Towards a legal framework for executive rule-making in the EU? The contribution of the new comitology decision

Common Market Law Review

Volumn 37, Issue 3, 2000, Pages 645-686

  Lenaerts, Koen ^a   Verhoeven, Amaryllis ^a  

^a UNIVERSITY OF LEUVEN   (Belgium)

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EID: 85102793164     PISSN: 01650750     EISSN: 18758320     Source Type: Journal    
DOI: 10.1023/A:1005698928714     Document Type: Article

References (157)

1. 1. Council Decision 99/468/EC, O.J. 1999, L 184/23; corrigendum in O.J. 1999, L 269/45. Three declarations made on this decision in the Council minutes are set out in O.J. 1999, C 203/1.
2. 2. For a survey, see e.g. Blumann, “Le Parlement europe´en et la comitologie: une complication pour la confe´rence intergouvernementale de 1996”, (1996) RTDE, 1–24; Bradley, “Comitology and the Law: Through a Glass, Darkly”, (1992) CML Rev., 693–721; Bradley, “The European Parliament and Comitology: On the Road to Nowhere?”, (1997) ELJ, 230–254; Buitendijk and Van Schendelen, “Brussels Advisory Committees: A Channel for Influence?”, (1995) ELR, 37–56; Demmke, “The Secret Life of Comitology or the Role of Public Officials in EC Environmental Policy”, (1999) EIPA Scope, 14–23; Falke and Winter, “Management and Regulatory Committees in Executive Rule-making”, in Winter (Ed.), Sources and Categories of European Law: A Comparative and Reform Perspective (Baden-Baden, Nomos, 1996), pp. 541–582; Haibach, “Comitology: A Comparative Analysis of the Separation and Delegation of Legislative Powers”, (1997) Maastricht Journal of European and Comparative Law, 373–385; Hofmann and To¨ller, “Zur Reform der Komitologie – Regeln und Grundsa¨tze fu¨r die Verwal-tungskooperation im Ausschusssystem der Europa¨ischen Gemeinschaft”, (1998) Staatswis-senschaft und Staatspraxis, 209–239; Joerges and Neyer, “From Intergovernmental Bargaining to Deliberative Political Processes: The Constitutionalisation of Comitology”, (1997) ELJ, 273–299; Kortenberg, “Comitologie: le retour”, (1998) RTDE, 317–327; Lenaerts, “Some Reflections on the Separation of Powers in the European Community”, (1991) CML Rev., 11–35; Lenaerts “Regulating the Regulatory Process: ‘Delegation of Powers’ in the European Community”, (1993) ELR, 23–49; Nuttens “La comitologie et la confe´rence intergouverne-mentale”, (1996) RMC, 314–327; Pedler and Schaefer (eds.), Shaping European Law and Policy. The Role of Committees and Comitology in the Political Process (Maastricht, EIPA, 1996), 204 pp.; Vos “The Rise of Committees”, (1997) ELJ, 210–229.
3. 3. Case 25/70, Ko¨ster, [1970] ECR 1161, para 9.
4. 4. Council Decision 87/373, O.J. 1987, L 197/33. For a discussion of the introduction of (former) Art. 145, third indent, of the EEC Treaty and the 1987 Comitology Decision, see Blumann “Le pouvoir exe´cutif de la Commission a’ la lumie‘re de l’Acte unique europe´en”, (1988) RTDE, 23–59; Ehlermann, “Compe´tences d’exe´cution confere´es a’ la Commission– La nouvelle de´cision-cadre du Conseil”, (1988) RMC, 232–239.
5. 5. The European Parliament can bring an action in the Court of Justice to challenge an act adopted by the Commission which exceeds the limits of its implementing powers or otherwise conflicts with a legislative act, at least if, by so acting, the Commission infringes the European Parliament’s prerogatives. See e.g. Case C-156/93, European Parliament v. Commission, [1995] ECR I-2019, paras. 12 and 13.
6. 6. Blumann, op. cit. supra note 2, at 3 et seq.
7. 7. This is chiefly so where the legislative decision-making procedure does not give the European Parliament the right of co-decision and that institution therefore cannot prevent the Council from adopting vague provisions. For further particulars, see Lenaerts (1993), op. cit. supra note 2, at 35; Bradley (1997), op. cit. supra note 2, at 243 et seq.. Studies have indicated, however, that comitology committees are set up primarily in policy areas where the European Parliament has a relatively large influence at the legislative level. Thus, during the 1987–1995 period, 49.6% of legislative acts adopted by the cooperation or co-decision procedure set up comitology committees as compared with only 16.7% of legislative acts adopted under the consultation procedure (Dogan, “Comitology: Little Procedures with Big Implications”, (1997) West European Politics, 31–61).
8. 8. Lenaerts, “Federalism: Essential Concepts in Evolution – The Case of the European Union”, (1998) Fordham International Law Journal, 746–798.
9. 9. See, inter alia, the Resolution of the European Parliament of 16 Dec. 1993 on questions of comitology relating to the entry into force of the Treaty on European Union, O.J. 1994, C 20/176.
10. 10. O.J. 1994, C 261/13. The common position provided that, in the case of a number of important implementing measures, the Commission was to be assisted by a regulatory committee, whilst the Parliament considered that it should be supported by a purely advisory committee consisting of representatives of interest groups concerned. For more details, see Bradley (1997), op. cit. supra note 2, at 239.
