Explanatory Memorandum to COM(2011)349 - Amendment of certain regulations relating to the common commercial policy as regards the granting of delegated powers for the adoption of certain measures

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dossier COM(2011)349 - Amendment of certain regulations relating to the common commercial policy as regards the granting of delegated powers for ...
source COM(2011)349 EN
date 15-06-2011


1. Introduction

The entry into force of the Treaty of Lisbon has led to significant changes both in the framework for the adoption of delegated and implementing acts and for the conduct of trade policy.

As regards the adoption of delegated and implementing acts the Treaty on the Functioning of the European Union (hereinafter 'the Treaty') clearly distinguishes between the two.

- The provisions of the Treaty on delegated acts, which are set out in Article 290 of the Treaty on the Functioning of the European Union, provide for the legislator to control the exercise of the Commission's powers by means of a right of revocation and/or a right of objection.

- The provisions of the Treaty on implementing acts, which are set out in Article 291, do not provide any role for the European Parliament and the Council to control the Commission's exercise of implementing powers. Such control can only be exercised by the Member States. A legal framework establishing the mechanisms of such control is set out in Regulation (EU) No 182/2011 of the European Parliament and the Council laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.1

As regards trade policy, the Treaty of Lisbon provides that the ordinary legislative procedure applies, meaning that for the first time the European Parliament is fully associated in the conduct of trade policy.

Contents

1.

In relation to the adoption of Regulation (EU) No 182/2011 the Commission made the following statement:


"The Commission will proceed to an examination of all legislative acts in force which were not adapted to the regulatory procedure with scrutiny before the entry into force of the Lisbon Treaty, in order to assess if those instruments need to be adapted to the regime of delegated acts introduced by Article 290 of the Treaty on the Functioning of the European Union. The Commission will make the appropriate proposals as soon as possible and no later than at the dates mentioned in the indicative calendar annexed to this declaration."2

The present proposal results from the Commission's examination of the legislative acts in the field of trade policy. Legislation in the field of trade policy has not been adapted in the past to the regulatory procedure with scrutiny.

This proposal accompanies a first proposal the Commission has made on trade policy. That proposal (COM(2011)82 final of 7 March 2011 - referred to as 'Trade Omnibus I'3) amends certain regulations relating to the common commercial policy as regards procedures where the Council was involved in decision-making which were not based on Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.4 It proposes that such procedures be converted into either delegated acts pursuant to Article 290 of the Treaty or implementing acts pursuant to Article 291.

The current proposal examines all remaining decision-making procedures found in trade policy legislation in order to adapt them, where appropriate, to the regime for delegated acts set down in Article 290. In principle these are decision-making procedures based on Council Decision 1999/468/EC. At the time of making the statement related to the adoption of Regulation 182/2011 the Commission provided a list of acts in annex. As regards trade policy, the Commission listed the following acts5:

2.

- Council Regulation (EEC) No 3030/93 of 12 October 1993 on common rules for imports of certain textile products from third countries


- Council Regulation (EC) No 517/94 of 7 March 1994 on common rules for imports of textile products from certain third countries not covered by bilateral agreements, protocols or other arrangements, or by other specific Community import rules

- Council Regulation (EC) No 2248/2001 of 19 November 2001 on certain procedures for applying the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Croatia, of the other part and for applying the Interim Agreement between the European Community and the Republic of Croatia, as amended

3.

- Council Regulation (EC) No 953/2003 of 26 May 2003 to avoid trade diversion into the European Union of certain key medicines


4.

- Council Regulation (EC) No 673/2005 of 25 April 2005establishing additional customs duties on imports of certain products originating in the United States of America


- Council Regulation (EC) No 1616/2006 of 23 October 2006 on certain procedures for applying the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part, and for applying the Interim Agreement between the European Community and the Republic of Albania

- Council Regulation (EC) No 1528/2007 of 20 December 2007 applying the arrangements for products originating in certain states which are part of the African, Caribbean and Pacific (ACP) Group of States provided for in agreements establishing, or leading to the establishment of, Economic Partnership Agreements

- Council Regulation (EC) No 55/2008 of 21 January 2008 introducing autonomous trade preferences for the Republic of Moldova and amending Regulation (EC) No 980/2005 and Commission Decision 2005/924/EC

- Council Regulation (EC) No 140/2008 of 19 November 2007 on certain procedures for applying the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part, and for applying the Interim Agreement between the European Community, of the one part, and the Republic of Montenegro, of the other part

- Council Regulation (EC) No 594/2008 of 16 June 2008 on certain procedures for applying the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part, and for applying the Interim Agreement on trade and trade-related matters between the European Community, of the one part, and Bosnia and Herzegovina, of the other part

- Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences for the period from 1 January 2009 to 31 December 2011 and amending Regulations (EC) No 552/97, (EC) No 1933/2006 and Commission Regulations (EC) No 1100/2006 and (EC) No 964/2007

- Council Regulation (EC) No 1215/2009 of 30 November 2009 introducing exceptional trade measures for countries and territories participating in or linked to the European Union's Stabilisation and Association process

5.

