EU lawyers struggle with new ‘comitology’ rules

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Legal experts in the EU institutions are wrestling with uncertainties surrounding major reforms to the way EU laws are implemented ahead of the entry into force on 1 March of a regulation governing the bloc's 'comitology' procedure. 

"There are many areas that have to be aligned to the new comitology rules and doing so will be a challenge," Anna Piesiak, a legal expert at the Polish Permanent Representation to the EU, told a conference in Brussels last week.

"We didn't really have enough time to consider this regulation before it was finalised," she said, urging caution given the "highly complex" nature of the new system.

"I don't think the [European] Commission itself fully understands it yet. We need to slow down the EU decision-making process and make sure that we fully explain to our parliaments what is going on in comitology," Piesiak declared.

European Commission plans to reduce member states' influence on the EU's day-to-day decision-making were approved by the European Parliament in December. The 'comitology' reform involved shifting power over key trade decisions like multi-million euro import tariffs away from national governments to the EU institutions.

The comitology system, which has long stood accused of being too opaque and complex, 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.

New rules from 1 March

New rules governing the way the procedure works will come into operation on 1 March.

The fast-track procedure's main advantage is that it is much faster than the normal legislative machinery. But for years the system bypassed 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, which entered into force in December 2009, reformed the comitology procedure by increasing the Parliament and the 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.

"The Commission is the master of the new measures. It has to take the objections of the comitology committee [Council] into account, as well as the objections of the Parliament. But an objection from the Parliament and/or Council is very hard to get," said Eugenia Dumitriu-Segnana, who works for the Council's legal service.

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.

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.

December'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 will be subject to the new standard comitology rules, but certain sensitive aspects will remain under national control.

"The Commission needs the member states as they are the ones implementing these laws in practice and they have the expertise," explained Mario-Paulo Tenreiro, responsible for institutional questions at the Secretariat General of the European Commission.

Delegated acts and implementing acts

Comitology committees must now decide on EU legislation according to whether an act is classified as a delegated act (Article 290 of the Lisbon Treaty) or implementing act (Article 291): a distinction which is by no means clear at the moment.

Delegated acts see the legislator delegate to the Commission the power to adopt measures that it could have adopted itself in order to streamline EU decision-making. The legislator controls the Commission's exercise of delegated powers.

Implementing acts, meanwhile, are adopted by the Commission to facilitate the application of EU law across the member states and usually apply to technical aspects.

"We have identified hundreds of acts that we think should be reclassified […] it will take several years to finalise which types of act should be in which category. We hope to be in full compliance with the Lisbon Treaty by 2014," said Commission official Tenreiro.

Others believe the situation remains so murky that ultimately it will fall to judges to decide how EU legislation should be implemented.

"It's fascinating to see how this political game is unfolding and I think the courts will have to have the last word," said Wolfgang Heusel, director of the Academy of European Law (ERA), which hosted the debate.

Prospect of court cases looms large

European Parliament legal experts, meanwhile, predicted conflict between the EU institutions over what constitutes an implementing act and what constitutes a delegated one.

"Policy orientations should be delegated acts and technical applications of rules should be implementing acts," according to Anders Neergaard of the European Parliament's legal service.

Commission experts agreed. "The key issue is going to be how to distinguish between an implementing and a delegated act. This is a legal question, not a political one. If we get it wrong it will have to be settled in court," said Tenreiro.

Some observers claim that comitology represents a "black box" in EU transparency. Prominent consultant Daniel Guégen told EURACTIV Czech Republic in an interview that power in Brussels "is shifting from the political level to the bureaucratic level". 

Indeed, even Commission officials admit that comitology is difficult for citizens to get to grips with. "I must admit that for the general public the new rules are a step back for transparency," Tenreiro conceded at last week's debate.

He suggested that the new set-up would give the EU executive more power over controversial areas like genetically modified organisms (GMOs).

"In the past the law was very stringent on controversial issues like GMOs. The Commission was never obliged to adopt when there was no position one way or another in the [comitology] committee. Now the Commission can decide itself whether to adopt or not in such cases, so it has more power," Tenreiro said.

"The Parliament and the Council have a scrutiny right and the right to be informed. They can issue a warning if they think the Commission is being illegal, and the Commission can agree or disagree. But they have no specific powers to stop Commission action," he explained.

Neergaard, however, believes that impact of the Parliament and the Council's limited ability to influence the Commission under comitology should not be exaggerated.

"They can always revoke the regulation, so the member states do have the freedom they need to exercise control," the Parliament official claimed.  

"The Parliament is the big winner of the Lisbon Treaty, but it remains to be seen whether we're a winner in the new comitology rules. It will depend very much on how they are implemented by the EU institutions," said Anders Neergaard of the European Parliament's legal service.

"As a new member state and particularly as an incoming EU presidency, the biggest challenge is that the system is new," said Anna Piesiak of the institutional and legal section at the Polish Permanent Representation to the EU, identifying choosing which legal basis to use – a delegated act (Article 290) or implementing act (Article 291) – as the most pressing uncertainty to address.

"The distinction between the two is not clear and we are already seeing [that this could pose problems]," Piesiak added.

"It's not the clearest of regulations, but it's a good tool to work with. A lot of work has been done already, and a lot of work remains to be done .Ultimately it depends on how the three EU institutions want to work together on EU affairs in the future," said Mario-Paulo Tenreiro, responsible for institutional questions at the Secretariat General of the European Commission.

"At the moment it's via comitology. Hundreds of thousands of decisions will be taken by these Treaty articles every year," he added.

"It is very difficult to distinguish whether or not an act is an implementing or a delegated one, and the Parliament clearly has a political interest in one way or the other," said Wolfgang Heusel, director of the Academy of European Law (ERA).

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 milk and other agricultural sectors.

The Lisbon Treaty, which entered into force in December 2009, 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.

A regulation governing the new rules was adopted in December 2010.

  • 1 March: New comitology rules to come into effect. 

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