11. 11. 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 EC, O.J. 1994, C 102/1; for a discussion of the content of the modus vivendi, see Blumann, op. cit. supra note 2, at 14–16. The modus vivendi is a further development of the so-called Plumb/Delors agreement of 1988, in which the Commission undertook vis-a‘-vis the European Parliament to provide the latter with proposals for certain acts at the same time as the proposals were to be submitted to the competent comitology committees. For further particulars, see Demmke et al., “The History of Comitology”, in Pedler and Schaefer (Eds.) op. cit. supra note 2, p. 61, at 72.
12. 12. See the Report of 5 Dec. 1995 of the Reflection Group for the Intergovernmental Conference, chaired by Westendorp, in Winter et al. (Eds.), Reforming the Treaty on European Union – The Legal Debate (The Hague, Kluwer, 1996), 418–510, paras. 127 and 128.
13. 13. Resolutions of 17 May 1995 (O.J. 1995, C 151/56), 13 March 1996 (O.J. 1996, C 96/77), 16 Jan. 1997 (O.J. 1997, C 33/66), 13 March 1997 (O.J. 1997, C 115/165) and 11 June 1997 (O.J. 1997, C 200/70).
14. 14. For a survey of the positions on comitology expressed at the 1996 Intergovernmental Conference, see European Parliament Briefing No 21 (http://www.europarl.eu.int/dg7/fiches/en/fiche21.ht m).
15. 15. This is not, however, an anomaly in the context of the present European legal order given the quasi-constitutional nature of the comitology question. Even where the Treaties themselves are amended, the European Parliament has only a small say (cf. Art. 48 TEU).
16. 16. O.J. 1998, C 279/5. In submitting this proposal, the Commission complied promptly with the request set out in Declaration No 31 appended to the Final Act of the International Conference which adopted the Amsterdam Treaty to the effect that a proposal should be made to amend the Comitology Decision by the end of 1998 at the latest. By so doing, the Commission granted the European Parliament’s wish that it should receive a proposal six months earlier than the deadline set in the Declaration (see the Resolution of the European Parliament on the Treaty of Amsterdam, Europe Documents No 2060, 3 Dec. 1997, p. 4).
17. 17. Resolution of the European Parliament of 16 Sept. 1998 on the modification of the procedures for the exercise of implementing powers conferred on the Commission, O.J. 1998, C 313/101.
18. 18. Legislative resolution embodying Parliament’s opinion on the proposal for a Council Decision laying down the procedures for the exercise of implementing powers conferred on the Commission (COM(98)0380–C4-0501/98–C8/0219(CNS)) (O.J. 1999, C 279/404).
19. 19. The doctrine of separation of powers, albeit a fundamental aspect of our democratic tradition, is far from unambiguous. The confusion begins with the terminology. It would be better to speak of “balance” or even “cooperation” between the different powers. Moreover, Montesquieu, the author to whom the modern doctrine of trias politica is usually ascribed, never used the expression “separation of powers”. What Montesquieu was concerned with was a distribution of State powers among separate authorities, each of which checked and maintained in balance the others so as to avoid arbitrariness and secure citizens’ individual liberty. He reasoned thus, “pour qu’on ne puisse abuser le pouvoir, il faut que … le pouvoir arreˆte le pouvoir” (Montesquieu, De l’esprit des lois, Paris, 1950–1961, Part II, at 61). Although Montesquieu was the direct inspiration for the American idea of checks and balances, his influence on traditional constitutional thinking in Europe has remained rather limited owing to the preponderant position of the legislature in thought inspired by Rousseau. See e.g. Alen, “Scheiding of samenwerking der machten?”, Academiae Analecta (Mededelingen van de Koninklijke Academie voor Wetenschappen, Letteren en Kunsten van Belgie¨) (1990), No 1, 73 pp.
20. 20. Joined Cases 188/80 to 190/80, France, Italy and UK v. Commission, [1982] ECR 2545.
21. 21. Alongside the European Commission, which had an exclusive right of initiative from the onset.
22. 22. The introduction of a hierarchy of norms was on the agenda of the last two Intergovernmental Conferences, yet each time the question remained unresolved. See e.g. Gaudin, “Amsterdam: l’e´chec de la hie´rarchie des normes?”, (1999) RTDE, 1–20.
23. 23. Cf. Art. 207(3) EC (legislation); Art. 202, third indent, and Art. 211, fourth indent (implementation).
24. 24. Lenaerts (1991), op. cit. supra note 2, at 13.
25. 25. Ko¨ster, cited supra note 3, para 6; see also Case 46/86, Romkes v. Officier van Justitie, [1987] ECR 2671, para 16; Case C-417/93, European Parliament v. Council, [1995] ECR I-1185; Case C-156/93, supra note 5.
26. 26. Implementation by other institutions is subject to the strict criteria laid down in the Meroni test; see notes 53 to 56, infra, and accompanying text.
27. 27. Case 23/75, Rey Soda, [1975] ECR 1279, paras. 10 and 11. In this case, the Commission had laid down a system of charges on sugar stocks pursuant to the basic regulation in the sugar sector in order to offset price fluctuations from one marketing year to the next. See also Joined Cases 133/85 to 136/85, Rau v. BALM, [1987] ECR 2289, para 31, and Case 22/88, Vreugdenhil and Others, [1989] ECR 2049, para 16.