- Council Regulation (EC) No 1342/2007 of 22 October 2007 on administering certain restrictions on imports of certain steel products from the Russian Federation


- Council Regulation (EC) No 1340/2008 of 8 December 2008 on trade in certain steel products between the European Community and the Republic of Kazakhstan6

The Commission has examined all of these regulations. Where appropriate, it proposes that certain procedures be converted into delegated acts. The next section explains for each regulation the approach proposed by the Commission.

2. Analysis of existing procedures

- Council Regulation (EEC) No 3030/93 of 12 October 1993 on common rules for imports of certain textile products from third countries

The Commission carefully examined the procedures provided for in this regulation. It considers that the procedures provided for in Articles 2(6), 6(2), 8, 10, 10a i, 13 i, 15 i, 15(5), 19, 4 i of Annex IV and 2, 3 i, 3 i of Annex VII should be converted into procedures for the adoption of delegated acts. It notes that some of these articles refer to decision-making procedures for the adoption of safeguard measures. The Commission considers that such measures should normally be regarded as implementing measures, except, as in this case, where they may lead to amendments to the relevant annexes of the regulation and therefore exceptionally fall to be considered as delegated acts.

The Commission examined all other decision-making procedures provided for in this Regulation, and concludes that these procedures should be retained as implementing acts. The list of articles containing such procedures is as follows: Articles 2 i, 12, 15 i and Articles 10, 14 and 21 of Annex III.

- Council Regulation (EC) No 517/94 of 7 March 1994 on common rules for imports of textile products from certain third countries not covered by bilateral agreements, protocols or other arrangements, or by other specific Community import rules

The Commission carefully examined the procedures provided for in this regulation. It considers that the procedures provided for in Articles 3 i, 5(2), 12 i, 13, 16 and 28 should be converted into procedures for the adoption of delegated acts. It notes that some of these articles refer to decision-making procedures for the adoption of safeguard measures. The Commission considers that such measures should normally be regarded as implementing measures, except, as in this case, where they may lead to amendments to the relevant annexes of the regulation and therefore exceptionally fall to be considered as delegated acts.

The Commission examined all other decision-making procedures provided for in this Regulation, and concludes that these procedures should be retained as implementing acts. The list of articles containing such procedures is as follows: Articles 6(2), 6 i, 7 i, 8(2), 11, 15, 17 i, 17(6), 20, 21(2), 21 i, 21 i, 21(5) and 23.

- Council Regulation (EC) No 2248/2001 of 19 November 2001 on certain procedures for applying the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Croatia, of the other part and for applying the Interim Agreement between the European Community and the Republic of Croatia, as amended

The Commission carefully examined the procedures provided for in Articles 2, 4, 7 and 7f of the Regulation. It came to the conclusion that none of these procedures leads to acts which supplement or amend the basic act and which therefore require to be converted into delegated acts.

- Council Regulation (EC) No 953/2003 of 26 May 2003 to avoid trade diversion into the European Union of certain key medicines

This regulation provides that the annex to the regulation may be amended to add tiered priced products to the list in the annex. This should be converted into a system of delegated acts.

- Council Regulation (EC) No 673/2005 of 25 April 2005 establishing additional customs duties on imports of certain products originating in the United States of America

This regulation provides that the annex to the regulation may be amended to make adjustments to the customs duties applied and the products to which the duties apply. This should be converted into a system of delegated acts.

- Council Regulation (EC) No 1616/2006 of 23 October 2006 on certain procedures for applying the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part, and for applying the Interim Agreement between the European Community and the Republic of Albania

The Commission carefully examined the procedures provided for in Articles 2, 4, and 11 of the Regulation. It came to the conclusion that none of these procedures leads to acts which supplement or amend the basic act and which therefore require to be converted into delegated acts.

- Council Regulation (EC) No 1342/2007 of 22 October 2007 on administering certain restrictions on imports of certain steel products from the Russian Federation

Article 5 states that the annexes to the regulation should be modified as specified in the relevant agreement with the Russian Federation. Article 6 i provides that the annexes can be modified in the event of circumvention. The Commission is permitted to make such changes and no specific procedure is specified. Article 12 also permits the modification of the annexes, and is understood as permitting the Commission to modify the annexes. The Commission considers that these procedures should be converted into delegated powers. The Commission regards the powers provided in Articles 14 and 15 as being implementing acts.

