An EU regulation laying down new "comitology" rules for the control by EU Member States of the European Commission's exercise of its implementing powers entered into force today.

The new regulation is intended to put into practice Article 291 of the Treaty on the Functioning of the European Union (TFEU) on implementing acts, which allows for Member States to confer implementing powers on the European Commission.

This new legislation introduces some innovative changes to the workings of comitology, and makes some important changes to the ways in which stakeholders may participate in, prepare for, or work with EU implementing acts. Its entry into force will change significantly the working and decision making process in trade matters, particularly in the area of trade defence.

What is comitology?

Decisions on implementing parts of EU legislation are often taken behind closed doors by European Commission officials assisted by experts from EU Members States ("national experts"), who give their opinion on proposed measures. They meet in specialised committees under a procedure referred to as "comitology". Comitology has spread very quickly across many EU policy areas over time, and there is now virtually no area of EU activity that does not have some comitology with nearly 300 different committees currently in place dealing with all kinds of legislation. In the field of trade defence instruments, for example, the European Commission is assisted by the anti-dumping committee (ADC) and the anti-subsidy committee (ASC).

The situation pre and post Lisbon

Before the entry into force of the Treaty of Lisbon on 1 December 2009, the system operated under the 2006 amendment of Council Decision 1999/468/EC that defined the comitology system. There were five different comitology procedures, all of which entailed the use of a comitology committee: the advisory, management, regulatory, regulatory with scrutiny and the safeguard procedures.

The Treaty of Lisbon introduced two new legal bases (Articles 290 and 291 TFEU) which means that there are currently two possible avenues for delegating powers to the European Commission. Article 290 TFEU concerns "delegated acts", where the European Commission is granted power to supplement or amend the non-essential elements of a legislative act. Article 291 TFEU concerns "implementing powers", which allow for Member States to confer implementing powers on the European Commission "where uniform conditions for the implementation of legally binding Union acts are needed".

New comitology procedures under Article 291 TFEU

Whilst the new regulation maintains a system of committees composed of EU Member State representatives and chaired by the European Commission, a key innovation is that the committees can now only operate under two main procedures: the examination and advisory procedure. The "regulatory procedure with scrutiny" has been maintained for existing legislation, but the European Commission has undertaken to remove from all legislative instruments all provisions relating to the regulatory procedure with scrutiny by 2014.

The examination procedure applies for the adoption of specific measures with a potentially important impact, for instance in the field of agriculture, fisheries, environment, health, trade, and taxation, as well as for measures of general scope, such as the technical details related to the online collection system of statements of support for the European citizens' initiative. The procedure aims to ensure that the European Commission's implementing acts are supported by a qualified majority of the committee. If, however, the committee delivers a negative opinion the European Commission may either submit its draft act to an appeal committee for further discussions or amend the text. If the examination procedure does not deliver an opinion the European Commission may adopt the draft act under certain conditions. The appeals committee is a new creation which will have one representative of each Member State meeting "at the appropriate level" and be chaired by the European Commission. Its creation is the result of negotiations between the European Parliament and Council which wanted to have a political body to look at controversial measures (ie ones which receive no opinion or are voted against).

Impact of the new comitology procedures on international trade matters

Within the examination procedure, specific rules apply for trade matters. These are as follows:

  • The chair of the relevant committee "should endeavour to find solutions which command the widest possible support with the committee or the appeal committee and should explain the manner in which the discussions and suggestions for amendments have been taken into account. For that purpose, the European Commission should pay particular attention to the views expressed within the committee or the appeal committee as regards draft definitive anti-dumping or countervailing measures."
  • Where there is no opinion from the committee and the draft act concerns the adoption of definitive antidumping or countervailing measures and a simple majority opposes it, the European Commission must consult the Member States and submit the draft act to the appeal committee.
  • For a period of 18 months after the entry into force of the new regulation (until 1 September 2012), the appeal committee delivers its opinion on definitive draft anti-dumping or countervailing measures by a simple majority, rather than by a qualified majority.
  • Where the appeal committee does not issue an opinion, the European Commission may adopt the draft act, unless it concerns definitive multilateral safeguard measures where in the absence of a positive opinion voted by qualified majority the European Commission must not adopt the draft act.
  • Where the European Commission adopts provisional anti-dumping or countervailing measures, it may adopt "immediately applicable implementing acts" which do not require prior submission to a committee. The European Commission shall adopt such measures after consulting or, in the cases of extreme urgency, after informing the EU Member States.

The advisory procedure applies as a general rule for the adoption of implementing acts in other fields, such as individual measures in the field of culture. The European Commission presents a draft measure to the committee which then delivers its opinion "if necessary by taking a vote" by simple majority. The European Commission then has to take the "utmost account of the opinion delivered" and inform the committee of the manner in which its opinion has been taken into account. The European Commission is not obliged to follow the committee's opinion.

In both procedures, the European Parliament and the Council have a right of scrutiny. Where the basic act has been adopted under the co-decision procedure, the European Parliament or the Council may at any time inform the European Commission that it considers the proposed implementing act to exceed the powers conferred on it. In such a case, the European Commission must review the draft act and decide whether to maintain, amend or withdraw it.

European Commission statement

The European Commission published an accompanying statement to the Regulation. It notes that it has recently launched a study which will provide a complete review of all aspects of the EU's trade defence policy and practice, and intends, in the light of the results of the study and of developments in the Doha Development Agenda negotiations, to explore whether and how to further update and modernise the EU's trade defence instruments.