Risk regulation at international, European and national

level

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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© Alke Metselaar
Published in Maastricht, August 2008

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For comments or questions, please contact Prof. Dr E.I.L. Vos: E.Vos@IR.unimaas.nl

2
Index

Introduction ................................................................................................ 4
Chapter 1 - Functions of the committees .................................................. 8
1.1 Introduction .............................................................................. 8
1.2 The comitology procedures ........................................................... 8
1.3 Delegation and its benefits ............................................................ 9
1.3.1 The workload argument ................................................... 11
1.3.2 The institutional argument ............................................... 12
1.3.3 The capability argument .................................................. 15
1.3.4 Dissenting voices ............................................................. 15
1.4 Comitology and its benefits ......................................................... 16
1.4.1 The expertise argument ................................................... 16
1.4.2 The improved enforcement argument.............................. 18
1.4.3 The deliberative supranationalism argument ................... 19
1.5 Conclusion ................................................................................... 20
Chapter 2 – Changes Under Lisbon........................................................ 22
2.1 Introduction ................................................................................. 22
2.2 Reasons for a new system............................................................ 23
2.3 The case of delegated acts ........................................................... 25
2.4 The case of implementing acts .................................................... 26
2.5 Conclusion ................................................................................... 28
Chapter 3 – Functions of the committees: Lisbon’s impact ................. 30
3.1 Introduction ................................................................................. 30
3.2 Delegation and its benefits .......................................................... 30
3.2.1 The workload argument ................................................... 31
3.2.2 The institutional argument ............................................... 34
3.2.3 The capability argument .................................................. 35
3.3 Comitology and its benefits ......................................................... 36
3.3.1 The expertise argument ................................................... 36
3.3.2 The improved enforcement argument.............................. 38
3.3.3 The deliberative supranationalism argument ................... 39
3.4 Conclusion ................................................................................... 39
Chapter 4 – Conclusion ............................................................................ 41
References.................................................................................................. 45

3
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 may
impose certain requirements in respect of the exercise of these powers. The

1
Bergström 2005, p. 44.
2
Guéguen 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.

4
 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 executive
function,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,
5
Council 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.
12
Case 240/90 Federal Republic of Germany v Commission of the European Communities [1992] E.C.R.
I-5383, Paras. 36-37.

5
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.

6
7
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

13
Council 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.
14
Article 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.

8
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 different
situations 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

15
Article 4 Council Decision 1999/468/EC.
16
Article 2(a) Council Decision 1999/468/EC.
17
Article 2(b) Council Decision 1999/468/EC.
18
Article 5 Council Decision 1999/468/EC.
19
Article 5a Council Decision 1999/468/EC.
20
Whereas 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 not
the 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.

9
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

21
Among 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 and
responsible 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.

10
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

22
Among 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.
24
Bergström and Rotkirch 2003, p. 3.
25
Tizzano 1996, p. 213.

11
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

26
See 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.
30
Report of the Three Wise Men Committee 1979, p. 37.
31
Among others: Vos 2004, p. 119, referring to EIPA 2002, p. xxiii.

12
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

32
Yatanagas 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 interesting
to 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 had
already 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.

13
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.

38
Tizzano 1996, p. 213.
39
Yatanagas 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 areas
requiring 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 beyond
the 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.

14
 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 Commercial
Policy, 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

43
Bergström 2005, pp. 43-45 and 78-81.
44
Mastenbroek and Veen 2008, p. 297, using the analysis of Fabio Franchino.
45
Bergström, Farrell and Héritier 2006, pp. 3 and 5.
46
Bergström, 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.

15
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

49
European Parliament 1998, point C.
50
Lintner 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.
52
Articles 3-5 Council Decision 1999/468/EC; Article 5a Council Decision 2006/512/EC.
53
Bergström 2005, p. 46.

16
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

54
Bergström 2005, p. 47.
55
EIPA Research Project 2000, p. 77.
56
Trondal 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: White
Paper 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 environmental
concerns.
60
Schaefer and Türk 2007, p. 182.

