Proposal for a Council Decision amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission
Date: 2002-12-11
Institutions: European Commission
Subjects: European Commission, capacity to exercise rights, comitology, institutional reform, interinstitutional relations, legislative-executive relations, power of implementation, powers of the institutions (EU)

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 11.12.2002
COM(2002) 719 final

2002/0298 (CNS)

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)

EXPLANATORY MEMORANDUM

The reasons for and purpose of the reform

-

The law in force

At  present,  Article  202  of  the  EC  Treaty  provides  that  responsibility  for  implementing
European  legislation  lies,  in  principle,  with  the  Commission,  where  such  implementation  is
necessary  at  Union  level  and  where  it  is  hence  not  in  the  hands  of  the  Member  States.
However, the Treaty entitles also the Council to reserve the right to exercise its implementing
powers directly in specific and exceptional cases. This  exception is however not compatible
with  the  fact  that  the  legislative  function  is  exercised  by  two  institutions,  the  European
Parliament  and  the  Council,  in  matters  governed  by  the  codecision  procedure  under  Article
251 of the Treaty, since the Council is present not only as delegating institution but also as the
one  that  can  exercise  the  delegated  competence.  Besides,  the  Treaty  does  not  distinguish
between delegation of legislative and exercise of executive power.

-

Commission’s contribution to the Convention1

It is for these reasons that the Commission proposed, in its communication to the Convention,
to  amend  the  Article  202  of  the  Treaty  in  order  to  establish  a  new  system  for  delegating
powers  which  more  closely  reflect  the  legal  and  political  realities  of  the  situation  and  the
requirements  for  running  an  enlarged  Union.  This  amendment  aims,  on  one  hand,  at  doing
away with the Council’s executive powers and, on the other hand, at introducing in the Treaty
the concept of delegation of legislative powers. This delegation will be exercised within the
limits and the conditions foreseen in the basic act. Therefore, the Commission has explicitly
suggested  that  the  Council  and  the  European  Parliament  should,  in  the  framework  of
delegation  of  legislative  powers,  have  the  possibility  to  oppose  a  text  proposed  by  the
Commission  (call  back).  The  latter  should  then  either  renounce  to  its  text  or  modify  it  or
present a legislative proposal.

-

The present reform

However, given the relatively long period which will elapse before the new Treaty comes into
force, Council Decision 1999/468 on "comitology" needs to be amended now as it does  not
take account of the European Parliament’s position as a co-legislator. Clearly, revision of the
"comitology" decision without amending the Treaty cannot go as far as a more thoroughgoing
reform conducted  in  the  process  of  amending the Treaty, since the  present  Treaty  allows  to
confer to the Commission only executive competences. The Commission therefore proposes
to  undertake  an  initial  reform  of  the  current  system  as  a  temporary  measure,  pending  the
advent of  a  new  system  for  delegating  powers  in  the  new  Treaty.  This  should  contribute  to
clarifying the exercise  of executive functions  and placing on  an  equal  footing  the  European
Parliament and the Council as supervisors of the Commission’s exercise of the implementing
powers  conferred  on  it,  and  using  to  the  maximum  effect  the  legal  scope  afforded  by  the
current Treaty, which does not allow to go further.

The  review  should  incorporate  the  general  ideas  on  enhancing  transparency,  efficiency  and
responsibility in EU action set out in the White Paper on European governance, one of which
was the proposal to refocus the institutions on their key tasks.

1

Cf. doc. COM(2002)728 final.

2

                                                
The White Paper suggests that the European Parliament and the Council concentrate more on
the  direction  and  substance  of  Community  policies  with  the  Commission  assuming  prime
responsibility  for executive tasks  at  European  level  under  the  supervision  of  the  legislature.
To put it more precisely, a simple legal mechanism should be available so that the European
Parliament and the Council can monitor and oversee policy in the light of the principles and
political guidelines set out in the legislation. This means that the legal mechanism by which
the Commission adopts implementing measures also needs  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.

As Mr Prodi explained  to the European Parliament in  November 2001 during the  debate  on
the White Paper, it was with this in mind that the Commission, in its Communication “Better
lawmaking”  of  5 June  2002,  announced  its  intention  to  present  proposals  to  adapt  the
comitology system without amending the Treaty, with a view to placing the two branches of
the legislature on an equal footing as supervisors, at least of matters subject to codecision, and
clarifying the exercise of executive responsibilities.

Reviewing comitology has become  a more  pressing  matter in  the areas  where  the European
Parliament is a co-legislator under Article 251, since, in these areas, its part in the procedure
is restricted to exercising a “right to scrutiny” of the legitimacy of the executive instrument,
which  is  incompatible  with  its  role  as  a  co-legislator.  What  is  more,  it  is  in  the  procedure
under  Article  251  that  the  “Community  method”  is  applied  to  the  full,  which  is  why  it  is
logical to start reviewing the arrangements for exercising executive powers here. The current
review of “comitology” is hence restricted to the scope of that procedure, pending reform of
Article 202 which might be proposed by the Convention on the future of the Union and which
would pave the way to a wider review.

