Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, as amended by Decision 2006/512/EC, with regard to the regulatory procedure with scrutiny — Part one - COM(2007) 741 final — 2007/0262 (COD)
Date: 2008-05-29
Institutions: European Economic and Social Committee
Subjects: EU act, European Commission, capacity to exercise rights, drafting of EU law, power of implementation, powers of the institutions (EU)

30.8.2008

EN

Official Journal of the European Union

C 224/35

Opinion of the European Economic and Social Committee on the

— Proposal for a Regulation of the European Parliament and of the Council adapting a number of
instruments subject to the procedure referred to in Article 251 of the Treaty to Council Deci-
sion 1999/468/EC, as amended by Decision 2006/512/EC, with regard to the regulatory proce-
dure with scrutiny — Part one

— Proposal for a Regulation of the European Parliament and of the Council adapting a number of
instruments subject to the procedure referred to in Article 251 of the Treaty to Council Deci-
sion 1999/468/EC, as amended by Decision 2006/512/EC, with regard to the regulatory proce-
dure with scrutiny — Adaptation to the regulatory procedure with scrutiny — Part two

— Proposal for a Regulation of the European Parliament and of the Council adapting a number of
instruments subject to the procedure referred to in Article 251 of the Treaty to Council Deci-
sion 1999/468/EC, as amended by Decision 2006/512/EC, with regard to the regulatory proce-
dure with scrutiny — Adaptation to the regulatory procedure with scrutiny — Part three

— Proposal for a Regulation of the European Parliament and of the Council adapting a number of
instruments subject to the procedure referred to in Article 251 of the Treaty to Council Deci-
sion 1999/468/EC, as amended by Decision 2006/512/EC, with regard to the regulatory proce-
dure with scrutiny — Adaptation to the regulatory procedure with scrutiny — Part four

COM(2007) 741 final — 2007/0262 (COD)

COM(2007) 824 final — 2007/0293 (COD)

COM(2007) 822 final — 2007/0282 (COD)

COM(2008) 71 final — 2008/0032 (COD)

(2008/C 224/07)

On 21 January 2008, 24 January 2008 and 4 March 2008, the Council decided to consult the European
Economic and Social Committee on the:

Proposal for a Regulation of the European Parliament and of the Council adapting a number of instruments subject to
the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, as amended by Decision
2006/512/EC, with regard to the regulatory procedure with scrutiny — Part one

Proposal for a Regulation of the European Parliament and of the Council adapting a number of instruments subject to
the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, as amended by Decision
2006/512/EC, with regard to the regulatory procedure with scrutiny — Adaptation to the regulatory procedure with
scrutiny — Part two

Proposal for a Regulation of the European Parliament and of the Council adapting a number of instruments subject to
the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, as amended by Decision
2006/512/EC, with regard to the regulatory procedure with scrutiny — Adaptation to the regulatory procedure with
scrutiny — Part three

Proposal for a Regulation of the European Parliament and of the Council adapting a number of instruments subject to
the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, as amended by Decision
2006/512/EC, with regard to the regulatory procedure with scrutiny — Adaptation to the regulatory procedure with
scrutiny — Part four

On 11 December 2007, 15 January 2008 and 11 March 2008, the Bureau of the European Economic and
Social Committee instructed the Section for the Single Market, Production and Consumption to prepare the
Committee's work on the subject.

Given the urgent nature of the work, the European Economic and Social Committee appointed Mr Pezzini
as rapporteur-general at its 445th plenary session, held on 28 and 29 May 2008 (meeting of 29 May), and
adopted the following opinion unanimously.

C 224/36

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Official Journal of the European Union

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1. Conclusions and recommendations

2. Introduction

1.1
The Committee welcomes the introduction of the regula-
tory procedure with scrutiny into the comitology system and
the alignment to this procedure of the four proposed packages
of directives and regulations.

The Committee notes that

1.2
the urgent amendment of
some acts proposed by the Commission (1) is in line with Deci-
sion 2006/512/EC and the joint statement concerning both the
list of acts to be adjusted as quickly as possible and the repeal of
time limits on the exercise of the Commission's implementing
powers.

