The European Parliament’s Right of Scrutiny EIPASCOPE Bulletin 2005/1 15 * * * * * EIPASCOPE 2005/1 EIPASCOPE adopted in 1987, and retrospectively 3 by the Single European Act, these imple- 2 The current procedures governing the work of the menting committees acquired an explicit legal basis in the Treaty. This paragraph formed the legal base for the first ‘comitology’ decision legitimised the existence of these committees by establishing that the Council could impose certain requirements in respect of the exercise of the Commission’s implementing powers. delegate implementing decision-making powers without retaining some sort of control. The Commission, on the other hand, did not possess all the necessary information and resources to keep abreast of developments and requirements in the fields to be regulated. Comitology was the perfect solution to satisfy both. The Council was not responsible for details, but was still in control via these ‘mini-councils’ in the committees. The Commission acquired the power to partly implement what it initially presents as a proposal in the legislative process. With the introduction of Article 202(3)

○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○ resp. Research Assistant and Senior Lecturer – EIPA Maastricht resp. Research Assistant and Senior ’s Involvement Parliament Beatrice Vaccari, Beatrice Vaccari, Beatrice Vaccari, Beatrice Vaccari, Beatrice Vaccari, ? and It emerged out of a practical need and for 1

Some 300 legislative acts are adopted every year by the European Parliament and the Some 300 legislative acts are Based on these acts, the European Commission adopts Council, or by the Council alone. each year, after consulting one of the 250 so-called around 3,000 implementing acts up of representatives of the Member States. Only about ‘Comitology committees’ made referred back to the Council because of non-agreement 0.2% of these delegated acts are the Committee. Since the entry into force of the second between the Commission and Parliament also has a right of scrutiny over such acts, but Comitology decision in 1999, question the Commission’s proposals in only three cases. it has used this right in order to of scrutiny is an appropriate way of controlling delegated This paper asks whether this right historical overview of Parliament’s role, before describing rule-making. It starts with a short involvement in comitology procedures. It then the current legal regulation of Parliament’s in which Parliament has to date adopted a ‘Resolution’. looks in detail at the three cases is made of parliamentarian control over implementing Finally, a general assessment an adequate system of powers, with a view to contributing to the present discussion about delegated rule-making under the Constitutional Treaty. in the ‘Comitology’ System

Pamela Lintner Pamela Lintner Pamela Lintner Pamela Lintner Pamela Lintner The comitology system was not provided for anywhere

By Control Acts: A Real Parliamentary Acts: A Commission Implementing Commission Right of Scrutiny over Right of The European Parliament’s European The pragmatic reasons. The establishment and management of a common market requires the ability quickly to adopt and amend specific technical regulations. The Council had neither the necessary structure nor an appropriate institutional character to do this itself, but did not want to in the Treaty. The institutional position of the European Parliament with regard to delegated rule-making is fundamentally ambiguous. On the one hand, it is a legislator together with the Council and thus claims to control the Commission in the exercise of its implementing powers. On the other hand, as a supranational institution, the Parliament shares aims and interests which are closer to those of the Commission, and thus has a more oppositional relationship with the Council. 1.of A Brief History 16 EIPASCOPE Bulletin 2005/1 The European Parliament’s Right of Scrutiny arrangements ondocumenttransmissiontotheEP. would givetotheexecutivedecision-makingprocess. recognised theadditionalvaluethatthesecommittees gence ofthecomitologysystem.InaResolution1968it if thereisapositiveopinion. gives anopinion;theCommissionmayonlyadoptact procedure, thecommittee,actingbyqualifiedmajority, Commission mayadopttheact.Underregulatory gives anopinion;unlessthereisanegativeopinion,the procedure, thecommittee,actingbyqualifiedmajority, the viewsofcommittee.Undermanagement procedure, theCommissionmusttakeutmostaccountof mere advisoryrole. institutional balanceoftheCommunity,andshouldhavea that thecommitteeproceduresshouldnotendanger However, fromthebeginningParliamentdemanded - CouncilDecision1999/468. committees arelaiddowninthesecondComitologyDecision www.eipa.nl committee proceedings, and an“ the righttobeinformed on aregularbasisaboutall act itself. committee, theCouncilmay evenadopttheimplementing regulatory procedure,inthe absenceofapprovalbythe an implementingmeasure.Inthemanagementand the influence andcontrolintheprocessofdraftingadopting delegations inthecommittees,Councilexercisesdirect the basicacts.ThroughparticipationofMemberStates’ ing provisionfortheCommission’simplementingtasks, in including theempower- of essentialelements, Council intheadoption equal footingwiththe a fullco-legislatoronan that Parliamentbecame of codecisionhasmeant though theintroduction not beenextended,even delegated toithasstill exercise ofthepowers the Commissionin ment’s rightto delegations. meeting atthesametimeasMemberState receive allthedocumentsrelatedtoeachcommittee Parliament intheareasgovernedbyco-decisionto basis. Article7(3)oftheComitologyDecisionentitles parent andopentosupervisiononalegally-binding ground work’ofthecommitteesbecamemoretrans- tutional agreements. was guaranteedinformationrightsthroughinter-insti- meetings intheearly1980s.InfollowingyearsParliament release partofthefundsintendedtofinancecommittee Parliament exerciseditsbudgetarypowersandrefusedto failed tobeheededbytheCommission,however,until of carryingoutdemocraticsupervision.Thesecomplaints of transparencythosecommitteesandtheimpossibility implementing theDecision proposal oftheimplementing measures totheCouncil and Under Article 5, theCommissionisrequired tosubmita information right” onlyundertheregulatory procedure. The Parliamentdidnotfundamentallyopposetheemer- The Parliamentdoesnothave thesamepowers. However, Parlia- With the1999ComitologyDecision,‘under- The Parliamentdidexpressconcernsregardingthelack 8 Abilateralagreementonproceduresfor control 6 7 impossibility ofcarryingout 9 The Parliament didexpress providesforpractical those committeesand the 4 democratic supervision. Undertheadvisory concerns regardingthe lack oftransparency ultra vires Council 11 Ithas 10