- Council Regulation (EC) No 1528/2007 of 20 December 2007 applying the arrangements for products originating in certain states which are part of the African, Caribbean and Pacific (ACP) Group of States provided for in agreements establishing, or leading to the establishment of, Economic Partnership Agreements

This regulation provides powers in Article 4 i and Article 23 to make amendments to Annex II on rules of origin and the regulation as a whole in the event of divergences with international agreements. These procedures should be converted into procedures for the adoption of delegated acts. The regulation contains a number of other procedures currently subject to Regulation 182/2011 which the Commission considers should be maintained as implementing acts. These procedures are decisions on the management of rules of origin (Article 4(3)), suspension of benefits in the event of fraud (Article 5), detailed rules for the implementation and management for implementing the tariff rate quotas for sugar and rice (Articles 6 and 7)7, the transitional safeguard mechanism for sugar (Article 9), the transitional surveillance mechanism for processed agricultural products (Article 10), decisions on cumulation for rules of origin purposes (Article 6 of Annex II) and derogations from the provisions of Annex II on rules of origin (Article 36 of Annex II).

- Council Regulation (EC) No 55/2008 of 21 January 2008 introducing autonomous trade preferences for the Republic of Moldova and amending Regulation (EC) No 980/2005 and Commission Decision 2005/924/EC

Article 7 provides that the Commission may make amendments and technical adjustments following amendments to the Combined Nomenclature or the conclusion of international agreements. The Commission considers that this procedure should be converted into a delegated power. The other procedures should remain as implementing acts.

- Council Regulation (EC) No 140/2008 of 19 November 2007 on certain procedures for applying the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part, and for applying the Interim Agreement between the European Community, of the one part, and the Republic of Montenegro, of the other part

The Commission carefully examined the procedures provided for in Articles 2, 4, and 11 of the Regulation. It came to the conclusion that none of these procedures leads to acts which supplement or amend the basic act and which therefore require to be converted into delegated acts.

- Council Regulation (EC) No 594/2008 of 16 June 2008 on certain procedures for applying the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part, and for applying the Interim Agreement on trade and trade-related matters between the European Community, of the one part, and Bosnia and Herzegovina, of the other part

The Commission carefully examined the procedures provided for in Articles 2, 4, and 11 of the Regulation. It came to the conclusion that none of these procedures leads to acts which supplement or amend the basic act and which therefore required to be converted into delegated acts.

- Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences for the period from 1 January 2009 to 31 December 2011 and amending Regulations (EC) No 552/97, (EC) No 1933/2006 and Commission Regulations (EC) No 1100/2006 and (EC) No 964/2007

This regulation provides for the annexes thereto to be amended in a number of specified purposes as set out in Article 25 thereof. It is appropriate to convert the system for making such amendments into a system of delegated acts. At the same time, the regulation also requires, in Articles 10(2) and 11 i that certain of these amendments be preceded by decisions adopted pursuant to the examination procedure as provided for in Article 5 of Regulation (EU) No. 182/2011. It is undesirable in terms of legal clarity to require that the same substantive decision be subject to two different decision-making procedures, with the risk that those two procedures lead to different result. As a consequence, the Commission proposes that these procedures be unified into a system of delegated acts. The procedures provided for in Article 11(7) should be considered as implementing act and therefore do not require to be converted into a system of delegated acts.

- Council Regulation (EC) No 1340/2008 of 8 December 2008 on trade in certain steel products between the European Community and the Republic of Kazakhstan

Article 5 i provides that the annexes can be modified in the event of circumvention. The Commission is permitted to make such changes and no specific procedure is set out. The Commission considers that this procedure should be converted into a delegated power. Other procedures should remain as implementing acts.

- Council Regulation (EC) No 1215/2009 of 30 November 2009 introducing exceptional trade measures for countries and territories participating in or linked to the European Union's Stabilisation and Association process

Article 7 provides that the Commission may make amendments and technical adjustments following amendments to the Combined Nomenclature or the conclusion of international agreements. The Commission considers that this procedure should be converted into a delegated power. Other procedures should remain as implementing acts.

3. Conclusion

The result of the adoption of the two proposals adopted by the Commission as regards decision-making procedures in trade policy will be a substantial number of amendments to the acts in question. In order to improve legibility of the acts concerned, the Commission has proposed to replace whole sentences or paragraphs even where only a limited number of words in the sentence or paragraph are in reality being amended. The Commission will propose a codification of the acts as expeditiously as possible once the two horizontal proposals are adopted.

The Commission also notes that certain regulations, in particular Council Regulation (EEC) No 3030/93 of 12 October 1993 on common rules for imports of certain textile products from third countries and Council Regulation (EC) No 517/94 of 7 March 1994 on common rules for imports of textile products from certain third countries not covered by bilateral agreements, protocols or other arrangements, or by other specific Community import rules contain provisions creating procedures for the adoption of delegated or implementing acts in the annexes themselves. While this drafting technique is not now considered satisfactory, it would not be appropriate, in a proposal with a limited scope as in the present, to revisit the structure of the legislation.