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 Article 250(2) of the EC Treaty)

EXPLANATORY MEMORANDUM

1. On 11 December 2002 the Commission presented a proposal for a Council Decision amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission [1].

[1] COM (2002) 719 final.

2. The aim of the proposal is to place the two branches of the legislature on an equal footing as regards supervising the way in which the Commission exercises its responsibilities for implementing the instruments adopted under the codecision procedure. This joint supervision by Parliament and the Council applies to implementing measures with a normative content, i.e. implementing essential aspects or adapting certain other aspects of basic instruments, e.g. the adaptation of directives to scientific or technical progress or the amending of annexes to directives. A new regulatory procedure is thus envisaged for these implementing measures relating to instruments adopted under the codecision procedure. The adoption of other implementing measures relating to instruments adopted under the codecision procedure is subject to the advisory committee procedure, which remains unchanged.

3. On 10 January 2003 the Council consulted the European Parliament in accordance with Article 202 of the Treaty.

At its part-session on 2 September 2003, Parliament adopted a legislative resolution approving the Commission's proposal, subject to the Commission taking account of nine amendments.

4. The Commission is inclined to accept a substantial part of the amendments proposed by the European Parliament, namely four of them in full and four in part. These amendments clarify and consolidate the new regulatory committee procedure. The Commission is therefore presenting an amended proposal.

5. Of the four amendments accepted in full by the Commission:

Some reiterate the commitments entered into by the Commission, namely the obligation under Decision 1999/468/EC to make public the references of all documents sent to the European Parliament in a register which is available on the Internet [2] (amendment 9) and commitments specific to the field of securities legislation (amendment 3).

[2] http://europa.eu.int/comm/ secretariat_general/regcomito/registre.cfm?CL=en.

Other changes (amendments 4 and 5) are purely editorial, to improve the text's overall coherence.

6. Of the amendments accepted in part by the Commission:

6.1 Amendment 1 refers to the commitments entered into by the Commission concerning the forwarding of documents to the European Parliament. The reference document to be mentioned with regard to the forwarding of information from the Commission to Parliament is the bilateral agreement on the 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 [3].

[3] OJ L 256, 10.10.2000, p.19.

6.2 Amendments 2 and 6 concern the assuming of executive responsibility by the Commission under the new regulatory procedure. The Commission recognises the reasons for Parliament's remarks concerning the Commission's options following possible objections by the legislature. It therefore proposes to amend its proposal accordingly. In the event of objections from Parliament and/or the Council to a draft for measures, the Commission may, taking account of the legislature's positions, choose between four options:

- Modification of its draft;

- Presentation of a legislative proposal;

- Adoption of its draft without changes. In this case, Parliament proposes that the draft for measures be accompanied by an "appropriate statement". The Commission must be able to apply its executive responsibility autonomously and therefore cannot be bound by the legislature's position. Consequently, this statement could not be regarded as the equivalent of an interpretative statement which would require the Commission to interpret the measure adopted in the manner desired by one branch or both branches of the legislature.

- Withdrawal of the draft measure. As suggested by Parliament, in certain exceptional cases the Commission must be able to decide that measures which were the subject of a draft are no longer appropriate. In such cases the Commission would retain the option to withdraw its draft.

In the event of objections from one branch or both branches of the legislature, the Commission undertakes to inform the legislature of how it intends to follow them up, and of the reasons.

A diagram showing this procedure is appended.

The last sentence of recital (6) is therefore amended as follows: "This means that, in the event of a disagreement between the Commission and one branch or both branches of the legislative authority, the Commission must be able, depending on the case and taking account of the positions of the European Parliament and the Council, to either present a proposal in accordance with the procedure in Article 251 of the Treaty, or adopt the original draft of measures, or adopt a modified draft, or withdraw its draft of measures. The Commission shall inform the legislature of the action it intends to take on the latter's objections, and of its reasons for doing so."

In Article 1(4), the end of Article 5a, paragraph 5, is amended as follows: "the Commission, taking account of the positions of the European Parliament and the Council, may either present a proposal in accordance with the procedure in Article 251 of the Treaty, or adopt the original draft of measures, or adopt a modified draft, or withdraw its draft of measures. The Commission shall inform the legislature of the action it intends to take on the latter's objections, and of its reasons for doing so."

6.3 Amendment 7 provides for more flexibility, under certain conditions, in the regulatory committee procedure on grounds of urgency. Granting the legislature a one-month extension for the adoption of a position is possible only where implementing acts are adopted and applied provisionally by the Commission once the opinion of the regulatory committee is delivered. The proposed text reinforces the latter aspect. Similarly, if the Commission subsequently opts to present a legislative proposal, it must be able to provisionally maintain the measure adopted pending the outcome of the codecison procedure. However, the options available in connection with the emergency procedure must not include withdrawal of the measure.