17
the internal market, but also on the social and political considerations that must often be
regarded. In that sense, they can provide a ‘bridge’ between the technical and the
political aspects of a given area.61

1.4.2 The improved enforcement argument

Not only can the committees provide information on the wishes of Member State
administrations, but they allow these administrations to influence the content of the
measures taken. In other words, the system allows for co-operation between the
Commission and the Member States, and this in turn leads to increased compliance with
the measures taken. 62 There are indications that transposition of Commission directives
on the national level leads to fewer problems than transposing legislation directly.63
This cooperation has taken on more prominent forms since the emergence of the
committees.
The statement that Member State administrations represented in the committees
can influence the content of the measures, formally speaking, is odd. After all,
depending on the procedure, they are intended to refer a measure to the Council if it is
not to their liking, which gives them a simple ‘yes’ or ‘no’ vote. However, experience
has shown that the committees have grown beyond this quite passive role and have
begun to influence the measures taken. This is demonstrated already by the fact that the
committees are considered to be effective fora for lobbying and are thought to have
near-legislative power.64 Already quite early, very few decisions were returned to the
Council because committees rarely disagreed with the Commission proposal.65
Although this has been considered a result of the Commission’s power, it is more likely
that the Commission seeks to anticipate the committee’s opinion and will prevent
drafting a measure that may be sent back to the Council.66 Pollack expands this
argument when he writes that ‘[r]ational anticipation of committee action by the
Commission may mean that the Commission is effectively controlled by the member

61
Joerges 2003, p. 6.
62
Vos 2004, p. 119. Similarly: Schaefer and Türk 2007, p. 196.
63
Kaeding 2007, p. 32.
64
Guéguen and Rosberg 2004, p. 12.
65
Azzi 1999, p. 53; Bergström 2005, pp. 9 and 24; Bergström and Rotkirch 2003, p. 26.
66
Guéguen and Rosberg 2004, p. 47 and Dehousse 2003, p. 810 find the rarity of committee referrals to
be indicative of the power of the Commission. See, however, Commission Declaration 1999, where the
Commission stresses that that ‘its constant practice is to try to secure a satisfactory decision which will
also muster the widest possible support within the Committee’ (point 1).

18
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 the
Council 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

67
Pollack 1997, p. 115. Similarly: Joerges 1999, p. 9.
68
Dehousse 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.
71
Dehousse 2003, p. 802.
72
Gehring 1999, p. 206.

19
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 be
increased. 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

20
legislation. This, of course, fits in well with the theory of competence-maximisers and
does not invalidate the previous arguments.
Comitology is a mechanism that is exclusive to the European Union, and one
that carries independent advantages beyond that of allowing control over the
Commission. Consisting of members of the national administrations with an expertise
on a given subject, the committees fulfil a very important role in providing the
Commission with expert advice. As the members are both experts and representatives of
their Member States, they are uniquely capable of providing both technical and political
information, and in this manner, provide an indispensable bridge between the two.
Some implementing measures, after all, are extremely technical in nature but may have
far reaching social and political effects. Related to this argument is the fact that the
committees allow Member States to not only control the Commission ex post, but to
influence the drafting of the measure. The reason for this is that the Commission
anticipates the opinion of the committee, which can threaten to send a measure to the
Council. Although this might seem to be a negative development, it is actually
advantageous because involving the Member States in the drafting of an implementing
measure ensures its compliance once the measure has become binding.
This is again related to the theory forwarded by Joerges and Neyer, that
committees improve the consensual nature of decision-making. It appears, however, that
such consensuality can only properly unfold if the decision made in the committee,
where it is politically sensitive, can at a later stage be discussed in order to protect the
interests of the Member States. In politically sensitive areas, thus, the committees do not
fulfill this function as well as in purely technical areas.

21
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

73
For 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 Article
291 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).

22
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

77
The 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 Ebony
Maritime 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 the
changes 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’.

23
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.
82
Final 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.
85
White Paper on Governance 2001, p. 31.
86
Final report of Working Group IX on Simplification, pp. 9-10.

24
 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

87
The 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 measures
to 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.
91
This 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.

25
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 opposed
the 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

92
Craig 2004, p. 32.
93
See: 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.
94
Praesidium’s Draft of Articles 24 to 33 of the Constitutional Treaty, p. 4.
95
The first option was defended in Bergström and Rotkirch 2003, p. 59.

26
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.
97
European Parliament Committee on Constitutional Affairs, Draft Report 13 June 2008, p. 11.
98
White Paper on Governance 2001, p. 31.

27
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 body
with monitoring powers will require information on the content of acts created by the

99
Ponzano 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 independent
administrative 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.
102
Final report of Working Group IX on Simplification, p. 12.
103
Craig 2004, p. 32; See: Supra 99.

28
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?

29
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 benefits

The 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

104
Dehousse 2003, p. 804.

30
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 the
creation 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

105
The legislature’s workload is generally considered a problem. See for instance: Häge and Kaeding
2007.
106
See: Lenaerts and Desomer 2003, p. 113. See also: Praesidium’s Draft of Articles 24 to 33 of the
Constitutional Treaty, p. 16.

