The European Parliament and the Future of Comitology after Lisbon

The history of comitology—the system of implementation committees that control the Commission in the execution of delegated powers—has been characterised by institutional tensions. The crux of these tensions has often been the role of the European Parliament and its quest to be granted powers equal to those of the Council. This process came to a head with the 2006 Comitology reform and the introduction of the regulatory procedure with scrutiny (RPS). After just over three years of experience with the RPS procedure, the Treaty of Lisbon has made it redundant through the creation of Delegated Acts (Article 290 TFEU). This article aims to evaluate the practical implications that Delegated Acts will entail for the Parliament, principally by using the experience with the RPS to better understand the challenges ahead. This analysis will be of interest to those following the study of comitology, formal and informal inter‐institutional relations and also to practitioners who will have to work with Delegated Acts in the future.     

Restriction of Hazardous Substances: On the Need for and the Limits of Comitology

This article demonstrates the need for and the limits of the so-called comitology procedure in the area of European waste legislation, using the example of Directive 2002/95/ EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment (the RoHS Directive). The RoHS Directive prohibits the use of six hazardous substances in certain electrical and electronic equipment. The Annex to the RoHS Directive, which contains the exemptions from this prohibition, can be amended through the comitology procedure. This procedure is a widely used method in European Community law for the delegation of legislative power from the Council and the European Parliament to the executive branch, i.e. the European Commission. The authors conclude that the use of comitology is indispensable for highly technical issues for which the co-legislators are lacking the time, as well as the resources, to carry out the adaptation of the legislative acts. However, the Commission needs to handle comitology with care; otherwise it runs the risk that its decisions lack legitimacy.     

The European Parliament in Treaty Reform: Predefining IGCs through Interinstitutional Agreements

Abstract:  Despite the fact that Interinstitutional Agreements (IIAs) are an established part of the mass of informal and formal rules structuring EU decision-making and interinstitutional relations, there is as yet no common understanding of their role and functions in the institutional and legal system of the EU—neither in political science nor legal studies. Tracking the evolution of the European Parliament's competencies in three areas where IIAs figure prominently—comitology, legislative planning, and the establishment of procedures to hold the Commission accountable—this article seeks to show that the European Parliament strategically uses IIAs as instruments to wrest competencies from the Council and the Commission. Having no formal say in treaty reform, the European Parliament 'creates facts' through informal but politically binding IIAs hoping that, once established, it can achieve a later codification of its new rights at IGCs. Viewed this way, the analysis of the role of IIAs in Treaty Reform could help to explain a still under-researched puzzle in European integration theory, namely the incremental parliamentarisation of the institutional system of the EU over the last two decades.     

Codifying Temporary Stability? The Role of Interinstitutional Agreements in Budgetary Politics

Abstract:  The article analyses the potential of Interinstitutional Agreements (IIAs) for resolving conflicts in the field of EU budgetary policy. In the 1970s and 1980s, annual budgetary procedures were characterised by intense interinstitutional battles, mainly between the Council and the European Parliament. IIAs concluded during this period tried to clarify pertinent Treaty provisions, but proved to be insufficient to resolve budgetary conflicts stemming from the more general problem of the uneven allocation of budgetary and legislative power between the two institutions involved. It was not before the fundamental budgetary reform in 1988—agreed upon by the European Council and implemented through an IIA along with the gradually increased role in legislative politics granted to European Parliament through several Treaty amendments—that budgetary stability—arrived. Hence, IIAs can be regarded as an improper means to solve profound constitutional problems. Yet, they can be considered as suitable tools to arrange technical details.     

Non‐Legislative Rule Making after the Lisbon Treaty: Implementing the New System of Comitology and Delegated Acts

The reform of comitology and the introduction of the new instrument of delegated acts in the Lisbon Treaty were followed by protracted negotiations on the implementation of both articles. This article examines the resultant system that has emerged for both types of non‐legislative instruments. In the area of implementing acts, a new regulation sets out important changes: a reduction in the number of procedures, the extension of the scope to trade defence measures and the replacement of a referral to the Council with a new appeal committee. With respect to delegated acts, the search for an overarching framework resulted in a Common Understanding. Our analysis not only demonstrates the need to go beyond the treaty provisions in understanding the nature of non‐legislative rule making in the EU, but also emphasises the importance of informal procedures and non‐binding agreements in fully assessing the nature of non‐legislative rule making in this area.     