In Article 1(4), the words "and apply" are inserted in the first sentence of Article 5a, paragraph 6. The latter part of this paragraph is amended as follows: "Within one month of notification, which may be extended by another month if the Council or Parliament so requests, the European Parliament, by an absolute majority of its members, or the Council, by the majority provided for by Article 205(2), may raise objections. In this case, taking account of the positions of the European Parliament and the Council, the Commission may either present a proposal in accordance with the procedure in Article 251 of the Treaty while provisionally maintaining, where appropriate, the adopted measure, or uphold the adopted measure or modify it. The Commission shall inform the legislature of the action it intends to take on the latter's objections, and of its reasons for doing so."

7. Finally, the Commission cannot accept amendment 8 on decisions regarding safeguard measures, as the aim is not consistent with that of the proposal.

8. To facilitate reading and examination, the full text of the amended proposal is also attached.

COM (2004) 324 final

2002/0298 (CNS)

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

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community and in particular the third indent of Article 202 thereof,

Having regard to the proposal from the Commission [4],

[4] OJ C , p. .

Having regard to the opinion of the European Parliament [5],

[5] OJ C , p. .

Whereas:

(1) In accordance with Article 202 of the Treaty, responsibility for implementing rules laid down by the Council, possibly together with the European Parliament, lies, in principle, with the Commission. The Commission exercises its powers in accordance with the procedures established by the Council under Article 202 and in compliance with the arrangements made for this purpose in the legislative instruments adopted under the Treaty.

(2) Current developments in Community legislation show that it is increasingly common for legislative instruments to require additional measures to be adopted, whose technical principles and details must be established on the basis of sound analysis and expert opinion within suitable periods of time. Whenever this prompts the legislature to delegate wider powers to the Commission, it must have at its disposal all the information referred to by the agreement of 10 October 2000 between the European Parliament and the Commission on procedures for implementing Council Decision 1999/468/EC [6] and have a say in the measures which the Commission plans to adopt.

[6] OJ L 256, 10.10.2000, p.19.

(3) The procedures laid down in Decision 1999/468/EC do not provide a satisfactory means of dealing with this situation. Scrutiny by the European Parliament under Article 8 of Decision 1999/468/EC to determine whether the implementing powers are excessive has not proved effective enough and the authority that the Council can exercise may lead to confusion between executive and legislative powers or to an impasse in the decision-making process. The procedures laid down in Decision 1999/468/EC may also lead to the Commission having to adopt an instrument without an opinion from the Committee or reactions from the legislature.

(4) Decision 1999/468/EC must therefore be amended to enhance the effectiveness of the decision-making process by clarifying the responsibilities and procedures.

(5) The European Parliament and the Council must, as co-legislators, have an effective means of supervising the exercise of executive powers with a genuine normative scope which substantially change the existing legal situation. To this end, the regulatory procedure must be applied to general measures intended to implement essential aspects or adapt certain other aspects of the basic instruments adopted under the procedure of Article 251 of the Treaty.

(6) In these cases, the regulatory procedure must allow the Commission to assume full responsibility for adopting executive measures, after having solicited the opinion of the Committee of Representatives of the Member States, whilst enabling the European Parliament and the Council to oversee the executive role. This means that, in the event of a disagreement between the Commission and one branch or both branches of the legislative authority , the Commission must be able, depending on the case and taking account of the positions of the European Parliament and the Council, to either present a proposal in accordance with the procedure in Article 251 of the Treaty, or adopt the original draft of measuresor adopt a modified draft, or withdraw its draft of measures. The Commission shall inform the legislator of the action it intends to take on the latter's objections and of its reasons for doing so.

(7) If the deadlines set for the regulatory procedure are not met, provision needs to be made for an urgent procedure to enable the Commission to adopt executive measures immediately without prejudice to subsequent supervision by the European Parliament and the Council.

(8) Executive powers in respect of the basic instruments in question which have a bearing only on procedural arrangements or individual decisions need not be subject to specific arrangements for supervision by the legislature, since they must comply with the relevant guidelines and principles in the basic instrument. This does not, however, mean that it is not useful for the Commission to consult committees made up of Member States' representatives who are experts on the matters in question. The advisory procedure should therefore be the standard procedure for executive measures in the sense of the word mentioned above, such as those implementing financial support programmes. The management procedure is no longer applicable for implementing instruments adopted by the co-decision procedure.

(9) Given the limited scope of the current exercise, there is no need to review the arrangements for exercising the powers conferred on the Commission in basic instruments other than those adopted by the procedure under Article 251 of the Treaty. These arrangements are therefore not affected by this Decision. However, the arrangements provided for by instruments adopted under this procedure need to be reviewed on the basis of a report to be prepared by the Commission, at the latest one year following the entry into force of the present Decision.