5

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○ has notdefinedtheimplementingpowers,butwhatwasto on theCommission.TheEuropeanCourtofJustice(ECJ) only stipulatesthat‘implementingpowers’shallbeconferred and whatcanbedelegatedtotheCommission.Article211 regulated bythelegislator(s)followinglegislativeprocedures Treaty doesnotgiveanyindicationsofwhathastobe only byformalcriteria. of norms,establishedandassessedbylegalactsnot of law-makingwithoutsomesortsubstantivehierarchy impossible toassesstheextentofpermissibledelegation legislators (i.e.theCouncilandEP).Butitisdifficultoreven act withinthepoliticalwillofdemocratically-elected because theexecutivelegislator(theCommission)hasto determined bytheparentact,noproblemsshouldarise content ofdelegatedlegislationispre-definedand a legislativeandimplementingnature.Insofarasthe act canonlybemadebydistinguishingbetweenmattersof remains withinthepowersformallydelegatedinbasic Judgements astowhetheraCommissionimplementingact Parliamentary Control Implementing PowersandtheNeedfor GeneralObservationson 2. codecision. powers providedforinabasicinstrumentadoptedby that theCommissionhasexceededimplementing implementing rulemakingprocess,toindicateifitconsiders under Article8,exercisedinanearlierstageofthe Parliament canexercisethisrightinadditiontoits in its1984 Report,itis notinterested inregulating orcalling interest incontrol isdifferent.AstheParliament itselfstated content isto be consideredasnon-essential, theEP’s Depending ontheprocedure tobefollowedandonwhat instigation. within itsdutiesandpowers, possiblyatParliament’s competent institutiontodecide iftheCommissionacts beyond thedelegatedpowers. IntheendECJisonly whether theCommissioninacertaincaseactedwithin or measures doesnotmakeiteasyforParliamenttoindicate This lackofageneraldefinitionexecutiveandlegislative question whenassessingthescopeofempowerment. system oftherelevantmarket,regulatedissue in exceeded itspowerswhensubmittingaproposal. shall informtheCouncilifitconsidersthatCommission non-favourable opinionornoopinion.InthiscaseParliament to informParliamentifaregulatorycommitteehasgiven Contrary tomostnationalConstitutions,theCommunity Moreover, Parliament’sown interestsarenotuniform. of Scrutiny Parliament’s essential elements’. lative level:namely‘the be regulatedatlegis- to lookat,butthewhole provision thatonehas ding oftheenabling It isnotonlythewor- the fieldofagriculture. pretation, especiallyin rally givenawideinter- implementation isgene- that theconceptof law, itcanbeconcluded On thebasisofcase Right 13 15 14 12 The European Parliament’s Right of Scrutiny EIPASCOPE Bulletin 2005/1 17 right ultra vires right introduced EIPASCOPE 2005/1 EIPASCOPE explaining that it will not 19 ultra vires Exercise of its Right of Scrutiny: Exercise esolutions of a draft implementing measure; this of a draft implementing measure; contents for financial services measures – of the date of – of the measures services for financial a adopt measure, draft implementing of the receipt measure, in particular objecting to the draft resolution for powers provided the implementing if it exceeds part- there is no instrument. Where in the basic cases expires, or in the deadline session before the right of response action is required, where urgent to have been delegated to the shall be deemed This shall take the form of a committee responsible. chairman to the Member letter from the committee responsible, and shall be brought of the Commission all Members of Parliament. If to the attention of to the measure, the President Parliament objects to withdraw or amend shall request the Commission submit a proposal under the the measure or procedure. appropriate legislative the three R Obviously, such a Resolution based only on Parliament’s Since the 1999 Comitology Decision, Parliament has adopted three Resolutions based on Article 8 of the Comitology Decision and/or Rule 81 of its rules of procedure with regard to three different draft implementing measures proposed by the Commission: – Safe harbour privacy principles in 2000 – Cosmetics tested on animals in 2002 – Passenger name records (PNR) in 2004 3. Parliament’s refrain from objecting to the Commission’s (draft) refrain from objecting to the Commission’s 88 (now Rule 81) implementing measures based on Rule because of the newly acquired agreement is also without prejudice to its right to object to implementing measures referred to the Council following an unsuccessful committee procedure pursuant to Rule 88 of Parliament’s Rules of Procedure’ (emphasis added). internal rules of procedure does not entail any obligation for the Commission, not even an obligation to re-examine the draft measure in the light of the Resolution. It is a simple political statement requesting the Commission to react in a certain way but without having any legally binding effect whatsoever. Conversely, this does as will be seen of course not prevent the Commission from actually sharing Parliament’s opinion. Simultaneously with the introduction of the Simultaneously with in the Comitology Decision. This Resolution is annexed to in the Comitology Decision. This Resolution with Parliament’s the inter-institutional agreement dealing by the Comitology information and scrutiny right given to its right to Decision: ‘this agreement is without prejudice when it objects adopt any resolution on any subject, notably to the in the second Comitology Decision, Parliament reworded in the second Comitology Decision, in its own Rules of the rule on implementing provisions with the Comitology Procedure in June 1999. In contrast objection to draft Decision, Rule 81 provides for an other than the implementing measures also on grounds powers. Before Commission’s exceeding its implementing did not mention any May 2004 the EP’s rules of procedure executive powers to aspects at all of the Commission’s Parliament wanted which Parliament should or could object. and for any reasons to be free to object on any grounds Therefore whatever, formally as well as substantively. Parliament adopted a Resolution

○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ 18 Council information right’ Council information lays down a period of one month for ultra vires 16 17 measure to Parliament, the President shall refer the document in question to the committee responsible for the act from which the implementing provisions derive. Parliament may, within one month – or three months The inter-institutional agreement implementing the ’If the European Parliament indicates, in a Resolution ’If the European Parliament indicates, based, that draft setting out the grounds on which it is of which is implementing measures, the adoption submitted to a contemplated and which have been adopted committee pursuant to a basic instrument exceed the under Article 251 of the Treaty, would for in the basic implementing powers provided the draft instrument, the Commission shall re-examine into account and measures. Taking the Resolution under way the within the time-limits of the procedure measure to the Commission may submit a new draft or submit a committee, continue with the procedure and the Council proposal to the European Parliament on the basis of the Treaty (…).’ 1. When the Commission forwards a draft implementing 2. On a proposal from the committee responsible, Parliament’s right of scrutiny appears to have con- appears to have right of scrutiny Parliament’s Comitology Decision A Resolution based on Article 8 is in no way legally binding A Resolution based on Article 8 is in no legal effect insofar as for the Commission, but it does have a it requires the Commission at least to re-examine the draft measure, taking the resolution into account. Whatever effect this ‘taking into account might ultimately have, after the Commission informs Parliament of the action it intends to take thereon, the Commission can continue with the procedure as if Parliament had not expressed its opinion at all. Article 8 of the Comitology Decision under Article 5 for drafts submitted to a management under Article 5 for most of the measures regulated under committee, is that agricultural matters for which basic acts this procedure are Parliament does not are not adopted under Article 251 and have the same rights anyway. Rule 81 – Implementing provisions Rule 81 of Parliament’s Rules of Procedure siderably different implications under each of the three under each different implications siderably the Matters dealt with under comitology procedures. are normally those with budgetary management procedure a more technical administrative nature implications or of education and cultural programmes) (such as research, the Commission. They are therefore with less leeway for to Parliament for control purposes. generally of less interest an Parliament might not even have Another reason why ‘ interest in having the back issues on mere technicalities: ‘The technical adaptation ‘The technical mere technicalities: issues on back to this provision spirit of to the is contrary system committee common to general principle system and to the the Treaty must not that the legislator the Member States the laws of delegated power.’ with the exercise of interfere Parliament in which the plenary has to adopt such a resolution, beginning on the date of receipt of the final draft of the implementing measure. The draft implementing measures are first presented at the committee meeting and, if they are substantially modified during the meeting, are resubmitted later. 18 EIPASCOPE Bulletin 2005/1 The European Parliament’s Right of Scrutiny Commission adopteditsSafeHarbourDecision adequate levelofprotection.Onthebasisthisarticle, Decision thatathirdcountryactuallydoesensurean following amanagementprocedure,tolaydownin recipient country.Article25(6)empowerstheCommission, an adequatelevelofdataprotectionissecuredinthe that thetransferofdataoutsideEUisonlyallowableif restriction withintheEU.Article25ofthisDirectivestipulates and ensuresthefreemovementofpersonaldatawithout individuals withregardtotheprocessingofpersonaldata to ‘ensure, onbehalf ofthecitizens oftheUnion andits merely statesthat itiswithintheCommission’s competence sustained throughaviolation ofthesafeharbourprinciples. individual’s rightofappeal and compensationfortheloss in particularproposeschanges concerningthelackofan protection onlyifsubstantive changesaremade.Parliament and therelevantexplanations’ couldbeconsideredadequate receiving USorganisation.It pointsoutthat‘suchprinciples the safeharbourprivacyprinciplesareimplementedby the level ofprotectiongiventopersonaldataintheUS,even if this Resolution,Parliamentconteststheadequacyof the the firsttimeinitsSafeHarbourResolutionJuly2000. In Rules ofProcedure,Parliamentuseditspowerscrutiny for Pursuant toArticle8oftheComitologyDecisionanditsown The EPResolution harbour’ principlesarefulfilled. to organisationsintheUSaslongtheseso-called‘safe protection forpersonaldatatransferredfromtheCommunity EU. TheCommissionconfirmsanadequatelevelof must complyiftheywanttoreceivepersonaldatafromthe out anumberofprincipleswithwhichUSorganisations The EUdataprotectionDirective The basicactandtheCommission’spowers Safeharbourprivacyprinciples a) www.eipa.nl timeframe scope ofapplication effect With regardto theCommission’spowers, Parliament content Comparison ofArticle8theComitologyDecisionandR Comparison ofArticle8theComitologyDecisionandR Comparison ofArticle8theComitologyDecisionandR Comparison ofArticle8theComitologyDecisionandR Comparison ofArticle8theComitologyDecisionandR 22 Article 8 of the Comitology Decision Rule 81 of the EP’s rules of procedure of rules EP’s the of 81 Rule Article 8oftheComitologyDecision mlmnigmauethe time to prejudice without possible interesttoadoptitassoon own whenever:itisintheEP’s alldraftimplementingmeasures implementing measure is theCommissionallowedtoadopt final draftmeasuretotheEP: onlythen within 1monthaftersubmissionofthe adopted undercodecision submitted pursuanttoabasicact measures implementing draft measure “taking the Resolution into legally binding effect binding legally including measure, implementing requesttotheCommission,no accordingly account” and measure “takingtheResolutioninto thedraft Commission hastore-examine in thebasicact implementing powers,asprovidedfor the Commissionexceedingits “ ultra vires 20 protectstherightsof idcto” generalobjection tothedraft indication”: inform Parliament 21 setting T T T T T

