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Risk regulation at international, European and nationallevel

The Functions of Comitology – What Will Lisbon

Change?

Author: Alke Metselaar

Thesis written under the supervision of Prof. Dr E.I.L. Vos



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All rights reserved. No part of this paper may be reproduced in any form

without the permission of the author(s).

This series of Graduate Theses, written by Bachelor and Master students

of the Faculty of Law at the University of Maastricht

allow their authors to bring their work to a wide audience,

facilitating fruitful discussion and critical input on nascent ideas and projects

to the benefit of both author and reader.

© Alke Metselaar Published in Maastricht, August 2008

Faculty of Law

Universiteit Maastricht

Postbox 616

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Maastricht

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For comments or questions, please contact Prof. Dr E.I.L. Vos: [email protected]

mailto:[email protected]





4

Introduction

The comitology system we know today seems to be about to change. Now, the

term comitology refers to a complex system that is in many ways indicative of the

multifaceted nature of the European Union. It was developed by necessity in the early

1960’s, when it was found that it was nearly impossible for the Council to determine

and agree on all details of the implementation of a legislative act.1 Consequently, certain

non-essential elements of these acts were delegated to the Commission. The most

common interpretations state that the Council created committees to supervise the use of

these delegated powers. 2 The committees, consisting of Member State representatives

(mostly civil servants with a certain expertise), became commonly known as comitology

committees.3 They served to counteract the shift of power that had taken place for

efficiency reasons in favour of the supranational Commission. Their function was to

insert a level of Member State control, but they also re-strengthened the muscle of the

Council – which, of course, also represents the Member States. In subsequent years,

case law of the European Court of Justice (ECJ) has made delegation to the Commission

the norm.4 Also, the ongoing shift in the European institutional balance allowed the

European Parliament to be treated more – although not completely – equally to the

Council.

The comitology system in force today finds its legal basis in Article 202 of the

Treaty of the European Community (ECT). According to its third paragraph, the

Council shall:

‘[c]onfer on the Commission, in the acts which the Council adopts, powers for

the implementation of the rules which the Council lays down. The Council mayimpose certain requirements in respect of the exercise of these powers. The

1Bergström 2005, p. 44.

2Guéguen and Rosberg 2004, p. 21; Curtin 2004, p. 11; Craig and De Búrca, p. 118; Dehousse 2003, p.

798 states that this was the initial function of comitology.3

It is to be noted that the term comitology can be understood in a broad and in a narrow context. The

broader definition refers to the whole spectrum of committees in the European Union. In this paper, I will

adhere to the narrow definition: the supervision through committees of the Commission’s use of

implementing powers. See: Joerges 1999, p. 3.4

Case 16/88 Commission of the European Communities v Council of the European Communities [1989]

E.C.R. 3457; Case 240/90 Federal Republic of Germany v Commission of the European Communities

[1992] E.C.R. I-5383. This was a confirmation of the changes made to (then) Article 145 in the SEA,which introduced the word ‘shall’ instead of ‘may’. See for a fuller description: J.P. Jacqué 1999, pp. 60-

62.



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Council may also reserve the right, in specific cases, to exercise directly

implementing powers itself. The procedures referred to above must be consonant

with principles and rules to be laid down in advance by the Council, acting

unanimously on a proposal from the Commission and after obtaining the opinion

of the European Parliament.’

The imposition of ‘certain requirements’ includes the obligation to consult comitology

committees, whose existence and procedures were first formally laid down in the

Council Decision of 1987.5

This system is considered to have some severe disadvantages. Without going

into detail, one might mention the opaqueness and lack of transparency of the

committees,6 their limited accountability,7 the inconsistency of committee decisions due

to a lack of formalised norms,

8

the interference with the Commission’s executivefunction,9 and the limited Parliamentary influence given the Council’s dominant role,10

leading to a democratic deficit. Perhaps due to this criticism, it looks now as if the

system is about to change. The Treaty of Lisbon, if it is ratified and implemented, will

replace the third paragraph of Article 202 ECT with the concepts of delegated and

implementing acts.11 This may have a profound impact on the comitology system.

The term ‘delegation’ is not used in the current Treaties in the context of Article

202, but it should not be inferred that the Lisbon Treaty introduces an entirely new

concept. The European Court of Justice, faced with the question of the extent to which

powers could be conferred on the Commission in the context of implementation, has

given it a very broad definition. Implementation may not cover the essential elements of

a provision, which includes any element ‘intended to give concrete shape to the

fundamental guidelines of Community policy’.12 It follows that implementation has thus

far been interpreted as any measure that does not cover the essential elements of a

legislative act. Delegated acts, under the Treaty of Lisbon, amend and supplement these

non-essential elements. It is thus clear that the term implementation in that Treaty will

not retain the same definition as the extensive one given by the Court of Justice. Instead,

5Council Decision 87/373/EEC; The inclusion of comitology committees was acknowledged in Case

25/70 Einfuhr- und Vorratsstelle für Getreide und Futtermittel / Köster [1970] E.C.R. 1161, Para. 9. 6

Schaefer and Türk 2007, p. 194.7

Curtin 2007, p. 540; Jansma 2007, p. 9.8

Savino, 2005, p. 30.9

Lintner and Vaccari 2007, p. 203.10

Ibid.11

Whether the ratification will succeed is uncertain given Ireland’s negative referendum. Ireland must

ratify the Treaty through a referendum.12Case 240/90 Federal Republic of Germany v Commission of the European Communities [1992] E.C.R.

I-5383, Paras. 36-37.



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the broad area that is now implementation will be divided into implementing acts and

delegated acts.

Considering the problems now facing the entering into force of the Treaty, these

changes may not occur in the near future – something that will definitely be lamented

by its critics. However, one might ask whether the system was so undesirable to start

with. It is undeniable that comitology has its flaws, but it is also a system that has

fulfilled many useful functions since the early 1960’s. This thesis aims to examine what

consequences the introduction of the concepts of delegated acts and implementing acts

has for comitology. However, perhaps counter-intuitively, it will not seek to study to

what extent the existing problems have been solved. Instead, it aims to examine to what

extent the current functions and advantages will still play a role in the new system. Is it

possible that the new provisions, despite the problems they may solve, will fail to fulfil

some of the current functions of comitology? In other words: to what extent does the

Treaty of Lisbon accommodate for the advantages that exist today?

To answer these questions, the thesis has been divided into three chapters. The

first chapter attempts to outline some of the main benefits of the comitology system as it

exists today. It will appear that these benefits can be separated into two groups. On the

one hand, there are the advantages associated with the increase in delegation to the

Commission that the committees allow, of which three will be discussed. On the other

hand, the essay distinguishes between some important ‘independent’ benefits of the

comitology mechanism. These are advantages created by the composition of the

committees, the expertise of their members and the cooperative nature of decision-

making. Concentrating on a literature study, the first chapter aims to arrive at a list of

advantages that can serve as a basis for further analysis.

The Lisbon Treaty’s distinction between delegated and implementing acts is a

new one, and much uncertainty exists as to when either option will be chosen. This

makes it necessary to devote a chapter to an analysis of what the new system will likely

entail. The second chapter thus outlines the changes made under the Treaty of Lisbon,

with especial attention to the reasons for this change. Although predictions are by nature

difficult to make, it will conclude with a prediction of a likely scenario after the Treaty

of Lisbon in so far as it can be supported by evidence.

Using the first and second chapters, it should then be possible to analyse in the

third chapter to what extent the advantages of comitology are apparent in delegated and

implementing acts, and where they are strongest.



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Chapter 1 - Functions of the committees

1.1 Introduction

When discussing the advantages of comitology, one may distinguish between

two major facets. Firstly, one finds an intergovernmental aspect, which is the function

traditionally awarded to the mechanism, and which allows Member States to exert

control over the Commission in its exercise of executive power. As will become clear,

this ability to monitor the Commission facilitates delegation to it. This is advantageous

because it limits the workload of the legislature and respects the institutional balance,

and because the Commission is better able to take the decisions delegated to it. This

awards the committees with a rather passive role that does not entirely correspond to

reality. So, the second facet is that the comitology committees have developed past their

control function in order to carry independent advantages, which allow for a better and

more consensual form of decision-making. Three of these advantages will be discussed,

namely, the expertise offered by committee members, the improved enforcement of

implementing measures due to Member State involvement in their drafting, and the

theory of deliberative supranationalism. Before discussing these in detail, however, it is

important to examine the different comitology procedures used today in order to

understand the process more fully.

1.2 The comitology procedures

The current comitology system, which is laid down in Council Decision

1999/468/EC, as amended by Council Decision 2006/512/EC, envisages five main

procedures.13 The most favourable to the Commission is the advisory procedure, which

merely requires it to take the ‘utmost account’ of the committee’s opinion.14 The

management procedure stipulates that the Commission must refer a measure to the

13Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of

implementing powers conferred on the Commission (OJ 1999 L 184/23); Council Decision 2006/512/EC

of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of

implementing powers conferred on the Commission (OJ 2006 L 200/11). To be referred to as: Council

Decision 1999/468/EC and Council Decision 2006/512/EC.14Article 3 Council Decision 1999/468/EC. The distinction of the procedures according to how

favourable they are to the Commission was first made by Steunenberg et al, found in Pollack 2001, p. 15.



