New comitology: is it necessarily a bad thing?

In the article titled "Commission accused of power-grab under new EU rules", published on euobserver.com*, Daniel Gueguen criticizes heavily the new comitology, as introduced by the Lisbon Treaty. The criticism is as follows:

Through ratification of the EU's Lisbon Treaty, member states handed greater control over hundreds of daily decisions such as food labeling and trade-protection measures to the commission, Daniel Gueguen, a leading public affairs consultant, told EUobserver.
"The reason why the new system will be worse is its increasing complexity. The commission gets more power to the detriment of member states and lobbyists," said Mr Guéguen, the author of a recent book on the subject.
Asked whether the move amounted to an intentional power-grab by the commission, Mr Guéguen said: "There is no doubt. It's not official but in practice yes. They are the only people who have the time to understand the complexity of the issues. The European Parliament may think it is getting more power but in practice it will not."

Is this criticism justified? I would say: to a certain extent. Much will depend on how the practice will unfold. The European Parliament, the Council and the Member States do retain powers of control vis-a-vis the Commission (see below) and it will be up to them to use these powers effectively so that these powers do not remain "on paper".

Comitology after Lisbon

The Lisbon Treaty brought a revolution in the field of comitology (i.e. the rules governing the adoption of implementing legislation by the Commission on the basis of legislation adopted by the European Parliament and the Council (or, as the case may be, the Council itself). Article 202 TEC is gone and so is the Comitology Decision (1999/468/EC, as amended by 2006/512/EC**). The basis of the (now) old comitology was the committees composed of Member States representatives; in principle, the committees had to be consulted on every piece of implementing legislation. In certain cases, depending on the procedure, the Council was drawn into the game. Still, the Commission was always the principal player. For instance, in the regulatory procedure, qualified majority against or at least blocking minority against within the committee was the only way to prevent the Commission from adopting a measure (in which case the measure was forwarded to the Council and, again, the Commission was barred from adopting the measure only in the case of qualified majority against within the Council).

The Lisbon Treaty entails the following changes:

First of all, the field covered by the Comitology Decision (which laid down a set of procedures to be followed whenever the Commission is conferred the power to adopt implementing legislation) has been split in two: delegated acts (art. 290 TFEU) and implementing acts (art. 291 TFEU). There is a logic behind the two categories: delegated acts are intended to cover cases where the Commission is conferred the legislative power of the European Parliament and the Council (and where the Commission is, one might say, allowed to play the role of the legislator), while implementing acts are said to serve pure implementation.***

The essential elements of the procedure for the adoption of delegated acts are set out in the Treaty on the functioning of the EU itself and each time the European Parliament and the Council (or, as the case may be, the Council alone) adopt a legislative act, a number of provisions in the act need to be devoted to the description of the procedure to be followed when a delegated act is to be adopted on the basis of the legislative act****. As a rule, the procedure for the adoption of a delegated act will be as follows: the Commission adopts a delegated act, the act is forwarded to the European Parliament and the Council who can oppose the act (for whatever reason); if they don't, the act enters into force (if they do, back to square no 1). Surprisingly (at least for someone who looks at things through the glasses of the old comitology), the Treaty fails to speak of committees (the "basis-basis" of the old comitology). Member States managed to force the Commission into a committment to continue to use the committees whenever a delegated act is under preparation, but the truth is the role of the committees will be different (advisory, indicative, nothing more)*****. For this reason, there are opinions that "comitology" might no longer be the right world to describe the system as a whole.

Under art. 291 TFEU (implementing acts), an act similar to the old Comitology Decision was adopted: a Comitology Regulation******. The Regulation provides for two basic procedures (advisory procedure, examination procedure) that, in essence, follow the logic of the old comitology: the basis is the committees composed of Member States representatives. On the other hand, the Regulation provides for no role of the Council. In fact, the original proposal presented by the Commission envisaged a one-stage comitology only, so that the procedure would always be over after the proposed act is dealt with within a committee (and, in the examination procedure, the Commission would only be barred from adopting the implementing act if there was a qualified majority within the committee against). The negotiations within the Council added a second stage to that stage: in specified cases (qualified majority against and, sometimes, no opinion), the procedure will involve a so-called appeal committee. The Commission will then be barred from adopting the implementing act if there was qualified majority against (also) in the appeal committee. The Regulation also provides for a certain role of the European Parliament and the Council (art. 11), but this role can easilly be identified as marginal (one of the institutions can raise an ultra vires objection, yet such an objection is in no way binding on the Commission)*******.

In other words, the Commission is indeed in a powerful position (as the "owner" of the conferred powers), but its powers are not unlimited. The Member States (within the committees), the Council (i.e. the Member States within the Council) and the European Parliament (i.e. the citizens of the Member States) have powers of control and it is for them to use them where appropriate (and to know how to use them), so that the Commission, in reality (which can sometimes be complicated), does not become a true "comitology monarch".

Note: The account of the new comitology is very simplistic. An entire book would be necessary to describe all the (hidden) chambers and modalities.

* http://euobserver.com/9/31895
** The Comitology Decision is not completely dead, as, in particular, the regulatory procedure with scrutiny (art. 5a) remains applicable for indefinite future (i.e. until the legislative acts that contain references to this procedure are aligned with the new system). But this is the only exception (of significance), the old procedures have been replaced by the new procedures as of 1 March 2011.
*** It might be rather difficult to determine whether a particular act is of delegated or implementing nature. For instance, the European Parliament is reported to maintain that any act of general scope would be a delegated act (as a result of which, the category of implementing acts would be limited to individual acts). I would suggest that the category of delegated acts should be limited to the cases where the Commission acts as a legislator and should exclude the cases where the legislator exhausted its will to such an extent that the Commission is reduced to a mechanical implementation of that will.
**** For one example of this, see Regulation (EU) No 438/2010 of the European Parliament and of the Council, which introduced new articles 19a to 19d into the Regulation (EC) No 998/2003 on the animal health requirements applicable to the non- commercial movement of pet animals.
***** The said committment is contained in the Commission Communication of 9 December 2009,
COM(2009) 673 final, titled "Implementation of Article 290 of the Treaty on the Functioning of the European Union". That Communication details the intentions of the Commission and it also contains templates to be introduced into legislative acts for the purposes of setting out the procedure for the adoption of delegated acts. The Communication is to be supplemented by a Common Understanding between the European Parliament and the Council, but this is yet to be adopted.
****** 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.
******* This power is a legacy of the Comitology Decision, which provided for this ultra vires objection in favour of the European Parliament (art. 8).