28. 28. Case 291/86, Central-Import Mu¨nster v. Hauptzollamt Mu¨nster, [1988] ECR 3679; Vreugdenhil, cited supra, para 17.
29. 29. Case 61/86, UK v. Commission, [1988] ECR 431.
30. 30. Case 16/88, Commission v. Council, [1989] ECR 3457, para 11.
31. 31. Case C-240/90, Germany v. Commission, [1992] ECR I-5383.
32. 32. See e.g. Case 38/70, Tradex, [1971] ECR 145; Case C-303/94, European Parliament v. Council, [1996] ECR 2943, para 23.
33. 33. Vreugdenhil, cited supra note 27.
34. 34. Case 100/74, C.A.M. v. Commission, [1975] ECR 1393, para 28; Opinion of A.G. Slynn in Case 278/84, Germany v. Commission, [1987] ECR 1. See also Vreugdenhil cited supra note 27 and Case C-159/96, Portugal v. Commission, [1998] ECR I-7379, paras. 40–42.
35. 35. Case 230/78, Eridania, [1979] ECR 2749, para 8; Romkes, cited supra note 25; see also the Opinion of A.G. Mancini in Case 121/83, Zuckerfabrik Franken v. Hauptzollamt Wu¨rzburg, [1984] ECR 2039. For the opposite view, see Kalbheim and Winter, “Delegation requirements for rule-making by the Commission”, in Winter (Ed.) op. cit. supra note 2, at pp. 595–598.
36. 36. Ko¨ster, cited supra note 3, para 9: “Article 155 provides that the Commission shall exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter. This provision, the use of which is optional, enables the Council to determine any detailed rules to which the Commission is subject in exercising the powers conferred on it ”. For a defence of this “classical” view of comitology, see Schindler, “The problems of decision-making by way of the management committee procedure in the European Economic Community”, (1971) CML Rev., 184–205.
37. 37. Bradley (1992), op. cit. supra note 2, at 713; Blumann (1988), op. cit. supra note 4, at 29–34.
38. 38. See to the same effect, Winter, “Reforming the Sources and Categories of European Law: a Summary”, in id. (Ed.) op. cit. supra note 2, at p. 46.
39. 39. The ECJ confirmed that the Commission had in principle the power to implement in Case 16/88, Commission v. Council, supra note 30, para 10.
40. 40. Kortenberg, op. cit. supra note 2, at 319 et seq. Kortenberg is a pseudonym of an EC official.
41. 41. For further details, see Lenaerts and Van Nuffel, Bray (ed.), Constitutional Law of the European Union (London, Sweet & Maxwell, 1999), p. 419, para 10–011.
42. 42. Curtin and Mortelmans, “Application and Enforcement of Community Law by the Member States: Actors in Search of a Third Generation Script”, in Curtin and Heukels (Eds.), Institutional Dynamics of European Integration. Essays in Honour of Henry G. Schermers (Dordrecht, Martinus Nijhoff, 1994), Vol. II, pp. 423 and 427 et seq.
43. 43. In contrast, Kortenberg locates both executive rule-making and actual application and enforcement of rules, as a matter of principle, at the level of the Member States themselves (Kortenberg, op. cit. supra note 2, esp. note 13 at 320).
44. 44. Cf. Art. 211, first indent, EC.
45. 45. Lenaerts (1991), op. cit. supra note 2, at 15; cf. Frowein, “Integration and the federal experience in Germany and Switzerland”, in Cappeletti, Seccombe and Weiler (Eds.), Integration through Law (Berlin, De Gruyter, 1986), Vol. 1, Book 1, pp. 573, 586–587.
46. 46. See note 139, infra, and accompanying text.
47. 47. The Protocol on the application of the principles of subsidiarity and proportionality, annexed by the Amsterdam Treaty to the EC Treaty, defines subsidiarity as a “dynamic concept” which “allows Community action within the limits of its powers to be expanded where circumstances so require, and conversely, to be restricted or discontinued where it is no longer justified”.
48. 48. Lenaerts, “De Europese Unie: doel of middel?”, (1998–1999) RW, 689–710, para 28.
49. 49. Case C-259/95, European Parliament v. Council, [1997] ECR I-5303, para 26. The same reasoning holds good, inter alia, for Arts. 44, 46 and 95 EC. This does not preclude the possibility of clarifying those provisions, de lege ferenda, by amending the wording of Art. 202, third indent, for instance by replacing the term “Council” by “the Council and, where appropriate, the European Parliament”, or, more plainly still, by “the Community legislature”. However, there is an ancillary difficulty in that Art. 202, third indent, EC empowers the Council (acting unanimously) to lay down the principles and rules under which the Commission is to carry out its implementing tasks and no right of co-decision is conferred on the European Parliament (which plays only an advisory role). This could be construed as an additional argument in support of Kortenberg’s view. However, the matter in question is (quasi-)constitutional in nature and the European Parliament has no competence in respect of such matters elsewhere either.
50. 50. The European Parliament itself initially used this same argument based on the literal meaning of the third indent of Art. 202 EC in order to argue that the comitology arrangements could not apply to acts of the Council and the European Parliament jointly adopted under the co-decision procedure (see the Resolution on questions of comitology cited supra note 9, at p. 176), but it subsequently dropped this line of argument.