The European Parliament and Comitology: On the Road to Nowhere?

The European Parliament has generally been deeply distrustful of the comitology system, primarily on the grounds that it allows the national administrations to undermine its supervisory role in the area of implementing legislation. Parliament has therefore sought to use the political, budgetary and jurisdictional means at its disposal to counteract the spread of comitology, or at least to promote the less intrusive forms of committee procedure. These initiatives have not, for the most part, been wholly successful; neither the interinstitutional agreements nor Parliament's arguments before the Court of Justice have produced the results it had hoped for. Parliament has been able, however, to use its Maastricht powers to influence the choice of committee procedure included in legislation adopted under codecision, and its budgetary tactics have forced the Commission to rationalise somewhat the annual expenditure on committees of all kinds and to bring a modicum of transparency into their operation. The imminence of the intergovernmental conference led to a suspension of hostilities towards the end of 1996.     

‘Delegated’ Legislation in the (new) European Union: A Constitutional Analysis

This article brings classic constitutionalism to an analysis of delegated legislation in the European Union. To facilitate such a constitutional analysis, it starts with a comparative excursion introducing the judicial and political safeguards on executive legislation in American constitutionalism. In the European legal order, similar constitutional safeguards emerged in the last fifty years. First, the Court of Justice developed judicial safeguards in the form of a European non‐delegation doctrine. Second, the European legislator has also insisted on political safeguards within delegated legislation. Under the Rome Treaty, ‘comitology’ was the defining characteristic of executive legislation. The Lisbon Treaty represents a revolutionary restructuring of the regulatory process. The (old) Community regime for delegated legislation is split into two halves. Article 290 of the Treaty on the Functioning of the European Union (TFEU) henceforth governs delegations of legislative power, while Article 291 TFEU establishes the constitutional regime for delegations of executive power.     

Legislation, Delegation and Implementation under the Treaty of Lisbon: Typology Meets Reality

Abstract:  The Treaty of Lisbon has introduced a complex new typology of acts, distinguishing between legislative, delegated and implementing acts. This reform, the first since the Treaty of Rome, will have an impact on some of the most contested topics of EU law, touching several central questions of a constitutional nature. This article critically analyses which potential effects and consequences the reform will have. It looks, inter alia, at the aspects of the shifting relation between EU institutions, the distribution of powers between the EU and its Member States, as well as the future of rule-making and implementation structures such as comitology and agencies.     

Why Is Fast Track the Way to Go? Justifications for Early Agreement in the Co‐Decision Procedure and Their Effects

Since the introduction of the co‐decision procedure by way of the Maastricht Treaty, the procedure has been transformed considerably. One of the most striking innovations is the possibility to adopt a legislative act in first reading. This article aims to answer the questions whether the increasing use of this fast track procedure is in line with Treaty provisions and/or intra/inter‐institutional rules, and what the effects are of these stipulations. The empirical findings presented in this study indicate that two reasons for taking the fast track gain dominance in the practical political process, ie the political priorities of the Council and European Parliament (EP) and whether these actors consider a legislative file as urgent. From a study of two directives, it becomes clear that this dominance of factors has consequences for the type of early agreement reached (first or early second), the quality of the adopted legislation and its implementation at the national level.     

Accountability for Delegated and Implementing Acts after the Treaty of Lisbon

The comitology regime, the committee‐based system developed as a mechanism for controlling the Commission's exercise of its powers to implement EU measures, has been subject to severe criticism on grounds of lack of accountability and transparency. The system has recently been fundamentally reformed by means of the new Implementing Acts Regulation, which came into force on 1 March 2011. This paper investigates whether the new rules are sufficient to remedy accountability deficits as regards implementing acts and concludes that as far as accountability to the Member States is concerned, their control powers have remained static. In addition, the new‐delegated acts procedure introduced by the Treaty of Lisbon grants the European Parliament (EP) more control powers, although the EP's gains are more modest than they might appear. This change has come at the cost of reduced control powers for Member States as well as lowered standards of transparency for the public.     

