Legislative Procedure in the European Union

Comitology System in Focus - VCI Position Paper on Regulation 182/2011

The EU Commission presented a revision proposal for Regulation 182/2011, which prescribes the course of action in important “comitology” procedures. This was driven by past experience e.g. in the authorization of glyphosate, accompanied by disagreement among experts in the appeal committee of the so-called “examination procedure”. Some of the reform proposals strive for more transparency which is to be welcomed. Others however involve the risk of politicizing the administrative examination procedure. In VCI’s view, the comitology system can be optimized without changing the Regulation.

The German Chemical Industry Association advocates that democratically legitimised politicians set out a clear framework in the European legislative process. But with legal certainty in mind, within that legal framework, all evidence-based decisions need to be left to the objective administrative actors. - Photo: © European Union - EP Paul-Henri SPAAK building : © Association des Architectes du CIC: Vanden Bossche sprl, CRV s.A., CDG sprl, Studiegroep D. Bontinck
The German Chemical Industry Association advocates that democratically legitimised politicians set out a clear framework in the European legislative process. But with legal certainty in mind, within that legal framework, all evidence-based decisions need to be left to the objective administrative actors. - Photo: © European Union - EP Paul-Henri SPAAK building : © Association des Architectes du CIC: Vanden Bossche sprl, CRV s.A., CDG sprl, Studiegroep D. Bontinck

Background

In mid-February 2017, the Commission presented a revision proposal for Regulation 182/2011, which prescribes the course of action in important “comitology” procedures.

The Commission proposal needs to be seen against the backdrop of past experience e.g. in the authorisation of glyphosate: According to the Plant Protection Product Regulation the so-called examination procedure applies for such authorisations. In this type of comitology procedure a situation can arise where – if there is disagreement among the experts in the appeal committee – the final decision on adopting an implementing act rests with the Commission. In the past, experts from some Member States abstained. Now, the Commission wants to place more responsibility on the Member States for the future. The Commission is trying to achieve this through a targeted reform of the appeal committee within the examination procedure: In essence, changes to the voting rules for the examination committee will be made, and its votes made public. While this transparency is welcomed in principle, two further reform steps involve the risk of politicising the administrative examination procedure: Where a vote is inconclusive a second appeal committee meeting should be held at ministerial level. A non-binding opinion from the Council can be sought.

Apart from this targeted revision of the Regulation, we should bear in mind that other changes to the established comitology system can be made in the ordinary legislative procedure or that this central pillar of European decision-making, as a whole, could even be questioned.

Core Messages

  • The German Chemical Industry Association (VCI) welcomes the Commission’s initiative to optimise the “comitology system”. Clear evidence-based decision-making, taking into account existing laws, a thorough examination of scientific facts and the given situation, as well as being widely accepted through proper communication, is of key importance to the chemical industry. Scientifically-sound decisions taken on the basis of the innovation principle can increase confidence in the European decision-making process. Better Regulation instruments in particular could make a key contribution to the further development of the procedures. There is no need to revise Regulation 182/2011.
  • The European Parliament and Council are responsible for ensuring a political balance of interests in the legislative procedure. Once the political issues are settled, European legislation results. The Commission – in its function as executive and administrative actor – then has a central role in ensuring the uniform implementation of such ‘European laws’. Regulation 182/2011 stipulates the ways in which the national administrations of the Member States can support and monitor the Commission in taking evidence-based decisions. In our view the Commission proposal for amending Regulation 182/2011 goes a step too far. Through direct or indirect institutionalisation of the Council’s role in the examination procedure, it may put at risk this clear separation, according to which political issues are regulated by democratically legitimised political actors within the legislative procedure, while – within the legislative framework - evidence-based decisions on specific cases are made by objective executive or administrative actors.
  • The Commission could in fact make use of its right to bring political issues which have not yet been clarified back into the legislative process. This would prevent the constant politicisation of administrative decisions.
  • The German Chemical Industry Association supports the Commission in its call to administrative actors of Member States to play an active role and meet their responsibility, especially in the examination procedure. There could be a practical and easily implemented solution to enhance the responsibilities of the national administrations of the Member States:
  • According to Regulation 182/2011, the Commission can take the decision on whether to accept or reject a proposed measure in the examination procedure if no opinion is delivered by the appeal committee. If the Commission decided that draft implementing acts were to be adopted in the absence of an appeal committee opinion, national experts would have greater incentive to give their clear view. If the national experts then decide not to deliver an opinion, the Commission and public can assume that the national administration experts support the decision. This solution would require no amendment to Regulation 182/2011 and would mean that no potential risk would arise to the overall functioning system.
  • The German Chemical Industry Association would like to emphasize that there are practical solutions which do not necessitate amendments to Regulation 182/2011. If a legislation amendment is politically unavoidable, we should proceed with great caution and in a minimally invasive manner, in order to safeguard the overall system – which leads each year to around 1500 implementing acts in a wide range of policy areas:
  • Article 6 (3), which currently states: “where no opinion is delivered, the Commission may adopt the draft implementing act”, could be amended to: “where no opinion is delivered, the Commission shall adopt the draft implementing act”. This automatism could further enhance the responsibility of the national administrative actors.

You will find VCI's full position paper (size: 5 pages) in the download section at the top of this page.