The Post-Legislative Powersof the Commission

Delegated andImplementing Acts

The NewInstitutional

Context

1

A basic act is established by the Legislator

Ordinary legislative procedure(co decision)

Special legislative procedure(Council with consultationor consent of Parliament)

Subsequent decisions are

neededTo IMPLEMENT

the legislative act

To SUPPLEMENT or AMENDthe legislative act

IN ITS NON ESSENTIAL ELEMENTS

Intervention of the Commission

Before Lisbon Treaty

COMITOLOGY ONLY

Committees of Member States +Strong role for the Council

A single Treaty basisArticle 202

A single legal framework

Comitology Decision of 1999, amended in 2006

Commission prepares a draft

Discussions within a committee

Opinion (vote of the committee)

Positive opinion

Negative opinion

No opinion

Adoption

Referral to Council

Differences between ComitologyCommittees and Expert Groups

Comitology has a limited scope: control of the executive powers of the

Commission

Expert Groups: advice and expertise to the Commission in relation to the preparation of legislative proposals, policy initiatives

and delegated acts, as well as to the implementation of existing legislation

Comitology committees always created by the legislators

Expert Groups normally established by the Commission. In some cases they are set up

by the legislator

Comitology committees composed by all Member States

Opinions delivered by Comitologycommittees have a direct impact on the

decision-making process

Expert groups may be composed of individuals, organisations in the broad sense of the word and Member States'

authorities

Opinions of Expert Groups cannot bind the Commission

Before Lisbon TreatyEVOLUTION of COMITOLOGY

Progressively, the Parliament gained some powers within the comitology process

1999

2006

Right of information

Right of scrutiny, in order to indicate that a draft implementing act exceeds powers conferred on the Commission (“droit de regard”)

Veto right on quasi legislative measures prepared by the Commission (Regulatory Procedure with Scrutiny, known as “PRAC”)

But still it was Comitology, with predominance of Member States and Council

After Lisbon TreatyTwo Treaty

bases

Article 290

Two completely separate legal frameworks

Delegated acts

Article 291Implementing

acts

No Comitology New Comitology

Ex-post control by the two legislators

Control by Member States only

(no role for the Council)

Most important and sensitive issueDelineation

between Article 290 and Article 291

Why it’s important?

1. – Misuse of the criteria could affect the legality of the legislative act.

2. – It affects also the legality of the acts the Commission will have to take after the adoption of the legislative acts. In particular, Commission cannot use implementing powers to amend or supplement a legislative act.

Most important and sensitive issueDelineation

between Article 290 and Article 291

What are the criteria?

1. – Delegated acts are always acts of general application. Implementing acts could be individual or general.

2. – Delegated acts amend or supplement the legislation. Amend formally modify the legislative act. Supplement establish new non-essential rules which complete or specify the contents of the legislative act, notablyby adding new obligations. Implementing acts cannot modify the legislative act. They are intended only to give effect to the rules determined by the legislator.

► Comply only with the legal criteria established by the Treaty – and disregard other criteria: the “political sensitivity” or the “technicality” of the measures to be taken are not relevant.► The WHY question: assess the objectives of the power to be conferred. Why the Commission needs such powers? To modify the legislation or to merely execute it?

► The WHAT and HOW questions: ask whether the power conferred on the Commission is to determine “WHAT” the Member States must do (delegated acts) or to determine “HOW” they are to act in carrying out their obligations under the basic act (implementing acts).

Supplement vs. Implement3 Ground Rules

A Few Examples(1)

Reg. 2111/2005 of 14.12.2005List of air carriers subject to an

operating ban within the Community

Decision to modify the annex containing the common criteria for imposing operating bans, in particular in order to take account of scientific and technical developments

Implementing

SupplementingAmending

Decision to impose an operating ban

A Few Examples(2)

Reg. 853/2004 of 29.04.2004Specific hygiene rules for food of animal origin

Food business operators shall not use any substance other than potable water to remove surface contamination from products of animal origin, but the use of another substance may be decided

SupplementingAmending

A Few Examples(3)

Dir. 2001/18 of 12.3.2001Deliberate release into the environment of

genetically modified organisms (GMO)

Establishment of criteria and information requirements to be met for the notification for the placing on the market of certain types of GMO

Decision on a safeguard clause used by a Member State

SupplementingAmending

Implementing

A Few Examples(5)

Dir. 2010/40 of 07.07.2010Intelligent Transport Systems

Specifications necessary to ensure compatibility, interoperability and continuity for development and operational use of ITS

Measures to facilitate Member States’ cooperation

Implementing

SupplementingAmending

A Few Examples(6)

Reg. 995/2010 of 20.10.2010Obligations of operators who place timber

and timber products on the market

Establishment of further risk assessment criteria.