31
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

107
Vos 2004, p. 117.
108
See Council Decision 2006/512/EC, points 2 and 4.
109
Among others: Christiansen and Vaccari 2006, p. 15; CEPS, EGMONT and EPC 2007, p. 9.
110
Christiansen and Vaccari 2006, p. 15.

32
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

111
Bradley 2008, p. 851.
112
Jacobs 2003, pp. 12-14.
113
Craig 2004, pp. 32-33.
114
This is logical given the fact that the advisory committee does not provide the legislator with a
monitoring function, see chapter 1.2 above.

33
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 and
featured 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.
116
Bradley 2008, p. 851. See contrary: CEPS, EGMONT and EPC 2007, p. 9.
117
See: Praesidium’s Draft of Articles 24 to 33 of the Constitutional Treaty, pp. 1-3.

34
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

118
Liisberg 2006, p. 13.
119
Liisberg 2006, p. 26.
120
See 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’.
122
Lenaerts and Desomer 2003, pp. 116-117; Craig 2008, p. 161.
123
Lenaerts and Desomer 2003, p. 113.

35
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

124
Best 2008, p. 11.
125
Liisberg 2006, p. 42.
126
Neuhold 2001, p. 5.
127
Lenaerts and Desomer 2003, p. 118.

36
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.

128
Lenaerts and Desomer 2003, pp. 116-117.
129
Supra 66.
130
Bergström 2005, p. 8. NB. In the EU budget, one can recognise comitology committees by the referral
to ‘committees whose consultation is compulsory for the Commission’.
131
White Paper on Governance 2001, p. 31; Ponzano 2002, p. 2.

37
 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.

132
Supra 93; see similarly: Craig 2008, p. 161.

38
 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 deliberative
supranationalism 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 to
133
Gehring 1999, p. 203.

39
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.

40
Chapter 4 – Conclusion

The research underlying this essay was directed at some consequences of the
distinction 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

41
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.

42
 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

43
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.

44
References

Community documents

Cisneros 2002 WD 005 - WG IX

G. Cisneros, Working Document 5 of Convention Working Group IX, 15 October
2002, 2.
Commission Declaration 1999
Commission Declarations on Council Decision 1999/468/EC of 28 June 1999 laying
down the procedures for the exercise of implementing powers conferred on the
Commission (1999/C 203/01).
Commission Proposal 2002
Commission Proposal for a Council Decision amending Decision 1999/468/EC
laying down the procedures for the exercise of implementing powers conferred on
the Commission, COM(2002) 719 final.
Commission Report 2004
Commission (2004), ‘Report from the Commission on the Working of Committees
during 2003’, COM (2004) 860 final.
Commission Report 2007
Commission (2007), ‘Report from the Commission on the Working of Committees
in 2006’, COM (2007) 842 final.
Commission Representative 2002, WGD 027 - WG IX
Commission Representative, WGD 027 - WG IX, ‘Answers of the Commission’s
Representative to the Questions Asked by Members of the Group’ (20 November
2002), available at: <http://european-convention.eu.int/docs/wd9/5419.pdf>.
Council Decision 87/373/EEC
Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the
exercise of implementing powers conferred on the Commission (OJ 1987 L 197/33).
Council Decision 1999/468/EC
Council 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
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).
Declaration to the Single European Act 1987
Single European Act: Declaration of 29 June 1987 on the powers of implementation
of the Commission (February 1986) OJEC L 169.
Draft Commission Regulation 2008
Draft Commission Regulation implementing Directive 2005/32/EC of the European
Parliament and of the Council with regard to ecodesign requirements for standby
and off mode electric power consumption of electrical and electronic household and
office equipment, COM (2008) XXX.
Draft Constitutional Treaty
CONV 850/03, Draft Treaty of 18 July 2003 establishing a Constitution for Europe.
Europe (bulletin quotidien) 30 November 1961
European Parliament 1998

