Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending 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
Date: 2017-02-14
Institutions: European Commission, Secretariat-General
Subjects: EU Member State, European Commission, comitology, committee (EU), powers of the institutions (EU), transfer of competence

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   EUROPEAN COMMISSION  Strasbourg, 14.2.2017  COM(2017) 85 final 2017/0035 (COD)   Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending 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  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

This initiative follows up on a statement by the President of the Commission in his State of 
the Union address to the European Parliament in September 2016 when he said: 'It is not right 
that  when  EU  countries  cannot  decide  among  themselves  whether  or  not  to  ban  the  use  of 
glyphosate  in  herbicides,  the  Commission  is  forced  by  Parliament  and  Council  to  take  a 
decision. So we will change those rules – because that is not democracy.1'. 

On  several  occasions  concerning  the  adoption  of  acts  which  are  subject  to  the  comitology 
procedure, the Commission has found itself in the past years in a situation where it is legally 
obliged to take an authorisation decision in the absence of a qualified majority of the Member 
States taking position (either in favour or against) in the committee. This 'no opinion' situation 
is  in  the  Commission's  view  particularly  problematic  when  it  concerns  politically  sensitive 
matters  of  direct  impact  on  citizens  and  businesses,  for  instance  in  the  field  of  health  and 
safety of humans, animals or plants. 

The majority of Union legal acts adopted each year are adopted by the Commission pursuant 
to  the  powers  conferred  on  it  by  the  European  Parliament  and  the  Council  as  co-legislator, 
either  by  means  of  delegated  acts  under  Article  290  TFEU  or  as  implementing  acts  under 
Article 291 TFEU2. Unlike for delegated acts under Article 290 TFEU, the rules and general 
principles  concerning  mechanisms  for  control  by  Member  States  of  the  Commission's 
exercise  of  implementing  powers  under  Article  291(3)  TFEU  are  laid  down  in  advance  in 
regulations adopted by ordinary legislative procedure. Such rules and principles are set out in 
Regulation (EU) No 182/2011 (the 'Comitology' Regulation)3. 

The  present  proposal  provides  for  targeted  and  limited  amendments  to  Regulation  (EU)  No 
182/2011 and thus relates to implementing acts only. 

The Commission reported to the European Parliament and the Council on the implementation 
of  Regulation  (EU)  No  182/2011  in  February  20164.  That  report  concluded  that  the 
Regulation  allowed  the  effective  use  of  the  Commission's  implementing  powers  under  the 
control  of  Member  States.  The  present  proposal  therefore  does  not  aim  at  changing  the 
comitology  framework  as  such.  The  report  however  also  outlined  a  limited  number  of 
problematic cases, notably in relation to decision-making on genetically modified organisms 
(GMOs). In these cases, there has never been a qualified majority amongst Member States in 
favour  or  against  a  draft  Commission  decision  authorising  genetically  modified  organisms 
(GMOs) and genetically modified (GM) food and feed. Instead, all votes resulted in so-called 
'no  opinion'  outcomes,  i.e.  that  the committee  could  not  reach  a  position  either  in  favour  or 
against a draft act. This result was then always repeated in the appeal committee, a body that 
is  meant  to  help  decision-making  in  sensitive  and  problematic  cases.  As  a  consequence, 

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State of the Union Address 2016: https://ec.europa.eu/priorities/state-union-2016_en 
In 2016 the Commission adopted 137 delegated acts and 1494 implementing acts. 
Regulation  (EU)  No  182/2011  of  the  European  Parliament  and  of  the  Council  of  16  February  2011 
laying down the rules and general principles concerning mechanisms for control by Member States of 
the Commission’s exercise of implementing powers, OJ L 55, 28.2.2011, page 13. 
Report  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  implementation  of 
Regulation (EU) 182/2011, 26.2.2016, COM(2016)92. 

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decisions  in  this  field  had  to  be  taken  systematically  without  the  support  of  a  qualified 
majority of Member States in the Committee5. 