Rules concerning the frequency and the nature of the checks necessary to ensure the effective oversight of monitoring organisations

SupplementingAmending

Implementing

DelegatedActs

2

Treaty

Agreement betweeninstitutions

Internal guidance

Article 290Commission’s communication (December 2009)

Council’s declaration (December 2009)

EP resolution (May 2010)

Common Understanding

(March 2011)

Operational Guidelines for the Services of the

Commission(June 2011)

Need to respect the Common Understanding

Need to respect the Common Understanding

The Common Understanding is a very useful tool to avoid institutional controversies in each legislative file. Need to streamline the practice and to establish agreed clarifications and preferences.It is very important to follow the rules established by the Common Understanding, especially the models for recitals and articles and the framework defined for the preparation of delegated acts.

The three institutions committed themselves to respect the arrangements they agreed upon in this document (exchange of letters between Mr Buzek, Barroso and Martonyi). Political and institutional obligation to comply with its provisions. Derogations should be exceptional and based on solid grounds.

Preparation of delegated acts

2 major commitmentsof the Commission

Commitment to consult experts from national authorities of all 27 Member States in a timely manner.

Commitment to inform the legislator

Documents sent in parallel to the experts and to EP’s and Council’s functional mailboxes.Rights of the EP: if EP so requires,

Commission may invite Parliament’s experts to attend expert meetings.

Autonomy of the Commission

No ComitologyNo other forms of similar

procedures

These commitments are set out in a standard recital to be inserted each time the legislator delegates powers to the Commission.

Expert Meetingsto prepare delegated acts

Experts appointed by all the Member States

European Parliament’s experts may ask to be invited

Flexibility to invite other experts, especially from EEA States.

No opinion delivered. Autonomy of the Commission as regards the results of the consultations.

Control of delegated acts

RIGHT TO OBJECT

CommissionAdoption

of the delegated actAdoption

of the delegated act

Notificationof the delegated act

Notificationof the delegated act

1) If EP or Council expresses objections

The delegated act cannot enter into force. The Commission may prepare and adopt a new one.

2) If neither EP nor Council has objected or if they have both informed Commission that they don’t have the intention to raise objections.

Time-limit (generally 2 months with possible extension for the same period)

Publication and entry into force

of the delegated act

Publication and entry into force

of the delegated act

1. Objection

ParliamentCouncil

Control of delegated acts

2. Revocation

At any moment after the entry into force of the legislative act

ParliamentCouncil or

RIGHT TO REVOKEDecision to revoke shall state the delegated powers which are subject

of the revocation

The decision to revoke puts an end to the delegation of powersspecified in that decision.

It doesn’t affect the validity of delegated acts already in force.

ImplementingActs

3

Member States are responsible for the implementation of the Union law.The Commission is entrusted this role of implementation

where uniform conditions for implementation are necessary (the Council may also exercise implementing powers in some very specific cases).It is therefore the Member States which have to control

the Commission when the latter exercises its implementing powers.Rules and general principles concerning mechanisms for

control by Member States of the Commission’s exercise of implementing powers have to be laid down by a Regulation adopted under co decision by EP and Council.

Basic elements of Article 291

Brief Overview of the Negotiating Process

March 2010Proposal of the Commission (COM (2010) 83). Opening of the negotiations in Council and Parliament.

July - November 2010Negotiations on a compromise, notably on common commercial policy, led by Belgium Presidency. Compromise found in Council on November, 12th.

December 2010Agreement approved in COREPER and voted in JURI EP committee – Vote in Plenary.

Formal adoption and publication February 2011

ENTRY INTO FORCE ON 1ST MARCH 2011Regulation 182/2011/EU of 16 February 2011

Main Changes

1 No interference

of the Legislator

No more possibility to refer cases to Council. An “appeal committee” intervenes in certain circumstances, but this body is a comitologycommittee, chaired by the Commission.

Only the Member States, by QMV, may block the adoption of an implementing act.

“Droit de regard” of the Legislator does not entail automatic suspension of the decision-making process.

2 Wider margin of appreciation for the Commission after the vote of a committee, especially where there is no QMV against nor in favour.

Flexibility

Main Changes

4Automatic and immediate adaptation between the old and the new system.