51. 51. In contrast, the Member States derive a general legal basis for implementing Community rules from Art. 10 EC. That power is coupled with a correlative duty. That difference in terms of legal basis between implementing action on the part of the Commission (specific authorization needed from the Community legislature) and on the part of the Member States (general legal basis enshrined in the Treaty) bears out the allocation of tasks described above (policy-conducting action on the part of the Commission; implementation by the Member States). In national legal systems, too, the executive often has a general competence (and, at the same time, also an obligation) to implement laws, whereas in the case of the adoption of measures which transcend the limits of mere implementation (and embody policy choices), a specific legal basis provided by the legislation is required (cf. Arts. 105 and 108 of the Belgian Constitution).
52. 52. See notes 60 and 61, infra, and accompanying text.
53. 53. Case 9/56, Meroni v. High Authority, [1957 and 1958] ECR 133, at 152; see also Case 98/80, Romano, [1981] ECR 1241, para 20 (holding that an administrative commission set up by the Council was not empowered to take legislative decisions in the light of the implementing power conferred on the Commission by Art. 211 (ex 155) EC).
54. 54. The importance of “institutional balance” is based on the fact that the distribution of powers under treaty law reflects a delicate equilibrium between various interests represented in the Union. For further details, see Lenaerts and Van Nuffel, op. cit. supra note 41, p. 414 et seq., paras. 10-004–10-007.
55. 55. For a list of such agencies and bodies, see Chiti, “The emergence of a Community administration: The case of European agencies”, 37 CML Rev., 309–343; also Lenaerts and Van Nuffel, op. cit. supra note 41, p. 352, para. 7-095.
56. 56. Exceptions provided for in the Treaties are the European Central Bank and the European Investment Bank, which may exercise policy-making powers independent of any political control. A number of commentators advocate introducing universal rules for independent agencies at European level. See e.g. Majone, “The agency model: the growth of regulation and regulatory institutions in the European Union”, (1997/3) EIPAscope, 9 et seq.; Everson, “Independent agencies”, in Winter (Ed.) op. cit. supra note 2, p. 601 et seq. See also the editorial “Executive agencies within the EC: the European Central Bank – a model?”, (1996) CML Rev., 623–631. A good analysis of the democratic pros and cons of a system of (regulatory) agencies in comparison with the present comitology system may be found in Craig, “The Nature of the Community: Integration, Democracy and Legitimacy”, in Craig and de Bu´rca (Eds.), The Evolution of EU Law (OUP, 1999), pp. 42–50.
57. 57. See e.g. Kortenberg, op. cit. supra note 2, at 320.
58. 58. For this reason, some commentators cast doubt on the legality of the 1987 Comitology Decision having regard to the third indent of Art. 145 (now Art. 202) EC: Bradley (1992), op. cit. supra note 2.
59. 59. We are conscious that this interpretation of the term “requirements” goes further than the drafters of Art. 202, third indent, EC originally intended. Nevertheless, we consider it justified having regard to the wording of this provision and the democratic principle on which the European legal order is based (cf. Art. 6 TEU and Case 138/79, S.A. Roquette Fre‘res v. Council, (isoglucose) [1980] ECR 3333, at 3360).
60. 60. Which may take many forms, including the right to form and dismiss governments, the right to put questions etc.
61. 61. As against this, there is the government’s right to dissolve parliament before the end of its term.
62. 62. See e.g. Hix, “Executive Selection in the European Union: Does the Commission President Investiture Procedure reduce the Democratic Deficit?”, (1997) European Integration Online Papers, No 21 (http://www.eiop.or.at/eiop/texte/1997-021.htm).
63. 63. Art. 213(2) EC. On the other hand, this means that the European Parliament can act more independently (and therefore more rigorously) vis-a‘-vis the Commission.
64. 64. The Commission also exercises supervision over compliance with Community law by other institutions, Member States and persons (Art. 211 EC).
65. 65. The emphasis here falls on “exclusively” (see also notes 77 to 96, infra, and accompanying text). Of course, our analysis does not detract from the considerations set out by the European Court of Human Rights in its judgment of 18 Feb. 1999 Matthews v. U.K. (Case No. 24833/94), where it is stated – with a view to the application of Art. 3 of Protocol No 1 to the ECHR – that “the European Parliament represents the principal form of democratic, political accountability in the Community system. [W]hatever its limitations, the European Parliament, which derives democratic legitimation from the direct elections by universal suffrage, must be seen as that part of the European Community structure which best reflects concerns as to ‘effective political democracy”’ (para 52). It was primarily on that ground that the UK – together with all the other EU Member States – was held to have violated Protocol No 1 in the Act of 20 Sept. 1976 on the direct election of Members of the European Parliament, by excluding Gibraltar from its scope. “[T]he European Parliament is sufficiently involved in the specific legislative processes leading to the passage of legislation under Arts. 189b [now 251 – co-decision] and 189c [now 252 – cooperation] of the EC Treaty, and is sufficiently involved in the general democratic supervision of the activities of the European Community, to constitute part of the ‘legislature’ of Gibraltar for the purposes of Art. 3 of Protocol No 1” (para 54).
66. 66. For a good discussion of two views of the European legal order (both supported to some extent by the Treaties), namely the parliamentary view that the Commission acts as a European “government” and the regulatory view which stresses in contrast the Commission’s independence and neutrality, see Dehousse, “European Institutional Architecture after Amsterdam: Parliamentary System or Regulatory Structure?”, (1998) CML Rev., 595–627.