The Commission has already taken steps to take account of the specific situation in the field 
of GMOs. Following the Directive for authorisations of cultivation6, which entered into force 
in 2015, the Commission adopted in April 2015 a proposal following the same logic to amend 
the legislative framework in relation to food and feed7. The solution proposed is maintaining 
the  centralised  authorisation  process,  while  allowing  opt-out  measures  by  Member  States. 
This proposal is still in the legislative process. 

The  discussions  around  the  extension  of  the  approval  period  of  the  active  substance 
glyphosate in the appeal committee in summer 2016 have shown that the no opinion problem 
is not limited to GMOs. Also in this case Member States could neither muster a majority in 
favour or against the approval decision in the appeal committee and the Commission had to 
decide  without  the  support  of  the  Member  States8.  As  indicated  above,  this  is  all  the  more 
problematic  because  these  decisions  often  concern  politically  sensitive  matters  of  direct 
impact  on  citizens  and  businesses,  in  particular  in  the  field  of  health  and  safety  of  humans, 
animals  and  plants.  While  the  Commission  is  empowered  to  decide  in  such  cases,  the 
Commission  considers  that,  due  to  the  particular  sensitivity  of  the  issues  at  stake,  Member 
States  should,  in  these  specific  situations,  also  assume  their  responsibilities  in  the  decision-
making process to a greater extent. This, however, is not sufficiently ensured where Member 
States  cannot  reach  a  qualified  majority  because  some  of  them  decide  to  abstain  at  the 
moment  of  the  vote  or  are  not  present  at  the  meetings  of  the  committees  or  of  the  appeal 
committee. 

The Commission therefore considers that there is a need to address this issue through a few 
very targeted changes to the rules on comitology procedures. It has accordingly announced an 
initiative on the modernisation of the comitology procedures in its 2017 Work Programme9. 

This  proposal  contains  four  targeted  amendments.  The  subject-matter  of  this  proposal  is 
strictly limited to these four targeted amendments and does not extend to any other element of 
Regulation  (EU)  No  182/2011.  Indeed,  the  Commission  is  of  the  opinion  that  the  system 
established by Regulation (EU) No 182/2011 has overall proven to work well in practice and 
struck  an  appropriate  institutional  balance  as  regards  the  roles  of  the  Commission  and  the 
other  actors  involved.  The  Commission  therefore  considers  it  essential  that  this  system 
continue to function unchanged but for the targeted amendments proposed. The sole objective 
of these amendments is to improve the functioning of the comitology procedures at the level 
of  the  appeal  committee  in  order  to  ensure  wider  political  accountability  and  ownership  of 

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See  Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions,  Reviewing  the  decision-making 
process on genetically modified organisms (GMOs) of 22.4.2015, COM(2015)176. 
Directive (EU) 2015/412 of the European Parliament and of the Council of 11 March 2015 amending 
Directive  2001/18/EC  as  regards  the  possibility  for  the  Member  States  to  restrict  or  prohibit  the 
cultivation of genetically modified organisms (GMOs) in their territory, OJ L 68, 13.3.2015, p. 1. 
Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 
1829/2003 as regards the possibility for the Member States to restrict or prohibit the use of genetically 
modified food and feed on their territory, 22.4.2015, COM(2015) 177. 
Commission  Implementing  Regulation  (EU)  2016/4152/1  of  29  June  2016  amending  Implementing 
Regulation (EU) No 540/2011 as regards the  extension of the approval period of the active substance 
glyphosate. 
Commission  Work  Programme  2017,  Delivering  a  Europe  that  protects,  empowers  and  defends, 
25.10.2016, COM(2016) 710. 

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politically sensitive implementing acts, without however modifying the legal and institutional 
responsibilities for implementing acts as organised by Regulation (EU) No 182/2011. 

• 

The current legislative framework  

Regulation  (EU)  No  182/2011  sets  out  the  mechanism  for  the  control  of  the  Commission's 
exercise  of  implementing  powers  by  Member  States.  Under  the  most  frequently  used 
procedure,  the  so-called  'examination  procedure'10,  the  Commission  representatives  submit 
draft implementing acts to a committee composed of representatives from the Member States, 
which gives its opinion, generally by vote. These votes follow the qualified majority rule as 
set out in the Treaties. Three scenarios may happen at this stage in the committee voting: 

– 

– 

– 

If there is a qualified majority of Member States in favour of the Commission's draft 
act (positive opinion) the Commission must adopt the act. 

