Introduction
On 11 February 2025, the Commission announced the withdrawal of the 2017 Proposal to reform the Comitology Regulation. The reasons for the withdrawal are rather succinct: ‘[n]o foreseeable agreement – the Proposal is blocked and further progress is unlikely’. Branded by the Commission as a ‘new push for European democracy’, the proposal had arguably much more to do with the Commission’s desire to shift the political blame for controversial decisions it would adopt, rather than with a genuine interest in enhancing the legitimacy of comitology-based decision-making. Although fundamental design flaws affecting EU executive rule-making post-Lisbon warrant change, the Commission’s attempt by means of a half-hearted proposal was insufficient to address at least two fundamental problems of constitutional significance. In this blog post, we argue that the rationale of the EU’s institutional design and the normative centrality of the principle of democracy should serve as the basis for a reform of comitology, re-involving the EU legislature in politically sensitive cases and boosting participation and transparency through new procedural rules.
Four Proposed Changes and Two Fundamental Issues
In essence, the Commission had proposed four main changes: (i) to ignore abstentions when calculating votes in the appeal committee; in case of no opinion in the appeal committee, (ii) to introduce a second appeal through a committee composed by representatives at ministerial level or (iii) to allow the Commission to ask for a Council’s non-binding opinion; and (iv) to make the voting behaviour of the Member States in the appeal committee public (for detailed comments, see here and here). With its proposal, the Commission attempted to address one important lingering issue since the introduction of Article 291 TFEU, that is, who has control over the implementation of EU law. Another fundamental issue, namely the relation between comitology-based decision-making and the principle of democracy, was instead completely ignored by the Commission. Although it did propose to unveil the voting behaviour of Member States in the appeal committee, this can be regarded as motivated by political blame-shifting rather than true concerns of democracy.
Control over Union Implementation of EU Law
Importantly, the proposed amendments of comitology would have brought back political control over, and responsibility for, implementing decision-making. The Commission visibly struggled with how to do this and suggested, on the one hand, to bring the Council back into comitology-based decision-making by formulating a non-binding opinion and, on the other, to add an extra layer in the decision-making process through the introduction of a committee composed of representatives at ministerial level. Yet, the idea to bring back in the Council was strongly opposed by the Council Legal Service and the Member States. This opposition was rooted in the view that, due to the changes brought about by the Lisbon Treaty, Article 291 TFEU would now reserve implementation of EU law for the Member States only. Accordingly, the Council Legal Service argued that this proposal went ‘beyond the role envisaged by the Treaties for the Council and would be in breach of the principle of institutional balance’, and encroached ‘on the competence of the Member States as foreseen by the Treaties’. The Council based itself on a strict, textual reading of Article 291(3) TFEU that assigns the responsibility to control the exercise of implementing powers by the Commission to the Member States alone, to the exclusion of the Parliament and the Council.
Such a narrow reading is, however, not in line with the underlying rationale of the EU’s constitutional and institutional structures – hence, the institutional balance – and the democratic principle laid down in Articles 9 to 12 TEU. Moreover, it disregards the fact that the EU’s two general competences under Articles 114 and 352 TFEU include also executive powers. Therefore, adopting a contextual interpretation, implementing powers delegated to the Commission by the EU legislature (at least in the exercise of such general competences) should be read as falling under the political supervision of the EU’s legislature. It follows that the Commission was right in its desire to bring the Council back in. As a matter of fact, this interpretation is also partially reflected in the current Comitology Regulation, and in particular in its Article 11. The latter recognises an (albeit limited) role for both the Council and the Parliament in overseeing the exercise of implementing powers. This is done by means of a restricted right of scrutiny that allows the co-legislators to indicate where, in their view, a draft implementing act would exceed the implementing powers provided for in the basic act. Evidently, if the correct reading of Article 291 TFEU was the strict one advocated by the Council Legal Service, Article 291(3) TFEU could have not served as the legal basis for Article 11 of the Comitology Regulation.
That said, abandoning the strict, textual reading of Article 291(3) TFEU in favour of a contextual interpretation allows not only to uphold the legitimacy of the current Comitology Regulation, but also to think of a more radical and simple reform. Crucial would be to give a veto right to both the Parliament and the Council in comitology-based decision-making. This would enable them to block Commission decision-making in situations of irreconcilable positions among the Member States in the setting of an appeal committee, determining the outcome of decision-making procedures in politically sensitive dossiers such as, for example, GMOs and pesticides. In this sense, the mechanism would be similar to the power to object currently foreseen in the framework of delegated acts under Article 290 TFEU: where the Parliament and the Council would not make use of their opposition powers, the Commission would be obliged to adopt the acts, while, where the Parliament or the Council would oppose, the draft implementing act would not be adopted.
