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Institutional and Legal Affairs, PUBLICATIONS

Delegated and Implementing Acts

This compilation of information sources was created in September 2012 and updated in January 2014.

Delegated and Implementing Acts

© keko-ka / Fotolia

The so-called comitology system, based on five different comitology procedures, was reformed by the Lisbon Treaty. A new approach to delegated and implementing decision making was introduced in the form of two new and separate regimes: Delegated acts (art. 290 TFEU) and Implementing Acts (art.291 TFEU).

Implementing acts include implementation measures, whereas delegated acts allow amending, supplementing, or deleting non-essential elements of the basic legislative act. Basic legislative acts define on a case by case basis the conditions of powers delegated to the Commission. The co-legislators retain a certain level of control: implementing acts include a right of scrutiny for EP and Council whereas with delegated acts the EP or Council can object to an individual act or revoke the delegation altogether. Basic acts are adopted in legislative procedure. Delegated and implementing acts are adopted by the Commission. Implementing powers may in some particular cases also be delegated to the Council. Consequently, implementing and delegated acts are Commission, or in some special cases Council, regulations, directives or decisions.

Although they are often technical measures, delegated and implementing acts might include important political choices and have a significant impact on citizens’ daily lives. They are used in a wide range of policy areas, for example, implementing measures on energy labelling, authorisation of certain type of food additives and civil aviation safety control equipments.

Overviews

Comitology: hijacking European power? / Guéguen, Daniel, Bruxelles: PACT European Affairs, 2013, 79 p.
This book offers an overview of the changes the Lisbon Treaty bought to the comitology system. It presents several example cases regarding different procedures and illustrates the meaning and scope of comitology in EU decision-making.

Regulatory Affairs: What you should know about implementing and delegated acts / David O’Leary (speaker), András Baneth (moderator), Burson-Marsteller and European Training Academy, 22 May 2013, free webinar, 60 mins. PPT is also available.
This webinar explains with examples basic elements of the comitology including an overview on its evolution to the current post-Lisbon situation. Main institutional points of conflict and controversies are presented. At the end of the presentation some tips on how to work with the new system are presented from the viewpoint of someone who wishes to influence the key players of the EU legislative machinery.

EIPA Essential guide 2013 / Alan Hardacre, Michael Kaeding, EIPA Essential Guide 2013, 28 p.
This updated guide presents an overview of the comitology system and its new provisions. It includes detailed presentations of articles 290 and 291 TFEU as well as a comparison between new and old procedures. Their similarities and differences are well explained.

Delegated legislation after the Treaty of Lisbon: an analysis of Article 290 TFEU / Bart Driessen, European Law Review, E.L. Rev. 2010, 35(6), 11 p.
This article concentrates on 290 TFEU i.e. delegated acts. It examines the historical background and analyses its content and limitations.
(The link opens this article in full text. A login window appears also, please skip it. No password is needed to read the article on the EP network.)

Legislative framework

New rules on Comitology define the scope and distinction between the procedures. However, the choice between delegating powers with implementing or delegated acts in the basic legislative act is not always clear in practice. Furthermore, inter-institutional tensions are characteristic to this domain.

A transition time is set for the alignment of legislative acts and the new comitology system of delegation of powers. The Regulatory Procedure with Scrutiny (RPS) is still used for measures resulting from legislative acts which existed before the reform and have not yet been aligned with the new system.

The following three European Commission proposals concern the alignment of the remaining basic acts referring to RPS procedure.

  • 2013/0220(COD) Aligning a number of legal acts in the area of Justice with the TFEU (Article 290, Commission delegated powers) / Procedural file, Legislative Observatory
  • 2013/0218(COD) Aligning a number of legal acts with the TFEU (Article 290, Commission delegated powers) / Procedural file, Legislative Observatory
  • 2013/0365(COD) Aligning a number of legal acts with the TFEU: Commission delegated and implementing powers / Procedural file, Legislative Observatory

Handbook on Delegated Acts and Implementing Acts / European Parliament, Directorate General for Internal Policies of the Union, European Parliament intranet
This EP intranet site contains a handbook on delegated and implementing acts prepared by the Conciliation and Codecision Unit. It presents relevant legislation, rules and guidance related to the concepts of implementing and delegated acts.

