EU lawmaking reform gives Brussels more power on trade

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European Commission plans to reduce member states' influence on the EU's day-to-day decision-making by reforming the so-called 'comitology' procedure were yesterday (16 December) approved by MEPs, shifting power over key trade decisions like multi-million euro import tariffs away from national governments to the EU institutions. 

The 'comitology' procedure, which has long stood accused of being too opaque and complex (EURACTIV 13/05/10), involves powerful committees of national experts who pass implementing acts accompanying EU legislation, based on a Commission proposal (see 'Background').

Decisions on milk quotas or on approving chemical substances, for example, are all routinely taken via comitology.

The fast-track procedure's main advantage is that it is much faster than the normal legislative machinery. But the current system bypasses the European Parliament on decisions that sometimes carry high significance. The influence of member states, especially small ones, is also disproportionately high.

The Lisbon Treaty, adopted in December 2009, reformed the comitology procedure by increasing the Parliament and Commission's power within the system.

Under the previous system, national capitals were able to block a Commission proposal by a simple majority. The new procedure enshrined in the Lisbon Treaty instead only allows member states to stop a Commission decision by qualified majority.

After nine months of complex negotiations, MEPs voting at their Strasbourg plenary yesterday backed an agreement – by 567 votes in favour and four against amid 18 abstentions – reached between the Commission and EU member states on a regulation governing these 'implementing powers', according to the terms of Lisbon.

"The days of the current 'comitology' system – both an indispensable tool for interest groups and a nightmare for European studies students – are numbered," said the Belgian EU Presidency following yesterday's vote.

Trade row

The new mechanism had faced resistance from a group of countries led by Germany and the United Kingdom, which feared that the system would reduce their ability to influence key areas like trade policy (EURACTIV 05/11/10).

Indeed, under the new rules only a qualified majority vote in a comitology committee against a draft implementing act can prevent the Commission from adopting it.

Smaller member states and free-trade advocates like the Netherlands, Denmark and Sweden had also been reluctant to see the EU executive gain influence over trade policy.

Nevertheless, the EU executive yesterday insisted that it "intends to continue to work in full partnership with member states".

Yesterday's agreement brings trade under the umbrella of the new comitology procedure, which the Commission says will increase the transparency and effectiveness of policy implementation in this area.

Most trade measures, including anti-dumping and "countervailing definitive measures," will be subject to the new standard comitology rules, which the EU executive says "will help to avoid the politicisation of the process, leave less room for lobbying by any party or by third countries, and ensure a more robust trade defence policy".

Until now, anti-dumping duties – which are levied on goods ranging from US biodiesel to Chinese shoes – have been decided in comitology committees made up of national experts.

Each member had one vote, regardless of their country's size or economic weight, and proposals for duties needed the support of a simple majority. Countries' votes will now be weighted according to their size, and only opposition by countries which together have a majority of weighted votes will be able to block proposals to impose duties.

But other sensitive aspects of trade policy will remain under national control. The Commission will still need a positive opinion from the comitology committee to adopt implementing acts related to "definitive multilateral trade safeguard measures," an exception to the rules that the EU executive "regrets".

Until now, all trade measures have been submitted to so-called "special procedures" in which the Council had the last word. 

New system 'better guards member states from lobbying'

The EU has never been more open to international trade and intensively negotiates bilateral agreements with third countries. "These countries increasingly lobby member states or take action in the field of investments or exports in order to influence voting behaviour on trade defence measures, such as anti-dumping or anti-subsidy measures," according to the Belgian EU Presidency.

The new system of implementing acts "better guards member states from such lobbying" because they will vote on the basis of qualified rather than simple majority, reducing their vulnerability to pressure from third countries on trade defence, the Presidency argued.

The Commission, meanwhile, said the new rules provide "a very sound basis for the correct implementation of EU law" and represent a "welcome improvement for transparent and efficient decision-making".

The new system will enter into force on 1 March 2011 and automatically replaces the existing process. It will be reviewed after five years. 

"I am very happy to see that, one year after the entry into force of the Lisbon Treaty, and only nine months after the Commission's proposal, we have managed to get agreement on this very important piece of legislation, which will have a major impact on the way the Commission implements European policies," said European Commission Vice-President Maroš Šef?ovi?, responsible for inter-institutional relations and administration.

"The negotiations have not always been easy, but our main objectives have been met. The new rules establish a system of control by member states of the implementing powers given to the Commission, which will be simpler, more efficient, more transparent and in full compliance with the Treaty," Šef?ovi? said.

"The agreement creates a simplified system with only two procedures for the implementation of EU legislation: an advisory procedure where Member States give non-binding advice to the Commission, and an examination procedure for matters such as agriculture policy, environmental policy, commercial policy and taxation,"read a statement by the Belgian EU Presidency.

"The examination procedure provides a more robust system of control by member states on the Commission's implementing powers with three simple rules: (1) the Commission has to find the widest possible support among Member States in order to adopt an implementing act, and has to take account of their comments, (2) member states can halt the Commission by a qualified majority, and (3) in sensitive cases (e.g. GMOs or trade defence measures) where member states cannot reach an opinion, the matter is referred to an Appeal Committee, which can meet at a higher political level,"the Presidency explained.

Hungarian centre-right MEP József Szájer (European People’s Party) said the European Parliament’s rights had been met by the legislation in that "Parliament kept the right of scrutiny".

"My goal [in negotiations with the Council and the Commission] was that this regulation should not prejudge the discussions going on in other committees" concerning how financial instruments should be regulated, citing the EU assembly’s international trade, development and external affairs committees.

"Transparency and parliamentary control will be much better after this regulation is adopted," said Szájer.

Decision-making under the EU's reformed comitology system represents a 'black box' in EU transparency, Daniel Guégen, CEO of Brussels-based consultancy CLAN Public Affairs, told EURACTIV in an interview, asserting that power in Brussels "is shifting from the political level to the bureaucratic level". 

"Laws adopted under co-decision between Parliament and Council only represent 50 acts every year, whilst 2,500 acts are adopted every year under comitology. This means that 98% of acts and regulations adopted by the EU are de facto controlled by the European Commission," Guégen said.

"This is not good news for lobbyists or for citizens due to a lack of democratic control," he added. 

Decisions on implementing parts of EU legislation are often taken behind closed doors by European Commission officials assisted by national experts, who give their opinion on proposed measures.

They meet in hundreds of specialised committees under a procedure referred to as 'comitology'.

There are around 300 committees dealing with all kinds of legislation, ranging from agriculture policy to industry. Examples of decisions taken by this procedure include the authorisation of chemical products or the imposition of production quotas for certain agricultural sectors.

The Lisbon Treaty, which entered into force in December last year, replaces the old comitology with a new system of 'delegated acts', placing the European Parliament on an equal footing with the Council in making those decisions.

Under Lisbon, the Commission outlines the technical requirements of EU law, provided that they do not change 'core' legislation decided by the Parliament and member states. 

In line with what is written in Articles 290 and 291 of the Treaty, the Commission proposed in March to review the system but negotiations had been stalling for months, due in particular to controversy over trade policy (EURACTIV 05/11/10).

Article 290, the treaty provision on delegated acts, is self-executing, requires no comitology procedure and entered into force on 1 December 2009. But Article 291 on so-called implementing powers required the adoption of yesterday’s regulation to establish conditions for control by national governments of how the Commission exercises such powers. 

  • 1 March 2011: New rules to enter into force.
  • 2016: Commission to review implementation of new 'comitology' system and will table new legislative proposals if required. 

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