3Only 2 procedures instead of 4 (advisory and examination), with possibilities to take urgent decisions without prior consultation of a committee in some circumstances.

Appeal Committee faster than referral to Council.

Efficiency

Smooth implementation

of the reform

A comitology committee is always created by the legislator. In the basic legislative act, the legislator shall:

Confer implementing powers on the Commission where the conditions of Article 291 are met (need for uniform conditions of implementation)

Decide whether it’s necessary to impose a control to the Commission’s implementing powers

If it deems necessary to impose a control, decide which comitology procedure shall apply, examination or advisory (decision to be taken for each implementing power conferred on the Commission). Criteria are set out in Article 2.

Decide whether the committee assisting the Commission in accordance with the comitology procedures should be a new one or an existing one.

Observers(third countries, international

organisations)

COMITOLOGY COMMITTEE

Commission - Chairperson

27 Member States

Basic procedural rules in theComitology Regulation

(Art. 3 in particular)

Internal rules of procedure (Art. 9)

Participation of third parties(Art. 7, standard rules)

Paragraph 1, official status

Need of a legal basis: Articles 81, 100 and 101 of EEA Agreement, or a specific legal basis

Paragraph 2, acceding countries As from the date of the signature

of the Treaty of Accession

Paragraph 3, new room for participation More flexibility, but possibility

for the Member States to oppose

Role of third parties(Art. 7, paragraph 3, standard rules)

Third States are OBSERVERS

Participation in the discussion

No vote

Full informationArticle 100, EEA Agreement

Role of the Commissionin a Comitology Committee

Right of Information (Art. 10)EP and Council have access to the following information, via the ComitologyRegister:

Agendas,Voting results,Summary records,Lists of authorities and organisations represented in committees,Draft implementing acts submitted to committees, and final drafts after

the vote.

Right of scrutiny (Art. 11)Where the basic act is adopted under the ordinary legislative procedure, the European Parliament and the Council may at any time indicate to the Commission that they consider a draft implementing measure to exceed the implementing powers provided for in the basic act. In such a case, the Commission shall review the draft measure in question and shall inform the European Parliament and the Council whether it intends to maintain, amend or withdraw the draft implementing measure

0 255 345

Only the Member States take part in the vote Committees follow Council voting rules

Positive opinionNumber of votes in favour

Negative opinionNumber of votes against

345 255 0

Noopinion

Advisory Procedure

Examination Procedure

Simple majorityQualified majority

Advisory Procedure

The Chair (representative of the Commission) submits a draft implementing act to the committee

Committee delivers an opinion, if necessary by a vote(simple majority)

Negotiations within the committee

Commission shall decide on the measures to be taken, taking the utmost account of the conclusions drawn

from the discussions within the committee and of the opinion delivered

Examination Procedure (First Part)

The Chair (representative of the Commission) submits a draft implementing act to the committee

Committee delivers an opinion by QMV

Negotiations within the committee

Commission shall adopt

Commission cannot adopt(except in exceptional cases of

disruption of agricultural markets)

Positive opinionNegative opinion

Commission may amend and come back to the

committee or refer the casebefore the appeal

committee

No opinion

Commission may adopt(or not adopt, or amend and come back to the committee)

In some cases Commission cannot adopt. 1) In certain policy areas, or 2) if basic act so provides, or 3) if asimple majority voted against.In such cases Commission may amend and come back to the committee or refer the case to the appeal committee

Examination Procedure (Second Part)

If the Chair (representative of the Commission) decides to refer the case before the appeal committee

Consultations with Member States, in order to fix the date of the meeting and to assess the level of representation within the appeal committee

Commission shall adopt

Commissioncannot adopt

(and shall repeal the adopted acts in cases of disruption of agricultural markets)

Positive opinionNegative opinionNo opinion

Commission may adopt(or not adopt)

Appeal committee meeting

Appeal committee (chaired by the Commission)delivers an opinion by qualified majority

How to apply instruments adopted before March 1st, 2011?

How to apply instruments adopted before March 1st, 2011?

Where there are references to the advisory procedureWhere there are references to the advisory procedureNew advisory

procedureapplies

Where there are references to themanagement and regulatory procedures

Where there are references to themanagement and regulatory procedures

New examination procedure

applies

Where there are references to theregulatory procedure with scrutiny (PRAC)

Where there are references to theregulatory procedure with scrutiny (PRAC)

Automatic transformation

Automatic transformation

NO automatictransformation

Thank you foryour attention!