REPORT FROM THE COMMISSION ON THE WORKING OF COMMITTEES DURING 2013
Date: 2014-09-16
Institutions: European Commission
Subjects: EU control, comitology, committee (EU), official statistics, supervisory power













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52014DC0572

REPORT FROM THE COMMISSION ON THE WORKING OF COMMITTEES DURING 2013 /* COM/2014/0572 final */









REPORT
FROM THE COMMISSION
ON
THE WORKING OF COMMITTEES DURING 2013
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[1] (the
‘Comitology Regulation’), the Commission hereby presents the annual report on
the working of committees for 2013.
This
report gives an overview of developments in the comitology system in 2013 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 2013
1.1       General
development
As
described in the 2012 report[2], all
comitology procedures provided for in the ‘old’ Comitology Decision[3],
with the exception of the regulatory procedure with scrutiny (RPS), were
automatically adapted to the new comitology procedures provided for in the
Comitology Regulation.
In
2013, 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 RPS set out in Article 5a of the Comitology
Decision.
In
accordance with the statement[4],
made at the time of adoption of the Comitology Regulation, that all the RPS
provisions in existing basic acts would be adapted to the criteria laid down in
the Treaty, the Commission adopted in 2013, following a preliminary screening
exercise in 2012, three proposals[5] to align a
total of 200 basic acts to Articles 290 and 291 TFEU. These proposals are now
undergoing the ordinary legislative procedure.
1.2       Review
of the Rules of Procedure of the Appeal Committee
The
Rules of Procedure (RoP) of the appeal committee, adopted on 29 March 2011[6],
include a review clause (Article 14) stipulating that the Commission should
evaluate, by April 2014, how the rules operate in practice. This review relates
only to the RoP, not to the provisions of Regulation 182/2011 itself, which is
to be reviewed by 1 March 2016.
Since
the entry into force of Regulation 182/2011 on 1 March 2011 and up to the end
of 2013, the appeal committee has been mainly convened in relation to one
policy area, namely health and consumer protection, and more specifically in
relation to genetically modified food and feed and plant protection products.
The Commission referred 23 draft implementing acts to the appeal committee,
which has met 15 times since its inception. Out of the draft acts referred to
the appeal committee, two were not in the area of health and consumer
protection (these concerned customs and environment).
In
the majority of cases the appeal committee was convened because the committee
concerned delivered no opinion. One of the main reasons for this is found in
Article 5(4) second subparagraph of Regulation 182/2011, which stipulates that
in cases of no opinion in the field of health and safety of humans, animals or
plants, the implementing act may not be adopted[7]. If
the implementing act is deemed necessary, there is the option to submit an
amended version of the act to the same committee or to submit the draft
implementing act within one month to the appeal committee. In cases such as the
authorisation of genetically modified food or feed, the scope for amendments is
limited and a resubmission to the committee is therefore not likely to lead to
another result. The Commission services therefore chose to submit the
implementing act to the appeal committee. In most cases the appeal committee
likewise delivered no opinion and the Commission adopted the measures in line
with Article 6(3) of Regulation 182/2011.
Issues
identified from the practical experience of dealing with the appeal committee
so far relate to the setting of the meeting date and the level of
representation, the possibilities to foster compromise and the use of the
written procedure.
1.2.1
Meeting date and level of representation
Regulation
182/2011 provides in its Article 3(7) that ‘The chair shall set the date of
the appeal committee meeting in close cooperation with the members of the
committee, in order to enable Member States and the Commission to ensure an
appropriate level of representation.’. This is reflected in Article 1(5) of
the RoP, which requires the Commission to ‘consult Member States on various
options’ for the date of the meeting and Member States may make suggestions
in this regard. The objective is to ensure a sufficiently high level of
representation, as a general rule not below the level of members of the
committee of permanent representatives, in order to not simply repeat the
discussions held within the committee concerned.
