Kill the Bill: Take Out the Comitology Reform

The reform is doomed to fall flat, so why not?

On Valentine’s Day last year you may have missed the European Commission’s proposal to reform Regulation 182/2011 (the ‘Comitology Regulation’), targeting Member States to prevent them from passing the buck on to the Commission when authorising controversial products such as glyphosate.

The Comitology Regulation defines the rules by which Member States supervise the Commission when it implements EU legislation. It generally works as follows: the Commission drafts an implementing act – an administrative and technical measure – and sends it to an ‘Examination Committee’ composed of national representatives for discussion and vote by qualified majority (QMV).

This system works well: 98% of draft measures receive a positive opinion from the Examination Committee. However, complications arise when Member States fail to reach a QMV in favour or against, known as a ‘no opinion’ situation.

When the Examination Committee delivers ‘no opinion’, the Commission can still adopt its draft measure unless a simple majority of Member States opposes it or if it relates to particularly sensitive issues such as consumer health or food safety.

In such cases, the Commission must convene an ‘Appeal Committee’ for a new vote. This Committee is also composed of Member States representatives but of a higher rank. In practice, they receive the same voting instructions as their colleagues in the Examination Committee, therefore the outcome of the vote is usually the same and the Committee still delivers ‘no opinion’.

However, to avoid a deadlock, there is a major procedural difference at this stage.

Indeed, even if the Appeal Committee fails to deliver a negative or positive opinion, the Commission is now allowed to adopt the measure. A poisoned chalice for the Commission that ends up taking the blame for unpopular decisions that the Member States themselves will not take.

Between 2015 and 2016 alone, the Executive adopted 17 implementing acts allowing sensitive products on the market despite ‘no opinions’ being delivered in comitology. The greatest recent example being the active substance glyphosate – the world’s most used herbicide – which triggered the Commission to propose the comitology reform at Mr Juncker’s request.

One understands Mr Juncker’s exasperation, especially when looking at the media coverage of the ‘glyphodrama’; the Commission was largely depicted as being under the influence of private interests when in reality it was following the positive opinion of its food safety agency (EFSA).[1] In the meantime, the failure to reach an opinion by the Member States was almost never reported, leaving ‘the EU’ as the only possible scapegoat.

But is the proposed reform the best way to deal with the issue? Many experts doubt it. The Commission proposed four targeted changes, all affecting the Appeal Committee:

  1. Changing the voting rules at Appeal level by disregarding abstentions in the voting result;
  2. Introducing the possibility for the Commission to re-convene an Appeal Committee composed of national ministers;
  3. Increasing voting transparency by publishing individual national voting positions; and
  4. Introducing the option of requesting a non-binding opinion from the Council.

The relevance of these changes is debatable. But one can only deplore the absence of an impact assessment accompanying the proposal, particularly as the Commission already concluded, in a report published in February 2016, that the Comitology Regulation was working fine.

Furthermore, it should be noted that this proposal – like any other proposal – needs to be approved by the co-legislators. Did Mr Juncker honestly believe that the Member States would ever agree to these changes?

The first thing that the Council ‘Working Party on General Affairs (Comitology Revision)’ did was to ask their legal service to provide an analysis which was published last March. Unsurprisingly, the lawyers slammed the proposal claiming on several occasions that the Commission was going against the mutual respect that is the basis of the sincere co-operation principle enshrined in the Treaties.

More recently, the Bulgarian Presidency published a progress report that also showed no mercy to the proposal. It revealed that a delegation of 15 Member States circulated a note explaining they were ‘unconvinced by the necessity and the added value of the proposal’.

All in all, it really looks like the proposed reform was merely an impulse action from the President of the European Commission; a poor attempt to take on the Member States after letting the Executive take the blame for difficult decisions. Glyphosate was only the last straw that broke the camel’s back.

In reality, the problem lies elsewhere. The small number of ‘no opinions’ delivered in comitology are mostly related to GMOs and phytopharmaceutical products, two areas where many national governments are either undecided or ignoring the facts to please the masses.

For example regarding GMOs, despite scientific consensus on their innocuousness, many national governments would never take the risk to vote in favour of their authorisation because it would garner unfavourable public opinion. In a perfect world, regulatory decisions would always be driven by science, but this is – as evidenced with GMOs – not always the case.

The problem is not about comitology, rather there is a more far-reaching one, namely the lack of trust towards our scientific agencies and the tendency to inject politics into technical discussions. Moving forward, that is what the Executive should focus on. For now, given that the comitology reform proposal is doomed to fail, it may be time to put it to sleep.

[1] French blogger “La Chèvre Pensante” made an interesting analysis of the French media coverage of a recent national debate on glyphosate. Looking at 33 press articles published between 29 and 30 May 2018, he found that only 12% of the articles were quoting EFSA’s findings, while 73% were still mentioning a very controversial study from the IARC that found that glyphosate was “probably carcinogenic” (and half of these would misquote the study – “probably carcinogenic” would simply become “carcinogenic”). Not a single article mentioned the global scientific consensus.

Author

Noam El Mrabet

Consultant

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