45
 European Parliament Resolution of 16 December 1998 on the modification of the
procedures for the exercise of implementing powers conferred on the Commission
— ‘commitology’ (Council Decision of 13 July 1987).
European Parliament Committee on Constitutional Affairs, Draft Report 6 March 2008
European Parliament Committee on Constitutional Affairs, Draft report of 6 March
2008 on the conclusion of an Interinstitutional Agreement between the European
Parliament and the Commission on procedures for implementing Council Decision
1999/468/EC laying down the procedures for the exercise of implementing powers
conferred on the Commission, as amended by Decision 2006/512/EC,
2008/2002(ACI).
European Parliament Committee on Constitutional Affairs, Draft Report 13 June 2008
European Parliament Committee on Constitutional Affairs, Draft Report of 13 June
2008 on Parliament’s new role and responsibilities in implementing the Treaty of
Lisbon, 2008/2063(INI).
Farnleitner
Suggestion for amendment of Article 28 by Mr. Farnleitner, available at
<http://european-convention.eu.int/Docs/Treaty/pdf/28/Art%2028Farnleitner.pdf >.
Final Report of Working Group IX
Final report of 29 November 2002Working Group IX on Simplification, CONV
424/02.
Mandate for the 2007 IGC
Mandate for the 2007 IGC, available at
<http://register.consilium.europa.eu/pdf/en/07/st11/st11218.en07.pdf>.
Notes of the Meeting of The European Convention
Notes of the Meeting of The European Convention, 17 and 18 March 2003,
available at <http://www.epin.org/pdf/report_17mar03.pdf>.
Ponzano 2002 WD 016 - WG IX
P. Ponzano, WD 016 - WG IX, ‘Proposal to distinguish legislative and executive
functions in the institutional system of the European Union’, (7 November 2002),
available at: <http://european-convention.eu.int/docs/wd9/4660.pdf>.
Praesidium’s Draft of Articles 24 to 33 of the Constitutional Treaty
CONV 571/03, 26 February 2003, Praesidium’s Draft of Articles 24 to 33 of the
Constitutional Treaty.
Report of the Three Wise Men Committee 1979
Report of the Three Wise Men Committee, Dublin, 29 and 30 November 1979,
Bulletin of the European Communities, No. 11/1979, available at:
<http://aei.pitt.edu/999/01/Committee_of_Three_Report_1979.pdf>.
Secretariat of the European Convention 2002
Secretariat of the European Convention, Working Groups: Second Wave, CONV
206/06.
Tables of Equivalences
Tables of Equivalences in Annex to the Treaty (OJ C 306 of 17 December 2007,
202-229).
White Paper on Governance 2001
Commission 2001, ‘White Paper on Governance’, COM (2001) 428 final.

Case law

Case 9/56 Meroni & Co. S.p.A. v High Authority of the ECSC [1959] ECR
11-48 and 53-86.

46
Case 25/70 Einfuhr- und Vorratsstelle für Getreide und Futtermittel /
Köster [1970] E.C.R. 1161.
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.
Case C-177/95 Ebony Maritime SA v Prefetto della Provincia di Brindisi
[1997] ECR I-1111.
Case C-259/95 European Parliament v Council of the European Union
[1997] E.C.R. I-5303.
Case T-188/97, Rothmans International BV v. Commission of the European
Communities, [1999] ECR II-2463.

Books and articles

Azzi 1999
G.C. Azzi, ‘Comitology and the European Commission’, in: C. Joerges and E. Vos
(eds.), EU Committees: Social Regulation, Law and Politics, (Hart Publishing,
1999).
Bayer 2004
N. Bayer, ‘EU 25 – Creating a New Design for the Council’, 3 EIPASCOPE (2004),
8.
Bergström 2005
C.F. Bergström, Comitology. Delegation of Powers in the European Union and the
Committee System, (Oxford University Press, 2005).
Bergström and Rotkirch 2003
C.F. Bergström and M. Rotkirch, ‘Simply Simplification? The Proposal for a
Hierarchy of Legal Acts. Preliminary Report’, 8 SIEPS 2003, available at
<http://www.epin.org/pdf/SiepsSimplification.pdf>.
Bergström, Farrell and Héritier 2006
C.F. Bergström, H. Farrell and A. Héritier, ‘Legislate or Delegate? Bargaining over
Implementation and Legislative Authority in the European Union’, RSCAS EUI
Working Paper 42 (2006).
Best 2008
E. Best, ‘The Lisbon Treaty: A Qualified Advance for EU Decision-Making and
Governance’, 1 EIPASCOPE (2008), 7.
Blom-Hansen 2008
J. Blom-Hansen, ‘The Origins of the EU Comitology System: A Case of Informal
Agenda-Setting by the Commission’, 15 Journal of European Public Policy 2
(2008), 208.
Bradley 2008
K. St. C. Bradley, ‘Halfway House: The 2006 Comitology Reforms and the
European Parliament’, 31 West European Politics 4 (2008), 837.
CEPS, EGMONT and EPC 2007
CEPS, EGMONT and EPC, ‘The Treaty of Lisbon: Implementing the Institutional
Innovations’, Joint Study CEPS, EGMONT and EPC (2007), available at
<http://www.epc.eu/PDF/JS.pdf>.
Christiansen and Vaccari 2006
T. Christiansen and B. Vaccari, ‘The 2006 Reform of Comitology: Problem Solved
or Dispute Postponed?’, 3 EIPASCOPE (2006), 9.