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Council if it is not in accordance with the qualified majority of the committee, although

it may enact some measures immediately subject to the Council’s right to defer such

application.15 This procedure may be used in case of measures relating to the application

of the common agricultural and common fisheries policies or to the implementation of

programmes with substantial budgetary implications.16 The regulatory procedure may

be used for measures of general scope designed to apply essential provisions of basic

instruments. Alternatively, it is applied where a basic instrument stipulates that certain

of its non-essential provisions may be adapted or updated by way of implementing

procedures.17 It requires the Commission to refer a draft implementing measure to the

Council when the committee, by qualified majority voting, has delivered either a

negative vote or no vote at all. If the European Parliament finds that the Commission

has exceeded its implementing power, it may indicate as much to the Council.18 Article

6 provides for a safeguard procedure which will not be discussed here. Council Decision

2006/512/EC has added the regulatory procedure with scrutiny, which introduces two

significant changes. Even if the proposed implementing measure is in accordance with

the committee’s opinion, it must be submitted to the scrutiny of the European

Parliament and the Council. Also, the Parliament is entitled to block the measure, if on

certain grounds only.19 This procedure, according to the preamble, is intended for

‘measures of general scope designed to amend non-essential elements of a basic

instrument adopted in accordance with [the co-decision procedure], including by

deleting some of those elements or by supplementing the instrument by the addition of

new non-essential elements’.20

1.3 Delegation and its benefits

It is clear from the different procedures that they are tailored for differentsituations and thus fulfil different purposes. The question to be asked is: what exactly

are they? It is generally accepted that comitology committees were introduced in order

15Article 4 Council Decision 1999/468/EC.

16Article 2(a) Council Decision 1999/468/EC.

17Article 2(b) Council Decision 1999/468/EC.

18Article 5 Council Decision 1999/468/EC.

19Article 5a Council Decision 1999/468/EC.

20Whereas the criteria for choosing a committee procedure are non-binding in the case of Council

Decision 1999, as appears from point (5) of the preamble, it becomes clear from Article 5a that this is notthe case for the regulatory procedure with scrutiny. The preamble also indicates that the 2006 Council

Decision is aimed at securing the rights of the legislator in certain significant areas.



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to allow the Council – at the time the sole legislator and the institution in which the

Member States are formally represented – to control the Commission’s exercise of its

delegated powers.21 The purpose thereof, it is often argued, is to allow delegation to

21Among others: Pollack 1997, pp. 128-129; Craig and De Búrca 2007, p. 118; White Paper on

Governance 2001, p. 31; Christiansen and Vaccari 2006, p. 10. Also: Blom-Hansen 2008, p. 223, who

claims to be the first to have proved this point through empirical analysis. The Council now shares the

legislative function with the European Parliament. This has led some to argue that the control function is

actually in place for the benefit of the Member States rather than the legislator. See: Cisneros 2002 WD

005 - WG IX, p. 2. Ironically, the European Court considers the committees as being part of andresponsible to the Commission. Case T-188/97, Rothmans International BV v. Commission of the

European Communities, [1999] ECR II-2463, Para. 49, as cited in: Curtin 2004, p. 13.



11

take place.22 One approach to explain this is that of the principal-agent model, whereby

the intergovernmental Council is the principal and the supranational Commission is the

agent. Delegation is desirable for the principal in the sense that it allows it to focus on

its main tasks. However, the principal will consider it undesirable because it leads to a

possible loss of power, especially if the agent pursues different goals than the

principal.23 The Commission, in this case, is believed to use its powers to further

integration beyond the wishes of the Council. Given that the Council is an

intergovernmental organ, the use of Member State-driven committees would provide an

effective method to reduce such a risk. In other words, the use of comitology makes

delegation less undesirable. In a similar manner, one may argue that the relation

between delegation and increased control is due to the position of legislative actors as

competence-maximisers.24 This argument entails that the actors will prefer the method

of policy-making that grants them the most power – making delegation more favourable

for the Member States once they receive a given amount of control therein. Both

arguments show that the existence of comitology may be portrayed as the condition

under which the policy-makers are willing to relinquish some of their power.

Three advantages may be associated with an increased amount of delegation to

the Commission. Besides the obvious need to limit the workload of the legislator, there

is the more institutional argument that executive powers should remain with the

Commission, and that the Council as the legislative (together with the European

Parliament) should not be given this function.25 Additionally, delegation was thought

necessary because the Commission was considered better adapted to taking the diverse

and technical decisions needed to complete the internal market.

1.3.1 The workload argument

The need to limit the workload of the Council is a logical consequence of the

increasing amount of regulation in the European Union. Certain areas of the Community

22Among others: Bergström and Rotkirch 2003, pp. 6-7; Report of the Three Wise Men Committee, p.

47. The Court in its first rulings accepted the control function as being most important. This appears from

Case 25/70 Einfuhr- und Vorratsstelle für Getreide und Futtermittel / Köster [1970] E.C.R. 1161, where

the ECJ states: ‘Consequently, without distorting the Community structure and the institutional balance,

the management committee machinery enables the Council to delegate to the Commission an

implementing power of appreciable scope; subject to its power to take the decision itself if necessary’

(Para. 9).23

Pollack 2003, p. 13.24Bergström and Rotkirch 2003, p. 3.

25Tizzano 1996, p. 213.



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require copious, continuous, flexible and detailed decisions. This is especially the case

for the common agricultural policy, where it is important to be up to date on technical

developments, human and animal health and environmental issues.26 The amount of

work avoided by the Council by delegating implementing powers to the Commission

becomes clear when one considers the amount of work done by the committees.

According to the Commission’s report on the working of committees, the year 2006 saw

the existence of around 277 committees, giving 2,933 opinions that led to 2,862

implementing measures.27 The significance and amount of work done differs, with some

committees meeting once or twice a year whereas others meet around twice a month,

and in general such a meeting may be sufficient for around four measures. However,

controversial measures may take months or even years to be accepted and require

elaborate discussions.28 Not to delegate would place a large burden on the shoulders of

the Council and COREPER, which is overburdened as it is, especially in the face of the

recent enlargements.29 This point was already stressed in 1979 by the Three Wise Men

Committee, which found that ‘The Council today attempts to take far too many

decisions which are of a minor, technical or recurrent nature’.30

1.3.2 The institutional argument

Parallel to this workload argument runs the idea that a delegation of powers to

the Commission is beneficial because it allows each institution to better fulfil its

principal functions within the institutional set-up of the European Union. Comitology is

often portrayed as an essential corner stone of the delicate inter-institutional web.31 The

distribution of Community powers is governed by the principle of conferment and

characterised by interdependent institutions having separate and carefully defined

26See Craig and De Búrca 2007, p. 118. For a ‘typical’ example, see: Bergström 2005, pp. 20-22. For an

explanation of the Common Agricultural Policy, see: European Commission Directorate General for

Agriculture and Rural Development, ‘The Common Agricultural Policy Explained’ (29 August 2008),available at

< http://ec.europa.eu/agriculture/publi/capexplained/cap_en.pdf>.27

Commission Report 2007, pp. 6-7. The Commission stresses that the number of measures taken does

not indicate the political, economic or financial importance of these decisions.28

Schaefer and Türk 2007, p. 187. They refer to Commission Report 2004, pp. 9-11.29

Bayer 2004, p. 10. In her article, Vos 2004, p. 119, argues that to abolish comitology committees would

most likely shift their work to COREPER.30Report of the Three Wise Men Committee 1979, p. 37.

31Among others: Vos 2004, p. 119, referring to EIPA 2002, p. xxiii.



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functions, all of which secures the sovereignty of the Member States.32 In order to

satisfy the Member States, there exists a careful balance of powers that also forbids

delegation to institutions not provided for by the Treaties.33

There are strong arguments that this institutional set-up envisages a natural

sphere for activity by the Commission, and that allowing it autonomy within that sphere

is desirable. Their most fervent advocate is of course the Commission, which considers

execution of policy to be the task of the Commission and the national authorities,

whereas the Council and Parliament adopt legislative and budgetary acts.34 However,

the Commission does not stand alone. For instance, the Three Wise Men Committee

mentioned above not only stressed the expanding workload, but also appealed for taking

Community decisions at ‘the right level’.35 By this, it meant that the Council was taking

too many decisions that did not concern important policy choices and that it would have

to delegate these either to the Commission or to lower bodies of the Council. It

underlined the design of the Commission as the Community’s executive arm, which was

needed to ‘ensure the proper functioning and development of the common market’.36

The importance of allowing the Commission a substantial role in the common

market was also recognized by several EEC Member States in the period leading up to

the creation of the first committees. Their governments objected to the French proposal

to create committees composed of Commission officials and Member State

representatives, because de-possessing the Commission of its responsibilities would be

‘unfortunate for the general development of common policies in all of the Community’s

fields’. 37 This is an important indication that some tasks were considered to be within

the Commission’s natural sphere. A similar case with respect to the decision-making

power of the Commission is made by Tizzano in his criticism of the application of the

co-decision procedure. He feared that the European Parliament would use this added

32Yatanagas 2001, p. 20. See also: Craig and De Búrca 2007, p. 38 and pp. 88-89. NB. Craig and De

Búrca do stress that there is no strict separation of powers.33

Case 9/56 Meroni & Co. S.p.A. v High Authority of the ECSC [1959] ECR 11-48 and 53-86.34

White Paper on Governance 2001, p. 8. Confirmed in: Commission Proposal 2002, p. 3. It is interestingto note here that the Council may reserve executive power to itself (Article 202 third indent ECT), but

that this is never the case for the European Parliament.35

Report of the Three Wise Men Committee, Dublin, 29 and 30 November 1979, p. 37.36

Ibid, p. 49.37

Bergström 2005, p. 48, referring to Europe (bulletin quotidien) 30 November 1961. The other objection

was concerned with the fact that powers, in this construction, would be delegated to the committee rather

than the Commission. It was feared that such a mechanism would be rejected by the ECJ, which hadalready condemned delegation to non-Community organs in the then recent ECSC Case 9/56 Meroni &

Co. S.p.A. v High Authority of the ECSC [1959] ECR 11-48 and 53-86. See Bergström 2005, p. 49.