If  there  is  a  qualified  majority  against  (negative  opinion)  the  Commission  cannot 
adopt the act. 

If  there  is  no  qualified  majority  for  or  against  (no  opinion)  the  Commission  may 
adopt the draft implementing act – which means that it may also decide not to adopt 
it. 

The reason behind allowing the Commission to adopt implementing acts as long as there is no 
qualified majority of Member States against the measure is to ensure effective implementation 
of the legislation. Only opposition from a qualified majority of Member States can block the 
adoption by the Commission of implementing acts. On this point, there is a parallelism with 
the provisions on delegated acts, since for these a (qualified) majority is  also  needed, albeit 
not  in  a  committee  but  in  the  European  Parliament  or  in  the  Council,  for  preventing  an  act 
from entering into force. 

There are, however, a number of specific cases listed in the Comitology Regulation11 in which 
the  Commission  is  legally  prevented  from  adopting  the  implementing  act  in  a  no  opinion 
situation at the stage of the examination committee. This applies in three different cases: 

(1) 

(2) 

(3) 

in  certain  policy  areas  (taxation,  financial  services,  the  protection  of  the  health  or 
safety of humans, animals or plants, or definitive multilateral safeguard measures); 

if the basic act provides that the draft implementing act may not be adopted in a 'no 
opinion' situation (so-called 'no opinion clause'); 

if a simple majority of the component members of the committee opposes the draft 
act. 

In such cases, the Commission refers the implementing act to the appeal committee, which is 
also  composed  of  Member  State  representatives,  but  at  a  higher  level.  If  in  the  appeal 
committee there is again a no opinion, the Commission may adopt the draft. This means that 
in such cases, the Commission is confronted at the end of the examination procedure with a 
no opinion scenario, it has discretion whether or not to adopt the draft implementing act. 

This  discretion  for  the  Commission  in  case  of  a  no  opinion  was  introduced  by  Regulation 
(EU) No 182/2011. Before 2011, in case of a no opinion in the committee, respectively if the 

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The advisory procedure is not relevant here. 
Listed in Article 5(4) of Regulation (EU) No 182/2011.  

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Council did not react, the Commission had no alternative but to adopt the draft implementing 
act.  Increased  flexibility  was  introduced  to  enable  the  Commission  to  reconsider  the  draft 
implementing  act,  whether  or  not  it  should  adopt  it  or  present  an  amended  draft  to  the 
committee, taking into account inter alia the positions expressed by the Member States within 
the committee. This is underlined also by recital 14 of Regulation (EU) No 182/2011, which 
states that "when considering the adoption of draft implementing acts in particularly sensitive 
sectors,  notably  taxation,  consumer  health,  food  safety  and  protection  of  environment,  the 
Commission, in order to find a balanced solution, will, as far as possible, act in such a way as 
to  avoid  going  against  any  predominant  position  which  might  emerge  within  the  appeal 
committee". 

This  flexibility  does  however  not  relieve  the  Commission  from  its  obligation  to  take  a 
decision in cases like those relating to requests for authorisation of the placing on the market 
of products or substances. As the producer that has filed an application for authorisation has 
the right to receive a decision on the request, the Commission is obliged to adopt a decision 
within  a  reasonable  timeframe.  Under  the  earlier  comitology  framework,  the  General  Court 
considered  that  the  Commission  had  failed  to  act  when  it  refrained  from  pursuing  the 
authorisation procedure following a 'no opinion' vote in the committee12. 