47
Craig 2004
P. Craig, ‘The Constitutional Treaty: Legislative and Executive Power in the
Emerging Constitutional Order’, EUI Working Paper 7 (2004).
Craig and De Búrca 2007
P. Craig and G. De Búrca, EU Law: Text, Cases & Materials, (Oxford University
Press, 2007) .
Curtin 2004
D. Curtin, ‘Mind the Gap: the Evolving EU Executive and the Constitution’, in: W.
Devroe and D. Droshout, Walter van Gerven Lectures (Europa Law Publishing,
2004), available at <http://www.law.kuleuven.ac.be/ccle/pdf/wvg3.pdf>.
Curtin 2007
D. Curtin, ‘Holding (Quasi-) Autonomous EU Administrative Actors to Public
Account’, 13 ELJ 4 (2007), 523.
Dehousse 2003
R. Dehousse, ‘Comitology: Who Watches the Watchmen?’, 10 Journal of European
Public Policy 5 (2003), 798.
EIPA 2002
EIPA, Governance by Committee, the Role of Committees in European Policy-
Making and Policy Implementation – Draft Final Report (Maastricht, EIPA 2002).
EIPA Research Project 2000
EIPA, Governance by Committee, the Role of Committees in Eurpean Policy-
Making and Policy Implementation – Research Project (Maastricht, EIPA 2000),
Project No. SERD-1999-00128.
Gehring 1999
T. Gehring, ‘Bargaining, Arguing and Functional Differentiation of Decision-
making: The Role of Committees in European Environmental Process Regulation,’
in: C. Joerges and E. Vos (eds.), EU Committees: Social Regulation, Law and
Politics, (Hart Publishing, 1999).
Guéguen and Rosberg 2004
D. Guéguen and C. Rosberg, Comitology and Other EU Committees and Expert
Groups, (EIS Publishing, 2004).
Häge and Kaeding 2007
F.M. Häge and M. Kaeding, ‘Reconsidering the European Parliament’s Legislative
Influence: Formal vs. Informal Procedures’, 29 Journal of European Integration 3
(2007), 341.
Jacobs 2003
F.B. Jacobs, ‘Development of the European Parliament’s Powers: An Incomplete
Agenda?’, European Union Studies Association, 8th Biennial Conference (2003),
available at <http://aei.pitt.edu/44/01/Development_of_the_EP_powers.pdf>.
Jacqué 1999
J.P. Jacqué, ‘Implementing Powers and Comitology’, in: C. Joerges and E. Vos
(eds.), EU Committees: Social Regulation, Law and Politics, (Hart Publishing,
1999).
Jansma 2007
G.J. Jansma, ‘Accountability Deficits in European ‘Comitology’ Decision-Making’,
EioP (2007), available at <http://eiop.or.at/eiop/texte/2007-04a.htm>.
Joerges 1999
C. Joerges, ‘Bureaucratic Nightmare, Technocratic Regime and the Dream of Good
Transnational Governance’, C. Joerges and E. Vos (eds.), EU Committees: Social
Regulation, Law and Politics, (Hart Publishing, 1999).