The procedures  followed for the  adoption of executive measures  in the  field  of  competition
will not be affected by the present decision.

Varying degrees of supervision by the legislature

The  need  for  supervision  by  the  legislature  arises  mainly  when  executive  measures  to  be
adopted  by  the  Commission  have  a  legislative  substance,  implementing  essential  aspects  of
basic  instruments  or  adapting  others,  such  as  when  directives  are  brought  into  line  with
scientific and  technical progress or their  annexes are  amended.  In  such cases the  legislature
needs to be able to supervise the exercise of the powers conferred. This is in keeping with the
approach  set  out  by  the  Commission  in  its  proposals  of  5 June  2002  (cf.  COM  (2002)  275
final)  on  better  lawmaking.  These  proposals  mainly  recommend  reverting  to  the  original
definition of the directives as laid down in the Treaty, since these should be restricted to the
essential aspects involving a political decision and ensuring that technicalities or details are a
matter  for  executive  measures.  The  Commission  should,  in  turn,  be  able  to  retain  full
responsibility for instruments it is to adopt conferring executive powers, enabling procedural
arrangements to be adopted or individual decisions to be taken.

The debate on this matter should also take account of other aspects, especially the fact that in
the institutional system established by the  current  Treaty,  the  European Parliament  does not
have  an  executive  role  and  that  the  national  authorities  must  have  a  say  in  the  process  of
executive  decision-making  at  Community  level,  since  they  can  provide  invaluable  expertise
and facilitate subsequent implementation of executive measures at national level.

3

The procedures proposed for executive measures in respect of acts adopted according to the
procedure under Article 251

With regard to the above, the “comitology” Decision could be adapted for basic instruments
adopted under the Article 251 procedure along the following lines:

1.

2.

The regulatory  committee procedure  (Article 5 of  Decision  1999/468/EC)  could  be
changed  to  apply  when  executive  measures  of  a  general  scope  concerning  the
substance of the matter in question are to be adopted

The  advisory  committee  procedure  (Article  3  of  Decision  1999/468/EC)  could  be
maintained  and,  following  the  changes  to  the  regulatory  procedure,  extended  to
certain administrative measures, for which other procedures are currently used (such
as adoption of executive measures for financial aid programmes).

The problems with the current regulatory committee procedure

The proposal for amending the regulatory committee procedure is justified in the light of the
problems this procedure poses at present:

– 

– 

– 

above all, the imbalance between the two legislative arms in respect of executive acts
relating to basic instruments adopted under the codecision procedure. The European
Parliament's part in the procedure is restricted to a control of legitimacy, whereas the
Council can alter the substance of the instrument; this is compounded by

the  absence  of  a  clear  distinction  between  the  execution  phase  proper  and  the
supervisory phase, contrary to the above-mentioned guidelines of the White Paper;

the  risk  of  an  impasse  when  adopting  the  measures  in  question  in  cases  where  the
Council  cannot  put  together  a  qualified  majority,  strong  opposition  to  the
Commission’s  proposal  emerges  and  the  European  Parliament  has  no  say  in  the
outcome.

A  new  regulatory  procedure  for  executive  measures  in  respect  of  acts  adopted  by  the
procedure under Article 251

Any  change  in  procedure  must  obviously  solve  the  problems  and  take  account  of  the  other
aspects pointed  out  above  and,  at  the  same  time,  comply  with  the  key  criteria  of  the  White
Paper  on  governance  and  the  action  plan  on  “Better  lawmaking”:  simplicity,  efficiency,
transparency and responsibility.

A procedure comprising two separate phases should be proposed.

In  the  initial  phase  (executive  phase),  the  Commission  will  be  responsible  for  drawing  up
executive measures  and  submitting them to  the representatives  of  national  authorities  in  the
committee.  The  committee  must  give  its  opinion  on  the  draft  within  a  period  of  time  laid
down  by  its  Chairman  and  can  influence  the  substance  of  the  measure  by  delivering  an
unfavourable opinion by a qualified majority (or, even in the absence of an opinion, through
the opinions expressed by the various national delegations). If an unfavourable or no opinion
is delivered, provision is made for a further period of one month to find a solution for which a
qualified  majority  can  be  obtained.  Ultimately,  however,  it  is  the  Commission  that  is
responsible for the substance of the draft. At the end of this phase, the Commission proposes a
final draft, which may be amended to reflect the committee’s opinion.