Out  of  a  total  of  1726  opinions  delivered  by  committees  in  2015,  there  were  two  negative 
opinions  and  36  cases  of  no  opinions,  which  represent  around  2%  of  the  total.  10  of  these 
were referred to the appeal committee which also resulted in a no opinion. In the period 2011-
2015 in 36 out of the 40 cases submitted to the appeal committee, the latter has confirmed the 
'no opinion' vote. While this concerns an overall low number of cases, these situations occur 
in  very sensitive areas.  The appeal committee  has  therefore not  helped in  coming  to  a clear 
Member State positioning and had little added value so far. The Commission considers that 
the rules governing the appeal committee therefore need to be changed to allow it to fully play 
its role. 

• 

Consistency with existing policy provisions in the policy area 

The  proposed  amendments  to  Regulation  (EU)  No  182/2011  are  targeted  and  limited, 
addressing  exceptional  cases  at  appeal  committee  level.  Since  the  system  set  up  by  the 
Regulation  overall  has  proven  to  work  well,  the  Commission  considers  it  essential  that  this 
system remain untouched for the remainder. 

• 

Consistency with other Union policies 

The proposal is consistent with the Commission proposal in relation to genetically modified 
food and feed13. While that proposal was also partly motivated by the no opinion outcomes in 
this area, the approach proposed there is to allow Member States to restrict or prohibit the use 
of genetically modified food and feed on their territory. This addresses the specific situation 
in this sector and does not relate to the decision-making process itself. The approach followed 
in the present proposal concerns the procedural rules as such, irrespective of the sector. The 
two approaches are thus complementary. 

The  proposal  is  equally  consistent  with  the  two  proposed  regulations  adapting  a  number  of 
legal acts providing for the use of the regulatory procedure with scrutiny to Articles 290 and 

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Judgment of the General Court of 26 September 2013 in Case T-164/10, Pioneer Hi-Bred International, 
Inc. v Commission. 
Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 
1829/2003 as regards the possibility for the Member States to restrict or prohibit the use of genetically 
modified food and feed on their territory, 22.4.2015, COM(2015) 177. 

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291  of  the  Treaty  on  the  Functioning  of  the  European  Union  in  accordance  with  the 
commitment undertaken in the Interinstitutional Agreement on Better Law-Making  14. Those 
proposed  regulations  do  not  propose  any  changes  in  relation  to  the  decision-making 
procedures as such, but seek to align existing empowerments to delegated, and in some cases 
implementing, act empowerments. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  proposal  is  based  on  Article  291(3)  TFEU,  the  legal  basis  for  Regulation  (EU)  No 
182/2011, which this proposal seeks to amend. 

• 

Subsidiarity 

The  Union  has  under  Article  291(3)  TFEU  the  exclusive  competence  for  laying  down  the 
rules  and  general  principles  concerning  mechanisms  for  control  by  Member  State  of  the 
Commission's exercise of implementing powers. 

• 

Proportionality 

The proposed amendments are limited to what is strictly necessary to address the issue and are 
not going beyond what it necessary to achieve the objectives. They are limited to changes at 
the appeal committee level. 

3. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSTMENTS 

EVALUATIONS, 

EX-POST 

OF 

STAKEHOLDER 

The proposal provides for limited changes to the procedures for the adoption of implementing 
acts  at  appeal  committee  level.  These  changes  are  of  a  purely  institutional  and  procedural 
nature, they do not, for instance, change the rules identifying the factors on the basis of which 
the approval of a substance should be assessed. These changes therefore do not have as such 
significant  economic,  environmental  or  social  impacts.  Therefore,  no  impact  assessment  is 
needed. 

4. 

LEGAL ELEMENTS OF THE PROPOSAL  

The appeal committee was introduced in Regulation (EU) No 182/2011 in order to elevate the 
debate, in particular in case the examination committee did not deliver an opinion, to a more 
political  level.  However,  so  far  it  has  generally  not  prevented  no  opinion  situations  from 
arising  nor  helped  clarify  the  position  of  Member  States,  having  thus  demonstrated  limited 
added  value.  The  changes  proposed  aim  at  reducing  the  risk  of  no  opinion  outcomes  at  the 
appeal  committee  level  and  at  facilitating  the  decision-making  and  to  ensure  the  political 
ownership  of  Member  States  of  certain  sensitive  decisions. The  proposed  amendments  will, 
once adopted, need to be reflected in the rules of procedure of the appeal committee, which 