14

power to exceed its ‘natural confines’ and will encroach upon the Commission’s pre-

eminence in execution.38

This advantage, however, is challenged by two contradictory sets of arguments.

On the one side, it is rejected that the Commission is the natural wielder of executive

power. On the other, it is claimed that, while delegation to the Commission is required

by the institutional set-up of the Union, comitology is actually counterproductive

because it denies the Commission a sense of autonomy. Among the proponents of the

first side, Yatanagas argues that there is no such thing as a separation of powers in the

EU and that the Commission is given regulatory powers. He disputes that one can speak

of a distinct set of executive powers that would inherently belong to the Commission.39

The case law of the European Court of Justice (ECJ) seems to support this argument ,as

it makes no distinction between executive and legislative power, but rather between

‘essential rules’ and ‘rules being merely of an implementing nature’.40 Curtin, similarly,

presents implementation as being the primary responsibility of the Council, even though

it is expected to delegate this power to the Commission.41 The (existence of a) European

institutional balance has been the subject of much academic writing, which cannot be

discussed in detail here. In any case, it will appear from the third chapter that the debate

will likely take a new direction if the Lisbon Treaty is implemented.

The second set of advantages is mainly supported by Tizzano. Having defended

the Commission’s role as the deserving executive, he goes on to severely criticize ‘the

tortuous and irrational so-called comitology system’ for institutionalizing the possibility

for the legislator to encroach upon the executive phase.42 Applauding delegation and

criticising the control through comitology committees, this argument fails to present a

method that allows delegation to continue taking place.

38Tizzano 1996, p. 213.

39Yatanagas 2001, p. 20. Similarly, Craig and De Búrca speak of ‘delegated legislative power’,

suggesting that the Commission is given a right that naturally belongs to the Council and Parliament. The

reason for this delegation, in their opinion, is strictly the need to allow certain Community policy areasrequiring constant and flexible regulation to function properly. See: Craig and De Búrca 2007, p. 218.40

Case 240/90 Federal Republic of Germany v Commission of the European Communities [1992] E.C.R.

I-5383.41

Curtin 2004, p. 11. Curtin implies that this is not her own view.42

Tizzano 1996, p. 213. NB Tizzano wrote this criticism before the reform of the 1987 Council Decision,

but these later decisions have, if anything, strengthened the role of the European Parliament. Weiler

moves even beyond this argument by expressing the fear that comitology committees have grown beyondthe control of both the Council and the Commission and have developed into autonomous rule-makers.

See J. Weiler 1999, p. 347. Tizanno’s criticism was repeated recently in Lintner and Vaccari 2007, p. 203.



15

1.3.3 The capability argument

There is also a strong argument to be made for the Commission’s being more

capable of exercising implementing powers than the Council. The first comitology

committees emerged in the Common Agricultural Policy and Common CommercialPolicy, both areas that needed continuous and flexible regulation on a very technical

level.43 It became clear that the technicality and the need for continuous management

would overburden the Council and that it lacked both the time and the expertise to

‘micromanage policy decisions’.44 Additionally, the creation of legislation implies high

transaction costs, making delegation of implementing powers a desirable alternative.45

This was most notably the case when the 1966 Luxembourg compromise made

unanimity voting in the Council the norm, leading to an increased reliance on

implementation rather than legislation in order to make policy.46 While allowing for

control in sensitive cases, the use of committees allows disputed matters to be resolved

quickly without having to involve the Council and, in some cases, the co-decision

procedure. 47 Implementation is thus speedier and more efficient than legislation, as was

confirmed in the Member States’ declaration to the 1986 Single European Act, which

urged the Council to use the Advisory Committee procedure because this could

guarantee ‘speed and efficiency in the decision-making process’.48

1.3.4 Dissenting voices

Not everyone has always agreed that delegation to the Commission, even despite

the control function of the committees, is desirable. Most notable is the opposition by

the European Parliament. It has repeatedly expressed its fear that delegation to the

Commission, given the broad interpretation of executive power, will undermine the

position it has gained under the co-decision procedure introduced in Maastricht. It

reasons that the use of comitology limits the role of the legislative to creating acts of a

very general content. The truly important decisions, it argues, are made on a detailed

43Bergström 2005, pp. 43-45 and 78-81.

44Mastenbroek and Veen 2008, p. 297, using the analysis of Fabio Franchino.

45Bergström, Farrell and Héritier 2006, pp. 3 and 5.

46Bergström, Farrell and Héritier 2006, p. 9.

47

Bergström 2005, p. 54, referring to G. Olmi, ‘The Agricultural Policy of the Community’, 1 ELJ (1964), 118, p. 147. 48

Declaration to the Single European Act 1987, p. 24.



16

level by the Commission with the committees. 49 It seems logical, however, that this

opposition is due not to a principle rejection of delegation, but to the fact that the

European Parliament cannot control this delegation to the same extent as the Council

can. This makes the Parliament’s opposition part of its battle for recognition.50 In any

case, its claim that comitology should not apply in cases of co-decision was rejected by

the Court.51

1.4 Comitology and its benefits

The previous paragraphs have treated committees as part of a mechanism that

can guarantee the national governments (or the legislator) some form of control. This,

however, does not do sufficient justice to the independent benefits of the committees.

Three of these will be discussed: firstly, the committees are very useful to the

Commission in giving expert advice on difficult technical matters and Member State

preferences, thereby contributing to decisions of a higher quality. Secondly, Member

State involvement leads to decisions that are easier to implement nationally. Lastly, the

particular nature of the committees is said to lead to a better form of decision-making

because they allow a certain collegiality to replace adversarial national interests.

1.4.1 The expertise argument

One who reads the Council Decisions without background information might be

tempted to overlook the control function of the committees. After all, the provisions on

the different procedures invariably begin with the words ‘the Commission shall be

assisted by ...’.52 Indeed, assistance is an important function of the committees, although

not as important as originally proposed by the Commission. When the Member States in

the early 1960’s discussed the form in which they would accept delegation to the

Commission, that institution proposed the use of so-called ‘consultative committees’

representing both governmental and non-governmental interests.53 The Commission

49European Parliament 1998, point C.

50Lintner and Vaccari 2007, p. 203. See also: Craig and De Búrca 2007, p. 65, referring to F. Jacobs, R.

Corbett and M. Shackleton, The European Parliament , (John Harper Publishing, 2006), pp. 113-118.51

Case C-259/95 European Parliament v Council of the European Union [1997] E.C.R. I-5303.52Articles 3-5 Council Decision 1999/468/EC; Article 5a Council Decision 2006/512/EC.




17

thus envisaged that it would independently take a decision, aided where necessary by

the committees.

Although the Commission’s original proposal was rejected in favour of the

management committees proposed by the French, there was still a need for neutral

information.54 A 2000 research project on the role of committees in European policy-

making confirmed that the ‘growing complexity of regulating contemporary western

societies’ called for ‘an ever higher level of technical “expertise”’.55 This allows for the

functionalist view that comitology committees provide the Commission with invaluable

information and expertise – clearly the purpose of comitology as the Commission would

like to see it.56 Indeed, the Member State representatives that attend the committee

meetings are high-level experts, who are very capable, being part of the administrations

that are responsible for implementation where this is not regulated centrally.57 Such

expertise is especially important as the committees fulfil tasks mainly of a technical

nature, ranging from the establishment of annexes to drawing up conditions and

examining whether they are fulfilled.58

With regard to the technical aspects, the role of and need for the committees in

providing information is significant, but it should not be overestimated, as the

Commission is able to find such expertise elsewhere. For instance, the competent

Directorate-General can involve external consultants.59 However, the committees are

also a source of invaluable information regarding not technical matters, but political

preferences of the Member States. It should be recalled that implementing measures

concern mostly routine application, but they may have far-reaching political and social

effects. In the words of Schaefer and Türk, ‘policy implementation covers a wide range

of activities and deals with important policy issues that go beyond the merely technical

regulation of the internal market’.60 In the light of these political considerations, the

committees provide a unique role in providing expertise on practical matters concerning


55EIPA Research Project 2000, p. 77.

56Trondal 2005, p. 3. Trondal distinguishes between three functions of the committees. Trondal mentions

also the intergovernmentalist and supranationalist functions. For the Commission’s preference, see: WhitePaper on Governance 2001, p. 31.57

Guéguen and Rosberg 2004, p. 47; Dehousse 2003, p. 800.58

Neuhold 2001, p. 5, referring to: European Parliament, Directorate General for Research (1999): The Impact of European Community Implementing Measures on EC Legislative and Budgetary Authorities, p.

21.59

This is the case in the Draft Commission Regulation 2008, p. 5, which concerned the use of standby/off

modes on electrical and electronic household and office applications in the light of environmentalconcerns.60

Schaefer and Türk 2007, p. 182.