able 1 able 1 able 1 able 1 able 1

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ its positioninthelightofParliament’sresolution: later thattheCommissionintroducedRecital12justifying July 2000despiteParliament’sobjections.Itwasayear The CommissionadoptedtheSafeHarbourDecisionon26 The Commission:‘takingintoaccount’ the proposedchanges. amendments ormakingthisconditionalonintroductionof implementation oftheDecisionwithoutmakingany safe harboursystem’.Parliamentintheendasksfor on theCommissionto’closelymonitoroperationof withdraw, amendorsubmitalegislativeproposal.Itcalls refer toanyofthepossiblerequestsanticipated– adopting theSafeHarbourDecision.NordoesParliament implementing measure. Evenif oneargues thatthe Commission would exceeditspowers by adoptingits monitor closely. Itdoesnotactuallyindicate thatthe implementation ofwhichit callsontheCommissionto proposes changestothe substance ofadecisionthe incoherent wayexpressesconcerns, givesitsopinionand In itsfirst Analysis andcriticism mention thattheCommissionwouldact Comitology Decision,nowheredoestheResolutionactually its RulesofProcedureaswellonArticle8theCouncil countries’. EventhoughParliamentbasesitsResolutionon Member Statesthat“adequate”protectionexistsinthird the decision.’ the Commissionwouldexceeditspowersinadopting to provideadequateprotection,itdidnotestablishthat principles andrelatedFAQsbeforeitcouldbeconsidered improvements neededtobemadethesaveharbour European Parliamentexpressedtheviewthatcertain light ofthatresolutionandconcludedthat,althoughthe ‘The Commissionre-examinedthedraftdecisionin ule 81oftheEP ule 81oftheEP ule 81oftheEP ule 81oftheEP ule 81oftheEP ultra vires implementing measure content resolution,Parliamentin a rather ’s R ’s R ’s R ’s R ’s R of adoptionthe ules ofP ules ofP ules ofP ules ofP ules ofP rocedure rocedure rocedure rocedure rocedure ultra vires 23 by The European Parliament’s Right of Scrutiny EIPASCOPE Bulletin 2005/1 19 to 27 and replaced the and replaced 29 25 EIPASCOPE 2005/1 EIPASCOPE legislative proposal to amend the basic Directive by 26 The reason for postponing the ban for The reason for postponing the ban 30 28 In spring 2000 the Commission presented two different In spring 2000 the After the legislative proposal had already been dealt After the legislative proposal had already legislative instruments to amend the Council Directive. On to amend the Council Directive. legislative instruments up with a the one hand, it came The EP Resolution In its Resolution on the postponement of the ban, Parliament states that regardless of the legality of the second ‘self- empowerment’, the Commission had now in any case exceeded its powers by postponing the date of entering into force of the ban for a third time. Parliament argues that the Commission itself explicitly stated in Recital 10 of its implementing Directive that it would postpone the ban for the last time. It therefore holds the view that the Commission exhausted the implementing powers conferred on it by date of the ban in the basic act until after 30 June 2000. In basic act until after 30 June 2000. date of the ban in the Directive the Commission also this implementing again to postpone the date of entering empowered itself into force of the ban. only two more years was that the Commission expected only two more years was that the Commission available within that alternative testing methods to become to be adopted by period and the amended basic Directive Cosmetics Directive then. However, the amendment of the Commission had proved to be more difficult than the could not agree on a anticipated: Council and Parliament products until new regulation for animal tests for cosmetic on the marketing of 30 June 2002 thus allowing the ban force. animal tested cosmetics to enter into the Commission with by the Conciliation Committee, in September presented a new draft implementing measure the ban retroactively with the intention of again postponing 2002. The latter date from 1 July 2002 until 31 December the grounds that this was defended by the Commission on for an interim implementing measure should only provide came to agree on period until the Conciliation Committee the amendment of the basic Directive. cosmetics containing ingredients tested on animals. The on animals. tested ingredients containing cosmetics January was 1 of this ban force entry into date for original to postpone was empowered the Commission 1998, but ‘if there for the Member States implementation the date of satisfactory in developing insufficient progress has been to this testing (…)’. Pursuant to replace animal methods regulatory following a the Commission, provision, Directive 97/18 procedure, adopted amend the Council Directive in order to solve once and for Directive in order to solve once and amend the Council on animals in the cosmetics all the issue of experiments its hand, the Commission exercised sector. On the other implementing powers as it said, the last time postponing the ban for a second and, to 30 June 2002.