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COM(2016)799: Proposal for a Regulation of the European Parliament and of the Council adapting a 
number of legal acts providing for the use of the regulatory procedure with scrutiny to Articles 290 and 
291  of  the  Treaty  on  the  Functioning  of  the  European  Union  and  COM(2016)798:  Proposal  for  a 
Regulation of the European Parliament and of the Council adapting a number of legal acts in the area of 
Justice providing for the use of the regulatory procedure with scrutiny to Article 290 of the Treaty on 
the Functioning of the European Union. See point 27 of the Interinstitutional Agreement between the 
European Parliament, the Council and the Commission of 13 April 2016 on Better Law-Making, OJ L 
123,  12.5.2016,  p.  1.  As  regards  a  number  of  acts  from  the  field  of  health  and  safety  which  were 
excluded from the aforementioned, the Commission will make an alignment proposal in due course. 

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will  therefore  need  to  be  adapted  in  accordance  with  Article  3(7)  of  Regulation  (EU)  No 
182/2011. 

• 

Changes to the voting rules for the appeal committee  

Committees, including the appeal committee, deliver their opinion according to Article 5(1) 
of Regulation (EU) No 182/2011 in the examination procedure by the majority laid down in 
Articles 16(4) and (5) TEU and, where applicable, Article 238(3) TFEU. Articles 16(4) TEU 
and Article 238(3) TFEU provide for a double majority. Accordingly a qualified majority is 
attained if the majority: 

1)  includes  at  least  55%  of  the  Member  States.  This  means  that  a  qualified  majority 
has to comprise at least 16 Member States. 
2) represents Member States comprising at least 65% of the population of the Union15. 

In cases where not all the Member States participate in the vote, Article 238(3), sub (a), TFEU 
defines a qualified majority as at least 55% of the participating Member States, comprising at 
least 65% of the population of these States. In such cases, a blocking minority must include at 
least a minimum number of Member States representing more than 35% of the population of 
the participating Member States, plus one Member State, failing which the qualified majority 
shall be deemed attained. 

Under the current rules abstentions, or Member States that are not present or represented, do 
not  count  for  attaining  a  qualified  majority  in  favour  or  against,  but  they  are  not  deducted 
from the overall figures on the basis of which the 55 % of the Member States and the 65 % of 
the  population  of  the  Union  are  counted.  This  means  in  practice  that  abstentions  expressed 
during votes and absences of Member States that decide not to be present or to be represented 
lead  to  a  higher  likelihood  of  no  opinion  outcomes,  thus  shifting  the  decision  to  the 
Commission. The current rules do not incentivise Member States to vote in favour or against 
the  draft  implementing  act.  The  current  voting  rules  therefore  have  not  allowed  the  appeal 
committee to play its role. 

It is therefore proposed to change the voting rules for the appeal committee in order to reduce 
the  risk  of  a  no  opinion  scenario  and  to  clarify  the  positions  of  the  Member  States  by 
considering that Member States which are not present, or which abstain, are 'non-participating 
Member  States'  for  the  calculation  of  the  qualified  majority.  This  means  that  the  double 
majority  (55%  of  Member  States  representing  65%  of  population)  will  be  calculated  based 
only  on  Member  States  taking  part  in  the  vote,  thus  vote  either  in  favour  or  against,  in 
accordance with Article 238(3) (a) of the TFEU. The blocking minority will be calculated in 
accordance with that Treaty provision as well. 

In  order  to  ensure  that  the  vote  is  representative  a  quorum  must  be  introduced  in  the 
Comitology Regulation16, providing that a vote shall be considered to be valid only if a simple 
majority of the Member States are participating members in the vote in the appeal committee. 
The respective changes will be introduced in Article 6(1) of Regulation (EU) No 182/2011. 
As is already the case now, in order to avoid that the process is blocked because no quorum 
can  be  achieved,  when  the  time-limit  for  the  appeal  committee  to  deliver  an  opinion  has 
expired the appeal committee is considered to not have delivered an opinion. 