19

states, despite the startling rarity of sanctions against it’.67 Dehousse, similarly, speaks

of a ‘system of co-administration in which the national and European administrations de

facto share responsibility for the implementation of EU policies’.68 Such involvement

ensures that all national interests can be taken into account and thus gives Member

States a greater incentive to comply with the measures taken.

1.4.3 The deliberative supranationalism argument

Another alleged benefit of the comitology mechanism is that it allows for a

different form of decision-making than exists in the Council. This is the view asserted

most forcibly by Joerges and Neyer, who present the system in terms of deliberative

supranationalism and argue that the delegates in a committee will consider themselves

to be a team working towards a common (supranational) goal rather than striving to

force through adversarial national agendas.69 Vervaele, similarly, finds that the

importance of comitology committees lies in their ability to depoliticise and

denationalise.70 Dehousse presents the committees as ‘peer structures in which the quest

for consensus is a prevailing concern’, a point that is proved by the extremely low rate

of referrals to the Council.71

Gehring, without an explicit referral to Joerges and Neyer, advances an

important nuance. Examining his argument in the light of deliberative supranationalism,

the following becomes apparent. There is a strong argument for the ability of

committees to ‘promote deliberative consensus-building, rather than the power-based

pursuit of parochial interests’. However, this depends upon several factors. Gehring

demonstrates that arguing, which is based on reason, rather than bargaining, which is

based on political muscle, has positive effects on the quality of decisions. This is

possible only where negotiations in the committees are designed to benefit those in theCouncil rather than replace them.72 States, Gehring argues, demand a forum in which to

protect their interests. Thus, if a measure has political implications and cannot be

67Pollack 1997, p. 115. Similarly: Joerges 1999, p. 9.

68Dehousse 2003, p. 800.This connection between the European and national administration, although

efficient, has been criticized for excluding the European Parliament and interest groups. See: Schaefer

and Türk 2007, p. 196.69

Joerges and Neyer 1997, pp. 298-299. NB. In their article, Joerges and Neyer warn that some of their

conclusions are tentative pending further research. It can be disputed whether this is so much different in

the Council. See Westlake and Galloway 2004, pp. 257 and 260.70

Vervaele 1999, p. 148; similarly: Rhinard 2002, p. 187.71Dehousse 2003, p. 802.

72Gehring 1999, p. 206.



20

subjected to Member State bargaining at a later stage, such bargaining will take place in

the committees. The implication for comitology is that the deliberative supranationalism

argument can function most beneficially in areas that are not considered to lead to

political sensitivities. Alternatively, it could be ensured that discussion in the

committees is not the ‘last stop’.

1.5 Conclusion

Regarding the functioning of the committees today, it appears that they have

several benefits, although some are disputed. It seems possible at this point to create a

cautious working inventory for future analysis. It is clear that comitology, at least for

some part, is intended as a control mechanism against the Commission. Following the

principal-agent model and that of competence-maximisers, such control provides the

condition upon which delegation can take place. As a control mechanism, then,

comitology has three main advantages. Perhaps most importantly, it limits the excessive

workload of the Council. This institution has often been criticized for being unwilling to

allow another institution to take the more time-consuming routine decisions. Also, the

delegation of powers is considered beneficial to the institutional set-up of the European

Union, in which the legislator should take the major policy decisions and execution

should be left up to the Commission. However, this academic argument has been met

with some forceful resistance. The strongest point, in that context, is that the division

between executive and legislative powers according to the institutions that exercise

them does not correspond with reality. The other critics agree with the argument in

principle but find the control through committees unhelpful. The first criticism opposes

the understanding of the institutional balance presented by the main argument. The

second suggests that, providing another form of control, the reach of this benefit may beincreased. These arguments touch upon an important debate that lies outside the scope

of this thesis. Lastly, it is likely that the Commission is better able to take the decisions

than the Council, which operates in an area of controversy and high transaction costs.

It must be noted that the merit of delegation is not recognized by all, with the

European Parliament as its most notable opponent. Most likely, however, this

opposition is not due to a rejection of delegation as such, but the fact that its position in

the case of delegation is unequal to that of the Council, whereas this is not the case in



22

Chapter 2 – Changes Under Lisbon

2.1 Introduction

The advantages described above belong to a system that may be about to change.

The Treaty of Lisbon replaces Article 202 ECT by two provisions, both of which

concern the newly named category of non-legislative acts.73 The Treaty thus

distinguishes between ‘delegated acts’ and ‘implementing acts’.74 These terms are

confusing. After all, delegation refers to the legal basis, whereas implementation has

until now been regarded as the purpose for which power was delegated.75 To avoid

confusion, this essay will use the terms ‘delegation’, ‘implementation’, ‘delegated

power’ and ‘implementing power’ in the sense that they are given under the current

system. When referring to the new system, it will limit itself to ‘implementing acts’ or

‘delegated acts’, or any form of the word ‘conferment’, in which case reference is made

to implementing acts.

Article 290 of the Treaty on the Functioning of the European Union (TFEU)76

allows the Commission to adopt delegated acts. A legislative act may delegate the

power to adopt non-legislative acts of general application, which may supplement or

amend some of its non-essential elements. The basic act must clearly define the

objectives, content, scope and duration of the delegation and it may impose conditions

on it. Alternatively, the legislative act can confer the power to implement it where

uniform conditions for implementation are needed, which will result in implementing

acts adopted by the Commission (Article 291TFEU). Article 291(3) allows for

‘mechanisms for control by Member States of the Commission’s exercise of

implementing powers’. The system of comitology, therefore, will only continue in the

73For an extensive review of the legislative and non-legislative procedures under Lisbon, see among

others: Best 2008.74

With regard to the term ‘delegated acts’, Lenearts and Desomer 2003, p. 116, refer to ‘acts of delegated

rule-making’, which is clearer although purportedly less elegant.75

Several authors refer to the ‘delegation of implementing powers’. For instance: Blom-Hansen 2008, p.

209.76

What is referred to as the Lisbon Treaty in this thesis is the combination of the Treaty on the

Functioning of the European Union and the Treaty of the European Union, which will amend the existing

Treaties. In the original Treaty of Lisbon, document Article 290 TFEU was numbered 249b, and Article291 TFEU was numbered 249c. These provisions have also been discussed under different numbers. See

Tables of Equivalences in Annex to the Treaty (OJ C 306 of 17 December 2007, 202-229).



23

area of implementing acts.77 Its use is further limited by the express clause that the

power to implement acts should be primarily entrusted to Member States rather than the

Commission.78

2.2 Reasons for a new system

In order to determine the reason for this change, it is useful to examine its

prelude. Calls to change the system of comitology have been frequently heard, but the

intergovernmental conferences (IGC’s) of 1997 and 2000 managed to do no more than

issue a declaration that the system should be revised in the future.79 Although the

secondary legislation laying down the committee procedures was altered, no change was

made to the treaties until the Constitutional Treaty, and then it was changed

significantly. The Treaty of Lisbon, which is pending ratification, is in many ways a

reproduction of the failed Constitutional Treaty, and its provisions concerning non-

legislative acts remain nearly unaltered.80 The reasons for inserting the new provisions

into the Treaty are therefore well-documented. Whereas in-depth discussions on the

content of the Treaty of Lisbon are conspicuous by their absence, the 2004 IGC was

marked by a multitude of working groups, discussion circles and meetings in plenary

sessions, supplemented by sometimes extensive contributions by legal scholars and

policy-makers. With regard to the (non-) legislative instruments, it created Working

Group IX on Simplification under the leadership of Giuliano Amato. Its task was to

reduce the legal instruments in the Treaty and to find names that would ‘indicate their

77The text used in the Article concerning implementing acts is meant to take current Article 202 ECT as

its starting point, pointing to the continued use of comitology. See: Praesidium’s Draft of Articles 24 to

33 of the Constitutional Treaty, p. 16. Some Members of the Convention proposed a text that was even

more similar to the current situation. See: Farnleitner, point 3 and explanation.78

Article 291 (1) TFEU. This clause is not entirely new. On the basis of flexibility and the principle of subsidiarity, there is an increasing call for endowing Member States with the responsibility for

decentralized implementation. See for example: Scott 2000, p. 262. The obligation of implementation by

Member States found its legal basis in Article 10 of the ECT, as was determined in Case C-177/95 EbonyMaritime SA v Prefetto della Provincia di Brindisi [1997] ECR I-1111, Para. 35.79

Respectively: Azzi 1999, p. 55 and Kietz and Maurer 2007, p. 35.80

Draft Treaty of 18 July 2003 establishing a Constitution for Europe (CONV 850/03). See the Mandate

for the 2007 IGC. The changes made to the wording of the Constitutional Treaty are mainly due to thechanges made to the names of legislation. For example, the words ‘law or framework law’ in the

Constitutional Treaty have been changed to the more neutral ‘legislative act’.



