Consultation procedure (comitology) - Main contents

The consultation procedure for implementing acts is one the procedures used to establish secondary legislation. The Commission may be granted the mandate to establish implementing acts, but only if primary legislation allows for it and only within the boundaries set by the primary legislation.

Implementing acts are generally used to establish measures that ensure legislation is implemented in a similar fashion throughout the European Union. There are two procedures to establish such acts, the consultation and examination procedure. Member states play a less important role in the consultation procedure. Neither procedure grants the Commission a mandate to establish additional measures in terms of scope and content that add to the primary legislation. In such cases the procedure for delegated acts is observed.

In short the procedure proceeds as follows: basic legislation stipulates on which part of the legislation the European Commission has to establish implementing measures. The Commission drafts an implementing act, which is then subject to a non-binding review by a committee of experts from the member states. The Commission then decides whether to adopt the implement act.

Step 1: establish framework

Primary legislation determines for which elements of the legislation the European Commission is made responsible on how that legislation is to be implemented. This grants the Commission a mandate to establish binding measures for implemention.

Step 2: establishing implementing acts

The Commission drafts a proposal for an implementing act. The proposal is put to a consultative committee made up of representatives of the member states.

This consultative committee issues an advice on the proposal. The committee decides by simple majority i.

Such committees are part of what is commonly referred to as 'comitology'.

The Commission procees to decide on whether to adopt the proposal or not. The deliberations and final advice issued by the consultative committee are taken into consideration. The Commission can either:

• 1. 

  adopt the implementing act
• 2. 

  amend the implementing act
• 3. 

  retract the implementing act

When the Commission decides to amend the proposal the Commission generally tries to remove any of the objections raised by the consultative committee. The Commission can either adopt the amended implementing act, or it can ask the consultative committee for advice a second time.

Consultation procedure in urgent cases

Step 1: establish framework

Primary legislation determines for which elements of the legislation the European Commission is made responsible on how that legislation is to be implemented. This grants the Commission a mandate to establish binding measures for implemention. A clause is added to the primary legislation that implementing measures should be adopted with great urgency.

Step 2: establishing implementing acts

The Commission adopts an implementing act. The implementing act has a maximum duration of six months.

Step 3: a posteriori advice

Within two weeks of adopting an implement act with urgency the Commission put it to a consultative committee.

Should the consultative committee issue a negative advice the Commission will be inclined to amend the implementing act, but it is not obliged to do so.

Consultative procedure in the common foreign and security policy

Instead of the European Commission the Council of Ministers drafts and adopts implementing acts. In all other regards the procedure is similar.

Right of re-examination

Both the Council of Ministers as well as the European Parliament may, at any time, take issue with an implementing act. They can do so by stating that the Commission has, in their opinion, exceeded its mandate when establishing a particular implementing act.

The Commission is required to investigate any such claims made by Council and/or EP. The investigation can yield the following results:

• 1. 

  the Commission informs Council and EP it will retract the implementing act
• 2. 

  the Commission informs Council and EP it will amend the implementing act
• 3. 

  the Commission informs Council and EP it will leave the implementing act unchanged

Application of consultation procedure for implementing acts

The Commission may only issue implementing acts when the following conditions are met:

• - 

  the primary legislation has to be legally binding
• - 

  implementing acts cannot in any way amend or add to contents or scope of the primary legislation
• - 

  implementing acts shall only concern the implementation of the act the Commission has been granted a mandate for

As long as the following conditions are met any piece of primary legislation can include a mandate for implementing acts. As a rule, the consultation procedure is not used for policy areas where the examination procedure for establishing implementing acts is used. Exeptions can be made.

Implementing acts are based on the Treaty on the functioning of the European Union:

• - 

  implementing acts: part six TFEU title I chapter 2 section 1 art. 291
• - 

  working arrangements between Council, EP and Commission on implementing acts (regulation 2011/182)