Proposal for a Council Decision laying down the procedures for the exercise of implementing powers conferred on the Commission
Date: 1998-06-24
Institutions: European Commission
Subjects: EU competence, advisory committee (EU), executive competence, transparency in decision-making

COMMISSION OF THE EUROPEAN COMMUNITIES 

ft'A ft 

ft ft 
ft ft 
ft ft 

ft^ft 

Brussels, 24.06.1998 
COM(1998) 380 final 

98/0219 (CNS) 

Proposal for a 
COUNCIL  DECISION 
laying down the procedures for the exercise of implementing powers 
conferred  on the Commission 

(presented by the Commission) 

EXPLANATORY  MEMORANDUM 

1. 

Article  145 of the BBC  Treaty as amended by the Single European Act lays down 
three principles for the implementation of Community instruments: 

except  in specific  cases, the Council  confers  implementing powers on the 
Commission in the instruments it adopts; 

certain  requirements  may  be  imposed  in  respect  of  the  exercise  of 
these powers; 

any  such  requirements  must  be  consonant  with  rules  and  principles  laid 
down in advance by the Council. 

The  Council  Decision  of  13 July  1987  laying  down  the  procedures  for  the 
exercise of implementing  powers conferred  on the Commission1  covers this third 
aspect.  The  major  benefit  of  this  Decision  was  to  reduce  the  choice  of 
implementing  procedures  to  three  committee  formulas  (two  of  them  each 
involving  two  variants)  plus  a  further  procedure  for  the  adoption  of  safeguard 
measures (also involving two variants). 

2. 

The Decision was hedged  around, either at the time of adoption or  subsequently, 
by various statements and undertakings, including: 

confirmation  by  the  Council  of  the  undertaking  given  by  the  conference 
on the  Single Act that the advisory  committee procedure (I) would be the 
one  predominantly  used  in  matters  covered  by  Article  100a  of  the 
EEC Treaty; 

a statement  by the Commission  undertaking  not to propose  the  regulatory 
committee  procedure  with  double  safety  net  (IN-b),  which  involves  the 
risk of no decision being taken; 

the  1988 Plumb-Delors agreement  on informing  the European  Parliament 
about implementing measures (transmission  of draft  decisions  concerning 
instruments of general scope submitted to a committee with the exception 
of  routine  management 
limited  validity  or  minor 
importance and those whose adoption poses problems of confidentiality  or 
urgency). This agreement  was followed  by another on structural  policies2 
and  by  undertakings  as  to  transparency  in  management  and  regulatory 
committee proceedings3. 

instruments  of 

OJ  L 197,  18.7.1987, p.  33. 
"Klepsch-Milian" agreement of  13  July  1993 concerning the code of conduct on the  implementation of 
structural policies by the Commission, OJ C 255, 20.9.1993, p. 19. 
"Samland-Williamson" agreement, 25.9.1996. 

3. 

4. 

5. 

Overall, the implementing  procedures  set up by the  1987 Decision  have operated 
well, but  the system  is complex  and  rather opaque.  In particular,  the  many  types 
of procedures available have often  prompted  discussions of principle  between  the 
institutions on the choice of procedure, thereby holding up the legislative process. 

The  co-decision  procedure  introduced  by  the  Treaty  on  European  Union  gave 
Parliament  new  legislative  powers.  As  regards  implementation,  however,  the 
Maastricht Treaty did not alter the system set up following the Single Act. 

The  European  Parliament,  the  Council  and  the  Commission  concluded  a 
modus vivendi  concerning  the  implementing  measures  for  acts  adopted  by  the 
co-decision  procedure4  temporarily  overcoming  these  difficulties  pending  a 
review of the matter by the Intergovernmental  Conference. 

At the  Intergovernmental  Conference,  Member  States did  not wish  to reform  the 
provisions  of  the  Treaty  relating  to  implementing  measures.  However,  a 
declaration  was annexed  to the final act calling  on the Commission  to  submit  to 
the  Council  by  the  end  of  1998 a  proposal  for  a  new  decision  laying  down  the 
procedures 
the 
Commission.  The Commission undertook to present its proposal  in June 1998. 

implementing  powers  conferred  on 

the  exercise  of 

for 

6. 

The main objectives of this proposal are to: 

facilitate  adoption  of  basic  legislation  by  setting  criteria  to  guide  the 
choice of implementing procedure; 

simplify  these  procedures  and  reduce  the  number  of  possible  formulas, 
while at the same time guaranteeing the effectiveness  of decision-making; 
the  Commission  will  in  this  context  adopt  a  model  set  of  rules  of 
procedure to be proposed to the committees; 

adapt existing procedures and align them on the formulas of this Decision; 
this reform  will therefore entail repeal of the  1987 Decision; 

enhance  monitoring  of  the  exercise  of  implementing  powers  by  the 
Community  legislative authority - whether it be the Council  or, under the 
codecision  procedure,  the  Council  and  Parliament - with  due  respect  for 
the separation between executive and legislative powers; 

ensure that proposals  for  the  adoption  of legislative  decisions  may  go  to 
the legislative authority. 