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The population figures and the percentages that they represent are set out in Annex III to the Council's 
Rules of Procedure,  Council Decision 2009/937 of 1 December 2009 adopting the Council's Rules of 
Procedure (2009/937/EU) (OJ L 325, 11.12.2009, p. 35), as amended by Council Decision 2016/2353 
of 8 December 2016, OJ L 348, 21.12.2016, p. 27. 
Currently  the  rules  of  procedure  foresee  a  quorum  and  provide  that  the  presence  of  the  majority  of 
Member States is required, OJ C 183, 24.6.2011, p. 13. 

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• 

Further referral to the appeal committee at ministerial level 

The  appeal  committee  has,  as  described  above,  so  far  generally  not  prevented  no  opinion 
situations from arising nor helped to clarify the position of Member States. Regulation (EU) 
No  182/2011  makes  reference  to  an  appropriate  level  of  representation17  and  the  Rules  of 
Procedure for the appeal committee, agreed by the Member States, specify that as a general 
rule  the  representation  in  the  committee  should  not  be  below  the  level  of  Permanent 
Representatives18.  Experience  shows  that  Member  States  were  so  far  in  most  cases 
represented by their Permanent Representations. 

In  order  to  strengthen  the  role  of  the  appeal  committee  in  particularly  sensitive  cases,  it  is 
proposed to provide for the possibility of a further referral to the appeal committee where no 
opinion  is  delivered.  This  will  allow  addressing  the  problematic  issues  again  at  the 
appropriate political level. To this end it is proposed to provide that the Chair may decide to 
hold  a  further  appeal  committee  meeting  while  indicating  that  the  appropriate  level  of 
representation  for  that  meeting  is  at  ministerial  level.  To  allow  the  organisation  of  such  a 
further  meeting  the  timeframe  for  the  appeal  committee  to  deliver  an  opinion  should  be 
extended  by  one  month  to  a  total  of  three  months  from  the  initial  referral.  The  respective 
changes will be included in Article 3(7) of Regulation (EU) No 182/2011. 

• 

Make individual Member State representatives' votes at appeal committee level 
public  

The votes of the Member State representatives in the appeal committee are currently covered 
by the confidentiality rules provided for in the rules of procedures for the appeal committee19, 
as is the case for the examination and advisory committees20. Article 10 of Regulation (EU) 
No 182/2011 provides for the information on committee proceedings that can be made public 
and in relation to the voting refers to the "voting results", i.e. the total voting results only, not 
the  individual  Member  State  votes.  The  Commission  considers  that  more  transparency  is 
needed  in  relation  to  the  positions  that  Member  State  representatives  take  in  the  appeal 
committee. The proposal to make public the votes of the Member States' representatives aims 
at increasing clarity on the position of Member States. The respective provision to make the 
individual Member State representatives vote in the appeal committee public will be included 
in Article 10(1)(e) and (5) of Regulation (EU) No 182/2011. 

• 

 Foresee the right to refer the matter to the Council for an opinion 

Under  Article  291  TFEU  the  Commission  is  empowered  by  the  legislator  to  adopt 
implementing  acts  under  the  control  of  Member  States.  The  European  Parliament  and  the 
Council have therefore no role in the decision-making procedure itself and their involvement 
is limited to the right of scrutiny under Article 11 of Regulation (EU) No 182/2011. 

According  to  Article  291(1)  TFEU,  it  is  the  Member  States  that  are  responsible  for  the 
implementation of Union acts and that control the Commission in case implementing powers 
are conferred on it. In cases in which Member States do not come to a clear opinion within 
this control process there should be a possibility to refer the issue to the Council, as the Union 
institution in which the Member States governments are represented at ministerial level and 

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Article 3(7) of Regulation (EU) No 182/2011. 
Article 1 (5) of the Standard Rules of Procedure of the Appeal Committee, OJ C 183, 24.6.2011, p. 13. 
According  to  Articles  9(2)  and  12(2)  of  the  Standard  Rules  of  Procedure  summary  records  of  the 
meetings shall not mention the position of individual Member States in the Committee's discussions and 
the Committee's discussions shall be confidential. 
See Article 10(2) and 13(2) of the Standard Rules of Procedures for Committees, OJ C 206, 12.7.2011, p. 11. 