○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○○○○○○○○○○○○○○○ ultra vires in the third action within action ultra vires ultra . Following this position, the . Following rules of law in force provided for a ban on the marketing of ultra vires 24

protection within the meaning of Article 25(2). protection within the meaning of Article Nevertheless some arguments could be found to Nevertheless some arguments could

suggest that the Commission did actually exceed its suggest that the Commission did actually powers under the basic act: Article 25(6) of the Data powers under the basic act: Article One could argue that Parliament itself acted argue that Parliament One could The Commission subsequently fulfilled its obligations The Commission subsequently fulfilled Nevertheless some arguments could be found to suggest Nevertheless some

find that a third country ensures an adequate level of find that a third country ensures an Protection Commission to Directive only empowers the the meaning of Article 8 of the Comitology Decision. of Article 8 of the meaning Resolution is at variance with the draft, Parliament definitely draft, Parliament with the variance is at Resolution an to any objections not raise does The basic act and the Commission’s powers The Council Directive relating to the marketing and sale of cosmetic products b) Cosmetics tested on animals adopting it can hardly have been a legal one. Nor can the issue of transparency explain the Commission’s action. The added value and interpretative guideline of this recital is thus rather questionable. under Parliament’s resolution and more, by introducing under Parliament’s resolution and As the Commission Recital 12 in its Safe Harbour Directive. to explain the extent is not called upon to give a statement resolution and to which it has taken account of Parliament’s only obliges the as the inter-institutional agreement of what it Commission to inform Parliament beforehand the procedure intends to do (i.e. submit a new draft, continue reason for amending or submit a legislative proposal), the the legislative act by including Recital 12 almost a year after country, whereas the safe harbour principles are not law country, whereas the safe harbour principles which US companies but only non-binding principles with data. Parliament must comply if they want to receive Resolution on PNR actually addresses this problem in its Commission might (see below) where it indicates that the substance because it exceed its competences as regards to be binding, declared rules, which had not been proven Protection Directive. adequate under Article 25(6) of the Data that the Commission did actually exceed its powers under that the Commission 25(6) of the Data Protection Directive the basic act: Article Commission to find that a third country only empowers the level of protection within the meaning ensures an adequate be argued that, by confirming that of Article 25(2). It could the an adequate level of protection, the US provided criteria as Commission did not adhere to the assessment thereby exceeded its provided for in this Paragraph (2) and water especially as competences. This argument holds Paragraph 2 refers to the by not limiting its objections to the question of whether the to the question of its objections by not limiting acted Commission is not that this Resolution could have argued Commission be such under Article 8 of the Comitology to be considered to it under Rule 81, thereby stating that Decision, but only re- an obligation of the Commission to does not result in measure. examine the draft 20 EIPASCOPE Bulletin 2005/1 The European Parliament’s Right of Scrutiny superfluous anyway. plementing actbecame the adoptionofanim- implementing basic instruments which, although adopted forward tothe Parliamentalsothe draft measures however, invited togobeyondthislegal obligationand decision procedure.‘The Commission’sservicesare, which thelastamendmenthas beenadoptedundertheco- Decision, butonlytoRule81 oftheRulesProcedure. actually doesNOTreferto Article8oftheComitology its powersunderthebasicact. Yetitisalsotheonewhich draft implementingmeasure,thattheCommissionexceeded simply andwithoutobjectingtothepoliticalcontentof the This istheonlyResolutiontodatewhichstatesclearly, Analysis andcriticism individual fileofinstitutionalimportance. Reports Annex,beingconsideredworthyofmentionas an Comitology Decision.Althoughitismentionedin the Resolution wastobeconsideredsuchpursuant the heading “EP’srightofscrutiny”aswouldbethecaseif the Resolution isnotmentionedinthehorizontalpartunder February 2003 entered intoforcein Directive onanimaltests amended Council 2002 andthenewly mittee inDecember the ConciliationCom- could beagreedonin found andajointtext A compromisecouldbe Conciliation Committee. already discussedinthe cosmetic productswas regulate thetestingof with thesameaimto the legislativeprocedure ment ofthebasicactin At thattime,theamend- sure waspostponed. ment ofthedraftmea- voted onandthetreat- nion wasdeliverednor meeting noformalopi- Committee meetingonthe30September2000.Atthis from theParliament,draftmeasurewasdiscussedat a thirdpostponementoftheban.Afternegativeecho did notadoptitsdraftimplementingmeasureprovidingfor into accountinitssubstance:TheCommissiontheend Comitology Decision.HowevertheResolutionwastaken be thecaseforaResolutionadoptedpursuantto or toaddresstheParliamentwithaformalansweraswould to thisresolution,notevenre-examinethedraftmeasure The Commissionwasundernoobligationtoreactatall The Commission:‘takingintoaccount’ the draftmeasureinregulatorycommittee. Decision andontheMemberStatesnottovoteinfavourof called ontheCommissiontowithdrawitsdraftimplementing ban hadalreadyenteredintoforce.Parliamenttherefore out thatanypostponementwouldnowberetroactiveasthe adopting thesecondpostponement.Furthermoreitpoints www.eipa.nl In theComitologyReportforyear2002 The rightofscrutinyonlyapplies tojointactsorfor 32 sothat 31 takes theissuereally'seriously' bring anactionforannulment. Commission thatParliament The Parliamentdidactually and itmightbeseenasan binding atall,showedthe adopted aresolutioneven ’early warning’offurther though itwasnotlegally and morerigorouslegal The factthatParliament action tobetaken. 33

this

○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Commission DecisiononPNR based ontheDataProtectionDirective.Theadoption of Parliament toadoptan The thirdCommissionimplementingactwhichprompted The basicactandtheCommission’spowers PassengerName Records(PNR) c) annulment. actually dosointhecaseofPNRbybringinganaction for legal actiontobetaken.Aswillseen,Parliamentdid be seenasan’earlywarning’offurtherandmorerigorous procedure. The6 Directive wasoriginallyadoptedundertheconsultation amendment (the7 operation procedure.Itwasactuallyonlythemostrecent implementing measurehadbeenadoptedundertheco- measure isbased, to amendthesamebasicactonwhichimplementing a compromiseontheadoptionoflegislativeproposal interim regulationuntiltheConciliationCommitteefound measure asa‘quick-fixshort-termsolution’forhavingan Resolution onArticle8butonlyitsownrulesofprocedure. procedure. ThereforeParliamentcouldnotbaseits Article 95oftheECTreatyandthusunderco-decision the casewithAnimalTestingDirective.’ come undertheco-decisionprocedure.Thiswasprecisely Maastricht and/orAmsterdamTreaty,wouldnowadays on differentlegalbasisbeforetheentryintoforceof Protection Directive,the EUtriedto agreeonacompromise legislation on dataprotection,especially theECData potentially conflict withCommunityand MemberState crew flyingto,fromorinthe US.AstheseUSrequirements access toortransferofdata concerningpassengersand panies toprovidecertainpublic USinstitutionswithdirect September 2001.ThisUS decision requiresairlinecom- Security adoptedintheaftermath oftheevents11 to theunilateralUSdecision on AviationandTransportation In thisspecialcaseofproposinganimplementing th 36 ) th