67. 67. France is an exception, see notes 73 to 75, infra, and accompanying text.
68. 68. Sometimes even empowering the executive to amend existing laws, referred to as special enabling legislation.
69. 69. Koopmans, “De rol van de wetgever”, in Honderd jaar rechtsleven: de Nederlandse Juristenvereniging 1870–1970 (Zwolle, Tjeenk Willink, 1970), pp. 221–235; see also Alen 1990, op. cit. supra note 19.
70. 70. See e.g. Alen 1990, op. cit. supra note 19.
71. 71. Within the broad limits of the Ko¨ster case law.
72. 72. Timmermans, “Het Verdrag van Amsterdam en het Europees gemeenschapsrecht. Enkele inleidende kanttekeningen”, (1997) SEW, 344, at 349. Undue preoccupation with technical details also has a negative impact on the European Parliament’s image; see Costa, “Le Parlement europe´en entre efficacite´ fonctionnelle et de´ficit politique”, in Duprat (Ed.), L’Union europe´enne. Droit, politique, de´mocratie (Paris, PUF, 1996), pp. 145, 153–160.
73. 73. The 1958 French Constitution (esp. Art. 34) introduced a distinction between laws and regulations depending on the matter being regulated, under which only well-defined powers were conferred on the French parliament. The introduction of such a substantive delimitation of competence in France led to much litigation. Cf. Luchaire and Conac, La Constitution de la Re´publique franc¸aise (Paris, Economica, 1979), 2nd ed., p. 749 et seq., who find, at p. 772, that “Il serait donc beaucoup plus simple de laisser au parlement le soin de de´terminer, au coup par coup, ce qu’il veut fixer de lui-meˆme et ce qu’il veut laisser au pouvoir re´glementaire”, quoted in Alen (1990), op. cit. supra note 19, at 37; Miaille, “Les sources et cate´gories des actes juridiques – La France”, in Winter (Ed.), op. cit. supra note 2, p. 141, at p. 149 et seq.
74. 74. German constitutional law requires “essential matters” to be regulated by the legislature itself, under the Wesentlichkeitstheorie and the legislative reservation (Vorbehalt des Gesetzes) embodied in Art. 80 of the German Basic Law. But it is difficult to set out what is essential and what not in strict rules: does essential mean matters affecting citizens’ fundamental rights, or matters involving a major political controversy?
75. 75. See Ladeur, “Sources and Categories of Legal Acts – Germany”, in Winter (Ed.) op. cit. supra note 2, p. 235, at p. 242; Haibach, op. cit. supra note 2, at 379.
76. 76. See similarly Bieber and Salome´, “Hierarchy of norms in European law”, (1996) CML Rev., 907, at 927; Winter, op. cit. supra note 38, at p. 46. A proposal from the Commission dating from 1991 aimed at introducing a clear distinction between legislation and implementation. Laws (which would invariably be adopted by the co-decision procedure) would regulate fundamental aspects in every field of Community activity. A number of areas of fundamental legal importance would be reserved for the legislature: for instance, provisions introducing new obligations for individuals or undertakings or affecting the nature of the guarantees enjoyed by individuals and undertakings in each Member State would have to be regulated by laws. See “Democratic legitimacy: Hierarchy of norms, executive powers, legislative procedure (co-decision)”, (1991) EU Bull. Suppl. 2, at 117 et seq. However, the proposal was quickly withdrawn as being too theoretical. For further details, see Devroe and Wouters, De Europese Unie (Leuven, Peeters, 1996), pp. 274–275.
77. 77. This is because the involvement of the European Parliament “reflects at Community level the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly”. See the “isoglucose case”, supra note 59. Cf. the Matthews judgment of the ECHR cited supra note 65.
78. 78. Cf. the statement made by the former MEP F. Willockx, now Belgian Government Commissioner responsible for relations with the EU in connection with the dioxin crisis, De Standaard, 17 Aug. 1999, p. 2: “What I must also get off my chest is the awareness that comitology played tricks on us. The Standing Veterinary Committee is now the most notorious example, but there are tens of others: committees which specialists attend to defend the national interests of the Member States and take decisions by a qualified majority vote that the European Commissioners have to implement without delay without the European Parliament being able to tackle them about it. This is not a democratic deficit, but a democratic crater” (unofficial translation).
79. 79. See notes 137 to 139, infra, and accompanying text.
80. 80. See notes 141 to 144, infra, and accompanying text.
81. 81. Joerges and Neyer, op. cit. supra note 2, at 273 et seq.
82. 82. Joerges and Neyer, ibid., at 278; see also Vos, op. cit. supra note 2, at 224, who makes the link between comitology and subsidiarity.
83. 83. Cf. Blumann, op. cit. supra note 2, at 10–11.
84. 84. Portugal successfully challenged an act which the Commission had adopted after receiving a favourable opinion from a comitology committee. Portugal had voted against the act already at the committee stage: Case C-156/96, Portugal v. Commission, [1998] ECR I-7379.
85. 85. The comitology system may be likened to the approval which the Bundesrat has to give in Germany to regulatory acts (i.e. acts of the executive with general scope). Normally, the Bundestag’s approval is not required for such acts: Ladeur, op. cit. supra note 75, at 257; Haibach, op. cit. supra note 2, at 280.