There is no binding horizontal framework on delegated acts. Their objectives (scope, duration, etc.) are set case by case in each basic legislative act. However, there is an inter-institutional common understanding: Common understanding on Delegated Acts, 4.4.2011, which is based on a Communication from the Commission, to the European Parliament and the Council: Implementation of Article 290 of the Treaty on the Functioning of the European Union COM(2009)673, 9.12.2009

The Framework Agreement on relations between the European Parliament and the Commission (2010/L 304/47) section 15:” The Commission will provide full information and documentation on its meetings with national experts within the framework of its work on the preparation and implementation of Union legislation, including soft law and delegated acts. If so requested by Parliament, the Commission may also invite Parliament’s experts to attend those meetings. The relevant provisions are laid down in Annex I.”

Basic rules and principles on how to use implementing acts are in the Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.
The standard rules of procedure for committees (2011/C 206/06) includes rules related to the work of committees. The work of the Appeal Committee is regulated by rules of procedure for the appeal committee (Regulation (EU) No 182/2011), adopted by the appeal committee on 29 March 2011 (2011/C 183/05).

The Council Decision of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission (2006/512/EC) is related to the introduction of the regulatory procedure with scrutiny RPS, which is still used until legal acts have been aligned to the new comitology rules. See also a summary on this Council decision in the Legislative Observatory OEIL.

EU institutions

The European Parliament

2012/2323(INI) Follow-up on the delegation of legislative powers and the control by Member States of the Commission’s exercise of implementing powers / Procedural file, Legislative Observatory OEIL, rapporteur József Szájer. See summary of the JURI Committee report adopted in the Committee in November 2013 and tabled for plenary in February 2014.

The EP adopted an own initiative report on Power of legislative delegation 2010/2021(INI). See rapporteur Szájer’s report and text adopted at the EP plenary on 5 May 2010.

Concerning the alignment of legal acts to the new comitology system, the European Parliament adopted a resolution including recommendations to the Commission on 23 September 2008, Alignment of legal acts to the new Comitology 2008/2096(INI)

European Parliament Rules of Procedures concerning delegated and implementing act was revised in 2012. EP Rules of Procedure, Rules 87a and 88: delegated acts and implementing measures 2009/2195(REG), rapporteur Carlo Casini. A text was adopted by the Parliament on 10 May 2012.

The Commission

The Commission maintains a register of expert groups and other similar entities and a Comitology Register. The register of experts provides, among other things, information concerning groups of experts involved in the preparation of delegated or implementing acts. The mission, tasks and members are listed for each group. It also offers additional information, such as statistics and activity reports. The Comitology Register provides information on comitoloy committees and their activities. It is possible to conduct a search in the register according to documents or committee. The register also contains other useful information, for example, annual reports on the work of Comitology Committees (from the year 2000 onwards).

Council of the European Union

ST 12977 2013 INIT – Proposal for a Regulation of the European Parliament and of the Council adapting to Article 290 TFEU a number of legal acts providing for the use of the regulatory procedure with scrutiny – Activation of Friends of Presidency Group (Comitology) – Consultation of European Central Bank / Council of the European Union 2.9.2013, 5 p.
Council document regarding the three EC proposals for omnibus regulations for the alignment of all remaining acts referring to the regulatory procedure with scrutiny.

Entry into force of new comitology rules / Council of the European Union Factsheet, 7070/11 PRESSE 42, 28.2.2011, 3 p.
This Council factsheet on new comitology rules presents the regulation concerning the Commission’s exercise of implementing powers (Regulation (EU) No 182/2011). It explains briefly the examination and advisory procedures and refers to rules related to delegated acts.

