The comitology reform of 2006: Increasing the powers of the European Parliament without changing the treaties

European Constitutional Law Review

Volumn 3, Issue 1, 2007, Pages 68-90

  Schusterschitz, Gregor ^a   Kotz, Sabine ^a  

^a Austrian Ministry for Foreign Affairs   (Austria)

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EID: 34247527917     PISSN: 15740196     EISSN: 17445515     Source Type: Journal    
DOI: 10.1017/S1574019607000685     Document Type: Article

References (84)

1. Council Decision 2006/512/EC of 17 July 2006 amending Decision 1999/468/ EC laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ [2006] 200/11, 22.7.2006. A consolidated version of the entire Comitology Decision 1999 as amended in 2006 was published in OJ [2006] C 255/4, 21.10.2006.
2. Hummer for example hinted to the fact, that no comprehensive monography on comitology had hitherto been published: W. Hummer, 'Die "Komitologie" - das "unbekannte Wesen" - Reform und zukünftige Entwicklung der "delegierten Rechtsetzung" dutch die Europäische Kommission', in Köck et al., Europarecht im Zeitalter der Globalisierung, Festschrift für Peter Fischer (2004) p. 123.
3. See the speech of the Austrian Chancellor Wolfgang Schüissel at the press conference after the European Council in Brussels in June 2006. Comitology seems to invite people to describe it in picturesque ways. E.g., the former chairman of the EP constitutional committee, B. De Giovanni said in 1999: 'La comitatologia è un inferno', cited in H. Tichy, 'Der neue Komitologiebeschluss', Zeitschrift für Rechtsvergleichung (2000) p. 134.
4. /373/EEC: Council Decision of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ [1987] L 197/33, 18.7.1987.
5. 9/468/EC: Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ [1999] L 184/23, 17.7.1999.
6. See Report from the Commission on the working of committees during 2005, COM(2006) 446 final, 9.8.2006.
7. See P. Craig and G. de Búrca, EU Law, 3rd edn. (2003) p. 150.
8. OJ [1962] 30/933, 20.4.1962.
9. For details see Hummer, supra n. 2, p. 124.
10. Craig and de Búrca, supra n. 7, p. 150.
11. Supra n. 4.
12. Case C-302/87, European Parliament v. Council, [1988] ECR p. 5615.
13. For a description of the longlasting conflict see: W. Hummer, 'Die Beteiligung des Europäischen Parlaments an der "Komitologie"', in Festschrift Seidl-Hohenveldern (1998).
14. Compare also K. St Clair Bradley, 'The European Parliament and comitology: On the road to nowhere', European Law Journal (1997) p. 230-254.
15. See D. Kietz and A. Maurer, The European Parliament in Treaty Reform, Working Paper FG 1, 2006/02, Jan. 2006, Stiftung Wissenschaft und Politik Berlin, available at , visited on 09/08/2006, p. 11.
16. Ibid., p. 12.
17. Modus vivendi of 20 Dec. 1994 between the European Parliament, the Council and the Commission concerning the implementing measures for acts adopted in accordance with the procedure laid down in Art. 189b of the EC Treaty, OJ [1996] C 102/1, 4.4.1996.
18. Resolution on the draft general budget of the European Communities for the financial year 1997 - Section III - Commission, OJ [1996] C 347/125, 18.11.1996, see general remark no. 72.
19. See 'Intergovernmental Conference, Briefing No. 21 on Comitology', first update: 17th March 1997, available at , visited on 10/08/2006.
20. See Kietz and Maurer, supra n. 14, p. 14.
21. 1999/468/EC, supra n. 5.
22. See European Parliament resolution on the agreement between the European Parliament and the Commission on procedures for implementing Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ [2000] C 339/269, 29.11.2000.
23. See Kietz and Maurer, supra n. 14, p. 15.
24. If in the regulatory procedure the committee does not agree with the measures proposed, the Commission must submit to the Council a proposal relating to the measures to be taken, which may be vetoed by the Council by qualified majority (Art. 5).
25. Proposal for a Council Decision amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, COM(2002) 719 final.
26. Amended proposal for a Council Decision amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission (presented by the Commission in accordance with Art. 250(2) of the EC Treaty), COM(2004) 324 final.
