How to control the Commission during a crisis – secondary legislation

You’d think that during the crisis, that the Commission would put on hold the flow of non-COVID 19 proposals. You’d be wrong.
The work putting forward new, but non-critical,  secondary legislation continues. It would seem that many departments have taken up the deep green mantra that ‘everything is connected to everything’.  They reason that if they stop putting out new laws Europe would grind to a halt. They’d be wrong.
The challenge for many governments, organisations and people impacted by the new laws is that their minds are elsewhere.  When you are working to keep your country, organisation and family afloat, you are not going to have the bandwidth to deal with new proposals. The level of scrutiny for these non-essential proposals can’t be great.
I would find it doubtful that many governments really are deeply examining the proposed laws. I’d guess they are focused on one thing.
It must be hard for inter-service consultation to work properly within the Commission.  The people who scrutinise proposals well are too busy dealing with the crisis actions and recovery plan.
The European Parliament asked the Commission to hit the brakes. It is hard to scrutinise things well when working from a distance.  It is unclear whether the Commission listened to them.

 

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.

  1. 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.
  2. 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

 

Comitology Regulation

 

Standard Rules of Procedure – comitology 

Rules of Procedure for Expert Groups