Evidence to House of Lords Select Committee "F" on the Commission's proposals to revise comitology procedures from Statewatch

Comitology is a vital part of the adoption and implementation of Community law. Most EC acts, many of great importance, are taken by the Commission under powers delegated by the Council, and in such cases there is no formal involvement of the general public, national parliaments or the European Parliament.

The proposed new Council decision (COM (1998) 380; OJ 1998, C 279/5) would amend and replace the 1987 Comitology decision (OJ 1987, L 197/33). This existing decision sets out standard types of committees of national representatives which assist the Commission in the exercise of powers conferred upon it by the Council.

1) The present Decision

The three types of committees in the present Decision are:

a) advisory committees (procedure I), in which national representatives can only comment on a proposed Commission decision;

b) management committees (procedure II), in which the representatives may block a Commission proposal by taking a vote against (by qualified majority), after which the Commission must propose the measures to the Council, either deferring taking the final decision by up to a month (procedure IIa) or up to three months if the parent legislation provides for a longer period (procedure IIb). In either case, the Council make take a different decision by qualified majority within the time limit;

c) regulatory committees (procedure III), in which the Commission needs the support of the representatives, by qualified majority, to take the implementing decision; if that is not forthcoming, the Commission must make a proposal to the Council; under procedure IIIa, if the latter has either not acted within a specified period no longer than three months, the Commission can adopt the proposed measure itself, but under procedure IIIb, the Commission can adopt the proposed measure unless the Council has decided against it by simple majority.

Additionally, there is a standard procedure governing the Commission when it takes safeguard decisions, usually against imports of third-country products. Any Member State may refer a proposed decision to the Council which may either (variant (a)) take a different decision by qualified majority within a time period to be specified, or (variant (b)) confirm, amend or revoke the decision by qualified majority; failing any Council action, the Commission measure is deemed revoked.

2) The proposed Decision

The new proposal follows up a declaration attached to the final act of the Amsterdam Treaty, but Commission's Explanatory Memorandum with the new proposal gives very little detail on the reasons behind the substance of the proposal or on the operation of the 1987 Decision.

The main differences between the proposed procedure and the current procedure are as follows:

a) a new Article 2 would set out a system for classifying which type of procedure should be used in which type of measure;

b) all the variants to the procedures have been deleted with results as follows:

i) the safeguard procedure will leave it up to the Council in each case to decide on the details with, in effect no central principles set out in this Decision;

ii) the management procedure will still need a QMV vote by Member State representatives to block a Commission proposal; the Commission shall still then send the proposal to the Council, which will still need QMV to take a different decision. The only major changes/simplifications are to the time limits, where it will be left to the Commission to set a time limit of up to three months; and on the effect of a delay: the Commission may defer application of any measure in the new proposal;

iii) the regulatory procedure would still allow Member State representatives to block a proposal if there is QMV against or if no opinion is delivered. The change/simplification happens next: the Commission shall not adopt the proposed measure; it may simply make a proposal [to the Council] in accordance with the Treaty if its original proposal is blocked.

c) the proposed Article 7 provides that the EP will get committee agendas and results of votes (seemingly for all committees) and draft implementing measures where such measures would implement an act adopted by the co-decision procedure.

d) Article 8 provides that the EP and Council should adjust all existing comitology arrangements to match those in the new Decision after a future proposal from

the Commission.

3) Institutional Implications

a) regulatory procedure

The proposed changes to the regulatory procedure appear to favour the Council far more than either the current procedure IIIa or IIIb, because the proposed system suggests that the proposal will never be adopted without a QMV or possibly unanimity in favour in the Council, compared to the current situation where the Commission might end up adopting the proposal where either the Council does not act or has not voted against by simple majority. The Commission should explain why it believes such a change to be necessary.

b) Amendment to existing comitology provisions

Potentially hundreds of existing legislative acts could be affected by amendments to convert them to the new system and to alter them, if need be, in accordance with the new classification. The Commission should provide more detail about how it envisages this process working, in particular on the extent of re-classification which it envisages.

The Commission should clarify whether it intends to make only one proposal which would have the effect of changing all the pre-existing procedures at once. Such a "one-off" Decision would be legally problematic since the legal bases for the parent measures are different. The alternative approaches would be to propose either separate amendments to each of the EC legislative measures with comitology provisions, "flooding" the EC legislative system, or (preferably) to propose two separate consolidated amendments: one to the comitology provisions in all existing pieces of parent legislation which must be amended by the consultation procedure, and one to the comitology provisions in all existing parent legislative acts which must be amended by the co-decision procedure.

Presumably the proposal to adjust the pre-existing comitology provisions will not be made until after the entry into force of the Amsterdam Treaty, in which case there will be limited need for a separate proposal amending the comitology provisions in all parent legislation to be amended by the cooperation procedure, and the list of parent legislation to be amended by the co-decision procedure will be substantially increased.

Whatever approach is taken, the result will likely be that some of the existing comitology arrangements will be altered to different types of committee in accordance with the classifications of the proposed Article 2. There is therefore a good chance, based on previous experience, of a prolonged dispute between the Council and Parliament on which category each proposal will fall into. For this reason it would be highly preferable to have a fuller definition of the categories in Article 2, or the preamble, or at least a detailed explanation from the Commission of which comitology provisions are likely to fall into which classification.

c) EP provisions

The EP's only remedy if it does not like a proposed implementing measure which it receives a draft of is presumably to complain--or to sue if an adopted measure alters the basic measure (see its successful complaint in Parliament v. Council (pesticides) [1996] ECR I- judgment). But it might also be arguable that a breach of the procedure set out in Article 7 could lead to possible annulment of the measure at the behest of any plaintiff, either with standing to sue directly or on a reference from a national court or tribunal.

