority from the electorate. Secondly, the executive should be accountable to an elected body. Historically legitimacy has derived from the Council (comprised of Ministers from elected Governments) but is increasingly being seen to require the involvement of the directly elected European Parliament. The Parliament continues to claim a right to have a greater say in comitology matters. At present its formal role is limited to the choice of committee procedure in cases where the co-decision procedure applies to the basic legislative act (the primary legislation). Co-decision will apply to more, but not all, Community primary (policy-making) legislation when the Amsterdam Treaty comes into force.

WHAT SHOULD BE THE OBJECTIVES OF THE NEW COMITOLOGY DECISION?

140.  The present proposal should, in the view of the Committee, have three main objectives. First, greater recognition has to be given to the position of the European Parliament. The limited and largely informal involvement in the comitology process which it enjoys at present can no longer be justified. Secondly, there should be further simplification of the procedures but only in so far as this is practically and politically feasible. The structure provided by the 1987 Decision was a considerable improvement on that which it replaced. But it remains complex and should be reformed. Thirdly, the whole comitology system needs to be far more transparent, to national parliaments as well as to the general public.

141.  The Committee also believes that, in seeking to achieve these objectives (which the Commission has itself identified), the Decision should adequately and properly reflect the institutional balance as provided in the Treaties, and that it should contribute to more efficient and better law-making at Community level.

142.  Defining the nature and extent of the role of the European Parliament is, in our view, by far the most difficult question raised by the Commission's proposal. Should the Parliament have the right, to use its own words, to "blow the whistle" on implementing measures? If so, should this be on all measures, or only on those for which it has had responsibility as co-legislator under the co-decision procedure? What would be the consequences when the whistle is blown?

143.  The draft Decision does not give the European Parliament any power of veto, but it would improve the position of the Parliament in two ways. It formalises, in Article 7, certain aspects of the modus vivendi. Secondly, Article 5 changes the default procedure under the regulatory committee procedure and provides for the submission of a new proposal. The draft Decision refers to the Commission presenting a "proposal relating to the measures to be taken, in accordance with the Treaty". In the case of legislation to which co-decision would apply, the Parliament would be fully involved.

144.  We address each of these matters in detail below. First it is necessary to consider more generally the position and demands of the European Parliament.

145.  The Committee recognises that the role of the European Parliament in bringing the Council and Commission to account is an important democratic safeguard. We have always been sympathetic to the Parliament's wish to be more involved in the comitology process. [46] The ability of the Parliament to scrutinise legislation is an important feature of the Community's democratic structure. There is a case for a greater involvement on the part of the Parliament in relation to delegated legislation, so long as this is consistent with maintaining the institutional balance and does not jeopardise speedy and effective law-making where this is necessary.

146.  We remain, however, of the view that oversight of implementing legislation is primarily a matter for the Member States. Much of it is essentially technical, and comitology is frequently concerned with monitoring the Commission's skills and abilities. It should not be forgotten that, in many instances, it is the Member States which will be responsible for giving effect to implementing measures at the national, operational level. Comitology may also involve matters to be financed by the Member States.

147.  We do not believe that it would be practicable for the European Parliament to be able to halt the process in relation to any proposal, nor do we think that this is necessary. The European Parliament does not at the moment have the same expertise and experience to enable it to judge whether a proposal is feasible or whether it is (politically) acceptable at the national level. We see the way forward, at least at the present time, as being to improve the position of the Parliament in the scrutiny of comitology procedure by requiring timely provision of information to it and giving it the right to be consulted. We develop this point in our recommendations on Article 7.

THE REGULATORY COMMITTEE PROCEDURE

148.  Article 5 of the draft Decision provides that the regulatory committee is to deliver its opinion on the Commission's draft measures by qualified majority. 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 it "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 a fresh decision under that procedure.

149.  Before considering the appropriateness of these new arrangements it is necessary to address a more fundamental question. The European Parliament sees no place for the regulatory committee and has called for its "elimination" from comitology. We do not agree.

150.  The regulatory committee procedure is important in practice, especially where the subject matter is novel and the Commission has little, if any, relevant experience or where the subject matter is controversial or may touch on sensitivities in one or more Member States. In such cases particular care needs to be taken to see that implementing measures are workable and that they accord with the sentiments of a substantial majority of the Member States. Only the regulatory committee procedure can ensure this. If the protection of this procedure was not available, the Member States would probably not be prepared to give implementing powers to the Commission on matters of any consequence. It was clear from the evidence we received that both the Commission and the Government see a need for the retention of the regulatory committee procedure. We believe that its elimination would be counter-productive, and we do not share the European Parliament's view on this point.