(9a) The application of this decision shall be without prejudice to any of the undertakings made by the European Commission in the field of securities legislation, in particular the solemn declaration made before Parliament on 5 February 2002 by the Commission and the letter of 2 October 2001 addressed by the Internal Market Commissioner to the chairman of Parliament's Committee on Economic and Monetary Affairs,

HAS DECIDED AS FOLLOWS:

Article 1

Decision 1999/468/EC is hereby amended as follows:

1. Article 2a below is added:

"Article 2a

The choice of procedures for adopting executive measures in respect of basic instruments adopted by the procedure under Article 251 of the Treaty is determined by the following criteria:

a) the advisory procedure is applied whenever the executive measures have an individual scope or concern the procedural arrangements for implementing basic instruments;

b) the regulatory procedure is applied whenever the executive measures are designed to widely implement the essential aspects of the basic instrument or adapt certain other aspects of it.

2. In Article 4(3) and Article 5(3) the words "without prejudice to Article 8" are deleted.

3. Paragraph 5 of Article 5 is deleted"

3 a. In Article 5(6), the words "where appropriate in view of any such position", are deleted.

4. Article 5a below is added:

"Article 5a

Regulatory procedure for basic instruments adopted by the procedure under Article 251 of the Treaty.

1. The Commission is assisted by a regulatory committee made up of representatives of the Member States and chaired by a representative of the Commission.

2. The Commission representative submits to the Committee a draft of the measures to be taken. The Committee delivers its opinion on the draft, possibly by putting it to the vote, within a time limit which the Chairman may lay down according to the urgency of the matter. The opinion is delivered by the majority laid down in Article 205(2) of the Treaty for adopting decisions which the Council is required to adopt on a proposal from the Commission. The votes of the Member States' representatives in the Committee shall be weighted in the manner set out in that article. The Chairman shall not vote.

3. If the Committee delivers a favourable opinion, the Commission adopts the final draft. If its opinion is unfavourable or no opinion is delivered, the Commission submits a new draft without delay, attempting to take account of the position expressed by the Committee. Within a month of the new draft being submitted, the Committee may make observations, on the basis of which the Commission prepares its final draft. Failure to deliver an opinion within the time limits does not prevent the draft from being finalised.

4. The Commission forwards the final draft without delay to both the European Parliament and the Council. If neither of the two institutions expresses any objections within one month of the draft being forwarded, the Commission adopts the proposed measure. This period will be extended by another month if the European Parliament or the Council so requests.

5. If the European Parliament, by an absolute majority of its members, or the Council, by the majority provided for by Article 205(2), expresses any objections to the final draft of the executive measures presented by the Commission within one month, which may be extended by another month, of its being forwarded, the Commission, taking account of the positions of the European Parliament and the Council, may either present a proposal in accordance with the procedure in Article 251 of the Treaty, or adopt the original draft of measures , or adopt a modified draft, or withdraw its draft of measures. The Commission shall inform the legislator of the action it intends to take on the latter's objections and of its reasons for doing so.6. If, on imperative grounds of urgency, the time limits for the regulatory procedure cannot be abided by, the Commission may adopt and apply the executive measures after having obtained the opinion of the regulatory committee in accordance with paragraph 2. It shall notify the European Parliament, the Council and the Member States of these without delay. Within one month of notification, which may be extended by another month if the Council or Parliament so requests, the European Parliament, by an absolute majority of its members, or the Council, by the majority provided for by Article 205(2), may raise objections. In this case, taking account of the positions of the European Parliament and the Council, the Commission may either present a proposal in accordance with the procedure in Article 251 of the Treaty while provisionally maintaining, where appropriate, the adopted measure, or uphold the adopted measure or modify it. The Commission shall inform the legislator of the action it intends to take on the latter's objections and of its reasons for doing so."7. This Decision does not affect safeguard and emergency procedures provided for in the event of a serious risk for safety, human or animal health or the environment by a basic instrument adopted under the procedure in Article 251 of the Treaty."

5. Article 7 is amended as follows:

a) Paragraph 3 is replaced by the following:

"3. The European Parliament and the Council shall be informed by the Commission of committee proceedings on a regular basis. To this end, they shall receive agendas for committee meetings, draft measures submitted to the committees for the implementation of instruments adopted by the procedure under Article 251 of the Treaty, the results of voting, summary records of the meetings and lists of the authorities and organisations to which the persons designated by the Member States to represent them belong. The European Parliament shall also be informed whenever the Commission transmits to the Council measures or proposals for measures to be taken."

b) The last sentence of paragraph 4 is replaced by the following:

"The Commission shall also publish an annual report on the committees' proceedings."

c) Paragraph 5 is replaced by the following: "11.

"5. All documents sent to the European Parliament pursuant to paragraph 3 shall be listed in a register, available on the Internet, to be set up to this end by the Commission in 2003."

6. Article 8 is deleted.

Article 2

The European Parliament and the Council shall review the procedures provided for by the basic instruments adopted by the procedure under Article 251 of the Treaty, upon a proposal from the Commission, on the basis of a report to be prepared by the Commission, at the latest one year following the entry into force of the present Decision.

Article 3

This Decision shall enter into force on the day following its publication in the Official Journal of the European Communities.

Done at Brussels,

For the Council

The President

ANNEX

Revised regulatory procedure

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