Explanatory Memorandum to COM(2010)83 - Rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers - Main contents
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| dossier | COM(2010)83 - Rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing ... |
|---|---|
| source | COM(2010)83  |
| date | 09-03-2010 |
The Treaty of Lisbon (hereinafter 'the new Treaty'), which entered into force on 1st December 2009, substantially modifies the framework for implementing powers that are conferred upon the Commission by the legislator. Contrary to the provisions of the Treaty establishing the European Community (hereafter 'the EC Treaty'), set out in Article 202 thereof, the new Treaty makes a clear distinction between the powers delegated to the Commission to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of a legislative act (delegated acts) on the one hand and the powers conferred on the Commission to adopt implementing acts on the other hand. They are subject to entirely different legal frameworks:
- The provisions of the new Treaty on delegated acts, which are set out in Article 290 of the Treaty on the Functioning of the European Union (hereinafter 'the Treaty'), provide for the legislator to control the exercise of the Commission's powers by means of a right of revocation and/or a right of objection. These provisions are sufficient in themselves and do not require any legally binding framework to make them operational.
- The provisions of the new Treaty on implementing acts, which are set out in Article 291, do not provide any role for the European Parliament and the Council to control the Commission's exercise of implementing powers. Such control can only be exercised by the Member States. A legal framework is required to establish the mechanisms of such control.
By providing for these two very different legal frameworks, the authors of the new Treaty sought to reflect more closely the nature of these two different types of acts:
- In the case of delegated acts, the legislator delegates to the Commission the power to adopt measures that it could have adopted itself. This is why it is the legislator that controls the Commission's exercise of these delegated powers.
- In the case of implementing acts, the context is very different. The Member States are naturally responsible for implementing the legally binding acts of the European Union. However, where such basic acts require uniform implementing conditions, it is the Commission that must exercise implementing powers. This is why it is the Member States that are responsible for controlling the Commission's exercise of these implementing powers.
The provisions of the new Treaty also put the co-legislators on an equal footing in relation to the conferral of delegated and implementing powers.
Under the EC Treaty it was the Council that could confer implementing powers on the Commission. The Council could also reserve implementing powers to itself in specific cases.
Under the new Treaty provisions it is a direct obligation deriving from the Treaty that acts must confer implementing powers on the Commission where this is needed in view of ensuring uniform implementation of these acts. Those acts can also, in duly justified specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on European Union, confer implementing powers on the Council instead of the Commission. This does not imply, however, that the Council has any role in controlling the exercise of implementing powers when these are conferred on the Commission.
The new Treaty clearly entails that it is the Member States, and they alone, that control the implementation by the Commission where such control is required by a legally binding Union act.
As regards the implementation of Article 290 of the Treaty, the Commission has set out its views on the scope of delegated acts, the framework for delegations of power and the working methods it intends to use for preparing delegated acts in a Communication to the European Parliament and the Council (COM(2009) 673 of 9 December 2009).
Contents
Article 291 of the Treaty provides that the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers. The purpose of this proposal is to implement Article 291 of the Treaty.
This proposal is guided first and foremost by the new provisions of the Treaty and the new institutional context described under point 1 above. However, the proposal also draws on Council Decision 1999/468/EC (hereafter 'the Comitology Decision') and experience gained in implementing that Decision, whilst simplifying its provisions taking into account in particular the following general principles:
- It is the Member States that are responsible for controlling the Commission's exercise of implementing powers;
- Procedural requirements should be proportionate to the nature of implementing acts.
2.2. Main elements of the proposal including similarities and innovations in relation to the Comitology Decision
The key elements of the proposal are as follows:
- The proposal maintains the Committee structure foreseen in the Comitology Decision (Article 3), but rationalises it as outlined below;
- Only two procedures are foreseen: the advisory procedure, which mirrors the existing advisory procedure, and a new 'examination' procedure, which would replace the existing management and regulatory procedures (Articles 4 and 5);
- The advisory procedure is the general rule and can be applied to all policy domains and for all types of binding implementing measures (Article 2(3));
- The criteria for the choice of the examination procedure mirror those provided for in the Comitology Decision. Nevertheless for the purpose of achieving greater consistency and in order to ensure that procedural requirements are proportionate to the nature of implementing acts to be adopted, these criteria are binding in the sense that only when the criteria are met can the examination procedure in question be used (Article 2(2)) ;
- The examination procedure (Article 5) would function as follows:
- Where the Committee delivers a negative opinion on the draft measures, the Commission could not adopt them. The Commission would have the possibility to re-submit the draft to the committee for a second deliberation, or table an amended draft. In very exceptional circumstances, the Commission would be able to adopt the draft measures despite a negative opinion but in such a case the committee would have the last word within a time-period which will not exceed one month;
- Where no opinion is reached, the Commission could ultimately decide whether to adopt the measures or not, taking into account inter alia the positions expressed within the committee;
- In the case of a positive opinion of the committee, the Commission would adopt the measures unless exceptional circumstances or new elements would justify them not being adopted.