24

effect more clearly.81 Its final report was almost completely taken up by the

Praesidium.82

In its draft of Articles 24 to 33 of the Constitutional Treaty, the Praesidium

explained the reasons for distinguishing between implementing acts and delegating

acts.83 With regard to the first, it developed its point as follows: there is much criticism

as to the excessive detail in legislation, caused by the legislator’s reluctance to delegate

the technical aspects to the Commission. Most argue that this is due to the legislator’s

inability to control the delegated powers, and argue that there is a need for stronger

control mechanisms. However, it is impossible to give the legislator a form of control so

strong as a right of call-back because in principle, implementing acts are to be adopted

by the Member States. When they are adopted, in exceptional cases, by the

Commission, it is these Member States who have the right to control the exercise of the

implementing power. However, it continues that this is undesirable because it does not

resolve the problem that the legislature is unwilling to delegate powers – allowing it to

focus on the essential elements of an act. This merits the introduction of a new category

of delegated acts, giving the legislator direct control without infringing on the rights of

the Member States.84 This development was applauded by the Commission, which has

argued for a ‘simple legal mechanism’ since 2001.85 According to Working Group IX,

such delegated acts would consist of ‘legislative developments which could be

delegated’, including ‘technical and detailed elements which develop a legislative act’

to ‘subsequent amendment of certain aspects of the legislative act itself’.86 This will

limit the use of the comitology procedure in favour of a mechanism for control allocated

directly to the legislator.

81

Secretariat of the European Convention 2002, Annex, p. 5; see: Liisberg 2006, pp. 11-12. 82Final report of Working Group IX on Simplification, pp. 9-10; Praesidium’s Draft of Articles 24 to 33

of the Constitutional Treaty, p. 16.83

Praesidium’s Draft of Articles 24 to 33 of the Constitutional Treaty, p. 16.84

Interestingly, when one regards the Final Report of Working Group IX and the Praesidium’s Draft, one

might receive the impression that the delegated act was created to fill a legal gap. It is argued there that

the legislator cannot delegate whilst retaining control, and has to delegate aspects of the basic acts ‘as if they were implementing measures’. See Final report of Working Group IX on Simplification, p. 8 and the

Praesidium’s Draft of Articles 24 to 33 of the Constitutional Treaty, p. 16. It appears that both the

Praesidium and the Working Group view implementation in a strict sense, and find that it is utilised for

purposes now covered by the delegated acts. This view is not confirmed by ECJ case law, which has

traditionally allowed implementation to cover all except the essential aspects of the legislative act. See

Case 25/70 Einfuhr- und Vorratsstelle für Getreide und Futtermittel / Köster [1970] E.C.R. 1161; Case C-

240/90 Federal Republic of Germany v Commission of the European Communities [1992] E.C.R. I-5383.85White Paper on Governance 2001, p. 31.

86Final report of Working Group IX on Simplification, pp. 9-10.



25

2.3 The case of delegated acts

What, then, will the changes entail in the case of delegated acts? Article 290

TFEU determines that the basic act will define the objectives, content, scope and

duration of the delegation, which may not include any essential element of the basic act.The basic act must also lay down the conditions to which the delegation is subject.

Considering that legislation will in general be made by the Council and the European

Parliament on a proposal from the Commission (Articles 289 and 294 TFEU), there

must be a certain level of agreement between the institutions. They may agree on the

insertion of conditions, two of which have been outlined in the Treaty. The first is that

the delegation can be revoked by either the Council or the Parliament. Secondly, the

basic act may provide for a time within which the European Parliament and the Council

may individually or jointly block the entry into force of the delegated act. Voting is

done by simple majority in case of the Parliament and by QMV in case of the Council.

Several points may be relevant with regard to these control mechanisms. The

European Parliament and the Council receive far-reaching powers, but their value is

subject to the condition that both institutions can agree to allow the other the exercise of

such power.87 It is possible that both actors will attempt to keep the other in check,

either on a case by case basis or through a formal or informal agreement between the

institutions.88 The blocking right and the right of call-back will require the creation or

reassignment of bodies to monitor the use of delegated power, and it is clear that the

Commission will oppose the use of regulatory and management committees for such a

purpose.89 Additionally, the Commission will still require expert advice on some issues,

as was confirmed by Commission representative Ponzano, who explicitly allowed for

consultative committees for the purpose of expert advice on technical matters or

information provided by the legislature.90 This may disturb the exercise of control,

because the procedures will then still be ‘dominated by opaque expert committees’.91

Furthermore, it must be noted that the control mechanisms here formally concern ex

87The provision makes it possible, for instance, for a simple majority of the Parliament to block a

measure against the will of the entire Council, so it is possible that the Council may wish to take measuresto prevent such a situation.88

Note, however that the Praesidium’s draft stresses that the control mechanisms will be determined on a

case-by-case basis and that the list in the provision is exhaustive: Praesidium’s Draft of Articles 24 to 33

of the Constitutional Treaty, p. 15. 89

Vos 2004, p. 118. She proposes that this role will most likely be fulfilled by COREPER. Also:

Commission representative 2002, WGD 027 - WG IX, p. 2.90

Ponzano 2002, WD 016 - WG IX, p. 2.91This fear was expressed by Mr. Brok, a member of the European Parliament during a Convention

meeting. Notes of the Meeting of the European Convention 2003, p. 8.



26

post constraints, making it difficult to influence the content of the delegated act.92 On

the other hand, it is not unlikely that the Commission will anticipate the opinion of the

legislator for fear of being robbed of its delegated powers, allowing the latter to

manipulate its contents indirectly.93 This depends in large part on the extent to which

the Council and European Parliament can cooperate. Finally, it should be noted that

unlike Article 202 ECT, the provision on delegated acts does not allow for delegation to

the Council, making the Commission the only body to which responsibility can be

delegated.94

2.4 The case of implementing acts

On the surface, not much seems to change with regard to implementing acts.

After all, the comitology procedures are still meant to apply. However, a few important

points should be made. Firstly, as mentioned, the primary right to implement is

attributed to the Member State administrations. Although there has already been a

tendency in this direction, this clause confirms that comitology is meant to become the

exception rather than the rule.

Secondly, it is possible that comitology will become a mere forum for advice. In

the future, the mechanisms for control are to be determined by co-decision (the

‘ordinary legislative procedure’) – an improvement for the Parliament from Article 202

ECT, which required the Council to act ‘unanimously on a proposal from the

Commission and after obtaining the opinion of the European Parliament’. This may well

lead to a revision of the current comitology procedures, which favour the Council.

These would either retain only an advisory function as desired by the Commission, or

allow for parliamentary involvement in the regulatory and management procedures on

the same level as the Council.

95

Given that the European Parliament has always opposedthe regulatory and management procedures, it is likely that comitology will indeed be

stripped down to having a merely advisory function. The possible amendment of the

current procedures to include Parliament must not be disregarded, given that one of the

main reasons for opposing the weightier procedures was not an absolute rejection of

92Craig 2004, p. 32.

93See: Craig 2008, p. 181, where he indicates without explanation that there are also ex ante restraints.

See the section on co-operation with Member State administrations in chapter 3.94Praesidium’s Draft of Articles 24 to 33 of the Constitutional Treaty, p. 4.

95The first option was defended in Bergström and Rotkirch 2003, p. 59.



27

comitology per se, but of the unequal treatment between the two legislators.96 However,

it does not seem very probable. In its draft report of 13 June 2008, the EP Committee on

Constitutional Affairs suggested a motion for a European Parliament Resolution. If it is

accepted by the Parliament, the comitology procedure is bound to change significantly,

as it is considered as being ‘no longer in line with the Treaty of Lisbon’.97 The

committee envisages an interim solution with the Council pending a proposal by the

Commission on the new comitology regime. The Commission has defended the

abolishment of the regulatory and management committees and stressed the usefulness

of the committees’ advisory functions only.98 With regard to implementing acts, it finds

that they are of a purely executive nature and merely applies the ‘the basic

96

See: Lintner and Vaccari 2007, p. 201. See contrary: Bradley 2008, p. 838.97European Parliament Committee on Constitutional Affairs, Draft Report 13 June 2008, p. 11.

98White Paper on Governance 2001, p. 31.



28

political choices already made at legislative level’.99 This stance will reflect in the

content of its proposal. Thirdly, it is likely that, until a new decision is made, the

Parliament will urge the use of delegated acts in the same way that it insists now upon

the use of the regulatory procedure whenever it is unclear which procedure should be

used.100

One may argue that the procedure will be stripped down to some extent anyhow.

With regard to the more Parliament-friendly regulatory ‘procedure with scrutiny’, it is

predicted that it will be replaced by the delegated acts.101 The reason for this is that its

field of application overlaps with that of the delegated acts. The regulatory procedure

must, according to Working Group IX, similarly be amended or abolished because it

includes a right of call-back.102 This leaves the management and advisory procedures,

and with regard to the first, its continued existence is disputed.103 A final point is that

the Council’s ability to carry out some implementing measures may decrease, as the

Parliament will regard this as a robbing of its own powers, and its cooperation is needed

to award the powers to the Council.

2.5 Conclusion

It appears that the frequent calls for a change of the comitology system have

been translated on the European level into a need for the new category of delegated acts.

This should give the legislator a direct control mechanism whilst respecting the

prerogative of Member States in the area of implementing acts. The distinction between

delegated and implementing acts is not a clear one, so one may expect a fair amount of

haggling between the institutions. Although they might tend towards a status quo, it

seems that the new system opens the door to some real and dramatic changes.