The EU PNR framework decision proposal: Towards completion of the PNR processing scene in Europe

The entry into force of the Lisbon Treaty has suspended discussions over the release of a EU PNR processing system. Plans to introduce an intra-EU PNR processing system initiated since 2007, although strongly supported by the Commission and the Council, did not bear fruit before the ratification of the Lisbon Treaty and the, institutional, involvement of the Parliament. While discussions have been suspended since October 2009 and most probably a new draft proposal will be produced, it is perhaps useful to present in brief the proposal currently in place so as to highlight its shortcomings for European data protection and suggest ways individual protection may be strengthened in future drafts.     

从相互协助到相互承认——欧盟刑事取证立法变迁探析

欧盟刑事取证立法建立在两个不同原则上,一是传统的相互协助基础上的立法,一是1999年坦佩雷会议后,相互承认基础上的立法;这两种立法在欧盟范围内并存。从未来发展看,相互承认基础上的立法将逐步取代相互协助基础上的立法。欧盟理事会2008年12月通过的《欧盟证据令》是欧盟在相互承认基础上取代原有刑事取证立法的第一步,对原有立法进行了制度性革新。欧盟刑事取证立法在取得显著进步的同时,在相互承认原则和公民基本权利保障等方面也面临着诸多挑战。     

The Institutional Interplay Regarding the New Architecture for the EC's External Assistance

Abstract:  The article concerns the inter-institutional relations and describes the dynamics between the main EC institutions in the decision-making process regarding the adoption of the new external action instruments. In 2004, the Commission had proposed a set of new external action instruments as base for the delivery of the Community's external assistance. By that time, the existing instruments amounted to more than 30 different legal instruments, which implicated a loss of efficiency in the management of the EC's external assistance. After 2 years of inter-institutional negotiations between the European Parliament, Council and the Commission, the new set of instruments was finally adopted. Compared to the initial Commission proposals, the design of the new instruments got significantly reshaped in the course of the inter-institutional decision-making procedure. In particular, the European Parliament had gained an unprecedented degree of power over the legislative framework for external spending.
Compared to the former range of geographic and thematic regulations, the new external action instruments fundamentally reform the delivery of external financial assistance with their streamlined and simplified structure. They consist of three horizontal instruments to respond to particular needs or crisis situation: an Instrument for Stability, an Instrument for Nuclear Safety Co-operation) and a European Instrument for Democracy and Human Rights. With regard to geographic coverage, four instruments will implement particular policies: the Instrument for Pre-accession Assistance, the European Neighbourhood and Partnership Instrument and the Instrument for Development Co-operation and an Instrument for Co-operation with Industrialised Countries.     

The power of legislative hot air: Informal rules and the enlargement debate in the European parliament

Integration theorists disagree over the extent to which the European Parliament can substantially influence policy‐making processes in the absence of formal agenda‐setting power. This article discusses the impact the European Parliament had on the current enlargement negotiations. Although the legislature does not yet possess the means to alter the stance of the European Council, it has tried to reverse the status quo through the use of its informal bargaining power. We argue based on a principal‐agent framework of analysis that the effectiveness of this strategy is largely a consequence of the ability to speak with one voice. The article evaluates various mechanisms to help the European Parliament build a unified position. It refutes socialisation and specialisation theories, showing that party group pressure towards a unified position overrode national concerns and constituted a necessary precondition in the development of an integrationist attitude. A statistical analysis of the pre‐bargaining positions inside the Foreign Affairs and Security Committee largely confirms the insights from qualitative interviews with participants and observers.     

The Division of Labour in Legislative Decision-Making of the Council of the European Union

Little systematic empirical research exists about legislative decision-making in the Council of the European Union. This study contributes to closing this gap in the literature by examining which groups of actors within the Council decide on what type of issues. The Council structure is made up of a hierarchy consisting of working parties at the bottom, committees of senior officials in the middle and the ministers at the top. Based on a novel data set of legislative decisions made by the Council, the study examines the relative importance of these different Council levels. Two important findings emerge from the analysis: first, ministers are more involved in legislative decision-making than often assumed in the literature; second, the involvement of higher Council levels increases with features of dossiers that are related to political conflict. Although the results reduces worries about a lack of political accountability of Council decision-making, they cannot dispel these concerns completely.     