itisquestionablewhetherwas that hasbeenadoptedpursuantto amendment ultra vires 37 inMay2004isaresponse ‘seriously’ anditmight takes theissuereally mission thatParliament at all,showedtheCom- it wasnotlegallybinding a resolutioneventhough that Parliamentadopted interim period.Thefact legal basis–onlyforthis obviously withoutany third postponement– would finallytoleratethis whether Parliament an attempttosee ment mightbeseenas the timeofempower- menting measureafter proposed animple- that theCommissionstill lators anyway.Thefact in thehandsoflegis- period, astheissuewas even onlyforaninterim an implementingact, Commission topresent necessary forthe Resolutionwasagain 35 beforethedraft 34 TheCosmetics The European Parliament’s Right of Scrutiny EIPASCOPE Bulletin 2005/1 21 EIPASCOPE 2005/1 EIPASCOPE 45 Referring to one of the possibilities provided for in Article Referring to one of Analysis and criticism In this Resolution, Parliament clearly expresses objections and gives reasons why the Commission exceeded its implementing powers with regard to the formal basis and substance of the Commission’s draft decision. By saying that – at this stage – there is no legal basis in the EU for permitting the use of PNR commercial data for public- security purposes, Parliament indirectly rejects the Data Protection Directive as a legitimate legal basis for adopting The Commission: ‘taking into account’ The Commission Decision entered into force despite Parliament’s Resolution, as did the international agreement, despite Parliament’s request for the Court’s opinion. The Commission thereby considered ‘that adoption of the decision and consequent signing of the agreement with the US was for passengers and for the protection of their data much better than leaving the question in a complete legal void which was the only alternative. The Commission satisfied the requirement to inform Parliament on what it intended to do by providing oral explanations on 29 March and 19 April by Commissioner Bolkenstein as regards the Commission’s draft decision. Written explanations were further given in a letter from President Prodi to President Cox.’ protecting individuals as regards PNR data as long as the as long PNR data regards as individuals protecting Parliament substance, As regards act. does not Union executive have exceeded the the Commission to considers nature of the non-binding on it because powers conferred does not the US. Parliament made by of the undertakings its Commission is exceeding complain that the expressly of the Data to it by Article 25 powers given implementing What it states is that the draft decision Protection Directive. designed to implement the Data is a measure merely a and as such it may not result in Protection Directive protection standards. Parliament held lowering of the data whether the draft decision actually back from determining only states that ‘its effect, however might is of such nature; it be a lowering.’ the Decision, Parliament calls on 8 of the Comitology the draft decision. Without referring Commission to withdraw agreement which was ultimately to the existing international to provide adopted, Parliament calls on the Commission compliance with the for an international agreement in stipulated by fundamental rights and some of the principles if such an agreement Parliament. Parliament considered that, could legitimately were to be adopted, the Commission Furthermore submit a new adequacy-finding decision. matter to the Court Parliament reserved the right to take the of Justice if the Commission went ahead.

○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ 42 Furthermore On the one 39 44 of privacy and the need to the need and of privacy 38 This Article regulates the procedure 41 43 The Council authorised the Commission to 40 The Commission adopted this implementing Decision The Commission adopted With regard to the first argument, Parliament holds that European Parliament, Brussels – The Spaak and Spinelli Buildings. European Parliament, Brussels – The Spaak and © EU Parliament. for adopting international agreements and generally provides only for consultation with Parliament. Derogating from this principle, Article 300(3) provides for the assent of Parliament if, for example, an international agreement entails the amendment of a basic act adopted under the codecision procedure. The Council based both its instruments – the decision to conclude an international agreement as well as the Data Protection Directive itself – on Article 95, the legal basis for Internal Market instruments. The EP Resolution In its Resolution adopted on 31 March 2004 Parliament opposed this Commission draft measure. negotiate such an agreement which was then adopted by the Council in accordance with Article 300(3) of the Community Treaty. solution with the US in finding a balance between the between a balance finding the US in with solution right (fundamental) citizens’ by the latter. the Commission decided that it was also necessary to have the Commission decided that it was also act based an international agreement, as an implementing Directive would not on Article 25 of the Data Protection of the matter. allow for a comprehensive and full regulation agreement between For that reason a bilateral international ‘adequacy finding’ the EU and the US complements the not addressed decision and deals with certain legal problems using the powers given to it under Article 25(6) of the given to it under Article 25(6) of using the powers Directive. The safe harbour principle Council Data Protection transfer of data regarding European did not apply to the to US public institutions because such airline passengers to companies under the jurisdiction data is only available of bodies that control the fairness of certain public fall As European airlines do not commercial practices. a special adequacy under the jurisdiction of such US bodies, finding decision for PNR had to be adopted. exchange personal data in order to fight terrorism. After order to fight terrorism. personal data in exchange the US, the made by or ’undertakings’ some commitments transfer of ‘green light’ to the finally gave the Commission by to US public authorities of European citizens PNR files to the passengers transferred that the data on air indicating enjoy the ‘adequate protection’ US authorities would (= EU’s Data Protection Directive required under the ‘adequacy finding’). [at this stage] there is no legal basis in the EU permitting the use of PNR commercial data for public-security purposes. It expressly underlines the Member States competence for hand Parliament argues that the Commission was acting without a legal basis permitting the use of PNR commercial data for public purposes, and states on the other hand that the level of data protection in the US is not adequate. 22 EIPASCOPE Bulletin 2005/1 The European Parliament’s Right of Scrutiny Comparing theParliament’s Conclusions 4. from proven,’makesthePNRDecisionan is basedon‘undertakingsthebindingnatureofwhichfar as towhyitconsidersthefactthatdraftdecision,which agreement. adopted incombinationwithasoundinternational implementing act(basedontheDataProtectionDirective) finding decision,Parliamentinfactasksforanew Commission tosubmitParliamentanewadequacy- the PNRDecision.Onotherhand,bycallingon www.eipa.nl the Commission from goingahead, nordoesitenhance the adopted under theComitologyDecision does notprevent threat’ tobring anactionforannulment. Also aResolution in theend.Bothcanbeseen asamere’institutionalised procedure, weconcludethat thereisnocrucialdifference Resolution onimplementing actsunderitsownrulesof the ComitologyDecisionwith thepossibilityofadoptinga basic act. implementing levelevenifnotexplicitlyprovidedforin the ‘essential element’andcanthereforebedealtwith at ference doesnotnecessarilyhavetoberegardedas an subsidies thatsuchinter- case aboutagricultural Court hasdecidedina privacy inthiscase,the fundamental rightsof regard tointerferencewith in thebasicact.With and aimsasprovidedfor in thegeneralprinciples powered tolegislatewith- Commission isonlyem- act down.Generallythe ment bytoningthebasic exceeded thisempower- Directive, ParliamentseemstoindicatethattheCommission agreement onthebasisofArticle25DataProtection Commission wasbasicallyempoweredtoadoptthePNR given bythisCouncilDirective.Assumingthatthe of whethertheCommissionexceededitscompetences Directive isdifferent,butofcourserelatedtothequestion international agreementamendingtheDataProtection asked foritsassentunderArticle300(3)inviewofthe Decision whichconcludedtheinternationalagreement. both theCommissionDecisiononPNRandCouncil annulment underArticle230oftheCommunityTreatyfor 25 June2004Parliamentdecidedtobringinanactionfor could serveasalegalbasis,ittookthemattertoCourt.On thereby acknowledgingthattheDataProtectionDirective and althoughParliamentaskedforanewadequacyfinding, part ofthelegalframeworkregulatingtransferPNR, nature (seeabove). resolution, asthoseprinciplesarealsoofanon-binding forward previouslywhenadoptingthesafeharbour would beanargumentthatParliamentcouldhavebrought particularly inthelightof‘ruleslawforce’.This the adequacyoflevelprotectioninthirdcountry, Protection DirectiveempowerstheCommissiontoassess most likelyaddressesthefactthatArticle25(2)ofData Parliament doesnotgiveacomprehensiveexplanation The questionofwhetherParliamentshouldhavebeen Even thoughaninternationalagreementwasalready 47 ultra vires of course,neverbeasharp This distinctionbetween implementing levelcan, (political) rulemakingat and clearoneexante. controlgiventoitby mere executionand ultra vires act.It

