What is Comitology? How are implementing acts adopted? How are delegated acts adopted? How do committees work? Scrutiny by EU Council and Parliament Comitology in the Treaty on the Functioning of the EU ('TFEU')

1. Comitology
Prepared By
Jaafar Alshawi
Faculty of Law, Administration and Economics
University of Wroclaw
2022

2. What is Comitology?
• During the co-decision process or the ordinary legislative procedure (as it is called after
the entry into force of the Lisbon Treaty), the Commission makes a proposal, which then
passes on to the Council of the EU and the European Parliament, who are the two co-
legislators responsible for taking decisions and developing laws. That takes between 12
and 48 months but towards the lower end now.
• To give practical effect to that legislation, we then have another process which is the
process we call Comitology whereby the Commission takes a decision often assisted by
national experts from the Member States. It will be scrutinized and networked by the
European Parliament and the Council and then it will develop these non-legislative acts.
They apply with equal force to legislation and can happen to have an impact. It can take
at least two days to reach decision, if it is an urgent process or several months.
Therefore, it is a lot quicker than the legislative process.

3. Comitology in the Treaty on the Functioning of
the EU ('TFEU')
• The Treaty on the Functioning of the EU ('TFEU') establishes two
separate (mutually exclusive) procedures that:
• The 'delegated act' procedure (based on Article 290, TFEU) allows the
Commission to adopt 'non-legislative acts of general application to
supplement or amend certain non-essential elements' of a legislative
act. The original legislative act must expressly grant this 'quasilegislative'
power to the Commission. The objective of this procedure appears to be
to allow the Commission, exercising its discretion and judgment, to
adopt measures to achieve administrative efficiencies.
• The procedure is likely to be used (but not exclusively) in circumstances
where the current regulatory procedure with scrutiny applies.

4. Comitology in the Treaty on the Functioning of
the EU ('TFEU')
• The 'implementing act' procedure (based on Article 291, TFEU) allows
the Commission to implement 'legally binding Union acts'. In doing so,
the Commission exercises an 'executive' power.
• The objective of this procedure appears to be to provide the
Commission with the power to act to achieve uniform implementation
of an act.
• The procedure is likely to be used in circumstances where the current
advisory, management, and regulatory procedures apply.

5. What’s the difference between these two systems?
• They both deal with non-legislative acts but there a couple of key
differences between these procedures.
• Delegated acts are always to amend and supplement legislation and
are by nature non-essential. Hence, law can exist without these rules.
In the health claims legislation for example, there is a part on nutrient
profiles where the law has existed since 2007 without these nutrient
profiles ever being established. But the law still works; there is still a
Regulation of health claims. Delegated acts are just another layer so it
is not an essential part, but it’s a part that supplements the basic
legislation.

6. • Whereas implementing acts are also non-legislative acts but they
implement the legislation, and in that sense, they are essential.
• So, if we take for example the legislation on CO2 emissions from cars,
the legislator said that there need to be levels of emissions sets which
manufacturers cannot go beyond. Without implementing acts, which
actually set those levels, the law would not have any practical effect.
So, implementing acts are often essential.
What’s the difference between these two systems?

7. Implementing and delegated acts
• Once an EU law is passed, it can be necessary to update it to reflect
developments in a particular sector or to ensure that it is
implemented properly. Parliament and Council can authorize the
Commission to adopt delegated or implementing acts, respectively, in
order to do this.

8. How are implementing acts adopted?
• Before the Commission can adopt an implementing act, it must usually
consult a committee in which every EU country is represented.
• The committee enables EU countries to oversee the Commission's work as
it adopts an implementing act – a procedure referred to in EU jargon as
‘comitology’.
• As part of the Commission's better regulation agenda, citizens and other
stakeholders can provide feedback on the draft text of an implementing act
for four weeks before the relevant committee votes to accept or reject it.
There are some exceptions, for example, in case of emergency or when
citizens and stakeholders have already contributed.
• An overview of the feedback gathered is presented to the committee, and
the resulting discussion is included in the summary record, which is
published in the comitology register.