7. 

The  Commission  attaches  great  importance  to  rapid  adaptation  of  existing 
procedures.  It  will  make  proposals  accordingly  as  soon  as  this  Decision  is 
adopted.  The Council  and  Parliament  should  undertake  to  adopt  these  proposals 
without delay. 

OJC  102,4.4.1996, p. I. 

Proposal for a 
COUNCIL DECISION 
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  145 thereof, 

Having regard to the proposal from  the Commission5, 

I laving regard to the opinion of the European Parliament6, 

Whereas,  in  accordance  with  Article  145  of  the  Treaty,  in  the  instruments  which 
it  adopts,  the  Council  confers  on  the  Commission  powers  for  the  implementation  of 
the  rules  which 
impose 
certain  requirements  in  respect  of  the  exercise  of  these  powers;  whereas  it  may  also 
reserve  to  itself  the  right,  in  specific  and  duly  substantiated  cases,  to  exercise  directly 
implementing powers; 

lays  down;  whereas 

the  Council  may 

the  Council 

Whereas  the  Council  adopted  Decision  87/373/EEC  of  13 July  1987  laying  down  the 
procedures  for  the  exercise  of  implementing  powers  conferred  on  the  Commission7; 
whereas  that  decision  has  limited  the  number  of  procedures  for  the  exercise  of 
such powers; 

Whereas  Declaration  No  31  annexed  to  the  Final  Act  of  the  Intergovernmental 
Conference  which  adopted  the Amsterdam  Treaty  calls on the Commission  to submit to 
the Council a proposal amending Decision 87/373/EEC; 

Whereas  the  first  purpose  of  the  proposed  amendments  is  to  clarify  the  criteria 
determining  the  choice  of  one  or  other  of  the  procedures  provided  for  the  adoption  of 
implementing measures; 

Whereas,  in  this  regard,  implementing  measures  and  management  measures  must  be 
taken by a procedure ensuring decision-making within suitable periods; 

Whereas  measures  of  general  scope  designed  to  implement,  adapt  or  update  essential 
provisions  of  basic  legislative  instruments  should  be  adopted  by  a  procedure  allowing 
involvement of the legislative authority, be it the Council or the European  Parliament and 
the Council; 

Whereas the advisory procedure should be followed  where the management or regulatory 
procedure is not or is no longer considered  appropriate; whereas account should be taken 
of experience already gained in the implementation of the relevant instruments; 

5  OJC 
6  OJC 
7  OJ  L 197,  18.7.1987, p.  33. 

Whereas  the  second  purpose  of  the  proposed  amendments  is  to  simplify  the  set  of 
requirements  for  the  exercise  of  implementing  powers  conferred  on  the  Commission; 
whereas  it  is  accordingly  necessary  to  reduce  the  number  of  procedures  and  to  adjust 
them in line with the respective powers of the institutions involved; 

Whereas,  in  this  spirit,  the  European  Parliament  should  be  informed  of  committee 
proceedings on a regular basis; 

Whereas simplification  of the exercise of implementing powers means that this Decision 
should  apply  to  the  implementing  rules  in  force  prior  to  the  adoption  of  this  Decision; 
whereas  it  follows  that  all  such  instruments  will  need to be adjusted  in accordance  with 
this Decision; 

Whereas  certain  provisions  of  Community  legislation,  particularly  health  protection, 
require  a decision  to be taken  rapidly; whereas, therefore,  it is necessary  to provide  that 
those cases are to be subject  to a decision-making  process which allows the  fundamental 
objectives of the legislation to be observed; 

Whereas  Committees  set  up by  the Council  otherwise  than  in accordance  with the  third 
indent of Article  145 are not affected  by this Decision; whereas the  same applies to the 
specific  committee  procedures  created  for 
the  implementation  of  the  common 
commercial  policy and the competition  rules laid down by the Treaties; 

Whereas Decision 87/373/EEC should be repealed, 

HAS DECIDED AS FOLLOWS : 

Article  1 

Other  than  in  specific,  duly  substantiated  cases  where  the  Council  reserves  the  right  to 
exercise  directly  certain  implementing  powers  itself,  such  powers  shall  be  conferred  on 
the Commission  in accordance with the relevant provisions in the basic instrument. 

Where the basic instrument  imposes specific  procedural  requirements for the adoption of 
implementing  measures,  such  requirements  shall  be  in  conformity  with  the  procedures 
provided  for by Articles 3 to 6, and determined  in accordance with the criteria laid down 
by Article 2. 

Article 2 

Implementation  and management  measures, and  in particular  those  relating  to  common 
policies  such  as the  common  agricultural  policy, to the  implementation  of  programmes 
with  significant  budgetary  implications,  or to  the  grant  of  substantial  financial  support, 
shall be adopted by use of the management procedure. 

Measures  of  general  scope  designed  to  apply,  update  or  adapt  essential  provisions  of 
basic instruments shall be adopted by the use of regulatory procedure. 

'I'lie advisory  procedure  shall  be applied  where  I he management  or regulatory  procedure 
is not or is no longer considered  appropriate. 