46

○ ○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○○○○○○○○○○○○○○○○○○○○○○ we arguethatthis democratic legitimacyofdelegatedrulemaking. in itselfispowerless,aquite effectiverightlegally. action forannulmentmaymake the use ofArticle8asan‘institutionalized threat’tobringan As seenintheResolutionon thebanonanimaltesting, stage ofdraftingtheCommission’simplementingmeasures. could giveParliamentquiteastronglegalsayintheearly 230. Yet,thisrightof had therighttobringanactionofannulmentunderArticle any additionalvalueatall,sincetheParliamentalready the comitologysystem.Somewouldsaythatitdoesnotgive the SafeHarbourDecision,Parliamenttookviewthat therefore adoptedaResolution.Inbothcases,thePNRand content inthecaseofdataprotectiondecisionsand Parliament wasnotsatisfiedwiththeCommission’s‘policy’ has useditasamediumtomakepoliticalstatements. implementing act,buttheEP,reflectingitspoliticalnature, it isexceedingitspowersintheadoptionofaparticular control. ItisdesignedtomaketheCommissionawarethat Article 8oftheComitologyDecisionprovidesfor Parliamentarian controlusuallymeanspoliticalcontrol,but called ontoexerciseits In asystemofdivisionpowers,thelegislativeisnormally Ultra vires Council hastobefound. and asystemofcooperationcoordinationwiththe power’, however,anewwayofparliamentariancontrol Commission actsadoptedunder’politicaldiscretionary regarded sufficientformeretechnicalmeasures.For but alsointhenameofcitizens,judicialreviewcanbe thus bringanactionnotonlytodefenditsownprerogatives privileged actorundertheArticle230procedure,andcan should beenough. scrutiny asitstands,withonlyan those ofamereexecutivenature.Forthelatter,right implementing actswithapossiblepoliticalimpactand main problemisthelackofasystematicdistinctionbetween European leveldoesnotallowforeffectivescrutiny.The political nature,whilethecurrentimplementingsystemat so thatitcanbeusedeffectively.ItconflictswithParliament’s On thebasisofthreeindividualanalyses,moreover, Moreover, sinceParliamenthas controlanddemocraticlegitimacy ultra vires ultra vires political controlisactuallynotdesigned scrutiny,exercisedcorrectly, controlovertheexecutive. democratic legitimacyof not sufficienttoenhance the exerciseofArticle8is opinion byParliamentin confidentiality. tion ofpeoplesright’sto terrorism andtheprotec- between thefightagainst issue offindingabalance protected inthepolitical vacy werenotsufficiently data protectionandpri- the rightsofcitizensto ex post ultra vires locus standi The meregivingofan juridicalcontrol, right,which asafully legal The European Parliament’s Right of Scrutiny EIPASCOPE Bulletin 2005/1 23 to modify 48 by which they EIPASCOPE 2005/1 EIPASCOPE procedures ultimately be overridden Thus by the Commission. even though Parliament is placed on an equal footing with the Council, both of them are ‘placed down’ to the current par- liamentary level. Article 8 would be deleted, so that no parliamentary super- vision for acts adopted under the advisory pro- cedure would apply at all. There would no longer be a difference between the advisory and the regula- tory procedure with Two proposals are currently on the table which would on the table which are currently Two proposals This approach is perfectly coherent with the notion of a are adopted: legislative acts are in principle adopted by the a sharp and clear one ex ante. But the best possible best But the ex ante. clear one and a sharp guaran- all. This none at better than to be seems distinction fields in delicate delegated political supervision tees effective dele- in technical and adequate implementation and a fast procedu- as a mainly advisory using comitology gated fields Commission proposal). in the new re (as proposed present situation. change the Proposal The Commission’s has presented a Proposal The Commission Council Decision 1999/468/CE under which Parliament Council Decision with the Council in the supervision would be given full equality acts adopted by codecision. of measures to implement can proposal both supervisory bodies However, in this to adopt the act in regard to the Commission’s possibility the Committee and the end, even against the opinion of The added value of objections by Council and Parliament. serve as a bargaining the regulatory procedure would be to give their (political) forum, allowing the legislators to made aware of the opinions. The Commission is thereby opposing views, legally and politically, and is given the option of adapting its position to avoid subsequent claims and litigation under Article 230. separation of powers, inasmuch as the legislative power should not participate in but only supervise executive rulemaking, and the Commission has responsibility for the execution of EC laws. The tenuous supervision granted to the legislators would also be democratically and politically acceptable as long as only executive tasks are delegated and do not entail any political impact, thus guaranteeing the predictability and accountability of the executive (the principle of legality). In this perspective, indeed, it would appear that the ‘problem’ of the current 1999 Decision is not so much that Parliament is granted too few supervisory powers but that the Council is granted excessive participation in the adoption of merely technical implementing acts. Implementing Acts under the Treaty establishing a Constitution for Europe The Constitutional Treaty introduces an explicit distinction between legislative and non-legislative acts, even though this is not entirely clear. On the one hand, these are to be distinguished by the nature of the