27. OJ [2004] C 310/1, 16.12.2004.
28. See Kietz and Maurer, supra n. 14, p. 16.
29. COM (1999) 232 of 11 May 1999.
30. For the following compare K. Schmolke, 'Die Einbeziehung des Komitologieverfahrens in den Lamfalussy-Prozess - Zur Forderung des Europäischen Parlaments nach mehr Entscheidungsteilhabe', Europarecht (2006) p. 432-448.
31. Directives No. 2003/6/EC on market abuse, No. 2004/39/EC on markets in financial instruments, No. 2003/71/EC on the prospectus, and No. 2004/ 109/EC on the harmonisation of transparency requirements
32. See, e.g., Art. 24(4) of Directive 2003/71/EC on the prospectus.
33. See supra n. 1, Art. 5a (3).
34. Ibid., Art. 5a (4).
35. Directive 2006/49/EC of 14 June 2006, OJ [2006] L 177/201, 30.6.2006.
36. Directive 2006/43/EC of 17 May 2006, OJ [2006] L 157/87, 9.6.2006.
37. The opinion of the Council Legal Service is not a public document.
38. See Case C-25/70 Köter [1970] ECR p. 1161.
39. See, e.g., the explicit possibility for the Council to retain the power of adopting implementing measures in Art. 202 EC Treaty.
40. See Arts. 7, 189 and 192 EC Treaty.
41. See Case C-378/00, Morello v. Commission [2003] ECR, p. 1-00937.
42. Compare Art. 8 of the Comitology Decision 1999, supra n. 5.
43. As proposed initially by the Commission, see Art. 5a(4) of the Commission proposal, supra n. 24.
44. Judgment of the Court (Grand Chamber) of 12 July 2005. - The Queen, on the application of: Alliance for Natural Health and Nutri-Link Ltd v Secretary of State for Health (C-154/04) and The Queen, on the application of: National Association of Health Stores and Health Food Manufacturers Ltd v Secretary of State for Health and National Assembly for Wales (C-1 55/04).
45. The only exception was the adjustment of the definition of qualified majority by adding the reference to Art. 205 (4) EC Treaty, which was added with the enlargement of the European Union of 2004.
46. It was referred to a 'maximalist group' and a 'minimalist group', see M. van der Plas, 'Rol Europees Parlement fors roegenomen door aanpassing Comitologie-besluit' [Role of the European Parliament significantly enhanced by the revision of the Comitology decision] in Sociaal Economische Wetgeving (2007) p. 410.
47. Art. I-36 (1) CT: 'European laws and framework laws may delegate to the Commission the power to adopt delegated European regulations to supplement or amend certain non-essential elements of the law or framework law.'
48. See ruling of the ECJ in the Köster case, supra n. 37.
49. In accordance with Regulation (EC) No. 1829/2003 on genetically modifies food and feed, OJ [2003] L 268/1, 18.10.2003.
50. In contrast to the definitions contained in Art. 2 Comitology decision 1999, supra n. 5.
51. In 2005 less than 0,5% of the proposed measures did not obtain a positive vote, see report of the Commission on the workings of committees in 2005, supra n. 6, p. 6. In 2005, Council received 11 measures.
52. Art. 5(6) Comitology Decision 1999.
53. Representing the Council vis-à-vis Parliament in accordance with Art. 26 of the Rules of Procedure of the Council, OJ [2004] L 106/22, 15.4.2004.
54. The negotiations within the Council were held in English and French (without translation) on the basis of text proposals drafted in French. The negotiations between Council and Parliament were conducted in French.
55. Art. 2(2) of the Comitology decision as amended by Decision 2006/512/EC, supra n. 1.
56. Cf. Art. 8 of Comitology decision 1999.
57. Some member states wanted to restrict the scope of the right of scrutiny to Art. 8 Comitology Decision 1999. This would have been already a progress compared to the current situation, because an objection in accordance with Art. 8 would not hinder the Commission from nevertheless adopting the measure. The member states preferring a restrictive scope also accepted a blocking right of Parliament. The restricted impact of a motion by Parliament in accordance with Art. 8 explains the reluctance of Parliament to use that possibility. In 2005, only two measures out of 2637 adopted by regulatory committees were challenged, cf. Report of the Commission of the working of committees in 2005, supra n. 6, p. 4.