Under the examination procedure, the Committee itself would therefore be able to prevent the adoption of the draft measures by the Commission if a qualified majority of Member States were against. The voting rules for this procedure would reflect the voting rules that were required for the Council, acting as an appeal body, to prevent the adoption of a draft measures by the Commission under the Comitology Decision. It would also be coherent that the voting rules of the committees acting under the examination procedure would be similar than the voting rules foreseen for the Council to oppose a delegated act under Article 290 of the Treaty.
However, another innovation is that there would not be an obligation for the Commission to adopt draft measures in cases where neither a qualified majority in favour nor a qualified majority against is reached i. Indeed, greater flexibility is needed in such cases in order to enable the Commission to reconsider draft measures. The Commission should be in a position to decide whether or not to adopt the draft measures or to present an amended draft to the committee, taking account inter alia of positions expressed within the committee. Introducing such flexibility would, on the one hand, enable the positions of Member States to be better taken into account and on the other hand, it would help to improve the quality and adequacy of the decisions taken.
- Specific procedures are foreseen for measures to apply immediately on imperative grounds of urgency and where this is provided for in a basic act (Article 6). This provision would enable the relevant committee to examine and deliver an opinion on a measure after it has been adopted by the Commission. Where the measure is not in accordance with the opinion of the committee under the examination procedure, the Commission would be obliged to repeal the measure but could maintain it in force if warranted on a limited number of grounds such as health and safety.
- The proposal maintains provisions relating to the rules of procedures of committees (Article 7) and regarding public access to information on committee proceedings (Article 8(3)).
- Building on experience gained with the implementation of the Comitology Decision, the proposal also includes a number of important provisions that are common practice but were so far not covered by the Decision or were only foreseen in the Rules of Procedure of committees. These include the provisions for the use of written procedures (Article 3(5)) in order to obtain the committee's opinion and the possibility for draft measures to be amended in order to take into account discussions in the committee prior to it delivering its formal opinion (Article 3(4)).
- Whilst only the Member States have a role to play in the control of the exercise of the implementing powers by the Commission, both legislators should be properly and continuously informed of committee proceedings through the continued use of the existing Comitology Register, which would be adapted to the new procedures (Article 8 i and (2)). This right of information would not suspend the decision-making process, since that would give the legislators a prerogative incompatible with Article 291 of the Treaty.
- Finally, for reasons of clarity, consistency and efficiency, the proposal foresees an automatic alignment of the existing acquis to the new procedures (Article 10). All references to the procedures provided for in the Comitology Decision, with the exception of Article 5a thereof, would be understood as being references to the corresponding procedures of the Regulation: this approach would have the advantage of avoiding having a complex set up with the old Comitology procedures and the new ones running in parallel; at the same time it would avoid having to align the existing acquis act by act or through omnibus regulations. In order to make ready the register, which will have to accomplish technically the automatic alignment of all existing procedures, Article 10 will apply two months after the entry into force of the Regulation.
- Such an adaptation to the new system would not affect pending procedures in which an opinion has already been delivered, at a committee meeting or by written procedure (Article 11). This does not mean that ongoing procedures in which no opinion has been delivered should stop and restart from scratch; they should continue: meetings should take place and written procedures should carry on. Indeed the consequences of such an alignment relate in essence to the procedure to be followed after an opinion is taken by the committee.
- Article 10 and 11 do not apply to the specific procedures that are not subject to the Council Decision 1999/468/EC, in particular those created for the implementation of the common commercial policy. Consequently, those specific procedures will continue to apply until the basic acts will have been adapted in the light of the system of implementing powers created by Article 291 of the Treaty and the rules and general principles for the exercise of the Commission's implementing powers as set out in this proposal.