The above analysis allows the distinction of three major factors. Firstly, the bodywith monitoring powers will require information on the content of acts created by the

99Ponzano 2002, WD 016 - WG IX , p. 2. Mr. Ponzano was a member of the Convention and

Commission's representative in Working Group IX. He also advocates the use of independentadministrative authorities in ‘tasks of a more “technical” nature relating to the day-to-day management of

some sensitive fields’. This suggestion was not taken up in the Treaty. Craig shows the Commission’s

strategy as being based on the hope that the existence of delegated acts will lead to the end of comitology

or at least the management and regulatory committees. He reasons that this is not only the strategy of the

Commission, but of the drafters of the Treaty in general. Craig 2004, p. 32.100

European Parliament Committee on Constitutional Affairs, Draft Report 6 March 2008, p. 4.101

Peers 2007, pp. 39-40; Best 2008, p.3.102Final report of Working Group IX on Simplification, p. 12.

103Craig 2004, p. 32; See: Supra 99.



29

Commission. For delegated acts, the legislator will create or assign bodies to provide

such information. These bodies already exist in the case of implementing acts. The

second factor deals with the efficiency of the control exercised. In both cases, this

requires a level of cooperation between the Council and Parliament. This may lead in

the case of delegated acts to a control power that is impressive in theory only. In the

case of implementing acts, it is likely that the power of control will vanish along with

the regulatory and management procedures. Thirdly, the ex ante influence over non-

legislative acts is subject to change. Such influence on delegated acts can be exerted if

the legislator can exercise sufficient control. In that case, the Commission will

anticipate its wishes. The influence of committees on implementing acts will be limited

to the persuasiveness of their arguments due to the possible restriction to their advisory

role.

In line with the wishes of the Convention and the Commission, then, comitology

is likely to lose much of its field of application to the new delegated acts. These give the

legislator much power as long as it is capable to use it. The question is: what does this

entail for the advantages in the current system?



30

Chapter 3 – Functions of the committees: Lisbon’s impact

3.1 Introduction

Having examined the advantages of the comitology procedure in the first

chapter, it becomes interesting to determine the extent to which these will remain in the

area of non-legislative acts. It is a non-conclusive examination in the sense that it is

difficult to predict how the use of delegated acts and implementing acts will develop. It

is also non-conclusive in the sense that the disappearing of an existing advantage cannot

lead to the unconditional deduction that the previous system was ‘better’. Nevertheless,

the examination is interesting when one keeps in mind the criticism surrounding the

comitology system, and the Convention’s implicit and the Commission’s explicit wish

to limit its application as much as possible. This merits the question whether, in some

cases, the baby is not thrown out with the bathwater. In other words: to what extent are

the advantages of comitology still relevant in the case of implementing and delegated

acts?

3.2 Delegation and its benefitsThe first, mostly undisputed, conclusion in the first chapter was that comitology

is intended to allow the Council to control the Commission in the exercise of delegated

powers. The Treaty text allows the Council conditions and mechanisms for control for

delegated and implementing acts, but in both cases, this privilege is to be shared with

the Parliament. In the first case, this right is extensive and direct, as no committees are

needed as intermediaries. The legislature is thus awarded a significant amount of

control, although the previous analysis has shown that this is subject to the ability of the

co-legislators to cooperate. A further difficulty is that the amount of control influenced

is closely related to the level of expertise, in this case of the Council and the

Parliament.104 In order for the control mechanism to be effective, therefore, the

legislator must create monitoring bodies with sufficient technical expertise. Given the

analysis in chapter two, this should not stand in the way of further delegation.

With regard to implementing acts, the amount of control retained is much more

dubious. The Praesidium already indicated that the right of implementation primarily

104Dehousse 2003, p. 804.



31

belongs to the Member States, and that this reasoning also extends to the right to control

the use of that power should it be given to the Commission in exceptional cases. The

Council thus loses its right of control to the Member States, although it should be

remembered that the Council is made up of the Member Sates. However, given the

likelihood that comitology will be reduced to its advisory function, the ‘mechanisms of

control’ that appeared most strongly through the management and regulatory

committees will probably not be applied in practice. However, as this is intended to

concern the less politically sensitive subjects, the lack of control is not necessarily a

reason not to delegate.

3.2.1 The workload argument

If the legislator is willing to delegate more extensively, it will be able to focus

on policy decisions rather than minute detail, from which it follows that the legislative

phase will in theory be less consumed by having to regulate more than the basic policy

choices. In other words: issues can be dealt with by delegation rather than legislation.

This is especially important when one considers the extra tasks caused by the new

policy areas and the recent enlargements.105 The extent to which the workload of the

legislator is really limited logically depends on three factors, namely: the amount of

decisions taken through delegation rather than legislation, the length of time to opt for

implementation or delegation, and the amount of time needed to control the delegated

powers.

With regard to the first, the previous analysis indicates that actors are willing to

delegate their powers only if they can control the exercise thereof – increasingly so if

the subject is politically sensitive. The category of delegated acts was created to provide

the legislature with the incentive to hand over more of its responsibilities through thecreation of a direct control mechanism without the intermediary use of committees. 106

The effect of this may be partly psychological, as the legislator does not depend on a

committee referral for interference with the Commission’s actions. This effect,

however, depends on the extent to which the control mechanisms are truly effective –

something that time will have to tell. The alternative implementing acts show a very

105The legislature’s workload is generally considered a problem. See for instance: Häge and Kaeding

2007.106See: Lenaerts and Desomer 2003, p. 113. See also: Praesidium’s Draft of Articles 24 to 33 of the

Constitutional Treaty, p. 16.



32

limited supervisory function for the legislator, if at all. In theory, however, it will feel

no need for control because non-contentious issues of ‘genuine’ execution are

concerned, requiring no new policy choices. It seems then, that more decisions can be

taken through delegation rather than legislation.

The second factor refers to the time it will take to choose for one method or

another and to decide on its application. Specifically, the Treaty determines that in the

case of non-legislative acts, the legislator in the basic act has to determine whether to

use delegated acts or conferral of implementing powers, and in case of the former,

which conditions it will impose. In all likelihood, there will be disagreement on the

measure to be used, as each institution has different preferences depending on the

amount of control to be exercised. Worse, it will be difficult to estimate beforehand the

amount of political sensitivity involved, and thus how much control is desirable.107 Such

discussions on which measure to use are likely to take place especially in the first years

in which the Treaty of Lisbon is in force, after which the institutions should have

established a basic practice or the ECJ has defined the terms of the choice. In this

context, it is useful to draw a comparison with the development of the 2006 Council

Decision.

Council Decision 2006/512/EC was created in order to allow the European

Parliament a greater role in the supervision of implementing acts by creating the

regulatory procedure with scrutiny.108 As mentioned, the measures covered by this

procedure are to become delegated acts under the future system. This allows for an

effective comparison between the 2006 reform and the application of Article 291 TFEU.

Although it is too early to analyse the impact of this decision on the legislative process,

several predictions have been made.

Despite the merits of the regulatory procedure with scrutiny, few believe that it

will contribute to a shortened legislative process.109 Half a year after the 2006 reform,

Christiansen and Vaccari predicted that in the case of grey areas, the Decision would

‘set the stage for further disagreements and institutional power struggles in the

legislative phase’, thus prolonging the legislative procedure.110 In 2008, Bradley

countered that this would not take place because the choice between procedures in the

Council Decisions is governed by ‘binding legal rules agreed between the

107Vos 2004, p. 117.

108

See Council Decision 2006/512/EC, points 2 and 4. 109Among others: Christiansen and Vaccari 2006, p. 15; CEPS, EGMONT and EPC 2007, p. 9.

110Christiansen and Vaccari 2006, p. 15.



33

institutions’.111 This indicates that generally, the absence of clear legal rules governing

the choice may lead to problems. Given the uncertainty over the difference between the

application of implementing and delegated acts, it thus seems that such rules must be

created quickly, and that the legislative process will suffer until such a time. In other

words, the time gained by the added incentive to delegate may be lost due to the

absence of clear guidelines allowing for a rapid and non-controversial choice between

the forms of delegation. On the other hand, in another context, Jacobs has argued

convincingly that awarding the European Parliament more power can contribute to a

shortened legislative process. He shows that the Parliament does not hesitate to block

budgets and opposing legal acts, requiring time-consuming procedures, in order to

receive rights equal to those of the Council.112 As Article 290 TFEU greatly improves

the Parliament’s position, its attitude may become far less belligerent and thus more

time-efficient.

With regard to delegated acts, the legislator faces a further burden. If the Council

and Parliament decide that a delegated act is called for, they must next agree on the

conditions under which such delegation will take place. This leads to two problems

regarding the workload. Firstly, if the institutions disagree, which is likely, the lengthy

conciliation process has to be used. Secondly, it will be difficult to establish conditions

regardless of the ability to agree, for the precise reason that the basic acts become

increasingly less detailed. 113 This means that, if the legislator wants to exclude certain

practices from the start, it must anticipate the decisions taken on the detailed level that it

was not meant to consider. Neither consequence is likely to shrink the legislative

process considerably.

Once the legislative phase is finished, the third factor comes into play: the use of

non-legislative powers must be monitored. In the case of implementing acts, it may be

predicted that the actual monitoring will not consume much of the legislator’s time,

especially if the advisory function will in practice prevail.114 This is different in the case

of delegated acts, as the legislator is also involved directly in the ex post monitoring of

compliance with the conditions set. In the case of the 2006 comitology reform,

Christiansen and Vaccari suggested that such monitoring would be problematic because

111Bradley 2008, p. 851.

112Jacobs 2003, pp. 12-14.

113

Craig 2004, pp. 32-33.114This is logical given the fact that the advisory committee does not provide the legislator with a

monitoring function, see chapter 1.2 above.



