The Commission Controlling the Commission
The Commission can exercise a great deal of control to limit non-essential measures prepared under empowerments from the co-legislators (e.g. those without a strict legal deadline, not related to the COVID-19 pandemic, etc.).
The GRI needs to validate this approach and the application of the policy in respect of those acts which will be transmitted to the co-legislators. Services and Commissioners also play their part in applying the policy.
There is nothing to force the Commission not to ‘go slow’ on the essential during the crisis.
The Member States Controlling the Commission
If the Commission doesn’t want to slow non-essential secondary legislation, member states could slow the machinery down.
The only issue is there any Member State with the conviction to step up and take the UK’s place. The UK never felt any problem asking the Commission difficult questions. They even asked if they were following the rules.
Other countries liked to hide behind the U.K. Now, we will see if other countries will step up defend the rules.
Today, most decisions are being taken by written procedure and in meetings by video conference.
Implementing acts
It is accepted that the written procedure is the exception to the rule. And, the issue needs to have been discussed in a meeting before moving to use the written procedure (See Rules of Procedure, Article 8(1)).
If the Commission use the written procedure, any committee member can request that the written procedure is terminated
“Unless otherwise provided in the basic act, the written procedure shall be terminated without result where, within the time limit referred to in the first subparagraph, the chair so decides or a committee member so requests”. see Art, 3(5)(para 2) Comitology Regulation)
Meetings by videoconference
At the moment, many meetings are being held by video conference. The Commission thinks this is a ‘meeting’. The Rules of Procedure and Comitology Regulation are silent.
It is accepted that during video conference meetings, only the draft implementing acts are meant to be discussed.
If there is a vote on the draft implementing act, this needs to be done by written procedure.
So, a committee member is entitled, under the current rules, to object to a vote being put forward. The vote can wait until the physical meeting.
Delegated acts
Similar provisions apply to the rules of procedures for expert groups. Here the threshold is higher – a simple majority.
The standard rules of procedure for expert groups dealing with delegated acts is here.
Annex 3 Point 9 deals with Written procedure.
- If necessary, the group’s opinion or recommendation on a specific question may be delivered via a written procedure. To this end, the secretariat sends the group members the document(s) on which the group is being consulted.
- However, if a simple majority of group members asks for the question to be examined at a meeting of the group, the written procedure shall be terminated without result and the Chair shall convene a meeting of the group as soon as possible (emphasis added).
A way forward
The easiest thing to do is for the Commission to control their colleagues issuing non- essential secondary legislation.
If they can’t delay non-essential secondary legislative proposals whilst Europe fights this crisis, we will need just one Member State to stand up and put on hold the regulatory train.
If that does not work, the Parliament and Council could just block all the secondary laws that have been adopted during the crisis.
Links
Guidelines for the services of the Commission – Implementing Acts
Guidelines for the services of the Commission – Delegated Acts