151.  As regards the European Parliament's argument concerning the extent of permissible delegation of law-making, that is a matter which is, as both the Commission and the Government pointed out, already in the hands of the Parliament where it is co-legislator. Increasingly, therefore, the Parliament will itself help to determine exactly what is to be delegated to the Commission by way of implementation.

152.  The key question which arises in relation to the new regulatory procedure is that of the appropriateness of the sanction if the committee delivers an unfavourable opinion. The Commission would be required in that event to present a new proposal, which will be subject to the full procedure applicable to the basic legislative act. This is a major feature of the new arrangements. As it will enhance the European Parliament's role in the comitology process, it may seem to be desirable. The difficulty is that the consequences are not predictable, though it is clear that resort to the full legislative procedure would necessarily be time-consuming. The solution proposed may be consistent with the Treaty, in the sense that Article 145 does not contemplate the Parliament itself exercising implementing powers. But it hardly accords with the principle of proportionality. There is a risk that it may prejudice defence of their interests by the Member States. Nor does it seem to give the Parliament what it wants.

153.  We believe that a less drastic, more practical solution has to be found. Under the modus vivendi the European Parliament may give an opinion in those cases based on co-decision legislation which have been referred to the Council following a negative opinion by the relevant comitology committee. We believe that under the Decision this provision should be entrenched and extended. The Parliament should have the express right to give an opinion in such circumstances. It would follow that both the Council and the Commission would be under a legal duty to consider that opinion.

154.  We suggest, therefore, that in the event of the regulatory committee giving a negative opinion or no opinion, the proposed measure should be referred forthwith to the Council. At the same time a copy should be sent to the European Parliament in order to enable it to give its opinion (this would be in addition to the enhanced role we recommend below, under Article 7). The Council should not be able act on the proposal for two months (except in cases of urgency), thus allowing time for the Parliament to deliver an opinion. The Commission should be able to adopt its proposal at the end of three months (from the date of referral) if the Council by simple majority has not rejected the proposed measure. We acknowledge that this would not give the Parliament a right of veto - indeed to confer such a right might require Treaty amendment. But the Parliament would have a role in the procedure and thus be able to influence decision taking on implementing measures, as is the case elsewhere under the Treaty where its prior consultation is required.

ARTICLE 7

155.  Article 7 seeks to strengthen the position of the European Parliament by giving it rights to receive certain information. This proposal was criticised on account of its failure to go as far as the modus vivendi and other current arrangements. We believe that the draft Decision should go further than it does on this point. We do not accept the Commission's view that this is unnecessary because Article 7 could be supplemented by a new inter-institutional agreement. In our view arrangements which have been accepted and shown to be workable in practice (albeit not always perfectly) should now be translated into legislation. The Council and Commission must move away from a position of making concessions and conferring privileges. The Decision should give Parliament rights and impose corresponding duties on the Commission.

156.  The draft Decision should be expanded to include matters presently dealt with under the modus vivendi and other arrangements. Some of them will need to be sharpened up. The European Parliament should not only have the right to see every proposal but should also be entitled to offer an opinion to which the Commission must have regard. In this way the Parliament would have the opportunity to have its voice heard. By making good use of the opportunities so afforded to it (some internal reorganisation and reformation would appear to be needed), the Parliament would be able to make its influence felt.

157.  Particular consideration should be given to the setting of time limits. Minimum requirements should be built into the obligations to deliver documents and other information to the European Parliament. In turn the Parliament should be obliged to deliver any opinion it chooses to give within a specified period. Six weeks has been suggested for Parliament's initial scrutiny of comitology proposals, in line with that which the Treaty of Amsterdam has given to national parliaments for scrutiny of certain legislative proposals. Exceptions would have to be made for urgent cases.

158.  The draft Decision contains two main elements designed to simplify the present arrangements. First it provides criteria for the determination of the choice of committee type. Secondly, while retaining the existing threefold structure of advisory, management and regulatory committees (plus the safeguard committee) it would remove the variants, leaving only one procedure for each committee type.

