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Published online by Cambridge University Press: 06 March 2020
The 2017 glyphosate reauthorisation process has exposed key weaknesses of the EU’s institutional system. First, the role of Germany as Member State rapporteur and the subsequent decision to appoint a group of Member States to form the Assessment Group on Glyphosate (AGG) suggest that the nature of scientific assessments become blurred. These assessments are apparently not just purely objective, science-based and procedural elements of the authorization procedure, but require support from a significant number of Member States as well. Second, the arduous comitology trajectory in the glyphosate reauthorisation process has caused the Commission to initiate questionable changes to comitology. These changes would corrupt the coherence of the EU’s legislative system in general and the constitutional distinction between delegated and implementing acts in particular. Moreover, they would overlook the more obvious solution of relying more on discretion on the part of the Commission. Lastly, the glyphosate reauthorisation has questioned the dichotomy between legislation and executive rule-making, an equally central element of the EU’s constitutional order. This dichotomy is based on a distinction between essential elements that belong to the legislative domain and non-essential element which are more technical in nature. It has been claimed that weighing the economic benefits of pesticides against the health and environmental costs associated with their use is in essence a legislative choice. This claim highlights not so much the practical problem of how to draw the line between political and technical decision-making, but rather denies the very meaning of the dichotomy altogether. Yet, the current system on the placing on the market of plant protection products – based on the legislation providing the general framework and the executive applying this in concrete cases – is certainly not devoid of coherence and logic.
1 European Commission, State of the Union Address 2016: Towards a better Europe – a Europe that protects, empowers and defends, available at <europa.eu/rapid/press-release_SPEECH-16-3043_en.htm>.
2 See for instance European Commission, “A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change: Political Guidelines for the next European Commission”, Strasbourg, 15 July 2014.
3 It did so shortly after. The proposal is discussed in section IV.
4 Input by the Greens, available at <extranet.greens-efa-service.eu/public/media/file/1/5422>.
5 Though in adopting the decision the Commission must cooperate with a committee of national experts, as we will see below.
6 The only competence of the Parliament with regard to implementing acts is the so-called “droit de regard”, which allows the Parliament (and also the Council) to adopt a resolution with the aim of having the Commission withdraw the implementing act at issue (Art 11 of the Comitology Regulation). The relevance of this right is limited, however. The EP must justify this step by arguing that by adopting the measure the Commission would overstep the limits of its powers. The EP has, however, no competence to formally block the adoption of the act at issue (the Commission is merely obliged to reconsider it).
7 The Commission’s response to the Initiative “Ban glyphosate and protect people and the environment from toxic pesticides” dates from 12 December 2017, COM C (2017) 8414 and is available at <ec.europa.eu/transparency/regdoc/rep/3/2017/EN/C-2017-8414-F1-EN-MAIN-PART-1.PDF>.
8 Arcuri, A and Hale Hendlin, Y, “The Chemical Anthropocene: Glyphosate as a Case Study of Pesticide Exposures” (2019) 30(2) King’s Law Journal 234 CrossRefGoogle Scholar.
9 Art 7 of the Regulation.
10 Art 9 of the Regulation.
11 Art 11 of the Regulation.
12 EFSA, Conclusion on the peer review of the pesticide risk assessment of the active substance glyphosate, of 12 November 2015, available at <efsa.onlinelibrary.wiley.com/doi/abs/10.2903/j.efsa.2015.4302>.
13 Report from the International Agency for Research on Cancer of 21 December 2015, available at <www.iarc.fr/wp-content/uploads/2018/07/MonographVolume112-1.pdf>.
14 Its report had been based, inter alia, on evidence from the Glyphosate Task Force, a group of 22 companies financing safety studies into the herbicide. This party was not considered to be objective. In reaction, the Commission adopted a legislative proposal to improve transparency in scientific assessments as well as the quality and independence of the scientific studies that are the basis of the assessments carried out by the European Food Safety Authority, COM(2018) 179.
15 Regulation 182/2011/EU of the European Parliament and the Council of 28 February 2011.
16 For an elaborate overview of comitology’s history, in particular the development of its legal bases, see Ponzano, P, “Comitologie: un point de vue de la Commission?” (2008) 4 Revue de droit de l’Union Européenne 713 Google Scholar.
17 For a more elaborate account of the course of events see Tosun, J et al, “A Case of ‘Muddling Through’? The Politics of Renewing Glyphosate Authorization in the European Union” (2019) 11 Sustainability 440 CrossRefGoogle Scholar.
18 Mühlböck, M and Tosun, J, “Responsiveness to Different National Interests: Voting Behaviour on Genetically Modified Organisms in the Council of the European Union” (2018) 56(2) Journal of Common Market Studies CrossRefGoogle Scholar 385.