34

neither the Council nor the Parliament has much experience in that area, given the

scarcity of committee referrals.115 Thus, the institutions must invest time in the creation

of an infrastructure capable of dealing with Commission acts. According to Bradley,

such monitoring difficulties will not lead to a longer implementation period because the

regulatory procedure with scrutiny imposes a time limit for reviewing the implementing

measure.116 Even if there is a time limit, however, the point that the Council and

Parliament will likely be less efficient in monitoring the measures remains valid.

Whereas this might limit the workload, it can negatively affect the quality of the

supervision.

One may conclude that the extent to which the new distinction can decrease the

workload of the legislator depends on the degree to which the delegation of powers

outweighs the time consumed by determining and monitoring the control mechanisms

attached to it. In the case of implementing acts, this should be unproblematic. But, at

least in the first few years, the more controversial delegated acts may demand too much

time during the legislative process and in the supervisory phase. In that case, the

increased amount of delegation will not compensate for the additional burdens it

imposes.

3.2.2 The institutional argument

The first chapter presented the argument that delegation should take place

because the legislator should not take the routine executive decisions that naturally

belong to the Commission. One of the major unresolved debates was centred around the

question whether the Commission can be regarded as the Union’s executive. This and

other questions surrounding the division of powers between the institutions was one of

the most present and controversial issues on the agenda of Working Group IX andfeatured visibly in the Praesidium’s draft articles.117 Whereas previously, opinions were

divided as to a possible separation of legislative and executive powers, the new Treaty

made this separation. According to Liisberg, the Convention leaned heavily on the

argumentation by Court of First Instant Judge and Working Group IX legal expert Koen

Lenaerts, who propagated a distinction between legislative and executive power,

115

Christiansen and Vaccari 2006, p. 15; See Bergström 2005, p. 9, and also, chapter 1.4.2 above.116Bradley 2008, p. 851. See contrary: CEPS, EGMONT and EPC 2007, p. 9.

117See: Praesidium’s Draft of Articles 24 to 33 of the Constitutional Treaty, pp. 1-3.



35

although not based on the author of the legal act but on the procedure to adopt it.118

However, due to the way in which the procedures were drafted, it became clear that

executive (non-legislative) powers were to be attributed to the Commission and in rare

cases, the Council, whereas the Council and the European Parliament would be

competent to legislate.119 The reasons for this distinction are unclear and

unconvincing.120 Nevertheless, the new system indirectly grants the Commission a

‘natural sphere’ within the area of non-legislative acts, as it had advocated in its White

Paper on Governance.

The Praesidium did not discuss the Commission’s rights as such, but focused on

the need to allow the legislator to delegate without losing control. Its draft report

demonstrates that the primary right to regulate a matter lies with the legislature, which

may ‘lend’ it to the Commission in the form of a delegated act but can at any point take

it back.121 This does not encroach upon the Commission’s executive powers. Craig

argues that non-legislative acts are sometimes only that by name, as the at times binding

and generally applicable delegated acts resemble legislative acts very closely.122 It

follows from this argument that the legislator must be entitled to monitor such quasi-

legislative power. Lenaerts and Desomer also defend this right to control the

Commission, which, ultimately, will ‘put into practice the institutional balance as

intended by the authors of the Treaty’.123 This means that, whereas delegation to the

Commission under the present system may not unequivocally be defended by its

contribution to the institutional balance, this can be more convincingly done under the

new system. This conclusion must be regarded with care, however, as the changes to the

institutional structure are in part artificial.

3.2.3 The capability argument

Accepting that the Commission is better capable of implementing legislation

than the legislator, it may be deduced that an increased amount of delegation should

118Liisberg 2006, p. 13.

119Liisberg 2006, p. 26.

120See Liisberg 2006, p. 17. ‘If the EC Treaty confers competence directly on the Commission, acts

adopted under such legal bases by the Commission alone must be non-legislative (why? Because we have

just introduced the principle that only the Council and Parliament can enact legislation)’.121

Praesidium’s Draft of Articles 24 to 33 of the Constitutional Treaty, p. 1: ‘The legislator may decide to

delegate the more technical aspects, while subjecting this delegation to stringent conditions enabling it, if

necessary, to retrieve its power to legislate’.122Lenaerts and Desomer 2003, pp. 116-117; Craig 2008, p. 161.

123Lenaerts and Desomer 2003, p. 113.



36

have an essentially positive impact on the efficiency of EU rule-making. This was

disputed by Best, who found that the new system introduced in Lisbon was unlikely to

help speed up decision-making.124 He does not substantiate this claim, but such a

conclusion would be unfortunate for the drafters of the Treaty, as one of their aims was

to improve the efficiency of EU rule-making.125 If one disregards the possible

difficulties surrounding the legislative process considered above, the drafters’ idea

seems sound. The declaration attached to the Single European Act already suggested

that, if only the advisory committee procedure remains, the decision-making process

may benefit from greater efficiency. The efficiency of rulemaking is not only improved

by increased delegation, but also because the Commission can act more independently

and unhampered by committees. This is the case especially if the Commission and

Parliament focus their monitoring power on large policy decisions rather than details.

3.3 Comitology and its benefits

3.3.1 The expertise argument

One important advantage offered by the comitology committees beyond that of

allowing control is the expertise they can offer, both on a technical level and on a

political level. With regard to technical advice, it was argued that this is especially

important in the ‘purely’ executive area of drawing up conditions and examining

whether these are fulfilled.126 This would seem to correspond with the presentation by

Lenaerts and Desomer of implementing acts as ‘normative acts of a general scope that

further shape the basic policy choices set out in the basic act or “just” binding acts,

whether addressed to a specific party or not.’127 In the case of a conferral of powers,

then, the Commission will require mostly technical advice, which the comitology

committees can continue to provide. In the rare case that an implementing act proves to

be politically sensitive, they can offer information on the Member State preferences.

The Commission has opposed the exertion of control through comitology committees,

and this may lead to the survival of advisory committees only. If this is the case, the

only way for Member States to exert influence through the committees is through the

124Best 2008, p. 11.

125

Liisberg 2006, p. 42.126Neuhold 2001, p. 5.

127Lenaerts and Desomer 2003, p. 118.



37

quality and persuasiveness of their advice. It is questionable whether this will lead to a

better use of neutral advice in the committees.

With regard to delegated acts, Lenaerts and Desomer wrote that they

‘substantively resemble legislative acts in that they often (but not always) adapt to

technical progress non-basic provisions of legislative acts’.128 There is no doubt, then,

that the Commission will require technical expert advice. Given that the area of

legislative acts introduces a new control mechanism, the Commission must find an

alternative to the comitology committees. It has already shown that this is not a

problem.129 Already, the European Union features many expert groups and committees,

whose distinction from comitology is that their consultation is not obligatory.130

Considering the control powers of the Council and Parliament, however, the

Commission must also anticipate their views on a given matter. In all likelihood, the

Commission will consider it necessary to receive information on the legislator’s opinion

on a prospective implementing act, lest it should be blocked or the delegation revoked.

Here, the value of comitology committees as a link between technical and political

expertise becomes apparent. The extent to which such an expert group can fulfil this

role depends for the most part on the composition of these groups. Given the fact that it

will be the Commission that convenes expert groups, it is likely that it is also the

Commission that determines their composition. In general, the Commission has shown

itself to be in favour of expert advice and considers input by the legislator helpful, as

long as it does not dictate the content of the implementing measure.131 This wish for

independence may mean that expert groups are composed less of people with a national

political background, probably with supranational motives in mind. More importantly,

the Commission may not perceive a need to convene experts from all Member State

administrations. The expert groups can thus not combine technical and political

information as effectively. This would mean that, while technical expertise is retained in

both cases, one of the major and unique advantages of comitology will be lost.

128Lenaerts and Desomer 2003, pp. 116-117.

129Supra 66.

130

Bergström 2005, p. 8. NB. In the EU budget, one can recognise comitology committees by the referralto ‘committees whose consultation is compulsory for the Commission’.131

White Paper on Governance 2001, p. 31; Ponzano 2002, p. 2.



38

3.3.2 The improved enforcement argument

One of the main advantages of comitology is that Member States can influence

the decisions taken, making enforcement and compliance less problematic. Whether this

advantage continues in the envisaged system depends on two factors, namely, whether the Member States are still involved and how much influence they have as to the

decision taken. In the case of delegated acts, they retain a partial role alongside the

European Parliament in the sense that they are represented in the Council. Their

influence, however, is limited. The Council’s control function operates only ex post ,

meaning that it cannot influence the content of the measure. Still, the legislature may be

able to successfully indicate its preferences to the Commission, which will comply for

fear that not to do so will lead to a rejection of the measure.132 After all, formally

speaking, the role of comitology committees is equally limited. However, in indicating

its preferences, the Council must cooperate with the European Parliament. Further still,

the new Treaty provides that the effectuation of a condition laid down in the basic act

requires a qualified majority in the Council. Comitology also often requires QMV in the

Council to take a different decision after a measure has been referred, but in the

regulatory and management committees, the lack of such a majority means that the

measure cannot be applied. Currently, then, a smaller group of Member States has to

disagree with a Commission act to refer it to the Council, making individual states more

powerful.

