I am old enough to have been working on proposals which moved from consultation with the EP to co-decision. When the rules of the game shift it takes a while for people to adjust.
On 26 July 2019, many RPS measures moved over to become delegated acts. This includes Classification and Labelling proposals.
Under delegated acts, Member States lose influence. Some governments can’t understand how they gave up so much influence when they signed off on Lisbon.
It’s not clear to me whether they are upset that with their government colleagues being asleep at the wheel for handing over so much influence, or that they don’t like to share the table with the EP. I think it is a mix.
On 18 September 2019, the first classification under the new delegated act procedure came up, in the 14th update to the ATP.
Beforehand, the expert group needed to adopt new Rules of Procedure. After all, you can’t make decisions without rules!
The old Rules of Procedure were from 2012.
Updating the Rules of Procedure should easy. There are standard rules of procedures are delegated acts
here, which are usually applied for committees that prepare delegated acts.
On the day, the experts from the Member States raised a number of questions about the Commission’s proposed Rules of Procedures.
The debate must have been difficult because the Rules of Procedure that were adopted look nearly the same as the 2012 pre-delegated act rules of procedure and made one change.
They binned the Commission’s proposal and reverted back to the 2012 Rules of Procedire with one sentence added.
“Article 1 (tasks) of the rules now states that: “CARACAL shall assist the Commission in relation to the preparation of delegated acts in accordance with the CLP Regulation”. Article 1(1)
EP lockout
The member state experts must have not liked the idea of the European Parliament looking into their deliberations.
The 6th September 2019 proposed rules included:
“The European Parliament and the Council may each send experts to the CARACAL meetings dealing with the preparation of delegated acts.” (Point 2(3)
The 19th September 2019 final text has removed the standard clause on the particpation of the EP and Council.
“As regards the preparation of delegated acts, paragraph 28 of the Interinstitutional Agreement on Better Law-Making8, as well as paragraphs 10 and 11 of the Common Understanding between the European Parliament, the Council and the Commission on Delegated Acts, annexed to that Interinstitutional Agreement, apply”. Article 19(2), Commission Decision of 30.5.2016 establishing horizontal rules on the creation and operation of Commission expert groups (link).
Under this binding agreement, the European Parliament and the Council may each send experts to meetings of the Commission expert groups dealing with the preparation of delegated acts to which Member States’ experts are invited.
“To ensure equal access to all information, the European Parliament and Council shall receive all documents at the same time as Member States’ experts. Experts from the European Parliament and from the Council shall systematically have access to the meetings of Commission expert groups to which Member States’ experts are invited and which concern the preparation of delegated acts”. Article 28, 3rd indent) Inter-Instiutional Agreement (link)
It’s true that the Committee can agree to different rules to the standard rules of procedure. That said, they can’t adopt rules of procedure that bypass the inter-institutional agreement.
An error like this, even a clerical error, means the decision is null and void. The Commission should just re-start, adopt compliant rules of procedure, and run the expert group meeting again, with the EP and Council present (if they choose to attend).