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have a global view of all Union policies. It is therefore proposed to enable the Commission to 
formally refer specific cases after a no opinion outcome in  the appeal committee for a non-
binding  opinion  to  the  Council,  with  a  view  to  obtaining  its  political  orientation  on  the 
implications  of  the  no  opinion  outcome,  including  the  institutional,  legal,  political  and 
international implications. The Commission should take account of any position expressed by 
the Council within 3 months  after the referral. In duly  justified cases, the Commission  may 
indicate a shorter deadline in the referral. 

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2017/0035 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending 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 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 291(3) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

Regulation  (EU)  No  182/2011  of  the  European  Parliament  and  of  the  Council21  lays 
down the rules and general principles concerning mechanisms for control by Member 
States of the Commission's exercise of implementing powers. 

The system established by Regulation (EC) No 182/2011 has, overall, proven to work 
well in practice and struck an appropriate institutional balance as regards the roles of 
the Commission and the other actors involved. That system should therefore continue 
to  function  unchanged  except  for  certain  targeted  amendments  concerning  specific 
aspects  of  procedure  at  the  level  of  the  appeal  committee.  These  amendments  are 
intended to ensure wider political accountability and ownership of politically sensitive 
implementing  acts  without,  however,  modifying 
institutional 
responsibilities for implementing acts as organised by Regulation (EU) No 182/2011. 

legal  and 

the 

In a number of specific cases, Regulation (EU) No 182/2011 provides for referral to 
the  appeal  committee.  In  practice,  the  appeal  committee  has  been  seized  in  cases 
where  no  qualified  majority,  either  in  favour  or  against,  was  attained  within  the 
committee  in  the  context  of  the  examination  procedure  and  thus  no  opinion  was 
delivered.  In  the  majority  of  cases  this  happened  in  relation  to  genetically  modified 
organisms and genetically modified food and feed and plant protection products. 

Experience has shown that, in the vast majority of cases, the appeal committee repeats 
the outcome of the examination committee and results in no opinion being delivered. 
The appeal committee has therefore not helped in providing clarity on Member State 
positions. 

(5) 

Regulation (EU) No 182/2011 provides that the Commission may in such cases adopt 
the draft implementing act, thus giving the Commission discretion. 

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Regulation  (EU)  No  182/2011  of  the  European  Parliament  and  of  the  Council  of  16  February  2011 
laying down the rules and general principles concerning mechanisms for control by Member States of 
the Commission’s exercise of implementing powers (OJ L55, 28.2.20011, p.13). 

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(6) 

That discretion is, however, significantly reduced in cases relating to the authorisation 
of products or substances, such as in the area of genetically modified food and feed, as 
the  Commission  is  obliged  to  adopt  a  decision  within  a  reasonable  time  and  cannot 
abstain from taking a decision. 

(7)  While  the  Commission  is  empowered  to  decide  in  such  cases,  due  to  the  particular 
sensitivity  of  the  issues  at  stake,  Member  States  should  also  fully  assume  their 
responsibility  in  the  decision-making  process.  This,  however,  is  not  the  case  when 
Member  States  are  not  able  to  reach  a  qualified  majority,  due  to,  amongst  others,  a 
significant number of abstentions or non-appearances at the moment of the vote. 

(8) 

(9) 

In order to increase the added value of the appeal committee its role should therefore 
be  strengthened  by  providing  for  the  possibility  of  holding  a  further  meeting  of  the 
appeal  committee  whenever  no  opinion  is  delivered.  The  appropriate  level  of 
representation  at  the  further  meeting  of  the  appeal  committee  should  be  ministerial 
level,  to  ensure  a  political  discussion.  To  allow  the  organisation  of  such  a  further 
meeting  the  timeframe  for  the  appeal  committee  to  deliver  an  opinion  should  be 
extended. 