86. 86. Case C-263/95, Commission v. Germany, [1998] ECR I-441; see also Case C-244/95, Moskof v. Ethnikos Organismos Kapnou, [1997] ECR I-6441.
87. 87. Hofmann and To¨ller, op. cit. supra note 2; Falke and Winter, op. cit. supra note 2, pp. 570–571; Vos, op. cit. supra note 2, at 227.
88. 88. The Commission introduced formal arrangements for these ad hoc committees in a decision of 20 May 1998 on “the establishment of Sectoral Dialogue Committees promoting the dialogue between the social partners at European level” (O.J. 1998, L 225/27).
89. 89. As for environmental matters, environmental groupings sometimes attend comitology committees as “advisers”, but in general their presence is limited. See Demmke, op. cit. supra note 2.
90. 90. March and Olson, Democratic Governance (New York, The Free Press, 1995), p. 150 et seq.
91. 91. Compare The Federalist Papers No 70 (Madison).
92. 92. The ECJ held in one case that the fact that a scientific committee had been set up meant that the Commission had to consult it (even though the basic act was unclear about this), failing which any measures adopted might be annulled: Case C-212/91, Angelopharm v. Freie und Hansestadt Hamburg, [1994] ECR I-200, para 38. More recently, the CFI decided that the Commission has the right to consult a scientific committee a second time in case of politically sensitive and complex matters, even if the basic act does not provide for a second consultation (Case T-105/96, Pharos v. Commission, [1998] ECR II-285, para 69, confirmed on appeal by Case C-151/98 P, Judgment of 18 Nov. 1999, nyr, para 26).
93. 93. See the European Parliament’s resolutions of 19 Feb. 1997 (O.J. 1997, C 85/61) and 19 Nov. 1997 (O.J. 1997, C 371/81) on BSE. The reform set out primarily to separate the regulatory aspect (the responsibility of the so-called veterinary committee, a “regulatory” comitology committee coming under the Directorate-General for Agriculture) and the control and public health aspect, which was transferred to the Directorate-General for Consumer Protection. The relevant scientific committee – more than half of whose members were British at the time the BSE crisis broke out – was also reformed. For further details, see Blumann and Adam, “La politique agricole commune dans la tourmente: la crise de la ‘vache folle”’, (1997) RTDE, 239, at 288–289. Efficiency and expertise are the most important reasons for the creation of so-called independent agencies with regulatory powers in the U.S. (Breyer, Breaking the Vicious Circle. Towards Effective Risk Regulation (Cambridge, Harvard University Press, 1993)). As already mentioned, a number of commentators advocate the adoption of this model in Europe, although, for the time being, the Meroni doctrine still stands in the way (notes 53 to 56, supra, and accompanying text).
94. 94. The Commission gave undertakings to the European Parliament in this connection following a devastating report by a temporary committee of inquiry criticizing the absence of transparency and political manipulation of the committees responsible for veterinary checks and health (see report No A4-0020/97 and the relevant resolutions of the European Parliament cited in note 93).
95. 95. Even researchers have the greatest difficulty in casting light on matters relating to comitology. See e.g. Demmke, op. cit. supra note 2, at 17–18.
96. 96. See e.g. Case C-263/95, Germany v. Commission, and Case C-244/95, Moskof v. Ethnikos Organismos Kapnou, op. cit. supra note 86.
97. 97. Case C-25/94, Commission v. Council, [1996] ECR I-1469, para 38; Joined Cases C-283/94, C-291/94 and C-292/94, Denkavit and Others, [1996] ECR I-5063, at I-5096; Case C-329/95, VAG Sverige, [1997] ECR I-2675, para 23. See also Lenaerts and Van Nuffel, op. cit. supra note 41, pp. 589–590, para 14–121.
98. 98. In contrast, the 1987 Comitology Decision was expressed to be without prejudice to previous implementing procedures (Art. 4) with the result that there was no overall rationalization.
99. 99. In so providing, the declaration takes over the wording of Art. 8 of the Commission’s proposal for a decision. The shift of that provision to a separate declaration is attributable to the fact that the necessary legislative adjustments often have to be made in accordance with the co-decision procedure, i.e. by the Council and the European Parliament. Since the Decision emanated only from the Council, it was deemed inappropriate to set out an obligation to adjust legislation in the Decision itself.
100. 100. See the last recital in the preamble to the Decision.
101. 101. Case 16/88, Commission v. Council, supra note 30, para 14.
102. 102. See notes 8 to 18, and in particular note 10, supra, and accompanying text.
103. 103. According to the fifth recital in the preamble, it was for those reasons that the criteria were introduced. Besides, consistency and predictability are frequently cited as important arguments in favour of the introduction of a hierarchy of norms: see e.g. Hofmann, “Hierarchy of Norms in European Community Law”, annexed to the study entitled, Certain Rectangular Problems of European Integration, by Weiler et al., commissioned by the European Parliament (project IV/95/02); Tizzano, “The Instruments of Community Law and the Hierarchy of Norms”, in Reforming the Treaty on European Union – The Legal Debate, op. cit. supra note 12, pp. 207–219. For a critical view, see Bieber and Salome´, op. cit. supra note 76.
104. 104. Lenaerts (1991), op. cit. supra note 2, at 20; Piris, “Apre‘s Maastricht: les institutions communautaires sont-elles plus efficaces, plus de´mocratiques et plus transparantes”, (1994) RTDE, 1, at 20.