19 European Parliament (ENVI committee), Public hearing on Ban glyphosate of 20 November 2017, available at <multimedia.europarl.europa.eu/nl/public-hearing-on-the-european-citizens-initiative-ban-glyphosate-and-protect-people-and-the-environment-from-toxic-pesticides-at-enviitreagripeti-committees_EP062031_06-V_v>.
20 Implementing Regulation 2019/724/EU of 10 May 2019, OJ L 124/32.
21 Arcuri and Hale Hendlin, supra, note 8, at p 248.
22 Craig, PP, “Comitology, Rulemaking and the Lisbon Settlement. Tensions and Strains” in Bergström, CF and Ritleng, D, Rulemaking by the European Commission: The New System for Delegation of Powers (Oxford University Press 2016) p 174 Google Scholar.
23 Art 290(1) TFEU provides that the Member States shall adopt all measures of national law necessary to implement legally binding EU acts.
24 Art 291(2) TFEU.
25 Advocate-General Jääskinen argued that the main constitutional issue for implementing acts would thereby be the respect for the primary competence of the Member States to implement EU legislation (in contrast to delegated acts, for which democratic control would be the main issue: conclusion in Case C-270/12 United Kingdom v Council and Parliament, ECLI:EU:C:2013:562).
26 Craig, supra, note 22, p 175.
27 Case C-65/13, ECLI:EU:C:2014:2289.
28 Regulation 182/2011/EU of the European Parliament and the Council of 28 February 2011.
29 However, the procedure is still applied for implementing acts based on legislation that predates the Treaty of Lisbon. Proposals from the Commission to align the RPS provisions to either delegated acts or implementing acts (the so-called “omnibus proposals”) have not been adopted, but the three institutions have reached agreement on aligning individual RPS provisions that represent only a minority of the total RPS provisions.
30 As a response to the contentious nature of the issue, both the Commission and the EP have sought to demarcate implementation and delegation better. By contrast, the Council has preferred to decide on a case-by-case basis. The Commission adopted guidelines: the Delegated Acts Guidelines of 24 June 2011, SEC (2011) 855 and the Implementing Acts guidelines of 25 October 2012, SEC (2012) 617. The European Parliament has adopted a report prepared by its member Szajer which had as its main aim to identify objective criteria for the choice between the two measures: Report of 4 December 2013 on follow-up on the delegation of legislative powers and control by Member States of the Commission’s exercise of implementing powers (2012/2323(INI)). The Commission’s commitment to consult national experts as well before adopting delegated acts may, to some extent, have eased the Council’s aversion to these acts.
31 In its decision in the Biocides case – the landmark decision in this regard – the CJEU ruled that this discretion is subject only to compliance with the substantive and procedural criteria provided for by the TFEU: Case C-427/12, Biocides, ECLI:EU:C:2014:170.
32 Case C-88/14, Visa Regulation, ECLI:EU:C:2015:499.
33 This was not part of the Commission’s proposal for the Comitology Regulation: European Commission, 9 March 2010, COM (2010) 83 final.
34 Case C-183/16 P, Tilly-Sabco, ECLI:EU:C:2017:704.
35 Legal scholars, political scientists and public administration scholars alike delved into the issue. The comitology dichotomy of technical versus political decision-making has perhaps been deboned most profoundly by Shapiro: Shapiro, M, “‘Deliberative’, ‘Independent’ technocracy versus Democratic Politics: will the Globe echo the EU?” (2005) 68 Law and Contemporary Problems 341 Google Scholar.
36 Joerges, C, “Reconceptualizing the Supremacy of European Law: A Plea for a Supranational Conflict of Laws” in Kohler-Koch, B and Rittberger, B (eds), Debating the Democratic Legitimacy of the European Union (Lanham, Rowman & Littlefield 2007) p 311 Google Scholar.
37 Christiansen and Dobbels have examined these tensions empirically and concerning comitology they have zoomed in specifically on the appeal committee: T Christiansen and M Dobbels, “Interinstitutional Tensions in the New System for Delegation of Powers” in Bergström and Ritleng, supra, note 22, p 87 (in particular section 5.2.4).
38 Craig, supra, note 22, p 175.
39 Wessels, W, “Comitology: Fusion in Action. Politico-administrative Trends in the EU System” (1998) 5 JEPP 209 Google Scholar.
40 Implementing Regulation 2016/1056/EU of 29 June 2016.
41 Implementing Regulation 2017/2324/EU of 12 December 2017.
42 Proposal for a Regulation amending Regulation 182/2011/EU of 14 December 2017, COM(2017) 85 fin.
43 This element of the proposal was supported by Members of the European Parliament: see question for a written answer by Swedish MEP Andersson from 15 June 2018, available at <www.europarl.europa.eu/doceo/document/E-8-2018-003285_EN.html?redirect>.
