On Tuesday 14 February, the European Commission adopted a proposal aiming to modify Regulation 182/2011 on 'comitology' in order, it explains, to increase "transparency and accountability in the procedures for implementation of EU legislation". In particular, it suggests changes to the voting rules in the committee of appeal responsible for re-examining draft texts or making changes to them, if necessary.
After having held a guideline debate on 1 February on updating the comitology rules (see EUROPE 11716), the College of Commissioners delivered on one of the promises made by President Jean-Claude Juncker, who said in his State of the Union speech of September 2016 that "it's 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".
The comitology system works well for the vast majority of decisions. In recent years, however, in many sensitive dossiers, member states have been unable to achieve the required majorities to vote for or against certain draft texts (a no-opinion scenario). In such cases, the responsibility to make the final decision falls upon the Commission, requiring it to make this decision without clear political backing from the member states. In 2015 and 2016, the Commission was legally obliged to adopt 17 acts concerning the authorisation of sensitive products and substances such as glyphosate or genetically modified organisms (GMO), even though the member states were unable to take position either in favour of or against the proposals (see EUROPE 11583, 11713).
The raft of four targeted amendments will reinforce transparency as regards the positions adopted by the member state, help to ensure greater political guidance and build more accountability into the decision-making process.
Changes to the voting rules for the last stage in the procedure (appeal committee). The aim is that only votes for or against a text will be counted, which will reduce the number of abstentions and the number of situations in which, as the committee is unable to take position, the Commission is obliged to act with no clear mandate from the member states, the Commission explains in a press release. The Commission's text proposes changing the voting rules of the appeal committee to reduce the risk of a no-opinion scenario and clarify the positions of the member states by providing that those not in attendance or abstaining are deemed 'non-participating' countries when calculating the qualified majority. This means that the double majority (55% of numbers states representing 65% of the 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 Treaty, the Commission's text explains. Blocking minorities will be calculated in accordance with that Treaty provision as well.
Under the current rules, a qualified majority is reached if the majority: - includes at least 55% of the member states (which means that a qualified majority has to comprise at least 16 member states); - the member states voting in favour represent at least 65% of the population of the Union.
Involvement of the national ministers. This involvement will be obtained by authorising the Commission to refer a text to the appeal committee a second time, at ministerial level, if the national experts do not take position (or in the event that the vote at the first meeting has been postponed), which will help to ensure that sensitive decisions are examined at the appropriate political level.
Greater transparency in the vote at appeal committee level. This will be achieved by publishing the votes cast by the representatives of member states. Currently, the votes of the representatives of the member state at the appeal committee are covered by the confidentiality rules provided for in the rules of procedure of the appeal committee (as is the case for the examination and advisory committees). The Commission takes the view that greater transparency is needed over the positions adopted by the member states' representatives at the appeal committee. The proposal aims to publish these votes to increase the clarity of their position, the Commission explains.
A guarantee of political input. This will be achieved by allowing the Commission to refer a matter to the Council of Ministers for an opinion if the appeal committee is unable to take position. In line with article 291(1) of the Treaty, it is the member states that are responsible for implementing Union acts and controlling the Commission if implementing powers are conferred upon it. In the event that the member states do not reach an opinion in this control procedure, it should be possible to put the matter to the Council, as this is the only political body at EU level that is made up of the member states, the text explains. It is proposed that the Commission be given the right to bring specific cases to the Council following a 'no-opinion' outcome in the appeal committee. The aim, the Commission explains, is to secure political guidance 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 three months after the referral. In duly justified cases, the Commission may indicate a shorter deadline in the referral, the text states. The text has been put to the Council and Parliament for scrutiny. (Original version in French by Lionel Changeur)