EU Law Blog

New Rules on Comitology Proposed

The Commission has made a proposal to the Council and European Parliament - COM (2010) 83 final - to reform the "comitology" procedure.

The proposal seeks to implement Article 291 TFEU that lays down that the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt in advance the rules and general principles concerning mechanisms for control by member States of the Commission's exercise of implementing powers. If adopted, the new measure will replace Council Decision 1999/468/EC.

Instead of having four different procedures (the advisory, the management, the regulatory and the regulatory with scrutiny procedures) as now, the proposal suggests that there be only two: The advisory procedure, like the existing advisory procedure, and a new "examination" procedure, to replace the management and regulatory procedures (Articles 4 and 5).

According to the proposal, the advisory procedure will be the default procedure can be applied to all policy domains and for all types of binding implementing measures (Article 2(3)) whereas the examination procedure would only be used when certain binding criteria are met (Article 2(2)).

The proposed examination procedure would work as follows:
- Where the Committee delivers a negative opinion on the draft measures, the Commission could not adopt them. The Commission can re-submit the draft to the committee for reconsideration, or table an amended draft. In very exceptional circumstances, the Commission would be able to adopt the draft measures despite a negative opinion but in such a case the committee would have the last word within a time-period which will not exceed one month;
- Where the committee reaches no opinion, the Commission could ultimately decide whether to adopt the measures or not.
- If the committee gives a positive opinion, the Commission would adopt the measures unless exceptional circumstances or new facts would justify them not being adopted.

Under the examination procedure, the committee itself would be able to prevent the adoption of the draft measures by the Commission if a qualified majority of member States were against.

For a previous post on comitology, look here.

Vertical Restrictions : New Block Exemption

The Commission has finally adopted its new regulation - Regulation 330/2010 - block exempting under Article 101 §3 TFEU certain distribution arrangements and other vertical restrictions.

The new Regulation provides that manufacturers, in order to benefit from the block exemption, cannot have a market share in excess of 30% and their distribution or supply agreements must not contain any so-called "hardcore restrictions of competition", such as fixing the resale price or re-creating barriers to the EU single market. The new rules introduce the same 30% market share threshold for distributors and retailers to take into account the fact that some buyers may also have market power with potentially negative effects on competition. The Commission claims that that change is beneficial to small and medium-sized enterprises (SME's), whether manufacturers or retailers, which could otherwise be excluded from the distribution market.

Distribution agreements made between companies with a higher market share than 30% are in principle caught by the prohibition contained in Article 101 §3 TFEU and are thus illegal unless they can be exempted individually pursuant to Article 101 §3 TFEU.

The Regulation is supplemented by new Commission Guidelines which sort of explain the Regulation. In fact, the Guidelines are a form of covert legislation without respecting the legislative process. For example, the Guidelines deal with the issue of on-line sales and state that distributors must be free to sell on their websites as they do in their shops and outlets. For selective distribution, this means that manufacturers cannot limit the quantities sold over the Internet or charge higher prices for products to be sold online. The Guidelines deal with the concepts of "active" and "passive" sales for exclusive distribution: Terminating transactions or re-routing consumers after they have entered their credit card details showing a foreign address will not be accepted. In that way, the Commission has pre-empted the Court of Justice's ruling in the pending case C-439/09 Pierre Fabre Dermo-Cosmétique

The new Regulation enters into force on June 1st 2010 and replaces Regulation 2790/1999 which expires on May 31st 2010.

EU Accession to the ECHR

Article 6 §2 TEU provides that the EU shall accede to the European Convention of Human Rights.

Easier said than done, of course. But now the wheels of accession are in motion.

The Commission has proposed negotiating directives to the Council so that it may conduct the requisite negotiations with the Council of Europe. The Commission has issued this press release and this memo explaining very briefly what it proposes.

Meanwhile, the European Parliament has been busy too. The Committee on Constitutional Affairs has issued this draft report. Interestingly, the draft report considers that no formal mechanism such as a preliminary reference procedure should link the Court of Justice and the European Court of Human Rights.

The European Parliament's Committee on Foreign Affairs issued this brief and rather vague draft opinion.

And its Committee on Civil Liberties, Justice and Home Affairs issued its own draft opinion.

All of those parliamentary documents will be considered by the Parliament's plenary sometime in the near future.

For a glimpse into how the Council of Europe would see the institutional mechanism to be established after EU accession to the Convention and in particular how the Court of Justice and the European Court of Human rights will interrelate, see this speech here. In it, Mr Serhiy Holovaty, Vice chairperson of the Committee of Legal Affairs and Human Rights of the Council of Europe's Parliamentary Assembly states that after EU accession, the Court of Justice will be treated as just a "domestic court" over which the Court of Human Rights will exercise "external restraint".

For a previous post on the relationship between the Council of Europe and the EU, see here.

Hat tip to the ECHR blog.