Proposal for a regulation of the European Parliament and of the Council on cosmetic products (recast) Possibility to transform a directive into a regulation by means of a recast - Montesquieu Instituut

COUNCIL OFBrussels, 20 November 2008

THE EUROPEAN UNIONPUBLIC

16110/08

LIMITE

Interinstitutional File:

2008/0035 (COD)

JUR 522 INST 171 MI 472 ENT 285 CONSOM 191 SAN 280 ECO 169 ENV 866 CHIMIE 77 CODEC 1616

DOCUMENT PARTIALLY ACCESSIBLE TO THE PUBLIC

OPINION OF THE LEGAL SERVICE

*

to : Working Party on Technical Harmonisation

No. Cion prop. : 6725/1/08 REV 1 - COM(2008) 49 final Subject :

Proposal for a regulation of the European Parliament and of the Council on cosmetic products (recast)

• - 

  Possibility to transform a directive into a regulation by means of a recast

By the same token, the Commission proposed to transform Directive 76/768/EEC into a

regulation, without however identifying this change of the legal nature of the act as a

substantive change in the text of the proposal.

• 2. 

  In conformity with the Interinstitutional Agreement of 28 November 2001 on a more

structured use of the recasting technique for legal acts1 (hereafter "IIA of 28 ovember

2001"), the cosmetic products proposal was submitted to the Consultative Working Party

consisting of the respective Legal Services of the European Parliament, the Council and the

Commission which, in conformity with point 9 thereof, is to deliver an opinion "... for

submission to the European Parliament, the Council and the Commission to the effect that

the proposal does not comprise any substantive amendments other than those identified as

such."

• 3. 

  For the first time since the signing of the IIA of 28 November 2001, the three Legal Services

could not agree on a position, the issue of disagreement being the question of whether a

directive can be converted into a regulation by means of a recast. The Legal Services of the

European Parliament and of the Commission consider that this is possible, while the Council

Legal Service holds the opposite view. The respective positions were recorded in the opinion

of the Consultative Working Party of 14 November 2008 (see document 15840/08).

• 4. 

  The Council Legal Service wishes to draw the delegations' attention to the legal and

institutional implications of the issue at hand, which go well beyond the cosmetic products

• 3. 

  A proposal for recasting submitted by the Commission shall deal with the substantive amendments which it makes to an earlier act. On a secondary level, the proposal shall include the codification of the unchanged provisions of the earlier act with those substantive amendments.

4.

For the purposes of this Agreement :

• - 

  'earlier act' shall mean a legal act which is in force, and which may have been

amended by one or more amending acts,

• - 

  'substantive amendment' shall mean any amendment which affects the substance of

the earlier act as opposed to purely formal or editorial changes,

• - 

  'unchanged provisions' shall mean any provision of the earlier act which, although it

may be affected by purely formal or editorial changes, has not undergone any substantive amendment.

A new legal act shall not constitute a recast if, with the exception of standardised provisions or wordings, it makes substantive amendments to all the provisions of the earlier act, which it replaces and repeals.

5.

The Community's normal legislative process shall be complied with in full."

• 6. 

  Pursuant to point 6 b) i) of the IIA of 28 November 2001, the proposed legislative text shall

be presented in a way which "enables the substantive amendments and new recitals to be

clearly distinguished from the provisions and recitals which remain unchanged."

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