Comitology system in focus: VCI Position Paper on Regulation 182/2011

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1 Comitology system in focus: VCI Position Paper on Regulation 182/2011 Core Messages The German Chemical Industry Association, Verband der Chemischen Industrie e.v. (VCI), welcomes the Commission s initiative to optimise the comitology system. Clear evidence-based decision-making, taking into account existing laws, a thorough examination of scientific facts and the given situation, as well as being widely accepted through proper communication, is of key importance to the chemical industry. Scientifically-sound decisions taken on the basis of the innovation principle can increase confidence in the European decision-making process. Better Regulation instruments in particular could make a key contribution to the further development of the procedures. There is no need to revise Regulation 182/2011. The European Parliament and Council are responsible for ensuring a political balance of interests in the legislative procedure. Once the political issues are settled, European legislation results. The Commission in its function as executive and administrative actor then has a central role in ensuring the uniform implementation of such European laws. Regulation 182/2011 stipulates the ways in which the national administrations of the Member States can support and monitor the Commission in taking evidence-based decisions. In our view the Commission proposal for amending Regulation 182/2011 goes a step too far. Through direct or indirect institutionalisation of the Council s role in the examination procedure, it may put at risk this clear separation, according to which political issues are regulated by democratically legitimised political actors within the legislative procedure, while within the legislative framework - evidence-based decisions on specific cases are made by objective executive or administrative actors. The Commission could in fact make use of its right to bring political issues which have not yet been clarified back into the legislative process. This would prevent the constant politicisation of administrative decisions. The German Chemical Industry Association supports the Commission in its call to administrative actors of Member States to play an active role and meet their responsibility, especially in the examination procedure. There could be a practical and easily implemented solution to enhance the responsibilities of the national administrations of the Member States: According to Regulation 182/2011, the Commission can take the decision on whether to accept or reject a proposed measure in the examination procedure if no opinion is delivered by the appeal committee. If the Commission decided that draft implementing acts were to be adopted in the absence of an appeal committee opinion, national experts would have greater incentive to give their 1

2 clear view. If the national experts then decide not to deliver an opinion, the Commission and public can assume that the national administration experts support the decision. This solution would require no amendment to Regulation 182/2011 and would mean that no potential risk would arise to the overall functioning system. The German Chemical Industry Association would like to emphasize that there are practical solutions which do not necessitate amendments to Regulation 182/2011. If a legislation amendment is politically unavoidable, we should proceed with great caution and in a minimally invasive manner, in order to safeguard the overall system which leads each year to around 1500 implementing acts in a wide range of policy areas: Article 6 (3), which currently states: where no opinion is delivered, the Commission may adopt the draft implementing act, could be amended to: where no opinion is delivered, the Commission shall adopt the draft implementing act. This automatism could further enhance the responsibility of the national administrative actors. Background In mid-february 2017, the Commission presented a revision proposal for Regulation 182/2011, which prescribes the course of action in important comitology procedures. The Commission proposal needs to be seen against the backdrop of past experience e.g. in the authorisation of glyphosate: According to the Plant Protection Product Regulation 1 the so-called examination procedure applies for such authorisations. In this type of comitology procedure a situation can arise where if there is disagreement among the experts in the appeal committee the final decision on adopting an implementing act rests with the Commission. In the past, experts from some Member States abstained. Now, the Commission wants to place more responsibility on the Member States for the future. The Commission is trying to achieve this through a targeted reform of the appeal committee within the examination procedure: In essence, changes to the voting rules for the examination committee will be made, and its votes made public. While this transparency is welcomed in principle, two further reform steps involve the risk of politicising the administrative examination procedure: Where a vote is inconclusive a second appeal committee meeting should be held at ministerial level. A non-binding opinion from the Council can be sought. Apart from this targeted revision of the Regulation, we should bear in mind that other changes to the established comitology system can be made in the ordinary legislative procedure or that this central pillar of European decision-making, as a whole, could even be questioned. 1 Article 79 of Regulation 1107/2009 in conjunction with Article 5 of Council Decision 1999/468/EC and Regulation (EU) 182/2011 2

3 Comments on the Commission Proposal With regard to action by the Commission, the Lisbon Treaty draws a clear distinction between the exercising of (quasi) legislative power (through delegated acts) and the shaping of EU-wide uniform implementation of Union law (through implementing acts). According to Article 290 of the Treaty on the Functioning of the European Union (TFEU), the EU legislator may delegate to the Commission the power to adopt delegated acts, i.e. non-legislative acts of general application, if these supplement or amend certain non-essential elements of a legislative act. In monitoring such quasilegislative action by the Commission, EU legislators (and therefore also the political level) have for good reason an institutional role in the procedure for adopting delegated acts. However, in terms of primary law, such quasi-legislative action needs to be distinguished from European administrative action in a narrower sense. The latter focuses on ensuring uniform conditions for implementation through implementing acts (Article 291 TFEU). In taking evidence-based decisions as an executive actor, the Commission is supported by experts from the national administrations of the Member States. Their involvement is regulated by the procedures established in Regulation 182/2011. The targeted revision of Regulation 182/2011 as pursued by the Commission is nothing less than a move away from the aforementioned logic, and from the clear separation of primary legislation between quasi-legislative action of potential political significance, and action taken as an executive and administrative actor in a narrower sense: Evidence-based decision-making for the purpose of uniform administration requires experts to assess and evaluate scientific findings. If the Council becomes involved here through a non-binding opinion, then the political aspect once again becomes a factor in the decision-making procedure. If in no-opinion situations evidence-based decisions previously made by the appeal committee in the examination procedure are referred to an appeal committee at ministerial level for a final decision, such fact-based administrative decisions are made in the end by the very same politicians who also constitute the Council. But legal certainty is ensured only if executive and administrative actors make such evidence-based decisions after careful examination of the facts. The German Chemical Industry Association advocates that democratically legitimised politicians set out a clear framework in a democratic legislative process. But with legal certainty in mind, within that legal framework, all evidence-based decisions need to be left to the administrative actors. The European and the national administrations have the necessary support infrastructure to conduct an adequate assessment and evaluation of technical and scientific findings and subsequently take an objective decision within the given legal framework. Should national experts take different views regarding such evidence-based decisions, the responsibility to make the final decision should lie with the Commission as the European administrative actor. National administrations should not, however, absolve themselves of their responsibilities in this system. 3