9. Delegated acts
• The Commission adopts them on the basis of a delegation granted in
the text of an EU law, in this case a legislative act.
• The Commission's power to adopt delegated acts is subject to strict
limits:
• the delegated act cannot change the essential elements of the law
• the legislative act must define the objectives, content, scope and duration of
the delegation of power
• Parliament and Council may revoke the delegation or express objections to
the delegated act

10. How are delegated acts adopted?
• The Commission prepares and adopts delegated acts after consulting
expert groups, composed of representatives from each EU country, which
meet on a regular or occasional basis.
• As part of the Commission's better regulation agenda, citizens and other
stakeholders can provide feedback on the draft text of a delegated act
during a four-week period. There are some exceptions, for example, in case
of emergency or when citizens and stakeholders have already contributed.
• Once the Commission has adopted the act, Parliament and Council
generally have two months to formulate any objections. If they do not, the
delegated act enters into force.
• Adopted acts contain an 'explanatory memorandum' summarising the
feedback received and how it was used.

11. When does comitology apply?
• Comitology applies when the Commission has been granted
implementing powers in the text of a law. The same law also
stipulates that the Commission is to be assisted by a committee when
defining the measures contained in the resulting implementing act.
• Comitology is not compulsory for all implementing acts – some of
which the Commission can adopt without consulting a committee (for
example, when allocating grants under a certain amount).

12. How does comitology work?
• When the Commission adopts implementing acts, one of the following
procedures applies:
• examination procedure – used particularly for (i) measures with general scope and
(ii) measures with a potentially significant impact (in areas such as taxation or
agricultural policy)
• advisory procedure – generally used for all other implementing acts.
• Both procedures require that a committee composed of representatives
from all EU countries provide a formal opinion, usually in the form of a
vote, on the Commission's proposed measures.
• Depending on the procedure, committee opinions can be more or less
binding on the Commission.

13. Examination procedure
• if a qualified majority (55% of EU countries representing at least 65%
of the total EU population) votes in favour of the proposed
implementing act, the Commission must adopt it
• if a qualified majority votes against the proposed act, the Commission
may not adopt it
• if there is no qualified majority either for or against the proposed act,
the Commission can either adopt it or submit a new, amended
version.

14. Advisory procedure
• the Commission decides on its own whether to adopt the proposed
act, but must 'take the utmost account' of the committee's opinion
before deciding

15. How do committees work?
• Comitology committees are set up by the legislator (Council and European
Parliament or Council alone). They include 1 representative from every EU
country and are chaired by a Commission official.
• Each committee decides its operating procedures, based on standard
committee rules of procedure.
• Commission departments submit draft implementing acts to the
responsible committees for an opinion.
• Before each meeting, the Commission sends national authorities the
invitation, agenda and draft implementing act. After the meeting, the
Commission publishes the voting results and the summary record of the
meeting in the comitology register.
• The Commission publishes an annual report on the work of the comitology
committees, which details their activities in each policy sector.

16. Appeal committee
• If the Commission is prevented from adopting a proposed
implementing act (particularly where the comitology committee
voted against it), it can refer the case to the appeal committee.
• The appeal committee functions in a similar way to the other
comitology committees: it is made up of EU countries' representatives
but at a higher level of representation. It is chaired by the
Commission and follows the same voting rules.
• It gives EU countries the opportunity to have a second discussion.
• If the appeal committee rules against the Commission's proposed
implementing act, the Commission must abide by its decision.

17. Scrutiny by EU Council and Parliament
• In addition to EU member countries through the comitology
committees, the Commission's implementing powers are also subject
to supplementary checks by the European Parliament and EU Council,
which have a:
• right of information – all proposed Commission actions discussed in the
committees are simultaneously disclosed to Parliament and Council.
• right of scrutiny – where Commission actions relate to a legislative act passed
by the ordinary legislative procedure, Parliament and/or Council can object to
the proposed implementing act if it exceeds the Commission's powers
defined in the initial act. The Commission is then obliged to review its
proposed act in the light of this input and decide whether to maintain, amend
or withdraw it.

18. Reference
• https://ec.europa.eu/info/law/law-making-process/adopting-eu-
law/implementing-and-delegated-acts_en
• https://ec.europa.eu/transparency/comitology-register/screen/committees
• https://ec.europa.eu/info/law/law-making-process/adopting-eu-
law/implementing-and-delegated-acts/comitology_en
• https://www.mondaq.com/life-sciences-biotechnology-
nanotechnology/117766/comitology-after-the-lisbon-treaty
• https://www.eu-academy.eu/free-resources/webinars/eu-regulatory-
affairs-what-you-should-know-about-implementing-and-delegated-
acts/#Comitology%20Basics:%20What,%20Who,%20Why,%20When?