Given
that the meeting must, in accordance with Article 3(7) of Regulation 182/2011,
be held at the latest six weeks after referral to the appeal committee, finding
a suitable meeting date can present a practical challenge, but an agreeable
solution was nevertheless found in all cases. As regards the level of
representation, experience so far has shown that ministerial-level
representation is not the norm; usually it is at the level of the permanent
representative. Member States decide on their representative in the appeal
committee, and the wording of Article 1(5) of the RoP offers sufficient
flexibility to adapt the level of representation to the case at hand.
1.2.2
Fostering compromise  
Regulation
182/2011 provides clearly that the draft implementing act must be submitted to
the appeal committee. It is therefore not possible to submit an amended
version. However, in line with Article 6(2) of Regulation 182/2011, until an
opinion is delivered any member of the appeal committee may suggest amendments
to the draft implementing act and the chair may decide whether or not to modify
it. This is reflected in Article 4(2) of the RoP. It is therefore currently
possible for the chair to facilitate a compromise by, for example, accepting or
proposing amendments during the meeting.
1.2.3
Written procedure
In
specific policy areas, such as genetically modified food and feed and plant
protection products, because of the nature of the topic the appeal committee
did not find compromises. The appeal committee meetings are often short and
repeat the outcome of the committee concerned, with no opinion being delivered.
In such specific cases, the use of the written procedure has therefore been
proposed from the outset on some occasions. The possibility and conditions for
the use of the written procedure are set out in Article 3(5) of Regulation
182/2011 and referred to in Article 7 of the RoP, whereby the chair may in
particular use the written procedure when the draft has already been discussed
during a meeting of the appeal committee. This wording does not exclude the use
of the written procedure from the outset if justified. According to Article
3(5) of Regulation 182/2011, a meeting must however be convened if a committee
member so requests and these requests have so far always been made.
1.2.4
Conclusion
The
experiences with the appeal committee so far confirm that the RoP reflect the
provisions of Regulation 182/2011 well, that they provide an efficient basis
for the work of the appeal committee and that there is therefore at this point
no need for amendment of the RoP. Should such a need emerge, the planned review
of Regulation 182/2011 in 2016 offers an opportunity to revisit the issue.
1.3       Development
of case law
With
its judgment in Case C-427/12, Commission v Parliament and Council (the
‘Biocides case’), on 18 March 2014 the Court of Justice pronounced for the
first time on a case of delineation between delegated and implementing acts.
With its application in the Biocides case, the European Commission sought the
annulment of a provision providing for the adoption of measures setting the
fees payable to the European Chemicals Agency by implementing acts. The
Commission considered that these should be set by delegated acts. The Court of
Justice dismissed the action by the Commission as unfounded. While the Court
did not appear to question that Articles 290 and 291 TFEU each have their own
scope, it recognised that the legislator has a margin of discretion when it
decides to confer a delegated power on the Commission pursuant to Article
290(1) TFEU or an implementing power pursuant to Article 291(2) TFEU. As a
consequence, the Court found that judicial review is limited to manifest
errors.
Two
judgments of the Court of Justice in 2013 clarified certain aspects of the
regulatory procedure under Decision 1999/468/EC[8]. The
cases concerned situations in which the regulatory committee had voted before
Regulation 182/2011 entered into force, the procedure therefore had to be
considered pending within the meaning of Article 14 of that Regulation, and it
had to be concluded according to the rules contained in Decision 1999/468/EC.
2.         Overview of activities
2.1       Number
of committees and meetings
It is
important to distinguish between the comitology committees, on the one hand,
and other entities, in particular ‘expert groups’ created by the Commission
itself, on the other. The latter provide expertise to the Commission[9] in
preparing and implementing policy as well as delegated acts, whereas comitology
committees assist the Commission in the exercise of the implementing powers
that have been conferred upon it by basic legal acts. This report focuses exclusively
on comitology committees. The number of comitology committees on 31
December 2013 was calculated by sector of activity (see Table I). The
figures for the previous year (on 31 December 2012) are also given for
purposes of comparison. Sections and configurations are not counted separately
as these belong to a parent committee.