4 At the same time, it is the responsibility of the legislator to definitely clarify the political points when drafting law, so that comitology procedures deal with purely factual questions. The question of whether political issues have found their way into an administrative procedure created for factual questions needs to be examined. Instead of amending a functioning administrative procedure designed for evidence-based decision-making for the sake of individual cases, the Commission already has the option of bringing political issues which have not been clarified back into the legislative process any moment, using its right of initiative. The Commission notes in its proposal that the comitology system largely works. From our perspective, isolated individual cases where the Commission as European administrative actor needs to assume the responsibility for making the final decision without clear input from national experts do not justify a potential review of the overall system which works well, and once again discussing Regulation 182/2011. Improvements to the procedures are needed however: Use of Options other than Revising Regulation 182/2011 The consistent implementation of the Better Regulation Agenda provides the possibility to the Commission to make high-quality evidence-based decisions, also within the European administration framework, by relying on impact assessments and stakeholder consultations. More transparency and improved communication make such decisions much easier to understand for the public at large. Instead of revising Regulation 182/2011, the Commission should expand the instruments already at its disposal and use them consistently, in order to improve acceptance of the decisions made by the Commission as the European administrative actor. Furthermore, developing a list of criteria which helps the legislator choose between establishing a delegated act or stipulating implementing acts in the basic legal act is overdue. The national administration actors must pro-actively play the role assigned to them by the comitology system. Through a simple and practical solution, the Commission could enhance the responsibility of the national administrations without amending the legal framework: According to Regulation 182/2011, the Commission itself can decide to accept or reject the proposed measures if no opinion is delivered by the appeal committee in the examination procedure. Were the Commission to decide in advance that it does not use this room for manoeuvre, and the proposed implementing act to be automatically accepted if no opinion is delivered, national experts would have greater motivation to give their clear view. If this view is not forthcoming, the Commission and public can assume that the national administration experts support the decision. The legislator, in turn, should meet its responsibility and clarify political questions as conclusively as possible during the legislative procedure. The procedures of Regulation 182/2011 serve for the uniform implementation of EU law; they are not intended to provide subsequent clarification of political issues. All of the above are steps that can be taken without revising Regulation 182/

5 Positions Regarding the Revision of Regulation 182/2011 The German Chemical Industry Association clearly indicates that practical solutions also exist apart from the revision of Regulation 182/2011. If a legislative amendment is unavoidable politically, it is necessary to proceed with great caution and in a minimally invasive manner, in order to safeguard the overall system which leads each year to around 1500 legal implementing acts in a wide range of policy areas. The clearest possible separation between politics and administration should be retained and Article 3 (7) and 6 (3a) of the Commission proposal scrapped. Article 6 (3) which currently states: where no opinion is delivered, the Commission may adopt the draft implementing act could be amended to where no opinion is delivered, the Commission shall adopt the draft implementing act. This minimal intervention in the Regulation and the associated automatism further enhance the responsibility of the administration actors in the Member States. A universally applicable procedure for all factual matters is maintained. Improved transparency with regard to voting behaviour in the appeal committee should be welcomed. It is difficult to limit the discussion about Regulation 182/2011 to the Commission draft. Should the Commission wish to run the risk of putting the entire comitology system under scrutiny, which is in need of some improvement but works well overall, the Commission should be bold enough to look beyond Regulation 182/2011 and initiate a discussion about the introduction of a European law of administrative procedure. Contact: Martin Ludescher, VCI-Brussels Office, Phone: +32 (2) ludescher@vci.de Internet: Twitter: Facebook: German Chemical Industry Association Brussels Office Rue Marie de Bourgogne 58, 1000 BRÜSSEL, BELGIEN Identification no. in the EU Transparency Register: The VCI is registered in the public list on the registration of associations and their representatives of German Parliament (Deutscher Bundestag). The VCI represents the politico-economic interests of around 1,700 German chemical companies and German subsidiaries of foreign businesses. For this purpose, the VCI is in contact with politicians, public authorities, other industries, science and media. The VCI stands for over 90 percent of the chemical industry in Germany. In 2016 the German chemical industry realized sales of around 185 billion euros and employed over 447,000 staff. 5