There is a strong school of thought in Brussels that member states were not fully cognisant of the implications of Articles 290 and 291 when they agreed to the Lisbon Treaty. “We have been told by national officials that they did not have time to read the treaty. It was slipped through. Comitology is not exciting, but it has implications, and like insurance policies, it is the small print that is important,” explains one lobbyist.

To such allegations, supporters of the new system maintain the procedures were fully discussed in the Amato working group in the convention, which laid the original foundations for the new treaty. But as one national official admits: “This was a very technical issue and no one appeared to realise the political impact until the implementing regulation was being negotiated and is now being applied.”

EARLY SKIRMISHES

Irrespective of the amount of attention governments paid to the legal wording of the two articles, there is little doubt that the member states have been ready to flex their muscles and have since aimed to tilt the power balance more in their direction. During the early running-in period of the new procedures when the Commission pushed delegated acts, it found to its surprise, that these were being resisted.

As one insider notes: “In the early days of the new arrangements, it seemed there was no single week when the question of comitology was not discussed in Coreper on a case-by-case basis. There were at least three occasions where all 27 member states said that the measures should not be delegated, prompting the Commission to express its ‘disappointment’ at their reaction.”

Such discussions are less frequent now. They probably number one a month – a frequency which may reflect the small number of legislative proposals coming through the pipeline or greater familiarity by all concerned on the process and parameters of the new procedures.

Indeed, according to one observer: “Even if the others do not speak, 26 of the 27 member states have the same stance: they prefer implementing measures.” The one exception is Belgium, which tends to take the view that it is more important to process the legislation than to wrangle over what can appear to be technical and procedural issues.

At the outset, Denmark, France and the UK took the lead in advocating implementing powers whenever a legislative proposal was debated in the Council of Ministers or Coreper I (deputy permanent representatives).

Denmark’s vigour may have stemmed from the fact that the country’s parliament has a powerful European affairs committee that keeps a close eye on the government’s activities in Brussels. The French and British stance may reflect both countries’ sensitivity to issues of national sovereignty. But reactions in the Council can also be determined by the personalities of the senior diplomats around the table – some are more outspoken than others.

More recently, observers noted that Denmark became less vociferous. This possibly reflected the imminence of its EU Presidency during which emphasis is on astute chairmanship and consensus building. The UK has also been known to occasionally support delegated acts when it believed legal analysis justified them.

CONSULTATION PROCEDURES

In the early stages of the new procedure, Denmark, Germany and the UK presented a non-paper to clarify the consultation procedures which the Commission should follow when preparing and drawing up delegated acts. They took the initiative after the Commission, in October 2010, had consulted first stakeholders, then national experts and finally stakeholders again on energy efficiency and TV labelling legislation. The trio insisted that national experts had to have the final input before the Commission draws up a delegated act.

Although the principle is not specifically set out in the common understanding, the document commits the Commission to “timely,” “appropriate” and “transparent” consultation. However, it is contained in the Power Point presentation, which the Commission uses to explain the new procedures. This states that “stakeholders may also be consulted, but in terms of sequencing experts from member states should be consulted last”.

At the same time, it appears that the Commission is looking to be cooperative, not confrontational. On one early proposal, it consulted national experts four times before preparing its delegated act. As one observer of the process notes: “The Commission is being very constructive and takes on board comments member states make”.

Nevertheless, in this case several countries felt the Commission had not paid sufficient attention to advice from experts and raised concerns over the procedure followed. The opposition seems to stem from the fact that there is no possibility of amending the Commission’s delegated act once it has been prepared – the act submitted for consultation to Council and Parliament can only be withdrawn or maintained.

EXTRA RULES ON IMPLEMENTING POWERS

EU governments have also sought to shape the new comitology rules through Regulation 182/2011 setting out the rules and general principles for member state control of the Commission’s use of implementing powers. Finally agreed, on 16 February, this is a complex document, whose main achievement is to place more flesh on the bones of Article 291.

The negotiations were extended by six months as different camps (Germany and the UK in one and France and Italy in another) argued over the way trade and commercial policy issues should be handled in the new procedures, with Berlin expressing some of the most trenchant views in those negotiations. The final compromise appears to be one everyone can live with, although one witness remembers “extremely unpleasant discussions between member states” and considers the final product to be “one of the most convoluted pieces of legislation ever”.

Interestingly, the original draft of the regulation contained no reference to an appeal committee. Member states insisted it be created. At its very first meeting, it had just one item on its agenda: to decide its own rules of procedure. In a sign that EU governments wanted it to resemble Coreper I as much as possible, national representation tends to be at the level of deputy permanent representative or equivalent.

The aim of this initiative was to dissuade the Commission from bringing a proposal to this level and to encourage it to find a compromise within the less politicised examination procedure committee. Again, the appeal committee’s existence helps to strengthen member states’ control over the powers given to the Commission, possibly at the expense of the Council itself, since its members, while representing national administrations, tend to have more of a national than European culture, according to one source.

At its second meeting, the appeal committee considered approval of the pesticide Asulam. The level of representation was as expected: some 70% of participants were deputy permanent representatives and the remainder equivalent level directors from national capitals.

The next clarification of the new rules came with agreement on the common understanding on delegated acts, on 14 April. Although this is not legally binding, there is a strong feeling that if the Commission does not respect its contents, particularly on consultation of national experts, it would be hauled over the coals by member states, with governments confident they could muster the necessary qualified majority to block a proposal on procedural grounds.

Alignment of measures agreed under the old comitology procedure is also taking up much of the Council’s time, particularly for the special agriculture committee. In the first phase, the Commission is looking to move 120 agricultural measures and a further 30 in other policy areas into the new system.

IMPLEMENTING VS DELEGATED POWERS

Member states largely dislike delegated acts because they have little room for manoeuvre. Their only choice is to accept the text presented by the Commission or to take the nuclear route and revoke by qualified majority the actual power in the delegated action – an option that they have not used until now.

Another, more political, consideration also comes into play. There is a fear among some member states that the European Parliament could be susceptible to outside pressure when taking decisions under delegated acts. Legislation on novel foods provided a clear example of the differences between the two institutions. Member states wanted implementing measures to apply to which foods could be placed on the authorised list. MEPs wanted delegated acts.

Rightly or wrongly, the Council believed that if the Parliament had this power, MEPs would pay more attention to politics than science. Indeed, some feared that it might prevent authorisation for any GMO crops at all in Europe. On a wider note, there was concern that this could set precedents in other areas.

That attention to precedent, as the new system beds in, is constantly present in member states’ minds as they consider which route to take under the new procedures. They are aware that any decision now could have longer term implications that go far beyond the individual issue currently on the table.

Implementing acts give member states more scope to inject their views into Commission draft texts. In particular, they like to steer these towards the examination procedure committee. Composed of national representatives and chaired by the Commission, it takes decisions by qualified majority, enabling member states to give a positive, negative or no opinion. “The committee’s practices work and they are already known. It is familiar territory and there is an obligation on the Commission to follow the Council’s views,” explains one official.

“In the early days of the new arrangements, it seemed there was no single week when the question of comitology was not discussed in Coreper on a case-by-case basis”