CRITERIA DETERMINING THE CHOICE OF TYPE OF COMMITTEE (ARTICLE 2)

159.  The Committee supports, in principle, the inclusion of criteria for the choice of type of committee. The absence of criteria in the 1987 Decision has been criticised. The history suggests that the case-by-case approach has worked reasonably well. Practices have developed and patterns are discernible, though there is not complete consistency. Occasionally there has been difficulty in reaching agreement on what type of committee to employ. Only very rarely have negotiations broken down entirely because of this. There is, however, general agreement that the current position could be improved.

160.  Witnesses were critical of the present text of Article 2. We agree that it raises a number of questions. There are textual problems. It is unclear how measures to "apply" basic instruments (such measures would be subject to the regulatory procedure) differ from "implementing" measures (which would be subject to the management procedure). Various difficulties were identified in relation to the phrase "measures of general scope designed to apply update or adapt essential provisions of basic instruments". It is also unclear what relationship the advisory committee procedure would have to the management and regulatory procedures (it would apply when one or other "is or is no longer appropriate") and the extent to which it would apply in some sort of residual way.

161.  As to substance, there are differences of view on policy as to what matters should go to what committee. For example, witnesses were not agreed that "implementation of programmes with significant budgetary implications" should be subject to the management procedure. Current practice varies on this matter.

162.  More fundamentally, the European Parliament, protective of its legislative prerogatives, seeks to draw a distinction between implementation and legislation. In its view, acts which " modify, update or supplement the essential aspects of legislative provisions" should not be considered as implementing measures. The power to adopt them should therefore not be delegated. The Commission's proposal implies that they would be delegated because it would require "measures of general scope designed to apply, update or adapt essential provisions of basic instruments" to be subject to the regulatory procedure.

163.  The Committee does not agree with the approach advocated by the European Parliament. The Treaty does not follow or impose any rigid doctrine of the formal separation of powers. The notion of "implementation" in Community law, in line with established practice, includes both the drawing up of implementing rules and the application of rules to specific cases by means of acts of individual application.[47] It is unrealistic to imagine the Community operating efficiently without some system of delegated legislation. If the Council is to be free to devote proper attention to principles of policy and new legislation, it is essential that day-to-day implementation is left, as is expressly provided in the Treaty, to the Commission.

164.  The inclusion in the draft Decision of rules to determine the choice of comitology procedure would constitute an important measure of reform. But it is likely to be controversial. Any criteria must be generally acceptable, readily understandable and workable. There must not be a risk that their practical application would give rise to the sort of time-consuming (and sometimes acrimonious) debate between the institutions which they are intended to remove. Nor must they create unnecessary opportunities for challenge on legal grounds. They must be capable of being applied to the wide variety of subject matter dealt with by comitology committees (from intervention prices under the CAP to, in the future, rules affecting civil liberties under the new Title IV of the EC Treaty establishing an "area of area of freedom, security and justice"). They must not be too prescriptive, and they should permit of differences of policy (for example, as currently exists in relation to the supervision of substantial spending decisions). Allowance has also to be made for the nature and extent as well as the development of the Commission's experience and capabilities. Under the current regime, for example, the regulatory procedure may be used on the grounds of the novelty of the subject-matter. As mentioned, one of the key interests to be protected is that of the Member States. There will remain matters on which there are sensitivities, at least until the Commission has shown itself capable of exercising the powers in question competently.

165.  The Committee considers that, while setting criteria in advance is desirable in principle, the present text of Article 2 is unclear and unsatisfactory. For the reasons set out above, we doubt whether it would be feasible in practice to devise suitable criteria which can be accurately and concisely translated into legislative text. We have considered whether, rather than have a list of definitive criteria, it might be more practical to identify certain matters which should always go to a management or regulatory committee. We suggest, however, that it might be more profitable at the present time for guidelines to be agreed in a political, rather than a legal, text, preferably by way of an inter-institutional agreement. This might be a more helpful first step in simplifying this aspect of comitology.

166.  Finally, there is Article 8, which would require the alignment of existing committees and their procedures to the new regime. Alignment is closely related to the question of criteria. The Committee accepts that alignment would be desirable in principle. It would effect a significant measure of simplification. It is, however, potentially a major task which could be excessively time-consuming. There was no alignment in 1987 (though the European Parliament recommended it) and there are currently about 250 committees. Whether this would be practicable depends on the outcome of the debate on the definition of criteria to determine the choice of type of committee, particularly as regards those matters which are to be subject to the management and regulatory procedures. In short, Article 8 stands or falls with Article 2.