TABLE
I — Total number of committees (2013)
 Policy sector || 2012 || 2013 
 Agriculture and Rural Development (AGRI) || 15 || 20 
 Anti-Fraud Office (OLAF) || 1 || 1 
 Budget (BUDG) || 2 || 2 
 Climate Action (CLIMA) || 4 || 4 
 Communication (COMM) || 1 || 1 
 Communications Networks, Content and Technology (CNECT) || 6 || 6 
 Development and Cooperation – EuropeAid (DEVCO) || 6 || 6 
 Economic and Financial Affairs (ECFIN) || 1 || 2 
 Education and Culture (EAC) || 7 || 8 
 Employment, Social Affairs and Inclusion (EMPL) || 3 || 4 
 Energy (ENER) || 16 || 18 
 Enlargement (ELARG) || 4 || 4 
 Enterprise and Industry (ENTR) || 30 || 33 
 Environment (ENV) || 31 || 33 
 Health and Consumer (SANCO) || 24 || 26 
 Home Affairs (HOME) || 11 || 13 
 Humanitarian Aid and Civil Protection (ECHO) || 2 || 3 
 Informatics (DIGIT) || 1 || 1 
 Internal Market (MARKT) || 15 || 15 
 Justice (JUST) || 14 || 17 
 Maritime Affairs and Fisheries (MARE) || 4 || 4 
 Mobility and Transport (MOVE) || 31 || 32 
 Regional Policy (REGIO) || 1 || 2 
 Research (RTD) || 6 || 8 
 Secretariat-General (SG) || 2* || 2* 
 Service for foreign policy instruments (FPI) || 4 || 4 
 Statistics (ESTAT) || 7 || 7 
 Taxation and Customs Union (TAXUD) || 11 || 13 
 Trade (TRADE) || 11 || 13 
 TOTAL: || 271 || 302 
* Including
the appeal committee (for the needs of the comitology register, the appeal
committee is registered as a committee under the responsibility of SG; in
practice, it is managed by all services concerned).
In
2013, the comitology committees could generally be broken down according to the
type of procedure under which they operated (advisory procedure, examination
procedure, regulatory procedure with scrutiny — see Table II). Certain
committees which applied multiple procedures have been separated from
committees operating under a single procedure.
TABLE II — Number
of committees by procedure (2013)
   || Type of procedure ||   
 Advisory || Examination || Regulatory with scrutiny || Operates under several procedures || TOTAL: 
 AGRI || 0 || 15 || 0 || 5 || 20 
 BUDG || 1 || 1 || 0 || 0 || 2 
 CLIMA || 0 || 0 || 0 || 4 || 4 
 CNECT || 0 || 2 || 0 || 4 || 6 
 COMM || 0 || 1 || 0 || 0 || 1 
 DEVCO || 0 || 5 || 0 || 1 || 6 
 DIGIT || 0 || 1 || 0 || 0 || 1 
 EAC || 1 || 2 || 0 || 5 || 8 
 ECFIN || 1 || 0 || 0 || 1 || 2 
 ECHO || 0 || 2 || 0 || 1 || 3 
 ELARG || 1 || 3 || 0 || 0 || 4 
 EMPL || 0 || 0 || 2 || 2 || 4 
 ENER || 3 || 8 || 1 || 6 || 18 
 ENTR || 6 || 6 || 4 || 17 || 33 
 ENV || 0 || 6 || 5 || 22 || 33 
 ESTAT || 0 || 3 || 0 || 4 || 7 
 FPI || 0 || 4 || 0 || 0 || 4 
 HOME || 1 || 6 || 0 || 6 || 13 
 JUST || 3 || 4 || 4 || 6 || 17 
 MARE || 0 || 4 || 0 || 0 || 4 
 MARKT || 0 || 2 || 4 || 9 || 15 
 MOVE || 3 || 7 || 4 || 18 || 32 
 OLAF || 0 || 0 || 0 || 1 || 1 
 REGIO || 0 || 0 || 0 || 2 || 2 
 RTD || 0 || 6 || 0 || 2 || 8 
 SANCO || 1 || 9 || 1 || 15 || 26 
 SG || 0 || 2 || 0 || 0 || 2 
 TAXUD || 1 || 11 || 0 || 1 || 13 
 TRADE || 3 || 6 || 0 || 4 || 13 
 TOTAL: || 25 || 116 || 25 || 136 || 302 
* Including
the appeal committee.
