The European Parliament and the Future of Comitology after Lisbon

• Published date: 01 May 2013
• Date: 01 May 2013
• DOI: http://doi.org/10.1111/eulj.12029

The European Parliament and the Future

of Comitology after Lisbon

Michael Kaeding* and Alan Hardacre*

Abstract: 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.

I Introduction

From obscure beginnings in the field of purely technical agricultural markets in

the 1960s, the comitology system has gained an ever-increasing importance in EU

decision making.1While 454 legislative acts were adopted during the sixth legislature

under Barroso I (2004–2009), 14 522 non-legislative acts, ie implementing measures,

were agreed upon. Understanding how the 266 comitology committees that were

responsible for these measures work is crucial for a complete picture of EU policy

* Michael Kaeding, Professor für Europäische Integration und Europapolitik, Institut für Politikwissen-

schaft, Universität Duisburg-Essen; Alan Hardacre, Lecturer, European Institute of Public Administra-

tion (EIPA), Maastricht, the Netherlands.

1F. Franchino, ‘Control of the Commission’s Executive Functions: Uncertainty, Conflict and Decision

Rules’, (2000) 1 European Union Politics 63; F. Franchino, The Powers of the Union: Delegation in the EU

(Cambridge University Press, 2007); M. Pollack, The Engines of European Integration: Delegation,

Agency and Agenda Setting in the European Union (Oxford University Press, 2003); C.F. Bergström,

Comitology: Delegation of Powers in the European Union and Committee System (Oxford University

Press, 2005); T. Christiansen, J.M. Oettel and B. Vaccari, 21st Century Comitology. Implementing

Committees in the Enlarged European Union (European Institute of Public Administration (EIPA), 2009);

E. Vos, ‘50 Years of European Integration, 45 Years of Comitology’, (2009) Maastricht Faculty of Law

Working Paper 3; G.J. Brandsma, ‘Accounting for Input in Comitology Committees: An Uncomfortable

Silence’, (2010) 17(4) Journal of European Public Policy 487–505. An earlier version of this article can be

accessed at M. Kaeding and A. Hardacre, ‘The execution of delegated powers after Lisbon. A timely

analysis of the regulatory procedure with scrutiny and its lessons for delegated acts’, (2010) 85 EUI

Robert Schuman Center for Advanced Studies (RSCAS).

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European Law Journal, Vol. 19, No. 3, May 2013, pp. 382–403.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

making.2The importance of understanding how these measures are adopted has

gained further necessity with the Treaty of Lisbon and the changes it is ushering in.

Whilst comitology has been about since the 1960s, the European Parliament,

however, has only recently gained a foothold in the comitology system. In explicit

response to a number of the Parliament’s claims concerning its involvement in the

delegation of powers to the Commission,3it was subsequently given the following

three powers: first, the right of information (Article 7 of Council Decision 1999/468/

EC); second, the right of scrutiny (Article 8 of Council Decision 1999/468/EC, known

better by its French name of droit de regard), which is the right for the Parliament to

pass a non-binding resolution if it considers that the Commission has gone beyond its

implementing powers. By adding a fifth comitology procedure in 2006, next to the

advisory, management, regulatory and safeguard procedures, the regulatory proce-

dure with scrutiny (RPS) granted the Parliament a third power; the right of veto over

individual measures. The creation of this procedure was symbolically very important

because it granted the Parliament powers over comitology that more accurately

reflected its powers in co-decision. It effectively increased democratic control over

comitology decisions4and brought the Parliament onto an almost-equal footing with

the Council for all the basic acts adopted under co-decision.

The Treaty of Lisbon significantly changes the practice of comitology in a number

of ways, two of which are worth expanding on.5First, it extends the co-decision

procedure (ordinary legislative procedure) to 45 additional policy areas, meaning that

the scope of Parliament involvement in comitology is extended. This role is important,

as over time, implementing measures have evolved from simple technical agricultural

measures, as they were in the 1960s, to substantial political, economic and financial

measures across all policy areas. Second, Article 290 TFEU takes the RPS category of

implementing measures and gives it a separate legal base and a totally new procedure

from standard comitology (Implementing Acts, Article 291 TFEU): Delegated Acts.

Next to a strengthened right of veto, Delegated Acts provide the Parliament with a

fourth power: the right of revocation of the delegation to the Commission. Under this

new situation, the Parliament will thus have four main powers, and moreover, stand

on an equal footing with the Council. The implications of this recent change are

considerable and therefore require serious attention by the Parliament itself, the

Council, the Commission and outside stakeholders.

This article takes up the call and offers a timely analysis of RPS and what this could

mean for Delegated Acts. Based on the experiences from the last three and a half

years in Parliament, it is possible to draw a series of helpful lessons for these new

Delegated Acts. The Parliament, in particular, has gained experience with RPS that it

will carry over into its work with Delegated Acts—principally in two ways: First,

2European Commission (2009–2005) Report from the Commission on the working of Committees,

Luxembourg: Office for Official Publications of the European Communities.

3C.F. Bergström, H. Farrell and A. Héritier, ‘Legislate or Delegate? Bargaining over Implementation and

Legislative Authority in the European Union’, (2007) 30(2) West European Politics 338–366. A. Héritier

and C. Moury, ‘Contested Delegation: The Impact of Codecision on Comitology’, (2009) EUI Working

Paper RSCAS (64).

4T. Christiansen and B. Vaccari, ‘The 2006 Comitology Reform: Problem Solved or Conflict Postponed?’

in T. Christiansen, J.M. Oettel and B. Vaccari (eds), 21st Century Comitology. Implementing Committees

in the Enlarged European Union (European Institute of Public Administration (EIPA), 2009), at 333–352.

5Also consult H. Hoffmann, ‘Legislation, Delegation and Implementation under Treaty of Lisbon:

Typology Meets Reality’, (2009) 15(4) European Law Journal 482–505.

May 2013 Regulatory Procedure with Scrutiny and Delegated Acts

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