58. During the negotiations the following example was used to illustrate the scope of the compatibility check: If the Commission proposes a certain threshold limiting the possibility of adding certain substances to food because of health reasons, either legislator could object to the measure because he thinks that the threshold should be lower in order to fulfil the aim of the basic act, i.e., the protection of health.
59. Protocol No. 30 to the EC Treaty (added by the Treaty of Amsterdam 1997).
60. It remains to be seen, to which extent any of the legislators will camouflage political agendas by legal arguments. It has to be emphasized, however, that the formulation agreed upon renders it possible to challenge an objection at the European Court of Justice.
61. See supra, p. 78
62. A shorter time period for the Council was rejected by member states, they insisted on equal time periods for both bodies.
63. Art. 250(1) EC Treaty, which is applicable to comitology measures (arg: 'proposal').
64. Improved Art. 7(3) of the Comitology decision and Declaration A of the Commission on Art. 7(3), published in OJ [2006] C 171/21, 22-7.2006.
65. See press release of MEPs Radwan and Nassauer on 5 May 2006: 'Comitology should not diminish the rights of the European Parliament', .
66. Declarations to Decision 1999/458/EC of the Council, OJ [1999] C 203/1, 28.6.1999.
67. OJ [2006] C 255/1, 21.10.2006.
68. For example, by integrating the new procedure to Art. 5 Comitology decision 1999. Then the Commission would have had to decide in each individual case, if it proposes a measure in accordance with the regulatory procedure or with the regulatory procedure with scrutiny.
69. The four Lamfalussy directives and legal acts containing sunset clauses.
70. Para. 2 of the Declarations 1999, supra n. 65.
71. In addition to the Lamfalussy directives and acts with sunset clauses especially acts of the environmental area. It flows from the binding character of the definition that only those provisions of basic acts are revised which foresee the adoption of quasi-legislative measures. In relation to the GMO regulation for instance, only the provisions dealing with the enactments of rules on information or on requests for authorizations (Art. 14 and 17 of Regulation (EC) 1829/2003), but not the provisions on the power of the Commission to issue an individual authorization (Art. 7) will be amended. The Commission adopted drafts aimed at adapting the acts in the list on 22 Dec. 2006 (Doc. COM(2006) 900 final - Doc. COM(2006) 926 final).
72. Reference was also made to the communication of the Commission on the simplification of environmental legislation, Doc. COM(2005) 535 final of 25 Oct. 2005, where the Commission acknowledged that sunset clauses could be a means of achieving better regulation (p. 7).
73. This seemed to be a very dramatic exclamation. Any political commitment is aimed at restricting options of the person emitting such a statement, otherwise it would be useless.
74. Though the Commission recognized a possible role of sunset clauses in environmental legislation, it voiced a clear preference for revision clauses over sunset clauses, in particular for reasons of legal certainty, see report of the Commission, supra n. 71.
75. On the changes between the 1987 Comitology Decision and the 1999 Decision see Tichy, supra n. 3, p. 138-139.
76. Para. 3 of the Declarations 1999, supra n. 65
77. see also Tichy, supra n. 3, p. 139.
78. Declaration B, supra n. 63.
79. Legislative Resolution P6_TA-PROV(2006)0310 of 6 July 2006.
80. Supra n. 1.
81. See also T. Christiansen and B. Vaccari, 'The 2006 Reform of Comitology: Problem solved or dispute postponed?', in: EIPASCOPE Vol. 2006, No. 3, p. 7.
82. Supra n. 13.
83. It could be expected that Parliament, had the reform failed, would have rejected any comitology provisions and insisted on the adoption of implementing rules in accordance with Art. 251 EC Treaty.
84. MEP Richard Corbett has already tabled a proposal for amending Art. 81 of Parliament's Rules of Procedure, see Doc. A6-0415/2006.