REPORT FROM THE COMMISSION

ON THE WORKING OF COMMITTEES DURING 2018

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 2018.

This report gives an overview of developments in the comitology system in 2018 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 2018

1.1.General development

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, were automatically adapted to the new comitology procedures provided for in the Comitology Regulation.

In 2018, 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 set out in Article 5a of the Comitology Decision.

The Interinstitutional Agreement on Better Law-Making of 13 April 2016 recalls, in its point 27, the need to align the regulatory procedure with scrutiny:

‘The three institutions acknowledge the need for the alignment of all existing legislation to the legal framework introduced by the Lisbon Treaty, and in particular the need to give high priority to the prompt alignment of all basic acts which still refer to the regulatory procedure with scrutiny. The Commission will propose that latter alignment by the end of 2016.’

In line with this commitment, the Commission adopted a proposal for the alignment of the basic acts providing for the regulatory procedure with scrutiny to delegated and implementing acts. It also adopted a second proposal, dealing specifically with the alignment of basic acts in the field of justice. The interinstitutional negotiations on the first file have been partially concluded. The legislator agreed to the alignment of 64 of the basic acts concerned, while negotiations on the remaining acts and on the acts in the area of justice will continue. Where alignment takes place from the regulatory procedure with scrutiny to delegated acts the respective committees will no longer play a role and the respective delegated acts will in the future be prepared with the help of expert groups.

The Commission on 26 February 2016 adopted a Report on the implementation of Regulation (EU) 182/2011. In this report, the Commission concluded that the overall legal framework for comitology is functioning well. However, it also pointed at the time to the political problem of ‘no opinion’ outcomes especially in a few very sensitive areas such as the authorisation of genetically modified organisms. Subsequently, the Commission on 14 February 2017 adopted a proposal for a Regulation of the European Parliament and of the Council amending the Comitology Regulation (EU) No 182/2011. This proposal puts forward a number of targeted changes to the functioning of the appeal committee to address no opinion situations in sensitive areas. This file, however, is currently blocked in interinstitutional negotiations.

Negotiations between the three institutions have been concluded on non-binding criteria for the application of Articles 290 and 291 of the Treaty on the Functioning of the European Union, so the delineation between delegated and implementing acts. The final text of the delineation criteria has been published in the Official Journal on 3 July 2019.

In its Communication ‘Better regulation for better results’ of May 2015, the Commission committed that draft texts for delegated acts and drafts for important implementing acts will be made public for a four weeks feedback period, allowing stakeholders to submit comments. In 2018, 165 such draft acts were published for public feedback on the Commission’s ‘Have your say’ website.

1.2.Development of case law

In its judgment of 13 December 2018 in Joined Cases T‑339/16, T‑352/16 et T‑391/16, the General Court dealt with the question of essential elements of the basic act. The Court analysed whether limits on car emissions values were considered an essential element of the basic act which the Commission was not empowered to amend, even though those limits were laid down in an annex to the basic act. In the particular case at hand, the General Court looked into the recitals and enacting terms of the basis act and found that the emission limits laid down in an annex to the basic act were an essential, and ‘even a central element of the act’, because the purpose of all the other provisions of that act was to ensure respect of those limits, and there was no explicit provision empowering the Commission to amend them.

2.Overview of activities