The safeguard  procedure  may be applied  where the power to decide on such measures is 
conferred  on the Commission. 

Article 3 

Advisory procedure 

The  Commission  shall  be  assisted  by  an  advisory  committee  composed  of 
the  representatives  of  the  Member  States  and  chaired  by  the  representative  of 
the Commission. 

The  representative  of  the  Commission  shall  submit  to  the  committee  a  draft  of 
the measures  to  be  taken.  The committee  shall  deliver  its opinion  on  the draft,  within  a 
time-limit  which  the chairman  may  lay  down  according  to the  urgency  of  the  matter,  if 
necessary by taking a vote. 

The  Commission  shall  take  the  utmost  account  of  the  opinion  delivered  by  the 
committee.  It  shall  inform  the  committee  of  the  manner  in  which  its  opinion  has  been 
taken into account. 

Article 4 

Management  procedure 

The  Commission  shall  be  assisted  by  a  management  committee  composed  of  the 
representatives  of 
representative  of 
the Commission. 

the  Member  States  and  chaired  by 

the 

The  representative  of  the  Commission  shall  submit  to  the  committee  a  draft  of  the 
measures  to  be  taken.  The  committee  shall  deliver  its  opinion  on  the  draft  within  a 
time-limit which the chairman  may lay down according to the urgency of the matter. The 
opinion  shall be delivered  by the majority  laid down in Article  148(2) of the Treaty. The 
chairman shall not vote. 

The Commission  may adopt measures which shall apply immediately. However, if these 
measures  are  not  in  accordance  with  the  opinion  of  the  committee,  they  shall  be 
communicated  by  the  Commission  to  the  Council  forthwith.  In  that  event,  the 
Commission may defer  application of the measures which it has decided on for not more 
than three menths from the date of such communication. 

The  Council,  acting  by  a  qualified  majority,  may  take  a  different  decision  within  the 
time-limit provided for by the third paragraph. 

Article 5 

Regulatory procedure 

The  Commission  shall  be  assisted  by  a  regulatory  committee  composed  of  the 
representative  of 
representatives  of 
the Commission. 

the  Member  States  and  chaired  by 

the 

The  representative  of  the  Commission  shall  submit  to  the  committee  a  draft  of  the 
measures  to  be  taken.  The  committee  shall  deliver  its  opinion  on  the  draft  within  a 
time-limit  which the chairman  may lay down according to the urgency of the matter. The 
opinion  shall  be delivered  by the majority  laid down  in Article  148(2) of the  Treaty.  The 
chairman shall not vole. 

The  Commission  may  adopt  the  measures  envisaged  if  they  are  in  accordance  with  the 
opinion of the committee. 

If the measures envisaged  are not in accordance with the opinion of the committee, or if 
no opinion  is delivered,  the Commission  shall  not adopt the measures envisaged.  In that 
event, it may present  a proposal  relating to the measures to be taken, in accordance  with 
the Treaty. 

Article 6 

Safeguard  procedure 

The  Commission  shall  notify  the  Council  and  the  Member  States  of  any  decision 
regarding safeguard  measures.  It may  be stipulated  that  before  adopting  its decision, the 
Commission  shall  consult  the  Member  Stales  in  accordance  with  procedures  to  be 
determined  in each case. 

Any  Member  State  may  refer  the  Commission's  decision  to  the  Council  within  a 
time-limit to be determined in the instrument in question. 

The  Council,  acting  by  a  qualified  majority,  may  take  a  different  decision  within  the 
time-limit determined by the instrument in question. 

Article  7 

Each committee shall adopt its own Rules of Procedure on the proposal of its chairman. 

The European  Parliament shall be informed  of committee proceedings on a regular basis. 
To that end, it shall receive agendas for committee meetings, draft  measures submitted to 
the committees  for the implementation  of instruments adopted  by the procedure provided 
for  by  Article  189b of  the  EC  Treaty,  and  the  results  of  voting.  It  shall  also  be  kept 
informed  wherever  the  Commission  transmits  to the  Council  measures  or  proposals  for 
measures to be taken. 

Article 8 

The Council, or the European  Parliament  and the Council, acting on a proposal  from  the 
Commission,  shall  without  delay  adjust  provisions  relating  to  committees  assisting  the 
Commission  in  the  exercise  of  implementing  powers  provided  for  by  instruments 
predating this Decision  in order to align them on it. 

Such  adjustment  shall  be  made  in  compliance  with  the  obligations  incumbent  on  the 
Community  institutions.  It  shall  not  have  the  effect  of jeopardizing  attainment  of  the 
objectives of the basic instrument or the effectiveness  of Community action. 

Decision  87/373/EEC is repealed. 

Article 9 

Done at Brussels, 

For the Council 
The President 

ISSN 0254-1475 

COM(98) 380 final 

DOCUMENTS 

EN 

01  02  06 

Catalogue  number  :  CB-CO-98-420-EN-C 

ISBN  92-78-37547-0 

Office  for Official  Publications of the European  Communities 

L-2985 Luxembourg