February 15, 2017
You might remember the advert for Canada Dry : “It looks like alcohol, it tastes like alcohol…but it’s not alcohol.” The reform of comitology proposed by the Commission is presented as a reform, but it is nothing of the sort. It attempts to return to the pre-Lisbon Treaty system, without getting there. Strongly clashing with Member States’ interests, it is doomed to failure before any talks have begun.
A futile attempt to go back to the system in force before February 2011
The real question is: why did the Commission and co-legislators transform an effective system of implementation into one that does not work? Before Regulation 182/2011, everything was clear. The implementing power belonged to the Council, which delegated that power to the Commission. The latter tabled drafts for a vote by comitology committees. If the committee opposed (by absolute majority or blocking minority, depending on the issue), the draft would go up to the Council for a decision. This was known as the ‘call-back right’; the Council would take over if the Commission did not succeed.
This system, which worked well for the Commission, Member States and lobbyists (who benefited from significant margins of manoeuvring), was replaced by a complex framework, with comitology committees of first and second instance. If the Appeal Committee cannot give a qualified majority against a draft, the Commission “may” adopt or it “may” not. Obtaining a qualified majority against the Commission (a kind of censure) is very difficult, so any division between Member States in favour and those against means the ultimate decision rests with the EU executive. In practice, the Commission likes having more power, but not at its own expense. It clearly does not like finding itself in the frontline when deciding on sensitive topics like GMOs and pesticides.
The underlying idea of the proposed reform is to return to the spirit of the ‘call-back right’. I say ‘spirit’, because to go back to the old system would require changing the Treaties with unanimous Member State agreement – which is not feasible. Thus, the Commission is engaging in contortions to try and pass the hot potato to Member States, while holding onto its other prerogatives such as the right of initiative, chairing the Examination and Appeal Committees, and the right to act or not act whenever national representatives fail to deliver a qualified majority for or against.
More tinkering with institutions, all for an unlikely result
Considering the technical competence of Commission officials, its Secretariat-General and Legal Service in particular, this institutional tinkering they have proposed us is very surprising. To avoid taking responsibility for contentious files, the Commission aims to put Member States in the frontline with four distinct reforms:
- The key idea consists in changing voting rules in the Appeal Committee by not counting abstentions, thereby forcing Member States to vote yes or no. Personally, I really doubt how effective this would be.
- In addition, Member States’ individual voting positions in the Appeal Committee would be made public. Any transparency is a good thing in itself, but it is being proposed here for reasons of pure expediency. And why limit transparency to Appeal Committee votes? Why not extend it to Examination Committees, or even Council working groups?
- The third reform brings a smile to my face: if the Appeal Committee delivers ‘no opinion’, a second meeting would be held, but in the guise of a Ministerial Appeal Committee, where the members would potentially be the relevant Minister of each Member State and the Chair would be the Commissioner in charge of the draft. I will spare you my comments on this…
- Finally, the Commission could also, if it wished, respond to a ‘no opinion’ by requesting an opinion from the Council of Ministers itself. However, this opinion would beadvisory, not
It is almost pointless to state that these proposed reforms will be received with the most extreme caution by Member States, if not outright opposition. And let’s not forget the European Parliament, which as co-legislator will have to endorse this text. In principle, it should be neutral, since it is not involved in the procedures for implementing acts. But there is every chance that it will find a way to carve out its own space there, even if this will make the system even more complex.
Important: the Commission proposal is horizontal, potentially concerning every sector
The proposed Regulation will now be scrutinised via the ordinary legislative procedure and must receive the approval of both co-legislators – which in my view is out of the question in current circumstances. Having said that, the need for genuine reform of comitology (and more generally, secondary legislation, including delegated acts) is as essential as it is inevitable. The issue is on the table, and will be for a long time.
Having made a proposal of horizontal nature, the Commission has brought potentially any sector within its scope: even if it is mainly GMOs and pesticides that find their way to the Appeal Committee, pharmaceutical products, food safety and other important EU policy areas may be affected in future.
You are strongly advised to follow this topic closely, prepare yourself for it and master all the twists and turns of this ‘new look’ comitology.