On 17 July 2006 (2), the Council amended the decision
2.1
laying down the procedures for the exercise of implementing
powers conferred on the Commission (3), adding a new regula-
tory procedure with scrutiny. This procedure will allow the legis-
lator
to oppose the adoption of quasi-legislative measures,
namely measures of general scope ‘amending’ non-essential
elements of basic instruments adopted by co-decision,
it
the draft exceeds the implementing powers
considers that
provided for in the basic instrument, is incompatible with the
aim or the content of that instrument or fails to respect the
principles of subsidiarity or proportionality.

if

The Committee

1.3
regulations
recommends
aligning certain acts to Decision 2006/512/EC be adopted in
good time, before the Treaty of Lisbon enters into force.

that

the

1.4
Indeed, the Committee points out that the Lisbon Treaty
introduces a new legislative hierarchy, distinguishing between
legislative, delegated and implementing acts;
the European
Parliament and the Council are to have equal powers as regards
establishing the procedures for scrutinising such acts.

2.2
This measure is typical of comitology, which refers to the
procedures through which the Commission, in accordance with
Article 202 of the EC Treaty, executes the powers conferred
upon it
i.e. acts
to implement Community legislative acts,
adopted by the Parliament and Council, or by the Council alone,
under one of the decision-making procedures laid down by the
EC Treaty (consultation, co-decision, cooperation and assent).

1.5

The Committee stresses the importance of:

— fully involving the EP;

— streamlining and simplifying the procedures;

The five comitology procedures (consultation, manage-
2.3
ment, regulation, regulation with scrutiny and safeguard) are
regulated by Council Decision 1999/468/EC, as amended by
Decision 2006/512/EC, and oblige the Commission to submit
draft
implementing measures to a committee made up of
Member State officials.

— keeping the EP more informed, both on the committees and
on the measures that come before them at all stages of the
procedure; and

— confirming the repeal of

time limits on implementing
powers, which are included in some acts, governed by the
co-decision procedure and the Lamfalussy process.

1.6
The Committee stresses the importance of comitology
procedures being as transparent as possible and more accessible
to people living in the EU, especially those affected by these
acts.

The Committee highlights the need to fully comply with
1.7
Article 8(a) of the Lisbon Treaty, which stipulates that decisions
are to be taken as close as possible to the people, while informa-
tion must be fully accessible to the public and civil society.

1.8
Finally, the Committee calls for the impact of imple-
menting the new procedure to be assessed; a periodic report
should be presented to the European Parliament, the Council
and the Committee regarding effectiveness, transparency and the
dissemination of information.

(1) COM(2006) from 901 final to 926 final.

2.4
In October 2006, the European Parliament, the Council
and the Commission adopted a joint statement (4), containing a
list of legal instruments already in force to be given priority for
adjustment under
the new procedure. The statement also
welcomed the adoption of Council Decision 2006/512/EC,
which provided for the inclusion in Decision 1999/468/EC of a
new procedure, known as the regulatory procedure with scrutiny,
which enables the legislator to scrutinise the adoption of quasi-
legislative measures implementing an instrument adopted by co-
decision.

2.5 Without prejudice to the rights of the legislative authori-
ties, the Parliament and Council recognise that the principles of
good legislation require that implementing powers be conferred
on the Commission without any time-limit. However, where an
adaptation is necessary, the European Parliament, the Council
and the Commission consider that a clause requesting the
Commission to submit a proposal to revise or abrogate the
provisions concerning the delegation of implementing powers
could strengthen the scrutiny exercised by the legislator.

(2) Decision 2006/512/EC (OJ L 200, 22.7.2006).
(3) Decision 1999/468/EC (OJ L 184, 17.7.1999).
(4) OJ C 255, 21.10.2006.

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2.6
Following its entry into force, this new procedure will
apply to the quasi-legislative measures provided for in instru-
ments adopted in accordance with the co-decision procedure,
including those provided for in instruments to be adopted in
future in the financial services field (Lamfalussy instruments (5)).

However,

2.7
for the new procedure to be applicable to
instruments adopted by co-decision which are already in force,
those instruments must be adjusted in accordance with the
applicable procedures, so as to replace the regulatory procedure
laid down in Article 5 of Decision 1999/468/EC by the regula-
tory procedure with scrutiny, wherever
there are measures
which fall within its scope.

majority, may oppose the adoption of the said draft by the
Commission, justifying their opposition; (…)

— if, within three months from the date of referral to them,
the European Parliament or the Council opposes the draft
measures, the latter shall not be adopted by the Commis-
sion.
In that event, the Commission may submit to the
committee an amended draft of the measures or present a
legislative proposal on the basis of the Treaty;

— if, on expiry of that period, neither the European Parliament
nor the Council has opposed the draft measures, the latter
shall be adopted by the Commission.’