The
number of committees is not the only indicator of activity at comitology level.
The number of meetings held, as well as the number of written
procedures[10] used
in 2013, also reflects the intensity of work in general, both at sector level
and in individual committees (Table III).
TABLE
III — Number of meetings and written
procedures (2013)
   || Number of committees || Meetings || Written procedures 
 2012 || 2013 || 2012 || 2013 
 AGRI || 20 || 134 || 132 || 3 || 3 
 BUDG || 2 || 5 || 6 || 0 || 1 
 CLIMA || 4 || 16 || 13 || 0 || 3 
 CNECT || 6 || 26 || 16 || 7 || 12 
 COMM || 1 || 1 || 2 || 2 || 4 
 DEVCO || 6 || 24 || 20 || 28 || 48 
 DIGIT || 1 || 2 || 2 || 0 || 0 
 EAC || 9 || 14 || 9 || 53 || 59 
 ECFIN || 2 || 1 || 0 || 0 || 0 
 ECHO || 3 || 4 || 5 || 6 || 5 
 ELARG || 4 || 5 || 4 || 22 || 10 
 EMPL || 4 || 2 || 2 || 6 || 15 
 ENER || 18 || 27 || 33 || 9 || 2 
 ENTR || 33 || 51 || 56 || 25 || 29 
 ENV || 33 || 46 || 42 || 14 || 18 
 ESTAT || 7 || 12 || 12 || 6 || 4 
 FPI || 4 || 7 || 4 || 7 || 7 
 HOME || 13 || 31 || 21 || 40 || 15 
 JUST || 17 || 7 || 4 || 18 || 11 
 MARE || 4 || 11 || 8 || 8 || 15 
 MARKT || 15 || 11 || 9 || 7 || 6 
 MOVE || 32 || 50 || 52 || 22 || 16 
 OLAF || 1 || 4 || 2 || 0 || 0 
 REGIO || 2 || 7 || 7 || 6 || 3 
 RTD || 8 || 56 || 23 || 227 || 240 
 SANCO || 26 || 144 || 127 || 354 || 403 
 SG || 2 || 3* || 7* || 0 || 0 
 TAXUD || 13 || 81 || 81 || 14 || 32 
 TRADE || 13 || 15 || 19 || 5 || 9 
 TOTAL: || 302 || 797 || 718 || 889 || 970 
*
Including 7 meetings of the appeal committee.
2.2       Number
of opinions and implementing acts/ measures
As
always, this report provides overall figures on the formal opinions
delivered by the committees and the subsequent implementing acts/measures
adopted by the Commission[11].
These figures quantify the tangible ‘output’ of the committees (see Table IV).
TABLE
IV — Number of opinions and implementing
acts/measures adopted (2013)
   || Opinions || Acts adopted || Measures adopted according to RPS 
 AGRI || 189 || 202 || 1 
 BUDG || 9 || 9 || 0 
 CLIMA || 11 || 5 || 8 
 CNECT || 45 || 45 || 1 
 COMM || 4 || 4 || 0 
 DEVCO || 127 || 127 || 0 
 DIGIT || 1 || 1 || 0 
 EAC || 75 || 55 || 0 
 ECFIN || 0 || 1 || 0 
 ECHO || 6 || 7 || 0 
 ELARG || 35 || 39 || 0 
 EMPL || 14 || 14 || 0 
 ENER || 17 || 3 || 7 
 ENTR || 49 || 29 || 21 
 ENV || 60 || 36 || 25 
 ESTAT || 13 || 4 || 13 
 FPI || 6 || 6 || 0 
 HOME || 21 || 19 || 0 
 JUST || 11 || 12 || 0 
 MARE || 29 || 29 || 0 
 MARKT || 7 || 4 || 8 
 MOVE || 56 || 39 || 7 
 OLAF || 0 || 0 || 0 
 REGIO || 4 || 5 || 0 
 RTD || 250 || 250 || 0 
 SANCO || 709 || 605 || 80 
 SG || 9* || 8 || 0 
 TAXUD || 105 || 106 || 0 
 TRADE || 54 || 52 || 0 
 TOTAL: || 1 916 || 1 716 || 171 
*
Including 9 opinions delivered by the appeal committee.