REMOVAL OF THE VARIANTS

167.  The other key question in relation to the simplification of the comitology regime is how significant is the proposal for removal of the variants. The practical effect would be to reduce the choice of comitology procedures from five to three. In future there would only be one form of each of the management and regulatory procedures.

168.  The removal of the variants would effect a significant measure of simplification. But at the same time it would sharpen up the nature of the initial choice that has to be made. In this context it should be recalled that the 1987 Decision started life without any variants. Variants, introduced in the cases of the management and regulatory procedures, have provided an element of flexibility and also of sensitivity into the choice of procedure.

169.  In general the Committee is in favour of measures which would simplify the present arrangements. As Appendix 5 demonstrates, all five forms of committee are fairly widely used. But whether a reduction would in fact be a positive step is very largely dependent on the nature of the procedures which it is proposed to retain.

170.  The Government identified potential problems with the absence of a variant in the management procedure in so far as this procedure would be applicable to expenditure programmes. Under the Commission's proposal there could be difficulties if decisions could not be compulsorily deferred and reviewed by the Council. The Government is considering whether there should be an option added (in effect, the introduction of a variant similar to current procedure IIB) or whether the procedure should be amended more generally. The Committee agrees that further consideration needs to be given to the implications of the Commission's proposal, both as regards the management committee and the regulatory committee.

171.  We have said little so far about the safeguard committee procedure, which is mainly employed in the trade sector. Here too it is proposed to remove the variants and to have in future a single procedure. The Government pointed out that the potential effect of the change might have the effect 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 Commission's proposal it could be difficult for the Council to reject a safeguard measure. We agree that such a change would be undesirable, and we recommend that it should be resisted.

172.  In 1990, the Committee said: " The fear that important policy decisions are being concealed from democratic scrutiny will never be allayed whilst delegated legislation is agreed wholly in secret".[48] There is, in our view, an overwhelming case for greater transparency (by which we mean openness of dealing and public availability of documents and other information) in relation to the comitology process. The present system is shrouded in mystery and secrecy. It is true that the existence of comitology committees is not hidden, in the sense that each committee owes its existence to a particular piece of Community primary legislation - to a regulation or decision. The identity of some committees may become known, if not notorious (as in the case of the Standing Veterinary Committee during the episode of the British beef ban). Particular sectors of agriculture or industry may be alert to the activities of committees affecting their business. The individual citizen, however, is left very much in the dark.

173.  It is remarkable that not even the Commission can provide an exact number of comitology committees. As mentioned above, there seems to be general agreement that there are "about" 250. But there is no up-to-date, comprehensive and easily accessible list of all the committees. That is not something in which the Commission can take any pride or comfort.

174.  We are grateful for the efforts of the Government and its officials for providing, for the purposes of this enquiry, a list of committees and their activities. It has been prepared speedily and the Government, quite rightly, does not give any absolute guarantee that it is fully comprehensive. It is nevertheless a valuable step in improving transparency. We urge the Government to press the Commission to provide a full and authoritative list of comitology committees, their legal base, their type and general descriptions of their remit and activities. There is, in our view, no good reason why such a list should not be published, in both paper and electronic form, and kept regularly updated.

175.  We consider that in respect of each committee there should also be available, though not necessarily in the list proposed above, details of its precise remit, membership and agendas. The Commission's proposal (Article 7) would require each committee to adopt procedural rules. These also should be published.

176.  We also believe that all comitology proposals and other working documents should be accessible on the same terms (including confidentiality) as other documents of the Commission and Council. The draft Decision should make this clear. Moreover whenever possible such documents should be published at an early stage. It is in the interests of both transparency and better law-making that the Commission should be able to hear the views of interested parties before its measures are presented to the committee. The European Parliament has recently noted that publication on the Internet may not only serve for information purposes but that it may also assist consultation of interested parties. [49]

177.  As regards the opinions of committees these should, just as votes in the Council are made public, be made accessible. Article 151 of the EC Treaty, as amended by the Treaty of Amsterdam, provides that "when the Council acts in a legislative capacity, the results of votes and explanations of vote as well as statements in the minutes shall be made public".

178.  A final point concerns the advisory committee procedure. Under this procedure the Commission is required "to inform the committee of the manner in which its opinion has been taken into account". The wording of the Commission's draft here is the same as in the 1987 Decision. The extent of the obligations on the Commission to disclose its reasons for rejecting, in whole or in part, the committee's opinion is unclear. We consider that the wording should be changed in order to clarify the degree of accountability to which the Commission is to be subject.