Constitutional Requirements of the Principle of Democracy
The Commission’s 2017 proposal completely overlooked the role of the Parliament and did not address the requirements stemming from the principle of democracy. This is problematic when considering that the constitutional framing of EU executive rule-making should be read in light of this principle as set forth in Articles 9 to 12 TEU. The latter, indeed, recognise that the functioning of the Union is founded on both representative and participatory democracy. This horizontal normative framework informs all areas of EU decision-making, including both delegated and implementing acts and thereby underpinning their democratic legitimacy. Therefore, the legitimacy of EU executive decision-making rests on the respect for the principle of democracy, taking into account, in particular, transparency and participation.
Operationalisation of the principle of democracy within the framework of EU executive rule-making, we argue, should proceed along two lines. First, the Parliament should play a substantial role in politically sensitive matters. Unsurprisingly, after receiving the Commission’s reform proposal, the European Parliament, who had long fought to be placed on equal footing as the Council in comitology, reacted by proposing significant amendments. The latter would have, inter alia, recognised the Parliament’s role as co-advisor together with the Council and broadened the right of scrutiny also to cases in which the draft implementing act is in conflict with the objectives of the basic act. As explained above, we advocate for an even more prominent role for both branches of the EU legislature, in the form of a veto right.
Second, participation in decision-making beyond representative institutions, as enshrined in Article 11 TEU, should serve as a complementary source of democratic legitimacy also for executive acts. This necessitates procedural rules capable of, on the one hand, detailing participatory engagement in executive rule-making and, on the other, enhancing transparency. Key objective of such rules would be to address and overcome well-known hurdles to participation such as articulation, representation, and organisation of interests. This reform would allow executive rule-making to go beyond being merely ‘science-based’ to enhance the knowledge and collect more information in the specific dossiers. Indeed, it would crucially respond to the normative democratic imperative for participatory engagement. Currently, the Commission is already opening up the making of delegated and implementing acts to experts, stakeholders, and the public. Yet, the Commission has unfettered discretion in this respect, and it views participation as an instrument to collect information for evidence-based policymaking rather than as a normative democratic obligation. The controversial dossiers on GMOs, glyphosate, and possibly in the future novel foods, demonstrate that participatory engagement in comitology-based decision-making in complex controversial dossiers is needed for both reasons.
Finally, and in the same vein, safeguarding democratic legitimacy requires acknowledging that, as highlighted by Leino-Sandberg on this Blog, ‘determining the level of transparency and access to documents is legally not at the discretion of individual institutions, but a normative choice made in the Treaty of Lisbon and the Charter’. In this respect, recent case-law concerning the Commission’s obligation to give access to the individual positions of the Member States in committee meetings should serve as a basis for designing a more transparent regime.
Outlook
Where the demarcation between delegated and implementing acts is constitutionally questionable and very much blurred in practice, we view a return to a merged system of delegated and implementing acts, and hence to an integrated executive rule-making system, to be crucial. However, to reform comitology, one must not await Treaty change. It is clear that the controversial cases mentioned above unveil the naivety of the belief that a rational legislature will always be able to predict which dossiers might turn out to be politically sensitive. Comitology, as a filter for political sensitivities, is still a good mechanism to identify such dossiers. In light of the above, we argue that reform of comitology is needed as decision-making on complex controversial topics requires broad political acceptance and respect for the principle of democracy. This can be achieved by means of, first, re-involving the EU legislature whenever science alone cannot provide a conclusive answer and Member States and the Commission cannot find agreement, and, second, setting procedural rules detailing participatory engagement and boosting transparency in EU executive rule-making. Ultimately, all this underlines the need to rethink the normative spaces for delegated rule-making and to observe democratic mechanisms and requirements, such as participatory engagement and transparency.
Guido Bellenghi is a PhD candidate in EU law at Maastricht University.
Ellen Vos is Professor of EU law at Maastricht University. They are the authors of ‘Rethinking the Constitutional Architecture of EU Executive Rulemaking: Treaty Change and Enhanced Democracy’.