The Legitimacy of New Risk Governance—A Critical View in Light of the EU's Approach to Nanotechnologies in Food

The objective of this article is to draw attention to legitimacy concerns raised by tendencies in EU risk regulation to supplement legislation with alternative regulatory options that are commonly captured under the umbrella term of ‘new governance’. To this end, the risk regulation of nanotechnologies in food serves as an empirical test case. The rise of nanotechnologies affects various societal actors and constitutes a highly controversial development due to the persistence of scientific uncertainties. To reach a compromise in the legislative process is, given the contradicting knowledge claims, a contentious and time‐consuming undertaking. This article, hence, shows that controversial decisions are not necessarily taken through the legislature—the European Parliament and the Council—but are settled, outside the political arena, in guidance documents or via non‐legislative acts. This article argues, relying on an understanding of legitimacy borrowed from Habermas and Scharpf, that despite ‘new governance’ ambitions in this direction the legitimacy of these measures is at best controversial.     

The evolution of the political criteria for accession to the European Community, 1957–1973

This article describes the evolution of political conditions for accession to the European Community from 1957 to 1973 on the basis of the responses of the Community and national parliaments to applications for association (Article 238 EC Treaty) and membership (Article 237 EC Treaty) and to a US foreign policy initiative. It challenges the thesis that the European Community was originally uninterested in the political nature of its members as long as they were non‐communist and that the Community made a volte face in 1962 in reaction to a request for an association agreement by Franco's Spain. It argues that the Copenhagen political criteria, except minority protection, were firmly established by 1973 after a series of pronouncements and decisions by the European Parliament, national parliaments (both 1962), the Commission (1967) and the Council (1973). The article aims to contribute to the early history of the constitutionalization of the Union and discusses how demands from outsiders prompted the Six to define the constitutional requirements for (candidate) members. It is partly based on new archival research.     

《欧盟宪法条约》框架下的欧盟机构改革

2004年 10月,欧盟各成员国在罗马签署了《欧盟宪法条约》,这标志着欧盟政治一体化进入了一个崭新的阶段。该条约涉及欧盟政治与经济生活的方方面面,其中最令人关注的莫过于其对欧盟机构体系所进行的改革。《欧盟宪法条约》对欧盟机构体系改革规定了诸多内容,但改革中仍存不足。     

Impact Assessment of EU Non‐Legislative Rulemaking: The Missing Link in ‘New Comitology’

Impact assessment (IA) has gone from an innocuous technical tool typically used in the pre‐legislative phase to an instrument at the heart of the European institutional machinery. However—in deviation from its roots as a tool governing delegated rulemaking in the US—most experience with IA in the EU has been gathered in a legislative context. Against the background of the recent evolution of the EU's old ‘comitology’ system into a two‐track system of delegated acts and implementing measures, this contribution discusses in three parts the ‘whys,’ ‘whats’ and ‘hows’ of extending IA to ‘non‐legislative rulemaking.’ It explores various aspects of the rulemaking process that IA—if properly applied—could strengthen: consultation, control and quality.     

The reluctant activist: the Italian parliament and the scrutiny of EU affairs between institutional opportunities and political legacies

ABSTRACT

The article analyses the participation of the Italian Parliament in the scrutiny of EU affairs after the entry into force of the Treaty of Lisbon and its implementation through the national Law 234/2012. The empirical analysis highlights that notwithstanding the presence of favourable institutional and political conditions, the involvement of the Italian Parliament in EU affairs moderately increased. The Treaty of Lisbon and Italian legislation improved Parliament’s rights to participate in the ascending phase but without altering significantly the balance of powers between the European Commission and NPs, and between the Italian Parliament and the Government. Moreover, MPs perceive the EWS and the PD as not impactful on decision-making at the EU and the national level.