The  voting  rules  for  the  appeal  committee  should  be  changed  in  order  to  reduce  the 
risk  of  no  opinion  being  delivered  and  to  provide  an  incentive  for  Member  State 
representatives  to  take  a  clear  position.  To  this  end  only  Member  States  which  are 
present or represented, and which do not abstain, should be considered as participating 
Member States for the calculation of the qualified majority. In order to ensure that the 
voting  outcome  is  representative  a  vote  should  only  be  considered  valid  if  a  simple 
majority of the Member States are participating members of the appeal committee.  If 
the quorum is not reached before expiry of the time-limit for the committee to take a 
decision, it will be considered that the committee delivered no opinion, as is the case 
today. 

(10)  The Commission should have the possibility, in specific cases, to ask the  Council to 
indicate  its  views  and  orientation  on  the  wider  implications  of  the  absence  of  an 
opinion, including the institutional, legal, political and international implications. The 
Commission  should  take  account  of  any  position  expressed  by  the  Council  within  3 
months  after  the  referral.  In  duly  justified  cases,  the  Commission  may  indicate  a 
shorter deadline in the referral. 

(11)  Transparency  on  the  votes  of  Member  State  representatives  at  the  appeal  committee 
level  should  be  increased  and  the  individual  Member  State  representatives'  votes 
should be made public. 

(12)  Regulation (EU) No 182/2011 should therefore be amended accordingly, 

HAVE ADOPTED THIS REGULATION: 

Regulation (EU) No 182/2011 is amended as follows: 

Article 1 

(1) in Article 3(7), the following sixth subparagraph is added:  

"Where  no  opinion  is  delivered  in  the  appeal  committee  pursuant  to  the  second 
subparagraph  of  Article  6(3),  the  chair  may  decide  that  the  appeal  committee  shall 

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hold a further meeting, at ministerial level. In such cases the appeal committee shall 
deliver its opinion within 3 months of the initial date of referral. "; 

(2) Article 6 is amended as follows: 

(a) in paragraph 1, the following second subparagraph is added: 

"However, only members of the appeal committee who are present or represented at 
the  time  of  the  vote,  and  do  not  abstain  from  voting,  shall  be  considered  as 
participating  members  of  the  appeal  committee.  The  majority  referred  to  in  Article 
5(1) shall be the qualified majority referred to in Article 238(3) (a) TFEU. A vote shall 
only  be  considered  to  be  valid  if  a  simple  majority  of  the  Member  States  are 
participating members."; 

(b) the following paragraph 3a is inserted: 

"3a.  Where  no  opinion  is  delivered  in  the  appeal  committee,  the  Commission  may 
refer the matter to the Council for an opinion indicating its views and orientation on 
the  wider  implications  of  the  absence  of  opinion,  including  the  institutional,  legal, 
political  and  international  implications.  The  Commission  shall  take  account  of  any 
position expressed by the Council within 3 months after the referral. In duly justified 
cases, the Commission may indicate a shorter deadline in the referral."; 

(3) Article 10 is amended as follows: 

(a) in paragraph 1, point (e) is replaced by the following: 

"(e)  the  voting  results  including,  in  the  case  of  the  appeal  committee,  the  votes 
expressed by the representative of each Member State; "; 

(b) paragraph 5 is replaced by the following: 

"5.  The  references  of  all  documents  referred  to  in  points  (a)  to  (d),  (f)  and  (g)  of 
paragraph  1  as  well  as  the  information  referred  to  in  points  (e)  and  (h)  of  that 
paragraph shall be made public in the register." 

This  Regulation  shall  not  apply  to  pending  procedures  on  which  the  appeal  committee  has 
already delivered an opinion on the date of entry into force of this Regulation. 

Article 2 

This  Regulation  shall  enter  into  force  on  the    day  following  that  of  its  publication  in  the 
Official Journal of the European Union. 

Article 3 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

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Done at Strasbourg, 

For the European Parliament 
The President 

For the Council 
The President 

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