2.3       Meetings
of the appeal committee
The
appeal committee met 7 times during 2013, and discussed 9 draft implementing
acts altogether (in the areas of health and consumer policy, customs and
environment) which were referred by the Commission. In all 9 cases, the appeal
committee delivered no opinion and the Commission decided to adopt 8 of these
implementing acts.
2.4       Use
of the regulatory procedure with scrutiny (RPS)
As
mentioned under Section 1, the RPS has not been affected by the comitology
reform of 2011. This procedure can no longer be used in new legislation, but it
still appears in many existing basic acts and will continue to apply under
those acts until they are aligned. In 2013, 171 measures were adopted according
to the RPS (see Table IV). The right of veto was used in one case (DG
ENV). In 2012, by comparison, the right of veto was not used.
TABLE
V — Number of measures adopted according
to the regulatory procedure with scrutiny (RPS) (2013)
   || Measures adopted according to RPS || EP opposed adoption of draft measures under RPS || Council opposed adoption of draft measures under RPS 
 AGRI || 1 || 0 || 1 
 BUDG || 0 || 0 || 0 
 CLIMA || 8 || 0 || 0 
 CNECT || 1 || 0 || 0 
 COMM || 0 || 0 || 0 
 DEVCO || 0 || 0 || 0 
 DIGIT || 0 || 0 || 0 
 EAC || 0 || 0 || 0 
 ECFIN || 0 || 0 || 0 
 ECHO || 0 || 0 || 0 
 ELARG || 0 || 0 || 0 
 EMPL || 0 || 0 || 0 
 ENER || 7 || 0 || 0 
 ENTR || 21 || 0 || 0 
 ENV || 25 || 1 || 0 
 ESTAT || 13 || 0 || 0 
 FPI || 0 || 0 || 0 
 HOME || 0 || 0 || 0 
 JUST || 0 || 0 || 0 
 MARE || 0 || 0 || 0 
 MARKT || 8 || 0 || 0 
 MOVE || 7 || 0 || 0 
 OLAF || 0 || 0 || 0 
 REGIO || 0 || 0 || 0 
 RTD || 0 || 0 || 0 
 SANCO || 80 || 0 || 0 
 SG || 0 || 0 || 0 
 TAXUD || 0 || 0 || 0 
 TRADE || 0 || 0 || 0 
 TOTAL: || 171 || 1 || 1 
3.         Detailed
information on the activities of the committees
The
working document accompanying this report provides detailed information about
the work of the individual committees in 2013, broken down on the basis of the
different Commission departments concerned.
[1]               OJ L 55, 28.2.2011, p. 13.
[2]               Report from the Commission on the working of
committees during 2012, COM(2013) 701 final.
[3]               Council Decision 1999/468/EC
of 28 June 1999 (OJ L 184, 17.7.1999, p. 23), as amended by Council Decision
2006/512/EC (OJ C 255, 21.10.2006, p. 4).
[4]               This statement was published in the Official Journal
together with Regulation (EU) No 182/2011 (OJ L 55 of 28.2.2011, p. 19).
[5]               COM(2013) 0451, 0452 and 0751.
[6]               OJ C 183, 24.6.2011, p. 13. 
[7]               Which is without prejudice to the adoption of
implementing acts in exceptional cases as provided in Article 7.
[8]               Judgment of 26 September 2013 in case T-164/10, Pioneer Hi-Bred
International, Inc. v European Commission and Judgment of 13 December 2013 in
case T-240/10, Hungary v European Commission. 
[9]               For more details see: http://ec.europa.eu/transparency/regexpert/index.cfm

[10]             The committee voting can take place in a regular
committee meeting or, in duly justified cases, by written procedure, in
accordance with Article 3(5) of the Comitology Regulation.
[11]             It is to be noted that there can be discrepancies
between the number of opinions and the number of implementing acts/measures in
any given year. The reasons for these are explained in the introduction to the
accompanying staff working document.