The Commission is in many areas explicitly empowered by the European Parliament and/or the Council to adopt acts to implement EU law. These implementing acts range from individual product authorisations or work programmes to antidumping measures or rules on roaming. The Commission acts under the control of Member States following a mechanism set out in the Comitology Regulation.
The Commission submits draft implementing acts to a Committee composed of representatives of each Member State, which vote on the draft. There are three possible outcomes of such a vote:
- if there is a qualified majority of Member States in favour (positive opinion) the Commission must adopt the act;
- if there is a qualified majority against (negative opinion) the Commission cannot adopt the act;
- if there is no qualified majority for or against ('no opinion') the Commission may adopt the draft.
In specific policy areas, such as GMO authorisations, or if a simple majority of Member States is against the draft act, the Commission cannot go ahead with adoption when the Committee reaches a 'no opinion' situation. It must in these cases refer the draft to an Appeal Committee, also composed of Member State representatives.
A positive or negative opinion in the Appeal Committee produces the same results as in the first Committee. If the Appeal Committee repeats the 'no opinion' vote, then the Commission may adopt the draft. In practice this often means that the Appeal Committee has not helped to provide additional clarity to the Commission on Member State positions.
The overwhelming majority of all votes in the Committees result in positive opinions (about 98%). There are hardly any negative opinions and only very few 'no opinion' cases (about 2%).
Why is the Commission reforming these procedures?
The overall system works very well and should be maintained. However, in a number of high profile and sensitive cases in recent years Member States have left the Commission facing the 'no opinion' scenario.
In these cases, the political responsibility for taking a final decision falls upon the Commission, obliging a decision to be taken without clear political backing from Member States. As President Juncker said in his State of the Union address in 2016, "It is not right that when EU countries cannot decide among themselves whether or not to ban the use of glyphosate in herbicides, the Commission is forced by Parliament and Council to take a decision. So we will change those rules."
In 2015 and 2016, the Commission was legally obliged to adopt 17 acts which concerned the authorisation of sensitive products and substances such as glyphosate or genetically modified organisms (GMOs), despite Member States being unable to take position either in favour or against the decisions.
The changes proposed today are limited to the handling of exceptional cases in which Member States are unable – and often unwilling - to agree among themselves. These are cases in which both in the Committee and in the Appeal Committee there is a 'no opinion' scenario. The Commission considers that it is necessary to ensure wider political accountability and ownership in these cases.
What are the proposed changes and how will they help solve the problem?
The proposal puts forward four very targeted changes. The objective is to improve its functioning and to ensure political responsibility and ownership by Member States of sensitive decisions. The proposed changes are:
- changing the voting rules in the Appeal Committee, so that only votes in favour or against an act are taken into account; this should reduce the use of abstentions and the number of situations where the Committee is unable to take a position and the Commission is obliged to act without a clear mandate from the Member States;
- involving national Ministers by allowing the Commission to make a second referral to the Appeal Committee at Ministerial level if national experts do not take a positon (a one month extension of the deadline to adopt an opinion will allow the necessary time for this meeting); this will ensure that sensitive decisions are discussed at the appropriate political level;
- increasing voting transparency at the Appeal Committee level by making public the votes of Member State representatives;
- ensuring political input by enabling the Commission to refer the matter to the Council of Ministers for an Opinion if the Appeal Committee is unable to take a position.
Why is the Commission revising the horizontal legislation and not working specifically on sensitive sectors?
The proposal adopted today does not preclude other sectorial approaches to address substantial issues. But exactly because these issues are particularly sensitive, the decision-making on them must be as transparent and accountable as possible. The Commission is fully aware that issues around GMOs are not procedural, but fundamental political questions. The Commission has recognised this with the proposal it made in relation to GMO food and feed.
What is the current state of play with the GMO and Glyphosate procedures?
On GMO cultivation there are currently 6 pending applications. On three of these applications, a vote in the responsible Committee took place on 27 January 2017. The votes resulted in 'no opinion' outcomes and the drafts will now be referred to the Appeal Committee.
On glyphosate, the current approval is valid until 31 December 2017, and the Commission will have to consider whether to propose a renewal of the approval. After EU Member States failed to take responsibility for the decision on glyphosate extension in June 2016, the Commission decided to extend the approval of glyphosate for a limited period of time, until the European Agency for Chemical Products (ECHA) issues its opinion, by the end of 2017 at the latest.
What are the next steps?
Changes to the Comitology Regulation must be decided jointly by the European Parliament and the Council in the ordinary legislative procedure. The proposal will now be transmitted to both institutions. Until the Commission's proposal is adopted, the current rules remain in force.