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)
Date: 2004-04-22
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, 22.04.2004 
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 

(presented by the Commission in accordance with Article 250(2) of the EC Treaty) 

EN 

   EN 

 
 
 
  
  
EXPLANATORY MEMORANDUM 

1. 

2. 

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 Commission1. 

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 
Internet2  (amendment  9)  and  commitments  specific  to  the  field  of  securities 
legislation (amendment 3). 

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

Of the amendments accepted in part by the Commission: 

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 

6. 

6.1 

1 
2 

COM (2002) 719 final. 
http://europa.eu.int/comm/secretariat_general/regcomito/registre.cfm?CL=en. 

2 

 
 
  
 
                                                 
Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise 
of implementing powers conferred on the Commission3. 

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.” 

3 

OJ L 256, 10.10.2000, p.19. 

3 

 
 
  
 
                                                 
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. 

8. 

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

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

4 

 
 
  
 
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 Commission4, 

Having regard to the opinion of the European Parliament5, 

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  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/EC6  and  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 

4 
5 
6 

OJ C , p. . 
OJ C , p. . 
OJ L 256, 10.10.2000, p.19. 

5 

 
 
  
 
                                                 
(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

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. 

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

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 one branch or both branches of the 
legislative authority legislature, 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 under in accordance with the procedure in Article 251 of 
the  Treaty,  or  adopt  the  original  draft  of  measures,  possibly  with  amendments,  or 
adopt  a  modified  draft,  or  withdraw  it  altogetherits  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. 

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 co-decision 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. 

6 

 
 
  
 
(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. 

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

Paragraph 5 of Article 5 is deleted” 

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

2. 

3. 

3 a. 

4. 

Article 5a below is added: 

“Article 5a 

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

1. 

2. 

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 

7 

 
 
  
 
3. 

4. 

5. 

6. 

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.  

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 must either withdraw its 
draft and present a proposal in accordance with the procedure in Article 251 of 
the  Treaty,  or  adopt  the  original  draft  of  measures  and  inform  the 
European Parliament and the Council of its reasons for doing so proposed 
measure,  possibly  amending,  or  adopt  a  modified  draft,  or  withdraw  its 
draft  of  measures.  to  take  account  of  the  objections  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. 

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  withdraw  the  adopted  measure  and  present  a  proposal  for  an 
instrument  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.  possibly  with  amendments  to 
take  account  of  the  objections  expressed.  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.” 

8 

 
 
  
 
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.  The  references  of  aAll  documents  sent  to  the  European  Parliament  pursuant  to 
paragraph 3 shall be listed made public 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 

9 

 
 
  
 
 
 
ANNEX 
Revised regulatory procedure 

Prior to the procedure, the legislative phase
(basic instrument adopted under the codecision 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 a 
new draft
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 
adopts the
instrument

The Commission 
modifies and adopts the
measure

The Commission 
presents a legislative
proposal

The
Commission 
withdraws the
measure

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

10