2.8
In December 2006, the Commission adopted the 25
proposals (6) concerned, on which the Committee expressed its
views (7).

2.8.4
If the measures envisaged by the Commission are not
in accordance with the opinion of the committee, or if no
opinion is delivered, the following procedure is to apply:

2.8.1 Where a basic instrument, adopted in accordance with
the procedure referred to in Article 251 of the Treaty, provides
for the adoption of measures of general scope designed to
amend non-essential elements of that instrument, inter alia by
deleting some of those elements or by supplementing the instru-
ment by the addition of new non-essential elements,
those
measures are to be adopted in accordance with the regulatory
procedure with scrutiny.

2.8.2
The Commission representative thus submits a draft of
the measures to be taken to a Regulatory Procedure with Scru-
tiny Committee, composed of representatives of the Member
States and chaired by the Commission representative.

2.8.3
If the measures envisaged by the Commission are in
accordance with the opinion of the committee, the following
procedure is to apply:

— ‘the Commission shall without delay submit

the draft
measures for scrutiny by the European Parliament and the
Council;

— the European Parliament, acting by a majority of its compo-
the Council, acting by a qualified

nent members, or

(5) The so-called Lamfalussy approach is a decision-making process
which applies to the adoption and implementation of Community
legislation on financial services (securities, banking and insurance).
Specifically, it sets out a four-level approach to decision-making:
— level one involves traditional legislative activity (adoption of regu-
lations and directives under the co-decision procedure). Before
presenting a legislative proposal
in the field of securities, the
Commission consults the European Securities Committee (ESC),
which comprises representatives of each Member State;

— level two has regard to the implementing measures executed by
the Commission, on the basis of the delegation contained in the
in line with the regulatory procedure (now the
legislative act,
regulatory procedure with scrutiny). On the basis of a technical
opinion from the Committee of European Securities Regulators
(CESR), comprising representatives of the national regulatory and
supervisory authorities for the sector, the Commission prepares a
draft implementing measure to submit to the European Securities
Committee (ESC), which then gives its opinion;

— at level three, the CESR coordinates, informally, the activities of
the national regulatory and supervisory authorities for the securi-
ties sector, with the aim of ensuring consistent, uniform imple-
mentation of the measures adopted at the first two levels;

— level four involves the legislative and administrative implementa-
tion of EU legislation by the Member States, overseen by the
European Commission.

(6) COM(2006) from 901 final to 926 final.
(7) Opinion CESE 418/2007, 14.3.2007, rapporteur: Mr Retureau.

— ‘the Commission shall without delay submit a proposal
relating to the measures to be taken to the Council and shall
forward it to the European Parliament at the same time;

— the Council shall act on the proposal by a qualified majority

within two months from the date of referral to it;

— if, within that period, the Council opposes the proposed
measures by a qualified majority, the measures shall not be
adopted. In that event, the Commission may submit to the
Council an amended proposal or present a legislative
proposal on the basis of the Treaty;

— if the Council envisages adopting the proposed measures, it
shall without delay submit them to the European Parliament.
If the Council does not act within the two-month period,
the Commission shall without delay submit the measures for
scrutiny by the European Parliament;

— the European Parliament, acting by a majority of its compo-
nent members within four months from the forwarding of
the proposal, may oppose the adoption of the measures in
question, justifying their opposition by indicating that:

— the proposed measures exceed the implementing powers

provided for in the basic instrument;

— the proposed measures are not compatible with the aim

or the content of the basic instrument; or

— do not respect the principles of subsidiarity or propor-

tionality;

— if, within that period, the European Parliament opposes the
proposed measures, the latter shall not be adopted. In that
event, the Commission may submit to the committee an
amended draft of
the measures or present a legislative
proposal on the basis of the Treaty;

— if, on expiry of that period, the European Parliament has not
opposed the proposed measures, the latter shall be adopted
by the Council or by the Commission, as the case may be.’