105. 105. Recitals in the preamble to a Community act are not legally binding and cannot be relied upon in order to deviate from the actual provisions of the act concerned: Case C-162/97, Nilsson and Others, [1998] ECR I-7477, para 54.
106. 106. The choice of comitology procedure is in fact no longer determined purely politically, it must in principle be legally correct. Cf. Case 45/86, Commission v. Council, [1987] ECR 1493, para 11, concerning the choice of legal basis for an act. See, to the same effect, Kortenberg, op. cit. supra note 2, at 324, who fears a “ve´ritable nid a’ contentieux”.
107. 107. See notes 72 to 75, supra, and accompanying text.
108. 108. The difference between principles and rules has been sharply made by Ronald Dworkin, in Taking Rights Seriously (Cambridge, Harvard University Press, 1978), at p. 24: “Both sets of standards point to particular decisions about legal obligation in particular circumstances, but they differ in the character of the direction they give. Rules are applicable in an all-or-nothing fashion”, and p. 26: “A principle … does not even purport to set out conditions that make its application necessary. Rather, it states a reason that argues in one direction, but does not necessitate a particular decision.”
109. 109. Bradley (1992), op. cit. supra note 2, at 703.
110. 110. Although in that case the arrangements remained within the confines of the third indent of Art. 202 EC.
111. 111. Thus, the CFI held that the Code of Conduct of the Council and the Commission of 6 Dec. 1993 on public access to documents (O.J. 1993, L 340/41; corrigendum in O.J. 1993, L 23/34) bound the institutions concerned vis-a‘-vis third parties pursuant to the principle patere legem quam ipse fecisti (Case T-105/95, WWF UK v. Commission, [1997] ECR II-313, paras. 53–55; for further details, see Lenaerts and Van Nuffel, op. cit. supra note 41, p. 498, para 13-016).
112. 112. See e.g. Romkes, cited supra note 25.
113. 113. See the case law cited in note 35.
114. 114. Case 16/88, Commission v. Council, supra note 30, para 10.
115. 115. Eridania, supra note 35, para 7; Case C-303/94, supra note 32, para 23.
116. 116. See notes 5 to 7, supra, and accompanying text.
117. 117. O.J. 1991, L 230/1.
118. 118. O.J. 1994, L 227/31.
119. 119. Case C-303/94, European Parliament v. Council, [1996] ECR I-2943, para 23.
120. 120. See notes 110 and 111, supra, and accompanying text.
121. 121. The Commission proposal sought to bring “implementation and management measures” under the management procedure. The fact that the reference to implementing measures was omitted from the final decision probably indicates that management measures may also be implementing measures.
122. 122. The European Parliament brought an action for annulment of a Council regulation approving a fisheries agreement with Mauritania on the ground that, despite the fact that (in the Parliament’s opinion) the agreement had important budgetary implications, Parliament had only been consulted on it. The action was unsuccessful: Case C-189/97, European Parliament v. Council, judgment of 8 July 1999, nyr.
123. 123. In some language versions, the Commission proposal suggested that essential provisions of a basic instrument could also be adapted or updated by the regulatory procedure. This would, however, have constituted an unlawful infringement of the legislature’s prerogatives and would have been contrary to the case law of the ECJ (see note 35). Fortunately, the Decision corrected the proposal in this respect.
124. 124. Thus, Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (O.J. 1976, L 262/201), as amended by Directive 89/678/EEC of 21 Dec. 1989 (O.J. 1989, L 398/24), empowered the Commission to amend the list of dangerous products and preparations in an annex to the directive using the regulatory procedure. See also Commission Regulation (EC) No 45/1999 of 11 Jan. 1999 (O.J. 1999, L 6/3).
125. 125. In contrast, the Commission had proposed that the advisory procedure should be used “where the management or regulatory procedure is not or no longer considered appropriate” and stipulated in this connection that “account should be taken of experience already gained in the implementation of the relevant instruments” (Art. 2 and the preamble to the Commission proposal). According to the Commission, use of the management or regulatory procedure would therefore have been subject to an additional condition (alongside the criteria mentioned above): those procedures would have been able to be used only insofar as it was “appropriate” to have recourse to them. The Council did not take up this proposal.
126. 126. See notes 146 to 149, infra, and accompanying text.
127. 127. The votes needed to obtain a qualified majority are weighted as set out in Art. 205(2) EC where the Council is required to adopt a decision on the basis of a Commission proposal. The chairman of the committee (a representative of the Commission) does not take part in the vote.
128. 128. It appears from studies that, when a vote was taken, approximately 90% of members of comitology committees voted for the proposed implementing measures, which shows that the Commission asks for a vote only after it has formulated the proposal in such a way that the greatest possible consensus may be reached. See Demmke, op. cit. supra note 2, at 16.
129. 129. See note 141, infra, and accompanying text.