○○○○○○○○○○○○○○○○○○○○○○ ○ ○ ○○○○○ ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ legal ultra vires to give their formal bargaining forum, (political) opinions. regulatory procedure would be to serve as a would be to serve The added value of the The added value allowing the legislators For simple technical measures a merely Another reason for This distinction between mere execution and (political) scrutiny under the current system on the one hand due to inter- and intra-institutional organisations but also because of a lack of any sort of institutionalised warning system to indicate which acts might possibly have a political impact and which ones merely change proportions of certain ingredients due to technical progress. At the moment it is either the legislators regulating themselves or delegating to the Commission under the Comitology procedures under which Parliament cannot legally influence or review the measure at all and also Council can only get heed of the measure again with quite some difficulty. Under the current system, there is no distinction between technical delegated acts and those with a possible political impact. Parliament cannot effectively apply Distinction between the technical and political Distinction between the technical impact of implementing measures Parliament’s incapacity to exercise its right of scrutiny properly might be found in the lack of a homoge- nous party system at Euro- pean level. At national level, information about ‘hot issues’ at admini- strative level are passed on via the political parties, the chance to bring thereby giving the overruled opposition level the political the discussion to Parliament. At European interpretation of an parties have different ‘souls’ and the the internal national issue quite often differs according to positions. Nowadays Parliament does receive all the documents required all the documents Parliament does receive Nowadays established system as its control over the comitology to exercise the related inter-institutional Decision and by the Comitology as organisation of Parliament Yet the internal agreements. the legal- compatible with institution is hardly a political system. Parliament cannot properly administrative comitology procedures because of internal control the comitology and assessing all the information difficulties in processing a resolution in plenary, as Par- received. Before adopting to do at the latest one month after liament is required EP draft implementing measure, all the receiving the final and indirectly involved in the domain committees directly the on it. It might even happen that should give their opinion has to decision in plenary day be taken within a few as the EP normally only has one plenary session a month. Parliament is sim- ply overloaded. Parliament’s internal organisation and the organisation internal Parliament’s drafts implementing of processing rulemaking at implementing level can, of course, never be scrutiny can be considered sufficient in a working system of overall checks and balances being democratically accountable via judicial review anyway. But for political implementing measures, measures of legislative discretion a necessity of a legitimising democratic supervision – while deciding control – has to be developed. 24 EIPASCOPE Bulletin 2005/1 The European Parliament’s Right of Scrutiny NOTES NOTES 11 10 9 8 7 6 5 4 3 2 1 delegate totheCommissionpoweradoptdelegated provides that‘Europeanlawsandframeworkmay comitology isproposed.Ontheonehand,ArticleI-36 potentially veryvaluabledistinctionconcerningthefutureof legal formofeitherthepresentRegulationsorDirectives). transposition intonationalmeasures(andthushavethe moreover, caneitherbedirectlyapplicableorrequire Regulations andDecisions.ThesenewRegulations, laws; non-legislativeactswilltaketheformofEuropean involved: legislativeactswillbeEuropeanlawsorframework hand, theyaredistinguishedintermsofthe level) orspecificcases(mainlybytheCouncil).Onother implementing acts(mainlybytheCommissionatEuropean as delegatedregulations(mainlybytheCommission), proposal, whereasnon-legislativeactsareadoptedeither Parliament andCouncilonthebasisofaCommission www.eipa.nl Theauthorsarethankfulforthecommentsreceived * NOTES NOTES NOTES Despite thesecomplications,however,anewand The mainargument infavourofthedifferent rolesCouncil (COM(2003)530). committees in 2001(COM(2002)733) and2002 lished, butreferredtointhe Reportsontheworkingof regard tothetypesofdocuments andtheirstructure.Unpub- December 2001,whichlaysdown minimumstandardswith Commission adoptedanadministrative agreementdated14 On thisbasistheSecretariats-General ofParliamentandthe L 256/19. menting powersconferredon theCommission,OJ2000 1999 layingdowntheproceduresforexerciseofimple- implementing CouncilDecision1999/468/ECof28June pean ParliamentandtheCommissiononproceduresfor central serviceofParliament.AgreementbetweentheEuro- documents viatheSecretaryGeneralofCommissiontoa Information isprovidedbyanelectronictransmissionofthese Article 4oftheStandardRulesProcedure.OJ2001C38/3. pean LawandPolicy,Pedler/Schäfer.EIPA,1996. For detailssee:TheHistoryofComitology,inShapingEuro- sions inthebasicactforregulatoryprocedure. guidelines tosystematicallydeleteinfirstreadinganyprovi- In itsResolutionA3-310/90Parliamentrecallsinternal 115/68 of30September1968. 37. BasedontheLegalAffairsCommitteeReportEPDoc. d´exécution dudroitcommunautairedérivé.OJ 1968 C 108/ Résolution relativeauxprocédurescommunautaires text “ComitologyDecision”alwaysreferstothissecondone. Commission, 1999/468/EC.Ifnototherwiseindicatedinthis for theexerciseofimplementingpowersconferredon Council Decisionof28June1999layingdowntheprocedures Commission, 87/373/EEC. for theexerciseofimplementingpowersconferredon Council Decisionof13July1987layingdowntheprocedures European Parliament.’ from theCommissionandafterobtainingopinionof advance bytheCouncil,actingunanimouslyonaproposal consonant withprinciplesandrulestobelaiddownin powers itself.Theproceduresreferredtoabovemustbe right, inspecificcases,toexercisedirectlyimplementing exercise ofthesepowers.TheCouncilmayalsoreservethe Council mayimposecertainrequirementsinrespectofthe mentation oftheruleswhichCouncillaysdown.The in theactswhichCounciladopts,powersforimple- This statesthattheCouncilmay‘conferonCommission, pean lawandPolicy.EIPA,1996. For generalinformationsee:Pedler/Schäfer:ShapingEuro- Edward Edward Best andThomasChristiansen. instruments