The proposed regulations under

are
2.9
prompted by the need to adapt existing legislation to the proce-
dure laid down in Article 251 of the Treaty, in accordance with
agriculture;
the

applicable procedures

review here,

areas of:

in the

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employment; humanitarian aid; enterprise policy; environment;
European statistics;
internal market; consumer health and
protection; energy and transport; and the information society.

3. The Commission proposals

3.1
The Commission proposals amend regulations and direc-
tives (8) subject to the procedure referred to in Article 251 of
the Treaty to bring them into line with the new procedures
established by Council Decision 1999/468/EC, as amended by
Decision 2006/512/EC.

In general,

in line with the priorities of Community
3.2
policy on Better Regulation (9),
this entails adapting and
updating the instruments in question as necessary so that they
can be properly implemented, in accordance with Article 251 of
the TEC.

4. General comments

The Committee fully endorses

4.1
the distinction made
in
between legislative and implementing instruments, which,
line with the Lisbon Treaty, will lead to a new definition of dele-
gated acts, making it possible to simplify and streamline Com-
munity law-making and regulation (10), preserving a system of
Parliamentary democratic scrutiny of the Commission's imple-
menting powers.

4.2
The Committee therefore welcomes the introduction of
the regulatory procedure with scrutiny into the comitology
system, enabling the Council and the Parliament to scrutinise
and, where appropriate, amend the Commission's implementing
regulations when the legislative act recognises the Commission's
right to exercise implementing powers in some areas, without
authorising it to make substantive amendments.

The Committee

4.3
regulations
recommends
aligning the four packages of directives and regulations to Deci-
sion 2006/512/EC be adopted in good time, before the Treaty
of Lisbon enters into force.

that

the

4.4
Indeed, the Committee points out that the Lisbon Treaty
introduces a new legislative hierarchy, distinguishing between
legislative, delegated and implementing acts (11) while preserving
existing terminology (directives,
the
European Parliament and the Council are to have equal powers

regulations, decisions):

Brussels, 29 May 2008.

as regards establishing the procedures for scrutinising delegated
and implementing acts (comitology) (12).

4.5

The Committee stresses the importance of:

— fully involving the EP, which would in the last instance have

the right to reject a decision;

— reducing the number and complexity of comitology proce-

dures;

— keeping the EP more informed, both on the committees and
on the measures that come before them at all stages of the
procedure;

— a consultation procedure for the Council to consult the EP
when a draft implementing act is referred to the Council
following a dispute within the Commission/committee of
experts;

— an EP-Council consultation procedure to be followed where
the EP has issued a negative opinion, giving the EP a greater
role;

— confirming the repeal of

time limits on implementing
powers, which are included in some acts, governed by the
co-decision procedure and the Lamfalussy process.

involving only representatives of

The Committee stresses, as it has in the past, that ‘comi-
4.6
tology procedures,
the
Commission and Member State governments and tasked,
according to the nature of the committee established, with the
regulation flowing from the
management, consultation or
follow-up and implementation of
legislative acts, should be
more transparent and accessible to people living in Europe and
especially to those affected by these acts’ (13).

4.7
In this connection the Committee highlights the need to
fully comply with Article 8(a) of the Lisbon Treaty, which stipu-
lates that decisions are to be taken as close as possible to the
people, thus ensuring that Community acts are as transparent
and accessible as possible for all members of the public and
civil society.

4.8
Lastly, the Committee believes that the impact of imple-
menting the new procedure needs to be assessed; a periodic
report should be submitted to the European Parliament, the
Council and the Committee regarding effectiveness, transparency
and the dissemination of user-friendly information which is
accessible to all on delegated Community acts, so that this
operation, which combines regulation and actual implementa-
tion, can be monitored.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

(8) Cf. COM(2007) 740 final, p. 6, General list.
(9) Cf. Opinion 1068/2005 of 28.9.2005, rapporteur: Mr Retureau, and
Opinion CESE 1069/2005 of 6.10.2005, rapporteur: Mr Van Iersel.
(10) Cf. EP report on the Treaty of Lisbon of 18/02/2008, rapporteurs:
Íñigo Méndez De Vigo (EPP/DE, ES) and Richard Corbett (PES, UK).

(11) Articles 249-249d of the TFEU.

(12) Articles 249b and 249c of the TFEU.
(13) Opinion OJ C 161 of 13.7.2007, p. 48, rapporteur: Mr Retureau.