130. 130. Even under the old Comitology Decision, the danger of decisions being blocked by the contrefilet mechanism was less real than it was often portrayed. The BSE crisis affords an example. Under Directive 90/425 on veterinary checks, the Commission can restrict the movement of bovines with a view to the protection of public health after consulting the so-called Standing Veterinary Committee under the IIIb procedure. On 27 March 1996, the Commission restricted the export from the United Kingdom of bovines and certain products derived therefrom on the strength of a large majority of votes in the Standing Veterinary Committee (O.J. 1996, L 78/47). When, some months later, the Commission sought to relax the embargo, it did not obtain a favourable opinion from the committee. Consequently, it submitted the proposal to the Council, which, however, did not succeed in reaching a different decision within the time-limit or in rejecting the Commission’s proposal. Consequently, the Commission was able to decide on a relaxation of the rules itself. For further details, see Blumann and Adam, op. cit. supra note 93, at 259 et seq. For another case in which neither the committee nor the Council succeeded in making a pronouncement within the time-limit, as a result of which the Commission was able to adopt an implementing measure by itself, see Joined Cases C-289/96, C-293/96 & C-299/96, Denmark, Germany and France v. Commission, [1999] ECR I-1541, paras. 45–46.
131. 131. Although the Parliament’s role must be restricted to a review in the light of the principle of legality; see notes 137 to 139, infra, and accompanying text.
132. 132. By way of comparison, according to recent figures, an actual reference was made to the Council in only 32 cases out of 3000 recent comitology decision-making procedures under which the Council could decide to act itself. See Kortenberg, op. cit. supra note 2, at 318, note 8.
133. 133. The Treaties themselves provide for the possible adoption of safeguard measures. These measures must be adopted by a procedure laid down in the Treaty article which forms the legal basis for them (see e.g. Art. 59 EC, which empowers the Council to adopt temporary safeguard measures where, in exceptional circumstances, movements of capital to or from third countries cause, or threaten to cause, serious difficulties for the operation of EMU).
134. 134. The Commission is given the power to adopt safeguard measures in legislation relating to the common commercial policy and also in sectors such as transport, energy, agriculture and the free movement of labour. For further particulars, see Blumann, op. cit. supra note 4, at 56–58; Ehlermann, op. cit. supra note 4, at 237–238. For an example from the case law, see Joined Cases T-480/93 & T-483/93, Antillean Rice Mills NV and Others v. Commission, [1995] ECR II-2305 (on the status of overseas countries and territories within the meaning of Part Four of the EC Treaty).
135. 135. The Decision does not provide whether or not the safeguard measures adopted by the Commission are immediately applicable or whether they are to be suspended during the period when the Council is taking its decision whether to pronounce on the measures. This ought to be settled in the basic instrument on grounds of legal certainty.
136. 136. This is the former variant (b). The Commission had proposed abolishing this variant, which gives more influence to the Member States.
137. 137. See the European Parliament’s resolution of 16 Sept. 1998 (see note 17) and its opinion of 6 May 1999 (see note 18).
138. 138. Ibid.
139. 139. As a result of the 1988 Plumb/Delors agreement and the so-called “modus vivendi” of 1994, the European Parliament did, however, have limited rights to be informed. See note 11.
140. 140. See note 11.
141. 141. Arts. 5(5) and (6) Decision.
142. 142. Cf. Art. 1 Decision. Strictly speaking, this is because it falls outside the framework of what the third indent of Art. 202 EC has to govern.
143. 143. Cf. the implementation by the Council of the plant-protection Directive (see notes 114 to 120, supra, and accompanying text).
144. 144. See notes 110 and 111, supra, and accompanying text.
145. 145. Proposal for a Regulation of the European Parliament and the Council regarding public access to European Parliament, Council and Commission documents (COM (2000) 30 final/2).
146. 146. Case T-188/97 Rothmans International BV v. Commission, judgment of 19 July 1999, nyr. The Commission had refused access to the minutes of a comitology committee on the ground that the Commission could not be regarded as the author of those minutes. However, the CFI held that, since comitology committees could not be regarded as being Community institutions or bodies distinct from the Commission, documents of such committees had to be regarded as being documents of the Commission itself for the purposes of the application of the transparency rules.
147. 147. Adopted on 6 Dec. 1993, O.J. 1993, L 340/41 (corrigendum in O.J. 1994, L 23/34).
148. 148. Commission Decision 94/90/ECSC, EC, Euratom of 8 Feb. 1994 on public access to Commission documents, O.J. 1994, L 46/58.
149. 149. Hofmann and To¨ller, op. cit. supra note 2.
150. 150. Art. 4(a) of the proposed regulation.
151. 151. Consideration 9.
152. 152. Weiler, “The European Union belongs to its citizens: three immodest proposals”, (1997) EL Rev., 150, at 151 et seq.
153. 153. See notes 94 and 95, supra, and accompanying text.
154. 154. Resolution of the European Parliament of 16 Sept. 1998 (see note 17).
155. 155. The detailed determination of the time-limits for the submission of documents and the consequences of exceeding those limits seems to constitute a reaction to a judgment of the ECJ in which a Commission decision was annulled on the ground of procedural errors at the level of the committee which advised the Commission. In that case, the German delegation had received the German translation of certain documents 19 days before the meeting instead of the 20 days laid down by the rules of procedure (the English version had been available in time). The chairman had refused to postpone the meeting for that reason, even though the German delegation made a request to that effect (Case C-263/95, Germany v. Commission; see note 86 supra). The rule which the standard rules of procedure is to contain is somewhat more flexible. This suggests that the formulation of standard rules of procedure does not necessarily lead to greater formalism.
156. 156. See notes 77 to 96, supra, and accompanying text.
157. 157. Although the Commission and the Council do jointly formulate minimum rules in the relevant statement itself!