Ironically, in the case of implementing acts – confirmed to be the prerogative of

the Member States – the national governments will have a very limited ability to

influence the measures taken if the prediction that only the advisory committees remain

proves to be true. They may thus have to conclude that their influence over non-

legislative acts has diminished. Thus, the Member States lose influence in both

delegating and implementing acts. In the first case, they must hand over power to the

Parliament, and in the second, they can likely only advise. Whereas Parliament

involvement may be applauded, this move away from intergovernmentalist influence

may weaken the resolve to comply with the Commission’s decisions.

132Supra 93; see similarly: Craig 2008, p. 161.



39

3.3.3 The deliberative supranationalism argument

The extent to which national governments can protect their interests may also

have its impact on the deliberative nature of decision-making. Interestingly, as a

strongly defended benefit of the comitology system, the theory of deliberativesupranationalism may gain significantly from the reform, especially if one follows

Gehring’s analysis. He proposed that arguing in committees is possible when states feel

that their interests remain protected. For instance, using the example of the Advisory

Group of National Drinking Water Experts (an expert group), he showed that the

delegates could argue based on reason because the scope of their deliberations were

kept narrow, and because Member States knew that political issues could be discussed

in the Council.133 Given that comitology committees should only discuss ‘genuine’

executive acts with very limited political sensitivity, it is probable that their deliberative

nature will develop further. If only the advisory committees remain in existence, they

will have little power to influence the Commission’s decision, but the quality of their

considerations may by themselves be sufficiently compelling. The same reasoning

applies to the expert groups that will aid the Commission in the case of delegated acts.

In this case, Gehring’s analysis is even more relevant, as the Council and Parliament

may retrieve their power to legislate if they feel that their interests are not protected.

3.4 Conclusion

It appears that some of the advantages outlined in the first chapter have become

less apparent in the new system, whereas others can live up to their potential more

convincingly. It seems that the division between delegated and implementing acts can

potentially increase the amount of delegation to the Commission. However, it is not

certain whether this will actually decrease the legislator’s workload given the time

needed to choose for the type of non-legislative act and the conditions to which

delegation is subject. This may lead to problems in the case of implementing acts

especially – and more so in the first few years of their existence. Unlike today, the

argument that such delegation will contribute to a healthy institutional balance is nearly

undisputable, if one keeps in mind that this ‘healthy institutional balance’ has been

altered by the Lisbon Treaty. Thus, within a theoretical framework one might defend the

increased validity of this argument, but it seems more likely that this is simply due to133

Gehring 1999, p. 203.



40

the new definition of the institutional balance rather than a substantial change from

comitology. Unlike the first two possible advantages associated with increased

delegation, the advantage that the Commission is more capable of implementation has

clearly become stronger. This is due not only to the increase in delegation, but also to

the Commission’s ability to exercise its tasks more independently. This seems to be in

line with the Commission’s new position in the institutional framework. However, the

Commission can only act more independently if the legislator refrains from interfering

in details, and the devil is often in the detail. It might be noted in this context that the

Commission’s possible new independence is also a potentially grave disadvantage of

the new system, but the scope of this thesis does not allow for an analysis thereof.

With regard to the ‘independent’ advantages of the comitology system, a

similarly diffuse picture emerges. The provision of technical expertise will likely

continue at the same level, as different groups can be convened to provide such

information. However, it is likely that these groups cannot create a bridge between

technical expertise and political preferences in the same manner as the committees,

which are uniquely equipped to do so. Likewise, it seems that the move towards

supranationalism may lead to enforcement difficulties. As much as the increased

involvement of the European Parliament and the Commission may be applauded, it

should not be forgotten that in an uncertain political climate, the Member States’ loss of

influence over the measures they must comply with may make them less inclined to do

so. Interestingly, the area that seems to benefit most strongly from the Lisbon Treaty is

that of deliberative supranationalism, defended as one of the major benefits of

comitology. The reason for this is that true deliberation can take place more efficiently

if it does not become a substitute for the protection of national interests, which was the

case in certain comitology committees.



41

Chapter 4 – Conclusion

The research underlying this essay was directed at some consequences of thedistinction between delegated and implementing acts introduced in the Lisbon Treaty.

Specifically, it aimed to determine how this distinction will influence to the advantages

of comitology, a system that has been frequently criticised but that has nevertheless

worked, and often worked well, for almost half a century. As was to be expected, the

answer is diverse.

Six advantages have been discussed. These concern the Council’s workload, the

Commission’s institutional position, its capability in creating implementing measures,

the expertise added by the committees, the improved enforcement due to Member State

involvement and the committees’ development into deliberative organs.

The first three of these are due to the fact that the committees encourage

delegation to the Commission. The committees enable control, and one can establish a

logical link between the ability to control a delegated power and the willingness to

delegate. Thus, comitology serves to keep the legislature’s workload in check by

ensuring that the details of a measure are discussed by the Commission rather than the

Council and Parliament. The Commission’s involvement is found also to benefit the

institutional balance, in which the Commission is considered the executive. It has been

disputed, however, whether the institutional structure does allow for such a strict

division of power. Less disputed is the Commission’s ability to take efficient and sound

decisions away from the transaction costs and controversy associated with the Council.

The advantages of delegation have been questioned by the European Parliament, but

this may well be due to its limited role therein.

Furthermore, comitology has developed into a unique mechanism with

advantages independent from delegation. One of these is the committees’ provision of

expertise on both technical and political matters, which is made possible because the

delegates are experts sent on behalf of the Member States. By having the power to refer

decisions to the Council, these experts can also influence their content. The close

involvement of unelected committee members may not be desirable at first sight from a

democratic point of view. However, its highly beneficial practical consequence is that



42

the Member States, involved as they are in the decision-making, are often more willing

to comply with the measure. The close cooperation of experts within the committees

also contributes to a constructive and deliberative form of decision-making. This notion

of deliberative supranationalism predicts that the quality of decision-making can

blossom if Member State representatives focus on their common interests rather than

adversarial national positions. This does, however, require that decisions do not concern

sensitive political matters, which is not always the case in comitology.

Lisbon’s new distinction between implementing and delegated acts provides the

basis for potentially drastic changes. The extent to which these will surface depends in

part on the reactions of the institutions. Nevertheless, some predictions can be made,

although with caution.

In the area of delegated acts, the disappearance of comitology committees may

prompt the Commission to create expert groups that can provide the information needed

to take a decision. In this case, the legislature should act likewise in order to understand

the decisions it is meant to control. The actual control is extensive in theory, but the

Council and Parliament must cooperate to effectuate it. This may prove difficult in those

sensitive areas where their interests conflict. Once the legislature’s control is effective,

however, it can likely use its formal ex post monitoring power to also influence the

content of the decisions taken.

Implementing acts will continue to involve comitology committees. These,

however, might be limited to an advisory function. The implications thereof are far-

reaching. As their purpose becomes less that of a control mechanism, the committees

have to rely more on the persuasiveness of their arguments to exert influence. This loss

of control corresponds with the fact that they are meant to consider less politically

sensitive and more routine decisions.

If one considers the six arguments forwarded in favour of comitology and

analyses them in the light of the possible changes under Lisbon, it appears that they

keep each other in check. Very generally, improvements can be seen in the area of

deliberative supranationalism and that of the capability argument. The expertise and

enforcement arguments seem to have lost much of their importance in the new system.

The institutional argument and the workload argument lie somewhere in the middle.



43

The advantages associated with deliberative supranationalism are most

effectively enhanced in the new system. The reason for this is that the committees and

expert groups, unlike the present comitology committees, are not de facto decision-

making bodies. In case of the capability argument, the Commission is given greater

opportunity to more or less independently take decisions, unhampered by the

committees and interference from the legislator. Such a gain does depend on the extent

to which the legislator can and chooses to interfere.

The expertise and enforcement arguments seem to lose terrain under the Lisbon

Treaty. In the case of the former, the experts that will replace comitology committees in

the area of delegated acts can likely not create a bridge between technical and political

considerations. The reason for this is that they are not equipped to do so, as they do not

represent the Member States. Comitology committees can continue their role as before.

However, the neutrality of their advice may be affected by the loss of control, which

could be compensated for by persuasive arguments. The case of enforcement is

somewhat more complicated. The powerful involvement of Member States in a measure

improves their willingness to comply with it, so depriving them of this influence is

disadvantageous from an enforcement point of view. On the other hand, not to do so

deprives the Commission and Parliament of influence, and this may be perceived to be

just as problematic. Either option carries its own advantages and disadvantages, and

ultimately depends on personal preference.

As for the last two benefits, no clear picture emerges. The institutional argument

gains strength under the new system, but this is probably due to a redefinition of the

institutional balance rather than any substantial change. The workload of the legislator

can potentially decrease, but only subject to its ability to make certain choices. This can

be enhanced by creating clearer guidelines concerning the choice and by providing a

better basis for cooperation between the Council and the European Parliament. After all,

the extent to which they can work towards a common interest determines whether their

workload decreases.

This thesis has sought to consider whether the changes to the comitology system

under the Lisbon Treaty allow for the same advantages that exist today. The rejection of

the Treaty in the Irish referendum, however, has cast doubts over the Treaty’s ability to

survive its ratification phase and enter into force. Nevertheless, analyses such as this do

still have a function. After all, even if the Treaties are not changed, comitology rests



44

largely on Council Decisions, and they do not depend on Treaty change alone. Thus, it

remains important to examine the possible impacts of the Treaty. Further research,

therefore, could focus on the extent to which disadvantages are neutralised, new

disadvantages are created and more advantages can be found.



45

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comitology after lisbon

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