48
Joerges 2003
C. Joerges, ‘Comitology and the European model? Towards a Recht-Fertigungs-
Recht [“a justice-making law”] in the Europeanisation Process – Some preliminary
remarks’, available at
<http://www.arena.uio.no/cidel/Workshop_Firenze/contJoerges.pdf>.
Joerges and Neyer 1997
C. Joerges and J. Neyer, ‘From Intergovernmental Bargaining to Deliberative
Political Processes: The Constitutionalization of Comitology’, 3 ELJ 3 (1997), 273.
Kaeding 2007
M. Kaeding, ‘Active Transposition of EU Legislation’, 3 EIPASCOPE (2007), 27.
Kietz and Maurer 2007
D. Kietz and A. Maurer, ‘The European Parliament in Treaty Reform: Predefining
IGC’s through Interinstitutional Agreements’, 13 ELJ 1 (2007), 20.
Lenaerts and Desomer 2003
K. Lenaerts and M. Desomer, ‘Simplification of the Union’s Instruments’, in: B. de
Witte (ed.), Ten Reflections on the Constitutional Treaty for Europe (Robert
Schuman Centre for Advanced Studies, 2003).
Liisberg 2006
J.B. Liisberg, ‘The EU Constitutional Treaty and its distinction between legislative
and non-legislative acts – Oranges into apples?’, Jean Monnet Working Paper 1
(2006).
Lintner and Vaccari 2007
P. Lintner and B. Vaccari, ‘Comitology and the EP’s scrutiny of Commission
implementing acts: real parliamentary control?’ in: T. Christiansen and T. Larsson
(eds.), The Role of Committees in the Policy Process of the European Union.
Legislation, Implementation and Deliberation, (Edward Elgar Publishing Limited,
2007).
Mastenbroek and Veen 2008
E. Mastenbroek and T. Veen, ‘Last Words on Delegation?: Examining The Powers
of the Union’, 9 European Union Politics 2 (2008), 295.
Neuhold 2001
C. Neuhold, ‘“Much Ado About Nothing?” Comitology as a Feature of EU Policy
Implementation and its Effects on the Democratic Arena’, IHS Reihe
Politikwissenschaft 78, (2001). 1.
Peers 2007
S. Peers, ‘EU Reform Treaty Analysis no. 3.6: Revised text of Part Five of the
Treaty establishing the European Community (TEC): EU institutions’, Statewatch
analysis, University of Essex (2007)
Pollack 1997
M.A. Pollack, ‘Delegation, Agency, and Agenda Setting in the European
Community’, 51 International Organization (1997), 99.
Pollack 2003
M.A. Pollack, ‘Control Mechanism or Deliberative Democracy? Two Images of
Comitology’, 36 Comparative Political Studies (2003), 125.
Rhinard 2002
M. Rhinard, “The Democratic Legitimacy of the European Union Committee
System’, Governance: An International Journal of Policy, Administration, and
Institutions 15 (2002), 85.
Savino 2005,

49
 M. Savino, ‘The Constitutional Legitimacy of the EU Committees’, Cahiers
Européens 3 (2005), 1.
Schaefer and Türk 2007
G.F. Schaefer and A. Türk, ‘The role of implementing committees’ in: T.
Christiansen and T. Larsson (eds.), The Role of Committees in the Policy Process of
the European Union. Legislation, Implementation and Deliberation, (Edward Elgar
Publishing Limited, 2007).
Scott 2000
J. Scott, ‘Flexibility, “Proceduralization”, and Environmental Governance in the
EU’ in: G. De Búrca and J. Scott (eds.), Constitutional Change in the EU. From
Uniformity to Flexibility?, (Hart Publishing, 2000).
Tizzano 1996
A. Tizzano, ‘The Instruments of Community Law and the Hierarchy of Norms’, in:
J. A. De Winter and others (eds.), Reforming the Treaty on European Union – The
Legal Debate, (Kluwer Law International, 1996).
Trondal 2005
J. Trondal, ‘EU Committee Governance and the Emerging Community
Administration’, European Union Studies Association, Biennial Conference (2005),
available at <http://aei.pitt.edu/2980/>.
Vervaele 1999
J.A.E. Vervaele, ‘Shared Governance and Enforcement of European Law: From
Comitology to a Multi-Level Agency Structure?’, in: C. Joerges and E. Vos (eds.),
EU Committees: Social Regulation, Law and Politics, (Hart Publishing, 1999).
Vos 2004
E. Vos, ‘The Fall of Committees?’, in: J.W. De Zwaan and others (eds.), The
European Union: An Ongoing Process of Integration – Liber Amoricum Alfred E.
Kellermann, (T.M.C. Asser Instituut, 2004).
Weiler 1999
J.H.H. Weiler, ‘Epilogue: “Comitology” as Revolution – Infranationalism,
Constitutionalism and Democracy’, in: C. Joerges and E. Vos (eds.), EU
Committees: Social Regulation, Law and Politics, (Hart Publishing, 1999).
Westlake and Galloway 2004
M. Westlake and D. Galloway, The Council of the European Union, (John Harper
Publishing, 2004).
Yatanagas 2001
X.A. Yatanagas, ‘Delegation of Regulatory Authority in the European Union. The
Relevance of the American Model of Independent Agencies, Jean Monnet Working
Paper, 2002.

Other Sources

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>.

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