4

In  the  second  phase  (supervisory  phase),  the  draft  will  be  submitted  to  the  European
Parliament and the Council to enable them to exercise their  right of political  supervision.  If
either of the two institutions raises any objections — by an absolute majority of Members of
Parliament and a  qualified  majority in  the  Council —  within  a  period  of  one  month  (which
may  be  extended  by  another  month),  the  Commission  has  two  options:  either  to  enact  the
proposed measure, possibly with amendments to reflect the objections expressed, or to present
a legislative proposal to be submitted to the codecision procedure. Of course, if no objections
are raised within the time limit, the Commission will finally adopt the act as drafted.

A diagram of the procedure is given in the annex.

The new procedure seems to meet the requirements indicated above; in particular:

– 

– 

– 

– 

Each  institution  will  concentrate  on  its  own  tasks  without  any  more  confusion
between the legislative and executive functions.

The new procedure is simpler and more  comprehensible than the present one. Each
institution assumes clear and transparent responsibilities vis-à-vis the citizens and the
national  authorities'  invaluable  expertise  is  available  in  the  executive  phase.  The
Commission's  central  role  and  the  latitude  it  will  enjoy  in  dealing  with  objections
raised by the legislature, in particular, will enable it to assume responsibility for the
measures it adopts.

The  European  Parliament  and  the  Council  are  strictly  equal  partners  in  overseeing
the way in which the Commission discharges the executive responsibilities conferred
upon  it  by  legislative  instruments  adopted  under  the  codecision  procedure.  In
particular, the two arms of the legislature will have a say on the substance of the draft
and, in certain cases, will be able to raise politically sensitive questions which might
affect the balance of the basic legislative instrument, with the result that an executive
measure would have to give way to a legislative proposal.

There  will  no  longer  be  any  risk  of  an  impasse,  because  there  will  be  a  choice
between adopting the executive measure and presenting a legislative proposal.

This approach will, of course, have to be combined with an appropriate solution for adopting
executive  measures  in  an  urgent  procedure  where  this  is  necessary  to  ensure  that  the  basic
instrument is applied properly.

5

2002/0298 (CNS)

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 Commission2,

Having regard to the opinion of the European Parliament3,

Whereas:

(1) 

(2) 

(3) 

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.

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 a say in the measures which
the Commission plans to adopt.

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.

2

3

OJ C […] of […], p. […].
OJ C […] of […], p. […].

6

                                                
(5) 

(6) 

(7) 

(8) 

(9) 

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.

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 the legislature, the Commission must
be able, depending on the case, to either present a proposal under  Article 251 of the
Treaty or adopt its draft of initial measures, possibly with amendments.

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.

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 codecision procedure.

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.

DECIDES:

Article 1

Decision 1999/468/EC is amended as follows:

1.

Article 2a below is added :

7

“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.

In Article 4(3) the words “without prejudice to Article 8” are deleted.

Paragraph 5 of Article 5 is deleted”

Article 5a below is added:

“Article 5a

2.

3.

4.

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

1.

2.

3.

4.

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

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.

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.

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.

8

5.

6.

8.

If  the  European  Parliament,  by  an  absolute  majority  of  its  members,  or  the
Council, by the majority provided for by Article 205(2) of the Treaty, express
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 must either withdraw its draft and present
a proposal for an instrument in accordance with the procedure in Article 251 of
the EC Treaty, or adopt the proposed measure, possibly amending its draft to
take account of the objections.

If,  on  imperative  grounds  of  urgency,  the  time  limits  for  the  regulatory
procedure  cannot  be  abided  by,  the  Commission  may  adopt  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, 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,  the  Commission  may  either  withdraw  the  adopted
measure  and  present  a  proposal  for  an  instrument  in  accordance  with  the
procedure under Article 251 of the Treaty or uphold the measure, possibly with
amendments to take account of the objections expressed.

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:

“5.  The  references  of  all  documents  sent  to  the  European  Parliament  pursuant  to
paragraph  3  shall  be  made  public  in  a  register  to  be  set  up  to  this  end  by  the
Commission.”

6.

Article 8 is deleted.

9

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 take effect on the day following its publication in the Official Journal of
the European Communities.

Done at Brussels,

For the Council
The President

10

ANNEX

Revised regulatory procedure

Prior to the procedure, the legislative phase (basic instrument adopted under
the co-decision procedure)

 EXECUTIVE PHASE

Commission draft

Committee of representatives of the Member States

Favourable opinion by a
qualified majority

Unfavourable opinion by a
qualified majority or no opinion

The Commission prepares
its final draft

Further consultation
on an amended proposal

Time limit 1 month

The Commission
prepares the final draft,
which may be
amended to take
account of the
Committee’s position

SUPERVISORY PHASE

The Commission submits the
draft to the Council and
the European Parliament

Time limit 1 month (which may
be extended by another month)

No objection

Objection from the
Council (qualified
majority) or EP
(absolute majority)

The Commission
Commission arrête
adopts the
l’acte
instrument

The Commission
adopts the instrument,
possibly amended on
the basis of the
objections

The Commission
presents a proposal
for legislation

Subsequently, it is possible for an application to be made to the Court of Justice to
have the measure struck down

11