European Court of Justice

The so-called “biocides case” pending in the Court of Justice handles an inter-institutional dispute on the definition of criteria applied in selecting implementing or delegated acts in the basic legislative act, Case C-427/12 . The European Commission has filed proceedings for annulment by challenging the procedure defining fees payable to the European Chemical Authority under the biocides regulation (528/2012/EC). The EC seeks to repeal decision of the Council and the EP to use implementing acts instead of delegated acts with a plea that articles 290 and 291 TFEU have been applied incorrectly. The opinion of Advocate General Villalón, 19 December 2013.

Analysis

This section provides a selection of recently published articles and books examining implementing and delegated acts from different perspectives. Comparisons of old and new concepts, analysis of the RPS procedure and its alignment to delegated acts, practical examples of inter-institutional decision-making are provided by several authors. In addition, formal and informal norms guiding the application procedures are observed in theory and in practice. The publications cover the whole decision-making cycle of comitology including enlargement of impact assessment to the area of non-legislative rule-making and issues related to accountability. (Some articles require subscription. If a login window appears, please select “IP authentication”.)

The European Parliament and the future of comitology after Lisbon / Kaeding, Michael; Hardacre, Alan, European Law Journal: review of European law in context, Vol. 19 (2013), n° 3, p. 382-403

Non-legislative rule making after the Lisbon Treaty : implementing the new system of comitology and delegated acts / Christiansen, Thomas; Dobbels, Mathias, European Law Journal: review of European law in context, Vol. 19 (2013), n° 1, p. 42-56

Impact assessment of EU non-legislative rulemaking : the missing link in ‘new comitology’ / Alemanno, Alberto; Meuwese, Anne C. M., European Law Journal: review of European law in context, Vol. 19 (2013), n° 1, p. 76-92

Changing rules of delegation: a contest for power in comitology / Windhoff-Héritier, Adrienne, Oxford: Oxford University Press, 2013, 179 p.

Delegated and implementing rule making: proceduralisation and constitutional design / Mendes, Joana, European Law Journal: review of European law in context, Vol. 19 (2013), n° 1, p. 22-41

Controlling comitology accountability in a multi-level system / Brandsma, Gijs Jan, Basingstoke: Palgrave Macmillan, 2013, 197 p. This ebook is available on the EP network.

Negotiating the Post-Lisbon Comitology System: Institutional Battles over Delegated Decision-Making / Gijs Jan Brandsma; Jens Blom-Hansen, Journal of Common Market Studies JCMS vol.50 nr.6 2012, 18 p.

Institutional Change in Europe: Co-decision and Comitology Transformed /Adrienne Héritier, Journal of Common Market Studies vol.50 nr.1 2012, 38 p.

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Discussion

12 thoughts on “Delegated and Implementing Acts

  1. Hey, I think your website might be having browser compatibility issues.
    When I look at your website in Ie, it looks fine but when opening in Internet Explorer, it has
    some overlapping. I just wanted to give you a quick heads up!

    Other then that, wonderful blog!

    Like

    Posted by venus88iryt.wordpress.com | October 12, 2014, 06:50
  2. I do not manage to reach the article above in the European Law Review (http://login.westlaw.co.uk/maf/wluk/app/authentication/signon?sp=ukeurpal-1&redirect=%2Fmaf%2Fwluk%2Fapp%2Fdocument%3Fcrumb-action%3Dreset%26docguid%3DI1E7AB56008C611E0A451F66F817AC0EE%26sp%3Dukeurpal-1). How exactly I am supposed to “skip” the login page?

    Like

    Posted by salykova | March 27, 2013, 10:43
  3. It seems to me that the non-working link could be replaced by this one: http://publications.eipa.eu/en/details/&tid=1839
    if the publication is the same.

    Like

    Posted by Davide Gallino | October 9, 2012, 16:14
  4. Thank you for this excellent resource! Really useful for us who offer training courses and consultancy on comitology.

    (A technical comment: the link doesn’t seem to work on “Handbook on Delegated Acts and Implementing Acts / European Parliament, Directorate General for Internal Policies of the Union, updated website”)

    Like

    Posted by Andras Baneth | September 25, 2012, 15:07

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