from

○○○○○○○○○○○○○○○○○○○○○○○○○ effectiveness intermsofflexibility,ontheother. between democraticaccountability,ontheonehand,and improve thebalanceinrule-makingforimplementation regulating legislation’ with be agreed. these cases‘mechanismsforcontrolbyMemberStates’will adopted atEuropeanlevelwhereuniformityisrequired.In Article I-37stipulatesthat‘implementingacts’maybe to theproposeddelegatedregulation.Onotherhand, delegation’ andhavetherighttostateabindingobjection the Council,eitherofwhichmay‘decidetorevoke delegation suggestanequalitybetweentheParliamentand conditions tobelaiddowninthefutureforthisformof non-essential elementsofthelaworframeworklaw’.The European regulationstosupplementoramendcertain 23 22 21 20 19 18 17 16 15 14 13 12 must notthereforebeinvolvedineverything.” which hasonlyalegislativeroleinapplyingtheTreaties,and ures. ThesamedoesnotapplytotheEuropeanParliament, Council] aspecificroleindrawingupimplementingmeas- “(…) Duetoitsexecutivepowers,Article202grantsit[the As anMEPstatedintheSittingofTuesday,5February2002 in thenameofitslegislativebut–mainly-hisexecutivepowers. is thattheCouncilitselfdelegatestoCommissionnot(only) and EPplayintheparticipationofcomitologyprocedures If thisnewclassificationhelpstodistinguish‘delegated Corrigendum, OJ 2000L115/14(2000/520/EC). This 2000, OJ2001 C121/152. Commerce (C5-0280/2000 –2000/2144(COS)) of5July frequently askedquestionsissued bytheUSDepartmentof provided bytheSafeHarbour PrivacyPrinciplesandrelated Commission Decisiononthe adequacyoftheprotection A5-0177/2000,European Parliament resolutionontheDraft issued bytheUSDepartmentof Commerce,OJ2000L215/7. Harbour Principlesandrelated FrequentlyAskedQuestions Council ontheadequacyof protectionprovidedbytheSafe to Directive95/46/ECoftheEuropeanParliamentand Commission Decision520/2000/ECof26July2000pursuant movement ofsuchdata,OJ1995L281/31. regard totheprocessingofpersonaldataandonfree cil of24October1995ontheprotectionindividualswith Directive 95/46/ECofEuropeanParliamentandtheCoun- of implementingpowersconferredontheCommission. of 28June1999layingdowntheproceduresforexercise procedures forimplementingCouncilDecision1999/468/EC between theEuropeanParliamentandCommissionon form theEuropeanParliamentresolutiononagreement ANNEX XIItotheEP’sRulesofProcedure,16thedition.Extract Rules ofProceduretheEuropean (COM(2003)530). (COM(2001)783), 2001(COM(2002)733)and2002 Reports ontheworkingofcommitteesin2000 Council Decision1999/468/EC,OJ2000L256/19. Inter-institutional agreementonproceduresforimplementing have implicitimplementingpowers.See:Tuerk The CourthasconstantlyheldthattheCommissionmight v. BezirksregierungHannover. wide powersinotherfields.Case The ECJhassofarbeenreluctanttogivetheCommissionsuch Compagnie vCouncil. I.a.: Cases sion regulatory committee:seeCase This isnotnecessarilythesamedraftmeasuresubmittedto July 2004. . technical C-25/70 Köster,C-240/90Germany,T-64Frucht- political issues, thiscouldmakeitpossibleto impactfrom‘delegatedexecution’ C-152/98 Pharosv.Commis- C-14/01 MolkereiNiemann Parliament 16 th edition, The European Parliament’s Right of Scrutiny EIPASCOPE Bulletin 2005/1 25 EIPASCOPE 2005/1 EIPASCOPE March 2002). 700 € Seminar: Comitology in the Area of Financial Services 0510005 Draft Commission decision noting the adequate level of protec- Draft Commission decision noting the adequate in the Passenger tion provided for personal data contained Bureau of Customs Name Records (PNRs) transferred to the US (C5-0124/2004). and Border Protection (2004/2011(INI)) Cox on the draft Letter from President Prodi to President on the transfer of agreement between the EC and the USA passenger data, D (2004)3398. from the Council Case C-317/04 and C-318/04. See also: Note In view of this legal service 11876/04 dated 6 August 2004. the Court’s opinion appeal under Article 230 the request for null and void. under Article 300 (6) from 21 April became Case C-294/95 Germany v. Commission. COM (2004) 324 final. Proposal for a Council Decision amending Decision 1999/468/EC laying down the proce- dures for the exercise of implementing powers conferred on the Commission. :: See Pérez Asinari/ Poullet: The Airline Passenger Data Disclo- Airline Passenger Data Poullet: The See Pérez Asinari/ 2003, University of Namur, and the EU-US Debate, sure Case http://www.crid.be. access (“pull”) by US law enforcement Namely to consent situated on Community territory, authorities to PNR databases on air carriers to process PRN and to impose an obligation US law enforcement authorities. data as required by 17.May 2004 on the conclusion of an Council Decision of the European Community and the United Agreement between the processing and transfer of PNR data States of America on United States Department of Homeland by Air Carriers to the Customs and Border Protection, 2004/ Security, Bureau of 183/83. 496/EC, OJ 2004 L possible way of entering into an interna- Another theoretically the US to regulate the transfer of tional agreement with been under Articles passengers’ personal data, would have of “prevent- 24 or 38 TEU in order to implement the objective in particu- ing and combating crime, organised or otherwise, powers of scrutiny lar terrorism (…)” of Article 29 TEU. For EP’s G. Bono: European over CFSP/ESDP decision-making see: of democratic Security and Defence policy and the challenges accountability. (DRAFT paper, on 31.March P5_TA-PROV(2004)0245. At its plenary session with 19 absten- 2004 Parliament voted by 229 votes to 202, some PSE national tions. The PSE backed the resolution, but joined the PPE in delegations (including UK Labour Party) opposing the Resolution. Article 8(2) of the European Convention for the Protection of Protection for the Convention European 8(2) of the Article by Article law, in particular Enshrined in EC Human Rights. is not protection of privacy in the US the 286. Whereas as a fundamental right. regarded Records of air passengers transferred to the United States‘ to the transferred passengers of air Records 1914. C(2004) Protection. and Border of Customs Bureau 22-23 November 2005, Maastricht For further information and registration forms, please contact: Mrs Belinda Vetter, Tel.: +31 43 3296 382 Fax: +31 43 3296 296 E-mail: [email protected] Website: http://www.eipa.nl 44 45 46 47 48 39 40 41 42 43 38 referring to Bulletin EU http://europa.eu.int/prelex/detail_dossier_ ) states that “Parliament calls on the Com- ? 700 650 850 € € € CL= en& DosId=155818, ? Advanced Seminar on Comitology 0510004 mission to withdraw its proposal for a seventh amendment to Directive 76/768/EEC (…)”. L’Unione Europea: Le Istituzioni e I meccanismi decisionali 0510601 9-2002 (Internal Market (5/24):1.3.29 where the Commis- 9-2002 (Internal Market (5/24):1.3.29 sion (mistakenly Seminar: How Can Member States Efficiently Influence Community Decision-Making: A Practical Guide for Preparing a Winning Strategy 0510801 Commission Decision of 14-5-2004 on the adequate protec- tion of personal data contained in the Passenger Name Notably this EP resolution on a Commission draft implement- Notably this EP resolution on a Commission database listing the ing measure is mentioned in the prelex to the basic decision-making process of the amendment Directive 76/768, real.cfm Council Directive 93/35/EEC of 14 June 1993 amending for Council Directive 93/35/EEC of 14 June approximation of the sixth time Directive 76/768/EEC on the cosmetic products, the laws of the Member States relating to OJ L 151, 23.6.1993, p.32. COM(2003) 530 final. 2004. Information from the Commission in August Information from the Commission in August 2004. Information from the Commission in August 2003/15 amend- After the approval of the joint text, Directive 27 February 2003 ing Directive 76/768 was adopted on on finished cos- containing a prohibition of animal testing states that Article metic products. This new Directive expressly of 1 of July 2002 4 (1) (i) of Directive 76/768 is deleted as allowing for the which means that Council Directive 93/35 retrospec- ban and possible postponements was superseded tively in the interest of legal certainty. P5_TA(2002)0435 of 24. September 2002, European Parlia- P5_TA(2002)0435 of ban on the market- ment resolution on the postponement of the C 273E/126. ing of cosmetics tested on animals, OJ 2003 See: Debates of Parliament, Sitting of Tuesday, 24.September See: Debates of Parliament, Wallström. 2002, Speech by Mrs. COM(2000)189 final, amended proposal COM(2001) 687 final. COM(2000)189 final, 2000/41/EC of 19 June 2000 post- Commission Directive time the date after which animal tests are poning for a second of combinations of ingredients of prohibited for ingredients 2000 L 145/25. cosmetic products. OJ By submission of a draft implementing measure until 1 By submission of a 2 Directive 97/18. January 2000, see Article Commission Directive 97/18/EC of 17 April 1997 postponing Directive 97/18/EC Commission are prohibited for ingredients which animal tests the date after ingredients of cosmetic products. OJ L or combinations of 43. 114, 01/05/1997, p. Directive 76/768/EEC on the approximation of laws of the approximation of laws on the Directive 76/768/EEC 151, 23/ products. OJ L relating to cosmetic Member States p. 32. 06/1993, Corrigendum was published only one day after Parliament’s day after only one published was Corrigendum might explain OJ. This in the been published had Resolution that Parlia- states Corrigendum in the Commission why the OJ. been published in the has not yet ment’s Resolution RELATED ACTIVITIES RELATED ACTIVITIES AT EIPA AT EIPA 17-18 October 2005, Maastricht 26-28 September 2005, Milan 27-29 June 2005, Maastricht or Brussels RELATED ACTIVITIES AT EIPA RELATED ACTIVITIES RELATED ACTIVITIES AT EIPA AT EIPA ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ ○ ○ 37 36 33 34 35 31 32 30 29 27 28 26 25 24