44 Art 3(7), proposed addition of a sixth subparagraph.
45 Art 6, proposed insertion of new paragraph 3a.
46 Craig, PP, “Delegated Acts, Implementing Acts and the New Comitology Regulation” (2011) 36 ELRev 671 Google Scholar.
47 This difference in the foundations of accountability does not imply that the exercise of the resulting accountability mechanism is without problems as Peers and Costa have demonstrated: Peers, S and Costa, M, “Accountability for Delegated and Implementing Acts after the Treaty of Lisbon” (2012) 18(3) European Law Journal 427 CrossRefGoogle Scholar.
48 Conclusion in Case C-270/12 United Kingdom v Council and Parliament, EU:C:2013:562.
49 Indeed, the distinction between delegation and implementation reflects this ambition. The Working group IX on Simplification of the European Convention considered that in case of delegation, the “legislator delegates a power which is intrinsic to its own role. It must therefore be sure of being able to monitor its use”. Thus, the two legislative institutions were to have strong powers under delegation (Final Report, CONV 424/02, p 11). By contrast, the provisions on implementing acts do not provide for any role for these two institutions and control may only be exercised by the Member States (point 1 of the Explanatory Memorandum of the Commission proposal for the Comitology Regulation, fn 28).
50 Consideration 8 of the proposal.
51 See eg Curtin, D, “Challenging Executive Dominance in European Democracy” (2014) 77 Modern Law Review 1 CrossRefGoogle Scholar.
52 See also Chamon, who considered the introduction of the examination procedure as an improvement over the old regulatory procedure in light of the increased discretion for the Commission: Chamon, M, “De nieuwe regels voor ‘comitologie’ na het Verdrag van Lissabon” (2011) 4 Nederlands Tijdschrift voor Europees recht 127, at p 135Google Scholar.
53 And, indeed, Art 6(3) of the Comitology Regulation establishes the legality of the Commission’s discretion to adopt a measure in case of no-opinion.
54 Comitology Regulation, consideration 14.
55 Art 5 Decision 1999/468/EC, OJ L 184/23.
56 In the legislative practice that emerged after the entry into force of the Treaty of Lisbon, some of the sharp edges of the distinction have been reduced however, eg by the Commission’s commitment to consult national experts before adopting delegated acts: point 4 of the Common Understanding between the European Parliament, the Council and the Commission on Delegated Acts, attached to the Interinstitutional Agreement on Better Lawmaking of 12 May 2016, L 123/1.
57 Since the Treaty of Lisbon, the term “quasi-legislation” has become affiliated to delegated acts to denote regulation which is closer to legislative acts than “pure” executive rule-making (implementation). In other words, this vocabulary suggests that the dichotomy between delegation and implementation has – apart from an institutional dimension – a substantive meaning as well.
58 Arcuri, A, “Glyphosate” in Hohmann, J and Joyce, D (eds), International Law’s Objects (Oxford, Oxford University Press 2018) p 234 CrossRefGoogle Scholar.
59 ibid.
60 D Ritleng, “The Reserved Domain of the Legislature. The Notion of ‘Essential Elements of an Area’” in Bergström and Ritleng, supra, note 22, p 133.
61 This substantive criterion has existed since the decision of the CJEU in Case 25/70, Köster, ECLI:EU:C:1970:115. Since the Treaty of Lisbon it has required constitutional status on the basis of Art 290 TFEU. Although this provision only deals with delegated acts, the case to continue to apply it to implementing acts as well is compelling: Ritleng, supra, note 60, p 143 ff.
62 Case C-355/10, European Parliament v Council (Schengen Border Code), ECLI:EU:C:2012:516. See also subsequent case law discussed by Chamon: Chamon, M, “Limits to delegation under Article 290 TFEU” (2018) 25 Maastricht Journal of European and Comparative Law 231 CrossRefGoogle Scholar.
63 Chamon has argued that the CJEU only rephrased the terminology from the Treaty, but the formulation of the criterion as developed by the CJEU and its application in the Schengen Border Code case make a strong case that we are dealing now with a much more concrete and workable definition than the Treaty concept itself: Chamon, M, “How the Concept of essential elements of a legislative act continues to elude the Court. Parliament v Council ” (2013) 50 CMLR 849 Google Scholar.
64 Tosun et al, supra, note 17, at p 441.
65 Indeed, the formulation is very similar to that of the CJEU in the Schengen Border Code case, supra, note 62.
66 For a further discussion of the Advocate General’s approach, see Chamon, supra, note 62.
67 Laying down some of the details thereof has equally been delegated to the Commission.