REPORT FROM THE COMMISSION

ON THE WORKING OF COMMITTEES DURING 2015

In accordance with Article 10(2) of Regulation (EU) No 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (the ‘Comitology Regulation’), the Commission hereby presents the annual report on the working of committees for 2015.

This report gives an overview of developments in the comitology system in 2015 and a summary of the committees’ activities. It is accompanied by a staff working document containing detailed statistics on the work of the individual committees.

1. Overview of developments in the comitology system in 2015

1.1 General development

The Commission examined the first 5 years of the implementation of Regulation 182/2011 in a report adopted on 26 February 2016. It concluded that the Regulation has allowed over the last five years the effective use of the Commission's implementing powers under the control of Member States. It further concluded that the existing framework allows for an efficient and constructive cooperation between the Commission and Member States.

As described in the 2013 annnual report , all comitology procedures provided for in the ‘old’ Comitology Decision , with the exception of the regulatory procedure with scrutiny (RPS), were automatically adapted to the new comitology procedures provided for in the Comitology Regulation (Regulation (EU) 182/2011).

In 2015, the comitology committees were therefore operating under the procedures set out in the Comitology Regulation, i.e. advisory (Article 4) and examination (Article 5), as well as under the Regulatory Procedure with Scrutiny (RPS) set out in Article 5a of the Comitology Decision.

In accordance with the statement made at the time of adoption of the Comitology Regulation that all the RPS provisions in existing basic acts would be adapted to the criteria laid down in the Treaty, the Commission adopted in 2013, following a preliminary screening exercise in 2012, three proposals to align a total of 200 basic acts to Articles 290 and 291 TFEU. In November 2014, the Commission at the beginning of its new mandate and in the context of a review of pending legislative proposals, decided to withdraw these proposals pending the outcome of future discussions between the institutions in the context of the Interinstitutional Agreement on Better Law-Making. This led to a new Agreement officially signed on 13 April 2016 which recalls "the need to give high priorty to the prompt alignment of all basic acts which still refer to the regulatory procedure with scrutiny."

In its Work Programme for 2017, the Commission accordingly announces that it will "propose legislation to align existing acts with the Treaty provisions on delegated and implementing acts, thus phasing out the regulatory procedure with scrutiny" as well its intention to "assess the democratic legitimacy of existing procedures for the adoption of delegated and implementing acts and consider options for changing existing procedures for the adoption of certain secondary acts."

1.2 Development of case law

With its judgment in Case C-88/14, Commission v. Parliament and Council (the "Visa reciprocity mechanism" case), on 16 July 2015, the Court came back to the question of delineation between delegated and implementing acts. With its application in this case, the Commission sought the annulment of the revised reciprocity mechanism in so far as the provisions confer on the Commission a delegated power in accordance with article 290(1) TFEU rather than an implementing power within the meaning of article 291(2) TFEU. The Commission considered the latter to be more appropriate in this case, given the tasks at hand (the amendment of an annex following a visa requirement introduced by a third party). The Court dismissed the Commission's action and argued that neither the existence nor the extent of the discretion conferred on the Commission by a legislative act is relevant for determining whether the act to be adopted by the Commission should be a delegated or an implementing act.

In its judgment in Joined Cases T-261/13 and T-86/14, Netherlands v. Commission ("Eurostat") of 23 September 2015, the Court annulled provisions in Commission implementing measures adopted following the regulatory procedure with scrutiny. It recalled that the rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaty and are not at the disposal of the Member States or of the institutions themselves. The Kingdom of the Netherlands argued in this case that the adoption of implementing measures under Regulation (EC) No 2494/95 and of measures to implement those implementing measures, require the application of the regulatory procedure with scrutiny, while the Commission's implementing measures in question provided for Eurostat to establish and update methodological frameworks without being required to follow the regulatory procedure with scrutiny. The Commission argued that the methodological frameworks were not meant to be binding upon Member States and did not themselves constitute implementing measures as referred to in Regulation (EC) No 2494/95. The Court decided that such frameworks constitute implementing measures which must be complied with in order to give practical effect to the applicable regulations and to ensure the comparability of harmonised indices of consumer prices. As such, the contested provisions should have provided for the application of the regulatory procedure with scrutiny for the adoption of the necessary implementing measures, as foreseen in Regulation No 2494/95.

2. Overview of activities

2.1 Number of committees and meetings

It is important to distinguish between the comitology committees, on the one hand, and other entities, in particular ‘expert groups’ created by the Commission itself, on the other. The latter provide expertise to the Commission in preparing and implementing policy as well as delegated acts, whereas comitology committees assist the Commission in the exercise of the implementing powers that have been conferred upon it by basic legal acts. This report focuses exclusively on comitology committees. The number of active comitology committees in the period 1 January to 31 December 2015 was calculated by sector of activity (see Table I). The figures for the previous year (on 31 December 2014) are also given for purposes of comparison. Sections and configurations are not counted separately as these belong to a parent committee.