ROLE OF NATIONAL PARLIAMENTS

179.  In most cases the only scrutiny of the Commission's implementing measures is that undertaken by national civil servants in the comitology committees. In practice there is little action in European or national parliaments. This Committee only receives comitology documents very rarely (and then usually at the stage when the Commission is required to refer a measure to the Council following a negative opinion in the committee). As we said in our 1995 Report, we do not advocate, as a general rule, that proposals for delegated legislation should be submitted to national parliaments. But where proposals come to light which raise matters of major significance, or where they would have an impact on the interests of individuals or enterprises, national parliaments should have an opportunity to express their views. [50]

180.  In 1995, the then Minister of Agriculture gave an undertaking to the Committee that the United Kingdom Parliament would be informed if a UK Minister expressed serious concern in the Council about a draft Commission measure.[51] The present Government has taken the matter a significant step further. In its recent White Paper the Government suggests that the scrutiny committees in this Parliament might wish "to examine particularly significant measures, or look more generally at how the Commission has exercised its powers over time".

181.  The Committee agrees that it is neither necessary nor practical for this Committee to consider each and every proposal put to a comitology committee. In addition to the problem of the volume of documents that would be involved, there is the factor that a number of these proposals have to be adopted within a short time frame in order to respond to developments in the market place. This is especially so where health and safety factors are concerned.

182.  The problem is to determine when, in terms of the White Paper, a proposal is "particularly significant". In the end this may be a question of political judgement. There are no obvious or common objective criteria other than procedural ones (as presently exist - for example, the making of a formal proposal under the Treaties or the publication of a document by a Community institution). In the present context these may not offer a solution consistent with securing the floodgates. The Government clearly intends there to be the potential for more scrutiny than before.

183.  This Committee should, we suggest, see all comitology documents which (a) are likely to require decision by the Council or (b) are of such political or practical significance that they might cause the Minister to be concerned if he or she were to learn of them first from the newspapers. Ministers should deposit such documents in both Houses in good time (save in cases of urgency) to enable effective scrutiny to take place. The Committee would expect to review (perhaps in the context of its regular meetings with Ministers) the Government's practice on deposit in the light of experience.

184.  In addition to such scrutiny of particular proposals, the Committee should, from time to time, examine how comitology is working. In particular, we would seek to be assured that the United Kingdom will continue to be represented by sufficiently senior and qualified representatives and that in all other respects its interests are being adequately protected. We would also wish to enquire into the measures being taken by Ministers themselves to ensure the effectiveness of comitology.

RECOMMENDATION

185.  The Committee considers that the Commission's proposal for a Council decision laying down the procedures for the exercise of implementing powers conferred on the Commission raises important questions to which the attention of the House should be drawn, and makes this Report to the House for debate.

45   Community Environmental Law: Making It Work, 2^nd Report, 1997-98, HL Paper 12, para. 33. The Committee expressed particular concern about the lack of transparency in relation to the scientific and other expert advice on which the Commission bases its policies and proposals (para 29). A recent report by Dr J A Stein and Prof. O Renn, Transparency and Openness in Scientific Advisory Committees: The American Experience (1998) has been prepared for the European Parliament. Back

46   In 1990 we suggested that proposals for delegated legislation should be laid before the Parliament, giving them the option of a debate, perhaps in committee, before a certain deadline: Economic and Monetary Union and Political Union, 27th Report, HL paper 88-1, para. 154. Back

47   Case 16/88, Commission v. Council: [1989] E.C.R. 3457, at para.11. Back

48   Economic and Monetary Union and Political Union, 27^th Report, HL paper 88-1, para. 154. Back

49   Committee on Institutional Affairs, Report on Openness within the European Union. 8 December 1998, para.48. Back

50   1996 Inter-Governmental Conference, 21^st Report, 1994-95, HL Paper 105, para. 297. Back

51   Exchange of correspondence between Mr Waldegrave and the Chairman of the Select Committee, printed in Correspondence with Ministers, 6^th Report, 1994-95, pp 20-21. The Committee had raised with the Minister a question of the adequacy of the scientific justification of a Commission proposal on maximum nitrate levels which would have had serious implications for the UK glasshouse lettuce and other vegetable growers. The Committee had learnt of the matter from newspaper reports. Back