Furthermore, it could be argued that the proposed Articles 7 and 8 together mean that the EP's expanded rights where co-decision legislation is being implemented apply to all cases where the parent legislation was adopted under the consultation or cooperation procedures pre-Amsterdam, but would have been adopted under the co-decision procedure had it been adopted post-Amsterdam. The Commission should clarify whether it believes this to be the case.

Finally, it is not specified when the information to be provided to the European Parliament must be provided. In order for the EP to conduct effective scrutiny of draft agendas and draft measures, it should receive them well in advance. A period of six weeks with exceptions for urgency seems appropriate, in line with the provisions on national parliaments in the relevant Protocol to the Amsterdam Treaty. Furthermore there should be a time limit for the EP to receive the results of votes and it should be provided that the Parliament receive minutes of meetings, in case decisions are deferred or partly agreed or other important agreements are reached besides a formal vote on a proposal.

4) Transparency

Article 7 does not make any provision for providing information to 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 organizations, journalists, researchers and other members of the general public. This is also true of Commission implementation of spending decisions under the current third pillar, where (for example) the Commission might have become involved in funding detention camps in Turkey without UNHCR supervision, as discussed by national and Turkish civil servants earlier this year, apparently without informing the Home Secretary.

National parliaments should preferably be assimilated mutatis mutandis to the European Parliament's rights in Article 7, but transparency to the general public is presently the subject of dispute before both the Court of First Instance and the European Ombudsman. In these cases (T-188/97 Rothmans v. Commission, and the complaint of Steve Peers, University of Essex, to the European Ombudsman) the Commission is arguing that the documents of comitology committees are not Commission documents, but documents within the control of each committee. The Council, asked to comment by the European Ombudsman, has argued that the documents are not Council documents, but has avoided taking an explicit view on whether the committees, the Member States or the Commission has responsibility for them.

There is no formal way to contact the committees themselves to ask for the documents. If the documents are treated as Member State documents, there may be great difficulties obtaining these documents from at least some Member States, especially if Member States take the view that they are Commission or Council documents or are reluctant to release the documents in light of their European character.

This problem should be solved without waiting for the Court of First Instance ruling, which will be some time in coming (the Court has not even held a hearing in this case yet) and might in any event be appealed to the Court of Justice. Article 7 clearly provides that agendas, draft measures and votes should be provided to the European Parliament, and page 2 of the explanatory memorandum makes it clear that past agreements on the provision of information to the Parliament have been between the Commission and the Parliament. Since the Commission chairs the meetings, proposes all measures, and takes all decisions (except where the national representatives block a proposal), it is clearly the body most able to arrange for the transparency of meetings. This is borne out by its decisions to publish the decisions of the data protection advisory committee on the DG XV web site and details on various consumer committees' activities (following the BSE crisis) on the DG XXII web site. A preambular clause in the Decision could make it clear that this clarification of the Commission's responsibility is without prejudice to the question of whether or not it is responsible for materials from committees meeting before the entry into force of the new Decision.

Within the third pillar, the Council's provisions on access to documents apply mutatis mutandis to access to documents of the Article 18 Committee of the Dublin Convention (see Rules of Procedure, Committee Decision 2/97, OJ 1997, L 281) and the CIS Management Committee (agreed Rules of Procedure of Management Board, not yet published). There is therefore precedent for extending the transparency rules of the Union institutions to a related decision-making forum.

It would also be preferable to oblige the Commission to take steps to make at least some of the relevant information available on the Internet and the Official Journal in addition, of course, to responding to written requests for access to documents.

5) Possible amendments

In light of the above comments, the Committee might like to consider recommending the following two amendments:

a) second paragraph of Article 7 as follows:

The European Parliament and national parliaments shall be informed of committee meetings on a regular basis. To that end, they shall receive from the Commission agendas for committee meetings and draft measures submitted to the committees for the implementation of instruments adopted by the procedure provided for by Article 189b of the EC Treaty, at least six weeks before the relevant committee meeting, except in duly substantiated cases of urgency. They shall also receive from the Commission the results of voting and the minutes of each meeting six weeks after each meeting at the latest. They shall also be kept informed whenever the Commission transmits to the Council measures or proposals for measures to be taken.

The public shall have access to the documents referred to in the preceding paragraph, by application to the Commission, on the same basis that it has access to documents covered by Commission Decision 94/90. The Commission undertakes to provide the widest possible access to such documents, in particular by dissemination on the Internet and publication of draft measures in the Official Journal of the European Communities.

Revised paragraph 1 or new paragraph 3:

Each committee shall adopt its own Rules of Procedure on the proposal of its chairman. These Rules shall provide that:

a) the public shall have access to the documents referred to in the subsequent paragraph, by application to the Commission, on the same basis that it has access to documents covered by Commission Decision 94/90; and b) the committee shall undertake to provide, with the assistance of the Commission, the widest possible access to such documents, in particular by dissemination on the Internet and publication of draft measures in the Official Journal of the European Communities.

Statewatch, 4 October 1998

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